“No, because I think that Congress itself has specified that the director is limited to the amount that’s reasonably necessary to carry out federal consumer financial law,” Prelogar explained. “But, if the president determined it was reasonably necessary to take a trillion dollars, that would satisfy your concern and, on the appropriations clause itself, has no upper-limit constraint?” Gorsuch continued. “I think that that would violate the statute, and the same theoretical possibility exists with all of the other financial regulators I’ve been discussing,” she noted.
Gorsuch continued his line of questioning by changing it to ask not only whether the appropriations clause allowed a president to take “a trillion dollars,” but also whether he could refuse to take any money at all in theory. “I don’t think the appropriations clause would be a check there,” Prelogar replied, “although, of course, Congress could then exercise its authority and its power over the purse to change the discretion that’s provided to require the president or the director of the agency to take a particular amount.”
It’s possible that Gorsuch was just testing the bounds of Prelogar’s theory, but at a certain point, the discussion with him and Alito seemed to hinge on whether Congress was simply allowed to make bad decisions. Justice Ketanji Brown Jackson suggested at one point that the real separation-of-powers concerns in this case might come not from Congress or the White House, but from the Supreme Court itself. “How do we avoid the judiciary becoming suddenly a supra-legislator, just telling the Congress, agency by agency, whether it’s a thumbs up or thumbs down from our perspective about these things?” she asked. “I mean, where are these limits in the law that prevent us from overstepping our authority?”