This is interesting as well from page 20 (do you know if a decision in the 5th has been made on this and/or when oral arguments will be entertained by the court?). I added bold:
B. FHFA’s funding structure violates the Appropriations Clause.
The Court should assess the merits of Plaintiffs’ Appropriations Clause claims by focusing
on the Constitution’s text, structure, and history. On text and structure, Defendants start off on the
wrong foot by arguing that the Appropriations Clause places no limits whatsoever on what
Congress may do. See Treas. Br. 18–19; FHFA Br. 22–23. The Appropriations Clause is located
in Article I, Section 9, and every other provision of that section of the Constitution is an express
denial of powers to Congress. The Framers saw fit to place the Appropriations Clause alongside
other vital limitations on Congress’s powers—including, among other things, the prohibitions on ex post facto laws and peacetime suspensions of the writ of habeas corpus. The Constitution’s text
thus leaves no doubt that the Appropriations Clause prohibits Congress from ceding its power of
the purse to other organs of government.
History confirms this reading of the constitutional text. The Framers saw the power of the
purse as “the most complete and effectual weapon with which any constitution can arm the
immediate representatives of the people,” THE FEDERALIST NO. 58 (Madison)—a perspective that
was informed by their familiarity with the British Parliament’s struggles with the King prior to the
English Revolution, CFPB v. All Am. Check Cashing, Inc., 33 F.4th 218, 225–26 (2022); see 2
Joseph Story, Commentaries on the Constitution of the United States § 1348 (3d ed. 1858)
(warning that if Congress failed to decide how and when money should be used, “the executive
would possess an unbounded power over the public purse of the nation; and might apply its
moneyed resources at his pleasure”). Few propositions of political philosophy were more widely
accepted at the time of the founding than the notion that the appropriations power should be
exercised exclusively by the legislature—the branch of government closest to the people. See E.
James Ferguson, The power of the purse; a history of American public finance, 1776-1790, 111
(1961). History thus confirms that the lines of democratic accountability that the Appropriations
Clause mandates are “at the foundation of our constitutional order” and must be respected. Kate
Stith, Congress’ Power of the Purse, 97 YALE L.J. 1343, 1344 (1988).
