E. Donald Elliott (Yale Law School; Antonin Scalia Law School) has posted Monomaniacal Textualism Undermines Congress's Power of the Purse (Harv. J. L. & Pub. Pol'y, forthcoming) (17 pages) on SSRN. Here is the abstract:
No structural principle of our government is more fundamental than that the House of Representatives, the part of our national government closest to the people, controls the "power of the purse" to raise and spend money. However, in its Consumer Financial Protection Bureau v. Community Financial Services Association of America, Ltd. decision, the U.S. Supreme Court upheld a funding mechanism whose only purpose was to make it more difficult for a future House with a different political composition to use appropriations riders to rein in initiatives by the CFPB with which it disagrees. The author contends this erroneous result was a consequence of a jurisprudence of "monomaniacal textualism," which carries a reform too far by considering only the wording and history of constitutional provisions but not their purposes. The article further argues that in considering institutions such as the Administrative State which did not exist at the time the Constitution was adopted, courts should consider the "spirit" as well as the text of the Constitution. It further argues that courts had been using common law methods to interpret colonial charters for a century and a half prior to the ratification of the Constitution, and that by vesting them with "the Judicial power" the drafters and ratifiers of the Constitution conferred on the courts the power to continue doing so.
Not sure I see the difference between monomaniacal textualism and just regular textualism.
Posted at 6:11 AM