Justice Clarence Thomas breaks with conservatives on decision to keep CFPB funded

 May 29, 2024

Supreme Court Justice Clarence Thomas surprised court observers last week when he made a major split from his conservative colleagues on the high court. 

According to Fox News, Thomas broke with the other conservative justices on the decision to keep the controversial Consumer Financial Protection Bureau (CFPB) funded.

Thomas even authored the majority opinion that ruled the high court would keep the CFPB alive.

The CFPG, which has been rife with controversy since its inception, was created in part by Sen. Elizabeth Warren (D-MA) in 2008 after the market crash in an effort to offer consumers protection from financial schemes.

The decision

The ruling that keeps the CFPB alive was a 7--2 decision.

Fox News noted:

The financial watchdog agency bypasses typical congressional appropriations and simply requires the CFPB director to make requests of the Treasury Department for funds as needed. The banking industry parties challenging the CFPB say that is unconstitutional, citing the appropriations clause.

A majority of the justices disagreed with the banking industry parties, writing, "In this case, we must decide the narrow question whether this funding mechanism complies with the Appropriations Clause. We hold that it does."

"For most federal agencies, Congress provides funding on an annual basis. This annual process forces them to regularly implore Congress to fund their operations for the next year. The Consumer Financial Protection Bureau is different. The Bureau does not have to petition for funds each year. Instead, Congress authorized the Bureau to draw from the Federal Reserve System the amount its Director deems ‘reasonably necessary to carry out’ the Bureau’s duties, subject only to an inflation-adjusted cap," Thomas' opinion read.

He added, "Although there may be other constitutional checks on Congress’ authority to create and fund an administrative agency, specifying the source and purpose is all the control the Appropriations Clause requires."

Justices Samuel Alito and Neil Gorsuch "strongly dissented," writing, "The Court upholds a novel statutory scheme under which the powerful [CFPB] may bankroll its own agenda without any congressional control or oversight."

"Willing to go it alone"

Legal experts weighed in on Thomas' surprise position on the matter, with most of them reiterating that Thomas does what he thinks is right, and is willing to "go at it alone" on certain decisions if need be.

"Justice Thomas does what he thinks is right, follows the text and its original intent when it was written, and doesn’t mind if he’s the only dissenting justice," John Shu, a constitutional lawyer.

He added, "If other justices decide to agree with him, that's nice, though he’s willing to go it alone."

"Justice Thomas is a true originalist and textualist, as is Justice Alito, and in this case, they interpret the term ‘appropriations’ in different ways, which further proves that the justices do not vote in lockstep as some erroneously claim."

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