Fannie Mae (FNMA)

[FOFreddie]

Hi Robert, Thanks again for all your contributions to the cause.

You are exactly right regarding the relevance of the violation of the Article I Appropriations issues. See Page 19 and the following pages of the Plaintiffs Answer in the Collin's case on remand to Judge Ellison in the Southern District of Texas.

https://www.glenbradford.com/2022/08/fnma-fanniegate-1173/

Here is an excerpt - the key is that after Collin's the FHFA is clearly under the control of the Executive Branch and the only potential balance of power by Congress is the Appropriations Clause. See how the Plaintiffs see the CFPB structure is relevant to the FHFA:

Defendants attempt to distinguish FHFA from the CFPB based upon the relative scope of
these two agencies’ powers, but their arguments are strikingly similar to others that the Supreme
Court has already rejected in this very case. See Collins, 141 S. Ct. at 1784–85. If anything,
FHFA’s funding structure is more problematic than that of the CFPB. The CFPB is allowed to
collect and spend no more than 12% of the Federal Reserve’s budget. 12 U.S.C. § 549(a)(1). In
contrast, FHFA can impose any assessment on Fannie, Freddie, and the Federal Home Loan Banks
that its Director deems “sufficient to provide for reasonable costs . . . and expenses,” 12 U.S.C.
§ 4516(a), and “necessary . . . to maintain a working capital fund,” 12 U.S.C. § 4516(a)(3). In
practical terms, that amounts to an unlimited power to collect and spend money, for FHFA
regulates entities that have over $8 trillion of assets from which it may freely draw. Statement of
Sandra L. Thompson, FHFA Director, Before the House Comm. On Fin. Servs. (July 20, 2022)
https://bit.ly/3AnDFVq (last visited Aug. 15, 2022).
Defendants attempt to downplay Judge Jones’s concurrence in All American as a “minority
opinion,” FHFA Br. 24–25; Treas. Br. 21, but nothing in the en banc majority’s reasoning in that
case is inconsistent with the Jones concurrence. The considered views of five judges on the Fifth
Circuit deserve at least as much weight as Defendants’ contrary out-of-circuit precedents. That is
particularly so because Defendants’ cases rejected challenges to the funding structures of FHFA
and the CFPB as part of broader separation of powers analyses that the Supreme Court has since
repudiated. Compare, e.g., PHH Corp. v. CFPB, 881 F.3d 75, 77–80 (D.C. Cir. 2018) (en banc),
with Seila Law LLC v. CFPB, 140 S. Ct. 2183, 2192 (2020). This Court should follow the Jones
concurrence, which is the only judicial opinion that has examined the Appropriations Clause issues
Case 4:16-cv-03113 Document 86 Filed on 08/15/22 in TXSD Page 27 of 31
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before the Court with careful attention to the Constitution’s original public meaning.
Other cases Defendants cite have “no bearing on the constitutionality” of FHFA’s funding
structure. See All Am. Check Cashing, 33 F.4th at 39. The Court in OPM v. Richmond, 496 U.S.
414, 424 (1990), and Reeside v. Walker, 52 U.S. 272, 291 (1850), merely declined to grant
unauthorized monetary remedies. And Cincinnati Soap Co. v. United States, 301 U.S. 308, 321
(1937), upheld a tax while noting that the “interjection of the [appropriations] question . . . is
premature.” Similarly, Defendants’ “non-appropriated fund instrumentality” (NAFI) cases
involved disputes over the scope of the federal government’s waiver of sovereign immunity under
the Tucker Act; they do not concern Appropriations Clause objections of the sort presented here.
See, e.g., AINS, Inc. v. United States, 56 Fed. Cl. 522, 524 (2003)