Transcripts For CSPAN Justices 20240703

Decision in this case is the first time i a court in our nations hisry has held that congress violated the appropriationslause by enacting a statute providing funding. This court should uphold the cfpbs funding statute becau it is firmly grounded in constitutional text and in historical practice dating back to the founding. The text of the constitution shows that when the framers one to limit congress apopriations authority they did so expressly. While the framers restricted apopriations for the army to two years, they applied no similar limits on appropriations for any other agency. Hiory confirms that. Since the Founding Congress has consistely funded agencies through standing appropriations that are n timlimited and that provide significant discretion over how much to spend. The First Congress didxactly this at the very first agency it created the Customs Service, and the same i true for of the founding era agencies including the post office, the national mint, the Patent Office, renue officers and the national bank. And congress is use this kind of appropriation as the default when funding financial regulators including the fedal reserve board, the office of the comptroller o the currency, the deral deposit insurance corporation, the National Credit unio administration, the farm credit administratnd the federal Housing Finance agency. The cfpbs appropriations that squarely in this unbroken line of the historical practice. In fact, congress exercise significantly more discretion d control over the bureaus funding by capping its annual appropriation in anunt that is far lower than many other agencies budgets. Respondent argued t combination of features in the cfpbs statute violate some previously unrecognized tutional line. At the bureaus appropriation is materiallyical to the numerous funding statute i just listed, and respondentsde the statutes are constitutiona this court to reject respondents attemp gerrymandered able to fit the cfpb aloneut providing a coherent theory about to interpret and apply the appropriations clause. I welcome the courts questions. General, other than passing and appropriations law, are there any limits on what congress can do . So ihink at the outset as your question touches on, Justice Thomas come the term appropriation itself contain some essential requirements. So that term is defined to mean about the provides for funding and the specifies both the source and the purpose of the funding. Thats how it appropriation was dened at the founding. Its how its always been understood and that still so it is defined today in sources lik the junior redbook which is congresses own appropriations treaty. We think at theutset is not just any old ball b a lot of the contains beseeches the constitutes an appropriation. I think the question becomes are the other limits out there on how congress can structure funding for particular typ o activities or governmen functions we know from the army propriations clause the answer is yes with respect t that particular government function. Theres a durational limit and its based on the nature of activity because the framers were specifically concerned about having a Standing Army. The army appropriaon clause itself demonstrates there are not otherwise constraint in the appropriations clause that would limit congress at how itides to structure the funding. So beyon the initial almost skeletal requirementsuration and purpose, there is an, if i other condition . T, there is no we donthink the appropriations clause p of limits on congresstself when it enacts the funditute. But i do want to emphasize that our argument also relies heavily on history if you have in mind some kind of funding statute or arrangement that is never been done at all of this nations history i think the court could te that into account in a future case. Herehat we have a specific type of appropriatis, a capped lumpsum appropriation that is standing for a Single Agency. Our historical argument is that this is nothing new or unprecedented recall of the agencies i listed had simil appropriations. S there anyole in appropriatio, that propriations plays in separation of powers . It seems that at least wn i did, was an execuve branch, that congress exercise appropriation to check the executive branch to some extent. If there is in this case, what would be in the case of cfpb, how would that play out . I do agree and think a course of the critica albert of the separation of powers that congress has conol over the purse. Our argument is tha congress has exercised that power. This court is looking at a statute that congres itself enacted that set up this funding chanism for the cfpb which is similar in kind to the way that congress has funded of the financial eviscerate the kind of exacting control that congress usually exercises inhe appropriations process . I dont. To the extent this queion is present on the annual propriations as a counterpart, i think the qstion becomes doeshe constitution limit congress with respect t the duration of appropriations . Is there expcit limit and the text the court can defe that Means Congress in contrast to other laws which of course can remain in effect until the future congress acts, is congress limited in how long to leave appropriations in effect . There i think the Army Appropriations clause does a lot of work becau its not like the framers were not aware o this dynamic. They thought specifi about the fact appropriations like all other laws might be continuing indefini until the future congress acts, and the were concerned about that with respect to a Standing Army but they didnt otherwise o limit congress authority. General, one of the things that strike ms of reading it, you have a very aggressive vie of congress authority under t appropriations clause. Im not saying remotely that thats not correct but it struck me, you represent the executive branch as well. And its a very strong power given to congress. And it struck me that the reason you would want to defend that is because it gives them more power to give away. Legend has it thereav been times when the same party coed both houses of congress and the white house, and it situation you can e congress empowering the present in aay that might seem unusual to the framers. So keeping in mind that, that balance, in other words, its kind of paradoxical, the mor power you give congress i think, think this is your friends argument on the other side, theres more that can give away andce the authority the executive. Is that a, and unpersuasive concern . Certainly i dont think it is unpersuasive concern but built into your queion as undersod, mr. Chief justice, was the idea thataybe congress could do something that would be surprising or anomalous to the framers. I guess what i would say is if you look at it through that lens then history should play a powerful role in trying to understand the limits or scope of homage cgress can give away when it becomes too much. Here the court does need to articulate any outer limits because weave a specific type of approprtion that is far more cstrained and many that conversation enacted throughout history becauseongress provided funding for Single Agency and capped that about the fun in an amount not to exceed the cap set by congress for its pretty unusual to have that agency drawing, been able to request how mh ever wants subject to limit that it only has a got very close to over the years from an entity that is also drawing in money from the private sector. Didnt see any particularly compelling historical analogues to that. Well let me speeded to the extent that takes awa from the appropriations power, its equivocally enhances the power of the executive. So i disagree that theres anything unprecedented about this funding arrangement when you look at t relevant constitutional value of protecting cgresses prerogative. I know there are a lot of different moving parts and pieces to the auments respondents have made it as understand it they are attacking four features of the funded facts statu or the standing at standing appropriations, rains a place and is notnlimited. That against the director of the cfpb some discretion to act within the statutory cap and requesting the funding. Third, that the cfpbas enforcement and regulatory functions and forth ce as your question touched on, that the cfpbs funding comes in the source that is not in the words constrained by Market Forces. But we haveumerous examples of agencies that have all four of those relevant characteristics. I fear at the outset we dont for the functions of the Market Forces constraint are relevant but even taking the argument on its own terms i can give you founding era examples, customs or in the revenue officers were funded with the kind of mechanism. They have standing appropriations for the Custom Service it. It was uncapped. These were powerful regulatory entities. The Customs Service aboard ships and seize vessels at the spec records and conduct searches and level penalties and colle fines, and just a way to avoid that kind of regulatn. The market cstint theory that the users could justpt out our regulated parties could decide not to fund the operations doesnt app t those agencies. It still because of many ofhe financial regulators today tk the ones i would put on that list are the Federal Reserve board, the fdic, the ncua, the farm credit administration, and the fhfa. General, unsorted hermaphrodites want to understand follow up on the chief justices question. Dash im sorry to interrupt. Is essential feature to the constitution of this provision orou Congress Passed the same l wh no upper limit allowing the executive branch to determine however much it wished to take . Site dont think tha congress would have to prode statutory specified amount but it would of course have to specify the purpose of the funding. Budgets on the amount, your three doesnt turn on there being an upper limit . Are theory doesnt turn on it because take 1 trillion, if, if you wish to do so. No, because congress itself has specified the direct is limited to the amount the phrase when necessary to carry out federal if the president determines that w rently necessary to take 1 a trillion dollars, t would satisfy your concern. And on the appropriations clause itself has no upper limit constraint. I think that would violate the statute and the same theoretical possible exist with all of the other financial regulators ive been discussing but if you disagree, of course here we have sed is i just find understand your theory thats all you try to do. Are theory is written in history. Congress has appropriate in this way without a cap for time immemorial in 1789 on. How about on the lower end of e skill . What is the president o was the appropriate some . Im not going to take money. I dont like the cfpb, you know. I dont think it is necessary to take another dollar. Could the president do that . I think that would pilot the statute as well sp talking about appropriations clause. So think that congress itself has specified the purpose and so i think that if the president f the cfpb director didnt comply, tha wld be a violation and i would expect congress to step in and change th funding mechanism. All of these possibilities exist with respect to countless other appropriations. All of the other finanal regulars for example, likis i understand the practical realities and i appreciate them and it is to thetatutory arguments. Im just trying to understand. Is anything would prohibit the president ro the appropriations clause clg whether to take zero dollars which we for reestablishing a take 1 trillion . I dont think the appropriations clause would be a check, althoughfourse congress could exercise its authority and the spar ove the purse to chain to the discretion that is provided to require the president or the direct of the agency to take a particular amount. Can ask a question about the treasury . The professors of constitutional law and history say lte the appropriations clauset apply at all because these funds not being drawn from the treasury. You agree with that . Its not the argument you made. E are not making that argument. Weccepted the appropriation clause was the weakest of the trim and the constitution referred to the public treasury as a general matter, that specifical t the Treasury Department. At the timef the founding ratification the Treasury Department had not even been create a thats also how this court has described the scopef the appropriations clause i cases like opm versus richmond we rerred to public monies generally. Of course theontrary approach would expose the gaping loophole and congress authority bau would mean the executive it has funds thatre not helping the general treasury has been Even Without Congress appropriating in the first place. T authority are the money, the monien the cfpbs budget appropriated moneys . So for constitutional purposes just because congress estaisd the funding statute and it has both the source and funny. Within the meaning of the constitution this countssn appropriation. That a opm and executive branch, ngo and congress under since the source of the funding. What to mef the provision in doddfran a which has that the bureau fund, will, shall not be construed to be Government Funds appropriated moneys . Soha was congress try to control for the interaction tween this funding mechanism and of the background rules that apply to appropriations they go through the annualpppriation process. There a rules about things like procurement and whether you can use appropriate meys in essence the litigation expenses, miscellaneous state requires agency to deposit the revenues in the general treasur and some of his background rulesou actually interfere with the funding that conrsion tended for this agency. It was just try to control for the intaction there. Other agencies have that statement is incorrect. In the doddfrank act itself is incorrect. These are appropriated moneys . I dt think that statutory provision w taking a stance on th constitutional question of whether this fits t definition of an appropriation within the meaningfhe constitution. As i mentioned congress has used this formulation for other agencies as well like the occ and the fca and again its all intended to just allow congress to control for the interaction of various statutory provisions in ts c. Doesnt does it use itt office, for the mint and other agencies of that nature. Was justice sotomayor, im not familiar withheer this particular language apprs in the statutes governing the post office. The post office was ogilly creadnd founded in 1792 and so its not cle some of these of the background rules existed. Certainly we can point to an example today including the occ and the fca which had the same li wd and its meant to ensure again theres no disruption with the funny operatn way congress can i go back to Justice Thomas question . Ers appear to be, im sorry, a bit congested, there appears to be bound up in this question ofhe appropriations bill, the sepati of powers and nondelegation. Now, i kno the court below said nondelegation was forfeited. Not quite sure i understand it, maybe you could explain it to me w separation of power is different fromonelegation. Why wasnt the other . But do you see tse other provisions, separation of power, nlegation, as having a place in other constitutional provisions beses the appropriations clause . And if it has noce here, why not . Yes. I think obviously these concepts of separation of powers and the scope of the appropriations clause andonelegation principles have in many respects poteia overlapping functions this context. We interested respondents to be making an argument about the appropriations clause in particular and that fifth circuit found they had tt simply raise a nondelegation challenge. Guess what i would say as to the extent the crt is thinking about this fro t perspective of general separation of powers principles, the tngs the court generally consults and understandinghetructural provisions of the constitio are, first, the text and second, the history. Those indicatorsf intent are overwhelmingly on our side. The cou i thinking about some delegation principles there you would have to lookt history and as Justice Scalia emphasized inis concurring opinion, if you look aoss the course of history from 1789 on, it has it has beenn the appropriations contextard by very broad delegations of authority to the executive branch to spend within the bounds set by congress. In the very first appropriation ws were structured like this one and a sense ofroviding executive could spend up to a cap set by congress. Tnk the claims what you thin aut the argument response our present is under the appropriations clause but i mechanize as a course to get more broadly about these issues the other doctors could come into play. General, could i take you back to the light of qstning for your Justice Gorsuchs talking abt . In your reply brief on page 1 you discussed a standing appropriation of up to a quadrillion dollars f t president to find besides the my so just on this questio o where your outer limits are and what theory we might use to say there are some limits,ha do you want to say about thator of stute . Would that be a constitutional olation . If so, why so . And why is that different from this . Yes. So that statute as wenderstand it would be cpletely unprecedented. It would effectively take the whole ofoness appropriations authority and transfer it to the executive branch. Congress has never done that for the past 230 years and its hard for meo imagine congress and wou d that. But if they could the crt were confronted with the issue in n future case they could will recognize lit and the limits would come from history. The court in any number of paration of powers cases has said that the fact that a method of structuring government haso historical precedent can strongly counsel against recognizing it as a cotitional way to proceed. That w analysis set in Free Enterprise fund, a reped to have been seila law b that history works both ways. The court has likewise said a fact that away structuring government is well rooted in history and trace it back to the founding is powerful evidence that the contemporaneous understanding of original intent. Thats the box we are in her i guess i would the court to save for anotheray whether there some theoretical poibity that congress could go too f with the kind of appropriation weve never seen before and instead focus o this particular appropriations law which we think finds its roots both in t a history. I have the same question basically that Justice Kagan just asked you. Your response in your reply brief was an answer to an argume tt was made i the respondents on page 24 of their brief where they say if the viewer is correctha theres no constitutional limit on coress power to pass laws, providing fundi t agencies then single cogs allocate each year for up to 1 trillio t an agency like the fbi or ftc, even up to a quadrillion dollarsor the president to find as he deems fit the eir federal government besides the arm now you answer the latter part of it in your reply brief about the quadrillion dollars and you just answered that i response to Justice Kagan. You didnt answer the fstart of that about providing a very substantial sum of money t agency like the fbi or the ftc. So i just want to understand what you think the limiting prcie is. Lets take, lets take the ftc, which i think had a budget of of 430 million. So lets say theres a law that allocates forever up to 1ilon, adjusted for inflation, to the f to use as the ftc sees fit. With of a consistent with the appropriations clause . O think at the outset if the law sd however the ftc deems fit,t cetera that would get as an appropriati bause its not clear congress were specified the purpose. Recognize you can tweak it and say to car out the ftcs funcon in the context the hypothetical would effectively be standing uncapped appropriation because of course the ftc would never reach that about. It would be for Single Agency and rethink that is well grounded in histo the fact is that many agencies i find it today particulahe financial regulatory space. F you have concerns about at principle, he of course we ha statutory cap. Respondents say t cap is illusory come more l a hypothetical which is been touching on by the delsea they can make that argumenhen the cap is set at 609usted only for inflation. Many of the agency souch of the cfpb and inherited its responsibilities how far larger budgets. Illion for the occ, around 1 billion for theal reserve board, overlion for the fdic. This is a meaningful restraint and i think i demonstrates if the court thinks its important to have that constrain here, the cfpb is even more under her agencies. Ntrolled than the could i sure. Ask o followup question on that. I understand your yrnswer to these hypotheticals is that we must look to cgrses historical practices. This is a matter of seeing whether set up that we have fo us is consistent with congresses historical practices. Is that right . We drawealy on historical practices also is that the test . I think that the tt in this context has the most sepatn of powers cases is yes. Text in htory. And here again we had a a spec constitutional provision speaking to duration, sakg to particular types of function, showing the framers were coerd about funding the army with a standing appropriation. And then we have an unbroken line of history. There have been agencies funded thisayorever your what is your best historic, if youre sine bes example of an agency that has all of the features that thefp has that are cited by the respondents . Single best example of an agency wi all, with that combination of features. I think the best example historically is the Customs Service. The First Congress created the Customs Service and 7089. He gave the gave a Customs Service a standing uncapped soce of funding from the revenues that the customerce collected through things including coercive Law Enforcement activity, things like levying fines, also from import dutie wch could not be aborted if you want tonge in trade in the nation. The Custom Service was one of the most powerful agencies originally created because of so important to have atream of funding new republic. I think you c look to all of the secrsre challenged with a Custom Service and others, revenue officer communis atrneys for a period of time are funded through conviction feast. What is your best example of an agency that draws its money from another agency that in turn does not get its money from the congressional appropriation in the normal sense of the term, bu gs it from the private sector . So i cant give you another example of the source that is precisely like that when but i would dispute the premise that could possibly be constituonly relevant. This is a case aut congresses own prerogatives over the purse, its authority. If cogs is giving away too much of its authority, by not providing forurional limit or not providing or pving for too much dcrion to the agency, then a doping up could possibly fix the problem that other funded agencies directly collected their money from the entities they rule. Psych at your answer i y do not come that is not consistent whi historical practice, but you think that to the extent it is unprecedented it is unprecedented in a way that is not revant for present purpes et cetera answer . Yes primari. I think would be unprecedented in the way you could say this is enly agency that has the acronym cfpb. Thats true also but it doesnt fact the cstution about you. I also want to make the factual point that i dont understand th to be saying it significant it i structured this were in the abstract. Ey say what it means i this not a che on the overall amount of funding the cfpbould get and there is check on this other agencies. Thats wrong as a descriptive matter produce a similar check on the Federal Reserve board, th fdic, the ncua, the fhfa. All of the entities of regular cannot enter im sorry exit the regulatory sphere just because you disagree withatio Justice Thomas, anything further . Justice alito. Jt couple more questions, possibly. I think you may answer this indirect but it just want to be clear. You think the referen t appropriatnsn the constitution is equivalent to public money . Do you think appprte funds are the same thing as over end quote public money . So i thi that funds that the congress is given to an agency to qualify as public money,ea yeah. Wha if someone come what if congress set up an agency with substantialower but prode no method for the agency to obtain mey other thanrivate donations . With it be consistent with the appropriations clause . I think that likely would b consistent. That obviously speaks to the question of source and and k congssas chosen different sources over time but it dont thin tres anything in the text of the constitution that limits congresses of the leak to try to determine the weight and wants to structure those funding mechanisms. Upse Congress Said there are a lot of outside entities that have great intes in the work o the spc so we dont thinkeeed to appropriate any money. E fec can simply rely on private donations and build up its own endowment so to speak. With that tonstitutional . I think that likely would qualify as constitutional. Of course ihat create some kind of regular capture i would expectoness would act to fix that by the are examples throughout our history of scholarship funds for for ee administered by the federal governmentrinally funded by an endowment and those i think qualify as appropriations. Thank you. Justice sotomayor . General, might be a good sign or bad site dont know. Nobody has talked about remedy. Let me give y an opportunity to sumri your best aumt why the court below erred in its broad remedy on striking down bacally not just this payday lending role but bically saying anything this agency is done since the beginning is invalid. So can you tell us how you deal with that . Yes. The fifth circuit recognize a eeping retrospective remedy that we think conflicts with the severability principles and additional traditional remedial equitable principlesnhis space. Just for severability, doddfrank itself as an express severability clause that this cot emphasized that in seila la his the fifth circuit didnt en stop to consider whether any aspect ofhe cfpbs funding mechanism could be severed would provide a basis to before limit the the damage to congresses work in trying to get this ageyunded. That was there and there are several candidates for severability that would be an much less dispte remedy in this context of wt not intel responds to anyelief because the payday lending role they challenge is an traceable to those featus or aspects of the fundgechanism. But even ifou follow the fifth circuit approach and thought there was something about ts entire funding mechanism that is invalid, even then i dont think a retrospective remedy is warranted. The court would be writing o a blakesley becauseo court had privacy found congress itsel pilot the appropriations clause blank slate. Underquable principles its nestled to take into account the Public Interest and ban of equities. Dere at prospect of remedy which prevent the cfpb am enforcing this rule against this bond is a tillt has a valid appropriation a meaningful fm of relief and instead the reosctive remedy that the urt adopted is sweeping and application and profoundly disruptive. I would point to particular to th amicus brief that was found by the Mortgage Bankers association that explain h many entities in varus industries have critical relied on the cfpbs regulations including inarticular in the housingince space. These great safe harbors for lenders so that they will be deemed to be in compliance with statutory requirements on things like ability to pay andn Disclosure Requirements thes a fifth circuit is right and theres a prospect all of this action sul be unwound, it would create profound disruption in vious economic markets that would hurt the regulate entities themselves. We think tt provide powerful reason t reject that kind of retrospective relief and instead have going for prospective remedy only. Thank you. Justice kagan. General, both mr. Francisco and one ofusce alitos questions suggest that well, you might have the ability to say that each one o these features has aisrical precedent, but that theres Something Special about the combination of all of th. And that you cant point to historical precedent which is every single feature that this scheme has. Youaid to Justice Alito that the cusmsepartment comes awfully close. But if want you to ste back a little bit and just talk to me ou how, should we be, how should w b thinking about that question . Is a more impornt that all the parts have been used, ors it more important thathe entire in has an exact president . Is part of the lesson of history here that theresee an enormous variations in the kinds of appropriations at congress has made . How she would think about that feature ofuristory . Take it away. So i think it is absolutely correct t s that there has been enormous variation inhe caucasus exercised its appropriations power over t course of history obviously with respect to each of these challenge features we think we ha a wealth of evinc regarding standing appropriations or appropriation of two particular cap. At a dont want to lose sightf the fact that the court were to approach this issue will get a combination of features, this is not novel. I want to try to unpack why that is so because Justice Alito aspic couef questions about the source of the bd at the particular abouthedea may be the lines the got crossed your or the relevant difference in how the cfpb is funded is because it drawsts funds from the Federal Reserve board. The reason why that dsnt work and why it shows thiss not unprecedented is that the whole theory behind that premise i that the constraint and other agencies Market Forces will lit the overall pot defending the other agencies have b thats not accurate as descriptive matter with respect to things like theedal reserve board itself which regulates and assesses money on th Federal Reserve banks required to stay in the system. They cant leave. The overall value is to dermine does the agency have some limiting check on the overall amount of funds, the cfpb is far more constricted because it has a statutory cap actually imposed by congress brethren rated entities. I think if the court is look at all of the featuresher, maybe some things should subtract congress out a bit the cap at spinco is a a v powerful and major way that i think i think distinguishes this appropriation for purposes of congressional control. Thank you. Justice gorsuch . Justice kavanaugh . Just two clarifying questions argument. Limits of your theres discussion sometimes about permanent appropriations and forever appropriations. My understanding but i wanto make sure you agree is a congress could not entrenche funding scheme. In other words, con cannot pass a law that says this a funding scheme and a futur congress may alter this for ten years or 100 years. That would be constitutionally problematic is my understanding that i wan to make sure you agree with desperate yes, absently share that understand you can justice kavau. And i think what it shows is its incorrect to characterize standing appropriations as lasting forever. Cte appointed a number of expl where congress has acted to change thetaing appropriations and the Customs Service is a gooxample on this one. It was funded through a sndg appropriations for the first 1 years of this nations history and then in 191 Congress Took it out of t standing appropriations and prodded into annual appropriations. Congress shifted this again and the debt limit the recently. They presented many standing appropriations that of a part of the americanese plan and inflation reduction act. It demonstrates theres alway that additional check of a future congress decides it wants to alter the wor of a prior so congress cou change it tomorrow . Absolutely congress could change it to more. And thenfhe statute here gave the federalve more than ministerial control, tt the amount was in control of the deral reserve to range from zero to the cap for with the cf we recve with the change anything . I donthi that would change the relevant constitutional analysi you might think of that is functioning a little bit like an agency overseeing aub agency and making modifications to its budget. In eitr example congress to retains a direct line and decide how much funding should go to that sub agency and if it wants to change anything does no double layer of insulatn. Even if the court thought maybe having thator than ministerial prossould create some kind of novel constitutional questio o course youre its important emphasize the Federal Reserve board just had this minister role a i doesnt deserve supervision. Thank y Justice Barrett . Justice jackson . Good morning, general. So im concern that there might be burden shifting ening in the way in which we thinking about this, so maybe you can help me just to keep the right burdens in the ght place. Some of the qn fadiman this morning seem to established whether or not congress can do certain thin what if congress delegated the authority to determine 1 trillion worth of funding and other agencies going to did . What if congress set up in this yhat we, et cetera . I sort ofught that the burden was on them to show t congress cant set of the agency in this way. The r i think that is because of the lan of the appropriations clause and the wa which it seems toiv the legislature the prerogative the purse. And here we have a statute in which the legislatureas exercised that. So am i right thats really all you need to to win . I mean you dont lose if y nt establish the limits in congress exercise of its authority, rig . I think thats right. I tnk it actually highlights an important aspect of this case. This is a separatnf powers case. We are here defunding a statute that congress provided to find anxecutive Branch Agency and respondedo come in and asking the articlesecds to oversee and superintend congresses of ercise of its prerogatives over the purse. I think absolute the burden is on tno show that kind of Judicial Intervention and validation of the stack it is warranted. We get to them i would assume that in determining what limits there a, you say they they say its a problem with duration, its problem the agency has degree of discretion, that the agenc is source is coming from thet the private indls et cetera, et cetera. But agaheir burden would have to be to determine tha those limits exist somewhere in e law. I mean its not just up to us to sort of say say gee, those ts seem problematic. We would have to find legal source i would think in order to agree with them that those limits are actually imposed on congress authority. Thats right and obvio either lot of different policy judgments that cones can make him think about the right way to structure funding for different agci. Its established a certain set of norms wn it comes to financial regulators in particular of which the cfpb is a part and ahi the relevant question is not this is a good way to structure page agency . Is that a goodolicy . Or even h been done historical analysis and all the things youre saying at all about may w be so, but i guess i dont understhat if we found that it wasnt necessarily set up in this way . Does that on its own established that congress couldnt erce its prerogative . I donthi it necessary went and especially it wouldnt if one of the point of novelty wa sething that had nothing to d with aggravated in a potential separation of powers issue. This relates bac t what i was think to Justice Alito the mbe you can come up with diinctions but cannot materially relevant to the question befehe court. Instead if there were truly some kind of unprecedented fding scheme you have to ask how does it differ and why does it matter . Its responded order to establish those think. Thank you. Thank you counsel. Mr. Francisco. Mr. Chief justice, and may it se the court. This case is about checks and balances. One of congresses important checks on executive power its power ofurse. Thats what Alexander Hamilton said that thenification of sort and purse with the this case reflects precisely that fear of unification. The government agrees that congress couldnt juthorize the executive branch to spend whatever it wants. Buts effectively what congress did here w it authorize the cfpb to spend whatever it deems reasonably ney in perpetuity subject only to a cap so high almost never relevant, for the very purpose of making this the most independent agency in americ history. If they can do that then they n authorize the president to reasonably necessary as long as he doesnt exceed 10 trillion. And that would work sea change in the separation of powers. The government makes two basic arguments in response. First it a that that hypothetical would be unprecedented. But the cfpb is also unprecedented. Congress has never authorized an perpetual appropriation. Its own and if he could do that for the cfpb, they c do it for every other agency, too. , the government points to agencies like the post office and the modern analogs. But none those can demand whatever theyant. Instead they are limited to what they can collect from t people that they serve and regulat thats whygress rejected that model for the cfpb. They thought it mad they and if youump the shark from for most of this binge of blessed the region t which congress can authorize the executiranch to spend whatever it wants to the entire government. In short, tourt should hold the line where it stands. Ote, it will they unification of sort and purse thathe constitution was designed tont. Im happy to answer your questions. Mr. Francisco, it would be, i think would beelpful, this is an appropriations clause case. And you seem to suggest that theres a spillover into separati powers issues, nondelegation issuesitut telling us pre how it, how we run into that problem and what the constitutional problem is. So we need a finer point. I get your point that this is different, that is unique, that it is odd, that the never gone this far. But thats not having gone this far is n the constitutional problem. It m be a problem with analogs but i dsnt prove your case and i think we just need you to give us a finer point then we have had sure. At a b minimum the appropriations c requires carvers congas tomine how much the government should be s thats the core element of an appropriation. Thats why i think nobody agrees that congress cant solic the president spend whatever you want. But, buts is functionally no different when youre saying t agency spend whatever you want in purpa duty long as you doneed a number so high its almost irrelevant. Why this unique constellation of factors is so uniquely problematic. Im s were to get that from . Counts . D the definition is what i think the court of the of an appropriation is a ce has two aluminium determine the determine the amount of the government should be spending. Again cant do it by cap . Has been fixed upgh yes i think has just at theunt that it should be spending it lead some play in thes as it did in the founding era sums not exceeding statutes. Remember those were annual appropriations where do you get that from . I think comes like it if i think the text of the appropriations clause, i think thats a core element of an appropriation by also speeded the word appropria , like what in the text ofhe appropriations clause makes it so that the rment is that the government can only come by the government has to fix the amount. Was three things, your honor. The verse is i think that it is in there and what an apprion is. Ot to be the alterations, alteration to spend amount of money. Secondly, any spending what is the fixed amount part of that . Sure, thats what getting at. Ly spin has to be in conseq of an appropriation process got to be in consequence congress is judgment. In the delegate to the executive the aty to make that frontlineetermination, the spending isnt in equence of congresses determination. Anrd does turn history and purpose. The whole point of separating thrd from the purse is protect individual liberty. If you love congress to essentially transfer its authority to pick the appropriation that is not a transfer. So what if i defend apopation differently . What is an appropriation is just eecision that you are going, that a particular Government Department can spend up to a certain amount of moneyhat they have the ability to use a certain amount of the public starting definition . Is my then i thive adopted of definition of appropriation and does, in fact, allow congress to essentially that the president ick is an appropriation. But if thats the definition in the constitution, and im not about anyin thats with the conion says. If you think the constitution allows coast essential s executive, you pick the number can spend whatever youant forever, i would agree. I would lose this case. I have to think speeded if i could understan y get your argument in the briefs understood it did have lot of moving parts, and now this is a much clearer view of what the appropriations clause demands. And if youre saying internet a specific number that with a little wiggle room, the executive has to spend. Ist this that the way i ud it . I mean, i do think that if you go back to founding era statute busine constant n exceeding ask for a particular purpose. Justecalia in clinton said the constitutionality of such appropriations has never seriously beequtioned. So if thats really the core argument that youre makg, not like the others 22 Different Things that come together in this particular statute to crte a unicorn, but that seems like a much more fundamental argument and one thats been decisively rejected by our story. First, thats not the core of f the argument ethic i dont think its been decisively rejected by history. I thinkroblem when you combine a delegation to the executive to his own appropriation in proper duty bject to a number that is like the problem with a combination of factors is because it uniquely essentially gives a the appropriations power. If you can d that for one agency, you can do for every agency then congas can effectively can we sort of, i mean this is 600 million and this is a rounding error in the federal budget, honestly 600 million and has up to 600 million. I mean, you say oh, its impossible to meet it. The cfpb is a new agency and presumably its mandatory programs are going to del over tim that the regulatory programs congress thought 600 million dutc w a pretty good number. Maybe that will pve to be too hot hi a congress will cut it back. Maybe over time the cfpb actually was it 600 million because they will cree new programs anyway, 600 million, 400 million. The cfpb, a stent that the chief justice made one of his year in reports talked about how great it was that we returned monies to the federal treur because that meant we were not wasteful. So thefp is not being wasteful and it is ung what it should be using in its view, and generously, you know, basically saying nothe rest. What is, what is so constitutionally s so a couple things, your honor. First all respectfully of bobby pushback on the premise the cfpbs being parsimonious guy think what theyre doing is are asking for large amounts and bowling over a good chunk of that into their the endow. But ill put that to the side. When you look at the caps of the kept ak at both from the back e the front end. On the backend i thinkost of us seem to agree and think of become agrees to be some kind upper limit. If it is an upper limit is got to be meaningful. The fact theyve never actually the upper limit is pretty good evidence that its not that meaningful limit. But if you think of to look at is from the front speeded maybe its good evidence the cfpb should be more. Thats when you have to look at from the front end. Is has congress made aon determination as what eve branch for the cfpb should be spending . And here it is de that judgment to the director. In a way i think the set illustrates a proh this type of machine. Remember theblem from the dissentersective in was that the attorney general had the aty to set sex offender requirements anywhere between zero requis on the one hand, and aery real statutory maximum on the other. Requirement that applied to post act defended otherwise given broad discretion between and intelligible principle of money spent . I mean, i think were all struggled to figure out then whats the standard that you would use . Assuming you are right that there has to be something more than a 600 million, how did you decide how much i toouch on a specific is specific about . Youre on i think at the back in its difficult to up with a hard and fast rule focusing too much is too much which is what i do think you need to l at it from the front end. And ask has congas made a deation as to what the amount should be, or has it delegated that fundamental determination to the executive branch . I think dont we have to assume thats what the constitution requires a congress . Thats wm getting hung up. You keep the congress is delicate this authority and we understand your argument with respect to it but what if that is not the sort of content of the authority . What if congress doesnt h to well, your honor, if thats your pos i dont think i can get your vote but i think if you step bac and you understand that the appropriations clause is made to sep the power of the sword from the first ten has to be a starting point the coant seem to say to the exe you pick the amount come were not comeo pick it, you pick it. Which is why i think when you look at this link was at a minimum congress has to pick the amount. I think, ive thought you would finish and to do Justice Barrett. Wit respect your question, when he comes he think its particularly problematic with respect t the appropriations remember the appropriations clause isnt intion eight of article one. Its in section of article one. So it is both comes not just the privilege ofongress, its congress has to check the executive branch. If you can simply transferred to e executive its duty to check executive, you are unifying the rt of person. To the extent that any delegation allowed in the context of setting them out or the approach its got to be a very narrow one. That is a perfect explanation for the founding era, sums not exceeding statutes. Those are sta were congress an annualppropriation fix the amount of thought the government should be spending based on hamiltons detailed estimates often to the penny,t this is the recognized and margin of err if congress got it wrong in one year, theld fix it in the next year. That again why thisnie constellation of factors is so uniquely problematic. But you can see the standard appropriations areer se unconstitutional producing congress couldt in the next year, but how long, how efore a a standing appropriation becomes a problem . I would not concede that a longterm standing appropriation would bstitutional. I think don delegation principleserally recognized some play in the joint i think we probl to simply delegate to t executive for one year to pick its o number within a broad band of discretion. T i dont have to defend that position because here we have ntire opposite end end of te this is a perpetual delegation to your own number within a very broad range of discretion. What the worpetu, im having trouble with because it implies that its entrenched and th a fure congress couldnt ange it but congress could change it tomorrow. Youve given a large amount of ower if you need to call it back. Law, o through convincing the president to give up president ial powers, which is tough to do work override group of a member of congress tomorr sd were not going to find the agency unless we change the pending structure do that o much work, they could but nonetheless once you give up power to another agency you for baseline for getting it ba we need to use the powerful tools to override a vet or convince the president to give up his own. I agree flipping the baseline for the perpetual and forever is a little strong. Congress created the most inventive agency in arin history and i agree as originally constructed a massive constitutional form but that was and addressed and now its not independent federal, its under direct supervision control so correct me if you think its wrong they fixed the problems with autism. Everybody knew what was going on in 2010. The 2010 con was a time when future congress favorably they want to insulate f political pressure and its ecisely where they adopted the funding regime but future ability to check through athe continuing are meant to a continuing check on executive powerndome back to the end of the problem of tr of frontline determination to executive branch as far as this statute is concerned, why it is meaningful the directorics 150 million or 600 million, its perfectly fine fromess perspective, you make that determination and the topline number even real n because they can further develop this continuing it does sm your argument is essentially the appropriations demand annual line item appropriations, not just the paradigm of appropriation but the only cstitutionally valid appropriation a any deviation needs special justification or unconstitutional. Se but the htory of our counyejects that scheme and it might be a way to understand what they areoi but it turns out from the veryirst year the appropriations some b massively not all appropriations foods to 50 years of history. Respectfully, thaot my argument. The lack of durat is what makes this problematic but particularly problematic when you combine it with the delegation to executive branc agency to pick its own appropriation you can do that agency by agency and spend what you see appropriate as long as you dont have 10 billion. Trying to understand your argument, im at a total loss. I thi i understand thiss taken from her from the very beginning sometim is one but didnt do line by line the agency decides how much. Over 60 of the appropriations, Something Like thatre standing appropriations mark given every year some are not, whatever he you need to runour agency including from the very beginning so i dont understand what youre saying unless youre saying standing appropriations are wrong, tell me why ty are wrong. If they a not, tell me how much detail they have to g into and why is it dfent than standing appropriation since we cant force anybody to spe as much as you give and routinely lots of agencies returning includin ts one, the court so i dont know what you want i like to address the customvice because my understanding is not the s as my friends understanding. I understand at the of the founding it was funded through fees collected as part the collection of congress and congress determined that they n colr formula they could used to collect those and in addition supervised bhe department of the treasury which bject to annual appropriations so i dont think it was sg appropriation. 1. 5 million appropriation but two things, it was s subject to the supervision of the secretary of treasur turned out to generally g back to regular appropriations. In terms of whether standard is, the fro line rule is minimum congress has to determine t amount and the reason im fo on the factors i am is factors you have explo any at when you delegate to the exec at least for long period of time you brought together set of factors that doesow congress to transfer to the executive branch for a period of time and mul that across the agencies to see what is dangerous. The uitutional, why or why not. , suggested the d. C. Circuit, Federal Reserve is l. The money supply for open market transactions were considered at all t work is a governmental function component you say dont. To thursday the president of the private Regional Reserve bank hit on the open market and why i think court is executor, it likely wouldnt impact the resons on the board itself and does reflect historical tradition not rlly exercising governmental power. They also failure test. I think there welln the tradition of Agencies Limited to what they can collect from people they serve and regulate but more portly your adding a new thing. No. If you think those s as the model, it really is. My friend explained those agencies dont have a statutory so if you think that what by agency and simply say, spend what you w we will come back and override. Until the very end, i thought i understood the limiting of cil she is advocating and at least high level of generality and that was a comparison of the set up before us with histoca pracce i dont think thesnything unusual beforehis the limiting inciple. At the end of the argumenthe seems to be embracing a broader argument closed by justice and its appropriations causes s long as congress adopts any law that ss y get money in this way. Assist with the appropriations. She thinks thats the correct test wehod apply or whether its the one i previously shot she was advocating oer outside congress historical. It answers rather the appropriations clause would have meaning that broad interpretation were adopted. That cant possibly write if you think the apptions clause is meant to ensure congress has a duty and obligation to exercise a powerful check on executive power and recently appropriate come back if you got itly wrong. I think that cannot possibly be. Nobody shall be drawn from the treasury but in conseen of appropriations madeyll. How many would be drawn from the trearyithout a law is something that apples me. I think thats right. I understood the appropriations clause prevent the executive and other circumstances from exercising authority t te money without consent of the edges later. I understood work of the cause not to direct legislature as to how to exercise its own prerogativeut instead ensure supporeparations of power by sung the prerogative lodged with the legislature and the executive or forex. I wrong . I think you are but also its obligation to check the power but is there something about the appropriations clause that specifically directs cones in respect to its own exercise the appropriations pow metal think theres anything in the world appropriations that necessarily answers it which is why you do take a step back. In order to say congres violating the appropriation of in which it exercises your answer would have to be the constitution carheuage in the limitations you say have to be applied in the other aspects will have to be derived from that provision. Provisions are interpreted. Members pointed out theres no clause in the constutnal we cant just suddenly decide things are traveling without a legal reference. The overriding purpose. He removal clause, removal cases focused on cycles so there is aal. There is a textual book as wellhe appropriations clause which is set in section nine which sets forth obligations for congress. You have executive, if all ecutive power is on the prt and his abio fire and remove someone can be ndred but here is nothing in the appropriation clause that imposes the limits you talking about. The word appropriation, you can interpr in different ways. At its core with the apprions clause, congr has to make in appropriation and determine what the government should be sending determine the amou its a non delegation component because you nnot simply transfer the core is theunction to the executive branch and thats why think even if you put the issue of this aside even if you think its meaningful band of discretion, its an rdinarily wideband. But years, 400 million a , would that be a problem . If it were 400 milli year, i think that would be fine. Im getting at, Congress Taking e right a 400 million it should be 600 million but would be a difficult case but when congress is doing what it did here, its saying you pick themount you think is reasonably necessary. It could be zero, could be 750 million. Its taking the core eleme amount the government should be to exercise jt, we arenot going taking that the executive branch to exercise that judgment and that is what is problematic and ically unprecedented. The only counter example tends to be the selfding agencies, post office, Patent Office and modernday analogs. Not because they are differentr in a mful sense limited to what they could col and there is historical tradition for those agencies but it tells us a couple of other things. As overextended beyond that group of agencies. That was rejected, that was t model president obama proposed but co rejected it because it wanted to make the agency even mndependent and if you do it is the model there is noitse agencies dont have attached so congress ca every agency and whatever you think appropriate, ake the front line jud within a broad range of discretion is something really not quite perpetual but close to it. Id like you to complete this funding that violates the appropriations clause. Congress has not determined the amount agency should be spending. It has delegated the director of the authority to pick his own propriations subject only to a limit so high that its rarely by concern is limiting principle they are advocating. I remain confused about the governnt limiting principle of the adopting the argument or whether it ruis uso look at historical examples and if theres anyin to what is before us maybe she will answer that question. I dont know how take your answer because its so open ended, i do know how much is too much. Its that close to 40 or 50 . Are weoi to have to apply this to every agency . I do not but can i get some for a moment . Sure. All rig tell me why every rule passed by the Agency Custody struck down. Thats not what we are seeing. We have challenged one rule. Thows me how everythg the agency has been, ery rule and how we avoid the market destruction. In a w think the argument stands on itserms because it we are right, it has to go back to congror valid appropriation and when its about appropriation, i can ratify whatever rules and regulations it wants to ratify it if it does which parts of the law structure he would strike . The provision. Should they say every yea whatever you spend on salary on to say,haver else, the Federal Reserve is to pay the amount, is that okay for you . Have we moved off of remedy . Weeksr can only ask. The only way to get to an ative answer is to start on your own. Theres n provision. My colleagues have accused us, im not one of them. My approach which fore is the apopriate one, weveot something unconstitutional, we dont throw away the baby with the bathwater, he tried to figure out with the bathwater is. Tell me what the bathwater is and how we limit the effect. Tohere is no bathwater here. Theres no valid w to do an analysis that get something reas. The most you can do is somehow rewrite this to come up with standing appropriation of 750 million for inflation in and return the treasury. One is technical manner, i dont kno how you can get the so i think i would be far beyond anything the courts never done. You would be adopt a funding stream, standing aiation, amount highen the agency has never needed before and Something Congress has never done so you would essentially promote the whole thing is to ontempt. Why would you adopt funding stream that congress was n considered before set of simply saying its not back in your appropriation if you need to say judgment for period of time, we have no objection to that but this should be in congress is court. I could take you back to your exchange with justice tma do i understand you think congress would have to do toake this constitutional will to chang this from no more than 600 million to 600 million no more, no less . If it were 600 billion, no more, no less, my only rng argument would be challenge to eithpetual nature of long duration. He you are amending your answer. I would be much more diff question. Images please ask my question . Sure. When you talked to Justice Thomas, heai what followed cause was it was in up to risein a specification of a number, no more, no less so if thats right, it muste right that Congress Take his back and say you have to spend 600 million and that would be constituon. What are is just as thats your argument and profoundly historical in terms of our a couple of responses and i dont want to quibble with the premise of the question but i hundred, one of the factors was that this was perpetual and put that to the side. Congress does make a standing appropriation of 600 million, at a m, it will have a determination for the government should be spending so its a h time arguing that alone. I dont think that is historically president. Outside of the agency like the post office model, im not aware of any agency subjected to nding appropriaor operating budget much less subject to that standing apprion in perpetuity a number of them that they actually need. The closest throughout history is a Custom Service from 1849 to 1912 for they had a 1. 5 million standing appropriation but one subject to the supervision of thetary of the treasury who received regular appropriations a amount wasnt enough which is why it went back for regular appropriations. Justice barrett. Justice jackson. I tnk ive heard you say repe the problem here is congs giving away the power of the purse that way. Is that your fundamental bottomline problem . Yes. It depends on the powerf the purse is in for us to know whether or not its given away songing of two separate scenarios and i dont know if its helpful i would like your it specifies what that authori entails. To exercise the power of the purse,ouave to select a basis until the recipient how it must be spent. If thats our constitution and i agree this Agency Structure i giving up the power bec those derminations how much is being spent would be given to the agency and constitution ll us the legre has to exercise that authority. The problem is sce two, the constitution giving the legislature th per of the purse and to find the power of the purse, t per to decide how Government Departmentsre. Thats the constitution said, at definition section that says wayower of the purse, we mean you havehe ability to decide how the government is. Thats your constitutional provision, i think you have a harder time, if not a impossible time tt by setting the agency up display in which congress exercised that authority by deciding this i how its going to be funded, it may have given up. They h exercised pursuant to my constitution so i hear the government arguing ournt constitution is more like scenario two so therefore dont you is on this fundamental conception of youve given away your authority . If that were true leave the conc andody in the appropriations clause, the er is yes but its truly and there are no limits on the appropriations. Why is that a problem thats what scenario two says. The authority to make the determination of how the government is under the mark of yo cception is congress and say to the president is depo you spend what you think issonably appropriate. , if you think thats what it means that i le. But im asking you, we d need to understand why its not what it means. Thats your burden t what the words seem to say, theres nothing in this constitution like scenario one and where the framers have the authority they are gio congress so what i to find out why we are not in scenario two given the languages and the clause has been handled. Whit up to congress if they decide they want to set it up in this way without limit . So be it. I think that would be completely inconsistent with the entire purpose of separating this which hamilton said if you combine the two the means medicine said was the most the weapon but why is that necessarily the case . Congress could take it back, congress is getting reports in situation that was happening so for the foreseeable future what w would liko have happen is for the agency to get this amount of money and spend it in these general purposes. And it is the issuee. What you are allowing congress to do is to sit to the longer our determination, is your determination. Its fine with us, i dont think anybody, even my friend on the other side. Along age costs what youon. Ve are suggesting, it means i am wrong. The game is really over. One and say mr. President , its o you, spend what you want. What madison thought was so dangerous will be precisely what is asked. The court would consider wh or not tierney is but this scenario in the exercise of power. They dont crumble in a day, ver time this would be the first step therumbling of the structure. And the not stand. The congress has to make a determination what is spending and t cannot say. Im a little worried about the separation of powers that may have occ if judiciary gets involved with successes can exercise its own prerogative. How do we avoid the slippery slope o today say issues are duration and source in the nex how do we avoid judiciaryw more, becoming suddenly Super Legislature telling Congress Agency byy whether its thumbs up or thumbs down from our perspectiut these things . The judiciarylways played a vital role inhe whole thing is not to protectthe congress from the president president from the cs, its to protect. Rhe limits we have to do that . Thats we have been talking about it under the appropriations clause and but the governmhould be spending, cannot tra that power to the executive branch. The problem is you about that transfer for a long period of time, he willt hit it. You essentially create a blueprint. The v thing framers thought was necessary to protect liberty in a f society. Your honor, rebuttal . Thank you, mr. Chief justice. My friend said several times to make a valid appropriation, fix the amount but inconsistent with appropriation understood in t founding era is defined as the t of designing something to qued specification of source and purposend if there were any debate about that, this nations history conclusively resulted becauhe very First Congress appropriated the sum. The first appropriation specified up to particular capita spending authorized, thats how the funding mechanism is structured and been countless appropriio that look like this throughout the history. Even today in the appprtions act we countedor than 100 esf this discretion to spend up to a specified capnd congress has regularly enacted appropriations t fd the amount in terms of purpose. That is not historical outlier, it i t appropriations law. For course to apply to make those judgmes. Its a real problem the outsides the court engaged, its not accurate to say its not a meinul constraint. It is modest to compare to other agenciesndstimate the amount the Federal Reserve and combid earnings previously spent on Consumer Protection and if you look at the funding requests for years, its closer to the cap the most recent year, it was 30 lln below the cap so its like it will haveo go to congress and ask for additional appropatns of authority. My friend suggested theres something suspicious about standing appropriations but i didnt hear any engagement with the clause. The framers spotted the issue and when it came to funding to read the requirement that they ot no other limit into the constitution and sweeping consequences because today over 60 of the federal bget is in the form of these appropriation that exist in every sector of the federalovnment. Think my friend suggested all of these features cbid that add up to a constitutional problem and wa to engage with your question about theim. Our theory in this case is based on history so if there were a funding statute, it didnt look like anything we have an all of history and if you could all potential separation of powers violation it would count against us and mean the court could determine the separation of powers have croedor we have nothing like that here. We hav a appropriation looks like countss others that have existed for time in memia since 1789 on and i think it leaves myrid suggesting the court should tur away from the appropriations clause andur away from that history and find implicit additional limit thity here. How is the court supposed to figure i o with respects t duration . Some appropriations can last longerha two years in the army appropriaon calls b how long is too long and h does the court determine what functions dont count . Suggesting you could disngsh other financial regulators like the Federal Reserve board based on thearcular functions it carries out but thats not distinction eitr,he Federal Reserve board regulates, enforces the other regulations did the same section 1818 to demonstrate eunctions or not different so is there any principal line here the court could apply to ascertainhe defensive function tween agencies . What all the adds up to is my friend is proposing the court go down the road f the first time interpreting the appropriations clause to containresent limit on congress and if you a recognized from history and ask to reject that approach this also includes general milleys farewell remarks