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William & Mary Law Review Online

Zois Manaris

Abstract

This Article demonstrates that CFSA's [Community Financial Services Association of American v. CFPB] introduction of antinovelty into the self-funding space, including its particular antinovelty approach, poses an existential threat to any and all agency self-funding. On its face, this may seem like something that will only worry the more functionalist or more liberal crowd—likely because so much of the recent discussion surrounding agency self-funding has revolved around the polarizing CFPB. But even those who might want the CFPB struck down and those who subscribe to the antinovelty rationale as a general matter (between those two camps there is surely significant overlap) may not wish to call into question the constitutionality of all self-funding. The CFPB has long caught conservative ire, to be sure, but Republicans have staunchly defended the budgetary autonomy of agencies like the OCC and the FHFA. For every congressional conservative ready to hold up the CFPB’s consumer protection mission if it lost its insulation from the appropriations process, one would imagine there exists a congressional progressive willing to do the same with the missions of the OCC and FHFA. Antinovelty’s malleable methodology makes it such that no self-funded agency will be safe from the rationale’s wrath. It may start with the CFPB, but it will get to your favorite agency soon enough. This unworkability is dangerous and leads to the inescapable conclusion that the Supreme Court must expel the rationale from the agency self-funding context when it decides this case.

This abstract has been taken from the author's introduction.

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