A Public Service along with these other television providers. Giving you a front row seat to democracy. The suprem court heard oral argunt on whether the consumer fincial Protection Bureaus ndg structure is unconstitutional. The case stems from thegencys payday lending role, the sixth rcuit court of appeals previously ruled against it prompting the federal government to appeal e decision to the supreme cot. The justices have through june 2024 to issue a ruling. We will hear argument this morning in case 22 448, Consumer FinancialProtection Bureau versus the Community Financial services association. Mr. Cef justice and may it please the courtthe Circuit Decision in this case is the firs tim any court in our nations historyas held that congress vioted the appropriations clause by enacting a statute providing funding. Roviding funding. This court shouldphold the cfpbs funding statute because it is firmly gunded in constitutional text andn historical practice datin back to the founding. The text of the conitution shows that when the framers o to limit Congress Appropriations authority they did so exprely. While the framers resicted appropriations for the army to two years, they appli no similar limits on appropriatis for any other agency. History confirms that. Since theounding congress has consistently funded agencies throh standing appropriations that are not timelimited and that provide significant discretion over how much to spend. The First Congress did exactly this at theer first agency it created the Customs Service, and the same is true for of the founding era agencies including th post office, the national mint, the Patent Office, revee officers and t national bank. And congress is use this kind of appropriation as t default whenunng financial regulars including the Federal Reserve board, the office of the comptroller of the currency, the federal deposit insurance corporation, the National Credit union adminisn, the Farm Credit Administration and the federal housiance agency. The cfpbs appropriations that squarely in this unbroken of the historical practice. In fact, congress exercise significantly more discretion and control over the bureaus funding by capping itsual appropriation in an amount that lower than many other agencies budgets. Respondent argued the combination of features in the cfpbs statute violate som previously unrecognized constitutional line. At the bureausppropriation is materially identical to the numerousng statute i just sted, and respondents concede thtutes are constitutional. This court to reject respondents attempt to gerrymanderedble t fit the cfpb alone without providing aent theory about to interpret and apply the appropriations clause. I welcome the courts questions. General, oth than passing and appropriations law, are there any limits on what congress can do . So i think at t outset as your question touches on, Justice Thomas come the term appropriation itself contain some essential requirements. So that term is defed to mean about t provides for funding d the specifi both the source and t purpose of the fundin thats how it appropriation was defined at the founding. It how its always been understood and that still so it is defined today in sources like the junior redbook which is congresses own appropriatis treaty. We think at the outset is not just any old ball but a lot of the contains beseeches the constitutes an appropriation. I think the question becomes are the other limits out there on how congress c sucture funding for particular type of activities or government functions we know from the Army Appropriations clause the awer is yes with respect to that partul governmentunction. Theres a duratna limit and its based onhe nature of activity because the framers were specifically cceed about having atanding army. The Army Appropriations clause itself demonstrates there are not otherwise constraint in the appropriations clause that would liongress at how it decides to structure t funding. So beyond theal almost skeletal requirements duration and purposere is an, if i hear youre right, there is no we dont think the riations clause places of limits on congress itselfhen it enacts the funding statute. But i do want to emphasize that our argument als relies heavily on history. If you have in mind some kind of funding stute or arrangement that is never been done at all of this nations history i think the court could take that into account in a future case. Here that we have a spefic type of appropriations, a capped lumps appropriation that is standing for a Single Agency. Ou historical 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 seration of powers . It seems tha at least when i did, w an executive branch, that congrs exercise appropriation to check the executive brah to some extent. If tre 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 critical albert of the separation of powers that congress has control over the purse. Our argument is that congress has exercised that power. This court isooking at a statute that congress itself enacted tha set up this funding mechanism for the cfpb which is similar in kind to the way tha congress has funded of the financial evierate the kind of exacting ctrol that congress usually exercises in the appropriations pcess . I dont. To the extent this question is presentn the annual appropriations as a counterpart, i think the question bomes does the constitution limit congress with respect to the duration o appropriations . Is there explicit limit and the text the court can define that Means Congress in contrast to other ls which of course can remain in effect unt the future congress acts, is congress limited in how long to leave appropriations in effect . There i tnk the Army Appropriations claus does a lot of work because its not like the framers were not aware of this dynamic. They thought specific about the fact aropriations like all other lawsight be continuing indefinite until the future congress acts, and they were concerne about that with respect to a Standing Army but they didnt othwise oo limitess authority. General o of the things that strike me as of reading it, you have a very aggressive view of congress authority under the appropriations clae. Im not sing remotely that thats not correct but it struck me, you reprent the executive branch as well. An its a very strong power given to congress. And it struck m that the rean you would want to defend that is because it gives tm more power to give away. Legend has it there have been when the same party controlled both houses of ss andhe white house, and in that situation you can present in a way that mighteem unusual to the framers. So keeng in mind that in balance, in other words, its kind of paral, the more power you give congress i think, i think this is yourends argument on the other side, theres more that it can give away and enhance the authority of the executive. Is that a, and unpersuasive concern . Certainly i dont thi it is unpeuasive concern but built into your question as understood, mr. Chiefustice, was the idea that maybe congress coul 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 histo should play a powerful role in trying to understand the limits or scope of homage congress can give away when it becomes t much. Here the court does need to articulate any outer limits because we have a specific type of appropriation that is far more constrained and many that conversation ected throughout history because congress provided fundingor Single Agency and capped that about the fun in an amount not to exceed the cap set by congress for its pretty unusualo have that agency drawing, been able to request how much ever wants suect 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. I didnt see any particularl compelli historical analogues to that. Well let me speeded t the extent that takes away from the apopriations power, its equivocally enhances the power of the executive. So i disagree that theres anything unprecedented about this funding arrangement when you look at the relevant constitutional value of protecting congresses prerogative. I know there are a lot of differen moving parts and pieces to the arguments respondents hav made it as understand it they are attacking four features of the funded facts statute or the standin at standing appropriations, remains a place and is not unlimited. That against the director of the cfpb some discretion toct within the statutory cap and requesting the funding. Third, that t cfpb has enforcement and regulatory functions and forth come asour question touched on, that the cfpbs funding comes in the source that is not in the words constrained by market fces. But we have numerous 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 conraint are relevant but even taking the argument on s own terms i can give you foundi 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 uncappe these were powerful regulor entities. The Customs Service aboard ships and seize vessels at the spec recos and conduct searchesnd level penalties and collect fis, and just a way to avoid that kind of regulation. The market constraint theory that the users could just opt out our regat parties could decide not to fun the operations doesnt apply to those agencies. Ittill because of many of the financial regulators today took the ones would put on that list are the federeserve 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. Da i sorry to interrupt. Is that essential feature to the constitution of this provion or couldongress passed the same law with no upper limit allowing the executive branch to termine however much it wished take . Site dont think that congress would have to provide statutory specified amount but it would of course have to specify the purpose the funding. Budgets on the amount, your threeoet turn on there being an upper limit . Are theory doesnt turn on it because take 1 trillion, if, if you wi to do so. No, because congress itsf ha specified the direct is limited to the amount the phrase when nec to carry out federal f the president determines that was recently necessary to ta a trillion dollars, that wod satisfy your concern. And on the appropriations claus 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 speed 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 immemorial in 1789 on. How about on the lower end of the skill . What is the president o was the appropriate s im not going to take any money. I dont like the cfpb, you know. I dont think it is necessary to take another dollar. Uld the president do that . I think that would pilot t statute as well stop talking abtppropriations clause. So i think that Congress Self has specified the purpose and so i think tha if the president for the cfpb director didnt comply, that would be violation and i would expect congress t sp in and change the funding mechanism. L of these possibilities exist with respect to countless other appropriations. All of the other financial regulars for example, likewise understand the practical alities and i appreciate the and it is to the statutory arguments. Im just trying to understand. Is anything that would prohibit e president from the appropriations clause clg whether to take zero dollars whh we for reestablishing a take 1 trillion . I dont think the appropriations clause would b a check, although of Course Congress cou ercise its authority and the spar over the purseo chain to the discretion that is provided to require the president or the direct of the agcy to take a particular amount. Sk a question about the treasury . The professors of constitutional law history say listen, the appropriations clause doesnt apply at all because these funds not being drawn from the treasury you agree with that . Itsothe argument you made. We are not making that argument. We accepted the appropriation clause was the weakest of the trim and t constitution referred tohe public treasury as a geral matter, that specifically to the treasury departnt at the time of the founding ratification the Treasury Department had not en been created and thats also how this court has dcred the scope of the approiaons clause in cases likepm versus richmond were referred to public monies generally. Of coursehe contrary approach would expose the gaping lphole 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 are the money, the monies in the cfpbs budget appropriated moneys so for constitutional rposes just because congress established the funding statute and it has both the source and funny. Wiin the meaning ofhe constitution this counts as an appropriio thats a opm and executive branch, ngo and congress under since the source o the funding. What to make of the provisi in doddfrank act which has that the bureau fund, will, shall not be construed to be Government Funds appropriate meys . So that was congress try to control for the interaction between this funding mechanism and o the background rules that apply to appropriationshe go through the annual appropriation process. There are rules about things like procurement and whether you can use appropriated moneys in essenc t litigation expenses, miscellaneous statute ruis agency to deposit the renues in the general treasury and some of his background rules would actually interreith the funding that conversation tended for this agency. It was just try to control for the interaction there. Other agencie he that statement is incorrect. In theoddfrank act itself is incorrect. These are approprte moneys . I dont thi that statutory provision was taking stance on the constitutional question of whether this fits the definition of an appropriationitn the meaning of the constitution. As i mentioned congress has used this formulation for other agencies as well like thecc and the f and again its all intended to just allow congress to control for the interacti of various statutory provisions in this context. Doesnt does it use it t office, for the mint and other agci of that nature. Was justice somor, im not familiar with whether this particular language appears in the state governing the post office. The post office was originally created and founded in 1792 a so its not clear some of these of the background rules existed. Certainly we can point to an example today including the occ and the fca whi had the same lin wood and its meant to ensure again theres no sruption with the funny operating in way congress can i go back to Justice Thomas question . Theres appear to be, im sorry, a bit congested,he appears to be bound up in this question of the appropriatisill, the separation of powers and nondelegation. Now, i know the court below s nondelegation was forfeited. Notui sure i understand it, maybe you could ela it to me how separation of power is dierent from nondelegation. Why wasn the other . Buto you see those other prisns, separation of power, nondelegation, asaving a place inther constitutional provisions besides the appropriations clause . And if it has no place here, why t . Yes. I think obviously these concepts of separation of powers and the scopefhe appropriations clause and nondelegation principles have in my respects potential overlpi functions in this context. We interested respondents to be making an argument about t appropriations clause in particular and tha fth circuit found they had that simply raise a nondelegation challenge. I guess what i would say as t the extent the court ishiing about this from the perspective of general separation of powers principles, the things the court gerally consults and understanding the structural provisions of the constitution are, first, the tt and second, the history. Those indats of intent are overwhelmingly on ourid the court is thinking about some delegation principles there you uld have to look at history andsustice scalia emphasized in hisonrring opinion, if you look across the coue of history from 1789 on, i has it has been in the appropriaon context marked by very broad delegations of authority to the executive branch to sndithin the bounds set by cones t very first appropriation laws were structured like ts one and a sense of providing executive cldpend up to a cap set by congress. I think t claims what you think about the argument reonse our present is under the approiaons clause but if mechanize as aoue to 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 justi gorsuchs talking about . In your reply brief o page 18 you discussed a standing appropriation of u t a quadrillion dollars for the president to find besides the army. So just on this question of where your oer limits are and what theory we might use to s there are some limits, what do you wto say about that sort of statute . Would that b a constitutional violation . If so, why so . And why is that diffentrom this . Yes. So tttatute as we understand it would be completely unprecedente it would eectively take the whole of congress appropriatnsuthority and tr