From Slate:
... For years now, right-wing litigators have argued that the CFPB [Consumer Financial Protection Bureau] is unconstitutional because it is funded independently: The agency draws its budget from the Federal Reserve, which in turn draws its budget from interest on securities. Because Congress does not directly appropriate money to the CFPB every year, lawyers claimed, its funding violates the Constitution’s appropriations clause. ...
At least seven different federal courts dismissed this theory until it landed in the 5th Circuit, the nation’s Trumpiest appeals court. In May 2022, Judge Edith Jones—a Ronald Reagan appointee and hard-right bomb-thrower—wrote a 39-page concurrence asserting that the CFPB is funded unconstitutionally. Four other judges joined her. Then, in October, a three-judge panel formally declared that the CFPB’s independent budget mechanism renders the entire agency unconstitutional. Judge Cory Wilson, writing for the panel, revoked the CFPB’s ability to issue or enforce any regulations. (All three members of the panel were appointed by Donald Trump.) Thus, under the current law of the 5th Circuit, the CFPB effectively does not exist. ...
You might wonder: What does this skirmish over a small financial agency have to do with hundreds of billions of dollars in annual entitlement spending? The answer: everything. In her concurrence, Jones took pains to clarify that her reasoning was not limited to the CFPB. Jones announced that all “appropriations to the executive must be temporally bound.” If Congress does not put a “time limit” on funding, it gives the executive branch too much discretion over spending. Under the Constitution, she claimed, the executive must “come ‘cap in hand’ to the legislature at regular intervals” to ensure that it remains “dependent” and “accountable.” ...
If their view becomes the law of the land, it will empower courts to abolish trillions of dollars in entitlement spending. Why? Because today two-thirds of annual federal spending is “mandatory”—including some of our nation’s most beloved social safety net programs. All of this spending amounted to $5.2 trillion in fiscal year 2021 that would suddenly be at risk of elimination by judicial fiat. ...
Does this principle derive from the Constitution? Of course not. The appropriations clause at question simply states that all money drawn from the treasury must be “in consequence of appropriations made by law.” There is no textual requirement that Congress reauthorize appropriations periodically. In fact, Article 1 of the Constitution suggests the exact opposite: It bars Congress from appropriating money to the Army “for a longer term than two years,” implying that other kinds of long-term appropriations are permissible. If they weren’t, then why would Army appropriations need an explicit time limit? ...
Be careful what you ask for GOP. You might get it.
4 comments:
This is scary stuff. You'd think that normally such a concept would be laughed out of court. But then you consider the originalist thinking that the current Supreme Court has adopted to eviscerate state gun control laws and overturn Roe. Further, the asinine theory of independent state legislatures that could be used to overturn federal elections is seriously being considered by this Supreme Court. It's not a stretch to think that this theory of appropriations could be entertained next...
What is and isnt a law or right is completely dependent on who makes the decision, see Roe v Wade as example.
The Slate piece is dumb, scaremongering, dumb scaremongering, or self-aware inflammatory fearmongering. Whatever the truth on that the premise does not survive a cursory examination of the actual court decisions. Page 35, note 16 of the October 19th Fifth Circuit decision:
"Neither is the Bureau’s structure comparable to mandatory spending programs such as Social Security. The Bureau self-directs how much money to draw from the Federal Reserve; the Social Security Administration (SSA) exercises no similar discretion. Compare 12 U.S.C. § 5497(a)(1) (creating Bureau funding mechanism) with 42 U.S.C. § 415 (setting parameters for Social Security benefit levels). Quite to the contrary, SSA pays amounts Congress has determined to beneficiaries whom Congress has identified. See 42 U.S.C. § 415 (identifying amounts); 42 U.S.C. § 402 (identifying eligible individuals). The Executive Branch’s power over “automatic” Social Security spending is therefore purely ministerial. Furthermore, Congress retains control over the SSA via the agency’s annual
appropriations. See, e.g., Social Security Administration, Justification of Estimates for Appropriations Committees | Fiscal Year 2023 (2022), https://www.ssa.gov/budget/FY23Files/FY23-JEAC.pdf. Other benefits payments, including Medicare and Medicaid, the Supplemental Nutrition Assistance Program, and Temporary Assistance for Needy Families, are administered similarly by agencies subject to annual appropriations set by Congress."
https://aboutblaw.com/5mY
Setting our own budget like the CFPB is an SSA fever dream!
How does the saying go? "May you be cursed with interesting times"
If nothing else, Admin Law has become a lot more interesting over the past few years.
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