The Supreme Court Eyes Its Next Big Power Grab
Two cases this term might cement a new order of judicial supremacy—and end the idea of a government by “We the People.”
https://newrepublic.com/article/175899/supreme-court-watch-chevron-deference
On Tuesday, the Supreme Court will hear oral arguments in Consumer Financial Protection Bureau v. Community Financial Services Association of America.
The case is a challenge to the funding mechanism that Congress set up for the CFPB when it created the consumer-finance watchdog agency as part of the Dodd-Frank financial reforms in 2011.
Unlike some other federal agencies that receive annual appropriations from lawmakers, Congress allows the CFPB to draw its funding directly from an account in the Federal Reserve System.
Congress has allowed federal agencies to receive funding from a variety of different sources, and it retains the power to change those arrangements whenever it sees fit.
The Fifth Circuit Court of Appeals disagreed. Judge Cory Wilson, writing for a unanimous three-judge panel, described the funding mechanism as a violation of the appropriations clause as well as a blow to the separation of powers.
“Even among self-funded agencies, the Bureau is unique,” Wilson claimed, quoting from precedent. “The Bureau’s perpetual self-directed, double-insulated funding structure goes a significant step further than that enjoyed by the other agencies on offer. And none of the agencies cited above ‘wields enforcement or regulatory authority remotely comparable to the authority the [Bureau] may exercise throughout the economy.’”
Wilson’s opinion echoed the widespread belief in the conservative legal movement that the CFPB is a dangerous threat to liberty and must be either reined in or destroyed.
The Supreme Court’s conservative majority, which appears similarly skeptical of the consumer-finance watchdog, previously dismantled the statutory for-cause protections for the CFPB’s director in 2018.
In one notable exchange on Capitol Hill, a Republican lawmaker from Pennsylvania told CFPB Director Rohit Chopra during a congressional hearing earlier this year that the financial industry was not happy with the agency’s work and urged her to “be responsive to the clientele that you’re supposed to be helping” when adopting new policies and regulations.
“Just to be clear, the clientele of the CFPB is not banks,” Chopra responded. “The clientele is the public
#cfpb #scotus
https://newrepublic.com/article/175899/supreme-court-watch-chevron-deference
Meanwhile, a second case could give the federal courts—and, by extension, the Supreme Court—far greater influence over how agencies draft and revise new regulations.
Loper Bright Enterprises v. Raimondo involves a challenge to a fishery-management rule for Atlantic herring.
The rule required fishing boats to host observers at the industry’s expense to monitor the herring population. While the observers aren’t unusual, Loper Bright challenged the legality of requiring the industry to pay for them.
The lower courts dismissed the company’s challenge by invoking the Chevron doctrine. That doctrine, which dates back to a 1984 case involving the oil company, instructs courts to defer to an agency’s interpretation of a statute if it is based on a “permissible construction” of that statute.
If the statute explicitly says an agency can do something or can’t do something, then the answer is fairly clear. If a statute is “silent or ambiguous” on something, then the agency gets some leeway to act.
The Chevron doctrine is a central feature of modern administrative law. Its defenders have justified it as a necessary act of judicial humility: 👉 If there are disputes about an agency’s power to do something, the Chevron doctrine means they will be resolved by the democratic process, through Congress’s power to write and amend statutes and a president’s power to order the agency to do something different.
Among the more notable voices in favor of this approach was Justice Antonin Scalia, who previously described Chevron as a preferable alternative to judicial adventurism.
#LoperBright #ChevronDoctrine
https://newrepublic.com/article/175899/supreme-court-watch-chevron-deference
