The "may" argument, that FHFA can enter into the nws because it may benefit the FHFA was considered and rejected by the 5th Circuit EnBanc Panel ruling (as well as by some other judges elsewhere in the federal judiciary). Namely, Congress doesn't hide elephants in mouse holes: "To define FHFA’s statutory authority, we “follow the cardinal rule that
a statute is to be read as a whole, since the meaning of statutory language,
plain or not, depends on context.”125 Emphasis on isolated provisions at the
expense of other, more applicable ones is “hyperliteral and contrary to common
sense.”126 As Learned Hand explained, “[w]ords are not pebbles in alien
juxtaposition; they have only a communal existence.”127 Our analysis proceeds
in three parts: HERA’s plain meaning, its past judicial interpretations
(including FIRREA precedent), and insight from common-law conservatorship."
And this: "The best-interests clause is also consistent with this reading. That
clause, within the incidental-powers provision, authorizes FHFA to “take any
action authorized by this section, which the Agency determines is in the best
interests of the regulated entity or the Agency.”164 Permitting the conservator
to act in its own interest may appear to depart from the traditional view of a
conservator as fiduciary. But the best-interests clause modifies FHFA’s
authority “as conservator or receiver,”165 and it only affects actions that are
otherwise “authorized by this section.”166 So FHFA may pursue its own
interests only within the conservator’s enumerated powers. It may not, for
example, wind down a GSE and jettison receivership protections all in its own
best interests. That would not be “authorized by this section.” Instead, this clause is a modest addition to traditional conservatorship powers. It may
permit related-party transactions that would otherwise be inconsistent with
fiduciary duties.167"
And this: "Neither HERA’s general
powers, implied powers, nor right to act in FHFA’s own best interest is the
kind of “contrary direction” that quells common-law conservatorship.185 A
conservatorship of Fannie Mae or Freddie Mac (here, both) sways an entire
industry. Given the potential effect on markets, firms, and consumers, partial
suggestions are not enough to show that HERA inverted traditional
conservatorship.186 “Conservator” is an old role’s anchor, not a new role’s
banner.187"
So while it is possible that the SCOTUS will say that HERA created a super regulator that can Nationalize private corporations if it "may" be in the FHFA'S interest, it would be creating new precedent that is in conflict with FIRREA, which is what MC and the SBC copied and pasted to use as boilerplate for HERA.
