Over at Law and Liberty, I have an essay on the CFPB v. Community Financial Services Assoc. case involving the meaning of the Appropriations Clause. The essay, entitled Good Originalism, Bad Policy, begins:
On the surface, the Supreme Court’s recent decision in Consumer Financial Protection Bureau v. Community Financial Services Association represents a triumph of originalism. Justice Thomas’s majority decision for seven members of the Court expertly employs originalist methodology. The dissent, by Justice Alito, is also written from an originalist perspective, adopting a different view of the original meaning. But below the surface, the case raises a host of important issues concerning originalism: the conflict between following the original meaning and pursuing good policy; a dispute about how to determine the original meaning; and the question of whether the Court should follow the original meaning alone or supplement it with a form of living constitutionalism or history and tradition. Despite these concerns, Community Financial Services ultimately represents a significant victory for originalism.
On the policy underlying the appropriations for the CFPB:
While the argument that the funding mechanism complies with the original meaning of the Appropriations Clause seems strong, that of course does not mean that this mechanism is good policy. The Dodd-Frank Act that established the CFPB embraced a view of government structure that sought to strongly insulate an agency from political controls to allow it free reign to pursue its preferred regulatory policies. The funding mechanism was only part of this design. The provision that rendered the Director of the CFPB independent of the President—which was held unconstitutional in Seila Law v. CFPB in 2020—was another. In my view, such insulation is abominable policy. Allowing basic regulatory policy to be made by agencies who are not politically accountable is not only anti-democratic but is often an engine for expansive regulation since it eliminates checks on agency preferences for additional regulation.
But not every bad policy is unconstitutional. A constitution is a set of rules and procedures that regulate how governments operate. Even a good constitution—one that imposes good rules and policies—will not be able to prevent all bad laws and policies.
And on the role of history and tradition in the concurring opinion joined by Barrett and Kavanaugh:
Another possible justification for considering practice is the traditional interpretive canons that placed weight on contemporary exposition (early interpretation) and customary interpretation (consistent interpretation over time). Contemporary exposition is obviously consistent with originalism as it considers views of the meaning at the time of enactment. But customary interpretation less obviously comports with originalism. Still, since it was a traditional interpretive rule, one might regard it as an original method that would have been deemed to determine the meaning (or a type of precedent originalist courts can consider).
But customary interpretation without contemporary exposition—that is, a consistent interpretation that only begins many years after enactment—is considerably weaker than when both canons apply. Thus, it seems unlikely that such customary interpretations would even be relevant except where the matter is a close one. It would not have, as Kagan claims, “great weight.” Since Thomas shows the original meaning is clear, it is arguably not even appropriate to consider later practice. Just as someone, who believes legislative history is only relevant to resolve an ambiguity, would not consult it to interpret an unambiguous provision, so an originalist should not consider a customary interpretation to interpret an unambiguous provision.
As they say, read the whole thing.
Posted at 8:00 AM