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The US Supreme Court is currently deciding an appeal that could extinguish the US Consumer Financial Protection Bureau (CFPB). Congress created the CFPB, the youngest federal agency, in response to the 2008 financial crisis, when high-risk mortgage lending caused the largest forced displacement from people鈥檚 homes in US history.

Congress tasked the CFPB with protecting the financial well-being of consumers, tackling predatory lending, and ensuring transparency and accountability within consumer finance. Because economic security is tied to physical and mental well-being, the CFPB鈥檚 consumer protections have broader implications for public health. In addition, a new trend of hospitals and physician practices partnering with financial institutions to market medical credit cards and installment loans is increasingly burying patients deep in debt. Between 2018 and 2020, patients used these products to purchase medical care about 17 million times, amounting to $23 billion in health care costs.¹ Yet despite public support for the CFPB, recent legal developments in the US Supreme Court threaten the institution. And more, the case is part of a larger series of appeals likely to hamper the important work of agencies including the US Food and Drug Administration (FDA), the US Environmental Protection Agency, and the Centers for Disease Control and Prevention.

In Consumer Financial Protection Bureau v Community Financial Services Association of America, the Supreme Court will decide whether the US Constitution prohibits the CFPB鈥檚 funding mechanism. The federal Fifth Circuit Court of Appeals held that CFPB鈥檚 payday lending rules鈥攁nd all of the agency鈥檚 other actions鈥攁re unconstitutional. In its decision, the Fifth Circuit took issue with how Congress funded the CFPB.

The Appropriations Clause of the Constitution requires that 鈥淣o Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.鈥� The Fifth Circuit interpreted this to mean that Congress must allocate the agency鈥檚 funds annually. And therefore, because Congress funded the CFPB through transfers from Federal Reserve Bank revenue, the CFPB鈥檚 funding mechanism is unconstitutional.

But for more than 200 years Congress passed laws funding agencies through alternative means. The US Post Office is primarily funded by selling stamps. The FDA is funded largely by industry fees. Federal banking regulators are funded by assessments on banks. These (and other) examples appear to provide ample legal precedent for the CFPB鈥檚 funding. Nevertheless, for now, all of the CFPB鈥檚 law enforcement cases within the Fifth Circuit鈥檚 jurisdiction, including Texas, Mississippi, and Louisiana, have ground to a halt.

If the Supreme Court affirms the Fifth Circuit, the CFPB will lose all of its funding, the enforceability of its past regulations (including rules governing mortgage loans, credit cards, and bank accounts) will be in doubt, and the funding of other federal agencies could next be called into question. The loss of the CFPB would have serious public health consequences. In November 2023, the CFPB issued a report on unconscionable practices in collecting medical debt and issued a proposed rule preventing 鈥渕edical debt collectors from weaponizing the credit reporting system to coerce patients into paying bills they may not even owe.鈥�² Aside from making millions of health care transactions more equitable, the CFPB protects individuals in the US from economic insecurity due to overindebtedness, which is associated with both mental and physical health challenges including distress, forgone medical care, hypertension, heart disease, obesity, depression, and suicidal ideation. Conversely, those who endure more health conditions have a corresponding increase in risk of financial distress and bankruptcy.³ The CFPB鈥檚 key role in addressing the toxic cycle of debt many patients experience could be gutted by the Supreme Court.

If the Supreme Court invalidates the CFPB鈥檚 funding, the precedent will next threaten other federal agencies with independent funding, like the FDA. The CFPB, the FDA, and other agencies could face congressional gridlock and paralyzing legal uncertainty. Although partisan government shutdowns have shaken the FDA, the agency has enjoyed some independent financing through user fees, its Working Capital Fund, and COVID-19 special funding. In September 2023, despite a looming shutdown, the FDA planned to preserve at least 64% of its staff⁴鈥攁 remarkable feat, and one that may be impossible if the Supreme Court forever ends alternative funding mechanisms. Of course, some also criticize user fees for contributing to corporate capture of the FDA.⁵

Consumer Financial Protection Bureau v Community Financial Services Association of America is part of a worsening trend in which the Supreme Court is narrowing legal possibilities for how agencies are built, funded, and supervised. Consider 3 challenges occurring in parallel. In Securities and Exchange Commission v Jarkesy, the Supreme Court could invalidate the independence of administrative law judges鈥攕pecial judges hired by agencies. Currently, the US Department of Health and Human Services uses administrative law judges to independently adjudicate health care fraud and abuse, health care civil rights violations, violations of tobacco restrictions, and HIPAA (US Health Insurance Portability and Accountability Act of 1996) violations. Securities and Exchange Commission v Jarkesy could subject these judges to inappropriate pressure from White House politicos and fundraisers. Similarly, in Loper Bright Enterprises v Raimondo, the Supreme Court could invalidate the decades-old Chevron doctrine, which gives agencies necessary flexibility in implementing health-related and other laws. Lastly, in US Food and Drug Administration v Alliance for Hippocratic Medicine, the Supreme Court鈥檚 position on the abortion drug mifepristone could subject the FDA to greater judicial scrutiny over drug approvals.⁶ Together, these cases share one thing in common: they construe the Constitution to subject expert agencies to outside control, risking incalculable damage to a system of reliance on expert-based decisions.

Given falling trust in public health, we need鈥攎ore than ever鈥攁gencies with institutional protections for sound decision-making. Surveys show that a majority of individuals in the US do not hold strong trust in their health agencies, such as the FDA and the Centers for Disease Control and Prevention. Only about 34% of these individuals rate the US public health system positively.⁷ Mistrust has fostered vaccine skepticism, contributing to more than 300鈥�000 vaccine-preventable COVID-19鈥搑elated deaths through May 2022.⁸

The falling trust in US public health agencies is partly explained by structural problems with their operation. The FDA, likely the agency with the most public health influence, has been rattled by controversies largely driven by political and corporate interference. During the COVID-19 pandemic, at the industry鈥檚 behest, the US Department of Health and Human Services terminated FDA premarket review of COVID-19 laboratory-developed tests, causing a surge of poor-quality tests.⁵ Seven former FDA commissioners proposed granting protections to the FDA鈥檚 leader to ensure science-based decisions. However, in Seila Law LLC v Consumer Financial Protection Bureau, the Supreme Court held that the president must have the authority to freely terminate a single leader of an executive agency. Therefore, the Supreme Court is facilitating conditions for agencies to be encumbered by political and corporate considerations,⁹ which then engender a lack of trust.

A new majority on the Supreme Court is aggressively reinterpreting the Constitution to disempower agencies.¹⁰ However, Congress designed modern agencies to address complicated social problems that demand expert intervention. Yet it is agencies鈥� very separation from political machinations and corporate influence that the Supreme Court has discredited as unaccountable power鈥攁 framing used to disempower some of the most public interest鈥搊riented institutions.

Even if it sides with the CFPB on the question of agency funding, the Supreme Court has handpicked other appeals that give it the opportunity to continue restricting agency authority. Together, these cases highlight the importance of court reform, including expanding the court, strengthening ethics rules for the justices, and open dialogue about the anti-agency tilt of the Roberts Court.

The Supreme Court is hearing a case that may damage regulation of predatory finance, foster increasing medical and other debt, and exacerbate debt鈥檚 health harms, while also confining congressional authority to shape agencies in ways that benefit health and medicine. Even if the Supreme Court sides with the CFPB, it may use this case to shore up legitimacy while weakening agencies with other appeals this term.

Published: April 5, 2024. doi:10.1001/jamahealthforum.2024.0254

Open Access: This is an open access article distributed under the terms of the CC-BY License. 漏 2024 Aaron DG et al. JAMA Health Forum.

Corresponding Author: Daniel G. Aaron, MD, JD, S.J. Quinney College of Law, University of Utah, 383 S University St, Salt Lake City, UT 84112 (daniel.aaron@law.utah.edu).

Conflict of Interest Disclosures: Prof Peterson reported employment with the US Consumer Financial Protection Bureau from 2012 to 2016. No other disclosures were reported.