[The new term is for the megadonors who want a conservative
Supreme Court to help them neuter the government regulators who hold
power over their businesses.]
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SUPREME COURT GETS DOWN TO BUSINESS
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Michael Waldman
October 3, 2023
Brennan Center for Justice
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_ The new term is for the megadonors who want a conservative Supreme
Court to help them neuter the government regulators who hold power
over their businesses. _
, Supreme Court
_You’re reading _The Briefing_, Michael Waldman’s
weekly newsletter. Click __HERE_
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The Supreme Court’s conservative supermajority has pacified the
Republican base. The justices overturned _Roe v. Wade_, struck down
long-standing limits on gun possession, and banned affirmative action
in college admissions. The new term, which starts this week, is for
the paying customers — the megadonors who want a conservative
Supreme Court to help them neuter the government regulators who hold
power over their businesses.
The justices heard oral argument Tuesday in _Consumer Financial
Protection Bureau v. Community Financial Services Association of
America, Limited_. It concerns the way the consumer watchdog agency
gets funded.
The CFPB gets its funding directly from the Federal Reserve; it
doesn’t have to seek an annual appropriation from Congress.
Lawmakers chose this approach in 2010, when they established the
bureau, for two primary reasons. First, it inherited some of the
Fed’s work, so it made sense to inherit some of its money. Second,
an independent source of funding insulates the agency from the
influence of the same wealthy lobbyists it’s supposed to be
regulating.
In a case brought by the payday lending industry, the Fifth Circuit
Court of Appeals ruled that this arrangement violates Article I,
Section 9, of the Constitution, which states that “No Money shall be
drawn from the Treasury, but in Consequence of Appropriations made by
Law.” In other words, according to the Fifth Circuit, Congress may
not establish a permanent source of funding outside the annual
budgeting process.
If the Supreme Court endorses this reasoning, the repercussions will
be far-reaching. The Federal Reserve itself does not receive an annual
budget from Congress, so its funding would be presumptively
unconstitutional. Interest payments on the national debt are also
permanently appropriated. The funding for Social Security would come
into question. The payday lenders are asking for a decision explicitly
limited to the Consumer Financial Protection Bureau, but it’s not
clear on what constitutional principle such a distinction could be
made. A decision against the bureau would put it all into doubt. While
the oral argument was promising for the agency, this dangerous legal
theory never should have made it to the Supreme Court.
The CFPB case is the first of many this term that threaten to erase
decades of constitutional interpretation and roll back the federal
government’s regulatory authority. In _Loper Bright Enterprises v.
Raimondo_, the Court will decide whether to discard entirely the idea
that courts should defer to the expertise of federal agencies when a
statute is silent or ambiguous on an issue. This principle, known
as _Chevron_ deference after a unanimous 1984 decision, has given
flexibility to government regulators in areas like climate change.
Those who oppose _Chevron_ deference present themselves as advocates
for Congress; in fact, this is a power grab for judges.
The Court will also hear _Securities and Exchange Commission v.
Jarkesy_, in which the Fifth Circuit — yes, them again — struck
down the SEC’s power to administer enforcement proceedings within
the agency rather than in federal court. The case threatens to slow
the commission’s work to a near standstill. In _Moore v. United
States_, the justices may look to block a federal wealth tax before
it’s ever enacted.
The longer you stare into the Court’s docket, the clearer the
endgame becomes: unraveling the administrative state, blocking
financial reform, and reversing the New Deal. Overturning the
progressive decisions of the Warren Court is just a side hustle.
MICHAEL WALDMAN is president and CEO of the Brennan Center for Justice
at NYU School of Law. A nonpartisan law and policy institute that
focuses on improving systems of democracy and justice, the Brennan
Center is a leading national voice on voting rights, money in
politics, criminal justice reform, and constitutional law. Waldman, a
constitutional lawyer and writer who is an expert on the presidency
and American democracy, has led the Center since 2005. He was a member
of the Presidential Commission on the Supreme Court of the United
States in 2021.
Waldman was director of speechwriting for President Bill Clinton from
1995 to 1999, serving as assistant to the president. He was
responsible for writing or editing nearly two thousand speeches,
including four State of the Union and two inaugural addresses. He was
special assistant to the president for policy coordination from 1993
to 1995.
Waldman is the author of the forthcoming book _The
Supermajority: __How__ the Supreme Court Divided America_ (Simon &
Schuster, June 6, 2023). The court’s 2022–2023 term, he argues,
was the most consequential in decades, with decisions such
as _Dobbs_, _Bruen_, and _West Virginia v. EPA_ reshaping American
politics. Waldman explains how the court has gained so much power over
Americans’ lives with so little connection to the public will. He
shows the supermajority’s dangerous reliance on a newfound, radical
“originalism.” He traces the similarities between this court and
its most activist and controversial predecessors. And he offers a path
forward. Kirkus Reviews called it “a damning account of a Supreme
Court gone wildly activist in shredding the Constitution.” Jane
Mayer of _The New Yorker _called _The Supermajority_ “nothing
less than a public service.”
Waldman is also the author of _The Fight to Vote_ (Simon & Schuster,
2016, reissued in 2022), a history of the struggle to win voting
rights for all citizens. _The Fight to Vote_ was a _Washington
Post_ notable nonfiction book for 2016. The _ Post_ wrote,
“Waldman’s important and engaging account demonstrates that over
the long term, the power of the democratic ideal prevails — as long
as the people so demand.” The _Wall Street Journal_ called it
“an engaging, concise history of American voting practices,” and
the _Miami Herald_ described it as “an important history in an
election year.”
Waldman is also the author of _The Second Amendment: A
Biography_ (Simon & Schuster, 2014). _Publishers Weekly_ called it
“the best narrative of its subject.” In the _New York Times_, Joe
Nocera called it “rigorous, scholarly, but accessible.” The _Los
Angeles Times_ wrote, “[Waldman’s] calm tone and habit of taking
the long view offers a refreshing tonic in this most loaded of
debates.” In a _Cardozo Law Review_ symposium devoted to the book,
a historian wrote, “_The Second Amendment_ is, without doubt, among
the best efforts at melding constitutional history and constitutional
law on any topic — at least since the modern revival of originalism
two generations ago.”
His previous books are _My Fellow Americans: The Most Important
Speeches of America’s Presidents from George Washington to Barack
Obama_ (2003, reissued 2010), _A Return to Common
Sense_ (2007), _POTUS Speaks_ (2000), and _Who Robbed America? A
Citizen’s Guide to the S&L Scandal_ (1990).
His frequent appearances on television and radio to discuss policy,
the presidency, and the law include _60 Minutes_, _All In with Chris
Hayes_, _CBS Evening News_, _Good Morning America_, _Meet the Press
Daily_, _Morning Joe_, _NBC Nightly News_, _Nightline_, _PBS
NewsHour_, and the _Rachel Maddow Show_, as well as NPR’s _All
Things Considered_, _Fresh Air, and Morning Edition_. He writes
for Bloomberg, _Democracy_, the _New York Times_, _Politico_,
Reuters, _Slate_, the _Daily Beast_, the _Washington Post_, and
other national publications.
He is a graduate of Columbia College and NYU School of Law.
* Supreme Court
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* Consumer Financial Protection Bureau
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* public funding
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* federal reserve
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