Fannie Mae-No Politics (FNMA)

[clarencebeaks21]

Question “: If the current round of litigation to reverse the NWS is not fruitful, would litigation using the Major Questions Doctrine to invalidate the NWS have any legs?”

Short answer: IMO very hard, but possible

The MQ doctrine has 2 steps. Both steps present difficult challenges.

In step 1, the NWS by itself IMO just seems unlikely to meet the list for a question of major economic-political importance. I will leave it at that, for now.

Say Step 1 is met, then in step 2 we have another problem: FHFA can argue Alito’s HERA analysis in the Collins APA claim constitutes “clear Congressional authority”. And that is a strong argument because it cites a 9-0 SCOTUS opinion.

But here, the shareholders could at least muster a plausible counter-argument: an implied expression of power is no longer sufficient for a question of major economic & political importance. In truth, SCOTUS in WVA v EPA didn’t say one way or another on that. It might be that no contextual or ‘implicit grants’ constitute “clear” Congressional authorization, or it might be that some are permissible but only in very limited instances (whose contours will develop as case law grows). My adjoining argument would still be, ‘whatever those limited instances are, they should not include a statutory reading like this one.’ The devil would then be in the details.