WWHD? — Should the Question ‘What Would Hamilton Do?’ Inform the Fifth Circuit’s Separation-of-Powers Jurisprudence?

In Community Financial Services Association of America v. Consumer Financial Protection Bureau, business organizations challenged a payday loan regulation issued by the CFPB. Among other points, they argued that the CFPB was structured unconstitutionally because its funding mechanism violated the appropriations clause in Article 1 of the U.S. Constitution.

The Fifth Circuit agreed, in an opinion written by Judge Cory Wilson and joined by Judges Don Willett and Kurt Engelhardt. Its holding divides from seven other federal courts that rejected this argument. The opinion—unquestionably bold and principled—leads to this question: Should “What would Hamilton do?” inform constitutional interpretation about modern-day financial regulation?