Chad Squitieri (Catholic University Columbus School of Law) has posted "Appropriate" Appropriations Challenges after Community Financial (Cato S.Ct. Review) (28 pages) on SSRN. Here is the abstract:
This Article, prepared for the Cato Supreme Court Review, offers an analysis of the of the Supreme Court's Appropriations Clause decision in CFPB v. Community Financial. The Article argues that, although the Supreme Court's Appropriations Clause holding was correct, future appropriations challenges should focus on the Necessary and Proper Clause rather than the Appropriations Clause.
And from the introduction:
As this article will explain, the Supreme Court got it right in Community Financial. But here’s the kicker: That does not mean that Section 5497 is constitutional. As I’ve argued before and as the Supreme Court now agrees,9 it is not the Appropriations Clause that vests Congress with the authority to appropriate funds. It is other constitutional text that vests Congress with the authority to enact appropriations laws. Thus, future “appropriate” appropriations challenges (as I have termed them) should focus on the limitations imposed by that other constitutional text—and not the Appropriations Clause itself. Understanding as much provides crucial context concerning the Court’s careful effort in Community Financial to explain that its “narrow” holding was limited to the requirements of the Appropriations Clause alone. The Court explicitly declined to address “other constitutional checks on Congress’ authority to create and fund an administrative agency.”
Posted at 6:01 AM