Maybe …
Ian Millhiser watched today’s first Supreme Court arguments and they were apparently as nutty as the shenanigans taking place on the House floor today, where the MAGA kooks have decided to oust their own speaker and the NY Courthouse steps where Trump is babbling incoherently during every break.
Imagine that the Supreme Court of the United States spent an entire morning debating whether penguins are the primary cause of colon cancer or whether John F. Kennedy was assassinated by aliens from the planet Venus.
That’s more or less the quality of arguments that former Trump Solicitor General Noel Francisco presented to the Court on Tuesday, as part of a quizzical effort to convince the justices to declare an entire federal agency unconstitutional.
The good news is that the Court appears unlikely to buy what Francisco is selling. All three of the liberal justices took turns beating up Francisco, with an exasperated Justice Sonia Sotomayor telling Francisco at one point that she is trying to understand Francisco’s argument and is at a “total loss.”
Sotomayor appeared to be joined in her frustration by Justices Brett Kavanaugh and Amy Coney Barrett, two Trump appointees who showed little patience for Francisco’s attacks on the Consumer Financial Protection Bureau (CFPB), the agency that Francisco is urging them to strike down. Like Sotomayor, Barrett also repeatedly pressed Francisco to explain how, exactly, his proposed interpretation of the Constitution would actually work.
By the end of the argument, even Justice Clarence Thomas — ordinarily the most conservative member of the Court — appeared fed up with Francisco’s inability to articulate a coherent argument.
The 2023-2024 SCOTUS term will feature a growing list of cases that could transform the US, its government, and our right to free speech and public safety. We’re tracking them here.
Ian has covered the Supreme Court extensively as a senior correspondent for Vox. Read more of his reporting here.
It seems very unlikely, therefore, that the Court’s decision in Consumer Financial Protection Bureau v. Community Financial Services Association will end in the CFPB being struck down — and that’s a very good thing. As the banking industry warned in a brief to the justices, striking down the CFPB would mean striking down the agency that writes the rules telling them how to comply with federal laws governing mortgages. Without these rules in place, the entire US mortgage market could seize up — taking out about 17 percent of the US economy in the process.
A decision against the CFPB, in other words, could usher in the kind of economic ruin that hasn’t been seen in the United States since the Great Depression.
Francisco also spent much of the Tuesday morning argument reiterating positions he took in his brief, which could invalidate a wide range of federal programs — including Social Security and Medicare.
At various points, for example, Francisco seemed to argue that the CFPB is unconstitutional because a federal law gives it “perpetual” funding, meaning that it is funded until Congress passes a new law withdrawing that funding. But nearly two-thirds of all federal spending is perpetual, including major social programs like Medicare, Medicaid, and Social Security.
The Community Financial case is before the justices because the United States Court of Appeals for the Fifth Circuit, an increasingly rogue court dominated by far-right Republicans, last year bought the argument that the CFPB is unconstitutional. The one good thing that can be said about that decision is that it now appears very likely to be reversed.
Even the current very conservative Supreme Court appears to recognize that the Fifth Circuit’s approach would sow far too much chaos and that it would give far too much power to judges.
Click the link to read the details of what these nuts were trying to accomplish. Obviously, we won’t know for some time if they got any traction but if even Clarence Thomas sounds skeptical I think it’s probably unlikely.
The next few years are going to be filled with lousy cases like this and adjudicated in the lower courts that have been filled with unqualified Trump nominees. The Federalist Society isn’t sending their best.