At The New Republic, Matt Ford: The Big Story of the Supreme Court’s Next Term. From the introduction:
The upcoming term’s docket doesn’t have as many high-profile cases [as last year's] at the moment. But in two notable instances, the justices are poised to tackle another conservative legal movement priority: reshaping the relationship between Congress, the executive branch, and the federal regulatory agencies they oversee. Along the way, the justices might also upend the balance of power between the courts and the elected branches of government.
The court has already scheduled one of the cases for oral argument. In early October, the justices will hear arguments in Consumer Financial Protection Bureau v. Community Financial Services Association of America. [Ed.: see here for SCOTUSblog coverage] … At issue is whether the CFPB’s funding structure is unconstitutional. …
Most federal agencies are funded by periodic congressional budgetary appropriations. The CFPB is not. Congress established it as part of the Great Recession–era Dodd-Frank reforms to Wall Street to enforce consumer protection laws for banks, mortgage companies, payday lenders, and so forth. Lawmakers accordingly structured the agency more like a financial regulator in order to insulate it from political interference: Congress funded the bureau by setting a capped amount of money it could draw from the Federal Reserve’s revenue each year. Congress still has the power to adjust the cap, do away with it altogether, or make any other changes it wishes to the CFPB’s structure with future legislation.
And from later on, on the historical debate in the CFPB case:
The CFPB, for its part, argued in its brief for the court that Congress has long adopted unusual funding structures for federal agencies. The Constitution itself only requires regular appropriations for the armed forces, it noted, by specifically forbidding any funding “for a longer term than two years.” That restriction reflected the Framers’ fear of standing armies as a threat to liberty, a concern that was itself rooted in their English forefathers’ experiences during the Cromwellian era.
Beyond that narrow prohibition, Congress has long adopted similar funding systems when lawmakers felt it necessary, the CFPB argued. Early Congresses made lump-sum appropriations to the early federal government, leaving it up to the president to fill in the details while setting a cap on what he could spend. Congress has often made standing appropriations that aren’t subject to periodic renewal, most notably for Social Security payments. And it allowed budgeting through indirect sources: Lawmakers in the early republic initially funded the Post Office, the Mint, and the Patent Office through fees for their services, not through regular appropriations.
The payday-lending industry [challenging the CFPB] disputed that historical evidence and the CFPB’s interpretation of it. It argues in its own brief that the CFPB is some sort of unique threat to American liberty, one that requires a narrower interpretation of the Appropriations Clause and an end to more imaginative approaches to building federal agencies. This viewpoint is likely to find a receptive audience in October. …
On this issue, see this new article by Christine Kexel Chabot.
Ford continues:
The other case before the court is about who decides when federal agencies can use their powers. In Loper Bright Enterprises v. Raimondo, the court appears ready to overturn or at least seriously narrow the Chevron doctrine. [Ed.: see here for SCOTUSblog coverage]…
A host of conservative judges and legal scholars have over the years strongly disagreed with that approach to judicial power. They often argue that it is the courts’ inherent responsibility to interpret the scope of federal laws. Deference, they claim, is unwarranted when agencies take maximalist approaches to their own legal authority. This view also dovetails with the conservative legal movement’s overall skepticism of what they call “the administrative state,” a somewhat pejorative term for federal agencies that have the power to issue rules and regulations. …
The fishing company [Loper Bright] lost in the lower courts, prompting it to ask the Supreme Court to intervene. It presented two questions for the justices to resolve. The first asked whether the lower courts had properly applied the Chevron doctrine when interpreting the law in question. The other requested the court overturn Chevron altogether or “at least clarify that statutory silence concerning controversial powers expressly but narrowly granted elsewhere in the statute does not constitute an ambiguity requiring deference to the agency.” When the court agreed to hear the case in May, it only took up the second question, putting Chevron in the firing line.
(Via Real Clear Politics.)
Posted at 6:04 AM