Fannie Mae-No Politics (FNMA)

[FFFacts]

Obiterdictum

I disagree with one of your points.

There is no law or legal precedent that mandates that a statute absent a severability clause is toast if one or more provisions of that statute are found unconstitutional.

As Willet pointed out in his dissent.


The second problem we have with the remedy endorsed by a
majority of our Court is that we do not believe Article III of the Constitution permits us to “strike” the FHFA Director’s for-cause protection from the statute. See Murphy v. NCAA, 138 S. Ct. 1461, 1485 (2018)(Thomas, J., concurring)(explaining
that “[e]arly American courts did not have a severability doctrine” because “[t]hey recognized that the judicial power is, fundamentally, the power to render judgments in individual cases”); Jonathan F. Mitchell, The Writ-of-
Erasure Fallacy, 104VA.L.REV. 933, 936 (2018) (explaining “federal courts have no authority to erase a duly enacted law from the statute books” but have only the power “to decline to enforce a statute in a particular case or controversy” and “to enjoin executive officials from taking steps to enforce a statute”); Kevin C. Walsh, Partial Unconstitutionality, 85 N.Y.U.L.REV. 738,
756 (2010) (explaining that the Founders did not conceive of judicial review as the power to “strike down” legislation).
At the Constitutional Convention, several delegates, including James Wilson and James Madison, argued for a “Council of Revision” comprised of federal judges and the executive. Mitchell, supra, at 954. The Council would
have had the power to veto legislation passed by Congress, subject to congressional override.
Ibid.
A veto of legislation would render it “void,”
without any legal effect.
Ibid.
That proposal was defeated at the Convention
on June 4, 1787.
Id.
at 957. Wilson and Madison tried again on July 21, but
again they were defeated.
Id.
at 958. Finally, on August 15, they made one
last attempt to give the judiciary a veto over federal legislation, proposing that
the Supreme Court be given the power to veto legislation independent of the
Case: 17-20364 Document: 00515108825 Page: 89 Date Filed: 09/06/2019 No. 17-2036490President, subject to congressional override. Id.at 958–59. Again, they were
defeated. Id. at 959.
In the final Constitution, the judiciary was given only the power to decide cases and controversies—to resolve legal disputes between parties and order remedies to redress injuries. Thus, when a court concludes that a statute is unconstitutional, it is not “striking down” or “voiding” or “invalidating” the law.
It is merely holding that the law may not be applied to the parties in the dispute. The Constitution does not empower courts to delete sections of state and federal codes. The Founders expressly considered the possibility of a
judicial veto, and they rejected it multiple times during the Constitutional Convention.This history has been obscured by rhetoric that Chief Justice Marshall used in
Marbury v. Madison,
5 U.S. (1 Cranch) 137 (1803), to explain judicial
review. In that case he famously declared that a statute found unconstitutional by a court becomes “entirely void,” “invalid,” and “not law.” Id. at 177
–78. Subsequent cases have compounded the confusion.
See, e.g., The Civil Rights Cases, 109 U.S. 3, 26 (188
3) (holding “void” sections 1 and 2 of the Civil Rights Act of 1875). Nevertheless, it is indisputable that courts do
not have the power to erase duly enacted statutes. Instead, they may decline to enforce them or enjoin their future enforcement to resolve cases and controversies.
Our Court should not add to the confusion about the judiciary’s limited powers by claiming to “sever” a statute based on open-ended speculation about how Congress would have solved the separation-of-powers problem. And we certainly should not rewrite the statute while pretending such legislative
activity is the most modest judicial remedy. We would instead remand to the Case: 17-20364 Document: 00515108825 Page: 90 Date Filed: 09/06/2019 No. 17-2036491 district court with instructions to fashion a remedy that actually redresses

Plaintiffs’ harms.
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Whether we apply the Constitution’s original public meaning,
Myers, Humphrey’s Executor, Morrison, or Free Enterprise Fund
, the conclusion in this case is the same. The FHFA Director cannot exercise the executive power of the United States because he is unconstitutionally insulated from presidential
control and accountability. And our Court does not have the power under Article III to order a remedy that does not redress Plaintiffs’ injuries.