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28 posts from May 2024


Chad Squitieri on the CFPB after the Appropriations Case
Michael Ramsey

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. 


Elias Neibart on Originalism and the Appropriations Case
Michael Ramsey

At the Harvard Law Review blog, Elias Neibart:  Methodological Convergence in Community Financial Services. From the introduction:

My colleague, Thomas E. Nielsen, just published a thought-provoking post detailing some of the methodological approaches at play in CFPB v. Community Financial Services Association of America. [Ed.: Noted here.] Nielsen insists that the case exposes “methodological divisions” among the Justices. But that’s not quite right. A closer look reveals their shared focus on a single interpretive question: What was the original meaning of the constitutional text? To be sure, the Justices discussed history, settled practice, and “novelty.” But these considerations were means or gloss — not ends. They were methodological tools — not methodological objectives. And, with respect to the latter, the Justices seemed to agree. Though they discussed different tools, they each accepted the notion that if the original meaning of the text were clear, their inquiry would be over. In this respect, then, Nielsen overlooks the methodological convergence of the Court. Indeed, Community Financial Services suggests that we are all (still) originalists. In fact, we might all be public meaning originalists.

Take Justice Thomas’s majority opinion. Early on, he made the Court’s mission clear: its “concern [was] principally with the meaning of the word ‘appropriation.’” But not just any meaning. Justice Thomas sought to uncover the meaning of “appropriation” “[a]t the time the Constitution was ratified.” To do so, Justice Thomas unpacked his originalist tool belt.

First, he looked at founding–era dictionaries to discern the “ordinary usage” of the word “appropriation” at the time of ratification. Then, he turned to “[p]re-founding” English and colonial history, again with the purpose of understanding how the word was understood at the time of the founding. Justice Thomas’s invocation of post-ratification history shared a similar objective. As he noted, “[t]he practice of the First Congress . . . provides contemporaneous and weighty evidence of the Constitution’s meaning.” Thus, both pre-ratification history and soon-after-ratification tradition helped Justice Thomas discern the meaning of the written word.

That’s why Nielsen’s contention that “Justice Thomas’s analysis may be flawed in the separation-of-powers context” is puzzling. Even if Nielsen is correct that the “concept of the separation of powers lacked a fixed meaning at the time of the Founding,” it’s not clear why that would undermine Justice Thomas’s argument. Justice Thomas was not interpreting what the “separation of powers” meant. Instead, he was discerning the meaning of the word “appropriation.” Indeed, in the latter half of his opinion, he seemed to reject the Respondents’ separation-of-powers argument.  He did so because they offered no “theory” for why the Appropriations Clause “require[d] more” than its plain meaning.

In other words, Justice Thomas was answering an interpretive question. He was not, as Nielsen contends, answering a “separation-of-powers question[].” To be sure, Community Financial Services implicated separation-of-powers concerns. But for Justice Thomas, those concerns were beside the point if they did not bear on constitutional meaning. Nielsen’s criticism of Justice Thomas misses the mark, then, because he frames the case as a dispute over “nebulous separation-of-powers questions.” But it wasn’t. It was a case about the words on the page.

I agree with this description of Thomas' opinion and that it reflects an appropriate textualist/originalist approach (see my thoughts here).

The post continues:

However, with that framing in mind, Nielsen stakes out his preferred method of discerning constitutional meaning.  He contends that “separation-of-powers questions were typically worked out by the political branches over time, resulting in the gradual development of norms with no judicial involvement.”  So, he continues, “post-ratification courses of conduct by the political branches should guide” our “inquir[ies]” into “separation-of-powers disputes.” And Nielsen views Justice Kagan’s concurrence as an adoption of that view. But that might not be right. ...


Saikrishna Prakash & Cass R. Sunstein: Radical Constitutional Change
Michael Ramsey

Saikrishna Prakash (University of Virginia School of Law) & Cass R. Sunstein (Harvard Law School; - Harvard Kennedy School) have posted Radical Constitutional Change (51 pages) on SSRN.  Here is the abstract:

At points in American history, there have been significant, even massive shifts in constitutional understandings, doctrines, and practices. Apparently settled principles, and widely accepted approaches, are discarded as erroneous, even illegitimate, in favor of a new set of principles and approaches. Less momentously, views that were once considered unthinkable do not quite become the law on the ground but instead come to be seen as plausible and part of the mainstream. Relatedly, Americans transform how they talk and think about their Constitution – its core commitments and underlying narratives – and those transformations change our practices. Our goal here is to provide a conceptual map of radical constitutional change. We seek to describe how and why such change occurs. First, we ask whether theories of interpretation trigger radical change or whether desires for radical change impel people to generate new (or modify old) theories of interpretation. Second, we explore why so many are baffled or outraged by constitutional paradigm shifts. Third, we explore the drivers of radical constitutional change, both the familiar bottom-up pressures from “We the People” and the less-familiar top-down approaches, where legal elites foment and impose a new constitutional regime. We end with a brief discussion of Edmund Burke and conclude that Burkeanism has a complex and ambivalent relationship with radical constitutional change.

Via Larry Solum at Legal Theory Blog, who says "Highly recommended. Download it while it's hot!"


Genevieve Lakier & Evelyn Douek: Counterman, Stevens, and the Limits of History and Tradition [Updated]
Michael Ramsey

Genevieve Lakier (University of Chicago Law School) & Evelyn Douek (Stanford Law School) have posted The First Amendment Problem of Stalking: Counterman, Stevens, and the Limits of History and Tradition (California Law Review, Vol. 113, 2025) (73 pages) on SSRN.  Here is the abstract:

In Counterman v. Colorado, the Supreme Court decided an imaginary case. It held that Billy Ray Counterman’s conviction could not stand because it did not meet the First Amendment requirements for prosecutions based on threats. But this is puzzling because Counterman was not in fact convicted for making threats. He was convicted of stalking, under a law that does not require that the defendant threaten anyone in order to be guilty of the crime. This Article argues that the Supreme Court’s confusion about the most basic facts of the case was not an aberration but instead reflects broader pathologies in First Amendment jurisprudence. These pathologies are a consequence of the impoverished view of the First Amendment’s boundaries depicted in the Court’s recent decisions, which suggest that the First Amendment’s doctrinal terrain can be described by a simple list of historically unprotected categories. This thin account of the First Amendment, and the doctrinal distortions it creates, are not inevitable, however. The Article argues for an alternative, more multi-dimensional approach to the question of the First Amendment’s boundaries—one that rests on a richer understanding of the traditions of speech regulation in the United States—and sketches out its implications for the law of stalking and, potentially, many other areas of free speech law. Courts do not need to deny the facts of the cases they adjudicate to craft a First Amendment jurisprudence that is doctrinally coherent, historically informed, and normatively desirable. 

I didn't find Counterman persuasive from an originalist perspective (Justices Thomas and Barrett dissented, though more on a doctrinal approach).  Even if one assumes that the original meaning of the First Amendment is strongly protective of political speech (as I do), it's not hard to think that   modern free speech doctrine may well be far afield from the original meaning in a number of more peripheral areas.  This paper isn't really originalist, but it might suggest some ways originalism could rethink some outlying First Amendment doctrines.

UPDATE: At Legal Theory Blog, Larry Solum says: "Highly recommended. Download it while it's hot!", and adds:

I do wish this article was longer, with more discussion of the way forward! 73 great pages, but 100 would have been lovely.

I would say, that can be the next article!


Josh Blackman on Justice Thomas on the South Carolina Redistricting Case [Updated]
Michael Ramsey

At Volokh Conspiracy, Josh Blackman: Justice Thomas's Concurrence in Alexander v. SC NAACP - I think Justice Thomas is setting up to find that the Voting Rights Act is unconstitutional, at least with regard to redistricting.  From the introduction:

On Thursday, the Court decided Alexander v. South Carolina Conference of the NAACP. This redistricting case was unique in that it was brought directly under the Constitution, rather than under the Voting Rights Act. The Court split 6-3 along the right-left divide. The majority held that race did not predominate in drawing the congressional district. Justice Alito's majority opinion afforded a presumption of good faith to the legislature. At most, the Court found, the legislature sought to decrease the political power of Democrats. I don't have much to say about these doctrinal points in the majority, or Justice Kagan's dissent.

Instead, I train my focus where it usually goes: Justice Thomas's concurrence. He wrote "separately to address whether our voting-rights precedents are faithful to the Constitution." Thomas explains that the Court "has no power" to decide these redistricting claims under the Constitution. Thomas's opinion received the usual blowback in the press, but as usual, he shifts the Overton window, and now are talking about whether the VRA may be unconstitutional.

The post goes on to make four points about Thomas' concurrence.  Here is the fourth:

Fourth, Justice Thomas raises the issue of whether the federal courts even have the equitable power to draw remedial maps.

The Court's insistence on adjudicating racial gerrymandering and vote dilution claims has also tempted it to ignore constitutional limits on its remedial powers. Ultimately, the only remedy for the constitutional injuries caused by an illegally drawn map is a new map. But, federal courts lack "the power to create remedies previously unknown to equity jurisprudence." Grupo Mexicano de Desarrollo, S. A. v. Alliance Bond Fund, Inc., 527 U. S. 308, 332 (1999). And, there is no "indication that the Framers had ever heard of courts" playing any role in resolving electoral districting problems. Rucho, 588 U. S., at 699. The power to redraw a States' electoral districts therefore exceeds "the jurisdiction in equity exercised by the High Court of Chancery in England at the time of the adoption of the Constitution and the enactment of the original Judiciary Act."

I agree.  The Constitution, Article I, Section 4, says:

The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.

There's nothing in there about courts.  Courts can say what a legislature does in regard to the "Times, Places and Manner of holding Elections" is unconstitutional and tell the legislature to try again.  Nothing more.

UPDATE:  At Election Law Blog, Travis Crum has further thoughts on Justice Thomas' concurrence: Justice Thomas Exits the Political Thicket.


Law & Liberty Forum on Law After Chevron
Michael Ramsey

I have linked to some of these essays as they were posted, but here is the complete set of the Law & Liberty forum on law after Chevron (assuming, of course, that we will be after Chevron in about another month).

Constitutional Government After Chevron? - How might the judicial, executive, and legislative landscape change in a potential post-Chevron world?, by Adam White (George Mason)

A World Without Chevron? - In a post-Chevron world, one would expect judges to find it harder to separate their judging from their politics, by Christopher J. Walker (Michigan)

Institutions and Incentives, All the Way Down - Abandoning Chevron may change government incentives, but the results may be minimal, by Michael S. Greve (George Mason)

The Post-Chevron Separation of Powers - Eliminating Chevron may hasten our return to a division of power that helps guarantee liberty, by John O. McGinnis (Northwestern)


Asaf Raz: The Original Meaning of Equity
Michael Ramsey

Asaf Raz (Research Fellow, University of Pennsylvania Carey Law School) has posted The Original Meaning of Equity (102 Wash. U. L. Rev. (forthcoming 2024)) (66 pages) on SSRN.  Here is the abstract:

Equity is seeing a new wave of attention in scholarship and practice. Yet, as this Article argues, our current understanding of equity is divided between two distinct meanings: on one side, the federal courts, guided by the Supreme Court, tend to discuss equity as the precise set of remedies known at a fixed point in the past (static equity). On the other, state courts—most prominently, in Delaware—administer equity to preserve the correct operation of law in unforeseeable situations (substantive equity). Only the latter interpretation complies with the historical and functional idea of equity.

This Article makes the first detailed argument for resolving the problem of static equity, and reinvigorating substantive equity in the federal judiciary and the broader legal community. To do so, this Article takes a highly innovative step, by connecting the federal discussion with an in-depth analysis of the legal scene where equity is employed most systematically (and most faithfully to its historical roots): Delaware law, including its corporate law. As this Article demonstrates, substantive equity is fully compatible with originalism and textualism; the "equity" mentioned in the Constitution and later federal texts is substantive, not static, equity. Federal law has always operated within the sphere of the common law, and this Article offers a new bridge between the two, exposing the members of each community to insights from the other, in a manner that promotes both the original understanding of the legal text, justice, and the rule of law.


Elias Neibart Responds to In Kyu Chung on the Coherence of Originalism
Michael Ramsey

At the Harvard Law Review Blog, Elias Neibart: Originalism Makes Sense: A Response (responding to A Thought Experiment: Does Originalism Make Sense? by In Kyu Chung, at the same site).  From the introduction: 

A colleague of mine, In Kyu Chung, recently wrote a Blog post titled “A Thought Experiment: Does Originalism Make Sense?” He answers that question in the negative. My task here, then, is a modest one. Given the scope of this Blog post, I won’t be broaching several important topics, like whether we should be originalists in the first place or which flavor of originalist theory we should adopt. All I’ll try to do is demonstrate that originalism does make sense.

Consider a variation on Professor Gary Lawson’s thought experiment: You come across a decades-old employee manual at your job. Among the tasks listed is an instruction to mail out a message. Reading the manual today, you recognize that the “document [was] created at a particular moment in space and time” and that it was meant to “speak to an audience at the time of [its] creation and draw [its] meaning from that point.” That is, you recognize its meaning is its “original public meaning.” In turn, you ascertain that what the manual meant is that the message should be mailed through the postal service. 

As Lawson bluntly puts it: “[i]nterpreting the Constitution is no more difficult, and no different in principle” than this kind of everyday interpretation. We mine old documents for meaning all the time. Doing so for the Constitution isn’t a novel proposition; it is an already intuitive exercise.

That is not to say determining the original meaning of the Constitution is simple. Our Constitution is only a “great outline[].” It can often — although not invariably — be generally worded or unclear.  So, when we try to comprehend it, our ultimate understanding may likewise be unclear. But even in those instances, we are all unclear about the same thing — the original meaning of the text. 

Importantly, the mere fact that investigations into original meaning don’t always yield clearcut answers isn’t a knock against originalism. It’s a knock against any theory of interpretation. Chung’s critique, then, casts too wide of a net. As Professor H.L.A Hart recognized, lawmakers are “handicap[ped]” by their “relative ignorance of fact” and by their “relative indeterminacy of aim.”  So, they frame “general rule[s] of conduct.” Any interpretive theory, then, is forced to confront rules framed at a high level of generality. That makes interpreting law hard. But we shouldn’t hold originalism to a higher standard than its interpretive counterparts.

Still, even when we confront a general rule, Hart notes that there are “certain clear examples of what is certainly within its scope.” In other words, sometimes interpreting law leads to murky answers, but other times, it doesn’t. As a theory of interpretation, the same is true for originalism.

Agreed.  Also I agree with the post's later discussion of the "construction zone."  The two issues are related, in my view.  When originalism yields an indeterminate result (which it may often do), the appropriate judicial response is to leave the matter to the political branches.  The judiciary's power to intervene against the political branches rests on the Constitution's commands.  Where those commands cannot be determined, there is no judicial authority to act.  (But at the same time I think, as the post also notes, that originalism's indeterminacy is often overstated.)

(This is from last month but I missed it when it was first posted.  And in general, the Harvard Law Review Blog, a relatively new enterprise at least in its current version, is putting up some excellent content.)


Does Personal Jurisdiction Apply the Same Way to State Law and Federal Law?
Michael Ramsey

Should the test for personal jurisdiction be the same for claims under state law and claims under federal law?  Most courts of appeals have assumed yes, including the Second Circuit.  But Judge Steven Menashi, dissenting from the Second Circuit's denial of rehearing en banc in Waldman v. Palestinian Liberation Organization, says maybe not, citing originalist scholarship and separate opinions by originalist-oriented judges.  From the dissenting opinion:

The Supreme Court has reserved judgment on “whether the Fifth Amendment imposes the same restrictions on the exercise of personal jurisdiction by a federal court” as the Fourteenth Amendment does on a state court. Bristol-Myers Squibb, 582 U.S. at 269. Recent scholarship has shown that the Fifth Amendment does not impose such limits. See Brief for Constitutional Law Scholars Philip C. Bobbitt, Michael C. Dorf, and H. Jefferson Powell as Amici Curiae in Support of Plaintiffs-Appellants, Fuld v. PLO, 82 F.4th 74 (2023) (Nos. 22-76, 22-496), ECF No. 72; see also Max Crema & Lawrence B. Solum, The Original Meaning of “Due Process of Law” in the Fifth Amendment, 108 Va. L. Rev. 447 (2022); Stephen E. Sachs, The Unlimited Jurisdiction of the Federal Courts, 106 Va. L. Rev. 1703 (2020).

Our court has acknowledged that “[r]ecent scholarship suggests that we err in viewing due process as an independent constraint on a court’s exercise of personal jurisdiction.” Gater Assets Ltd. v. AO Moldovagaz, 2 F.4th 42, 66 n.23 (2d Cir. 2021). And other judges have argued that the Due Process Clause of the Fifth Amendment does not limit the exercise of personal jurisdiction by the federal courts. See Lewis v. Mutond, 62 F.4th 587, 598 (D.C. Cir. 2023) (Rao, J., concurring) (“There is little (or no) evidence that courts and commentators in the Founding Era understood the Fifth Amendment’s Due Process Clause to impose a minimum contacts requirement. On the contrary, the widespread assumption was that Congress could extend federal personal jurisdiction by statute.”); Douglass v. Nippon Ysen Kabushiki Kaisha, 46 F.4th 226, 255 (5th Cir. 2022) (en banc) (Elrod, J., dissenting) (“The text, history, and structural implications of the Fifth Amendment Due Process Clause suggest that its original public meaning imposed few (if any) barriers to federal court personal jurisdiction.”); id. at 282 (Higginson, J., dissenting) (“[B]y importing Fourteenth Amendment constraints on personal jurisdiction, born out of federalism concerns, into process due to foreign corporations in global disputes, where those concerns don’t exist, our court makes several mistakes.”); id. at 284 (Oldham, J., dissenting) (“[A]s originally understood, the Fifth Amendment did not impose any limits on the personal jurisdiction of the federal courts. Instead, it was up to Congress to impose such limits by statute.”); see also Devas Multimedia Private Ltd. v. Antrix Corp. Ltd., 91 F.4th 1340, 1352 (9th Cir. 2024) (Bumatay, J., dissenting from the denial of rehearing en banc) (“Justice Story opined that foreign-based defendants were owed no more than service authorized by Congress before being haled into our federal courts.”).

That view is correct, and I would adopt it. ...

That's a lot of originalist firepower behind the idea that the Fifth Amendment due process clause does not limit the scope of Congress' legislative jurisdiction.  But I'm not sure it can be squared with the Court's conclusion that the Fourteenth Amendment due process clause  does limit the scope of the states' legislative jurisdiction, without at minimum addressing the larger question whether Fourteenth Amendment rights parallel the corresponding Bill of Rights rights.  Maybe the enacting generation understood the Fourteenth Amendment to be broader in respect to limits on personal jurisdiction, but that would take some serious effort to demonstrate.

(Via Ed Whelan at Bench Memos.)


Originalism Battle in the Appropriations Case [Updated]
Michael Ramsey

Last Thursday the Supreme Court decided the appropriations case, Consumer Financial Protection Bureau v. Community Financial Services Association, in favor of the government (that is, finding that the funding structure of the CFPB complied with the appropriations clause). At Volokh Conspiracy, Josh Blackman has an extended commentary: CFPB v. CFSAA: Originalists v. Traditionalists.  From the introduction:

It is often said that there is a majority of originalists on the Court, but I think that generalization isn't too helpful. Rather, different members of the Court approach originalism in very different ways. CFPB v. CFSAA teaches us a lot about how the Justices approach constitutional law. (You can download an edited version of the case here.)

The top-line split was 7-2. Only Justices Alito and Gorsuch found that the funding structure of the CFPB was unconstitutional. And on paper, a least, all seven members of the majority joined a single opinion. Justice Thomas's majority opinion was textualist: what is the original public meaning of the word "appropriation" in the Constitution?  Justice Kagan wrote a concurrence joined by Justices Sotomayor, Kavanaugh, and Barrett, that found support for the CFPB's funding structure in post-enactment practice. Justice Jackson wrote a short, solo concurrence that preached judicial restraint, citing an unlikely troika: McCulloch v. MarylandNebbia v. New York, and King v. Burwell.

The post principally discusses the relationship between the majority and the principal concurrence.  I want to note an important contrast between the majority and the dissent, which illustrates two different approaches to originalism.

Justice Thomas pursues a standard textualist/originalist methodology.  He starts with the text -- the appropriations clause:  "The associations’ challenge turns solely on whether the Bureau’s funding mechanism constitutes an 'Appropriatio[n] made by Law.'" He examines founding-era dictionaries, commentary, and pre- and post-ratification practice, concluding that "appropriations were understood as a legislative means of authorizing expenditure from a source of public funds for designated purposes." On this definition, the CFPB funding structure satisfies the original meaning; the question then is whether the appropriations requirement contains additional limits.  Thomas concludes it does not: "Appropriations made by Law" just meant a designation by Congress of "an identifiable source of public funds and purpose," in whatever manner Congress determined.  Thus

The Bureau’s funding statute contains the requisite features of a congressional appropriation. The statute authorizes the Bureau to draw public funds from a particular source—“the combined earnings of the Federal Reserve System,” in an amount not exceeding an inflation-adjusted cap. 12 U. S. C. §§5497(a)(1), (2)(A)–(B). And, it specifies the objects for which the Bureau can use those funds—to “pay the expenses of the Bureau in carrying out its duties and responsibilities.” §5497(c)(1).

Justice Alito, in dissent, responds that the funding structure of the CFPB -- notably that it has a perpetual funding source, subject only to a high cap, from funds collected outside the federal government's general revenue -- substantially diminishes Congress' control over the CFPB's future funding.  That, he continues, undermines the fundamental check of Congress rather than the executive having the power of the purse.  In his view the framers would not have accepted such an end run around the requirement of Congressional control of spending:

[The appointments clause] has a rich history extending back centuries before the founding of our country. Its aim is to ensure that the people’s elected representatives monitor and control the expenditure of public funds and the projects they finance, and it imposes on Congress an important duty that it cannot sign away. Any other course would give the Executive a most dangerous discretion.

The dissent gestures toward a textualist approach by insisting that "appropriations" is a term of art that draws meaning from the historical use of appropriations power to check executive power.  At its core, though, its claim is that the CFPB structure diminishes Congress' power over expenditures to an extent the framers would not have accepted.

Thomas replies that Alito hasn't demonstrated any original meaning of "appropriations" that supports the dissent's view:

[T]he dissent never offers a competing understanding of what the word “Appropriations” means. After winding its way through English, Colonial, and early American history about the struggle for popular control of the purse, the dissent declares that “the Appropriations Clause demands legislative control over the source and disposition of the money used to finance Government operations and projects.” Post, at 17. The dissent never connects its summary of history back to the word "Appropriations."  

He's right about that, and that's the key difference between the two.  Alito doesn't think he needs a specific textual meaning, if he can show that the CFPB funding is inconsistent with the framers' ideas of separation of powers.  Fundamentally, the dissent adopts an original intent methodology (without expressly calling it that), while Thomas follows the text-driven original meaning approach.  It's a classic face-off between two different types of originalism.  (The surprise here is that Justice Gorsuch joins Alito -- usually one expects to see Gorsuch on the textualist side of this divide, sometimes to an extreme.)

Aside:  congratulations t0 my colleague and co-blogger Mike Rappaport, who is cited in Justice Thomas' majority opinion (page 14).  Also, though not cited by Justice Thomas, Christine Kexel Chabot has an excellent forthcoming originalist paper on the issue, which she presented at the originalism works-in-progress conference in February, and which I thought was persuasive.

UPDATE:  At the Harvard Law Review Blog, Thomas E. Nielson has an interesting post on the case: Community Financial Services and the Intramural Debate over Novelty and Tradition.

FURTHER UPDATE:  Professor Chabot has these thoughts: Saving the Consumer Financial Protection Bureau (and the Constitution) from the Courts.  From the introduction: 

Administrative law is almost certain to undergo monumental change during the Supreme Court’s current Term.  On May 16, 2024, the Court issued its first in a series of blockbuster administrative law decisions: Consumer Financial Protection Bureau v. Community Financial Services Ass’n. The Court’s 7-2 decision declaring the Bureau’s funding structure constitutional brings good news for the administrative state — Justice Thomas’s majority opinion validated the ongoing regulatory activities of not just the Bureau but also similarly funded financial regulators such as the Federal Reserve.  The decision also brings good news for originalism. Justice Thomas’s analysis centered on original public meaning and drew a strong majority of Justices, albeit in a case that may have been relatively easy once the Justices had the benefit of additional briefing on historical issues.  His opinion focused on the “narrow question whether” the Bureau’s standing and self-directed “funding mechanism complies with the Appropriations Clause.” Slip op. at 1. At the same time, concurring opinions by Justices Kagan and Jackson and a dissenting opinion by Justice Alito suggested that the Justices might adopt differing analyses of text and history when faced with more challenging issues in the future.