On CFPB'S unique funding mechanism (does it apply to FHFA as well?): "In constructing the CFPB this way, Chief Justice Roberts stressed, “Congress deviated from the structure of nearly every other independent administrative agency” in the nation’s history—and certainly from the structure of those agency structures considered in the Court’s prior decisions."
"Novelty in agency design is constitutionally suspect."
Will Justice Thomas's dissent in Seila Law be addressed in CFSA v CFPB?:
"Although the chief justice portrayed his approach to severability as the most minimalist course, two justices disagreed. In dissent, Justice Clarence Thomas charged that selectively choosing which statutory provisions to enforce and which to erase is, in fact, a more aggressive and activist approach to severability than simply denying enforcement of the agency order at issue. Such an approach is more restrained, Justice Thomas argued, because it does not require taking a blue pen to Congress’s work. Moreover, Justice Thomas averred, the alternative of simply refusing to give legal effect to an order from an unconstitutionally constructed agency is more consistent with the original conception of the judicial power, which extends no farther than “the negative power to disregard an unconstitutional enactment.”
When's the last time the Supreme Court used a bulldozer on a major Act? I just see the Supremes demonstrating ONCE AGAIN that they are afraid of "disrupting the status quo" and years of an Unconstitutionally Structured Federal Agency actions regulating a large swath of the American Economy. Especially in regards to Dodd Frank:
"Chief Justice Roberts’s tendency to engage in constitutional avoidance appears to be driven by his desire to avoid unduly disruptive results. Invalidating a federal statute is no small thing, and striking down a federal law will often prove disruptive to federal programs and congressional designs."
Written prior to ACB and Jackson additions:
"Whatever the Court was, it is now truly the Roberts Court. The chief justice was in the majority for 98 percent of the Court’s decisions in the October 2019 term. He only dissented twice. The chief’s preferences as to outcome prevailed more than those of any other justice. And, as the most senior justice, he has the additional power to shape the Court’s jurisprudence by deciding who will author which decisions, and when to keep opinion writing duties for himself."
"In his confirmation hearing, Chief Justice Roberts identified the foundation of his minimalist approach. “Judges are like umpires” he said, “[because they] don’t make the rules, they apply them.” At the time, many commentators dwelled on his suggestion that deciding cases was like calling balls and strikes, but this missed his larger point: “Nobody ever went to a ballgame to see the umpire.” Whatever its other faults, Chief Justice Roberts’s minimalism is his way of trying to make the umpires less important, keeping the focus on those who play the game. While this approach may frustrate those who seek greater consistency and coherence within the Court’s jurisprudence, and may also be a bit naïve about the judiciary’s role in American government today, it is an approach to which the chief justice is committed. And as the October 2019 Term suggests, it is an approach that will continue to have a significant influence on the outcomes of major cases that come before the Court."
