Fannie Mae-No Politics (FNMA)

[Robert from yahoo bd]

"Finally, the brief points out that the “Major Questions Doctrine” applies to this case, which makes it an easy case. In several recent decisions, the Supreme Court has expressed justified skepticism of an agency suddenly discovering novel and sweeping powers that it had never claimed before. All evidence indicates that the government suddenly discovered the power to enact debt relief not because it is legally plausible but instead because it is politically desirable.

A policy as consequential and controversial as a $400 billion debt-?forgiveness plan must be supported by a clear statement in the statutory text. Because the HEROES Act does not come close to meeting that standard, the Supreme Court should invalidate the plan."

https://www.cato.org/legal-briefs/biden-v-nebraska

From the Amicus Brief:

"Finally, the Major Questions Doctrine’s clear-
statement rule makes this an easy case. Since the ac-
tion at issue here was not “necessary” to achieve the
government’s purported aim, the statutory text cer-
tainly does not contain a clear statement granting the
Secretary such power. "

"II. THE MAJOR QUESTIONS DOCTRINE
MAKES THIS AN EASY CASE
This Court has recently stayed or invalidated
three executive actions that were based on novel and
expansive readings of longstanding laws: OSHA’s
“vaccine or test” mandate, the CDC’s eviction morato-
rium, and the EPA’s greenhouse-gas-emission re-
strictions. One common theme of these decisions is
particularly relevant here: the Court’s justified skepti-
cism of an agency suddenly discovering novel and
sweeping powers that it had never claimed before.
“[T]he want of assertion of power by those who pre-
sumably would be alert to exercise it” is “significant in
determining whether such power was actually con-
ferred.” West Virginia, 142 S. Ct. at 2610 (quoting FTC
v. Bunte Brothers, Inc., 312 U.S. 349, 352 (1941)). Be-
cause the Department of Education has made just
such an implausible discovery of a consequential new
power here, this is a Major Questions case."

"Again emphasizing the uniqueness of the ac-
tion, the Court recounted that the law at issue had
“rarely been invoked—and never before to justify an
eviction moratorium.” Id. at 2487."

"This Court also stressed the tenuousness of the
connection between housing regulations and the
agency’s focus (public health), describing the chain of
logic necessary to justify the moratorium as follows:"

"As the Court noted in West Virginia, the govern-
ment’s discovery of a power to enact nationwide debt
relief “conveniently enabled it to enact a program” that
“‘Congress considered and rejected’ multiple times.”
Id. at 2614"

"While not determinative, this history is evidence
that the policy question is a major one, since it is one
that Congress gave its attention to. See West Virginia,
142 S. Ct. at 2620–21 n.4 (Gorsuch, J., concurring) (the
existence of failed legislation “help[s] resolve the ante-
cedent question whether the agency’s challengedaction implicates a major question”). And in addition,
this history also strongly suggests that the admin-
istration’s legal reasoning is outcome-oriented and
pretextual. All evidence indicates that the government
suddenly discovered the power to enact debt relief not
because it is legally plausible but instead because it is
politically desirable.
10 "

"Thus, for many of the same reasons that each of
the above three cases were Major Questions cases, this
is also a Major Questions case. "

"And just as in the above three cases, the Depart-
ment of Education here asserts for itself a novel and
highly consequential power simply because one of the
(many, massive) effects of exercising that power might
be a legitimate agency goal (reducing defaults). The re-
sult is an assertion of “highly consequential power be-
yond what Congress could reasonably be understood to
have granted.” West Virginia, 142 S. Ct. at 2609."