A couple of months ago NPR had a preview of the then-upcoming Supreme Court calendar
. In a follow up to Bruen and Dobbs
the court is considering birth control pills, the legality of bump stocks (made infamous at that Las Vegas concert), and whether a restraining order for domestic violence is sufficient reason to impact their second amendment rights.
I'm not going to talk about those, other than to relay the NPR analyst's take on things. NPR was inclined to believe that SCOTUS would uphold the domestic violence gun control statues as a matter of sanity.
If so, it should be interesting to see how the majority opinion backs into reasoning that aligns with 1789-era law, per the court's new 2A doctrine.
United States v. Rahimi
Whether 18 U.S.C. 922(g)(8), which prohibits the possession of firearms by persons subject to domestic-violence restraining orders, violates the Second Amendment on its face.
Oral arguments for that one were today, but I've been busy with work and vball and fixing a sink. The other one:
Garland v. Cargill
Whether a bump stock device is a "machinegun" as defined in 26 U.S.C. 5845(b) because it is designed and intended for use in converting a rifle into a machinegun, i.e., into a weapon that fires "automatically more than one shot by a single function of the trigger."
Consumer Financial Protection Bureau v. Community Financial Services Association of America, Limited
Whether the court of appeals erred in holding that the statute providing funding to the Consumer Financial Protection Bureau, 12 U.S.C. 5497, violates the appropriations clause in Article I, Section 9 of the Constitution, and in vacating a regulation promulgated at a time when the Bureau was receiving such funding.
NPR's synopsis of this one was that the Consumer Financial Protection Bureau cracked down on rotating payday lending fees. The payday lender lobbying group sued and appealed until they eventually got the fifth circuit to say that the CFPB and everything it has done is bogus because it's funded by Federal Reserve dues
. The analyst noted that the case calls into the question the legality of a variety of institutions, such as the Federal Reserve, the FDIC, social security, and the US Mint because none are funded through appropriations.
Oral arguments for this one were last month, the transcript was a pretty good read.
No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time.
The controversy centers on whether the above sentence empowers Congress to:
- Create an entity (here, the CFPB) and allow it to be funded by another entity (here, the Federal Reserve).
- Permit that entity to have a standing budget that is not beholden to Congress's annual appropriations soap opera.
- Allow that entity to set its own budget. In the case of the CFPB, its budget was capped at $600 million and it only used $400 million.
One additional factor is the principle of nondelegation
that claims it is the duty of one branch of government to not give its power to another branch
. Specifically, the CFPB declaring it needs $400 million to operate is potentially a transfer of budgeting authority from the legislature to the executive.
Solicitor General Elizabeth Prelogar advocated for the CFPB's funding mechanism, asserting that the CFPB is no different from many other agencies/programs funded without appropriations
. She was certain to point out that the Justice Department's theory on Article I Section 9 is that 'appropriations' is meant to describe public funding and not the budget appropriations process itself.
Alito asked for the closest analogue to the CFPB, Prelogar went with one present at the country's founding:
It's probably worth mentioning that in the decade-plus that the CFPB has been around, we've remained more or less a democracy.
Speaking for the respondents, Noel Franscisco did his best to beat to death the phrase "separating the purse from the sword". He described the CFPB setting its own budget as two steps from tyranny because once you give the executive the purse, it's game over. He continually referred to a scenario where a government agency received unlimited funding in perpetuity
, only acknowledging the CFPB's capped budget and nonpermanence when challenged. E.g. from Justice Kavanaugh:
I'm not sure if "Congress gives it over" is meant to describe the the capped budgeting discretion afforded to the CFPB or some hypothetical
where Congress writes a law saying "whatever the president says is as good as legislated". Certainly, the Supreme Court is the right forum to discuss the bigger picture, but connecting the CFPB to "literal tyranny" isn't straightforward.
And if Congress did try to pass a law permanently giving appropriations power to the executive, I doubt SCOTUS would grudgingly approve based on the precedent set in Payday Loan Scams v. Dodd and Frank.
Under questioning from Justice Barrett, Francisco seems to have clarified the respondents' position:
- The CFPB should have some budgetary leeway because nobody is perfect.
- $200 million of wiggle room (described by one justice as a rounding error in the federal budget) is too much. So much so that it's no different from Congress relinquishing its power over the purse.
- If Congress had capped the CFPB's budget at $400 million or, presumably, if the CFPB had spent its allotted $600 million, everything would be peachy.
Like, how obvious is it that the respondents just want SCOTUS to kick the CFPB back to Congress
for a budget cap tweak, knowing that the legislature is so broken it'll never happen.
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