Here are the Tim Howard comments on GSE SCOTUS Hearing today
YalePatrick
DECEMBER 9, 2020 AT 12:33 PM
Tim-
1st time commenter- thank you for this forum. As a legal scholar, I was enamored with Justices’ stance from the get go. I listen to most SCOTUS cases, and usually they will not give you a good feeling as to how they may potentially rule. THIS ONE IS DIFFERENT. From the start, I could tell they are actively looking for the remedy.
Their line of questioning to the Government lawyers, was unbelievable. They already have a good feel as to how they are going to rule. Not much talk on APA- meaning they got a good hold on it. I would love to hear your feelings on this.
Liked by 1 person
Reply
jtimothyhoward
DECEMBER 9, 2020 AT 12:35 PM
My initial thoughts are given below.
Like
Reply
ruleoflawguy
DECEMBER 9, 2020 AT 12:06 PM
Tim
my initial reaction to the SCOTUS Collins oral argument was that it was about as favorable to Ps as could be expected from a SCOTUS oral argument…understanding that gleaning a decision outcome from oral argument can be fraught with disappointment. I was surprised that more than one justice posed the hypo as to what should we do if we find the acting director who signed the NWS was removable at will. I think that is a weak argument, but since it was argued by both the SOJ and the amicus it had to be explored. however, justices often pose a hypothetical inquiry so as to think through what are the ramifications of going down that rabbit hole, and I cant say that I found that by posing that hypo there was any particular enthusiasm expressed for the merits of the claim that the acting D was in fact removable at will.
as to your thought that Treasury wanted to gauge the tenor of the SCOTUS hearing before making any 4thA etc decisions, I dont know that this hearing would put Mnuchin confidently over the edge if he is looking for a gentle push, but I dont think this was a hearing that would argue for Treasury to reconsider any decision to proceed with a 4thA etc prior to 1/20/21, if that is in fact where it is heading.
rolg
Like
Reply
jtimothyhoward
DECEMBER 9, 2020 AT 12:30 PM
I’m still going over my notes, but my reaction to the oral argument wasn’t as positive as yours seems to have been. I thought it started out very well for plaintiffs, with the justices posing very skeptical questions, and follow-ups, about the Solicitor General’s arguments on the anti-injunction and succession clauses barring plaintiffs’ challenge to the net worth sweep. But the justices seemed more receptive to the arguments made by amicus Nielsen that I was expecting them to be–particularly on the issue of whether an acting director of FHFA (which DeMarco was when he agreed to the sweep) was removable by the President other than for cause, and whether that weakened, or invalidated, plaintiffs’ constitutional argument. The justices then were pretty tough on David Thompson on the acting director point, as well as the issue of whether voiding the net worth sweep was an appropriate remedy, even if the acting director had been protected from removal.
As you say, many of the questions may have been “devil’s advocate” arguments, but I ended the session feeling there was well under a 50 percent chance that plaintiffs would get retroactive relief from SCOTUS on the constitutional claim, and that while SCOTUS very likely would uphold the decision of the Fifth Circuit en banc that the net worth sweep was a violation of the APA, it would not change the Fifth Circuit’s ruling that the case should be remanded to the Southern District of Texas for trial on the facts.
Liked by 1 person
Reply
ruleoflawguy
DECEMBER 9, 2020 AT 1:36 PM
Tim
now let me be a bit speculative. you will notice that SCOTUS spent very little time on the merits of the APA claim that the NWS is ultra vires, much more time on the constitutional claim. in his opening the assistant SG mentioned the anti-injuction clause and that the APA itself doesn’t support the APA cause of action, which implicates the APA claim, but there wasn’t much follow up by the justices on the APA claim (and indeed, those provisions implicate the constitutional claim as well). now why would there be so much more focus on the constitutional claim than the APA claim? one answer might be that the justices think the constitutional claim will decide the case. Now if the justices thought the NWS would be validated, either in part because the acting fhfa D was removable without cause, or in whole because the Seila holding doesn’t apply to Collins, then you would think the justices would have spent much more time on the APA claim than it did. now, one may think that the APA claim is so powerful for Ps that no time needed to be spent on the APA claim, but I think that if there was any possibility that the constitutional claim wouldn’t be fully upheld then the APA claim would have garnered more focus.
rolg
Like
Reply
jtimothyhoward
DECEMBER 9, 2020 AT 2:19 PM
The first three justices to ask questions (Roberts, Thomas and Breyer) as well as others did ask about the APA claim, and they seemed uniformly skeptical that the succession clause would bar plaintiffs’ challenge. They were less obvious about the applicability of the anti-injunction clause, but I thought that was because it was not purely a matter of law; it also could turn on the facts, which SCOTUS had not been asked to address (because the Fifth Circuit en banc had remanded the case to the Southern District of Texas for trial on those facts). My analysis of that segment of the argument is that the justices are in broad agreement as to what to do on the APA claim–uphold the Fifth Circuit en banc decision, and remand–so they then spent most of the rest of their time on the constitutional question, which is much more problematic for them. A number of the justices seemed genuinely troubled by the precedent they would be setting were they to grant retroactive relief to plaintiffs. Would ALL actions of an unconstitutionally appointed director (still within the statute of limitations) be challengeable? Is the single head of ANY agency unconstitutionally appointed, and would all of their actions be reversible? (You heard the questions.) They seemed to be looking for reasons to uphold the Fifth Circuit en banc decision, which explains to me why they spent so much time on the constitutional issue.
Like
Reply
ruleoflawguy
DECEMBER 9, 2020 AT 2:55 PM
Tim
then why so much focus on the acting D point? because the justices are boxed in by Seila, where they already granted backward relief for a single agency D removable only for cause. so the justices are probing for distinctions in Collins from Seila, and the most salient difference (which is why govt/amicus latched onto it) is the acting D signed the NWS. what you didnt hear much questioning about is whether an independent agency like fhfa (and Thompson referred to this statutory provision on at least three occasions with statutory section references) can have an acting D be removable without cause. certainly doesn’t say that in the statute. the justices were clearly probing for differences from Seila, but the only analytic hook would seem to be that the acting D can be removed without cause and I dont think you can point me to an actual discussion as to the actual merits of this acting D can be removed at will claim (as opposed to its implications if hypothetically it was adopted).
Thomas did point to another difference, an agency contract (collins) vs an agency enforcement action (Seila), but that went nowhere.
rolg
Like
jtimothyhoward
DECEMBER 9, 2020 AT 3:06 PM
I thought the focus on the FHFA director being acting was just what you said: to give the justices a reason not to have to apply Seila Law to Collins. I think we’re in agreement there, but my conclusion is that a majority of the justices don’t want to rule for plaintiffs on the constitutional claim, and the acting director point seems to be the easiest path that gets them there.
Liked by 1 person
ruleoflawguy
DECEMBER 9, 2020 AT 3:18 PM
Tim
we do agree that the justices were trying to distinguish Seila with the acting D removable at will claim, but if scotus really is taking this claim seriously, you would think they would have examined the actual merits of the claim seriously as opposed to just its hypothetical implications as to remedy. where did a justice ask whether an acting D of an independent agency can be removed at will (when the statute doesn’t so prove explicitly)? I dont remember any serious discussion of the merits. the govt/amicus certainly argued it but I dont remember any analytic engagement on it. to be clear, I believe that if an agency is independent by statute, and the acting D provision doesnt discuss removal (but limits appointment to one of three handpicked deputies selected by a director not subject to removal), and the federal vacancies act doesn’t apply (which Thompson addressed), then I am hard pressed to see how scotus finds that the acting D can be removed at will. this is a high analytic hurdle and I saw no attempt by any justice to surmount this hurdle on the merits. No engagement by scotus on the Swan case which govt argued in briefing, which Thompson distinguished in any event in the orals.
rolg
Like
jtimothyhoward
DECEMBER 9, 2020 AT 3:28 PM
So to tie this discussion up, I infer from the justices’ not digging deeply (or much at all) into the notion that the acting FHFA director is removable by the president at will that they want to use this “weak reed” as a vehicle for drifting to a decision not to apply Seila Law to Collins. What do you infer from it?
Like
ruleoflawguy
DECEMBER 9, 2020 AT 3:56 PM
Tim
I infer that scotus is probing to see if they can distinguish Seila (which only invalidated a low level investigation) from Collins (which is a big ticket money case). there is really only one analytic hook…the acting director…and scotus was probing whether they should hang their analytic hats on that hook if it has any implications on the remedy (whether hypothetically it upholds NWS, or hypothetically voids only all dividends since 2014 when D was senate confirmed etc). there was some discussion that the treasury secretary being subject to potus removal at will and signing the NWS was enough, but I didnt see that going anywhere. they discussed the acting D remedy implications without, to my recall, discussing the merits of the acting D removable at will argument to any length. whatever they took away from that hypothetical analysis (and I would point out that I dont remember Gorsuch, Kavanugh, Alito and Thomas particularly interested in this hypothetical), they will return to chambers to consider the actual merits of the acting D removable at will argument…and I dont see the merits of this argument, not even a thin weak reed. indeed, the failure at orals to discuss the merits of the acting D argument seems to me to be diagnostic as to where scotus will end up on it. ACB did pursue the hypothetical but I couldnt tell how important this was to her.
rolg
