At the Notice and Comment blog, Chad Squitieri (Catholic): What the Court Did Not Decide in Community Financial, and How That Might Prove Dispositive for Future Challenges to the CFPB’s Funding Statute. From the introduction:
On two occasions, the majority opinion in CFPB v. Community Financial made clear that it was tasked with answering only a “narrow” question concerning the requirements imposed by the Appropriations Clause. Slip Op. at 1, 5. The Court’s answer to that narrow question was relatively straightforward: the Appropriations Clause requires no more than “a law that authorizes the disbursement of specified funds for identified purposes.” Id. at 19. This meant that, because 12 U.S.C. § 5497 (the statute permitting the CFPB to demand funds from the Federal Reserve rather than request funds from Congress) identified a “source” and “purpose” for the CPFB’s funding, the limited requirements of the Appropriations Clause were satisfied. Id. at 22.
The Court’s dutiful commitment to answering only the narrow Appropriations Clause question presented was dispositive for the appeal in Community Financial. But the Court’s narrow holding is unlikely to be dispositive for future appropriations challenges—including future challenges to the CFPB’s funding statute. This is because of a crucial question that the Court was careful not to address: whether the CFPB’s funding statute violates the limitations imposed by the precise constitutional text that actually vests Congress with the authority to enact appropriations laws.
This essay builds on my past and forthcoming work identifying the different constitutional text that vests Congress with the authority to enact various appropriations laws, and explains why a focus on the requirements imposed by such text may prove dispositive for future appropriations challenges.
Posted at 6:37 AM