Fannie Mae-No Politics (FNMA)

[clarencebeaks21]

Robert, to your points in Fairholme.

1 “Basically financial institutions regulated by the federal government can't exclude the federal government from coming on their property and inspecting their books, therefore no right of exclusive use of their property therefore no taking”

You missed the power to affect ownership.
You can reason that physical entry as Agency power is insufficient because its sole effect would be analogous to an easement on the real property (title). There would be no effect on intangible property.

“but that's about physical real property not the economic rights property inherent in shares of stock, right?”

It’s about both. This is the key. The Agency has a statutory right to entry *and* power to declare Conservatorships (etc.).

2. “…Isn’t that a taking?”

The CAFC panel did a poor job explaining its answer.

The answer is ‘no’ the NWS cannot constitute a physical fifth amendment taking. The reason is based on the physical takings doctrine: shareholders could not have developed “a historically rooted expectation of compensation for such an action” (*) from HERA.

*This principle comes from Loretto Teleprompter, which is still the bedrock case for physical “per se” takings. And it was shareholders the who positioned their claim as a per se (not regulatory) taking.

I suggest digging deeper and reading the leading case (from the CAFC in 1992) that the CAFC panel cited, because IMHO this 1992 case contains a longer & more nuanced explanation:

California Hous. Sec., Inc. v. United States, 959. F.2d 955 (Fed. Cir.), cert. denied, 506 U.S. 916. (1992) .

https://cite.case.law/f2d/959/955/3384520/