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Here's the thing that's hard for many to understand but important here. A federal agency action can be done that's in compliance with the statutory powers granted by the US Congress, but if it violates the US Constitution it can be ruled as an Unconstitutional Agency Action and invalidated.
So, Collins says that it's within the power (i.e., the Incidental Powers of HERA) for FHFA to implement the NWS, WHAT COLLINS DOESN'T SAY IS THAT THE NWS DOESN'T VIOLATE THE US CONSTITUTION.
Notice how ALL the Constitutional Claims to invalidate the NWS continue to move through the courts until they are exhausted by the courts, which typically ends at the highest court, the SCOTUS, either through the Denial of a Petition for a Writ of Certerrori (the 5th Amendment Takings Cases) OR by a decision by the SCOTUS saying that the US Constitution was not violated.
Invalidating the NWS would actually make it easier for the federal government to end the CONservatorships, but they are fighting hard to keep every penny. Whenever the shareholders challenge the Constitutionality of the NWS, the government just hires a small army of blue chip firms to defend it and this results in long lasting court battles as the federal government fights tooth and nail. BTW, the GSES pay for all those legal fees from the GSES balance sheets!
Notice how the DJT administration actually agreed that the insulated FHFA Director should be firable by the POTUS and stopped defending it in Collins (the SCOTUS had to appoint someone to defend it) and of course we won on that issue but the remedy the SCOTUS instructed the federal circuit to consider was not the slam dunk shareholders were looking for.
Listening to DeMarco testify in Lamberth's courtroom, I realized that he was devoting a large amount of his time and FHFA resources studying the Obama administrations AGGRESSIVE PUSH for Mortgage Loan Forgiveness by the GSES INSTEAD of looking at his options under the SPSA for the end of the 2012 year as the Line of Credit at UST would expire and needed to be worked out with UST.
UST then agreed to "salt the Earth with the shareholders carcasses and make sure that they never go private again" and DeMarco signed off on the NWS with little thought and deliberation.
Hamish Hume asked DeMarco WHY HE DIDN'T do one of the other options that were available to him under the SPSA. He never asked his senior staff at FHFA about them and he said he knew Congress was going to "fix the broken system" anyway.
There were plenty of other non nationalizing options available to him under the SPSA and he consciously ignored them.
No, when DeMarco decided to implement the NWS, he bypassed other options in the SPSA that would not have Nationalized the GSES.
Major Questions of Economic and Political Importance, like the future of the US Secondary Mortgage Markets belong exclusively with our elected representatives in the US Congress.
HERA delegated power to the FHFA to run the conservatorships in a way that could "benefit the FHFA or by extension the public it serves", it did not delegate the power to decide the future of the US Secondary Mortgage Markets in the US.
Let's let a federal circuit decide the issue.
The 1 paragraph opinion in Bhatti is not controlling precedent in the other federal Circuits.
Try again, but, I appreciate you and Family Mangs efforts to help.
Each seperate federal agency action that infringes on the exclusive right of Congress to decide Major Questions of Political and Economic Importance is fair game for challenge in the courts.
The student loan forgiveness case to be heard at the end of this month may provide more guidance from the SCOTUS.
That's right, I don't think anyone has brought up the Major Questions Doctrine in ANY of the cases!
Family mang and No Name are misplaced in their thinking that the 2021 Bhatti 3 Judge Appealate Panel Decision means that ALL cases in ALL federal Circuits that claim a Nondelegation Doctrine violation won't work. Besides the Major Questions Doctrine can also be viewed as a Seperation of Powers case, since the US Congress and NOT UNELECTED BURAUCRATS need to decide Major Questions of Economic and Political Importance.
THERE'S ONLY ONE WAY TO KNOW FOR SURE THOUGH !
"From this perspective, the major questions doctrine has more to do with the Steel Seizure case and its concerns over unsanctioned executive action than with the nondelegation doctrine. None of these statements directly address the major question doctrine."
https://www.yalejreg.com/nc/synposium-shane-democracy-chief-executive-07/#:~:text=From%20this%20perspective%2C%20the%20major,than%20with%20the%20nondelegation%20doctrine.&text=None%20of%20these%20statements%20directly%20address%20the%20major%20question%20doctrine.
------------
"By now most have heard of the landmark Supreme Court case West Virginia v. EPA, 597 U.S. _, 2022, which—with Chief Justice Roberts delivering the Court’s opinion—clarified and cemented a new rule of statutory interpretation called the “major questions doctrine” (MQD). This prudential doctrine requires that an agency point to a “clear congressional authorization” when claiming authority from a statute. It is unclear at this time how frequently litigants and lower courts will employ this doctrine, which the Supreme Court devised to address a “recurring problem” of agency overreach, or whether the test will come up only in “extraordinary cases.” While the Court declined to articulate a specific standard for the lower courts to follow, it is possible to glean the contours of the doctrine from the majority opinion and concurrence.
Chief Justice Roberts held that the Clean Power Plan was a major question in West Virginia v. EPA because it involved a “transformative expansion” of the EPA’s regulatory authority, which stemmed from an infrequently used provision of the Clean Air Act, and because the plan had the potential to affect many aspects of national policy involving subjects outside the EPA’s traditional realm of expertise. Ultimately, the opinion holds that: “A decision of such magnitude and consequence rests with Congress itself, or an agency acting pursuant to a clear delegation from that representative body.” One can glean that the MQD might apply where an agency’s new policy or rule will have a significant impact on the economy or national policy and springs from an enlargement of an agency’s power or growth in a new area of regulation, or if the agency’s use of the statute is novel."
https://www.americanbar.org/groups/environment_energy_resources/publications/trends/2022-2023/january-february-2023/the-major-questions-doctrine/
---------
"The “major questions doctrine” used to be a narrow exception to federal courts’ traditional deference to regulatory agencies in interpreting the statutes they administer. But now, the exception has swallowed the rule, and courts appear ready to apply it to any case of importance, instead of only those that are “extraordinary.”
The result will likely be a restriction on federal agency power to act, and has the potential to create a dramatic shift in power from the executive to the judiciary.
More Topics Described as ‘Significant’
Research of Bloomberg Law’s federal docket filings, searching for the phrases “economic and political significance” or “economic and political magnitude,” shows that the use of these phrases in docket filings preceded the use of “major questions doctrine,” but also that the use of all three phrases has drastically increased in recent years."
"...the trend toward increased court approval of this doctrine, fueling litigants’ willingness to argue it, is clear."
"From arguments in briefs to trial court rulings, and all the way to the nation’s highest court, the major questions doctrine is a hot topic. "
https://news.bloomberglaw.com/bloomberg-law-analysis/analysis-the-significance-behind-the-major-questions-quandary
So this is the 1 paragraph opinion that you believe decides the question as to whether or not the Major Questions Doctrine DOESN'T apply here?
Didn't DeMarco say during testimony in Lamberth's trial (he made direct eye contact with me when he said it) that he also implemented the NWS to "let Congress fix the broken system"?
Was he wearing his conservatorship hat or Regulator hat when he implemented the NWS and Nationalized the 2 lynchpins of the US Secondary Mortgage Market?
From the 3 Judge Appealate Panel in the 8th Circuit Bhatti case and their one paragraph decision that invalidated the Major Questions Doctrine according to your legal analysis (I added bold):
"Congress’s delegation of authority directs the FHFA to act as a “conservator,” with clear and recognizable instructions.12 U.S.C. § 4617(a). “[T]he Agency is authorized to take control of a regulated entity's assets and operations, conduct business on its behalf, and transfer or sell any of its assets or liabilities.” Collins, 141 S. Ct. at 1776,citing12 U.S.C. §§ 4617(b)(2)(B)-(C), (G). “When the FHFA exercises these powers, its actions must be ‘necessary to put the regulated entity in a sound and solvent condition’ and must be ‘appropriate to carry on the business of the regulated entity and preserve and conserve [its] assets and property.’” Id. (alteration in original), quoting 12 U.S.C. § 4617(b)(2)(D). “ Thus, when the FHFA acts as a conservator, its mission is rehabilitation, and to that extent, an FHFA conservatorship is like any other.” Id. There is one difference: “when the FHFA acts as a conservator, it may aim to rehabilitate the regulated entity in a way that, while not in the best interests of the regulated entity, is beneficial to the Agency and, by extension, the public it serves.” Id. But this difference clarifies that serving the public is one goal of the FHFA’s conservatorship; it does not render the delegation unintelligible. Seeid. (explaining how the FHFA works to rehabilitate housing in the public interest under the statute). In light of the Court’s identification of the principles guiding the FHFA, it is clear those principles are intelligible. See Saxton v. Fed. Hous. Fin. Agency, 901 F.3d 954, 960 (8th Cir. 2018) (Stras, J., concurring) (“The provision is broad but not boundless.”). Congress’s delegation in the Recovery Act was permissible. Id.at 963 (“Picking among different ways of preserving and conserving assets, deciding whose interests to pursue while doing so, and determining the best way to do so are all choices that the Housing and Economic Recovery Act clearly assigns to the FHFA, not the courts.”). This court affirmsdismissal of the nondelegation claim."
I appreciate the vigorous debate and of course reasonable minds will disagree! But we've seen the US Government will utilize their virtually unlimited resources and time to keep their bounty from the Net Worth Sweep. And venting those arguments and counterarguments here is a productive use of our time while we sit and watch the current round of litigation proceed.
I'm very appreciative of you and Family taking the time to present the counter Arguments!
When the FHFA acts under its statutory powers in HERA it will usually wear 1 of 2 hats, conservator or Regulator.
Which hat do YOU think the FHFA was wearing when it implemented the Net Worth Sweep on August 17, 2012?
DeMarco testified during Lamberth's trial (he had eye contact with me when he said it!) that one of the reasons he implemented the NWS, (in addition to "preserving and conserving the GSES" as he stated in his initial testimony), was so that the US Congress "could fix the broken system".
A UST official, Jim Parrot stated in an email that the purpose of the NWS was to "salt the Earth with the shareholders carcasses and make sure that they never go pretend private again". Jim Parrot's email was excluded from the Lamberth trial per Defendant's request in pretrial motions I believe.
What happens when a federal agency head like DeMarco agrees to take ALL the future profits of their conservatees into perpetuity? He has made a decision to Nationalize the GSES, a regulatory action that violates the Major Questions Doctrine, since only the US Congress could decide to Nationalize the GSES, not the head of a federal agency.
That matter seems ripe for presentment to our federal Judiciary to decide, don't you agree?
Thanks Family for addressing my quest to have the Major Questions Doctrine become a novel Constitutional Challenge to the NWS!
The Bhatti case was about the Nondelegation Doctrine in the context of the APPOINTMENTS CLAUSE APPLICATION NOT THE MAJOR QUESTIONS DOCTRINE, right?
In Bhatti, the Nondelegation Doctrine issue was whether or not the Acting FHFA Director had the authority under Clause 2 Section 2 of the US Constitution, not whether or not a federal agency could decide to Nationalize the 2 lynchpins of the US Secondary Mortgage Market.
I'd rather hear it from a man wearing a black robe not one with No Name !
Lots of federal government overreach here in this bizarre fact pattern. The government will attack these arguments vigorously so you have to anticipate their counter Arguments in advance before filing your lawsuit and get ready to be swamped by a small army of attorneys opposing you.
Neither the common nor the JPS have any economic rights in their shares and the August 17, 2012, Net Worth Sweep was a decision by the FHFA Director to Nationalize the GSES, utilizing the Incidental Powers in HERA.
While the US Congress delegated its power for the FHFA to decide "what's in the best interests of the FHFA and/or the public it serves", it cannot delegate its power to a federal agency to decide major questions of Economic and Political Importance. For instance, Nationalizing the 2 lynchpins of the US Secondary Mortgage Market.
Read Justice Gorsuch's Concurring opinion in IIA.
Here's WV v EPA:
"Precedent teaches that there are “extraordinary cases” in which the
“history and the breadth of the authority that [the agency] has as-
serted,” and the “economic and political significance” of that assertion,
provide a “reason to hesitate before concluding that Congress” meant
to confer such authority. FDA v. Brown & Williamson Tobacco Corp.,
529 U. S. 120, 159–160. See, e.g., Alabama Assn. of Realtors v. Depart-
ment of Health and Human Servs., 594 U. S. ___, ___; Utility Air Reg-
ulatory Group v. EPA, 573 U. S. 302, 324; Gonzales v. Oregon, 546
U. S. 243, 267; National Federation of Independent Business v. OSHA,
595 U. S. ___, ___. Under this body of law, known as the major ques-
tions doctrine, given both separation of powers principles and a prac-
tical understanding of legislative intent, the agency must point to
“clear congressional authorization” for the authority it claims. Utility
Air, 573 U. S., at 324. Pp. 16–20."
Justice Gorsuch explains in his Concurring opinion:
"The major questions doctrine works in much the same
way to protect the Constitution’s separation of powers.
Ante, at 19. In Article I, “the People” vested “[a]ll” federal
“legislative powers . . . in Congress.” Preamble; Art. I, § 1.
As Chief Justice Marshall put it, this means that “im-
portant subjects . . . must be entirely regulated by the leg-
islature itself,” even if Congress may leave the Executive
“to act under such general provisions to fill up the details.”
Wayman v. Southard, 10 Wheat. 1, 42–43 (1825). Doubt-
less, what qualifies as an important subject and what con-
stitutes a detail may be debated. See, e.g., Gundy v. United
States, 588 U. S. ___, ___–___ (2019) (plurality opinion) (slip
op., at 4–6); id., at ___–___ (GORSUCH, J., dissenting) (slip
op., at 10–12). "
"It is vital because the framers believed that a republic—
a thing of the people—would be more likely to enact just
laws than a regime administered by a ruling class of largely
unaccountable “ministers.” The Federalist No. 11, p. 85 (C.
Rossiter ed. 1961) (A. Hamilton)."
II
A
"Second, this Court has said that an agency must point to
clear congressional authorization when it seeks to regulate
“‘a significant portion of the American economy,’” "
"Other suggestive factors are present too. “The electric
power sector is among the largest in the U. S. economy,
with links to every other sector.”
"It is only to say that the agency
seeks to resolve for itself the sort of question normally re-
served for Congress. As a result, we look for clear evidence that the people’s representatives in Congress have actually
afforded the agency the power it claims."
"B
At this point, the question becomes what qualifies as a
clear congressional statement authorizing an agency’s ac-
tion. Courts have long experience applying clear-statement
rules throughout the law, and our cases have identified sev-
eral telling clues in this context too.
First, courts must look to the legislative provisions on
which the agency seeks to rely “‘with a view to their place
in the overall statutory scheme.’” Brown & Williamson,
529 U. S., at 133. “[O]blique or elliptical language” will not
supply a clear statement. "
"Second, courts may examine the age and focus of the stat-
ute the agency invokes in relation to the problem the agency
seeks to address. "
"As the Court details, the agency
before us cites no specific statutory authority allowing it to
transform the Nation’s electrical power supply. See ante,
at 28. Instead, the agency relies on a rarely invoked statu-
tory provision that was passed with little debate and has
been characterized as an “obscure, never-used section of the
law.” Ante, at 6 (internal quotation marks omitted). Nor
has the agency previously interpreted the relevant provi-
sion to confer on it such vast authority; there is no original,
longstanding, and consistent interpretation meriting judicial respect."
"When Congress seems slow to solve problems, it may be
only natural that those in the Executive Branch might seek
to take matters into their own hands. But the Constitution
does not authorize agencies to use pen-and-phone regula-
tions as substitutes for laws passed by the people’s repre-
sentatives. In our Republic, “t is the peculiar province of
the legislature to prescribe general rules for the govern-
ment of society.” Fletcher v. Peck, 6 Cranch 87, 136 (1810).
Because today’s decision helps safeguard that foundational
constitutional promise, I am pleased to concur."
The Incidental power according to the Collins decision to validly implement the NWS came from HERA. When a federal agency such as the FHFA utilizes its statutory powers to act "in its own best interests and/or the public it serves" and nationalizes the 2 lynchpins of the US Secondary Mortgage Markets it has infringed upon the EXCLUSIVE power of the US Congress to decide questions of National Economic and Political Importance.
I thought you were a bankruptcy reorg man, are you telling me that you also are an expert in Administrative Law?
Why don't you show me some case law, where the courts failed to recognize that the major questions doctrine was applicable?
The case you quoted, Mistretta, was that about challenging a federal agency regulation?
No, but if the federal government overreach continues with a double dipping of the theft, a well thought out piece of Litigation challenging a major action of the FHFA and/or UST may be effective. Cheers!
HeeeeHeeee! Only us 'evil mortgage banksters' shareholders care about the Gubmint overreach here!
Great job! That's exactly why I come to this board, to share and debate all the different moving parts of this bizarre fact pattern!
You're quoting Mistretta v. United States, 488 U.S. 361 (1989), where the Majority Opinion is quoting former POTUS Taft who subsequently went on to head the USSCT (busy Dude, right!).
Mistretta was caught possessing cocaine with intent to distribute and was sentenced within the Sentencing Guidelines, a form Judges use to sentence criminal Defendants, that form was developed by a panel of experts that the defendant alleges was developed in violation of the US Constitution under the Nondelegation Doctrine.
Held: "The Constitution's structural protections do not prohibit Congress from delegating to an expert body within the Judicial Branch the intricate task of formulating sentencing guidelines consistent with such significant statutory direction as is present here, nor from calling upon the accumulated wisdom and experience of the Judicial Branch in creating policy on a matter uniquely within the ken of judges."
https://supreme.justia.com/cases/federal/us/488/361/
The 1989 USSCT opinion says, "Accordingly, this Court has deemed it "constitutionally sufficient if Congress clearly 373*373 delineates the general policy, the public agency which is to apply it, and the boundaries of this delegated authority." American Power & Light Co. v. SEC, 329 U. S. 90, 105 (1946)."
It is true that the US Congress can't possibly have the expertise to regulate something like Radio Frequency Waves on the Wireless spectrum or the safety of drugs and meat and DELEGATES to the FCC, FDA, and the USDA, in effect "mini governments", a legislative, judicial, and executive branch all in one into EACH of these federal agencies.
These federal agencies then unleash their "wisdom" on the American people and their businesses.
These federal agencies began with the ICC in the late 1800's to today with hundreds of federal agencies regulating and delving into the minutiae of Americans lives and businesses (do you like cooking with a gas stove?)
America has come along way in Administrative Law since Taft, Woodrow Wilson, and James M Landis espoused their views on their benefits to American Society and these federal agencies powers began and likely peaked with the Chevron Defence holding in the late 1980's.
Although the US Congress CAN delegate its powers to an administrative state (e.g., the FHFA), when it delegates its powers to the FHFA to "do what's in the best interests of the FHFA and/or the public it serves", the FHFA cannot Nationalize the 2 lynchpins of the US Secondary Mortgage Markets as that power, to decide MAJOR QUESTIONS of Political and Economic Importance on behalf of the American people, is RESERVED CONSTITUTIONALLY FOR EXCLUSIVE USE by our ELECTED REPRESENTATIVES IN CONGRESS.
See WV v EPA, decided in June 2022.
Here's a nice historical perspective from a Columbia Law Professor on the history of the Administrative State:
https://www.cato.org/multimedia/cato-video/administrative-law-unlawful
This Columbia University Law Professor makes some compelling arguments and this fact pattern fits comfortably within why the Nondelegation Doctrine should be important to the American people and how they are governed.
He's also CEO of the National Civil Liberties Alliance, here's their website:
https://nclalegal.org/moroney-cfpb/
Maybe. But mounting a new legitimate constitutional challenge to the NWS and/or other FHFA and/or UST agency action should prevent the dilution solution and instant recap from happening after the current round of litigation has been exhausted and the FHFA and UST decide to double dip on the theft here.
Are you familiar with the latest developments in the Nondelegation Doctrine or is that something that the bankruptcy reorg man doesn't believe is worthy of his time?
Those are some great questions. I think a denial would be the best outcome for GSE Shareholders, although the trial Judge didn't think it was procedurally appropriate for him to rule on the Appropriations Clause challenge.
Also, the FHFA is not the CFPB BUT both have double insulated Appropriations Oversight Process Bypass Mechanisms.
Then, what about the Federal Reserve? You don't want politicians deciding monetary policy, right?
It is possible that the SCOTUS takes the CFPB case and neuters the remedy like in Collins, kinda removes all the motivation for the Citizens to make the US Government comply with the Constitution.
My favorite outcome, BULLDOZE DODD FRANK AND HERA, which seems very unlikely, but this isn't the first Unconstitutional Provision in DODD FRANK AND HERA that the Supremes have had to rewrite and blue pencil in a fix.
I thought that the founders wanted the US Congress to WRITE THE LAWS NOT THE JUDICIARY!
Challenging the NWS and Nationalization and drawing attention to the federal government overreach here is important.
One Unelected Bureaucrat (DeMarco) shouldn't be able to solely decide (with practically zero thought and deliberation with zero analysis from his senior staff!) such a monumental decision affecting the lives of all 333,000,000 Americans.
Nationalizing the 2 lynchpins of the Secondary Mortgage Markets is a decision that is RESERVED for our ELECTED REPRESENTATIVES IN CONGRESS, NOT DEMARCO!
15 years ago, pre CONservatorship, the average GF paid by the American Family to access the GSES Implicit Federal Guarantee and Subsidy was one-half to one-third LESS THAN today. Renters are impacted as well because the increased pricing is passed on through the American housing market through rents.
The Nationalization also affected Community Banks who held large positions in JPS and countless hard working Americans who had GSE shares in their Employer and self funded Retirement Plans and hard working American Retirees and people like us.
Nationalization is a horrible public policy, with predictable results, just ask any Venezuelan or citizen from a Banana republic.
The SCOTUS will consider the CFPB Petition at their February 17th conference.
If the SCOTUS denies the Petition then Collins will likely move forward in the 5th Circuit Appealate Court.
If the SCOTUS grants the Petition, I imagine they would schedule Orals to be heard in the Fall Term. In that case, Collins will likely be heard after the SCOTUS decides on the Appropriations Clause issue.
Doug Duncan (Fannie Mae Chief Economist) with Diane Olicik interview today:. https://www.cnbc.com/2023/02/10/home-prices-mortgage-rates-fall.html
Just speculation on my part, but the 5th Circuit Appealate Court would likely put on hold the Collins appeal if the SCOTUS decides to grant cert on the CFPB case mainly for Judicial efficiency purposes.
She insisted when HERA was being written that the FHFA Director be Insulated from the POTUS and the FHFA budget from Congressional Appropriations Oversight.
If you can't build consensus with the peoples representatives in Congress and the POTUS JUST HAVE UNELECTED BURAUCRATS IN DC TAKE CARE OF THE DETAILS, (LIKE DEMARCO), THEY ALWAYS KNOW THE BEST ACTIONS TO TAKE, (LIKE THE NWS).
It'll move today when you exchange your JPS for Common, a special conversion sale is going on NOW, just for YOU... Exchange 1 JPS for 4 Common!
You must act NOW! This is a LIMITED TIME OFFER! !
I'm not keeping up with that one. Did you check Glen Bradfords Fannie gate page for a recent filing, I thought I saw a filing there recently, but have focused on the Appointments Clause arguments in Rop, the Insulated Director and Appropriations Arguments in Collins, and I'm still researching the Major Questions Doctrine in case the current round of litigation is goose eggs for the Shareholders.
Plenty of government overreach here to challenge and for me it's quite intellectually interesting!
Any summary update on the latest happenings in the Derivative cases would be appreciated.
"AN OFFER THE GSES BOARDS OF DIRECTORS COULDN'T REFUSE! !"
That's my Uncle Suggy !
Oh, I just read Family mang post, so that one was another goose egg.
But I'm pretty sure ALL CONSTITUTIONAL CHALLENGES TO THE NWS AND/OR ANY OTHER FHFA AND/OR UST AGENCY ACTION ARE FAIR GAME FOR THE FEDERAL CIRCUIT COURTS.
Are you referring to the Sweeney case or the Appointments Clause case (Rop)?
The Rop Petition for a Writ of Certerrori was filed a couple of days ago.
Litigation ends at the USSCT. Apparently the shareholders have no 5th Amendment Takings Clause Right because financial intermediaries can't exclude the government from entering their property, since they can come on the property to inspect the books, etc.
No right to exclude, no Taking.
What do you think about the Appointments Clause in the Rop Petition for a Writ of Certerrori?
Did you ever read the Petition?
"As FHFA expected, the Net Worth Sweep resulted
in massive and unprecedented payments to the
government. All told, through the third quarter of
2019, the Net Worth Sweep has required the
companies to transfer to Treasury over $300 billion in
purported dividends—$136 billion more than
Treasury could have received under the original
agreements. See FHFA, TABLE 2: DIVIDENDS ON
ENTERPRISE DRAWS FROM TREASURY,
https://bit.ly/33Bqlz0. By that time, Treasury had
already recouped over $109 billion more than it
disbursed to the Companies. See id.; FHFA, TABLE 1:
QUARTERLY DRAWS ON TREASURY COMMITMENTS TO
FANNIE MAE AND FREDDIE MAC PER PSPAS,
https://bit.ly/3e0AlDK."
You'll love this one, Jog, from Senator Elizabeth Warren: "It's going to take an ALL HANDS GOVERNMENT APPROACH to bring down housing costs!"
And she gets really excited when she says it!
She said "evil corporate landlords" at least 1/2 dozen times.
She's fighting for us Jog!
The 180 degree approach to American Housing between the two parties in Congress is amazing, one side says Gubmint is the solution, the other free markets!
No, I think EVERYONE in Mortgage Banking learned that giving anyone with a pulse a mortgage was not a good idea for the borrowers, lenders, the housing market, and the world economy.
You can see how far the pendulum of easy credit has swung from 2005-8 to today. Higher fico's higher down payments real underwriting.
Dr. Christopher Herbert (Freddie Mac Board Member/Harvard Housing Center) and Dr. Robert Deitz (NHBA Chief Economist) identify the shortage of starter single family homes (approximately 1600 sf or less) as large contributors to the affordable housing problem.
Reasons: (1). Zoning boards and local communities typically desire larger footprint homes
(2). Lack of condo and townhouse building
(3). Most Multifamily built tends to be high density high rise in central business districts and not garden style apartments and modest income apartments in the suburbs.
The latest Amicus Brief filed by 42 Senators says that a federal agency action by the Department of Education is Unconstitutional because it violates the Major Questions Doctrine as articulated in WV v EPA last June.
Does the NWS violate the Major Questions Doctrine?. Did Congress delegate its power to the FHFA to decide whether or not to Nationalize the 2 lynchpins of the US Secondary Mortgage Market, thus affecting every US household?
"A. The Major Questions Doctrine Applies.
To start, “[w]here the statute at issue is one that
confers authority upon an administrative agency,” the
interpretive “inquiry must be ‘shaped, at least in some
measure, by the nature of the question presented’—
whether Congress in fact meant to confer the power
the agency has asserted.” West Virginia, 142 S. Ct. at
2607–08 (quoting FDA v. Brown & Williamson
Tobacco Corp., 529 U.S. 120, 159 (2000)). To that end,
the “major questions doctrine” calls for “skepticism”
before accepting extraordinary claims of regulatory
authority. Id. at 2614.
This Court “presume[s] that ‘Congress intends to
make major policy decisions itself, not leave those
decisions to agencies.’” Id. at 2609 (citation omitted).
That presumption rests on the understanding that
Congress will “speak clearly when authorizing an
agency to exercise powers of ‘vast economic and
political significance.’” Ala. Ass’n of Realtors v. HHS,
141 S. Ct. 2485, 2489 (2022) (per curiam) (quoting
Util. Air Reg. Grp. v. EPA, 573 U.S. 302, 324 (2014)).
And it simultaneously “operates to protect
foundational constitutional guarantees.” West
Virginia, 142 S. Ct. at 2616 (Gorsuch, J., concurring).
By vesting “[a]ll legislative Powers” in Congress,
U.S. Const. art. I, § 1, the Framers believed that
“‘important subjects must be entirely regulated by the
legislature itself,’ even if Congress may leave the
Executive ‘to act under such general provisions to fill up the details.’” West Virginia, 142 S. Ct. at 2617
(Gorsuch, J., concurring) (cleaned up) (quoting
Wayman v. Southard, 23 U.S. (10 Wheat.) 1, 42–43
(1825) (Marshall, C.J.)). The major questions doctrine
safeguards that constitutional division of authority,
preventing agencies from seizing “highly
consequential power beyond what Congress could
reasonably be understood to have granted.” Id. at
2609 (majority op.).
“[T]his is a major questions case” if there ever was
one. Id. at 2610. First, the Secretary has indisputably
asserted a “power[] of vast economic and political
significance.” Ala. Ass’n of Realtors, 141 S. Ct. at 2489
(quotation marks omitted). The staggering price tag
of his action—roughly half a trillion dollars—dwarfs,
by an order of magnitude, what has sufficed to trigger
the major questions doctrine in the past. See id. ($50
billion). And for years, the propriety of student loan
forgiveness has “been the subject of an earnest and
profound debate across the country.” Gonzales v.
Oregon, 546 U.S. 243, 267 (2006) (quotation marks
omitted); see, e.g., Seung Min Kim & Marianna
Sotomayor, Biden signals he’s open to canceling
student loans, Washington Post (Apr. 26, 2022, 2:56
PM), bit.ly/3w1V3fp (“The issue of forgiving student
loans has long been politically fraught.”). Those
considerations alone should give the Court pause. See
NFIB, 142 S. Ct. at 665 (majority op.).
Moreover, the Secretary has “claim[ed] to discover”
in the HEROES Act an “unheralded power” to issue a
mass cancellation of student loan debt. Util. Air, 573
U.S. at 324. Until now, the Department of Education
“ha[d] never relied on the HEROES Act” for the “blanket or mass cancellation, compromise, discharge,
or forgiveness of student loan principal balances.”
Memorandum from Reed D. Rubinstein, Principal
Deputy General Counsel, Department of Education, to
Betsy DeVos, Secretary of Education at 6 (Jan. 12,
2021), bit.ly/3H602Ca. Nor could it. “Congress never
intended the HEROES Act as authority for mass
cancellation.” Id. And the text and context of the Act
make that crystal clear. See infra Section I.B.
Equally troubling, the Secretary here claims
authority “to adopt a regulatory program that
Congress had conspicuously and repeatedly declined
to enact itself.” West Virginia, 142 S. Ct. at 2610.
Both before and after the pandemic, numerous bills
proposing similar, broad cancellation of student loans
were introduced.5 But none managed to pass through
the “single, finely wrought and exhaustively
considered, procedure” that our Constitution
demands. INS v. Chadha, 462 U.S. 919, 951 (1983).
That Congress “has considered and rejected bills
authorizing something akin” to the Cancellation Program shows that the Secretary has “attempt[ed] to
work around the legislative process to resolve for
[himself] a question of great political significance.”
West Virginia, 142 S. Ct. at 2621 (Gorsuch, J.,
concurring) (cleaned up) (citations omitted); see also
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579,
586 (1952) (recognizing that the seizure power “was
not only unauthorized by congressional enactment;
prior to this controversy, Congress had refused to
adopt that method of settling labor disputes”). Indeed,
when coupled with the President’s campaign promise,
and the conspicuous pre-election timing, that
conclusion is inescapable.
The Secretary suggests that the major questions
doctrine should not apply to cases involving
government benefits. See Pet. Br. at 48–49. But such
cases can pose the same “particular and recurring
problem” that the doctrine aims to address: “agencies
asserting highly consequential power beyond what
Congress could reasonably be understood to have
granted.” West Virginia, 142 S. Ct. at 2609 (majority
op.). This case proves the point. And, if anything,
Congress’s exclusive power to spend and forgive the
monies owed to the government should make this
Court even more reluctant to believe that it broadly
delegated that core legislative power here.
Despite the Secretary’s blinkered belief that
forgiving roughly half a trillion dollars will not
significantly affect the lives of others, see Pet. Br. at
49, that belief is simply untrue. Other Americans will
have to pick up the tab, to the tune of over $2,500 per taxpayer.6 And the problems do not stop there. As
former Treasury Secretary Lawrence Summers has
explained, the Administration’s massive handout will
only exacerbate inflation, “consume[] resources that
could be better used helping those who did not, for
whatever reason, have the chance to attend college,”
and incentivize schools to “rais[e] tuitions” in the long
run for others.7
In short, “there is every reason to ‘hesitate before
concluding that Congress’ meant to confer on [the
Secretary] the authority [he] claims” under the
HEROES Act. West Virginia, 142 S. Ct. at 2610
(citation omitted). Whether to cancel almost half a
trillion dollars in debt for 40-million-plus borrowers is
a monumental decision that affects every American.
And “[t]he basic and consequential tradeoffs involved
in such a choice are ones that Congress would likely
have intended for itself.” Id. at 2613. Therefore, the
major questions doctrine applies.
Well, I don't think writing a letter to your Congressman is going to work here since they are clueless. It seems like it's perpetual CONservatorships unless our Gubmint overlords act benevolently to the beleaguered shareholders, and listening to JB last night, I don't think the Fortune 500 is on his Christmas Card List (nor has it ever been !)
Litigation may result in Goose Eggs for shareholders in the end, but I have nothing but admiration for those brave souls that are at least trying to exercise US Constitutional Rights in an attempt to take back the shareholders property and some Liberty after 14+ years of CONservatorships and what I believe is abusive and coercive governmental overreach by the 4th Branch of Gubmint.
And if the SCOTUS grants the shareholders Petition for a Writ of Certerrori then they may agree with the DC, other federal Circuits, USSCT precedent, and historical understanding and eventually rule in the shareholders favor and MAYBE get DeMarco's most boneheaded federal agency action, the NWS invalidated.
If the SCOTUS denies the shareholders Petition for a Writ of Certerrori than Article 2, Clause 2 of the US Constitution is meaningless and the Administrative State has a new weapon to interfere with and control all 333,000,000 Americans, their businesses, and their Liberty from Gubmint overreach.
No I hear you, I'm just saying that there's plenty of constitutional reasons to overturn the NWS and I think you should rest your final judgement after ALL of them have been adjudicated. That's all.
Perhaps the "fix is in" or it's "a conspiracy by the Federalist Society", we will find out in the end (if father time doesn't win 1st!).
I realize what a pain in the arse this Gubmint/Private Capital partnership is with the rampant theft and pillaging by our 'dear leaders' in Gubmint, but the intellectual dividends offered by this stock holding is enjoyable for me personally, as it touches all my favorites, Law, Finance, Real estate, the inherent weaknesses in the human condition, Economics, Politics.