But is FHFA different than CFPB here?: "Looking more granularly, the agencies to which
the CFPB points as similar are in fact materially
distinct from an Appropriations Clause perspective.
See Pet.Br.23. The OCC, the Federal Housing Finance
Agency, the National Credit Union Administration,
the Federal Deposit Insurance Corporation, and U.S.
Postal Service all generate most of their revenue from
fees or assessments on the parties they regulate or to
which they provide services.
4
This is a long-
established mechanism for executive entities to obtain
funding without going through the regular order of
appropriations, as even the CFPB and its amici seem
to acknowledge.
5 See Pet.Br.22; Dodd-Frank.Br.17.
This historical practice provides “contemporaneous
and weighty evidence” of the constitutionality of that
practice. Seila Law, 140 S. Ct. at 2197. But the CFPB
is not funded by imposing fees or assessments on the
entities it regulates or to which it provides services. It
therefore cannot invoke that narrow historical
exception.
The power to raise money via fees is also
inherently limited. This Court has held that a valid
agency-imposed “fee” can reflect only the costs incurred by the government or the benefit obtained by
the recipient, because allowing agencies broader scope
to raise money under the false label of “fees” would
trigger the “forbidden delegation of legislative power”
by “carr[ying] [the] agency far from its customary
orbit and put[ting] it in search of revenue in the
manner of an Appropriations Committee of the
House.” NCTA, 415 U.S. at 341–42; see also 31 U.S.C.
§ 9701(b)(2). Thus, “fees” must represent “a ‘value-for-
value’ transaction, in which a feepayer pays the fee to
receive a service or benefit in return, and is thus
better off as a result of the transaction.” Trafigura
Trading LLC v. United States, 29 F.4th 286, 294 (5th
Cir. 2022) (opinion of Ho, J.). This operates as an
inherent limit on an agency’s ability to self-fund. The
CFPB has no such limit, however.
The CFPB asserts that the Fed’s assessments on
Federal Reserve Banks are a similar funding
mechanism to other financial regulatory agencies. See
Pet.Br.23. However, the Fed is unique among
financial regulatory agencies because it assesses the
Federal Reserve Banks to fund its operations."
