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Thursday, May 16, 2024

Separation of powers memories of a bygone era

The Consumer Financial Protection Bureau gets up off the canvas after Seilia Law and lives to fight another day.  7-2 in favor of its core funding mechanism, with J Thomas writing that this arrangement is fully consistent with the Appropriations clause.  There will be interesting things written about the intra-originalist battle between Thomas and Alito, but here I just want to call out a small point in the grand scheme of themes.  Writing just for herself, the newest justice, J KB Jackson speaks about the value and virtue of Congress developing novel mechanisms to deal with emerging social and economic problems.  While not without constitutional limits of course, Jackson's concurrence hearkens back to a position that was of substantial power and resonance in the Court of past decades, illustrated, e.g., in Justice White's dissenting opinions in Chadha and Bowsher, in the Court's important decision in Schor, in some of the public rights & jury trial cases, and even in a broad sense in Morrison v. Olsen and Mistretta.  This view offered a functionalist rendering of our separation of powers tradition, noting that the key constitutional issues could hardly be resolved by staring at either the text or excavating remote history, but, instead, by looking at the overall scheme of checks and balances.  Is this a workable system?  And, as J Jackson's brief concurrence notes, we should encourage Congress to experiment, within appropriate guardrails, with structures and rules that can assist us to tackling new wicked problems.

Of course, that she speaks only for herself illustrates how far we have travelled from this functionalist approach to separation of powers.  On the front page is the dense scrutiny of old dictionaries and the relevance of the Glorious Revolution and . . . well, you know the rest of the script.

 

Posted by Dan Rodriguez on May 16, 2024 at 11:33 AM in Daniel Rodriguez | Permalink

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