Interesting thoughts on potential NWS reversal ... new comments on Tim Howard's blog regarding various SCOTUS cases: CFPB/FHFA/Collins ... just adding the last comment here, see the blog for the full thread ...
unfortunateSCOTUS
FEBRUARY 28, 2023 AT 2:41 PM
Tim/ROLG,
While I agree that SCOTUS is unlikely to let the 5th circuit remedy stand as is for an appropriations clause violation, IF (big if) it does stand, the ruling applied to the FHFA/Collins case (where the Appropriations clause is being argued today for GSE shareholders) would require the NWS to be vacated. A total of 7 5th circuit judges to date have already ruled/agreed with the opinion that the proper remedy for an appropriations clause violation, is to vacate the challenged action. As Judge Jones explained in her 5 judge concurring opinion ruling that later inspired and was affirmed by the 3-0 Judge Wilson CFPB ruling in front of SCOTUS today,
“To remedy the separation of powers violation arising from the CFPB’s budgetary independence, I see no other option than dismissing the enforcement action against these appellants. The reason is simple. Just as a government actor cannot exercise power that the actor does not lawfully possess, so, too, a government actor cannot exercise even its lawful authority using money the actor cannot lawfully spend. Indeed, a constitutionally proper appropriation is as much a precondition to every exercise of executive authority by an administrative agency as a constitutionally proper appointment or delegation of authority. Accordingly, as in cases involving Appointments Clause defects or other separation of powers problems with a government actor’s authority to act, the proper remedy here is to disregard the government action. Because the CFPB has prosecuted this enforcement action using funds derived without a constitutionally footed appropriation or oversight, the court should dismiss the enforcement action against the appellants. A dismissal also comports with the Supreme Court’s admonition that courts should “create incentives to raise” separation of powers challenges by providing adequate remedies. (Lucia)”
Something to watch closely, is now that the CFPB SCOTUS case has been postponed until next term, with a ruling to come some time in Q1-Q2 of 2024, the 5th circuit actually has the opportunity to rule on the Collins appropriations ruling (as well as the removal provision remedy remand) ahead of SCOTUS (should be by the end of the year as briefing is currently going on). And if they apply the same logic and remedy they used in the CFPB appropriations case with equal force to the FHFA appropriations case, they may very well order the NWS to be vacated at some point this year, prior to SCOTUS having a chance at reversing their ruling and/or remedy. The only way the 5th circuit wouldn’t come to the same conclusion that they did in the CFPB case is if they find a way to differentiate CFPB from FHFA (which they and SCOTUS have failed to do in the past with regards to the original Collins constitutional case).
AI
