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Sunday, November 20, 2022 2:08:12 PM
funding structure is wholly unprecedented. In HERA, Congress expressly disavowed
responsibility for how this agency raises and spends money: “The amounts received by [FHFA]
from any assessment under this section shall not be construed to be Government or public funds
or appropriated money.” 12 U.S.C. § 4516(f)(2). Such congressional disclaimers of any exercise of authority under the Appropriations Clause are highly unusual, see Charles Kruly, Self-Funding
and Agency Independence, 81 GEO. WASH. L. REV. 1733, 1735–36 (2013), and most of the other
federal entities that Defendants discuss in their briefs are funded through congressional
appropriations of one sort or another, see, e.g., 39 U.S.C. § 2401(a) (“There are appropriated to
the Postal Service all revenues received by the Postal Service.”); 35 U.S.C. § 42(b) (providing for
disposition of “appropriations for defraying the costs of the activities of the Patent and Trademark
Office”); 8 U.S.C. § 1356(a) (addressing appropriations for USCIS). Absent express statutory
language to the contrary, courts do not “lightly presume that Congress meant to surrender its
control over public expenditures by authorizing an entity to be entirely self-sufficient and outside
the appropriations process.” Am. Fed’n of Gov’t Emp., AFL-CIO, Local 1647 v. FLRA, 388 F.3d
405, 410 (3d Cir. 2004); see generally GAO, Principles of Federal Appropriation Law, at 2-22 to
2-27 (4th ed. 2016), https://bit.ly/3zXnRrg (last visited Aug. 15, 2022).
Even among the small handful of federal agencies that are funded without any kind of
appropriation, FHFA is exceptional because it is non-independent. In contrast to the Federal
Reserve, the FDIC, and many of Defendants’ other examples,4 FHFA is an Executive Branch
agency—meaning that its funding structure gives the President a blank check to tax and spend as
he pleases. Agency independence “moderat[es] the threat to the separation of powers created by
combining the powers of the purse and the sword,” All Am. Check Cashing, 33 F.4th at 236, butthe Supreme Court’s decision in this case clarifies that no such moderating influence applies to
FHFA.
Here's Footnote 4: 4 Other agencies identified by Defendants that are headed by multi-member boards with
some measure of independence from the President include the Farm Credit Administration, 12
U.S.C. § 2242(a), the National Credit Union Administration, 12 U.S.C. § 1752a, and the Public
Accounting Oversight Board, see Free Enter. Fund v. PCAOB, 561 U.S. 477 (2010) (holding that
one of two layers of removal protection for PCAOB violated the separation of powers). FHFA
maintained that the Office of the Comptroller of the Currency was independent until the Supreme
Court said otherwise two years ago in Seila Law, 140 S. Ct. 2183, 2201 n.5 (2020), and in any
event that office is a part of the Treasury Department—an agency funded and made accountable
for its spending through the normal appropriations process. See 12 U.S.C. § 1(a).
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