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Tuesday, February 08, 2022 4:21:44 PM
Kthomp19 is correct. I can't say it any plainer. The offending provision in HERA was found by SCOTUS as unconstitutional, and in legal-ese, it never existed. Congress lacks the power to enact an unconstitutional provision.
To see this concept for yourself 'in action', just compare the remedy related to challenged action's power.
For example, in Seila Law v CFPB, could Chief Rogers' opinion including the judgment (the latter which was joined by a majority) have remanded for inquiry into whether there was ratification by a subsequent full Director after the original Doc Request, if -in fact as you assert - the subsequent Directors were all powerless by way of an unconstitutional structure? Of course not. The power of the Director survives, but under POTUS 'at will' control instead of 'for cause', per the majority in Collins and the principle set forth in Seila. The Directors did not lost power, and neither Agency got ghosted. But the "issues" you refer to did.
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