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. Maryland, Nebbia 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.