Neutral act we believe this now to a supreme courtra arguments on whether the Consumer Financial protection bureaus funding structure is unconstitutional. Live coverage on cspan2. Decision in this case is the first time in a court in our nations history has held that congress violated the appropriations clause by enacting a statute providing funding. This court should uphold the cfpbs fding statute because it is firmly groundedn constitutional text and in historical practice dating bac to the founding. The text of the constitution shows that when the framers one to limit Congress Appropriations authority they did so expressly. While the framers restricted appropriations for the army to two years, they applied no similar limits on appropriations for any other agency. History confirms that. Since the foundingongress has consistently funded agencies through standg appropriations that are not timelimited and that provide significant discretion over how much to spend. Their congress did exactly this the very fst agency it created the Customs Service, and the same is true for of the ding era agencies including the pos oice, the national mi,he patent office, revenue officers and theational bank. And congress is use this kind of appropriation as the default when funding fanal regulators including the Federal Reserve board, the offe of the comptroller ofhe currency, the federal deposit insurance corporation, the National Credit union administration, tm Credit Administration and the federal Housing Finance agency. The cfpbs appropriations that squarely in this unbroken line of the historical practice. In fact, congress exercise ificantly more discretion and control over the bureaus funding by capping its annual appropriation in an amount that is far than many other cies budgets. Resp argued the ination of features in the cfpbs statute violate some previously unrecognized constitutional at the bureaus approon is materially identical to the numerous funding s i just listed respondents concede the statute are constitutional. This court to reject respondents attempt to gerrymandered able to fit the cfpb alone without providing a coherenty about to interpret and apply the appropriations clause. I welcome the courts questions. General, other than psing and appropriations law, are there any limits on what congress can do . So i think at the oset 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 provide for funding and the specifies both the source and the ppose of the funding. Thats how it apppriation was defined at the founding. Its how its always been understood and that still so it is defined today in sources like the junior redbook which is congresses own appropriations treaty. We think at the outset is not just any old ball but a lot of the contains beseeches the constitutes an appropriation. I the question becomes are the other limits out there on how congress can structu funding for particular type of activities or government futions we know from the Army Appropriations clause the answer is yes with respect to that particular government functn. Theres a durational limnd its based on theate of activity because the fra were specifically concerned about having a standg my. The Army Appropriations clause itself demonstrates there are not otherwise constraint in the appropriations clause that would limit congress at how it decides to structure theunding. So beyond the initialt skeletal requirements duration and purpose, there is an, if i hear youre right, there is no other condition . We dont think the appropriat clause places of ts on congress itself when it enacts the funding statute. I do want to emphasize that our argument alsoelies heavily on history. If you have in mind some kind of funding statute or arrangement that is never been de at all of this nations history i thi the court could take that into accountn a future case. Here that we have a specific type of appropriations, a capped lumpsum approprtion that is standing for a Single Agency. Ouristorical argument is that this is nothing new or unprecedented recall of the agencies i listed had similar appropriations. Is there any role in appropriations, that appropriations plays in separation o powers . It seems that at least when i did, was an executive branch, that congress exerce 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 aourse of the critical albert of the separation of powers that coress has control ove the purse. Our aument is that congress ha exercised that power. This court is lookingt a statute that congress itself enacted that set u this funding mechanism for the cfpb which is similar in kind to the way that congress has funded of the finaial eviscerate t kind of exacting control tha congress usually exercises in the appropriations process . I dont. To the extent this question is present on thennual appropriations as a counterpart, think the question becomes does the constitution limit congress with respect to the duration of approprtions . Is there explicit limit and the text the court can define that Means Congress inontrast to other laws whichf 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 because its not like the framers were not aware of this dynamic. They thought specific about the fact appropriatis like all other laws mighte continuing indefinite until the future congress acts, and they were concerned about thatith respect to a Standing Army but they didnt otherwise o limit congressrity. General, one ofhehings that strike me as of reading it, you have a very aggressive view of congress authority under the appropriations clause. Im not saying rotely that thats not correct but it struck me, you represent the executive branch as well. And its a very strong power giveno congress. And it struck me tt the reason you would want to defend that is because it gives them mor power to give away. Legend has it there have been times whe same party controlled both houses of congress a thehite house, and in that situation you can see congress empowering the pr in a way that might seem unusual to the framers. So keeping in mind that, t in balan other words, its kind of paradoxical, the more power you givongress i think, i think this is your friend argument on the other theres more that it can give away and enhance the authority of thecutive. Is that a, a unpersuasive concern . Certainly i dont think it is unpersuasive ccern but built into your question as understood, mr. Chief justice, was the idea that maybe 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 tt lens then history should play a powerful role in trying to understand the limits or scope of homage congress can give away when it becomes too much. Here the court does need to articulate any out limits because we have a specific type of appropriation that is far mo constrained and many that conversation enacted thrghout history because congress provided funding for Single Agency and capped that about the fun in anmot not to exceed the cap set by congress for its pretty unusual to hav that agency drawing, been able to request how much ever wants subject toimit that it only has a got very close to over the yearsrom an entity that is also drawing in money from the prive sector. I didnt see any particularly compelling historil analogues to that. Well let me speeded to t extent that takes away from the appropriatio power, its equivocally enhances the power of the executive. So i disagree that theres anything urecedented about this funding arrangement when you look at the relevant constitional value of protecting congresses prerogative. Inow there are a lot of different movingarts and pieces to the arguments respondents have made i as understand it they are attacking four features of the funded facts statute or the standing at standing appropriations, remains a place and is not unlimited. That againsthe director of the cfpb some discretion to act within the statutory cap and requesting the funding. Third, that the cfpb has enforcement and regatory functions and forth come as your question touched on, that the cfpbs fding comes in the source that is not in the words constrained by Market Forces. But we have numerous examples of agcies 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. Th ctoms service aboard ships and seize vessels at the spec records and conduct searches and level penalties and collect fines, a just a way to avo that kind of regulation. The market constraint theory th the users could just opt out our regulated pares could decide not to fund the operations doesnt apply to those agencies. It stillecse of many of the financial regulators today took the ones iou put on that list are the federal reser board, the the ncua, the farm Credit Administration, and the fhfa. G, uorted hermaphrodites want to understand follow up on the chief justices question. Dash im soro interrupt. Is that essential feature to the constitution of this provision or could congrsassed the same law with no upper limit allowing the executive branch to determineowever much it wished to tak site dont think that congress would have to provide statutory specified amount but it would of course have to specify the purpose of the funding. Budgets on the amount, your three doesnt tn 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 sed the direct is limited to the amount the phrase when necessary tory out federal if t psident determines that was recently necessary to take 1 a trillion dollars, tt would sis your concern. And on the appropriations clause itself has no upper limit constraint. I think that would violate e 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 speed is i just find understand your theory thats all youry 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 lownd of the skill . What is the president o was the appropriate some . Im not going to take any money. I dont like the cfpb, you know. I dont think it is necessary to take another dollar. Couldresident do that . I think that would pilot the statute as well stop talking about approiaons clause. So i think that congress itselfpecified the purpose and so i think that if the president for the cfpbirtor didnt comply, that would be a violation and i would expect congress to stepn and change the funding mechanism. All o these possibilities exist with respect to countless other appropriations. All of the other financial regulars for example, likewise i understand the practical and it is to the statutorym arguments. M just trying to understand. Is anything that would prohibit the president from the appropriations clause clg whether to take zero dollars which w reestablishing a take 1 trillion . I dont think the propriations clause would be check, although of Course Congress could exercis i authority and the spar over the purse to chain to the discretion that is provided to require the president or the direct of the agency to te a particular amount. Can ask a question about the treasury . The professors of constitutional law andtory say listen, the appropriations clause doesnt apply at all because these funds not being drawn from the treasury. U agree with that . Its not thergument you made. We are not making that arme. We accepted the appropriation clause was the weakest of the trim and the cstution referred to the public treasury as a general matter, that specifically to the Treasury Department. At the time of the founding ratification the Treasury Department had not even been created and thats also how this court has describedhe scope of the appropriationslae in cases like opmersus richmond were referred to public monies generally. Of course the contrary appac would expose the gaping loophol and congress authority because would mean the executive it has funds that are not helping the general treasury has been Even Without Congress appropriating it or providing that authority in the first place. Are the money, the monies in the cfpbs budget appropriated moneys . So for constitutional purpost because congress established the funding statute and it has b the source and funny. Within the meaning of the constitution this counts as an appropriation. Thats a opm and executive branch, ngo and congress under since the source of tding. What to make of the provision doddfrank act which has that the bureau fund, will, shall not be construed to be Government Funds appropriated moneys . So that was congress try to control for the interaction between this funding mechanism and of the background rules that apply to appropriations they go through the annual appropriation process. The are rules about things ke pment and whether you can use appropriated moneys in essence the litigation expenses, miscellaneous statute requires agency to deposit the revenue in the general treasury and some ofis background rules would actually interfere withhe funding that conversation tended for this agency. It was just try to control for the interaction there. Other agencies have that statement is incorrect. In the doddfran act itself is incorrect. These are appropriated mon i dont think tha statutory provision was taking a stance on the constitutional question o whether this fits the definition of an appropriation within the meaning of the constitution. As ioned congress has used this formulation for other agencies as well like the occ and the fca a again its all tended to just allow congress to control for the interaction various statutory provisions in this context. Doesnt does it use it t office, for the mint and other agencies of nature. Was justice sotomayor, not familiar with whether this partul language appears in the statutes govni the post office. The post office was originally created and founded in 1792 and so its not clear some of tse of the background rules existed. Ceainly we can point to an exameoday including the occ and the fca which had the same lin wood and its meant to ensure again theres no disrupith the funny operating in way cs can i go b to justice thom question . Theres appear to be, im sorry, a bit congested, there aea to be bound up in question of the appropriations bill, the separation of powers and ndelegation. Now, i know the court below said nondelegation was forfeited. Not quite i understand it, maybe you could explain i to me how separation of power is differenm nondelegation. Why wasnt the other . But do you see those other provisions,ation of power, nondelegation, as havin a place in otheronstitutional provisions besides the appropriations clause . And if it has no place here, why not . Yes. I think obviously these concepts of separation ofowers and the scope of theppropriations clause and nondelegation principles have in many respects potential overlapping functions in this context. We interested respondents to be appropriations clause in the particular and that fifth circuit found they had that simply raise a nonation challenge. I guess what i would say as to the extent the court is thinking about this from the perspective ofal separation of powers principles, the things the court generall csults and understanding the structural provisions of the constitution are, first, the text a second, the history. Those indicators of intent are overwhelmingly on our side. The court is thinking about some delegation principles there you would to look at history and as justicalia emphasized in his concurrin opi if you look across the course o history from 1789 on, it h it has been in the appropriations context marked by very broad delegations of authority to the executive branch to spend withi the bounds set by congress. In the first appropriation laws were structured like this one and a sense of providing executive could spend up to a ca s by congress. I think the cim what you think about the argument responseresent is under the appropriationslae but if mechanize as a courseo get more broadly about these issues the other doctors could come into play. General, could i take you back to the light of questioning for your Justice Gorsuchs talking about . In your reply brief on page 18 you discussed a standing appropriation of up to a quadrillion dollars for the president to find es the so just on this question of where your outer limits are and at theory we might use to say there are some limits, what do you want toay about that sort of statute . Would that be a constitutional violation . If so, why so . And why is that different from this . Yes. So that statu a we understand it would be completely unprecedented. It would effecti take the whole of Congress Appropriations authond transfer it to the executive branch. Congress has never done that for the past 230 years and i hard for me to imagine congress and would do that. But if they could the court were confronted the issue in in a future case they cou will recognize limits and the limits wouldom from his the court inny number of separation of powers cases has said that the fact that a method of structuring government has no historical precedent can recognizing it as aainst constitutional way to pce. That was analysis set in Free Enterprise fund, a reputed to have been seila law but that history works bhays. The court has likewise said a fact that away structuri government is well rooted in history andra it back to the unng is powerful evidence that the contemporaneous tanding of original intent. Thats the box we are in here. I guess i wouldhe court to save for another day whether there some tical possibility that con could go too far with the kind of appropriation weve never see before and instead focus on this particular appropriations law which we think finds its roots both in text and history. I have the same question basically that Justice Kagan just asked you. Your response in your reply ief was an answer t an argument that was i the respondents on page 24 of their brief where they say if the viewer is correct that theres onstitutional limit on Congress Power to psaws, providing funding to agencies then single cogs allocat eh year forp to 1 trillion to an agency like t f or f even up to a quadr dollars for the president to find as h deems fit the entire federal gont besides the army. Now you answer the latter part of it in your reply brief about the quadrillion dollars and you justnswered that in response to justice kag. You didnt answer the first part substantial sum of money toery agency like the fbi or the ftc. So i just want tostand what you tnk the limiting principle is. Lets take, lets take the ftc, ic i think had a budget of 430 million. So lets s theres a law that allocates forever up to 1 billion, adjusted for inn, to the ftc to use as e ftc sees fit. With of a consistent with the apopriations clause . So i think at the outset if the law said however the ftc deems fit, et cetera that would get as an appropriation because its notar congress were specified the purpose. I recognize you can tweak it and say to carry out the ftcs functions. In tontext the hypothetical would eectively be a standing uncapped aiation because of course the ftcou never reach that about. It would b Single Agency and rethink that isl is that many agencies i findact today particularly the financial regulatory space. But if you have concerns about that principle, he of course we have the statutory cap. Respondents say the cap i illusory come more like a hypothetical whi been touching on by the delsea they can make that argument when the cap set at 609 adjusted only for inflatio many of the agency so much of the cfpb inherited its responsies how far larger budget 1. 8 billion for thecc,und 1 billion for the Federal Reserve board, over 1 billion for the fdic. Is aeaningful restraint and i think it demonstrates if the chinks its important to have that constrain here, the cfpb is even more under congresses controlled than the other agencies. Could i sure. Asked one followup question tt. I understand your your answer to these hypotheticals is that we must look to congresses historical practices. This is a matter of seeing whether set up that we before us is consistent with congresses historical practic is that right . We draw heavily on historical prac also is that the test . I think that the test in this context has the most separation of powers ces is yes. Text in history. And here again we had a specic constitutional provision speaki to duration, speaking to particular types of function, showing the framers were concerned about funding the army a standing appropriation. And then we have an unbroken line of history. There have beengencies funded this way forever your ha is your bestistoric, if youre single best example of an agency that has all of the features that the cfpb has that are cited byespondents . Single best example of an ancy with all, wit that combination of features. I thi t best example historiclys the customs the First Congress created the cuoms service and 7089. He gave the gave a Customs Service a standing uncapped source of funding from the revenues that the Custom Service collected through things including coercive Law Enforcement activity, things like levying fines, als from import duties which could not be orted if you want to engage in trade in the nation. Th Custom Service was one of the mostful agencies originally created because of so important to have a stream of funding nublic. I think you can look to allf the sectors are challenged with a Custom Service and others, revenue officer communis are funded through convictione feast. What is yest example of fromnother agency that i turny does not get its money from the coressional appropriation in the normal sense of the term, but gets it from t private sector . So i cant give you another ame of the source that is precisyike that when but i wouldiste the premise that cod possibly be constitutionally relevant. This is a ce about congresses own prerogative over theurse, its authority. If cogs is giving away too much of its authority, by not providing for durational limit or not providing or providing for too much discretion to the agency, hen a doping up could possibly fix the problem that ot funded agencies directly collected their money fromhe entities they regulate. Psych at your answer is you do not come that i not consistent within historical ce, but you think that to the extent it is unprecedented i unprecedented in a way that is not relevant for present purposes, et cetera answer . Yes primarily. I think wou be unprecedented in the way you could s this is the only agency that has the acronym cfpb. Thate also but it doesnt fact the constitution about you. I also want to make the factual point that i dont understand them to be saying i significant it is structured this were in the abstract. They say what it means is this not a check on the overall amount of funding the cfpb could get and there is a check on thi other agencies. Thats wrong as a descriptive matter produce a similar check on the fer reserve board, the fdic, the ncua, the fhf all of the entities of regular nnot enter im sorryt the regulatory sphere just because you disagree with regulation. Justice thomas, anything further . Justice alito. Just a couple more questions, possibly. I think you answer this indirect but it just want to be clr. You think the reference to appropriations in the constitution is equivalent to bl money . Do you think appropriate funds are the same thing as over end quote public money . So i think that funds that te congress is given to an agency to qualify as public money, yea yeah. What if someone come what if ss set up an agency with substantial power but provided no method for thency to obtain money other than private donations . With it be consistent with the appropriations clause . Think that likely would be consistent. That obviously s to the question of source and i thk congress has chosen different sources over time butt dont think theres anything in the xtf the constitution that litsongresses of the leak to try to determine the weight wants to structure those funding mechanisms. Suppose congress saidre are a lot of outside entie that have great interest in the work of the spc so dont think we need to appropriate any money. The fec can spl rely on private donations and build up its own endowment soo speak. With that the constitutional . I think that likely would qualify as constitutional. Of course if that create some ndf regular capture i would expect congress would act to fix that by the are examples throughout our history of schop funds for for example, administered by the federal government originally funded by an endowntnd those i think qualify as appropriations. Thank you. Justice sotomayor . Generight be a good sign or bad site dont know. Nody has talked remedy. Let me give you an opportunity to summarize your best argument why the court below erred in its broad remedy ontriking down basically not just this payday nding role but basically saying anything thisy is done since the beginning is invalid. So can you tell us how you deal with that . Yes the fifthircuit recognize a sweeping retrospective remedy that we tnk conflicts with the severability principles and additional traditionalial equitable principles in this space. Just for severability, ddfrank itself as an express severability clause that this court emphasihat in seila law his the fifthircuit didnt even stop to considerheer any aspect of the cfpbs funding mechanism could be severed wouldvide a basis to before limit the the dame to coresses work in trying to get this agency funded. That washe and there are several candidates for severability that would be an much less disruptive remedy in this context of what not iel responds to any relief because the paydayenng role they challenge is an traab to those features or aspectsf the funding mechanism. But even if you follow the fifth circuit approach and thought there was something about this entire funding mechanism that is invalid, even then dont think a retrospective remedy is warranted. The court would be writing on a blakesley because no court had privacy found congress itself pilot the aroiations clause blank slate. Under equitable principles its nestle t take into account the pu interest and balance of equities. And here at prospect of remedy which prevent the cfpb am enforcing this rule against this bond is a till it has a valid appropriation a meaningful form of relief and instead the retrospective remedy that the court adopted is sweeping and application and profoundly diuptive. I would point t particular to the amicus brief thatas found by the Mortgage Bankers association that explains how many entities in various industries have critical rie on the cfpbs regulations includgn particular in the Housing Finance space. These great safe h for lenderso that they will be deemed to be in compliance with statutory requirements on things like ability to pay and on Disclosure Requirements there is a fifth circuit is right and theres a prospect allf this action should be unwound, it would create profound disptn in various econoc markets that ul hurt the regulate entities themselves. We think that prode powerful reason to reject that kind of retrospective relief and instead have going for prospective remedy only. Thank you. Justice kagan. General, bhr. Francisco and one of justice a question suggest that well, you might have the ability to s that each one of these features has a historical precedent, but that theres Something Special about the combination of all of them. And that you cant point to a historical precedent which is every single feature tha this scheme has. You said to justiceto that the Customs Department comes awfully clos but if want you to step back a little bit and just talk to me about how, should we be, how should we be thinking about that question . Is a more important that all the parts have been used, or is it more important that the entire thing has an exact preside . Is part of the lso of history here that theres been an enormous variaon in the kinds of appropriations at congress has made . How she would think about that feature of our history . Take it away. So i think it is absolel correct to say that there has been enormous variation in the caucasus exercised i appropriations power over the course of history obviously wit respect to each of these challenge feature w think we have aealth of evidence regarding standing propriations or appropriation of two particular cap. At a dontant to lose sight of the fact that t court were to approach this issue will get a combination of features, this is novel. I want to try to unpack whyt is so because jti alito aspic couple of questions about theoue of the band at the particular about the idea may be thein the got crossed your orhe relevant difference in how the cfpb is funded i because it draws its funds from the fedeserve board. The reason why that doesnt work and why it shows this is not unprecedented is that theho theory behind that premise is that the constraint and other agci Market Forces will limit the overall pot defending the other agencies have but thatsot accurate as a descriptive matter wit rpect to things like the Federal Reserve board itself which regulasnd assesses money on theederal reserve banks qued to stay in the system. They cant leave. If the overall value is to determine does the agency have some limiting check on the overall amount of funds, the cfpbsar more constricted because it has a statuto cap actually imposed by congress brethren rated entities. I think if the court is look at all o features together, maybe some things should subtongress out a bit but the cap at spi is a a very powerful and major wayhat i think i think distinguishes this appropriation for purposes of congressional control. Thank you. Justice gorsuch . Justice kavanaugh . Just two clarifying questions abou limits of your argument. Theres discuss sometimes abermanent appropriations and forppropriations. Myerstanding but i want to make sure you agr is a congress could not entrenched a fundineme. In other words, congress cannot pass a law that says this a funding scheme and a future congress may alter this for ten years or 100 years. That be constitutionally problematic is my understanding that i want to make sure you agree with desperate yes, i absently share that uerand you can justice kavanaugh. And i think what it sws is its incorrect toharacterize standing appropriations as lasting forever. Fact we appointed a number of examples where congress has acted to change the standing appropriations and t ctoms service is a good example on this one. It was funded through a standing appropriations for the first 120 years of this natios history and then in 1912 congres tk it out of the standing appropriatio and prodded into annual appropriations. Congress shifted this again and the debt limit the recently. They presented many standing prriations that of a part of the American Rescue plan and inflationedtion act. It demonstrates theres always that additional check of a future congress decides it wants to alter the work of prior congress. So congress could change it absolutely congress could change i t more. And then if the statute he gave the Federal Reserve more than ministerial control, that the amount was introl of the Federal Reserve to range from zero to the cap for with the cfpb we receive, with the change ytng . I dont think that would change the revt constitutional analysis. You might think of that is functioning a little b like an agency oversin a sub agency and making mations to its budget. Retains a direct line and decide how much fundinghould go to that sub agency a if it wants to change anything does no double layer of insulation. Even if t court thought maybe having that more than ministerial process would create some kind of nel constitutional question, of course youre its important emphasize the Federal Reserve board just had this minister role and it doesnt deserve any pervion. Thank you. Justice barrett . Justice jackson . Good morning, general. So im concerned that there t be burden shifting happening in the way which we are thinking about this, so maybe you can help me just to keep the rightdens in the right place. Some of the question fadiman asked this morning seem asked this morning seem to establi whether or not cs can do certain things. What ifongress delegated the authority to determine 1 trillion worth ounding and other agencies going did . What if congress set u in this way that we, etera . I sort of thought that the buas on them tow that congress cant sf the agency in this way. The reason i think that is because of the language of the apations clause and the way in which it seems to give thelature the prerogative of the purse. And here we h a statute in which the legislature has exercised that. So am i right thats really all you need to say, to win . I mean y dont lose if you cant establish the limits in congress exercise of i authority, right . Ihi thats right. I think it actually highlights an important aspf this case. This is a separation of powers case. Are here defunding a statute that cgrs provided to find an executive branchgey and responded to come in andsking the articles records to oversee and superintend congresses o exercise of its prerogatives erhe purse. I think absolute theurden is on thin to show that kind of Judicial Intervention and invalidation of the stack it is warranted. When we get to them i would assume that in determining what limitshe are, you say they ve certain concerns. They say its aroblem with duration, its a p the agency has this degree of dion, that the agency is this amount of power, that the source is coming f the private individuals et cetera, et cetera. But against their burden would ha be to determine that those limits exist somewhere in the law. I mean its not just up to uso sort of say say gee, those s seem problematic. Ld have to find a legal source i think in order to agree with them thatse limits are actually imposed on congress authority. Ts right and obvious either lot of differentoly judgments that congress can mak him think about theight way to structure funding for different agencies. Its established a cta set of norms when it comes to nancial regulators in particular of which the cfpb a part and a think the relevant question is not this is a good way to structure page agency . Is that a good policy . Or even has a been done be preshould all your historical analysis and all the things youre saying at all about may well be so, i guess i dont understand what if we found that itnt necess set up in this way . Does that on its own established that congress couldnt exercise its prerogative . I dont think it necessary went andspially it wouldnt if one of the pointf novelty was something that had nothing do with aggravated in a potential separation of powers issue. This relates back to what i was ink to Justice Alito the maybe youan come up with distinctions but cannot materiallyant to the question before the court. Instead if there we truly some kind of unprecedented funding scheme you have to ask how does it differ and why does it matter . It responded order to establish those think. Tha you thank you, counsel. Mr. Francisco. Mr. Chitice, and may it please thert. This case is about checks and balances. One of congresses most important power of the purse. Power is its thats what alexanderton said that the unification of sort and p with the definition of tyranny. This case reflects pre that fear of unificati the government agrhat congress couldnt just authorize thecutive branch to spend whatever it wants. But thats effectively what congress did here where it authorize thefpb to spend whatever it deems reasonably necessary inpetuity subject only to cap so high its almost never relevan all for the very purf making this the most indepengency in american history. Y can do that thenhey spend whatever she deemsto reasonably necessary as long as he doesnt exceed 10ion. And that would work a sea change in the separation of powers. The governmentes two basic argumen response. First it argues that that hypoth would be but the cfpb is also ecedented. Ngress has never authorized an agency depict to pick its own perpetual appropriation. An he could do that for the cfpb, they can do it for every other agency, too. Second, the government pointso founding era feeforservice agencies like the post office and theern analogs. But none of those can demand ever they want. That they serve and regulate. Ple thats why congress rejected that model for the cfpb. They thought it made the agency to politically accountable and if you jump the shark from r most of this binge of blessed the r to which congress c authorize the executive branch to spend whatet wants to find the entire government. In short, the court should hold the where it stands. Otherwise, it will the very unification of sorturse that the constitution was signed to prevent. Im happy to answer your questions. Mr. Francisco, it would be, think would be helpful, this is anpriations clause case. Andeem togest that theres allover into separation of powers issues, nondelegation issues without te us precisely how it, how we run into that problem and is. T the constitutional problem so we need a finer point. I gr point that this is it is odd, that there never gone this far. But thats not having this far is not the constitutional problem. It may be a problem analogs but it doesnt prove your case and i think we just need you to give us a point then we have had sure. At a bare minimhe appropriations clause requires carvers congas to determine how much the government should be spent. Thats the core element of appropriation. Thats why i thi nobody agrees that congress cant solicit to the president spend wr you want. Different when youre saying too agency spend whatever you want urpa duty as longs you dont exceed a number so high its almost irrelevant. Thats why this unique constellation of factors is so uniquely problematic. Im sorry, were to get that from . You said the definion is what counts . I think the court of the of an appropriation is a commerce has two aluminium det the determine the amount of the government should be spending. Again cant do it by cap . Has been fixed up pgh yes i it just at the amount that it should be spending it can lead play in the joints as it did in the founding era sums not exceeding statutes. Remember those were annual appropriations where do you gett from . I think comes like it i think the text of the appropriations clause, i think thats a core element of an appropriation by also speeded e word appropriation, like in the text of the appropriations clause mt so that the requirement 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 appropriation is. Its got to be the alterations, alteration to spend amount of money. Secondly, any spending what is the fixed amount part of that . Sure,s what getting at. Secondly spin has to be in consequence of an appropriation process got to be in consequence of congress is jud it is in the delegate to executive the authority to make that front determination, the spending in consequence of congresses determn. And third does turn history and rpose. The whole poi of separating the sword from the purse is to protect individual liber if you love congress to essentially transfer its authority to pick the appropriation that is not a transfer. So what if i defend appropriationifferently . What is an appropriation is j the decision that you are going, that acular Government Department can spend up to a certain amount of money, that they have the ability to use a certain amount of the public fashion what if that is my starting definition . Then i think youve adopted of definition of appropriation and does, it, congress to essentially that the president pick is an propriation. But if thats the definition in the constitution, and im not about anything. Thats with the constitution says. If you think the constit allows coast essential safety executive, you pick the numbe can spend whatever you want forever, i would agree. I would lose this case. I have to think speeded if could understand you get your argument in the briefs as understood it did have lot of moving parts, and now this is a much clearer vie of what the appropriations clause demands. An if youre saying internet a specificumr that with a little wiggle room, the executive has to spend. It . S at this that t w i ud i mean, i do think that if you go back to founding era statute business const not exceeding ask for aarticular purpose. Justice scalia in clinton said the conitionality of such appropri has never seriously been questioned. So if tts really the core argument that youre making, not like the others 22 Different Things that come together in thisarcular statute to create a unicorn, but that seems like a muche fundamental argument and one thats been decisively rejected by our history. So two responses. First, thats not the core of f the argument ethic of i dont think its been decisively ed by history. I think the problem when you combine a delegation the executive to pick his own appropn in proper duty subject to a number that is like its almost never been hit. The problem with a comon of factors is because it uniquely essentially gives away the appropriations power. If you can do that for one agency, you can do for every agency then congas can effectively can we sort of, i meanhi is 0 million and this is a rounding error in the feral budget, honestly. 600 milli has up to 00illion. I mean, you sayh, its impossible to meet it. The cfpb is a new agency and ably its mandatory programs are going to develop over time that theatory programs. Congsshought 600 million dutch was a pretty good n hot hat will prove to be too high and congress will cut it ba. Maybe over time the cfpb actually was it 600 mill because they will create programs anyway, the cfpb, a statement that the chiefusce made one of his year in reports talked about how great it was that we returned monies to the federal treasury because that meant we we not wasteful. So the cfpb is not being wasteful and it is using what it should be using in view, and generously, you know, basically saying not the res what is, what is so constitutionally speeded so a couples, your honor. First of all respectfully of bobby pushback on the premise the cfpb is being parsimonious think what theyre doing is are askinor large amounts and bowling overd chunk of that into their the endowm. But ill put that to the side. En you look at the capf the kept a look at it bothrom the back end and the front end. On the backend i think most of us seemo agree and think sort of become agrees to some kind of upper limit. If it is an upper limit is got to be meaningful. Tht theyve never actually hit the upper limit is pretty good evidence that its not that meaningful limit. But if you thinkf to look at its good evidence thebed maybe should be doing more. Thats when you to look at from front end. From the front in the question is has congress made a determination as what executive branch for the cfpb s be ng . And here it is delicate that judgme the director. In a way i think the illustrates a props with this type of machi remember the problem from the dissenters perspective in gandy was that the attorneeral had the authority to set sex er requirements anywhere between zero requirements on the one hand, and a very real sty maximum on the other. The requirement that applied to post act defended otherwise given broad discretion between the polls. And intelligible principle of money spent . I mean, i think were all ggled to figure out then whats the standard you would use . Assuming you a right that there has to beomething more than a 600 million, how didou decide how much is too much on a sp is specific about . So youre on i think at the in its difficult to come up with a hard fast rule focusing too muchs too much which is what i do t you need to look at it from the front end. And ask has con made a determination 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 ires a congress . Thats where im getting hung up. Keep the congress is delicate this authority and we understand your at with respect to it but what if that is not the sort of content of the authorit what if congress doesnt have to . Well, your h if thats your position i dont think i can get your vote but i think if you step back and you understand at the appropriationuse is made to separate the power of sword from the first ten has to be a sg point the congas cant seem to say to the executive you pick the amoun come were not come to pick it, 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. With respect your question, when hes he think its partly problematic with respect to the appropria clause. Remember the appropriations isnt in section eight of arone. Its in section nine of article so it i both come is not just the privilege of congress, its an obligation and a duty that congress has to check the execbranch. If you can simply transferred to the executive its duty to che executive, you unifying the sort of person. To the extent any context of setting them out or the approach and its got to be very narrow one. That is a perfect expla for the founding era, sums not exce statutes. Those are statutes were congress an annual appropriation fix the of thought the government should be spending based on hami detailed estimates often down to the penny, that this is the recog and margin of error. If congress got wrong in one year, they could fix it in the next year. That is again why this unique constellation of factors is so uniquely problematic. But you can see the standard appropriations are per se unconstitu producing congress could fix it in the next year, but how long, how long before a a standing appropriation becomes a problem . Sure, your honor. Longterm standing appropriation would be constitutional. I think don dion principles generally recognized some play in the joint think we problematic to simply delegate to the executive for e year to pick its own number within a broad band discretion. But i dont have to def that position because h we have the entire opposite end f the spectrum. This is a perpetual delegation to pick your own number within a very broad range of discretn. What the word perpetual, im having trouble with because it implies thas entrenched and that a future congress couldnt change it but congress could change it tomorrow. Youiven a large amount of your power if you need call it back. Name law, only through convincing the president to g up president ial powers, which is tough to do work override group of a member of congres tomorrow said were not going to nd the agency unless we change the pending structure do that too much work, they could nonetheless once you give up wer to anothergency you for the baseline for getting back. We need to use the powerful ols to override a veto or convince the president to give up his own. I agree flipping the baseline for the word perpetual and forever is little strong. Congress created the most inventive agency in american sty and i agree as constitutional form but thatve and addressed and now i not independent federal, i under direct supon control so correct me if you think its wrong. They fixed theems with autism have. Ever knew what was going on in 2010. The 2010 congress was a time whure congress favorably they want to insulate from political pressure and its precisely where they adopted the funding regime but future ngress is supposed to have the ability to check through a continuing are meant to be a cont check on executive of the problem of transfer ofd frontline determination to executive branch as far as this statute isrned, why it is meaningful the director pics 150 million or00 million, perfectly fine from congress perspective, you make that determn and the topline number is even real number because they can further develop this continuing it does seem your argument is essentially the appropriations demand annual line item appropriations, not just the paradigm of appropriationut the only constitutionally v appropriation and any deviation need scialfication or unconstitutional. Se but the history of our country rejects that scheme and it mig a way tondstand what they are doing but it turns out from the very first year the propriations some but massively not all appropriations foods to 50 years of history. Respectfully, thats not my argument. Th of durational is what makes this problematic b particularly problematic when yobine it with the delegation to executive Branch Agency to pick its own appropriation y c do tha 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 think istand this is from her from the very beginning sometimes is one but didnt do line by line the agency decides how much. Ov 60 of the appropriations, sothing like that are standing appropriations mark gvery year some are not, whatever he u need to run your agency including from the very what youre saying unless youre saying standing approons are wro, tell me why they are wrong. Much detail they have to go into hy is it different than standing aiation since we cant for anybody to spend as much as you give and routinely lots ofgencies returning including this one, the court so t know what you want. I like to s the Customer Service because my understanding the same as myds understanding. Inderstand at the time of the founding it was funded through fees collected as part of the collection of Congres Congress determined that they can collect or formula they in addition supervised by the department of the tre which was subject to annual appropriatio so i dont think it was standing appropriation. It was between and 1912, 1. 5 million appropriation but two things, it was still subject to the supervision of secretary of treasury and turned out to generally go back to gular appropriations. In terms of whether standards, the front line rule is minim congress has to determine the amount and reason im focusing on the factors i am is becahen you bring those factors you exploded any at all. When you delego the executive at least for a long period of timou brought together set of factors that does allow congress to transfer toxecutive branch for a pef time and multiply that across the agencies to see what is dangerous. The unconstitutional, why or wh not. Judge, suggested the d. C. Circuit,al reserve is general. The money supply for open market transactions were considered at all the work is a governmta function component . You say i dont. To thursday the president of the private Regional Reserve bank hit ohe open marnd why i think court is the executor, it likely wt impact the restrictions on the board its and does reflect historical tradition not really exercising governmental power. They alsore test. I think there well within the tradition ofies limited to what they can collect from people they serve and regulate but more portly ydding a new thing. No. If you think those serve as the model, it really is. My friend explained t agencies dont have a statutory soou think that is what justifies, could go agency by agency and simply say, spend wh want. Until the very end, i thought i understood theiting of least a high level of gerality and that was a compaso of the up before us with historical practice. I dont think theres anything unusual before this the limiting principle. At thend of the argument she seems to becing a broader argumentsed by justice and itropriations causes so long as congress adopts law way. Says you get money in this assist with the appropriations. She thinkss the correct test we should apply or whether s the one ireviously shot she was advocating other outsi ngress historical. It answers rather the appropriio clause wouldave meaning that broad interpretatie adopted. That cant py write if you think the appropriations clause is meant to ens congress has a duty and obligation to exercise a powerful check on executive power a recently appropriate cok if you got it totally wrong. I think that cannot possibly be nobody shall be drawn from the treasury but in consequence of appropriations made by all. How many would be from the treasury without a law is something that apps me. I think thats right. I understood the appropriations clause pvent the executive and other circums from exercising consent of the edges later. Hout i understood work ofhe cause not to direct legislature as to how to exercise its own prerog but instead ensur support separations of power by ensuring the prerogative lodged with the legislature and the executive or forex. I wrong . I think you are but also its obon to check the power. But is there something the appropriations clahat specifically directs congress in re to its own exercise of the appropriations power . Metal think theres anything in the world appropriations that necessarily answers it which is in order to say congress is violating the appropriati of in which it exercises your answer would have t the appropriation language in the constitution carries the limitations you say have to be applied in t other aspects will have to be derived fro that provision. Not in terms of how his provisions are interpreted. Members pointed out theres no clause in the constitutional we just suddenly decide things are travelingut a legal reference. The overriding purpose. The removal clause, removal cases focused on cycles so there is a textual. There is tual book as well and the appropriations clause which set inection nine which sets forth obligations for congress. You havetive, if all executive power on the president and his ability to fire and r someone can be hundred but here is nothing the appropriations clause tha imposes the limits youre talking about. The word appropriation you can interpret it in different ways. Its core with the appropriations clause, congress has to make in appropriand should be sending deterhement amount and its got a non delegaomponent because you cannot simplyfer the core branch and thats why i think even if you put the issue of this aside even if y think its a meaningful bf discretion, its an extraordinarily wideband. But for years, 400 million a year, would that be a problem . If it were 400 million a year, i think that would be fine. Imng at, Congress Taking the right amount, 400 million it should be 600 million, but would a more difficult case but ongress is doing what it did here, its say you pick the amount you think is reasonably necessary. Ld be zero, could be 750 millio appropriation determining theof amount the government should be spending thinge are not going to exercise judgment, we are taking that the executive branch to exercise that judgment that is what is problematic and historically unprecedented. The only counter example to be the self funding agencies, post office,t office and modernday analogs. They dontet to pick their or in a meaningful sense limited to why could collect and e is historical tradition for those agencies but it tells us a couple of other things. As overextended beyond that group of agencies. Was rejected, that was the model president obama pd but congress rejected it because it wante make the agency even more independent if you do think it is the modhere is no limit because agencies dont have attaco congress can say every agency and whatouhink appropriate, you make the front line judgment discretion is something really not quite perpetual but close to it. Id like you to complete this funding that violates the appropns clause. Congress h determined the a agency should be spending. Itelegated the director of the authority to pick his appropriations subject to a limit so high that its rarely meangful. By concern is limiting principle they are advocating. I remnonfused about the governments limiting principle of the ado the argument or whether it requires us to look at historical examples and if theres anything to what is before us. Maybe she will answer tha question. I dont know how to take your answer b its so open ended, i do know how muchs too much. s that close to 40 or 50 . Are we going to have to apply is to every agency . I do not but can i gete for a moment . Sure. All right. Tell me why rule passed by the Agency Custody struck down. Thats not wha are se seeing. We have challenged one rule. It shows me how everything and how we avoid the market destruction in a way i think the argumen stands on its own terms because it we right, it haso back to congress for valid about appropriation, i can ratify whateverules and regulations it wants to ratify it if it does which parts of the law structure he would strike . Thesion. Should they say every year, whatever you spe on salary o to say, whatever else, the Federal Reserve is to pay the amount, is that okay you . Have we moved o remedy . Weeks summer can only ask. The only way to get to an alternative answer to start on your own. Theres no provision. My colleagues have accused us im not one of them. Roach which for me is the appropriate one, weve got something uitutional, 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. To me, there is no ber here. Theres no valid way to do an analysis that gets to something reasonable. Rewrite this to come up withow standing appropriation 750 million for inflation in perpetuity. And return the treasury. One is technical manner, i dont know how you can get the i think i would be far beyond you would be adopting ang done. Stream, standing appropriation, amount higher than the agency has never neeefore and that Something Congress has n so youould essentially promote the whole ts to near contempt. Why would you adopt funding stream that congress was never considered before set of simply saying itsack in your court, you need to make about appropriation if you need to say judgme period of time, we have no objection to that but this should be in congress is court. I could take you back to you exchange with Justice Thomas, do i understand you think congr would have to do to make this constitutional will to change thisrom no more than 600 million to 600 million noe, no more, no less, my only remaining argument would be challenge to either perpetual nature of l duration. Then you are amending your answer. I would be muchor difficult question. Images please ask my question . Sure. When you t to Justice Thomas, he said what followed because was i was in up to rises in specification of a number, no mor less so if thats right, it must be right that Congress Take his back and say you have to spend 600 million and that would be constitutional. What are is just as thats argument and profoundly historical in tms of our history. A couple of responses and i dont want tole with the premf the question but i think when i listed o my hundred, one of the factors was that this was perpetual and put that to the side. If congress does make aing appropriation of 600 million, a determination for theill have government should bending so its a harder time arguing that e. I dont think that i historically preside outside of the agency likehe aware of anygency subjected to a standing appropriation for operating budget much subject to that stand appropriation in perpetuity a number of them that actually need. The closest throughout history Custom Service from 1849 t standing appropriation but onen subjec the supervision of the secretary of the treasury who rec regular appropriations and the amount wasntnough which is why it went back for regular appropri. Justice barrett. Justice jackson. I think ive heard you say repeatedly the problem here is congress is giving away the power of purse tha way. Is that your funmeal bottomline problem . Es. I guess my answer is maybe. It depends on the power of the purse is in order for us to know whetr not its given away song thinking of two separate scenarios and i dont knowf its helpful i would like your reaction. It specifies what that authority entails. To exercise ter of the purse, you have to select a fixed sum of money o an annual basis until the recipient how it must be spent. Thats our constitution and i agree this agencytructure is giving up the power because those determinations how much is beg spent would be given to the agency and constitution tells us the legislature has to exercise authority. The problem is scenario two, the constituiving the legislature the power of the purse and to the power of the purse, the power to decide how gove departments are. Thats what the constitution said, at dion section that says we say power of these, we mean you have the ability to decide how the government is. Thats your constitutional provision, i think you have a harder time, if not almost impossible time that by setting they up display in which congress exercised that authority by deciding this is how its going to be funded, have given up. They have exercised pursuant to my constitution so i hea the government arguing our current constitution is more lik scenario two soherefore dont you is on this fundamental conception of youve given away your authority . If thaere te leave the conception and body in the appropns cuse, the answer is yes but i truly there are no limits on the appropriations. Hy is that a problem thats scenario two says. The authority to make the determination of how the government is underhe mark of your conception is congress and say to resident is deposited, you what you think is reasonably appropriate. , if you think thats whatt but im asking you, we dont need to understand why it what it means. Thatr burden thats what the words seem to say,res nothing in this constitution like scenario one and where the framer the authority they are giving to con so what i need to find why we are not in scenario two given t languages and the clause has been han why is it up to congress ifhey decide they want to set it up in this way without limit . So be it. Completely inconsistent with the entire purpose of separating is which hamilton said if y combine the two the means medicine said was the most the weapon. But why is thatsarily the case . Congress c take it back, congs getting reports in this situation that was happening so for theoreseeable future what we would like to have happen is for agency to get this amount of money and spend it in these general purposes. And it is issue here. What you are allowing congress to do is to sit to the president mr. President , no longer our determination, is ur determination. Its fine with us, i dont think anybody, even my friend on the side. In my hypothetical, they have said that in the constitut along agency costst you are sugge it means i am the game is really over. One and say president , its up to, spend what you want. Adison thought was so dangerous will be precisely what is asked. The court would consider whether or not tierney is but thiscenario in the exercise of power. They dont crun a day, but, over time this would be the first step the crumbling of the structure. And they do not stand. The congress h make a determinathat is spending and the cannot say. The separation of p thatabout may have occurred if judiciary getsolved with successes can exerts own prerogative how do we avoid the slippery slope of today say issues are duration and source in the next someone will come a few more, how do we avoid judiciary becoming suddenly Super Legislature telling Congress Agency by agency whether i thumbs up or thumbs d from our perspective about these things . The judiciary has always played a vital role in the separation of powers bec the whole thing is not to protect congress from the president president from the congress, its to protect. Or the limits we have to do that . Thats we have balking about it under appropriations clause but the government should be spending, cannot translate that power to the executive bra the problem is when you about that transfer for a long per of time, he will most hit it. You essentialate a blueprint. The very thing framers thought was necessary torotect liberty in a free society. Your honor, rebuttal . Thank you, mr. Chief justice. Friend said several times to make a valid appropriation, fix th aunt but inconsistent appropriation understood in the founding era is defin as the act of designing sething to required specification of source an p and if there were any debate about that,hi nations history conclusively resulted because the very First Congressppropriated the sum. The first appropriation ecified up to particular Capital Spending authorized, thats how the funding mechanism is structured andeen countless appropriations that look like this throughthe history. Even today in the appropriations te counted more than 100 uses of this discretion to spend up to a specified cap and congress has regularly enact appropriations to find the amount in terms of purse that isotistorical outlier, it is the appropriations law. For course to applyo make those judgments. Its a real problem t outsides the court engaged, its not accurate to s is not a meaningful constraint. It is modest toomre to other agencies and estimate the amount th feral reserve and combined earnings previously spent on Consumer Protection and if you look at the fundi ruests for years, itsloser to the cap the most recent year, i was 30 million below the cap sots likely it will have to go to congress a a for additional appropriations of authority. My friend suggested theres ing suspiciousbout standing approprs but i didnt hear any engagement with the clause. The framers spotted the issue and when it came to fundi to the requirement that they wrote no other limit into the titution andweing consequences because today over 60 o t federal budget is in eorm of these appropriations that exist in everyecr of the federal government. In my friend suggested all these features combined that add up to aonstitutional problem and i want to engage with your question about the limit. Our theory in this case i based on history sof 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 crossed for we have noin like that here. We have an appropriation looks like countless others that have existed for time in memorial since 1789 on and i tnk it leaves my friend suggein the court should turn away from the appropriations clause and turn away from that history and find plit additional limit authority her how is the couupposed to figure it out with respects to duration . Some aroiations can last longer than two years in the Army Appropriations calls but how long is too long and how does the court deternehat functions dont count . Suggesting you could distinguish other financial regulators like the feder rerve board based on the particular functions it carries out but thaot distinction either, the Federal Reserve board regulates, enforces the other regulations did the se section 1818 to demonstrate the functions or not different so is there any principal line here the court could apply to ascta the defensive function tween agencies . What all the add to is my friend is proposing the court go down the road for the first time interpti the appropriations clause to contain present limit on congr and if you are recognized from history and ask to reject that approach. The case is submitted. Adjourned until tomorrow at 10 00. Shes been is your unfiltered view of government funded by these Television Companies and more including talks. Limit to the hearing on the continuing problem of goods sold online and shop safe act. The market value of 500 billion because the global going 2. 5 million jobs lost each year. Lost the Senate Judiciary committee lived 2 30 p. M. Eastern hes been through. Series, we are asking you will book seeking ship america. You can join in five submitted for the books you shaped our country. These standalone books shaped america. Your inputs have been select report video. Tell us your pick and why. Sure to watch the ship america live every monday 9 00 p. M. Eastern hes gone. A healthy democracy doesnt just look like this. It looks like this where americans can see democracy at work where citizens are truly informed. Unfiltered, unbiased, word for word from the Nations Capital to wherever you are. It is the opinion that matters the most. This is what democracy looks like. Shes been, powered by cable. The head of homeland electric will make this