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Yes, I think the Shareholders need to let Co-Chair Senator Tim Scott and soon to be House Chair Patrick McHenry know about the injustice hard working American Retirees and Families have suffered from the now 15th year of CONservatorship by the FHFA.
I'll be here no question! I'm sure I'm a short term holder at just 40 years in 2028!
We just had 50% of the Jurors see the injustice here, didn't we?
When are we going to get our companies back and will the shares have ANY value?
HeeeHeeee! It's not going to take that long, I think!
I think Pat Toomey figured it out but he is leaving as I understand. Look at the bright side, you could always setup a trust for your grandkids !
Any idea who will run the House Finance Services Committee? They could haul Sandra in there and ask her some difficult probing questions related to the past, current, and future of the now 15th YEAR of the CONservatorship.
All American seemed to differentiate the unconstitutional Director removal restriction remedy in Collins from the more problematic unconstitutional agency funding issue.
Did you even read it?
Nicely done, thank you! The Power Point slides sound like an excellent idea!
Nice find FOF!: "Collins
drives the remedial inquiry pertaining to the CFPB Director’s
unconstitutional removal protections, but it says nothing about the remedy
for the CFPB’s independently unconstitutional funding mechanism.
Because the CFPB has prosecuted this enforcement
action using funds derived without a constitutionally footed appropriation or
oversight, the court should dismiss the enforcement action against the
appellants. A dismissal also comports with the Supreme Court’s admonition
that courts should “create incentives to raise” separation of powers
challenges by providing adequate remedies. Lucia, 138 S. Ct at 2055 n.5
(citing Ryder v. United States, 515 U.S. 177, 183, 115 S. Ct. 2031, 2035
(1995)).67
The Framers warned that such
an accumulation of powers in a single branch of government would inevitably
lead to tyranny. Accordingly, I would reject the CFPB’s novel funding
mechanism as contravening the Constitution’s separation of powers. And
because the CFPB funds the instant prosecution using unconstitutional self-
funding, I would dismiss the lawsuit."
Well, why didn't you file a lawsuit when HERA was passed into law in 2008 (or in 2012) to challenge the Constitutional Seperation of Powers violation (I'm asking for a friend . )!
Ahhh yes, the whole frickin reason we are challenging this gross federal agency overreach:
C. The Third Amendment must be set aside because FHFA’s funding structure
violates the Appropriations Clause.
Defendants also fail to make a persuasive argument against awarding a meaningful remedy
for Plaintiffs’ Appropriations Clause claims. Defendants invoke the Supreme Court’s discussion
of the remedy for Plaintiffs’ removal claims, but removal claims are “remedially speaking,
unique.” All Am. Check Cashing, 33 F.4th at 43 (citing Collins, 141 S. Ct. at 1791-93 (Thomas, J.,
concurring)); see also id. at 1788 (majority opinion) (distinguishing removal claims from other
separation of powers claims for purposes of remedy). Unlike a violation of the President’s removal
power, an unconstitutional funding scheme strikes at the heart of an agency’s authority to act. An
agency with no lawful source of funding cannot act, and “the remedy, invalidation, follows 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 42; cf. Harmon v. Brucker, 355 U.S. 579, 581–82 (1958)
(“Generally, judicial relief is available to one who has been injured by an act of a government
official which is in excess of his express or implied powers.”).
This is how Arnold & Porter are likely funded via the GSES very OWN BALANCE SHEET (see CASH on the Assets side of the balance sheets) to vigorously defend the Net Worth Swipe in the Lamberth trial (Uncle Suggy, you're such a bad boy! . ) : "If anything,
FHFA’s funding structure is more problematic than that of the CFPB. The CFPB is allowed to
collect and spend no more than 12% of the Federal Reserve’s budget. 12 U.S.C. § 549(a)(1). In
contrast, FHFA can impose any assessment on Fannie, Freddie, and the Federal Home Loan Banks
that its Director deems “sufficient to provide for reasonable costs . . . and expenses,” 12 U.S.C.
§ 4516(a), and “necessary . . . to maintain a working capital fund,” 12 U.S.C. § 4516(a)(3). In
practical terms, that amounts to an unlimited power to collect and spend money, for FHFA
regulates entities that have over $8 trillion of assets from which it may freely draw. Statement of
Sandra L. Thompson, FHFA Director, Before the House Comm. On Fin. Servs. (July 20, 2022)
https://bit.ly/3AnDFVq (last visited Aug. 15, 2022)."
Page 21 (I added bold): Tradition is another important consideration in separation of powers cases, and FHFA’s
funding structure is wholly unprecedented. In HERA, Congress expressly disavowed
responsibility for how this agency raises and spends money: “The amounts received by [FHFA]
from any assessment under this section shall not be construed to be Government or public funds
or appropriated money.” 12 U.S.C. § 4516(f)(2). Such congressional disclaimers of any exercise of authority under the Appropriations Clause are highly unusual, see Charles Kruly, Self-Funding
and Agency Independence, 81 GEO. WASH. L. REV. 1733, 1735–36 (2013), and most of the other
federal entities that Defendants discuss in their briefs are funded through congressional
appropriations of one sort or another, see, e.g., 39 U.S.C. § 2401(a) (“There are appropriated to
the Postal Service all revenues received by the Postal Service.”); 35 U.S.C. § 42(b) (providing for
disposition of “appropriations for defraying the costs of the activities of the Patent and Trademark
Office”); 8 U.S.C. § 1356(a) (addressing appropriations for USCIS). Absent express statutory
language to the contrary, courts do not “lightly presume that Congress meant to surrender its
control over public expenditures by authorizing an entity to be entirely self-sufficient and outside
the appropriations process.” Am. Fed’n of Gov’t Emp., AFL-CIO, Local 1647 v. FLRA, 388 F.3d
405, 410 (3d Cir. 2004); see generally GAO, Principles of Federal Appropriation Law, at 2-22 to
2-27 (4th ed. 2016), https://bit.ly/3zXnRrg (last visited Aug. 15, 2022).
Even among the small handful of federal agencies that are funded without any kind of
appropriation, FHFA is exceptional because it is non-independent. In contrast to the Federal
Reserve, the FDIC, and many of Defendants’ other examples,4 FHFA is an Executive Branch
agency—meaning that its funding structure gives the President a blank check to tax and spend as
he pleases. Agency independence “moderat[es] the threat to the separation of powers created by
combining the powers of the purse and the sword,” All Am. Check Cashing, 33 F.4th at 236, butthe Supreme Court’s decision in this case clarifies that no such moderating influence applies to
FHFA.
Here's Footnote 4: 4 Other agencies identified by Defendants that are headed by multi-member boards with
some measure of independence from the President include the Farm Credit Administration, 12
U.S.C. § 2242(a), the National Credit Union Administration, 12 U.S.C. § 1752a, and the Public
Accounting Oversight Board, see Free Enter. Fund v. PCAOB, 561 U.S. 477 (2010) (holding that
one of two layers of removal protection for PCAOB violated the separation of powers). FHFA
maintained that the Office of the Comptroller of the Currency was independent until the Supreme
Court said otherwise two years ago in Seila Law, 140 S. Ct. 2183, 2201 n.5 (2020), and in any
event that office is a part of the Treasury Department—an agency funded and made accountable
for its spending through the normal appropriations process. See 12 U.S.C. § 1(a).
This is interesting as well from page 20 (do you know if a decision in the 5th has been made on this and/or when oral arguments will be entertained by the court?). I added bold:
B. FHFA’s funding structure violates the Appropriations Clause.
The Court should assess the merits of Plaintiffs’ Appropriations Clause claims by focusing
on the Constitution’s text, structure, and history. On text and structure, Defendants start off on the
wrong foot by arguing that the Appropriations Clause places no limits whatsoever on what
Congress may do. See Treas. Br. 18–19; FHFA Br. 22–23. The Appropriations Clause is located
in Article I, Section 9, and every other provision of that section of the Constitution is an express
denial of powers to Congress. The Framers saw fit to place the Appropriations Clause alongside
other vital limitations on Congress’s powers—including, among other things, the prohibitions on ex post facto laws and peacetime suspensions of the writ of habeas corpus. The Constitution’s text
thus leaves no doubt that the Appropriations Clause prohibits Congress from ceding its power of
the purse to other organs of government.
History confirms this reading of the constitutional text. The Framers saw the power of the
purse as “the most complete and effectual weapon with which any constitution can arm the
immediate representatives of the people,” THE FEDERALIST NO. 58 (Madison)—a perspective that
was informed by their familiarity with the British Parliament’s struggles with the King prior to the
English Revolution, CFPB v. All Am. Check Cashing, Inc., 33 F.4th 218, 225–26 (2022); see 2
Joseph Story, Commentaries on the Constitution of the United States § 1348 (3d ed. 1858)
(warning that if Congress failed to decide how and when money should be used, “the executive
would possess an unbounded power over the public purse of the nation; and might apply its
moneyed resources at his pleasure”). Few propositions of political philosophy were more widely
accepted at the time of the founding than the notion that the appropriations power should be
exercised exclusively by the legislature—the branch of government closest to the people. See E.
James Ferguson, The power of the purse; a history of American public finance, 1776-1790, 111
(1961). History thus confirms that the lines of democratic accountability that the Appropriations
Clause mandates are “at the foundation of our constitutional order” and must be respected. Kate
Stith, Congress’ Power of the Purse, 97 YALE L.J. 1343, 1344 (1988).
Why? Sometimes the Supremes actually protect the principles embedded in the US Constitution, at least that's what some people say.
The Supreme Court’s opinion tees up a
serious question about whether this combination of the power of the purse with the power of the
sword violates the Appropriations Clause, and Plaintiffs were entirely within their rights to amend
the complaint to bring this issue to the fore. Consideration of Plaintiffs’ Appropriations Clause claim thus falls comfortably within the scope of the Supreme Court’s mandate, and in any event
the Supreme Court’s decision constitutes “an intervening change of law by a controlling authority”
that gives this Court greater flexibility to consider new theories on remand. See United States v.
McCrimmon, 443 F.3d 454, 460 (5th Cir. 2006).
FHFA is on no firmer footing when it argues that the Appropriations Clause claims are
time-barred. The original complaint was filed within the applicable six-year statute of limitations,
see 28 U.S.C. § 2401(a), and a new claim asserted in an amended complaint relates back if it “arose
out of the conduct, transaction or occurrence set out . . . in the original pleading.” Fed. R. Civ. P.
15(c)(1)(B). Plaintiffs’ Appropriations Clause claims arise out of FHFA’s adoption and
implementation of the Third Amendment—the same agency action that the original complaint
challenged. It makes no difference to the relation back analysis that Plaintiffs have refined their
legal theories to account for the Supreme Court’s decision. See FDIC v. Bennett, 898 F.2d 477,
480 (5th Cir. 1990) (“The fact that an amendment changes the legal theory on which the action
initially was brought is of no consequence if the factual situation upon which the action depends
remains the same and has been brought to defendant’s attention by the original pleading.”).
That's what I'm saying, NO VOICE IN THE US CONGRESS (Pat Toomey is leaving) for GSE Shareholders. INSTEAD the GSES shareholders interests are being tossed about like a piece of seaweed on an ocean wave.
An ocean overly influenced by the 1.2 million member NAR, the MBA, the financial establishment, and/or others whose self interests are often at odds with the GSE Shareholders interests.
So, what should the GSE Shareholders do about?
Apparently b*tchn about the status quo amongst ourselves is yielding little results using the share price as a signal.
BTW, the last thing the Executive Branch is motivated to do is end 100% control over the GSES and give up that power out of some duty/obligation/benevolence.
In practical terms, that amounts to an unlimited power to collect and spend money
Thanks! I think the best way to right the harm here is for the Shareholders to attack the injustice via the only ways we can.
The only ways to obtain a satisfactory resolution for ALL Shareholders from this now 15th year of CONservatorship will be via paths that head through the Judicial, Executive, and/or Legislative Branches of the federal government.
Shareholders interests are not really effectively represented in the Legislative and Executive Branches of the federal government and perhaps we should focus on those as well.
2 things that are impeding our ability to effectively represent Shareholders appear to be:
(1). Lack of organization and leadership and
(2) Money
https://www.scotusblog.com/2022/11/government-appeals-decision-against-consumer-financial-protection-bureau/
"The government urges the court to hear argument early next year and issue a decision by June."
Pags was on the Claman Countdown this afternoon before the bell on Fox biz, not sure if he said anything about the gses. Did anyone watch?
"What does the 5th Circuit’s decision mean for the agency’s actions to date in general? The other part of that question, too, is what’s it mean for the agency’s actions going forward?” Hulse said. “It seems likely that the Supreme Court would find a potential remedy being that the agency should be subject to appropriations. It does leave open the question, however, what it means for the agency’s actions the last 10 or so years.”
The chamber advocates subjecting the CFPB to the appropriations process. CFPB supporters warn doing so would undermine its independence.
Most federal banking regulators are funded by fees on the businesses they regulate, sitting outside the appropriations process, including the Fed, Federal Deposit Insurance Corporation and others. Some financial regulators, including the Securities and Exchange Commission, are funded through appropriations, although the money is provided to the SEC by industry fees, not taxpayer dollars.
The CFPB is unusual in that it draws its funding from another agency, the Fed, rather than through appropriations or fees.
Peterson said the 5th Circuit’s vacating of a rule because the funding is unconstitutional could call into question the legitimacy of all of the CFPB’s rules."
https://rollcall.com/2022/10/28/appellate-ruling-may-force-another-supreme-court-look-at-cfpb/
"Other Federal Regulators Are in the Crosshairs. We could see similar constitutional challenges to other federal financial regulators such as the OCC. In its opinion, the court noted that several other federal financial regulators are also self-funded and exempt from appropriations. The Federal Reserve, the FDIC, the OCC, the National Credit Union Administration and the Federal Housing Finance Agency all have “uncapped budgetary autonomy,” so they too could face separation-of-powers challenges. On the other hand, the Fifth Circuit attempted to draw a distinction with the Bureau, stating that none of these agencies wield enforcement or regulatory authority in the same expansive and impactful manner as the CFPB. Whether that distinction will prove persuasive remains to be seen, as agencies like the OCC and Federal Reserve also have an outsized regulatory impact on the U.S. economy. However, the CFPB’s unitary leadership structure, directly answerable to the President, may provide a basis for distinguishing these agencies and their funding mechanisms."
https://www.manatt.com/insights/newsletters/financial-services-law/lights-out-fifth-circuit-finds-cfpbs-funding-mech
HeeeHeee! Skepi is fun and we've been doing these goofy things for years!
Quite frankly all my other investments are super boring compared to the intellectual stimulation I receive in 'dividends' from this one.
Let's just hope that in the end the US Constitution saves us from this horrific federal government overreach.
That's the thing here right, the government in their Petition for a Writ of Certerrori said basically that even if the funding mechanism for CFPB bypasses Congressional Appropriations THEN the appropriate remedy is to surgically remove the Constitutionally offensive portion of the Dodd Frank Act and NOT to whip out the bulldozer.
It seems pretty clear to many that the USSCT is shifting away from the expansion of the federal administrative state (aka the 4th Branch of Government) and attempting to rein them in a little.
As I recall, some of the Justices had called out this Congressional bypassing of the power of the purse as problematic in Collins when deciding the Insulated agency Director issue.
Well apparently, according to the unanimous decision in the 5th Circuit, the funding mechanism that allows the CFPB to avoid annual Appropriations oversight from the US Congress is an unconstitutional Seperation of Powers violation and that's why they invalidated the CFPB'S "Payday lending Rule".
Can you think of another federal agency that is funded outsize the annual Appropriations oversight of the US Congress?
I'll take, "Federal Agencies with 2 F's in their name", for $200, Alex.
Alright, then riddle me this, Skepi, what are the Supremes going to rule on the 5th Circuit unconstitutional funding structure in the CFPB case and WHY?
Well, I think the Supremes work at their own pleasure and have total control over the timing and granting or denying of a Petition for a Writ of Certerrori.
But typically I believe whenever there is an "emergency situation" involving major economic importance to the nation (e.g., the rent moratorium) they usually step in expeditiously. Here, the CFPB has already put the "Payday lending Rule" on hold since the lawsuit was filled and this may or may not qualify as an expeditious matter.
Beautiful, thanks! Always appreciate your thoughts on this unique situation as we enter the 15TH YEAR OF CONSERVATORSHIP!
Hopefully the federal government realizes that many of the shareholders are not going to simply walk away from this unjust federal government agency overreach.
The CFPB case is relevant to the Plaintiff Shareholders lawsuit in the 5th Circuit and I believe that the Plaintiff Shareholders lawyers have amended their filiings to include the impact of the 3 Judge CFPB unanimous decision in Collins, didn't they?
So while CFPB and FHFA are two separate agencies, their enabling statutes BOTH had Unconstitutionally Insulated agency Directors and now they could BOTH have additional Unconstitutional Seperation of Powers issues related to bypassing Congressional authority over funding.
The federal government in their Petition for a Writ of Certerrori even mentions the funding mechanism for the FHFA at least once:
"And since then, Congress
has chosen similar funding approaches for, among other
agencies, the Federal Deposit Insurance Corporation
(FDIC), 12 U.S.C. 1815(d), 1820(e); the National Credit
Union Administration (NCUA), 12 U.S.C. 1755(a)-(b);
the Farm Credit Administration, 12 U.S.C. 2250; U.S.
Citizenship and Immigration Services, 8 U.S.C.
1356(m)-(n); and the Federal Housing Finance Agency,
12 U.S.C. 4516."
The CFPB (just like the FHFA) BYPASSES THE ANNUAL CONGRESSIONAL APPROPRIATIONS PROCESS.
The United States Constitution (the bedrock foundation of our Democracy) disperses and allocates our 'dear leaders' powers amongst 3 branches of government, the Executive, Legislative, and Judicial (aka the Seperation of Powers).
A fundamental control of the Legislative Branch (i.e., the US Congress) over the Executive Branch (here FHFA) is the power of the US Congress to control the purse strings of these Federal Executive Branch federal agencies.
The CFPB bypass this by annually receiving it's funding (approximately $500,000,000/yr) from the Federal Reserve (which itself bypasses Congressional funding).
The FHFA receives it's approximately $500,000,000/yr in funding by extracting the funds overwhelmingly from the GSES balance sheets.
Who do you think is paying for all those lawyers defending the Plaintiff Shareholders multiple lawsuits?
The USSCT may expedite the CFPB Petition for a Writ of Certerrori, from the federal government filing: "This Court’s review is warranted because the court
of appeals’ decision declared an Act of Congress uncon-
stitutional, because it squarely conflicts with a decision
of the D.C. Circuit, and because it threatens to inflict
immense legal and practical harms on the CFPB, con-
sumers, and the Nation’s financial sector. Given the
gravity of those consequences and the uncertainty that
the court of appeals’ decision has already created, the
United States is filing this petition less than one month after the decision below and respectfully submits that
the Court should hear and decide the case this Term."
Here's the Question Presented by the federal government in their Petition for a Writ of Certerrori from the 5th Circuit 3 Judge Appealate Panel in the CFPB case:
QUESTION PRESENTED
Whether the court of appeals erred in holding that the
statute providing funding to the Consumer Financial
Protection Bureau (CFPB), 12 U.S.C. 5497, violates the
Appropriations Clause, U.S. Const. Art. I, § 9, Cl. 7, and
in vacating a regulation promulgated at a time when the
CFPB was receiving such funding.
The federal government in their Petition for a Writ of Certerrori quote Collins 6 times:
Collins v. Yellen, 141 S. Ct. 1761 (2021)...9, 21, 22, 23, 25, 27
https://www.jdsupra.com/legalnews/cfpb-files-petition-for-writ-of-4149018/
"In a unanimous decision, the Fifth Circuit held that “Congress’s decision to abdicate its appropriations power under the Constitution, i.e., to cede its power of the purse to the Bureau, violates the Constitution’s structural separation of powers.”
"The lack of congressional involvement in the appropriations process was found to be unconstitutional."
"Since the CFPB is an executive agency with “vast rulemaking, enforcement, and adjudicatory authority over a significant portion of the U.S. economy,” the Fifth Circuit concluded that the lack of congressional review over the CFPB’s “funding apparatus cannot be reconciled with the Appropriations Clause and the clause’s underpinning, the constitutional separation of powers.”
A 15 year federal government conservatorship with the federal government taking BILLIONS PER YEAR IN PROFITS from Private Corporations is hard for the federal government to explain to the Judiciary but so far the Justices one-half of the Jurors in Lamberth's trial have been buying what Uncle Suggy is selling.
Let's see what happens with the Takings Cases.
Todays WP: "The states and other opponents of the program argue that the scale of loan cancellation, at a cost of about $300 billion over 10 years, warrants congressional authorization because of the economic and political significance. The Supreme Court invoked that idea, known as the "major questions" doctrine, earlier this year to limit the Environmental Protection Agency's power to combat climate change."
I'll take, IS THE NWS A VIOLATION OF THE MAJOR QUESTIONS DOCTRINE? for $200, Alex.
HERA was enacted in 2008 with Sweeping Powers granted to the FHFA at a time of great financial turmoil. The August 17, 2012 NWS was totally unnecessary and contra to acting as a conservator. The NWS was a Defacto Nationalization of two private corporations.
So, IF the USSCT eventually rules one-day that the NWS violated the Major Questions Doctrine (because a Nationalization of the 2 lynchpins of the American Secondary Mortgage Market is a Major Question of Economic Importance that should be decided by our ELECTED representatives in Congress, NOT Ed DeMarco) THEN that would likely be a good thing for the Plaintiff Shareholders, right?