Rule of Law

The Consumer Financial Protection Bureau’s funding is constitutional

George F. Will claimed in his Feb. 16 op-ed, “Reining in the CFPB should be a no-brainer,” that the Consumer Financial Protection Bureau is unconstitutional. But he only illustrated the readiness of some conservatives to prioritize their political agenda over the Constitution’s text, the original understanding of its meaning and the judiciary’s limited role in our democracy.

Mr. Will complained that Congress funded the CFPB the same way it has long funded nearly all financial regulators: Instead of drawing money only from the Treasury, these agencies fund themselves through fees and investments, ensuring a predictable revenue stream. Mr. Will wrote this violates the Constitution’s appropriations clause, which reads: “No money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.” Left unexplained is how a restriction on drawing money from the Treasury is violated when money isn’t drawn from the Treasury. As the Constitution’s text reflects, the appropriations clause empowers Congress to control the executive branch by prohibiting unauthorized spending. It doesn’t empower judges to dictate how Congress funds agencies. Nothing in the Constitution requires funding by annually appropriated Treasury withdrawals. Indeed, Congress has been creating self-funding agencies since the founding. Moreover, Congress retains ultimate control over the CFPB’s budget: As Brett M. Kavanaugh noted in 2016 when he was a judge on the U.S. Court of Appeals for the D.C. Circuit, “Congress can always alter the CFPB’s funding in any appropriations cycle (or at any other time).”

Mr. Will might be disappointed that Congress has not done so, but the Constitution leaves that political choice with the people’s elected representatives.