The Appropriate Appropriations Inquiry
30 Pages Posted: 28 Jun 2023
Date Written: June 25, 2023
The Supreme Court is set to hear oral argument this fall concerning whether the Consumer Financial Protection Bureau (CFPB) is unconstitutionally self-funded. The question presented in the case asks whether the statute establishing the CFPB’s self-funding scheme, 12 U.S.C. § 5497, “violates the Appropriations Clause.” But that question is incomplete at best, because although the Appropriations Clause requires that “appropriations” be “made by law,” the Appropriations Clause does not itself vest Congress with any authority to make “law” in the first place. Instead, Congress’s authority to make appropriations laws is vested in part by the Necessary and Proper Clause. Thus, the “appropriate” appropriations inquiry asks not whether Section 5497 violates the Appropriations Clause, but instead whether Section 5497 violates one of Congress’s appropriations powers. And deciding that requires asking whether Section 5497 constitutes a “necessary and proper” means of “carrying into execution” a constitutionally vested power—which in regards to funding the CFPB, is presumably Congress’s power to “regulate commerce . . . among the several states.”
This Essay argues that the Supreme Court should use the upcoming CFPB self-funding case to reorient its appropriations jurisprudence around the specific constitutional text that vests Congress with appropriations authority. Such a reorientation would suggest that, although Congress may empower some entities (such as the post office and national mint) to self-fund themselves through fees, Congress may nonetheless be unable to empower other entities (such as the CFPB) to operate outside of the congressional appropriations process. The difference in constitutionality stems from the different constitutional text (i.e., the different appropriations powers) that Congress must rely on to fund different parts of the federal government.
Keywords: Cfpb, administrative law, constitutional law, separation of powers, power of the purse, appropriations
Suggested Citation: Suggested Citation