Fannie Mae-No Politics (FNMA)

[clarencebeaks21]

Agree with both ideas
But I would mention:
1a.
The intelligible principle test is under serious doubt as to how much longer it can survive. The more fundamental the liberty, the higher the scrutiny will be.

1b. The last relevant case (Gundy) was decided in a rare 8-vote holding, 5-3, and for 2 reasons. One, Kavanaugh was not affirmed at Orals so he could not join the dissent. Two, Gorsuch only joined in the Gundy concurrence (IMO) because the alternative 4-4 outcome would have been published as a per curiam opinion, i.e. 2 pages long, with *neither side* explaining their thought process. Instead Gorsuch took a gambit—yielding the ground but signaling a future fight may yet loom.
1c. SCOTUS since Gundy has - oddly- universally denied all Cert requests on several nationally critical nondelegation challenges. Several liberty cases have been rejected. Why? I don’t know. But its clearly not because of lack of interest, and not for lack of majority control. One idea is they are waiting for ‘percolation’ - one or more lower courts to try out one of the new tests. Relatedly, when to do so? Maybe a case where Congressional blame can be mitigated under the circumstances. A 100-year old law updated in a rush to avoid a 2nd Great Depression might just suffice.

2. Yes. Agree. But that’s not as much a stretch as it may seem. Its often a last resort because obviously you’d prefer to first pursue a more traditional remedy path.