Fannie Mae-No Politics (FNMA)

[clarencebeaks21]

Robert I read the brief briefly including pages 46-7.

The plaintiffs rely on the major questions doctrine. That’s indeed what the district court found.

The defense says, no, just because there is an important economic political question does not mean the case must necessarily be decided on that basis.

The defense uses Collins and the others as examples of instances of obvious economic importance where nevertheless SCOTUS —instead of raising the MQD—relied purely on old-school textual analysis.

In this short defense summary point, IMO the defense is absolute correct. But in Collins no lower court raised the major question doctrine, so the defense’s counter has less teeth than a flat reversal. I don’t think any of the footnoted cases are MQD reversals, they are just cases where SCOTUS decided for whatever reason to not go there.

The defense is further correct in that in Collins’ APA claim, Alito ignores the possibility separation of powers concerns: he evaluated the APA claim by a text-book old school (“old” at least, meaning pre-Chevron) statutory analysis. I have said it before. That’s why the vote was 9-0: it was non-Chevron and purely a textual decision.

A notable distinction between Biden & Collins is that in standard S.O.powers jurisprudence, courts will tend to grant an executive order by POTUS more leeway than a regulation issued by the 4th branch.