A Supreme Court Victory for the Administrative State
Payday lenders challenged the CFPB’s power under the 2010 Dodd-Frank Act to draw its funds from the Federal Reserve up to $734 million, adjusted for inflation. They argued this self-funding scheme violates the Constitution’s command that “no Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.”
The Court’s majority construed this to mean that executive agencies simply cannot tap the Treasury without Congress’s approval—not a constraint on Congress from funding agencies by a variety of means. “Specifying the source and purpose [of funds for an agency] is all the control the Appropriations Clause requires,” Justice Clarence Thomas writes for the majority, joined by Chief Justice John Roberts and Justices Elena Kagan, Sonia Sotomayor, Ketanji Brown Jackson, Brett Kavanaugh and Amy Coney Barrett.
Justice Thomas harks back to the struggles between the British Parliament and the King for control over the purse, noting some laws “gave the Crown broad discretion regarding how much to spend within an appropriated sum.” What’s more, “appropriations of ‘sums not exceeding’ a certain amount were commonplace immediately after the founding.”
Local examples of the Administrative State, including teacher mulligans.
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Early in his first term, Gov. Tony Evers tried committing Wisconsin to rejecting all fossil fuels as a source of electricity by 2050, an aim the Legislature rejected, but one that the governor has since pursued with executive orders. As context, Wisconsin still obtains the majority of its electricity from such conventional types of fuel. Which fossil fuels predominate, however, has changed in recent years.
