But is FHFA different than CFPB here?: "Looking more granularly, the agencies to which
the CFPB points as similar are in fact materially
distinct from an Appropriations Clause perspective.
See Pet.Br.23. The OCC, the Federal Housing Finance
Agency, the National Credit Union Administration,
the Federal Deposit Insurance Corporation, and U.S.
Postal Service all generate most of their revenue from
fees or assessments on the parties they regulate or to
which they provide services.
4
This is a long-
established mechanism for executive entities to obtain
funding without going through the regular order of
appropriations, as even the CFPB and its amici seem
to acknowledge.
5 See Pet.Br.22; Dodd-Frank.Br.17.
This historical practice provides “contemporaneous
and weighty evidence” of the constitutionality of that
practice. Seila Law, 140 S. Ct. at 2197. But the CFPB
is not funded by imposing fees or assessments on the
entities it regulates or to which it provides services. It
therefore cannot invoke that narrow historical
exception.
The power to raise money via fees is also
inherently limited. This Court has held that a valid
agency-imposed “fee” can reflect only the costs incurred by the government or the benefit obtained by
the recipient, because allowing agencies broader scope
to raise money under the false label of “fees” would
trigger the “forbidden delegation of legislative power”
by “carr[ying] [the] agency far from its customary
orbit and put[ting] it in search of revenue in the
manner of an Appropriations Committee of the
House.” NCTA, 415 U.S. at 341–42; see also 31 U.S.C.
§ 9701(b)(2). Thus, “fees” must represent “a ‘value-for-
value’ transaction, in which a feepayer pays the fee to
receive a service or benefit in return, and is thus
better off as a result of the transaction.” Trafigura
Trading LLC v. United States, 29 F.4th 286, 294 (5th
Cir. 2022) (opinion of Ho, J.). This operates as an
inherent limit on an agency’s ability to self-fund. The
CFPB has no such limit, however.
The CFPB asserts that the Fed’s assessments on
Federal Reserve Banks are a similar funding
mechanism to other financial regulatory agencies. See
Pet.Br.23. However, the Fed is unique among
financial regulatory agencies because it assesses the
Federal Reserve Banks to fund its operations."

From the 132 lawmakers Amicus Brief: "And while then-Director
Mulvaney endeavored to answer Senators’ questions
when he appeared before the Senate Banking,
Housing, and Urban Affairs Committee in 2018, he
noted that “it would be my statutory right to just sit
here and twiddle my thumbs while you all ask
questions.” Max Greenwood, Mulvaney in Senate
Testimony: I’m Required to Be Here, But Not to Answer
Your Questions, The Hill (Apr. 12, 2018),
https://thehill.com/homenews/senate/382842-
mulvaney-in-senate-testimony-im-required-to-be-
here-but-not-to-answer-your/.

It likewise should come as no surprise that the
CFPB itself has long bragged that its revenues were
“non-appropriated funds.” See Adam J. White, The
CFPB Engages in Legal Deception, Wall St. J. (Dec. 4,
2022). The CFPB even maintained that position in
litigation in an attempt to dodge bid protests.
3 Only
now does the CFPB change its tune."

According to Collins, the FHFA is not a normal Conservator and can act in the "best interests of the FHFA or the public it serves".

You and I would be serving lengthy prison sentences if we robbed our wards of their Net Worth and spent it on our personal consumption.

Not Uncle Suggy though!

https://www.nationalreview.com/2023/07/mark-calabria-wants-the-government-to-follow-the-law/

"And the conceptual way to think about this is that markets and government have created an implied guarantee behind them, the GSEs, the government-sponsored enterprises, and that creates moral hazard just as you see with deposit insurance and other things. And so again the job of the agency is to try to contain that moral hazard, to protect the financial system and protect the taxpayer. So it’s really a safety and soundness regulator and you should envision it as an attempt to try to control risk that government itself has created."

"We borrowed from the framework at FDIC. So if you think about the recent bank failures that were taken into conservatorship or bridge banks, that’s largely what we were trying to reproduce. And it wasn’t meant to be never-ending. It was meant to be: the companies fail, you right-size the balance sheets, you clean them up and you get them back out. So it wasn’t meant to be an endless bailout and wasn’t meant to be endless government control."

"We did a lot of work and if it wasn’t for Covid and the election, we would have gotten Fannie and Freddie reprivatized. The clock ran out on us and obviously the pandemic took over many of our agendas."

"But you know, the plans are there on the shelf. A lot of work was done when I was there. And so I am hopeful that the next Republican administration will finally fix these strange creatures."

"I think the Biden administration, and to a degree the Obama administration, looked at this partly as: We have them now and we’re going to use them for whatever purposes we want. And they’ve become kind of off-budget slush funds, if you will, and they’ve pursued agendas without a real basis in the law. And unfortunately, nobody’s really got an avenue to sue to stop the administration. So it’s one of these things like, “Well, who’s got standing? We’re going to do it anyhow.”

Think so do you? The federal government is not in the profit maximization business and only 'bailed out' the GSES because it was in the public interest not to prolong the depth and length of the Great Financial Crisis of 08.

Got a specific Federal Statute number that specifically addresses the Statute of Limitations for Constitutional Challenges to federal agency action? I can look it up if you can find it.

Typically as I recall there are also reasons that a Statute of Limitations can be tolled or suspended (e.g., when a party hides certain information).

I was just thinking about that, from what others have indicated, the Statute of Limitations bars Constitutional Challenges to federal agency actions after 6 years.

So would or could a successful MQD challenge to the 4th Amendment be allowed?

Are all the profit sweeps from 2013 (cash and LP) to the present therefore valid unconstitutional acts of the federal government and untouchable by the Judicial Branch since the Statute of Limitations expired?

What is the impact if any on the tolling of the Statute of Limitations when internal UST memos such as the 'Salt the Earth with the Shareholders Carcasses Memo!" or other not publicly available information is in the public domain?

Even eliminating the LP Sweeps for the last 6 years would give FHFA and UST more political cover for ending the 15 year conservatorships.

Mo MQD (please, no eye rolling! HeeeeHeeee! !) analysis from Fridays Barrett solo Concurring Opinion. This leads me to the proposition that HERA never gave Demarco the power to Nationalize the GSES and therefore the NWS should be reversed:

"Barrett pivots to context in a move that mirrors Ilan Wurman’s work (channeling Ryan Doerfler) on the MQD. By context, she means that there are basically two things supporting the MQD. One is a descriptive claim about how Congress operates; it doesn’t use underdetermined and ancillary statutory text to greenlight agency actions of political or economic significance. We’ll call that the MQD’s descriptive claim. Second, you have a theory of language. Ryan has written about this; it’s basically the idea that we would expect principals to speak clearly if they were telling their agents to do something big. In a nutshell, it’s the empirical claim that folks don’t empower their agents to do some high-stakes without speaking clearly. Barrett illustrates this herself with an example:

Consider a parent who hires a babysitter to watch her young children over the weekend. As she walks out the door, the parent hands the babysitter her credit card and says: “Make sure the kids have fun.” Emboldened, the babysitter takes the kids on a road trip to an amusement park, where they spend two days on rollercoasters and one night in a hotel. Was the babysitter’s trip consistent with the parent’s instruction?"

https://www.yalejreg.com/nc/lets-talk-about-that-barrett-concurrence-on-the-contextual-major-questions-doctrine-by-beau-j-baumann/

I think so, ask him via the Comments section in the article he posted yesterday.

Here's the Corker "lottery ticket" reference:

https://seekingalpha.com/article/3559856-take-on-senator-corkers-investment-advice

I like it that he's a disciple of Warren Buffett and Ben Graham.

https://www.fanniemae.com/newsroom/fannie-mae-news/fannie-mae-forgoes-issuing-benchmark-notes-july-5-2023-announcement-date

https://seekingalpha.com/article/4615124-fannie-mae-and-freddie-mac-lottery-tickets-with-much-better-odds#comments

Ed Demarco while on the stand in the Lamberth trial, said before signing the 3rd Amendment on August 17, 2012, that he never consulted with his senior staff at FHFA and he thought the US Congress was 'going to decide the future of the US Secondary Mortgage Market'.

Remarkably, he also said that he thought it was an appropriate action for a Conservator.

No question about it, the August 17, 2012 Net Worth Sweep Nationalized the two Corporations!

The UST and FHFA's major #1 issue is that they don't have to 'bailout' the GSE'S ever again.

I believe HERA mandates a 2.5% minimum Capital Ratio and MC and SLT have elevated it to 4% or more.

But for the Net Worth Sweep, we likely could have been released already. The courts have treated us with adverse rulings so far and may or may not result in more Capital in a 1st Loss Position to the Corporations in the future.

Since GSE MBS is so integral to the integrity of the US financial system and the Capital of the Corporations was reduced to near zero from 2013-2019, we will likely have to wait for the Capital in a 1st Loss Position to build up to 2.5% or more before the current administration begins to think about release.

Very few people on the Hill seem to understand exactly how Fannie Mae and Freddie Mac work. The GSE'S still need about another $100B in Capital to get to a 2.5% Capital Ratio, which could take another 5-10 years.

The reason nothing is going to happen quickly on the exit from the 15 year CONservatorships is that the GSE'S have less than 2.5% Capital backing the $7.5 Trillion of American Families Mortgages they guarantee.

Nice find, but will SLT pickup the phone when they call?

In lieu of the recent affirmative action case rulings from the SCOTUS last term, would it be possible to Constitutionally Challenge this section of Dodd Frank as interpreted by the FHFA in the current administration?

"FHFA’s Office of Minority and Women Inclusion, established under section 342 of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (Dodd-Frank Act), leads FHFA’s efforts to advance DEI and is responsible for all Agency matters relating to DEI in management, employment, and business activities. This includes overseeing and directing examinations of the regulated entities’ DEI programs and related activities by assessing the diversity policies and practices, as well as monitoring and assessing the entities’ compliance with DEI laws and regulations."

https://www.fhfa.gov/AboutUs/DiversityInclusion

Do you think we'll see some administrative action at the end of the current administrations term, whether January 20, 2025 or 2029, as they try to imprint their party's ideology on the future of the Secondary Mortgage Finance Market in America?

Why the FHFA/Arnold & Porter attorneys want to Exclude Jim Parrot's "Salt the Earth with the Shareholders Carcasses" Memo:

"So we're down to public exposure. In his great book, "Other People's Money," the Supreme Court justice Louis Brandeis wrote, more than 100 years ago: "Sunlight is said to be the best of disinfectants.""

Quote from a NYT article today on a discussion on CEO pay.

Here's the article you're looking for: Looking Back at the Major Decisions by the Supreme Court . . . and Where the Public Stands: [National Desk]
Liptak, Adam; Murray, Eli.? New York Times, Late Edition (East Coast); New York, N.Y. [New York, N.Y]. 02 July 2023: A.18.

Adam Liptak, NYT today: "The court is also set to decide two important administrative-law cases. One asks the court to overrule the Chevron doctrine, which requires courts to defer to administrative agencies' interpretations of federal statutes. The other could hobble the Consumer Financial Protection Bureau."

In the Lamberth trial, the FHFA lawyer (Arnold & Porter) told the Jurors, "The Shareholders were freely able to sell their shares, what have they lost here?"

HeeeeHeeee !

P.S. Don't worry, the Arnold & Porter legal fees are probably being deducted from the Fannie Mae and Freddie Mac balance sheets as a legitimate business expense!

No one in the Government losses their job for following the Status Quo! There's a reason that Warren Buffett bought GEICO and made a fortune insuring Government Employees against risk !

Neither 1 of the 4 Branches of Government control everything. FHFA and UST continue to have 100% control over our JPS and Common Shares and that's the way they like it.

FHFA says, "we are preparing them for exit from the Conservatorships", but they also said 15 years ago that the conservatorships were meant to be temporary.

The Shareholders know that their corporations have been Nationalized but the FHFA and UST continue to maintain that their actions surrounding the August 17, 2012 Net Worth Sweep were proper.

Would a legal challenge on the quarterly sweeps for the last 6 years or longer under the MQD result in any relief to the beleaguered shareholders?

There's really only one way to find out for sure.

Justice Barrett in the Concurring Opinion, addressing Justice Kagan's concerns that the MQD is a 'get out of text free card' and "is inconsistent with textualism":

"Yet for the reasons that follow, I do not see the major questions doctrine that way. Rather, I understand it to em-
phasize the importance of context when a court interprets a
delegation to an administrative agency. Seen in this light,
the major questions doctrine is a tool for discerning—not
departing from—the text’s most natural interpretation."

"Rather, I understand it to em-
phasize the importance of context when a court interprets a
delegation to an administrative agency."

Justice Barrett, while a Law Professor wrote "A. Barrett, Substantive
Canons and Faithful Agency, 90 B. U. L. Rev. 109, 117
(2010) (Barrett)" and sheds some more daylight on the MQD:

"The usual textualist enterprise involves “hear[ing] the
words as they would sound in the mind of a skilled, objec-
tively reasonable user of words.” F. Easterbrook, The Role
of Original Intent in Statutory Construction, 11 Harv. J. L.
& Pub. Pol’y 59, 65 (1988). But a strong-form canon “load[s]
the dice for or against a particular result” in order to serve
a value that the judiciary has chosen to specially protect.
A. Scalia, A Matter of Interpretation 27 (1997) (Scalia); see
also Barrett 124, 168–169. Even if the judiciary’s adoption
of such canons can be reconciled with the Constitution,2 it
is undeniable that they pose “a lot of trouble” for “the honest
textualist.” Scalia 28."

Footnote 2. "In my view, however, the major
questions doctrine is neither new nor a strong-form canon."

"So what work is the major questions doctrine doing in
these cases? I will give you the long answer, but here is the
short one: The doctrine serves as an interpretive tool re-
flecting “common sense as to the manner in which Congress
is likely to delegate a policy decision of such economic and
political magnitude to an administrative agency.” FDA v.
Brown & Williamson Tobacco Corp., 529 U. S. 120, 133
(2000)."

"Because the Constitution
vests Congress with “[a]ll legislative Powers,” Art. I, §1, a
reasonable interpreter would expect it to make the big-time
policy calls itself, rather than pawning them off to another
branch."

"My point is simply that in a system of separated
powers, a reasonably informed interpreter would expect Congress to legislate on “important subjects” while delegat-
ing away only “the details.” Wayman v. Southard, 10
Wheat. 1, 43 (1825). That is different from a normative rule
that discourages Congress from empowering agencies."

"And when it comes to
the Nation’s policy, the Constitution gives Congress the
reins—a point of context that no reasonable interpreter
could ignore."

"But the doctrine is not an on-off switch that flips when a
critical mass of factors is present—again, it simply reflects
“common sense as to the manner in which Congress is likely
to delegate a policy decision of such economic and political
magnitude.” Brown & Williamson, 529 U. S., at 133. Com-
mon sense tells us that as more indicators from our previ-
ous major questions cases are present, the less likely it is
that Congress would have delegated the power to the
agency without saying so more clearly."

"Here, enough of those indicators are present to demon-
strate that the Secretary has gone far “beyond what Con-
gress could reasonably be understood to have granted”

Good News for relief for victims of major federal government agency overreach, per Elena's dissent:

"Today’s decision thus moves the goalposts for triggering the major-questions doctrine."

"So the majority applies a rule spe-
cially crafted to kill significant regulatory action, by requir-
ing Congress to delegate not just clearly but also micro-
specifically. The question, the majority maintains, is “who
has the authority” to decide whether such a significant ac-
tion should go forward. Ante, at 19; see supra, at 23."

Still reading Elena's dissent (she's not a big fan of MQD !). But what seems clear is that the US Supreme Court is beginning to slowly reign in the awesome lording over of the American People by these expansively assertive federal government agencies.

From Elena's dissent: "It instead expresses the Court’s own
“concerns over the exercise of administrative power.” Ante,
at 19. Congress may have wanted the Secretary to have
wide discretion during emergencies to offer relief to stu-
dent-loan borrowers. Congress in fact drafted a statute say-
ing as much. And the Secretary acted under that statute in
a way that subjects the President he serves to political ac-
countability—the judgment of voters. But none of that is
enough. This Court objects to Congress’s permitting the
Secretary (and other agency officials) to answer so-called
major questions. Or at least it objects when the answers
given are not to the Court’s satisfaction. So the Court puts
its own heavyweight thumb on the scales. It insists that
“[h]owever broad” Congress’s delegation to the Secretary, it
(the Court) will not allow him to use that general authori-
zation to resolve important issues. The question, the ma-
jority helpfully tells us, is “who has the authority” to make
such significant calls. Ibid. The answer, as is now becom-
ing commonplace, is this Court. See, e.g., West Virginia,
597 U. S. ___; Alabama Assn. of Realtors v. Department of
Health and Human Servs., 594 U. S. ___ (2021); see also
Sackett v. EPA, 598 U. S. ___ (2023) (using a similar judi-
cially manufactured tool to negate statutory text enabling
regulation)."

The Secretary of Education is coming out with a Income Dependent Repayment plan that should limit student loan borrowers payments to 5% of their monthly income and this should help a lot of these young folks with their payments and ultimately help Fannie Mae and Freddie Mac offer more mortgages to a very important part of the Housing Ladder, namely 1st Time Home Buyers!

I'm going to read what Elena has to say now, you should too, I'm sure you'll enjoy it!

https://www.supremecourt.gov/

Her 1st line: "JUSTICE KAGAN, with whom JUSTICE SOTOMAYOR and
JUSTICE JACKSON join, dissenting.
In every respect, the Court today exceeds its proper, lim-
ited role in our Nation’s governance."

"And the Court’s role confusion persists when it takes up
the merits. For years, this Court has insisted that the way to keep judges’ policy views and preferences out of judicial
decisionmaking is to hew to a statute’s text. The HEROES
Act’s text settles the legality of the Secretary’s loan for-
giveness plan. "

Elena's a textualist now, HEEEEHEEEE !

"To decide the case is to exceed the permissible
boundaries of the judicial role."

Ouch! Elena says that the case decision is UNCONSTITUTIONAL!

"And that means the Court, by deciding this
case, exercises authority it does not have. It violates the
Constitution."

Politics aside, IF Fannie Mae and Freddie Mac are going to eventually exit these onerous 'temporary' 15+ year CONservatorships and the federal government is going to return their ownership to the Shareholders, the Executive, Legislative, and/or the Judicial Branches will have to be part of it.

Unlike Nebraska v Biden, in Collins, the Supremes 'blessed' the Net Worth Swipe as statutorily sound under the sweeping powers granted to the FHFA to act, "in the interests of the FHFA or the public it serves".

"And as we have

already shown, the HEROES Act provides no authorization

for the Secretary’s plan even when examined using the or-
dinary tools of statutory interpretation—let alone “clear
congressional authorization” for such a program.9

Footnote 9, Biden v Nebraska:

"As we have explained,
the statutory text alone precludes the Secretary’s program. Today’s opin-
ion simply reflects this Court’s familiar practice of providing multiple
grounds to support its conclusions. "

"Today, we
have concluded that an instrumentality created by Mis-
souri, governed by Missouri, and answerable to Missouri is
indeed part of Missouri; that the words “waive or modify”
do not mean “completely rewrite”; and that our precedent—
old and new—requires that Congress speak clearly before a
Department Secretary can unilaterally alter large sections
of the American economy. We have employed the tradi-
tional tools of judicial decisionmaking in doing so. "

The Current Majority at the USSCT seems to believe that the Power of the Purse is importantly embedded in the Seperation of Powers Doctrine, from the Student loan forgiveness case (this may bode well for the CFPB case!):

"Among Congress’s most im-
portant authorities is its control of the purse. U. S. Const.,
Art. I, §9, cl. 7; see also Office of Personnel Management v.
Richmond, 496 U. S. 414, 427 (1990) (the Appropriations
Clause is “a most useful and salutary check upon profusion
and extravagance” (internal quotation marks omitted)). It
would be odd to think that separation of powers concerns
evaporate simply because the Government is providing
monetary benefits rather than imposing obligations. As we
observed in West Virginia, experience shows that major
questions cases “have arisen from all corners of the admin-
istrative state,” and administrative action resulting in the
conferral of benefits is no exception to that rule. 597 U. S.,
at ___ (slip op., at 17)."

As I recall, the DOJ, in one of their briefs mentioned Collins as standing for the proposition that the MQD doesn't apply in many federal agency actions.

Still reading, but Collins is quoted in the Majority Opinion of Chief Justice Roberts: "The dissent
insists that “[s]tudent loans are in the Secretary’s wheel-
house.” Post, at 26 (opinion of KAGAN, J.). But in light of
the sweeping and unprecedented impact of the Secretary’s
loan forgiveness program, it would seem more accurate to
describe the program as being in the “wheelhouse” of the
House and Senate Committees on Appropriations. Rather
than dispute the extent of that impact, the dissent chooses
to mount a frontal assault on what it styles “the Court’s
made-up major questions doctrine.” Post, at 29–30. But its
attempt to relitigate West Virginia is misplaced. As we ex-
plained in that case, while the major questions “label” may
be relatively recent, it refers to “an identifiable body of law
that has developed over a series of significant cases” span-
ning decades. West Virginia, 597 U. S., at ___ (slip op., at
20). At any rate, “the issue now is not whether [West Vir-
ginia] is correct. The question is whether that case is dis-
tinguishable from this one. And it is not.” Collins v. Yellen,
594 U. S. ___, ___ (2021) (KAGAN, J., concurring in part and
concurring in judgment) (slip op., at 2)."

Thanks for the link! Super busy today, but I'm about halfway through Chief Justice Roberts decision.

Should be a good read over the 4 day weekend!

It would be interesting if the head of legal counsel at FHFA (Sherrod Browns former right hand man) calls DOJ and tells them to get their people working on the Unconstitutional Issue in the Nevada foreclosure case.

But that's probably not going to happen.

Always enjoy chatting with you! How's the smoke in the 'windy city '? It's made it's way here to DC, but it's somewhat tolerable.

I think it gives us greater reason to pay attention to the CFPB case next term.

Do you think tomorrow's Biden v Nebraska and the MOELA case will result in some USSCT clarity on the MQD if the Plaintiffs survive Standing?

I suspect it will.

We'll see what happens.

Who is paying for the FHFA's legal fees for defending the Constitutional challenge to FHFA's funding mechanism in the Nevada foreclosure proceedings, any idea? The Conservatee, Fannie Mae?

What about challenging the Net Worth Swipe quarterly increases in the LP since the MC/SM Amendment in the Court of Federal Claims?

I suspect one of the 8,000+ Fannie Mae Shareholders could initiate proceedings in the COFC to challenge the Sweeps for the last 6 years?

It certainly would increase the GSE'S depleted Capital and help the FHFA achieve its alleged goal of building Capital.

That all possibly could be excluded from Discovery in Litigation via Executive Privilege and/or National Security or other rules of Evidentiary Proceedings.

This is the problem when our government hides information from the public and the federal judiciary allows it.

We may NEVER know for sure.