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"Funding an agency in perpetuity without congressional action is a recipe for unaccountability. It defeats both the Constitution's text and spirit." (From Todays WSJ).
Here's what one of our 'dear leaders' stated on Friday, (from Sundays Washington Post): "Attacking the Constitution and all it stands for is anathema to the soul of our nation and should be universally condemned," White House spokesman Andrew Bates said in a statement, calling the Constitution a "sacrosanct document."
"As James Madison emphasized in Federalist No. 58, Congress's power of the purse was intended to be the "powerful instrument" preventing "all the overgrown prerogatives of the other branches of the government." Requiring the executive branch to ask Congress to raise revenue "requisite for the support of government" helps to ensure that administration is truly supported by the people. "This power over the purse," Madison emphasized, "may, in fact, be regarded as the most complete and effectual weapon with which any constitution can arm the immediate representatives of the people."
In Dodd-Frank, Congress simply signed away its power of the purse and created what Justice Antonin Scalia once called "a sort of junior-varsity Congress." The Fifth Circuit got it right, and if the Supreme Court takes up the case, it should return the constitutional purse to Congress, the people's trustee.
---"
At least 2 major problems with the US Government (via the NWS) acting in an opportunistic and profit maximizing capacity through the exploitation of it's 14+ year "conservatorship" are: (1) it disincentives the investing public from contributing 1st Loss Position Capital into private corporations that serve a public mission and (2) the legal precedent (if the NWS stands unscathed by the courts) will discourage future US significant financial intermediaries and corporate Board of Directors from accepting federal government money.
This will likely prolong and deepen the next inevitable financial/economic crisis and hurt many hard working American Families and Retirees holding publicly traded stocks and bonds and real estate.
I think familymang suggested a decision on whether or not the USSCT will grant the Petition for a Writ of Certerrori as 1Q23, does that sound right?
I remember this property rights case: " A Michigan county took a man’s house over an $8.41 underpayment and sold the property, leaving him with nothing. In that case, the county was so hell-bent on its position that it argued all the way up to the state’s supreme court that it had done nothing wrong. Fortunately, the Michigan Supreme Court found the county’s position unconstitutional."
https://homeequitytheft.org/
Prerequisite for a capital raise is that (almost) all lawsuits have been settled beforehand.
Apparently the WSJ is not a big fan of the GSES, from todays WSJ Editorial Board:. "The Federal Reserve's loose monetary policies fueled housing inflation, and now rising mortgage interest rates are pricing out buyers. So what does the Biden Administration do? Guarantee million-dollar mortgages, which will expand the taxpayer liability and housing-market dysfunction.
Congress created government-sponsored enterprises Fannie Mae and Freddie Mac to guarantee middle-class mortgages and make housing more affordable. Now the Administration is turning a government-backed mortgage into an entitlement for the affluent in coastal areas where zoning regulations drive up prices.
The Federal Housing Finance Agency (FHFA) said Tuesday it will increase the maximum size of mortgages that Fannie and Freddie will cover—known as the conforming loan limit—to $1,089,300 in high-cost areas from $970,800 this year and $765,600 in 2020. The conforming loan limit in other areas will rise to $726,200, from $510,400 two years ago.
Home prices surged during the pandemic as record low interest rates and the Fed's purchases of mortgage-backed securities reduced costs for buyers and fueled demand. But what the Fed giveth to homebuyers, it taketh as it combats inflation. The interest rate on a 30-year mortgage has averaged 6.8% this month, up from about 3% a year ago.
Higher interest rates have increased the monthly mortgage payment for the median $454,900 home by about $800 in the last year. In metro areas like Boston, Washington, D.C., and California's Bay Area, where many homes can sell for more than $1 million, new buyers are having to shovel out $2,000 more per month for a mortgage than a year ago.
New home construction is falling, which could weigh on the economy as housing helps drive demand for household goods. But a correction is overdue and would prevent the housing mania that ended in tears in 2008.
Instead, the Administration wants to prop up housing demand and prices by raising the guarantee limit. This will please the Realtors and affluent, especially in California areas where the median home price exceeds the new limit, such as Orange County ($1.2 million), San Francisco ($1.3 million) and San Jose ($1.7 million).
Sorry to state the obvious, but anyone who can qualify for a million-dollar mortgage doesn't need the government to subsidize it with a guarantee. The average 30-year interest rate on a jumbo loan is 6.8%, which is similar to a government-backed mortgage.
Borrowers with jumbo loans tend to have higher incomes and credit scores. But these mortgages are getting riskier as borrower monthly payments have risen faster than incomes. Layoffs are increasing in higher-paying fields like tech, and a recession could result in foreclosures. The FHFA is expanding the taxpayer liability at an especially risky time.
After Fannie and Freddie went bust during the housing meltdown, they were placed under government conservatorship and received a $190 billion bailout from Treasury. We argued for shrinking the taxpayer backstop by reducing the conforming loan limit. Instead, the limit has increased by 75% since 2015, which has boosted home prices and taxpayer liabilities.
The more the government intervenes in the housing market, the more damage it does.
Rising Loan Limits Are a New Federal McMansion Subsidy"
Credit: By The Editorial Board
Well, the reality is the GSES book of business is as strong as it has ever been.
Even with a 20% to 30% downturn in US Housing prices, the GSES will have Guarantee Fee income coming in so long as 80%+ of mortgagors continue paying on time.
I'm not sure why some think that the Litigation will disappear if a capital raise is done. Multi Billion dollar litigation just takes time and will likely quell Wall Streets appetite for newly issued GSE equities.
Besides, the status quo is acceptable to most parties with the exception of the jilted Shareholders who currently have zero economic rights in the GSES.
Sandra L Thompson can say, "At least with the status quo the GSES are retaining capital in a 1st Loss Position to absorb future loses and that would reduce taxpayer risk.", can't she?
You don't know that for sure do you. So you're betting on an administrative and/or Legislative fix?
If the courts do nothing, why would the administration and/or congress give up 100% control over the enterprises and the shareholders economic rights?
Because it's the RIGHT thing to do?
Maybe he could invite Sandra Thompson to a HSFC hearing entitled, "FHFA'S plans for exiting the 14 year plus conservatorship".....
$1,089,300 high cost area and $726,200 standard maximum mortgage amount to be backed by the GSES next year.
https://www.cnn.com/2022/11/29/homes/fannie-and-freddie-loan-limits-announcement-2023/index.html
https://singlefamily.fanniemae.com/originating-underwriting/loan-limits
https://www.fhfa.gov/mobile/Pages/public-affairs-detail.aspx?PageName=FHFA-Announces-Conforming-Loan-Limits-for-2023.aspx
Seems unlikely to me until the shareholders obtain more than a Phyric Victory at the courthouse.
One win could be enough of an impetus or catalyst, but there doesn't seem to be any outward signs that the necessary Bureaucrats are even discussing a meaningful exit.
Even if the federal government loses a case, it ain't over until the fat lady sings, which are 9 people in black robes....
One of Brian Deese's memos while he was at UST was used as an Exhibit by the Plaintiff Shareholders in the Lamberth trial.
Apparently, Brian Deese has his fingerprints on the NWS, I think.
Well, if you aren't going to buy a piece of real estate that has litigation pending and clouding the title, why would you invest in businesses that have litigation pending that could decide how much capital is in the 1st Loss Position?
In the meantime the GSES rebuild capital organically.
As Americans who have seen our Economic Rights obliterated by the August 17, 2012 NWS, we should probably at least ask what our Representatives and Senators can do to help end this 14+ year conservatorship of two profitable American Corporations.
No one is likely to restructure anything before the courts decide whether or not the NWS was a valid use of governmental power, right?
The lawsuits are still being pursued and multi Billion dollar litigation just takes time.
No question Senator Warren was the impetus for the single director ACCOUNTABLE TO NO ONE federal agency heads in the FHFA/CFPB.
I'm sure Justice Elena Kagan was also a fan!
We may never know the extent of O'Bummer's fingerprints on the Net Worth Swipe simply because Executive Privilege will protect it from Public Disclosure!
Returning some of the $300B+ in cash sweeps to Treasury would be a boast in the arm for the capital rebuild.
Politically it seems unpalatable, but a meaningfully favorable shareholder court win could do it.
Write a letter to Patrick McHenry and let him know.
A meaningful Shareholder win in the courts would probably send the sp moving rapidly upward depending on the likelihood of success on appeal.
Another catalyst would be concrete FHFA/UST/Administrative reform on the status quo.
Both the Executive Branch and Legislative Branch seem unlikely to act until the legal rights and obligations of the shareholders are resolved in the majority of the legal proceedings.
Although one significant Shareholder win could be enough of a catalyst to justify the administration to end the 14+ year CONservatorship.
In the meantime the GSES can begin the long capital rebuild process.
That was MC/SM's idea, right? The FHFA and UST can modify the PSPA anytime they want, can't they?
That's basically the Shareholders situation, that those in power are reluctant to give up that power. Here, the federal government has 100% control over our two private corporations for as long as they want, reap 100% of their Economic Rights, and fund an entire federal agency (or 90-98% of it) exclusively from the GSES balance sheets.
Did I mention that the GSES typically pay the top corporate federal tax rate and Sandra (or whichever party controls the FHFA) can at will subsidize their target market voter base with government subsidies (at the expense of the capital rebuild) related to Housing?
Amerika, my kinda country !
We need to find their pain points
HeeeHeeee! Nothing's going to happen until the shareholders get some type of catalyst to change the status quo.
The solution to the shareholders vanishing of their Economic Rights by the federal government overreach will have to be via one or more of the 3 branches of the federal government.
In theory a judiciary ruling in favor of the Plaintiff Shareholders could be an impetus for the executive branch to act.
Meanwhile at least in theory the GSES continue to build 1st Loss Capital via retained earnings.
Personally, I think we as Shareholders need a voice IN ALL 3 BRANCHES.
As I understand Judge Jones and the subsequent 3 Judge Appealate Panel Decision double insulation means the US Congress transferred its Appropriations Obligation (1) directly and (2) indirectly. (1) directly by having the FHFA set their own budget subject to a "reasonable amount necessary" and (2) indirectly by extracting the funding not from the US Treasury but via the GSES balance sheets (see CASH on the asset side):
"So Congress did not merely cede direct control over the Bu-
reau’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 appro-
priations process—a double insulation from Congress’s
purse strings that is “unprecedented” across the gov-
ernment. All Am. Check Cashing, 33 F.4th at 225
(Jones, J., concurring). And where the Federal Re-
serve at least remains tethered to the Treasury by the
requirement that it remit funds above a statutory limit,
Congress cut that tether for the Bureau, such that the
Treasury will never regain one red cent of the funds uni-
laterally drawn by the Bureau."
Nice! I wonder if David Thompson and his legal team had an opportunity to mention this in their amended filings prior to the district court judge ruling on the D's Summary Judgment Motion?
"That leaves the question of remedy. Though Col-
lins 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 Col-
lins, 141 S. Ct. at 1787-88; cf. All Am. Check Cashing, 33
F.4th at 241 (Jones, J., concurring) (finding Collins “in-
apt” for determining a remedy for the Bureau’s “budg-
etary 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, ... The remedy in those
cases, invalidation of the unlawful actions, flows “di-
rectly 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)."
"Put differently, Congress
plainly (and properly) authorized the Bureau to promul-
gate 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 con-
stitutionally 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."
..."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 rulemak-
ing 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. Plain-
tiffs are therefore entitled to “a rewinding of [the Bu-
reau’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, un-
der the APA, a “reviewing court shall . . . hold un-
lawful 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 sum-
mary judgment to the Bureau and in denying the Plain-
tiffs 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 prod-
uct of the Bureau’s unconstitutional funding scheme."
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 21-50826
COMMUNITY FINANCIAL SERVICES ASSOCIATION OF
AMERICA, LIMITED; CONSUMER SERVICE ALLIANCE OF
TEXAS, PLAINTIFFS-APPELLANTS
v.
CONSUMER FINANCIAL PROTECTION BUREAU;
ROHIT CHOPRA, IN HIS OFFICIAL CAPACITY AS
DIRECTOR, CONSUMER FINANCIAL PROTECTION
BUREAU, DEFENDANTS-APPELLEES
[Filed: Oct. 19, 2022]
Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:18-CV-295
THIS IS GREAT! "An expansive executive agency
insulated (no, double-insulated) from Congress’s purse
strings, expressly exempt from budgetary review, and
headed by a single Director removable at the Presi-
dent’s pleasure is the epitome of the unification of the
purse and the sword in the executive—an abomination
the Framers warned “would destroy that division of
powers on which political liberty is founded.” 2 THE
WORKS OF ALEXANDER HAMILTON 61 (Henry Cabot
Lodge ed., 1904)."
"...appropriations are required to meet the Framers’ salu-
tary aims of separating and checking powers and pre-
serving accountability to the people. The Act itself tac-
itly admits such a distinction in its decree that “[f]unds
obtained by or transferred to the Bureau Fund shall not
be construed to be . . . appropriated monies.” 12
U.S.C. § 5497(c)(2). We take Congress at its word.
But that is the rub."
"We cannot sum up better than Judge Jones did:
[T]he [Bureau]’s argument for upholding its funding
mechanism admits no limiting principle. Indeed, if
the [Bureau]’s funding mechanism is constitutional, then what would stop Congress from similarly di-
vorcing other agencies from the hurly burly of the ap-
propriations process? . . . [T]he general threat
to the Constitution’s separation of powers and the
particular threat to Congress’s supremacy over fiscal
matters are obvious. Congress may no more law-
fully chip away at its own obligation to regularly ap-
propriate money than it may abdicate that obligation
entirely. If the [Bureau]’s funding mechanism sur-
vives this litigation, the camel’s nose is in the tent.
When conditions are right, the rest will follow.
All Am. Check Cashing, 33 F.4th at 241 (Jones, J., con-
curring). The Bureau’s funding apparatus cannot be
reconciled with the Appropriations Clause and the
clause’s underpinning, the constitutional separation of
powers.
---------------
Looks like Judge Jones will no longer be receiving Holiday Greetings from Elizabeth Warren and Elena Kagan !
Does anyone know if HERA has a "not subject to House Appropriation Committee Review Clause like Dodd-Frank?
"To underscore the point, the Act explicitly states that
“[f]unds obtained by or transferred to the Bureau Fund
shall not be construed to be Government funds or appro-
priated monies.” Id. § 5497(c)(2). To underscore it
again, Congress expressly renounced its check “as a re-
striction upon the disbursing authority of the Executive
department,” Cincinnati Soap, 301 U.S. at 321, by leg-
islating that “funds derived from the Federal Reserve
System . . . shall not be subject to review by the
Committees on Appropriations of the House of Repre-
sentatives and the Senate.” Id. § 5497(a)(2)(C)."
So the Bureau’s funding is double-insulated on the
front end from Congress’s appropriations power. And
Congress relinquished its jurisdiction to review agency
funding on the back end. In between, Congress gave
the Director its purse containing an off-books charge
card that rings up “[un]appropriated monies.” Wher-
ever the line between a constitutionally and unconstitu-
tionally funded agency may be, this unprecedented ar-
rangement crosses it.14 The Bureau’s perpetual insula-
tion from Congress’s appropriations power, including
the express exemption from congressional review of its funding, renders the Bureau “no longer dependent and,
as a result, no longer accountable” to Congress and, ul-
timately, to the people. All Am. Check Cashing, 33
F.4th at 232 (Jones, J., concurring); see id. at 234 (de-
tailing examples showing that the Bureau’s “lack of ac-
countability is not just a theoretical worry”). By aban-
doning its “most complete and effectual” check on “the
overgrown prerogatives of the other branches of the
government”—indeed, by enabling them in the Bureau’s
case—Congress ran afoul of the separation of powers
embodied in the Appropriations Clause. See THE FED-
ERALIST NO. 58 (J. Madison).
14 JUDGE JONES emphasized the perpetual nature of the funding
mechanism and opined that an appropriation must be time-limited.
See All Am. Check Cashing, 33 F.4th at 238 (“[T]he separation of
powers idea underlying the Framers’ assignment of fiscal matters to
Congress requires a time limitation for appropriations to the execu-
tive branch.”). We need not decide whether perpetuity of funding
alone would be enough to render the Bureau’s funding mechanism
unconstitutional. Rather, the Bureau’s funding scheme—including
the perpetual funding feature—is so egregious that it clearly runs
afoul of the Appropriations Clause’s requirements."
It looks like BOTH the FHFA and the CFPB receive funding that is according to Judge Jones and the 5th Circuit Appealate Panel DOUBLE INSULATED FROM THE CONGRESSIONAL APPROPRIATIONS PROCESS!
"The Bureau thus “receives funding directly from the
Federal Reserve, which is itself outside the appropria-
tions process through bank assessments.” Seila Law,
140 S. Ct. at 2194; see 12 U.S.C. § 5497(a).13 So Congress did not merely cede direct control over the Bu-
reau’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 appro-
priations process—a double insulation from Congress’s
purse strings that is “unprecedented” across the gov-
ernment. All Am. Check Cashing, 33 F.4th at 225
(Jones, J., concurring). And where the Federal Re-
serve at least remains tethered to the Treasury by the
requirement that it remit funds above a statutory limit,
Congress cut that tether for the Bureau, such that the
Treasury will never regain one red cent of the funds uni-
laterally drawn by the Bureau."
"This novel cession by Congress of its appropriations
power—its very obligation “to maintain the boundaries
between the branches,” id. at 231—is in itself enough to
give grave pause. But Congress went to even greater
lengths to take the Bureau completely off the separa-
tion-of-powers books. Indeed, it is literally off the
books--------------------"
**************************
Troubling indeed, Judge Jones, troubling indeed!
"Drawing on the British experience, the Framers “carefully separate[d] the ‘purse’ from the ‘sword’ by assigning to Congress and Congress alone the power of the purse.” Tex. Educ. Agency v. U.S. Dep’t of Educ.,
992 F.3d 350, 362 (5th Cir. 2021).8
8 As Alexander Hamilton explained, the powers of “the sword and the purse” should never be placed in either the Legislative or Executive, singly; neither one nor the other shall have both; because this would destroy that division of powers on which political liberty is founded, and would furnish one body with all the means of tyranny. But when the purse is lodged
in one branch, and the sword in another, there can be no danger."
The Framers’ reasoning was twofold. First, they viewed Congress’s ex-
clusive “power over the purse” as an indispensable
check on “the overgrown prerogatives of the other
branches of the government.” The Federalist No. 58
(J. Madison). Indeed, “the separation of purse and
sword was the Federalists’ strongest rejoinder to Anti-
Federalist fears of a tyrannical president.” JOSH
CHAFETZ, CONGRESS’S CONSTITUTION, LEGISLATIVE
AUTHORITY AND THE SEPARATION OF POWERs 57 (2017).
The Framers also believed that vesting Congress
with control over fiscal matters was the best means of
ensuring transparency and accountability to the people.
See THE FEDERALIST NO. 48 (J. Madison) (“[T]he legis-
lative department alone has access to the pockets of the
people.”).9 As James Madison explained, the “power
over the purse may, in fact, be regarded as the most
complete and effectual weapon with which any constitution can arm the immediate representatives of the peo-
ple, for obtaining a redress of every grievance, and for
carrying into effect every just and salutary measure.”
THE FEDERALIST NO. 58 (J. Madison).10
This looks like the 3 part test a 3 Judge Appealate Court in the 5th Circuit will use in Collins (as articulated in the recent CFPB decision):
"We distill from these hypotheticals three requisites
for proving harm: (1) a substantiated desire by the
President to remove the unconstitutionally insulated ac-
tor, (2) a perceived inability to remove the actor due to
the infirm provision, and (3) a nexus between the desire
to remove and the challenged actions taken by the insu-
lated actor. This is borne out by the concurring Jus-
tices’ opinions as well. See id. at 1792-93 (Thomas, J.,
concurring); id. at 1801 (Kagan, J., concurring in part);
id. at 1803 n.1 (Sotomayor, J., concurring in part and dissenting in part). As Justice Kagan emphasized,
“plaintiffs alleging a removal violation are entitled to in-
junctive relief—a rewinding of agency action—only
when the President’s inability to fire an agency head af-
fected the complained-of decision.” Id. at 1801 (Ka-
gan, J., concurring in part) (emphasis added).
It is thus not enough, as the Plaintiffs would have us
hold, for a challenger to obtain relief merely by estab-
lishing that the unconstitutional removal provision pre-
vented the President from removing a Director he
wished to replace. As we read Collins, to demonstrate
harm, the Plaintiffs must show a connection between
the President’s frustrated desire to remove the actor
and the agency action complained of. See id. at 1789.
Without this showing, the Plaintiffs could put them-
selves in a better place than otherwise warranted, by
challenging decisions either with which the President
agreed, or of which he had no awareness at all. Id. at
1802 (Kagan, J., concurring in part)."
"In particular, as George Mason put it in Philadelphia in 1787, "[t]he purse & the sword ought never to get into the same hands.” 1 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 139-40 (M. Farrand ed. 1937).
These foundational precepts of the American system of government animate the Plaintiffs’ claims in this action. They also compel our decision today."
"But one arrow has found its
target: Congress’s decision to abdicate its appropria-
tions power under the Constitution, i.e., to cede its
power of the purse to the Bureau, violates the Constitu-
tion’s structural separation of powers. We thus re-
verse the judgment of the district court, render judg-
ment in favor of the Plaintiffs, and vacate the Bureau’s
2017 Payday Lending Rule."
5th Circuit 3 Judge Appealate Panel introduction in CFPB case.
Maybe one of the problems that the Plaintiff Shareholders are running into is that 3rd party triers of fact (i.e, either a Judge or Jury) are having a hard time complying with the Plaintiff Shareholders requests to them to command the federal government to fork over billions of $$$$'s and in Judge Ellison's case do what a panel of Appealate Judges commanded in the CFPB case and invalidate all litigation actions of the FHFA since inception in September 2008.
Why don't you read the 13 page opinion and tell me what you think?
Clarence, take a look at Footnote 2 on page 13. While the Supremes said there was no constitutional infirmity in implementing the NWS in Collins, if I'm not mistaken that was in the context of whether or not the FHFA Director on August 17, 2012 was Unconstitutionally Insulated or not.
For some reason I couldn't copy and paste from my pdf opinion but if you ever get a chance, read Footnote 2 and let me know what you think.
*Judge Ellison wrote: "Their new Appropriations Clause claims exceed the scope of the remand."
What did you think about the Appropriations Clause claim addition and the district court judge rejecting it as not an exception to the mandate rule?
I'm just saying that a group of triers of fact determined that what the government did here was wrong.