Fannie Mae-No Politics (FNMA)

[Robert from yahoo bd]

HeeeeHeeee! Schlitz also makes, Milwaukee's Best Beer (which I consumed with my fellow undergraduates back in the day , but this Chick Fila Peppermint Bark Shake gets it done !

J. Schlitz is as baffled by the convoluted Collins call for damages as the rest of us:

"To be honest, this passage is baffling, and the parties and this Court have
struggled to make sense of it.  The Supreme Court says that the unconstitutional
removal restriction was never part of the governing law.  In other words, the President
always had the power to remove the FHFA director (much like, in the Wizard of Oz,
Dorothy always had the power to return to Kansas).  Cf. id. at 1793 (Thomas, J.,
concurring) (“while the [removal] provision does conflict with the Constitution, the
Constitution has always displaced it and the President has always had the power to fire
the Director for any reason”).  Combined with the Court’s holding that every FHFA
director had full authority to carry out the functions of his office, it is hard to imagine
how the removal restriction that never had legal effect could have caused any legally
cognizable harm, as any harm would have been due to the President’s own mistake of
law and not to any unlawful action by a director.2

Nevertheless, immediately after explaining that every FHFA director had the
authority to carry out the functions of his office and that the removal restriction was
and always had been a legal nullity, the Court opined that the plaintiffs could,
theoretically, establish that they were harmed by the (non-existent) removal restriction.
Outside the context of a President actually attempting to remove a director and being
legally enjoined from doing so—a situation in which it is at least plausible to regard the
director’s subsequent actions as ultra vires—it is difficult to know what to make of this
statement.  The core of the Court’s analysis is that, while the removal restriction is
unconstitutional, that fact does not render the agency’s actions unconstitutional.  How,
then, could the plaintiffs possibly be entitled to any remedy?

In his Collins concurrence, Justice Thomas suggested a way out of this
conundrum.  As Justice Thomas observed, the majority opinion “glossed over a
fundamental problem with removal-restriction cases such as these:  The Government
does not necessarily act unlawfully even if a removal restriction is unlawful in the
abstract.”  Id. at 1789 (Thomas, J., concurring).  While a government official’s mistaken
belief about the scope of his own authority does not render an otherwise lawful act
unlawful, Justice Thomas suggested that, in certain cases, the agency action may be
subject to challenge under the APA as “‘arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law.’”  Id. at 1794 n.7 (quoting 5 U.S.C. § 706(2)(A)).

Having puzzled over the matter at length, the Court concludes that Justice
Thomas’s suggestion is the only way to harmonize the seemingly contradictory
language in the majority opinion.  Justice Thomas both recognizes that every FHFA
director had the authority to carry out the functions of his office and leaves a path open
for a litigant with standing to show that a particular agency action was arbitrary and
capricious for purposes of the APA because the action was attributable to the agency’s
incorrect belief that the director was removable only for cause.  Importantly, such
claims would not be constitutional claims, because, again, every director had full
authority to carry out the functions of his office.  Collins, 141 S. Ct. at 1788.3
With this framework in mind, the Court turns to plaintiffs’ claims."