Justice Kagan’s Intriguing Concurrence in This Month’s Consumer Financial Protection Bureau Case

Posted in: Constitutional Law

A few weeks ago, the U.S. Supreme Court rejected the notion that the funding scheme for the Consumer Protection Finance Bureau (CFPB or Bureau)—a powerful regulatory agency created by Congress after the 2008 Financial Crisis to protect fair treatment of consumers—runs afoul of the so-called Appropriations Clause of Article I, section 9 of the Constitution. (For more on the details of the challenge and what the Court’s holding means for the CFPB going forward, see this column I posted last week.) Challengers to the CFPB had argued that because, under the Dodd-Frank statute creating and empowering the CFPB, the Bureau receives its operating monies from the earnings of the Federal Reserve System rather than via a yearly budget law approved by Congress, the strictures of the Appropriations Clause had not been respected. But in Consumer Financial Protection Bureau (CFPB) v. Community Financial Services Association of America, Ltd., the Court found otherwise. In an opinion of the Court for himself and six other Justices (Chief Justice John Roberts and Justices Sonia Sotomayor, Elena Kagan, Brett Kavanaugh, Amy Barrett, and Ketanji Jackson), Justice Clarence Thomas explained that:

Under the Appropriations Clause, an appropriation is simply a law that authorizes expenditures from a specified source of public money for designated purposes. The statute that provides the Bureau’s funding meets these requirements. We therefore conclude that the Bureau’s funding mechanism does not violate the Appropriations Clause. [This conclusion is dictated by the Constitution’s] “text, the history against which that text was enacted, and congressional practice immediately following ratification.

So far, so straightforward. But four Justices who joined the majority opinion in full also signed onto a concurring opinion (authored by Justice Kagan). These four Justices (Kagan, Sotomayor, Kavanaugh, and Barrett) didn’t disagree with anything the opinion of the Court said, but wanted to make clear that:

[Not only would] [t]he CFPB’s funding scheme, if transplanted back to the late 18th century [at the founding], . . . have fit right in . . . [t]he same would have been true at any other time in our Nation’s history. Long settled and established practice may have great weight in interpreting constitutional provisions about the operation of government. And here just such a tradition supports everything the Court says about the Appropriations Clause’s meaning. The founding-era practice that the Court relates became the 19th-century practice, which became the 20th-century practice, which became today’s (internal quotations and citations omitted).

The Kagan separate concurrence is quite interesting for several reasons. For starters, note the unusual lineup. Kagan was able to attract Sotomayor, Kavanaugh, and Barrett (who also joined the majority opinion) but the three in the majority who didn’t seem to want to be associated with Kagan’s content were Thomas, Roberts, and Jackson (an interesting trio). (Justices Samuel Alito and Neil Gorsuch dissented, and thus aren’t particularly relevant to my discussion today.)

I say “didn’t seem to want to be associated” because, although Thomas’s opinion for the Court nowhere responds to, or even mentions, the concurrence, one can assume that had these three Justices agreed with the Kagan Four about the relevance and content of post-founding practice in the appropriations realm, Thomas’s opinion simply could have incorporated the content of the concurrence into the opinion for the Court after Kagan circulated a draft concurrence (or a memo outlining its substance).

All of this raises the question of why the Thomas/Roberts/Jackson trio didn’t embrace what Kagan wrote. (One rather uninteresting possible answer to that is that they didn’t read post-founding practice the way Kagan does, but she seems to be on pretty firm footing there.) And this in turn raises important questions of the meaning and centrality of “tradition” in the current Court’s approach to constitutional adjudication.

The shibboleth of “history and tradition” seems increasingly important to the current Court’s constitutional jurisprudence. To be sure, the Court has invoked “history” and “tradition” (both separately and together) in many, many cases over many decades. For example, about three decades ago, in 1997 in Glucksburg v. Washington (involving the alleged right to assisted suicide), the Court said that the due process “Clause specially protects those fundamental rights and liberties which are, objectively, deeply rooted in this Nation’s history and tradition.” To the same effect was language from a plurality opinion authored by Justice Antonin Scalia a decade earlier in 1989 in Michael H. v. Gerald D. (involving the question whether an allegedly biological father could assert parental rights as to a child born into the marriage of a woman and a different man).

But many Court watchers seem to think that with the addition of Justices Kavanaugh and Barrett to the Court, there is now a durable majority to deploy some form of these concepts more routinely and more ambitiously. For example, in the Dobbs abortion ruling two years ago, the majority declared flatly (with respect to the question of how to determine whether the due process clause protects abortion), “we examine whether the right at issue in this case is rooted in our Nation’s history and tradition.” A year after Dobbs, in the Bruen Second Amendment case, the Court observed that in order to have its law sustained, New York needed to “demonstrate that [its] regulation [of gun possession and carry] is consistent with this Nation’s historical tradition of firearm regulation.” (The word “tradition”—or some form of it—appears over 50 times in Bruen.)

In light of the fact that, as one recent law review symposium introduction observed, “in a series of recent cases, the Supreme Court has emphasized history and tradition as central to determining the meaning of the Constitution,” many scholars are devoting careful and increased attention to the precise content and contours of this tandem.

Among the most important questions in this regard is how the two concepts fit together, especially in an era of professed commitment by the Court to originalism. The “history” part seems pretty easy. After all, how can anyone interpret text without some context, and context is just a fancy word for history. As the CFPB majority illustrates, the modern Court purports to have a commitment to, as my brother and I said in an amicus brief to the Court a few years ago, “interpret the Constitution as Americans publicly understood the document when adopting it, with special attention to governmental actions immediately preceding and immediately glossing the enacted text.”

But “tradition” is a more complicated matter. Certainly, traditions leading up to and ensuing from enactment of constitutional text can bear on understandings of adopted words. (That is what was meant by “immediately preceding” and “immediately glossing” in the formulation above.) But if by tradition one means (as the Court seems to) legal actions (and societal practices) that postdate the enactment of constitutional text by a large enough span of time that such actions can’t reasonably be said to be probative of the understandings of the lawmakers at the time of adoption, things are trickier.

None of this is to say Justice Kagan’s invocation of nineteenth- and twentieth-century traditions in resolving separation-of-powers cases is itself unprecedented. As she pointed out, the Court has made use of such post-enactment patterns of conduct before. But such use itself raises many questions.

One is: what happens when such tradition conflicts with the “governmental actions immediately preceding and immediately glossing the enacted text?” In the CFPB case, Justice Kagan says everything lines up consistently, in which case perhaps one needn’t make any use post-enactment tradition (in the same way that stare decisis doesn’t do any decisional work if there is agreement that the earlier ruling was correct). But was her implication that such post-enactment tradition could override relatively clear original understandings? In some separation-of-powers cases (such as Dames and Moore v. Regan) the Court has made statements that might be understood to mean more recent traditions could displace original understandings, but in other rulings, such as the famous 1952 Youngstown steel seizure case, involving the division of power between Congress and the President, the Court has said things like:

It is said that other Presidents, without congressional authority, have taken possession of private business enterprises in order to settle labor disputes. But even if this be true, Congress has not thereby lost its exclusive constitutional authority to make laws necessary and proper to carry out the powers vested by the Constitution.

Perhaps post-enactment traditions can be especially helpful in resolving structural disputes under the Constitution when there is no clear sense of enactment-era understandings. In the 2014 Noel Canning v. NLRB case, for example, involving so-called “recess appointments,” the Court relied extensively on presidential practices many decades after the founding, but also made clear that the question of the scope of presidential power to make recess appointments didn’t come up shortly after constitutional ratification, since Congress didn’t create recesses between terms the way they have come to do more recently.

Justice Kagan in the CFPB case invokes post-enactment traditions and practices in settling (or as some scholars would say, “liquidating”) the meaning of provisions bearing on relationships between co-equal government branches, that is, separation of powers. What about other structural norms, like federalism? In a case (cited by Justice Kagan’s CFPB concurrence) a few years ago (Chiafalo v. Washington) upholding very broad state control over presidential electors, Justice Kagan’s majority opinion seemed (wrongly, in my view) to ignore the traditions of the first 170 years after ratification in favor of a (thin) set of practices over the past several decades. As I have previously written:

She observed that for almost all of the nation’s history, presidential electors themselves have overwhelming followed the wishes of the voters (or legislatures, in the early days before popular presidential elections) of the states. She inferred from this that everyone agreed, as a legal matter, that the electors’ job is to do nothing other than ratify and implement the wishes of the people who select them. Maybe electors generally have been quite deferential to the wishes of the selectors (although, as Justice Kagan conceded, there have been hundreds of instances—including in the election of 1796—of elector independence, or “faithlessness,” a less flattering term.) But all that necessarily shows is that electors (and others) may have felt there is a moral or prudential duty for electors to defer—not that they could be legally compelled (under pain of penalty or replacement) to defer. Justice Kagan pointed out that many states have been requiring electors to take a pledge to follow the wishes of voters since about 1900, but—at a key but understated moment in her opinion—she observed that state laws seeking to impose punishment upon or replacement of electors who show independence [the legal issue at stake in the case] go back only 60 years. That means for the first 170 of the Constitution’s 230 years there was no tradition of legal compulsion for electors. Justice Kagan characterized the imposition of punishment as simply an extension of the tradition of requiring pledges (itself something not done for the Constitution’s first century), but if the question is whether electors enjoy legal independence or not, then the relevant tradition ought to focus not on moral-suasion devices but on legal sanctions.

Perhaps Justice Kagan’s opinion in Chiafalo was simply intellectually careless in discerning the right level of legal generality at which to examine tradition (in which case the ruling was wrong but limited), or perhaps she really did believe that the last 60 years altered the (seemingly agreed upon) meaning at the founding. If the latter, she needed to explain a lot more.

When we move from structural matters to individual rights, the idea that recent traditions, trends, and consensuses can establish rights that were not identified and agreed upon at the time of enactment seems more defensible. In this regard, note that even Justice Alito’s opinion in Dobbs discussed 20th-century treatment of abortions by states. If the only question is what enactors of the due process clause in 1868 understood with regard to abortion access, then why are the actions of states 50 or 60 years hence even relevant? (In the Michael H. case, Justice Scalia also looked at, among other things, “modern statutory and decisional law” relating to paternal rights (emphasis added).)

And there is clear precedent in the substantive due process realm that recent (rather than just 1868) traditions can be dispositive. For example, in the 2003 case of Lawrence v. Texas, invalidating Texas’s criminalization of gay and lesbian conduct, Justice Anthony Kennedy observed for the Court that “we think that our laws and traditions in the past half century are of most relevance here.”

Nor is Lawrence the only such case where modern traditions and trends likely did a lot of the work. Griswold v. Connecticut (involving contraception) is a 1965 substantive due process case that even conservative Justices (who believed Roe v. Wade was completely illegitimate) seem to think was correctly decided. For example, in the Planned Parenthood v. Casey ruling in 1992, Justices O’Connor and Kennedy (who had both criticized Roe and who preserved some watered-down version of it primarily for stare decisis reasons) expressed their view that Griswold was correctly decided. (I do note that Justice Thomas in Dobbs, writing only for himself, suggested that Griswold needed reconsideration, even though he didn’t tip his hand on how that reconsideration should come out.) If you search for a workable distinction between Griswold and Roe, one is that by the time of Griswold, Connecticut was a true outlier—indeed, the only state that seemed to be enforcing prohibitions on contraception. By contrast, in Roe, there was no such emerging tradition or consensus; whereas Griswold struck down the law of a single state, Roe struck down the laws in place in 49 or all 50 states. The Dobbs Court itself makes this specific point.

But even if modern traditions can carry the day with regard to personal rights, we still must ask how that squares with originalism’s commitment to applying the text as it was understood at the time of enactment. While that is a big topic on which many scholars are engaged, let me offer at least three possibilities.

First, the Ninth Amendment clearly says (and reflects the framers’ understanding and expectations) that unenumerated rights would exist and be protected. One way to give content to the Ninth Amendment is to identify liberties supported by modern tradition.

Second, the Privileges and Immunities of national citizenship in the Fourteenth Amendment may be read to protect activities as to which there has emerged a national consensus, or tradition, of protection. If such was the way the Fourteenth Amendment’s enactors understood those words, then the tension with originalism dissolves.

A third concept (being written about by, among others, Professor Jud Campbell) is that of “general fundamental law” in which the framers believed, and whose content would evolve over time.

Each of these methods of harmonizing reliance on modern tradition with originalism in the individual rights realm raises additional questions. For example, once a right is recognized on account of a modern tradition, can it ever be undone if states desire to invade a sphere they had previously acknowledged as beyond regulation? Or is rights-recognition in this regard a one-way ratchet? (A similar question arises under the Eighth Amendment once a punishment practice is deemed cruel and unusual on account of its modern rareness.) But these and other questions will have to await further columns.

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