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Last point on this one, if the court determines the federal agency action (e.g., the NWS) IS a political question than the Chevron Defence can be bypassed.
From the US Chamber of Commerce Amicus Brief filed in the student loan forgiveness case:
"See also Stephen Breyer, Judicial Review of Questions of
Law and Policy, 38 Admin. L. Rev. 363, 370 (1986) (“A court may
also ask whether the legal question is an important one. Congress is more likely to have focused upon, and answered,
major questions, while leaving interstitial matters to answer
themselves in the course of the statute’s daily administration.”);
Cass Sunstein, Chevron Step Zero, 92 Va. L. R. 187, 193 (2006)
(“In a separate trilogy of cases, which I will call the ‘Major
Question’ trilogy, the Court has raised a separate Step Zero
question by suggesting the possibility that deference will be
reduced, or even nonexistent, if a fundamental issue is involved,
one that goes to the heart of the regulatory scheme at issue. The
apparent theory is that Congress should not be taken to have
asked agencies to resolve those issues.”)."
Here you go Do not, this may help you realize that just because the US Congress may give a federal agency sweeping powers in their enabling statute or subsequent statutes (e.g., HERA's, "in the best interests of the FHFA and by extension the public it serves" that made the NWS STATUTORILY PERMISSIBLE) that same statutorily permissible federal agency action may be invalidated simply because it is in violation of the US Constitution's Seperation of Powers.
This US Chamber of Commerce filed an Amicus Brief in the student loan forgiveness case and it deals quite a bit with the MQD:
"The Chamber and its members have an interest in
clarifying when the major questions doctrine applies
to regulatory challenges. The Chamber routinely files
such challenges to hold administrative agencies
accountable to the rule of law. As this Court has
recognized, the major questions doctrine derives from
the separation of powers and thus ensures that each
branch of government stays in its respective lane and
that administrative agencies do not impose
regulatory burdens that exceed lawful bounds."
http://www.supremecourt.gov/DocketPDF/22/22-506/253895/20230203102533726_22-506%2022-535%20Amicus%20Brief.pdf
https://www.chamberlitigation.com/cases/biden-v-nebraska-department-education-v-brown
"[A] [statutory] interpretation
defense does not turn a constitutional
claim into a statutory dispute."
Page 6 of the Atlantic Legal Foundation Amicus Brief in the Student loan forgiveness case, quoting District Judge Collyer in U.S. House
of Representatives v. Burwell (“Burwell I”), 130 F.
Supp. 3d 53, 57 (D.D.C. 2015),
Btw, if you get a chance here's the link to read the Atlantic Legal Foundation's Amicus Brief:
https://atlanticlegal.org/wp-content/uploads/2023/01/Biden-v.-Nebraska-No.-22-506-Dept-of-Educ.-v.-Brown-No.-22-535.pdf
"The amicus brief was co-authored by ALF Executive Vice President & General Counsel Larry Ebner and his former, long-time law partner, Herb Fenster, who is a nationally recognized expert on federal appropriations law."
https://atlanticlegal.org/amicus-briefs/alf-argues-that-the-administrations-mass-student-debt-cancellation-is-unconstitutional/
The NACL mentioned the ALF Amicus Brief in their own Amicus Brief and of course, I had to find out who the ALF was !
I'm still looking into the Major Questions Doctrine issue here, but as I understand it, EVEN IF the broad sweeping language of the federal agency enabling or subsequent statutes (e.g., HERA's "in the best interests of the FHFA and by extension the public it serves") allows a federal agency (e.g., the FHFA) to act in the manner it did (e.g., the NWS) THEN the federal agency action could be invalidated IF it was a Major Question of Economic and Political Importance.
Why? Simply BECAUSE these federal decisions according to the US Constitution are EXCLUSIVELY reserved for our ELECTED REPRESENTATIVES IN CONGRESS NOT Unelected Bureaucrats in the federal agencies.
That particular reasoning was enough to have a federal judge stop the $400B Department of Education's student loan forgiveness program either temporarily or permanently depending on the outcome this Summer.
Oral arguments are set for February 28th at the SCOTUS and some legal heavyweights have shared their reasoning.
Mitch was 33rd OMB Director and Governor for over 8 years, impressive, plus JD from Georgetown Law.
Some other heavy hitters in the Amici brief were Mick Mulvaney (former CFPB head who told Senator Warren one time during a Senate Banking Committee hearing, "You have no authority over me, I can do whatever I want!"), Michael Barr (former US Attorney General), and our personal favorite, whom we've talked about in the past on this board, Peter J. Wallison.
You might enjoy this editorial from yesterday's WP, (think in context to the CFPB case and WHY the "Power of the Purse" is important to the US Constitution):
The Supreme Court finally gets a shot at Biden’s student-loan lawlessness
In his State of the Union address, President Biden had thoughts about almost everything, even unto the crisis of hotel "resort fees." He was, however, parsimonious with words — just a three-word boast about "reducing student debt" — concerning his policy of student loan forgiveness. His reticence about unilaterally spending, by executive fiat, about $400 billion perhaps reflected foreboding.
He knew that on Feb. 28 the Supreme Court will hear oral arguments about his plan's constitutionality. An amicus brief from 11 conservative intellectuals, with impressive judicial and executive branch experience, demonstrates that Biden's behavior is a particularly egregious example of lawlessness committed by presidents of both parties. Were Biden to succeed, the nation's constitutional architecture would be irrevocably altered.
The Magnificent Eleven note that the framers considered the power of the purse "the central and most important constitutional power reserved exclusively to the legislative branch, enabling it to oversee and control virtually every activity of the federal government." Hence the clarity of the appropriations clause: "No money shall be drawn from the Treasury, but in consequence of appropriations made by law."
In recent decades, however, presidents have spent without congressional action — even when, as regarding student loan forgiveness, Congress has explicitly rejected such spending. If Biden's unauthorized loan forgiveness for 43 million borrowers is allowed, it will be one of the largest expenditures in U.S. history. And it will come after Congress between 2020 and 2022 passed multiple pandemic relief bills dispensing $5 trillion — one of which suspended federal student loan payments — yet none authorized loan forgiveness.
Furthermore, Congress has been clear: There is no legal difference between waiving payments owed to the Treasury and affirmative spending.
One of the Magnificent Eleven, Stanford Law professor Michael McConnell, formerly a judge on the U.S. Court of Appeals for the 10th Circuit (and author of "The President Who Would Not Be King: Executive Power under the Constitution") says: The spending power vested in the legislative branch is "the foundation stone of all separation-of-powers law." For this we can thank, among others, Charles I.
The Constitution's framers knew that because the 17th-century British monarch had had substantial sources of revenue independent of Parliament, he was uncontrollable. Other than by beheading, which is messier than the appropriations clause. This clause, however, no longer impresses presidents.
President John F. Kennedy, impatient to launch the Peace Corps, diverted funds allocated for other purposes seven months before Congress appropriated funding for the Peace Corps. During the 2008 financial crisis, President George W. Bush bailed out the auto companies with funds Congress had made available only for "financial institutions," justifying it because the companies engaged in financing sales. (By this reasoning, the Magnificent Eleven note, Bush could have bailed out "virtually every other large sector of the economy.") When Congress voted against funding a portion of the Affordable Care Act, President Barack Obama's Treasury Department provided $7 billion. President Donald Trump "repurposed" some military appropriations to build the border wall that Congress had explicitly voted not to build.
Biden first claimed to find his loan forgiveness power in a nearly 20-year-old statute, passed in response to 9/11, that allowed loan modifications for members of the military. (There would be more than 30 times more beneficiaries of student loan forgiveness than there are active-duty members of the military.) He says the covid-19 emergency (a pandemic he now declares "over") enables loan forgiveness as an ameliorative measure.
The Magnificent Eleven wonder: By Biden's reasoning, could a president declare, say, a climate emergency "as a pretext for unilaterally granting financial relief to some politically important constituency"?
Biden's $400 billion overreach has taken presidential impudence to a new level. It signals his complete capitulation to his party's progressives, whose project is to emancipate the president, and the administrative state he wields, from all restraints. To put a bridle on the modern presidency, Congress needs the court's assistance. All the court needs is the appropriations clause.
Finally, although this is not the court's concern, Biden's gargantuan loan forgiveness expenditure is as morally repellent as it is constitutionally defective. And it should especially trouble progressives who are forever banging on about "social justice." Biden's regressive policy would benefit a portion of the privileged minority of Americans who have attended college and who for that reason will average higher lifetime earnings than those who have not attended. Hence, Sen. Bill Cassidy (R-La.) recently reported hearing this tart rhetorical question from someone regarding Biden, "Is he going to forgive the loan on my work truck?"
Beautiful! My favorite is Judge Brown's, "This was an act of a Banana republic."
According to SM in his 2016 interview with Maria B., he said, "the NWS was used to fund Obamacare". "Maria, we've got to get theses companies out of government control."
BUT FOR the NWS we would likely be OUT OF THE CONSERVATORSHIPS! The Executive Privilege and National Security exemptions to Discovery prevent the Plaintiff Shareholders from knowing WHY the Executive Branch implemented the NWS and took so much CASH from our companies and transferred it into the Treasury's coffers for NOTHING in return. Sadly, we may never know the truth.
The US Constitution says that the "Power of the Purse" belongs to the US Congress EXCLUSIVELY.
Why keeping the power of the purse with the US Congress (and not a federal agency under the control of POTUS) is Constitutionally Important, yesterdays WP, by George Will:
"Stanford Law professor Michael McConnell, formerly a judge on the U.S. Court of Appeals for the 10th Circuit says: The spending power vested in the legislative branch is "the foundation stone of all separation-of-powers law." "
"During the 2008 financial crisis, President George W. Bush bailed out the auto companies with funds Congress had made available only for "financial institutions," justifying it because the companies engaged in financing sales. (By this reasoning, the Magnificent Eleven note, Bush could have bailed out "virtually every other large sector of the economy.") When Congress voted against funding a portion of the Affordable Care Act, President Barack Obama's Treasury Department provided $7 billion. President Donald Trump "repurposed" some military appropriations to build the border wall that Congress had explicitly voted not to build."
From the Amicus Brief on the February 28th student loan forgiveness lawsuit filed by:
On Writs of Certiorari Before Judgment
to the United States Courts of Appeals
for the Eighth and Fifth Circuits ___________
BRIEF OF MICHAEL W. MCCONNELL,
WILLIAM P. BARR, JOHN COGAN,
MITCH DANIELS, CHRISTOPHER DEMUTH,
C. BOYDEN GRAY, JAMES C. MILLER III,
JOHN MICHAEL “MICK” MULVANEY,
MICHAEL B. MUKASEY, JOHN B. TAYLOR,
AND PETER J. WALLISON AS AMICI CURIAE
IN SUPPORT OF RESPONDENTS
ARGUMENT ........................................................ 6
I. The Framers Designed the Power of the
Purse as a Check on Tyranny ....................... 6
A. The Common Law Evolution of the
Power of the Purse .................................. 7
B. Congress’s Exclusive Power of the
Purse ........................................................ 11
II. Executive Encroachment on the Power of the
Purse Threatens Constitutional Order ........ 13
A. Presidents Have Repeatedly Usurped
Congress’s Spending Authority .............. 13
B. Spending Statutes Must Be Strictly Con-
strued to Safeguard Separation of Pow-
ers ............................................................ 19
III. Congress Did Not Authorize the Student-
Loan Forgiveness Program ........................... 22
CONCLUSION .................................................... 29
"In recent decades, Presidents of both parties have in-
creasingly resorted to loose constructions of congres-
sional appropriations laws to justify spending without
congressional action—even when Congress has explic-
itly rejected the very spending in question. This has
gotten to the point that the fundamental principle of
the congressional power of the purse is in peril."
"In short: the power to set national
policy comes with the power of the purse."
"These “structural details” are “not simply matters of
etiquette or architecture.” Sissel v. U.S. Dep’t of Health
& Hum. Servs., 799 F.3d 1035, 1052 (D.C. Cir. 2015)
(Kavanaugh, J., dissenting from denial of reh’g en
banc). Instead, their “ultimate purpose” is “to protect
the liberty and security of the governed.” Metro. Wash.
Airports Auth. v. Citizens for the Abatement of Aircraft
Noise, Inc., 501 U.S. 252, 272 (1991). To that end, the
Constitution guarantees that “the legislative depart-
ment alone has access to the pockets of the people.”
The Federalist No. 48 (James Madison)."
"(“Were the executive power to determine the
raising of public money … liberty would be at an
end.”). In fact, the “separation of purse and sword” be-
came “the Federalists’ strongest rejoinder to Anti-Fed-
eralist fears of a tyrannical president.” Chafetz, Con-
gress’s Constitution, supra, at 57; see Alexis de Tocque-
ville, Democracy in America 114 (Harvey Mansfield &
Delba Winthrop eds. & trans., 2002) (“[T]he struggle
between the president and the legislature can only be
unequal, since the latter, if it perseveres in its designs,
can always master the resistance opposed to it ….”). So
when Patrick Henry warned that a President of “am-
bition, and abilities” could “easily become king,” Mad-
ison responded that the “purse is in the hands of the
representatives of the people” who “have the appropri-
ation of all moneys.” 3 The Debates in the Several State
Conventions on the Adoption of the Federal Constitu-
tion 58-59, 393 (Jonathan Elliot 2d ed., 1891)."
"President Obama followed a similar playbook after
Congress specifically refused to appropriate funding
for a provision of the Affordable Care Act authorizing
reimbursement of certain costs to health insurers par-
ticipating in the Affordable Care Act exchanges. See
42 U.S.C. § 18071.4 Despite the lack of any appropria-
tion, and notwithstanding Congress’s vote against
such an appropriation, Treasury began to make ad-
vance section 1402 payments to insurers. United
States House of Representatives v. Burwell, 185 F.
Supp. 3d 165, 174 (D.D.C. 2016), vacated in part sub
nom. United States House of Representatives v. Azar,
2018 WL 8576647 (D.D.C. May 18, 2018).
Contradicting its initial request of section 1402
funds, the administration claimed that it was permit-
ted to make these payments under the permanent ap-
propriation in 31 U.S.C. § 1324. Yet that permanent
appropriation was limited to “refunding internal reve-
nue collections,” such as the section 1401 individual
tax credit for insurance premiums. Id. § 1324(a). The
House successfully sued to halt the unauthorized
spending, with the district court holding the expendi-
ture unlawful and unconstitutional. House of Repre-
sentatives, 185 F. Supp. at 174-79 (“A law may be con-
strued to make an appropriation out of the Treasury …
only if the law specifically states that an appropriation
is made ….”). By that time, some $7 billion of unappro-
priated money had been taken from the Treasury,
never to be returned."
"4 President Obama took this action after Congress rejected a
number of his administration’s proposals, in response to which
the President pledged to use his “pen” and “[]phone” to “take ex-
ecutive actions where Congress won’t.” Barack Obama, Remarks
by the President and First Lady at the College Opportunity Sum-
mit (Jan. 16, 2014)."
"President Trump also determined to spend money
that Congress had not appropriated. In July and Au-
gust 2020, Congress debated whether to extend the en-
hanced unemployment benefits provided by the
CARES Act. Unable to agree on an amount—Demo-
crats wanted a $600 enhancement; Republicans pro-
posed $200—Congress deadlocked. See Jake Sherman
& John Bresnahan, White House Eyes Executive Or-
ders to Upend Virus Negotiations, Politico (Aug. 4,
2020). Yet the administration went ahead with a $400
enhancement by diverting funds appropriated to the
Federal Emergency Management Administration’s
Disaster Relief Fund into a new Assistance Program
for Lost Wages. See Donald J. Trump, Memorandum
on Authorizing the Other Needs Assistance Program
for Major Disaster Declarations Related to Corona-
virus Disease 2019 (Aug. 8, 2020)."
"Presidents have
sought to circumvent Congress’s appropriations power
by hanging plainly unauthorized executive policies on
the slenderest of statutory reeds—and future presi-
dents will continue to do so absent clear guidance from
this Court.
This is plainly not the manner in which our consti-
tutional order is designed to function. "
"Yet recent standoffs between Congress
and the President have increasingly ended not with
the President acknowledging his constitutional limits,
but rather with the President circumventing the Ap-
propriations Clause under the guise of statutory inter-
pretation."
"So long as the “the controversy involves tax-
ing, spending, borrowing, impositions on liberty or
property, going to war, suspension of habeas corpus, or
any other delegated powers, congressional authoriza-
tion is a necessary precondition.” McConnell, supra, at
281. And such authorization, to protect against usur-
pations of authority, must be construed narrowly."
"Every year, Congress intervenes
in agency rulemaking by using appropriations riders
that prohibit action on certain subjects, mandate con-
sideration of particular proposals, or set conditions for
action."
"If the President could use far-fetched interpre-
tations to circumvent Congress’s power of the purse,
that last line of defense would be breached."
"Eventually, the Administration hit upon a theory
that almost no one had predicted: use of the HEROES
Act, a 2003 statute passed in the wake of 9/11 “to sup-
port the members of the United States military and
provide assistance with their transition into and out of
active duty and active service,” 20 U.S.C.
§ 1098aa(b)(6). "
I think we all appreciate what you are doing and you are an inspiration! Keep up the advocacy as the road out of the 14+ year "temporary CONservatorships" will travel down one or more of the 4 branches of government.
Van, the US House of Representatives member with jurisdiction over Fannie Mae and Freddie Mac is (thanks Navy for yesterdays post!) is:
"It's also worth noting that Rep. Ann Wagner, R-MO, the new chair of the Subcommittee on
Capital Markets, which oversees Fannie Mae and Freddie Mac, has also been mum on
housing issues thus far."
Normally you have to contact the court reporter and order a copy of the trial transcript.
Read the trial transcript in the Lamberth trial and you will see that Hamish Hume asked DeMarco on cross examination why DeMarco didn't consider the “Optional Pay Down of Liquidation Preference” before implementing the NWS.
DeMarco's response as I recall was that he never considered it nor did he have his senior staff look into any those other options (that would not have Nationalized the GSES). He also said that he believed that the US Congress was getting ready to "fix the broken system anyway" and that must have seemed acceptable to 1/2 of the Jurors.
"Good enough for Government work" !
“Congress did not merely cede direct control over the Bureau’s budget by insulating it from annual or other time limited appropriations. It also ceded indirect control by providing that the Bureau’s self-determined funding be drawn from a source that is itself outside the appropriations process – a double insulation from Congress’s purse strings that is ‘unprecedented’ across the government.”
“The Appropriations Clause … does more than reinforce Congress’s power over fiscal matters,” the appellate panel wrote in October, “(I)t affirmatively obligates Congress to use that authority to maintain the boundaries between the branches and preserve individual liberty from the encroachments of executive power.”
The Executive Branch of the Government disagrees:
"Prelogar told the Supreme Court that the 5th Circuit interpretation is “an unprecedented and erroneous understanding.”
“Congress enacted a statute explicitly authorizing the CFPB to use a specified amount of funds from a specified source for specified purposes,” Prelogar wrote in a court filing. “The Appropriations Clause requires nothing more. The court of appeals’ novel and ill-defined limits on Congress’s spending authority contradict the Constitution’s text, historical practice, and this Court’s precedent.”
I've come to this board for years to vigorously debate this bizarre fact pattern. It touches on Law, Real Estate, Economics, Finance, federal government regulation, all subjects that I find intellectually stimulating.
Whenever I see someone post inaccurate information, if I have time time, I explain what's wrong with what they've posted AND WHY I believe it to be wrong.
They can ignore my reply or continue debating the subject as you did. Being right or wrong is not as important as understanding the point that is being discussed and that's just increasing one's knowledge.
For instance, I disagree with this statement you just made:
The lack of a clear cut remedy could become a problem, YET AGAIN! But, the CFPB case being reviewed this afternoon by the SCOTUS, says that following the logic in Collins, the agency action (here the payday lender rule) should be invalidated (I added bold):
"That leaves the question of remedy. Though Collins is not precisely
on point, we follow its framework because, though that case involved an
unconstitutional removal provision, we read its analysis as instructive for
separation-of-powers cases more generally. See Collins, 141 S. Ct. at 1787–
88; cf. All Am. Check Cashing, 33 F.4th at 241 (Jones, J., concurring) (finding
Collins “inapt” for determining a remedy for the Bureau’s “budgetary
independence”).
Collins clarified a dichotomy between agency actions that involve “a
Government actor’s exercise of power that the actor did not lawfully
possess” and those that do not. 141 S. Ct. at 1787–88. Examples of the
former include actions taken by an unlawfully appointed official, see Lucia v.
SEC, 138 S. Ct. 2044, 2055 (2018); a legislative officer’s exercise of executive
power, see Bowsher v. Synar, 478 U.S. 714, 727–36 (1986); and the President’s
exercise of legislative power, see Clinton v. City of New York, 524 U.S. 417,
438 (1998). The remedy in those cases, invalidation of the unlawful actions,
flows “directly from the government actor’s lack of authority to take the
challenged action in the first place.” All Am. Check Cashing, 33 F.4th at 241
(Jones, J., concurring).
In contrast, the Court found the separation of powers problem posed
by an official’s unlawful insulation from removal to be different. Collins, 141
S. Ct. 1787–88. Unlike the above examples, such a provision “does not strip”
a lawfully appointed government actor “of the power to undertake the other
responsibilities of his office.” Id. at 1788. Thus, as discussed supra in II.B.,
to obtain a remedy, a plaintiff must prove more than the existence of an
unconstitutional provision; she must prove that the challenged action
actually “inflicted harm.” Id. at 1789.
Into which category does the Bureau’s promulgation of the Payday
Lending Rule fall, given the agency’s unconstitutional self-funding scheme?
The answer turns on the distinction between the Bureau’s power to take the
challenged action and the funding that would enable the exercise of that
power. Put differently, Congress plainly (and properly) authorized the
Bureau to promulgate the Payday Lending Rule, see 12 U.S.C. §§ 5511(a),
5512(b), as discussed supra in II.A–C. But the agency lacked the
wherewithal to exercise that power via constitutionally appropriated funds.
Framed that way, the Bureau’s unconstitutional funding mechanism “[did]
not strip the [Director] of the power to undertake the other responsibilities of his office,” Collins, 141 S. Ct. at 1788 & n.23, but it deprived the Bureau of
the lawful money necessary to fulfill those responsibilities. This is a
distinction with more than a semantical difference, as it leads us to conclude
that, consistent with Collins, the Plaintiffs are not entitled to per se
invalidation of the Payday Lending Rule, but rather must show that “the
unconstitutional . . . [funding] provision inflicted harm.” Id. at 1788–89.
However, making that showing is straightforward in this case.
Because the funding employed by the Bureau to promulgate the Payday
Lending Rule was wholly drawn through the agency’s unconstitutional
funding scheme,17 there is a linear nexus between the infirm provision (the
Bureau’s funding mechanism) and the challenged action (promulgation of
the rule). In other words, without its unconstitutional funding, the Bureau
lacked any other means to promulgate the rule. Plaintiffs were thus harmed
by the Bureau’s improper use of unappropriated funds to engage in the
rulemaking at issue. Indeed, the Bureau’s unconstitutional funding structure
not only “affected the complained-of decision,” id. at 1801 (Kagan, J.,
concurring in part), it literally effected the promulgation of the rule. Plaintiffs
are therefore entitled to “a rewinding of [the Bureau’s] action.” Id.
In considering other violations of the Constitution’s separation of
powers, the Supreme Court has rewound the unlawful action by granting a
new hearing, see Lucia v. SEC, 138 S. Ct. 2044, 2055 (2018), or invalidating an order, see NLRB v. Noel Canning, 573 U.S. 513, 521, 557 (2014); see also 5
U.S.C. § 706(2)(A) (providing that, under the APA, a “reviewing court
shall . . . hold unlawful and set aside agency action . . . found to be . . . not in
accordance with law”). In like manner, we conclude that the district court
erred in granting summary judgment to the Bureau and in denying the
Plaintiffs a summary judgment “holding unlawful, enjoining and setting
aside” the challenged rule. Accordingly, we render judgment in favor of the
Plaintiffs on this claim and vacate the Payday Lending Rule as the product of
the Bureau’s unconstitutional funding scheme."
Editorial by George Will in today's WP, about the Bypassing of the Appropriations Oversight Process in the CFPB case (HERA lets FHFA bypass it as well):
Reining in the CFPB should be a no-brainer
Frail humans, fallen creatures in a broken world, rarely approach perfection in any endeavor. In 2010, however, congressional majorities (including only six Republicans) created a perfectly, meaning comprehensively, unconstitutional entity. The Consumer Financial Protection Bureau also perfectly illustrates progressivism's anti-constitutional aspiration for government both unlimited and unaccountable.
The CFPB is unlike any federal law enforcement agency ever created. Floating above the Constitution's tripartite design of government, it is uniquely sovereign:
Independent of congressional appropriations, it funds itself by acquiring, in perpetuity, up to 12 percent of the Federal Reserve's annual operating expenses (the CFPB's cut might soon be $1 billion), rolling over and investing any year's surplus. The president or either chamber of Congress can veto any attempt by legislators to gain control of the CFPB. Its director could not be removed for policy reasons, until this provision was declared a violation of the separation of powers because it reduced the president's authority to direct the executive branch.
On Friday, the Supreme Court justices in conference will consider the CFPB's request that the court overturn a decision by the U.S. Court of Appeals for the 5th Circuit. It struck down a particular rule issued by the CFPB. The 5th Circuit argued that the rule was issued by the CFPB director while he was unconstitutionally insulated from presidential removal. And that the rule was promulgated by spending funds in violation of the appropriations clause ("No money shall be drawn from the Treasury, but in consequence of appropriations made by law").
In 2010, Congress gave a new law enforcement agency a blank check - forever. If Congress can cede funding of the CFPB to the CFPB, what limiting principle would prevent Congress from nullifying the appropriations clause by allowing the entire executive branch to fund itself in perpetuity, thereby abandoning the controlling power of the purse?
The Supreme Court should give the CFPB a reason to remember the adage "be careful what you wish for." The court should grant the CFPB's request and hear its challenge to the 5th Circuit. And the court should hold that the CFPB's power to set its own budget results from Congress's violation of the non-delegation doctrine: Congress cannot delegate to others powers the Constitution vests exclusively in it.
This is a fight constitutionalists crave. They are intellectually well-armed. Progressives have the media-academia- entertainment complex, but constitutionalists have the Antonin Scalia Law School's C. Boyden Gray Center for the Study of the Administrative State. Goliath, meet David.
Adam J. White, co-director of the center, bludgeons the CFPB with its own words. The bureau now says its forever funding, because it was authorized by Congress, counts as an appropriation. But before judicial scrutiny made such candor inconvenient, the CFPB insisted that its funds are "non-appropriated" (2012) because they come from "outside the appropriating process" (2013), an assertion repeated in 2014.
In 2016, the CFPB resisted a Government Accountability Office review by arguing that the GAO reviews only the spending of appropriations, of which the CFPB said it has none - and the GAO agreed that the CFPB spends non- appropriated funds. In 2018, 40 Democratic senators opposed funding the CFPB through Congress lest this end its "independence." Last November, the bureau said its funds are not even "government funds."
The CFPB apparently believes it operates in a Constitution-free zone. The court should disabuse it. Doing so, the court will necessarily disabuse Congress of the idea that it can delegate to others a power vested in it by the Constitution.
As White says, it is time the court clarified the appropriations clause's "implications for modern governance," meaning the administrative state. This is especially urgent regarding the CFPB's vast discretion in punishing "unfair," "deceptive" and "abusive" practices.
The court should put this case on its autumn calendar, giving both sides preparation time commensurate with the stakes, which implicate all three branches. This case involves the judiciary's duty to thwart Congress's self-diminishment by impermissibly delegating power to an executive branch that wields an administrative state increasingly immune from effective control or even monitoring by Congress.
"Percolation" is lawyer lingo for allowing a complex controversy to slowly ripen through clarifying litigation. The CFPB has, however, been an affront to the Constitution for 13 years. Enough percolation, already. The court should grant the CFPB's request for a day in court. Then the court should declare it a perfect example of what the Constitution forbids, and of what progressives since Professor Woodrow Wilson, pioneering scholar of public administration, have desired: Congress, and politics, marginalized by administrative state "experts" insulated from political accountability.
The federal government keeps hiding the truth from the Plaintiff Shareholders and the American people via the National Security and Executive Privilege exemptions to Discovery.
They're hiding something.
Just seems wrong to take Billions of cash profits from the twins and hide behind these federal government privileges that are unavailable for the mere Citizens.
Kinda jettisons the idea that the federal government is FOR the people by the people.
Instead the federal government is FOR the federal government at the expense of its citizens. Reminds me of a Banana republic.
I believe that the Student loan forgiveness program is implemented via the Department of Education, a federal agency and not an Executive Order from the POTUS.
The bottom line is, like the NWS and HERA, the federal Agency, Department of Education's $400B student loan forgiveness program is a Major Question of Economic and Political Importance and should be decided NOT by the Executive Branch (i.e., a federal agency that may or may not have the statutory power under the HEROES ACT to implement it) but SHOULD BE RESERVED EXCLUSIVELY FOR OUR ELECTED REPRESENTATIVES IN THE US CONGRESS.
JB tried 1st to get it through the US Congress, but after he couldn't, he decided to use a federal agency to do something the US Congress wouldn't and that may violate the Seperation of Powers under the MQD.
Fun stuff, no?
Clarence is right here, you have to follow the entire thread discussion, which NEO originated, when he mistakenly believed that the US Court of Appeals could have jurisdiction over the CFPB case being reviewed by the SCOTUS tomorrow in their Conference.
Well, you replied to my post, saying that you thought what I said was untrue, right? Here's what I asked Clarence originally:
It looks like since the 5th Circuit Appeals Court decided the CFPB case and "The Federal Circuit also cannot hear appeals from decisions of other U.S. Courts of Appeals", the US Court of Appeals does not have jurisdiction over the case and therefore cannot hear it.
If the SCOTUS denies the CFPB's Petition for a Writ of Certerrori, then the CFPB would have controlling precedent in the 5th Circuit ONLY (Mississippi, Louisiana, and Texas). The CFPB 5th Circuit Appealate Decision could then be used in the other 12 Federal Circuit courts in arguments, but it would not be controlling.
If the SCOTUS denies the Petition, any of the other 12 Federal Circuits could rule the opposite of the holding in the 5th Circuit, creating a split amongst the Circuits and then the SCOTUS could grant a future Petition for a Writ of Certerrori, thus resolving the split amongst the Circuits.
If the SCOTUS grants the CFPB'S Petition and issues an opinion, then it would be controlling precedent in ALL federal and state courts.
That said, it is true that the CFPB is not the FHFA nor is the Dodd Frank Act the HERA.
However, they BOTH are very similar and BOTH appear to have a double insulated from Congressional Appropriations Oversight Process Review, which is relevant and they both were written in response to the same economic crisis, empowering their respective agencies with sweeping powers over the national Economy.
Hope this helps: "Federal circuit court decisions are not binding precedent on any other federal circuit or district court outside of its jurisdiction. Accordingly, this sometimes leads to contradictory decisions among the different circuit courts on the same legal issue. Further, federal circuit court decisions are not binding on the state courts that are geographically located within the boundaries of the circuit’s jurisdiction. For example, a Mississippi state court judge is not required to follow decisions of the Fifth Circuit."
https://nationalaglawcenter.org/procedures-precedent-and-the-u-s-court-system/
So, therefore for example, the Bhatti decision in the 8th Circuit has no binding precedent OTHER THAN in the 8th federal Circuit (Minnesota, Iowa, North Dakota, South Dakota, Nebraska, Missouri, and Arkansas).
Wouldn't the SCOTUS be reluctant of invalidating Dodd Frank (or Hera?) as over a decade of CFPB (or FHFA?) agency actions could in theory be invalidated?
It's technically not the SCOTUS'S JOB to guess what the US Congress would have wanted but they had no problem rewriting the Dodd Frank Act and HERA AND neutering any meaningful remedy.
We'll probably never know exactly WHY MC and SM jacked up the Capital Requirement so way unnecessarily high. I don't know if he addresses it in his new book but maybe he does?
SLT hasn't fiddled with it any has she?
I suspect the following:
(1) Da Gubmint doesn't EVER want to deal with a 2008-9 GFC again.
(2). MC could justify his novel "special GSE Access charge" (50 bps) on the record refis in 2020-2022, especially to the MBA.
(3). SM and MC (and the Federalist Society?) can't stand this FDR creation and its implied Gubmint subsidized mortgage handouts and backstop buyer function for financial intermediaries during a financial crisis, INSTEAD of letting the "free markets" fix the problem.
(4). It will likely be lowered by politicians in the future so better to have it be super high to begin with.
(5). SM and MC (and SLT?) want the GSES market share to begin shifting to other risk takers in the US Secondary Mortgage Market and its easier for private capital markets and large TBTF banks and financial intermediaries to compete with the GSES with much higher GF'S.
Pure speculation but maybe.
https://www.scotusblog.com/2023/02/in-a-pair-of-challenges-to-student-debt-relief-big-questions-about-agency-authority-and-the-right-to-sue/
Hint: Substitute HERA for HEROES ACT and NWS for Student loan forgiveness !
Here's Amy Howe:
Legal substance: Did the administration overstep its authority?
Turning to the plan’s legality, the Biden administration emphasizes that it is authorized by the plain text of the HEROES Act, which gives the Department of Education broad power to respond to a national emergency by “waiv[ing] or modify[ing] any statutory or regulatory provision” governing the student loan programs so that borrowers are not worse off financially because of the national emergency."
"Instead, they say, the debt-relief program violates the “major questions doctrine,” a principle of statutory interpretation at the center of last term’s ruling in West Virginia v. Environmental Protection Agency that rests on the idea that, if Congress wants to give an administrative agency the power to make “decisions of vast economic and political significance,” it must say so clearly."
Here, the states write, there is no real dispute that the Biden administration’s discharge of $430 billion in student-loan debt is “a matter of economic and political significance.” But Congress did not clearly give the Department of Education the power to adopt such a massive debt-relief program, the states say. To the contrary, they suggest, Congress in 2020 specifically rejected legislation that would have discharged up to $10,000 in student-loan debt per borrower. And although the HEROES Act allows the department to alter student-loan provisions to keep borrowers from becoming worse off because of a national emergency, the Biden administration’s program actually places over 40 million borrowers in a better position by cancelling some or all of their debt."
"The Biden administration pushes back against the idea that the court should apply the major-questions doctrine to the debt-relief program at all. The doctrine, it writes, only applies in a specific kind of case, in which there is a mismatch between the extremely broad regulatory power that an agency is asserting and the text on which the agency relies, which gives “reason to hesitate before concluding that Congress” intended to provide that authority. Here, by contrast, the administration says, there is no such mismatch because the HEROES Act clearly authorizes the debt-relief program, by giving the secretary of education the specific power to waive or modify laws and regulations governing student loans. Indeed, the Biden administration notes, “a central purpose of the HEROES Act is to authorize the Secretary to grant student-loan debt relief to mitigate economic harms "
We'll see, better than doing nothing and watching your life go by with our shares suspended in perpetual CONservatorships.
I'm open to suggestions that don't involve the waiving of a white flag, throwing my hands up in the air, or waiting for a remote to non-existent benevolence from our 'dear leaders'.
Isn't that your strategy here, or does the Fulcrum Security possess super powers that are immune from Gubmint overreach?
SCOTUS has NO power to reign in the 4th branch of Gubmint UNLESS they have a live case to decide.
Why not give them another chance to reign in federal government overreach via the Constitutional Issues in HERA and FHFA's governmental overreaching agency actions?
Is it Constitutionally proper for a federal governmental agency (that makes its own budget, paid for not by the federal government but by Fannie Mae and Freddie Mac and the FHLBB banks with no meaningful Congressional Appropriations Oversight Process) head to Nationalize the 2 lynchpins of the US Secondary Mortgage Markets?
Somebody's got to try to reign in these unelected Bureaucrats in the 4th Branch of Gubmint and the SCOTUS seems like the logical solution, as an allegedly "coequal" Branch of the US Government.
This is a juicy fact pattern and shouldn't be wasted. Let's give the SCOTUS some more bites of the apple, otherwise the "temporary conservatorships" may not expire before the lifetimes of the beleaguered shareholders.
Federal Agencies can be beneficial for the American people and their businesses, no question about that.
The problem is that the checks and balances are inadequate and the abusive and coercive use of governmental power by unelected Bureaucrats is increasing (take DeMarco for example and the NWS).
So what? Well, as the nation becomes more divided, the POTUS will simply direct these 100's of federal agencies to carry out his agenda THAT HE COULDN'T OTHERWISE GET PASSED THROUGH THE PEOPLES ELECTED REPRESENTATIVES IN CONGRESS!
That's a big thing for me, but maybe not for you. Don't you think it's important that you, your family, your kids, and grandkids are not subjected to this type of open invitation for governmental overreach?
Clarence, the SCOTUS can deny the Governments Petition in CFPB when they meet in conference on the day after tomorrow.
I don't think they will deny the Petition, but I superficially looked into whether or not their is a split amongst the Circuits on the Appropriations Clause and as I recall, there apparently really wasn't one.
Is the 5th Circuit Appealate Panel Decision in CFPB really of national importance, wouldn't it largely be confined to the 5th Circuit (Mississippi, Louisiana, and Texas) and not be precedential in the other Circuits?
Could the SCOTUS take the Petition, hear it in the Fall, and decide next Spring or Summer to limit the remedy in a way that would avoid invalidating all the CFPB'S federal agency actions for the last 12 years?
-----------
P.S. saw this editorial from a resigning commissioner of the FTC over the shenanigans Linda Khan and Chopra are pulling over there to implant their progressive agenda on the American people and their businesses.
Could be some nice legal challenges to come:
"Much ink has been spilled about Lina Khan's attempts to remake federal antitrust law as chairman of the Federal Trade Commission. Less has been said about her disregard for the rule of law and due process and the way senior FTC officials enable her. I have failed repeatedly to persuade Ms. Khan and her enablers to do the right thing, and I refuse to give their endeavor any further hint of legitimacy by remaining. Accordingly, I will soon resign as an FTC commissioner.
Since Ms. Khan's confirmation in 2021, my staff and I have spent countless hours seeking to uncover her abuses of government power. That task has become increasingly difficult as she has consolidated power within the Office of the Chairman, breaking decades of bipartisan precedent and undermining the commission structure that Congress wrote into law. I have sought to provide transparency and facilitate accountability through speeches and statements, but I face constraints on the information I can disclose -- many legitimate, but some manufactured by Ms. Khan and the Democratic majority to avoid embarrassment.
Consider the FTC's challenge to Meta's acquisition of Within, a virtual-reality gaming company. Before joining the FTC, Ms. Khan argued that Meta should be blocked from making any future acquisitions and wrote a report on the same issues as a congressional staffer. She would now sit as a purportedly impartial judge and decide whether Meta can acquire Within. Spurning due-process considerations and federal ethics obligations, my Democratic colleagues on the commission affirmed Ms. Khan's decision not to recuse herself.
I dissented on due-process grounds, which require those sitting in a judicial capacity to avoid even the appearance of unfairness. The law is clear. In one case, a federal appeals court ruled that an FTC chairman who investigated the same company, conduct, lines of business and facts as a committee staffer on Capitol Hill couldn't then sit as a judge at the FTC and rule on those issues. In two other decisions, appellate courts held that an FTC chairman couldn't adjudicate a case after making statements suggesting he prejudged its outcome. The statements at issue were far milder than Ms. Khan's definitive pronouncement that all Meta acquisitions should be blocked. These cases, with their uncannily similar facts, confirm that Ms. Khan's participation would deny the merging parties their due-process rights.
I also disagreed with my colleagues on federal ethics grounds. To facilitate transparency and accountability, I detailed my concerns in my dissent -- but Ms. Khan's allies ensured the public wouldn't learn of them. Despite previous disclosures of analogous information, Commissioners Rebecca Slaughter and Alvaro Bedoya imposed heavy redactions on my dissent. Commission opinions commonly use redactions to prevent disclosure of confidential business information, but my opinion contained no such information. The redactions served no purpose but to protect Ms. Khan from embarrassment.
I am not alone in harboring concerns about the honesty and integrity of Ms. Khan and her senior FTC leadership. Hundreds of FTC employees respond annually to the Federal Employee Viewpoint Survey. In 2020, the last year under Trump appointees, 87% of surveyed FTC employees agreed that senior agency officials maintain high standards of honesty and integrity. Today that share stands at 49%.
Many FTC staffers agree with Ms. Khan on antitrust policy, so these survey results don't necessarily reflect disagreement with her ends. Instead, the data convey the staffers' discomfort with her means, which involve dishonesty and subterfuge to pursue her agenda. I disagree with Ms. Khan's policy goals but understand that elections have consequences. My fundamental concern with her leadership of the commission pertains to her willful disregard of congressionally imposed limits on agency jurisdiction, her defiance of legal precedent, and her abuse of power to achieve desired outcomes.
Three additional examples are illustrative. In November 2022, the commission issued an antitrust enforcement policy statement asserting that the FTC could ignore decades of court rulings and condemn essentially any business conduct that three unelected commissioners find distasteful. If conduct can be labeled with a nefarious adjective -- "coercive," "exploitative," "abusive," "restrictive" -- it may violate the FTC Act of 1914. But the new policy contains no descriptions or definitions of these terms, many of which also lack context in the law. The commission also candidly explained that its analysis under the new policy may depart from prior antitrust precedent, and identified previously lawful conduct as now suspect. In other words, the new policy adopts an "I know it when I see it" approach. But due process demands that the lines between lawful and unlawful conduct be clearly drawn, to guide businesses before they face a lawsuit.
In January 2023, the commission launched a rulemaking that would ban nearly all noncompete clauses in employee contracts, affecting roughly one-fifth of employment contracts in the U.S. This proposed rule defies the Supreme Court's decision in West Virginia v. EPA (2022), which held that an agency can't claim "to discover in a long-extant statute an unheralded power representing a transformative expansion in its regulatory authority."
Under President Biden, FTC leadership has abused the merger review process to impose a tax on all mergers, not only those that hinder competition. Progressives tried but failed to enact a legislative moratorium on mergers in early 2020 and to pass other restrictions since. Ms. Khan now does so by fiat. Abuse of regulatory authority now substitutes for unfulfilled legislative desires.
We all know the simple rule: If you see something, say something. As an antitrust lawyer, I counseled clients to avoid trouble by knowing when to object and how to exit. When my clients attended trade association gatherings, I advised them to leave quickly if discussions with competitors took a wrong turn and raised alarm bells about price fixing or other illegal activity. Make a noisy exit -- say, spill a pitcher of water -- so that attendees remember that you objected and that you left. Although serving as an FTC commissioner has been the highest honor of my professional career, I must follow my own advice and resign in the face of continuing lawlessness. Consider this my noisy exit.
---
Mrs. Wilson is a Republican-appointed commissioner at the Federal Trade Commission.
Credit: By Christine Wilson"
No, building credit loss reserves is a good idea for what Fannie Mae and Freddie Mac are, INSURANCE COMPANIES!
What happens when we have the next inevitable downturn in the US Housing Market? First, credit loss reserves are dipped into, then the capital build up of the $90B in retained earnings.
Notice that on page 125 of the 10K, the balance of credit loss reserves has almost DOUBLED from 12/31/21 to 12/31/21, that's a good thing, especially since Doug Duncan Fannie Mae Chief Economist says US home prices are anticipated to drop 4%-5% this year.
What the plaintiffs won in Collins was the equivalent of a fourth place ribbon for a 3 person race.
HeeeeHeeee, well said! As Americans it makes some of us feel better to do SOMETHING instead of nothing as the CONservatorships could drag on past the current shareholders expiration dates.
In theory that could change if 1 constitutional challenge breaks through to a meaningful remedy for the beleaguered shareholders and doesn't get overturned by the "fix is in" Supremes. !
Well, the great thing about MQD is that the federal courts move away from the Chevron Doctrine, which allows huge deference from the federal agencies self interpretation of their Enabling and subsequent statutory powers.
MQD recognizes that while the US Congress can delegate sweeping and broad authority to the federal agencies, the US Congress cannot delegate its authority to decide Major Economic and Political Questions that are the very foundationally RESERVED EXCLUSIVELY FOR OUR ELECTED REPRESENTATIVES IN CONGRESS.
Plus, the power of the purse belongs to our elected representatives in Congress NOT the unelected Bureaucrats in the federal agencies, right?
Btw, I've been an adjunct MBA professor for over 20 years and I have no heartburn if the US Congress decides to forgive $400B of student loans BUT I DO IF ITS done by unelected Bureaucrats in the Executive Branch by a directive from the POTUS.
In Collins, the Shareholder Plaintiffs won on the Constitutional Claim that the FHFA Director is improperly and unconstitutionally insulated from the POTUS in HERA BECAUSE the POTUS could NOT fire the FHFA Director AT WILL.
Just like the CFPB Director was Unconstitutionally Insulated in the Dodd Frank Act, in Seila Law, decided the year before Collins.
So the court ruled in Collins that ONLY POTUS nominated and Senate confirmed FHFA Directors COULD have caused harm to the Plaintiff Shareholders and only under certain circumstances.
That's what they are litigating now in Collins and the trial Judge isn't even having a trial on the issue despite the instructions from the SCOTUS, as he recently ruled.
The Collins Plaintiffs are appealing that ruling to the Appealate Court.
Right now the original unconstitutionally insulated FHFA Director issue is being appealed as well as an added Constitutional Violation, known as an allegedly Appropriations Bypass Oversight Process.
They are booking more credit loss reserves:
"Net income decreased $9.3 billion in 2022 compared with 2021, primarily driven
by a $11.4 billion shift to provision for credit losses and a $1.6 billion shift to
investment losses, partially offset by a $1.1 billion increase in fair value gains."
"Provision for credit losses was $6.3 billion in 2022, compared with a benefit for credit losses of $5.1 billion in
2021.
• Single-family provision in 2022 was primarily driven by decreases in forecasted home prices, the overall
credit risk profile of the company’s newly acquired loans, and rising interest rates.
• Multifamily provision in 2022 was primarily driven by an increase in expected credit losses on the
company’s seniors housing portfolio, which has been disproportionately impacted by recent market
conditions, as well as higher actual and projected interest rates."
"Average single-family conventional guaranty book of business in 2022 increased from 2021 by 7% driven
primarily by growth in the average balance of loans acquired during the year. Overall credit characteristics of the
single-family conventional guaranty book of business remained strong, with a weighted-average mark-to-market
loan-to-value ratio of 52% and a weighted-average FICO credit score at origination of 752 as of December 31,
2022."
https://www.fanniemae.com/about-us/investor-relations/quarterly-and-annual-results
https://www.cnbc.com/2023/02/14/biden-to-name-feds-lael-brainard-as-top-economic-advisor-source-says.html
"In addition, Biden confidant Jared Bernstein is expected to replace Cecilia Rouse as chair of the Council of Economic Advisers, the source said. Rouse has announced plans to depart."
Just substitute FHFA for EPA and housing for energy.
Source: 2021-2022 Cato Supreme Court Review
West Virginia v. EPA: Some Answers about
Major Questions
Jonathan H. Adler
"The EPA was asserting the
authority “to substantially restructure the American energy mar-
ket” based on an “ancillary” statutory provision that had never
before been used for such a purpose.73 Whether the EPA could de-
fine the BSER as generation shifting was not treated as a routine
question of statutory interpretation for which a “plausible textual
basis for the agency action” would be sufficient.74 More would be
required to justify upholding the EPA’s authority to “restructur[e]
the Nation’s overall mix of electricity generation” under the guise
of setting performance standards for stationary sources of air
pollution.75"
"Under this approach, even if one might conclude that the EPA’s
preferred interpretation of Section 7411 were reasonable, the nature
of the power the EPA was asserting, and its lack of precedent, coun-
seled a narrower construction. That the EPA’s interpretation of its
authority to define BSER might be plausible “as a matter of ‘defi-
nitional possibilities’” was insufficient to justify the breadth of au-
thority the EPA sought to assert.81 That the word “system”—and the
phrase “best system of emission reduction”—could be interpreted
broadly when “shorn of all context” was “not close to the sort of clear authorization required by our precedents.”82
What Makes a Question Major?
Once Chief Justice Roberts declared West Virginia v. EPA a major
questions case, his task became easier. No longer did he need to find
that the EPA’s desired interpretation of the relevant statutory provi-
sions was out of bounds (with or without Chevron deference). Invok-
ing the doctrine enabled him to flip the presumption and demand
that those defending the D.C. Circuit’s interpretation of the CAA
find “clear congressional authorization” for that position.85 But what
made West Virginia v. EPA a “major questions case”?
Chief Justice Roberts identified several factors indicative of “major
questions” cases under the Court’s precedents. These include that
an agency is seeking to exercise broad regulatory power over a sub-
stantial portion of the economy, that this power is “unheralded” or
had not been previously discovered or utilized, and that Congress
has “conspicuously and repeatedly declined to enact” express au-
thorization for what the agency wants to do.86
[J]ust as established practice may shed light on the extent
of power conveyed by general statutory language, so the
want of assertion of power by those who presumably would
be alert to exercise it, is equally significant in determining
whether such power was actually conferred.91
91 FTC v. Bunte Bros., Inc., 312 U.S. 349, 352 (1941)."
"Further, suggesting that once litigants are able to convince a court that a
given case presents a “major question” they can discard traditional
methods of statutory interpretation ....
Justice Gorsuch wrote a separate concurrence, stressing his view
that the major questions doctrine is properly understood as a clear
statement rule that prevents Congress from delegating broad legisla-
tive power to agencies. "
"West Virginia v. EPA and the covid cases highlight the Court’s
concern that the executive branch sometimes seeks to expand and
repurpose existing statutory authority to address broader (and per-
haps worthwhile) policy goals beyond those with which Congress
was focused when the statute was enacted.
"What judicial review requires, Roberts explained,
is that agencies provide “genuine justifications for important deci-
sions,” and not “distractions” or subterfuge.115"
"the Roberts Court
is suspicious of agency attempts to use regulatory authority dele-
gated for one purpose to address another"
"As the chief justice noted, such questions
of extraordinary importance may arise from any corner of the ad-
ministrative state, and the opinion makes clear that courts are to
be suspicious when agencies engage in self-aggrandizing behavior
or otherwise seek to pour new wine from old bottles.
"Finally, the brief points out that the “Major Questions Doctrine” applies to this case, which makes it an easy case. In several recent decisions, the Supreme Court has expressed justified skepticism of an agency suddenly discovering novel and sweeping powers that it had never claimed before. All evidence indicates that the government suddenly discovered the power to enact debt relief not because it is legally plausible but instead because it is politically desirable.
A policy as consequential and controversial as a $400 billion debt-?forgiveness plan must be supported by a clear statement in the statutory text. Because the HEROES Act does not come close to meeting that standard, the Supreme Court should invalidate the plan."
https://www.cato.org/legal-briefs/biden-v-nebraska
From the Amicus Brief:
"Finally, the Major Questions Doctrine’s clear-
statement rule makes this an easy case. Since the ac-
tion at issue here was not “necessary” to achieve the
government’s purported aim, the statutory text cer-
tainly does not contain a clear statement granting the
Secretary such power. "
"II. THE MAJOR QUESTIONS DOCTRINE
MAKES THIS AN EASY CASE
This Court has recently stayed or invalidated
three executive actions that were based on novel and
expansive readings of longstanding laws: OSHA’s
“vaccine or test” mandate, the CDC’s eviction morato-
rium, and the EPA’s greenhouse-gas-emission re-
strictions. One common theme of these decisions is
particularly relevant here: the Court’s justified skepti-
cism of an agency suddenly discovering novel and
sweeping powers that it had never claimed before.
“[T]he want of assertion of power by those who pre-
sumably would be alert to exercise it” is “significant in
determining whether such power was actually con-
ferred.” West Virginia, 142 S. Ct. at 2610 (quoting FTC
v. Bunte Brothers, Inc., 312 U.S. 349, 352 (1941)). Be-
cause the Department of Education has made just
such an implausible discovery of a consequential new
power here, this is a Major Questions case."
"Again emphasizing the uniqueness of the ac-
tion, the Court recounted that the law at issue had
“rarely been invoked—and never before to justify an
eviction moratorium.” Id. at 2487."
"This Court also stressed the tenuousness of the
connection between housing regulations and the
agency’s focus (public health), describing the chain of
logic necessary to justify the moratorium as follows:"
"As the Court noted in West Virginia, the govern-
ment’s discovery of a power to enact nationwide debt
relief “conveniently enabled it to enact a program” that
“‘Congress considered and rejected’ multiple times.”
Id. at 2614"
"While not determinative, this history is evidence
that the policy question is a major one, since it is one
that Congress gave its attention to. See West Virginia,
142 S. Ct. at 2620–21 n.4 (Gorsuch, J., concurring) (the
existence of failed legislation “help[s] resolve the ante-
cedent question whether the agency’s challengedaction implicates a major question”). And in addition,
this history also strongly suggests that the admin-
istration’s legal reasoning is outcome-oriented and
pretextual. All evidence indicates that the government
suddenly discovered the power to enact debt relief not
because it is legally plausible but instead because it is
politically desirable.
10 "
"Thus, for many of the same reasons that each of
the above three cases were Major Questions cases, this
is also a Major Questions case. "
"And just as in the above three cases, the Depart-
ment of Education here asserts for itself a novel and
highly consequential power simply because one of the
(many, massive) effects of exercising that power might
be a legitimate agency goal (reducing defaults). The re-
sult is an assertion of “highly consequential power be-
yond what Congress could reasonably be understood to
have granted.” West Virginia, 142 S. Ct. at 2609."
EACH Constitutional Challenge to the NWS gets its own chance in court. The SCOTUS by denying Hamish Hume's and David Thompson's (amongst others) Petition for a Writ of Certerrori basically said "we agree with the COFC Appealate decision" (which ruled that the NWS was NOT a taking in violation of the 5th Amendment because shareholders don't have the right to exclude the government from their property and that's a prerequisite for a valid Taking Clause Claim).
So, a MQD constitutional challenge would get to start off at the federal circuit, could be appealed, and would be exhausted when the SCOTUS denies the Petition for a Writ of Certerrori or litigated the Constitutional Claim.
Here's an example of a federal agency overreach that will likely be shot down. The HEROES ACT was passed subsequent to 9/11 to make sure that service personnel have the opportunity to have their student loans put on hold or forgiven during service war time and grants or delegates that authority to the Department of Education Secretary.
Here's where the power comes from for the Education Department to act, a section of the HEROES Act that gives the Secretary of Education authority, in certain circumstances, to “waive or modify” provisions of law applicable to federal student loans. The Secretary may do so “as may be necessary to ensure that … recipients of student financial assistance” who are affected by war or national emergency “are not placed in a worse position financially in relation to that financial assistance because of their status as affected individuals.”
Now, if a student loan borrower is affected by a war or NATIONAL EMERGENCY, then the US Congress has delegated that authority to the Education Secretary and no problem forgiving $400B in student loans, right?
Nothing wrong with that, according to the Powers of the Act, seems perfectly legal and legit, kinda like the NWS, right?
So then why did a federal Judge say that No, it's AN UNCONSTITUTIONAL AGENCY ACTION THAT SHOULD BE INVALIDATED BECAUSE ONLY THE US CONGRESS CAN DECIDE MAJOR QUESTIONS OF POLITICAL AND ECONOMIC IMPORTANCE?
Do you understand HOW that works?
JB'S DOJ, ran straight to the USSCT and we will hear oral arguments on Tuesday, February 28th (get your popcorn ready!)
Likewise, JB'S DOJ ran straight to the SCOTUS demanding to be heard on the CFPB issue as well, let's see what happens on that one, probably after the Presidents Day holiday, whether they accept or deny the Government's petition for a Writ of Certerrori.