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Supreme Court Gets Down to Business

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

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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.

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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 DobbsBruen, 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 MinutesAll In with Chris HayesCBS Evening NewsGood Morning AmericaMeet the Press DailyMorning JoeNBC Nightly NewsNightlinePBS NewsHour, and the Rachel Maddow Show, as well as NPR’s All Things ConsideredFresh Air, and Morning Edition. He writes for Bloomberg, Democracy, the New York TimesPolitico, Reuters, Slate, the Daily Beast, the Washington Post, and other national publications.

He is a graduate of Columbia College and NYU School of Law.