The U.S. Supreme Court has agreed to review the Fifth Circuit decision in CFSA v. CFPB that held the CFPB’s funding violates the Appropriations Clause of the U.S. Constitution. After reviewing the history of the case from its initial filing to the Supreme Court’s grant of certiorari, we discuss the Fifth Circuit’s interpretation of the Appropriations Clause and the Second Circuit’s conflicting interpretation in its recent decision holding that the CFPB’s funding is constitutional and assess the strength of each interpretation and the reasoning of each decision. We then turn to how the Supreme Court might analyze the case, including how its analysis might differ from that of the Fifth Circuit but still conclude the CFPB’s funding is unconstitutional and whether the views expressed by several of the conservative justices on the “administrative state” are likely to factor into those justices’ interpretations of the Appropriations Clause.
Alan Kaplinsky, Senior Counsel in Ballard Spahr’s Consumer Financial Services Group, hosts the conversation.
To listen to the episode, click here.
This is the second podcast episode we have released about this case which has existential importance to the CFPB. In January 2023, we released a two-part episode, “How the U.S. Supreme Court will decide the threat to the CFPB’s funding and structure,” in which our special guest was Adam J. White, a renowned expert on separation of powers and the Appropriations Clause. To listen to the episode, click here for Part I and click here for Part II.