Fannie Mae-No Politics (FNMA)

[Robert from yahoo bd]

From the Amicus Brief of Ilya Shapiro (Manhattan Institute) and Dan Greenberg (CEI): https://manhattan.institute/article/amicus-brief-loper-bright-v-raimondo

On federal agencies bypassing the US Congress' Power of the Purse:

"The agency’s rule also avoided the political
accountability that, under our system, is attached to
the congressional appropriation of agency funds. If
Congress had appropriated money for the agency to
hire fishing monitors, a future Congress would have
the option of defunding the program. But by forcing
others to fund these monitors directly, the agency
sidesteps the congressional accountability that our
system of self-government requires.

Consider this example: for decades, the Securities
and Exchange Commission (“SEC”) has asked
Congress to give it the ability to “self-fund” through
fees on regulated entities. Commissioner Luis A.
Aguilar, Creating Reform That Is Sustainable for
Investors, 10 J. Int'l Bus. & L. 115, 121 (2011); Joel
Seligman, Self-Funding for the Securities and
Exchange Commission, 28 Nova L. Rev. 233, 259
(2004). In recent months, it appears that the SEC has
instead decided that it has the independent authority
to raise such revenues: apparently, the Commission’s leadership has concluded that congressional silence
and its preexisting rulemaking authority are all that
is needed to engineer a new funding stream. The SEC
is now planning to require private companies to pay
outside entities it selects to ensure compliance with its
mandates. Notice of Proposed Rulemaking, The
Enhancement and Standardization of Climate-Related
Disclosures for Investors, 87 FR 21334, 21399 (April
11, 2022) (requiring “assurance of GHG emissions
disclosure by independent service providers should
also improve the reliability of such disclosure.”).

Courts have seen that deferring to agency actions
implies significant risk, in that it allows an end run
around the constitutional requirements imposed by
the congressional power of the purse. Bell Atl. Tel.
Companies v. F.C.C., 24 F.3d 1441, 1445 (D.C. Cir.
1994) (“Chevron deference to agency action that
creates a broad class of takings claims, compensable in
the Court of Claims, would allow agencies to use
statutory silence or ambiguity to expose the Treasury
to liability both massive and unforeseen.”). Yet here
the lower court simply deferred to the agency’s
assumption of the awesome taxing power. Cf. Nicol v.
Ames, 173 U.S. 509, 515 (1899) (“The power to tax is
the one great power upon which the whole national
fabric is based. It is as necessary to the existence and
prosperity of a nation as is the air he breathes to the
natural man. It is not only the power to destroy, but it
is also the power to keep alive.”) (emphasis added)."

This is interesting as well:

"In short, it is important that the Court take this
case and consider the additional question proposed so
as to protect the Constitution’s enduring balance of
powers. See also Joe Biden, S. Rep. No. 104-5, at 27
(1995) (“The founders also intended the power of the purse to be one of the legislative branch’s strongest
bulwarks against incursions by the executive, and the
key to maintaining an enduring balance of powers.”).