The Volokh Conspiracy

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CFPB v. CFSAA: Originalists v. Traditionalists

The Court's originalists and traditionalists break out into their camps.


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.

What happened here? First, a four-member concurrence is somewhat unusual. Indeed, I suspect that the Kagan position likely had the support of Chief Justice Roberts and Justice Jackson. But if either or both of those justices joined Justice Kagan's concurrence, it would have had five or six votes, and would effectively become another majority opinion. Indeed, I agree with Mike Dorf that Thomas would not join Kagan's concurrence. In this event, the Kagan opinion would have six votes, and the Thomas opinion would have seven votes. What is the majority then?

It is also possible that the majority could have fractured: the Thomas opinion would have only been joined by Roberts, Kavanaugh, and Barrett, and the Kagan opinion would be joined by Sotomayor and Jackson. 4-3-2! What a mess! I think Chief Justice Roberts and Justice Jackson took one for the team, and didn't join the Kagan opinion they agreed with. Moreover, the optics were quite good with Justice Thomas, the most conservative member of the Court, writing a majority opinion over an Alito/Gorsuch dissent. Thomas will get absolutely zero credit for being true to his principles, as he sees them, but that's how it goes. Has anyone checked the fringes on his flag????

A few points to highlight.

First, Justice Thomas, as well as Justice Kavanaugh and Barrett, re-upped the professorial theory demand from Brackeen: unless you have a theory to explain how you case meshes with all other precedents, go away:

The associations offer no defensible argument that the Appropriations Clause requires more than a law that authorizes the disbursement of specified funds for identified purposes. Without such a theory, the associations' Appropriations Clause challenge must fail. See Haaland v. Brackeen, 599 U. S. 255, 277–278 (2023).

During oral argument, SG Prelogar closed her opening statement with this point: "This Court should reject Respondents' attempt to gerrymander a rule to fit the CFPB alone without providing a coherent theory about how to interpret and apply the Appropriations Clause." And Justice Barrett seemed frustrated during her colloquy with counsel for Petitioner, Noel Francisco, about the absence of a theory. If I had to guess, Justice Barrett asked to include this "theory" line into the majority opinion.

Second, Justice Kagan leaned hard into Federalist 37 and liquidation.

I write separately to note that the same would have been true at any other time in our Nation's history. "'Long settled and established practice' may have 'great weight'" in interpreting constitutional provisions about the operation of government. Chiafalo v. Washington (2020) (quoting The Pocket Veto Case (1929)); see also The Federalist No. 37. And here just such a tradition supports everything the Court says about the Appropriations Clause's meaning.

Justice Kavanaugh mentioned this paper during oral argument in Trump v. Anderson (which the Tillman-Blackman brief flagged).

Liquidation is an important principle, but only where it is consistent with original meaning. Justices Kavanaugh and Barrett could have declined to join the Kagan opinion, given that the original meaning was (at least in Thomas's view) dispositive. But they branched forward from 1789 to the 20th century practice. Why? I view Justice Kavanaugh, and to a somewhat lesser extent Justice Barrett, as traditionalists first, and originalists second. If something has been done for a long time, that is a good enough reason to keep doing it.

To quote Topol in Fiddler on the Roof, "And how do we keep our balance? That I can tell you in one word… tradition!" If Justice Breyer had entrance music, this would be it.

Third, Justice Jackson correctly cited one of the most misinterpreted lines in Supreme Court history:

When the Constitution's text does not provide a limit to a coordinate branch's power, we should not lightly assume that Article III implicitly directs the Judiciary to find one. The Constitution was "intended to endure for ages to come, and, consequently, to be adapted to the various crises of human affairs." McCulloch v. Maryland, 4 Wheat. 316, 415 (1819) (emphasis deleted).

This passage is routinely cited to support the notion of living constitutionalism: for the Constitution to "endure for ages to come" the courts must "adapt" the Constitution "to the various crises of human affairs." Wrong! But this reading turns Marshall on his head. The great Chief Justice explained why courts must defer to Congress's powers; he was not aggrandizing the powers of the Court to rewrite the Constitution.  That shift came during the New Deal. Marshall was articulating a maxim of judicial restraint (uphold the Bank of the United States), and did not preach judicial activism (expand the Commerce Clause). Indeed, McCulloch and Gibbons v. Ogden did not attempt to expand the meaning of "commerce." And did you notice Jackson's "emphasis deleted" parenthetical? The emphasis in the original is on crises. I've never seen anyone remove the emphasis there. Not exactly sure why, but there was some deliberate thought.

During oral argument in this case, Justice Jackson fixated on the absence of any "textual hook." Noel Francisco insisted that his position was "inferred from the text and structure of the Constitution construed in light of its overriding purposes." Jackson's concurrence rejects that claim.

Even where I do not agree with Justice Jackson, she continues to impress, and pleasantly surprise me with her thoughtfulness on these issues. She is not a reactionary. When she said she was an originalist, she meant it!

Third, Justice Alito's dissent repeats the claim that the CFPB's funding structure is "unprecedented":

To achieve that end, the CFPB was given an unprecedented way of obtaining funds that was expressly designed to make it totally "independent of theCongressional appropriations process." . . .

In its briefing and at argument, theGovernment admitted that an utterly unprecedented funding scheme would raise a serious constitutional problem. Reply Brief 18; Tr. of Oral Arg. 11, 26. The Government therefore attempts to show that there is ample precedent for the CFPB scheme, but that effort fails. . . .

For these reasons, it is undeniable that the combination of features in the CFPB funding scheme is unprecedented. . .

In sum, the CFPB's unprecedented combination of funding features affords it the very kind of financial independence that the Appropriations Clause was designed to prevent. . . .

As we said in Seila Law, "'[p]erhaps the most telling indication of [a] severe constitutional problem' with an executive entity 'is [a] lack of historical precedent' to support it." 591 U. S., at 220 (quoting Free Enterprise Fund v. Public Company Accounting Oversight Bd., 561 U. S. 477, 505 (2010)). And the Government agrees with this principle. In its briefing and at argument, theGovernment admitted that an utterly unprecedented funding scheme would raise a serious constitutional problem. Reply Brief 18; Tr. of Oral Arg. 11, 26. The Government therefore attempts to show that there is ample precedent for the CFPB scheme, but that effort fails.

Of course, the "novelty" argument was at the heart of NFIB v. Sebelius. The law was, as the book title proclaimed, UNPRECEDENTED! I am doubtful that Justice Barrett would have joined United States v. Lopez, given the lack of a universal theory about the commerce clause. I wonder if she would have joined the majority in NFIB v. Sebelius, given the argument turned largely on novelty? Would she have rejected the argument that this statute was unconstitutional, and faulted Randy Barnett and others for not coming up with a coherent theory? In hindsight, we know that then-Judge Kavanaugh avoided the constitutional issue with a holding based on the taxing power. And then-Professor Barrett wrote that "Chief Justice Roberts pushed the Affordable Care Act beyond its plausible meaning to save the statute." But what would she have done in the robe?

The Kagan concurrence scoffs at the novelty claim:

The CFPB's funding scheme, if transplanted back to the late-18th century, would have fit right in.

Alexander Hamilton and Richard Cordray would have been BFF, right? Speaking of judicial restraint and the ten-dollar-founding-father, if someone called Elizabeth Schuyler Hamilton the c-word, there would have been a duel in New Jersey, where everything was legal.


One last Fiddler on the Roof reference. If you ever want a visualization of the Lemon test, think of the dream sequence:

Like some ghoul in a late night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried, Lemon stalks our Establishment Clause jurisprudence once again, frightening the little children and school attorneys of Center Moriches Union Free School District.