. . .So, where on earth do these awful arguments even come from?
The Fifth Circuit’s opinion in Consumer Financial mostly paraphrases Judge Edith Jones’s concurring opinion, in a case called CFPB v. All American Check Cashing (2022), which argues that “for Congress’s power of the purse to meaningfully restrain the executive, appropriations to the executive must be temporally bound.” Francisco’s brief also relies heavily on Jones’s All American opinion.
Jones, who President Ronald Reagan appointed to the Fifth Circuit while she was still a thirtysomething former general counsel to the Texas Republican Party, is known for her harsh and often cruel interpretations of federal law. Among other things, she once ruled that a man could be executed after his court-appointed lawyer fell asleep as many as 10 times during his trial for murder. Jones’s views on sexual harassment will make your skin crawl.
Her opinion in All American shows a similar level of sensitivity and rigor. Although it is thick with irrelevant quotes from men discussing the Constitution’s Appropriations Clause — at one point, for example, she quotes James Madison’s statement that “the ‘purse is in the hands of the representatives of the people’ who ‘have the appropriation of all moneys’” — Jones does not appear to cite a single government official, at any level of the federal or any state’s government, who even expressed the idea that the Constitution limits Congress’s power to make permanent appropriations.
Indeed, Jones’s opinion barely demonstrates that any human read the Constitution in this way prior to the All American litigation. Her best evidence that some person, somewhere on the globe, actually had this idea before this lawsuit was filed is a citation to a 1988 law review article, which argues that “Congress abdicates, rather than exercises, its power of the purse if it creates permanent or other open-ended spending authority that effectively escapes periodic legislative review and limitation.”
It is far from clear, in other words, whether Edith Jones’s All American opinion would receive a passing grade if a law student submitted it as their final paper in a law school seminar on congressional appropriations, as it offers no meaningful evidence whatsoever for its central claim.
And yet Jones, Francisco, and several other Fifth Circuit judges would endanger the entire nation’s economy over a theory that has no basis in any legal text, and barely any support in all of the scholarship that has ever been produced by the American legal academy since the Constitution took effect in 1789. . .
Jones, who President Ronald Reagan appointed to the Fifth Circuit while she was still a thirtysomething former general counsel to the Texas Republican Party, is known for her harsh and often cruel interpretations of federal law. Among other things, she once ruled that a man could be executed after his court-appointed lawyer fell asleep as many as 10 times during his trial for murder. Jones’s views on sexual harassment will make your skin crawl.
Her opinion in All American shows a similar level of sensitivity and rigor. Although it is thick with irrelevant quotes from men discussing the Constitution’s Appropriations Clause — at one point, for example, she quotes James Madison’s statement that “the ‘purse is in the hands of the representatives of the people’ who ‘have the appropriation of all moneys’” — Jones does not appear to cite a single government official, at any level of the federal or any state’s government, who even expressed the idea that the Constitution limits Congress’s power to make permanent appropriations.
Indeed, Jones’s opinion barely demonstrates that any human read the Constitution in this way prior to the All American litigation. Her best evidence that some person, somewhere on the globe, actually had this idea before this lawsuit was filed is a citation to a 1988 law review article, which argues that “Congress abdicates, rather than exercises, its power of the purse if it creates permanent or other open-ended spending authority that effectively escapes periodic legislative review and limitation.”
It is far from clear, in other words, whether Edith Jones’s All American opinion would receive a passing grade if a law student submitted it as their final paper in a law school seminar on congressional appropriations, as it offers no meaningful evidence whatsoever for its central claim.
And yet Jones, Francisco, and several other Fifth Circuit judges would endanger the entire nation’s economy over a theory that has no basis in any legal text, and barely any support in all of the scholarship that has ever been produced by the American legal academy since the Constitution took effect in 1789. . .
Consumer Protection opinion, or both — raises serious questions about whether those judges are fit to serve.
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