The CFPB appears safe for now

Trump Solicitor General Noel Francisco would like to get rid of the Consumer Financial Protection Bureau. Fair enough. Lots of conservatives don't like it. But if he wants the Supreme Court to do this he has to provide them with a reason.

That reason, it turns out, has to do with funding. The CFPB is permanently funded (by the Fed) up to a maximum amount each year, not by an annual appropriation from Congress. Francisco thinks that's unconstitutional, even though the Fed itself is funded much the same way. More to the point, practically every "mandatory" program in the US government is funded this way: Social Security, Medicare, Medicaid, unemployment insurance, SNAP, WIC, etc. These are all entitlement programs, meaning that if you qualify you're entitled to them. Funding is guaranteed for everyone who's entitled.

Likewise, Congress did clearly pass a law appropriating money to the CFPB. That's not at issue. So what's the problem? Francisco had his day in court yesterday and it didn't go well:

As several justices repeatedly pointed out during their increasingly frustrating interrogation of Francisco, Trump’s former solicitor general had a difficult time pinning down why, exactly, he thinks the CFPB is unconstitutional.

Mainly he complained that CFPB isn't appropriated a fixed sum, but a cap:

But, as both Solicitor General Elizabeth Prelogar and many of the justices pointed out, there are gobs of federal laws — both modern and historical — that permit a federal agency to spend up to a specified cap.

Later he brought up the point that CFPB has a perpetual funding stream:

This is a common feature of US appropriations that also stretches back 230 years. Most federal spending is perpetual, including Social Security and Medicare....But his attempts to limit the scope of his argument produced baffled responses from many of the justices, several of whom were quite open about the fact that they couldn’t even understand the lines Francisco was trying to draw.

....While some members of the Court’s right flank initially appeared open to Francisco’s arguments, their patience seemed to thin as the argument went on. In his last exchange with Francisco, for example, Thomas asked the former Trump solicitor general to complete a sentence for him: “Funding of the CFPB violates the Appropriations Clause because ...”

You would think this is enough to produce an easy unanimous decision. The Constitution requires Congress to appropriate money. Congress did appropriate money, and it did so in the most common possible way.

But it appears there's likely to be one holdout. Not Clarence Thomas, because he's a loon who has goofy ideas, but our old pal Sam Alito, out of pure partisan hackery. It figures. We can only hope none of the other eight justices give him the satisfaction of not having to howl into the wind all alone.