I was reading a piece at Vox.com and one sentence jumped out at me:
The CFPB, however, is unusual in that its funding first passes through a different federal agency, the Federal Reserve.
What’s wrong with that sentence?
Answer (highlight to view)
The Federal Reserve is not a federal agency. It receives no money appropriated by Congress.
I don’t know, sometimes its called an independent agency, but certainly not simply a different agency.
I was listening to SCOTUS arguments on the student loan case this morning, and a lot of discussion was centered on the state challengers reliance on a Missouri independent agency (MOHELA) for standing. It receives no money from the State, its obligations are not those of the state, and it can sue and be sued in its own name. It seems pretty thin gruel to me to base standing, but we’ll see.
I agree standing is an issue — since the administration crafted the program to make it hard to challenge in the courts based on standing.
OTOH, the courts (and this supreme court) really dislike broad proclamations of executive power based on “emergencies” and obscure laws decades old that are tangential to the pandemic and referenced to evade judicial challenge. The eviction moratorium, vaccine mandate, and bans on gatherings for religious services are recalled.
In some sense, the more clever the attempt at evasion — the more the supreme court may feel it bound to push back.
@Curious, I think the basic nature of the program (free lunches) is one that avoids standing because no one in particular is injured. The program was certainly modified to improve on that, in particular by making it optional, but it was already in a category of limited judicial review. In comparison, most (all?) of the other emergency orders involved restrictions on some important freedoms (movement, assembly, religious worship, bodily integrity, commerce, and property rights). So I don’t see this as clever, so much as the result of long-held precedent that the most likely injured party (future taxpayers) don’t count.
I should add I stopped listening when the Nebraska Solicitor General took his turn to be questioned and was explaining how Missouri law works. I thought that was very weird and at a minimum utterly unuseful.
So I don’t see this as clever, so much as the result of long-held precedent that the most likely injured party (future taxpayers) don’t count.
I suspect that’s where the court may agree and disagree. Agree the precedent holds but disagree that is the only way to achieve standing in this case.
Congress is actually the most logical candidate to sue; but I am skeptical the courts are going to let the executive create trillion dollar giveaways based on catch-all clauses in decades old obscure law. Courts will find a way to get to the merits if they want to.