Fannie Mae-No Politics (FNMA)

[Robert from yahoo bd]

What would Honest Abe think (besides 'why did I marry that crazy Mary' !)?:

"The Fourth Circuit—directly contrary to the Sixth
Circuit and the Government’s litigating position—
also observed that a tenure “so lengthy that it exceeds
the ‘special and temporary conditions’ contemplated
by Eaton, and amounts instead to a circumvention of
the Appointments Clause” could be unconstitutional.
United States v. Smith, 962 F.3d 755, 765 n.3 (4th Cir.
2020). This is so even if a statute “authorize[d]” such
tenure. Id. But the court did not have to worry about
it in that case because the Acting Attorney General
only served for a “few months.” Id. That length of time
was temporary. Yet, in this case, the “Acting” FHFA
Director served for over three years by the time he
signed the Third Amendment and over four years by
the end of his time at the top—longer than the tenure
of twenty-five Presidents, including Abraham Lincoln."

"The First Circuit in United States v. Hilario, 218
F.3d 19 (1st Cir. 2000), similarly recognized that
“[s]hould the stand-in” for a principal officer “remain
so long in office that he became indistinguishable from
the latter, an argument could be made that his
continued service required nomination by the
President and confirmation by the Senate.” Id. at 29."

"As discussed above,
statutory authorization for acting appointments since
Eaton has been an analytically separate inquiry. And
the relevant question presented by both this case and
Williams is whether the Constitution permits
indefinite service without Senate confirmation. The
D.C. Circuit plainly said no. It did so, even
“[a]ssuming” that a non-statutorily authorized acting
appointment “was not invalid ab initio” because a
“four-and-a-half month period without any
nomination” was too long anyway. Id. at 671."

"The Petition asks this Court to decide as a matter
of constitutional text, historical practice, and
precedent whether an “acting” official can serve
indefinitely without effectively “circumvent[ing]” the
Appointments Clause. Smith, 962 F.3d at 765 n.3; see
also Sw. Gen., Inc., 580 U.S. at 314 n.1 (Thomas, J.,
concurring). Judge Thapar, in his thoughtful dissent
below, discussed three potential analytical
approaches that could be taken. By granting this
Petition, the Court would have the opportunity to
determine which is most consistent with the
Appointments Clause. But under all three, the
“Acting” FHFA Director exceeded any plausible
constitutional line."

"But the
fact that the parties disagree about what should
happen if the Court determines that Mr. DeMarco’s
multi-year tenure violated the Constitution is not a
reason to leave unreviewed the Sixth Circuit’s
extraordinary discovery of a constitutional loophole
that allows the President to skip Senate confirmation
for the most senior officials in the Executive Branch.'

"Regardless, the remedial defenses the
Government raises are meritless and, if anything,
make this case even more worthy of this Court’s
review."

"As Judge Thapar noted, the
government “toss[ed] away” its ratification defense by
“failing to rais[e] it before the district court” and
“again fail[ing] to develop the argument at any length,
even after [Petitioners] noted the forfeiture in their
opening [Sixth Circuit] brief. Then at oral argument,
the government admitted as much.” Pet.App. 46 n.8
(Thapar, J., concurring in part and dissenting in part).
A forfeited argument is no basis to deny relief and
certainly no basis to deny consideration of an
antecedent legal question.
CONCLUSION
The Court should grant the petition for a writ of
certiorari.
Respectfully submitted,
May 23, 2023 DAVID H. THOMPSON
Counsel of Record
PETER A. PATTERSON
BRIAN W. BARNES
JOHN W. TIENKEN
COOPER & KIRK, PLLC
1523 New Hampshire
Avenue, N.W.
Washington, D.C. 20036"