America’s Trumpiest court handed down a shockingly dangerous decision. The Supreme Court is likely, but not certain, to fix it.
The plaintiffs’ arguments in Consumer Financial Protection Bureau v. Community Financial Services Association, which the justices will hear on October 3, are simultaneously some of the silliest and some of the most dangerous ideas ever presented to the Supreme Court of the United States.
They claim that an entire federal agency, the Consumer Financial Protection Bureau (CFPB), is unconstitutional. And they do so based on an interpretation of the Constitution that would invalidate Social Security, Medicaid, Medicare, and countless other federal programs. As the Justice Department notes in one of its briefs, the 2022 legislation funding the federal government contains more than 400 provisions that are invalid under these plaintiffs’ reading of the Constitution.
Perhaps recognizing that the justices are unlikely to declare the majority of all federal spending unconstitutional, the Community Financial plaintiffs then spend much of their brief suggesting arbitrary limits the Court could place on these plaintiffs’ already arbitrary interpretation of the Constitution. Without citing any legal authorities, for example, the Consumer Financial plaintiffs claim that Social Security might be excepted from the new legal regime so long as Congress is careful about how it pays for the Social Security Administration’s staff.
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Which brings us to the single most outrageous fact about the Consumer Financial case: A three-judge panel of the far-right United States Court of Appeals for the Fifth Circuit agreed with the claim that the entire CFPB must be struck down.
Significantly, as the DOJ notes in its brief, before the Fifth Circuit’s decision in this very case, “no court has ever held that an Act of Congress violated the Appropriations Clause.”
As the Justice Department tells the Court, “Congress routinely appropriates sums ‘not to exceed’ a particular amount” and “that phrase appears more than 400 times” in the 2022 legislation funding the federal government.
For starters, nearly two-thirds of all federal spending is “perpetual,” with the bulk of that money going to programs like Social Security, Medicare, and Medicaid that are funded by permanent appropriations.
Francisco’s implication appears to be that, if the justices don’t want to create the kind of mass chaos that would result if Social Security and Medicare were invalidated, they could still rule in favor of his client by restricting their decision to federal agencies that do law enforcement.
Jones, who President Ronald Reagan appointed to the Fifth Circuit while she was still a thirtysomething former general counsel to the Texas Republican Party, is known for her harsh and often cruel interpretations of federal law.
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