Supreme Court rejects CFPB funding challenge that was too extreme for even Clarence Thomas

It's a sign that your legal theory is too extreme when Justice Clarence Thomas leads a lopsided majority in rejecting it. That just happened in a case that highlights not the greatness of the Supreme Court but, instead, the radicalism of the even-further-right 5th U.S. Circuit Court of Appeals, which the Thomas-led court had to reverse.

The appeal involved a payday lender-backed challenge to the Consumer Financial Protection Bureau. Breaking new ground, a Donald Trump-appointed 5th Circuit panel deemed its funding structure unconstitutional. The watchdog agency is funded through the Federal Reserve instead of annual appropriations from Congress. The panel said that violates the Constitution’s separation of powers and appropriations clause.

At the oral argument in October, President Joe Biden’s solicitor general, Elizabeth Prelogar, explained that it’s “the first time any court in our nation’s history has held that Congress violated the Appropriations Clause by enacting a statute providing funding.” Justice Elena Kagan told the lawyer who argued against the CFPB (Trump’s solicitor general, Noel Francisco) that he was “flying in the face of 250 years of history.” The consequences of ruling against the agency would be far-reaching, Kagan noted at the hearing, rattling off other government programs that could also be endangered.