"You didn't understand the tweet. There's nothing wrong with a conservator deciding to act in its best interests at some point during the Conservatorship."
Wise Man,
No, It is never right for a plain conservator (in contrast to insuring conservator) to act in the best interest of anyone other than Conservatees.
There are serious flaws in the HERA clause that allow FHFA Conservator to act in the best interest of FHFA. FHFA is a bureaucratic regulator/conservator that has no financial or insurance obligations to FnF. So It makes no sense to allow FHFA conservator to act in the best interest of FHFA. So the moment FHFA conservator starts acting in the best interest of FHFA(Gov) or public, it is using private property for gov/public use and attracts compensation provisions of 5th amendment.
(nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.).
FDIC conservator and FHFA conservators are not the same. FDIC conservator is a insuring corporation that has its own financial interests to protect whether in conservatorship or receivership. Because of this when FDIC acts in its own best interest it does not violate 5th amendment.
For this reason it was totally wrong to copy such FDIC insurance related clauses and create flawed HERA Act. SCOTUS should have seen this anomaly and struck down this clause as not applicable to FHFA on principles of constitutional avoidance.
(Constitutional Avoidance is the principal that, if possible, the Supreme Court should avoid ruling on constitutional issues, and resolve the cases before them on other (usually statutory) grounds.)
Plaintiffs should present this argument to reverse the NWS from day one.
