Fannie Mae Preferred S (FNMAS)

[rosen62]

This article appears "smart" at first but obfuscates some truths.

...a law that was designed to essentially let the government do whatever it wanted to do to battle the housing and financial crisis.

In a country where the rule of Law has been impregnated in its DNA there will never be a law, or an interpretation of a Law that leads to someone concluding that anyone can "do whatever it wanted to do". Even when courts grant the government much more leeway when it comes to the interpretation of their actions. Only in roman times would the Senate confer imperial powers to the likes of a Julius Caesar.

Perry lawsuit is actually very specific and it challenges these two subsections of the Administrative Procedure Act:

To the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. The reviewing court shall—

(1) compel agency action unlawfully withheld or unreasonably delayed; and
(2) hold unlawful and set aside agency action, findings, and conclusions found to be—

(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;

(C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right;

What the government will have to explain is how "winding down" -the purpose of the sweep- harmonizes with bringing the companies to a sound financial condition and market stabilization. Reform could have easily accomplished both. Therefore, if Ted Olson can prove that there were other alternatives to the path chosen by the government -better alternatives-, then "reasoning" and "rational decision making" was not there. Thus, capricious conduct. I wouldn't consider this a "weak hand".

There are actually public records that show the Treasury's intent to stabilize markets and return companies to a sound financial condition like their yearly presentations to the Congress where they have explained why receivership had not been an option. So the sweep is basically unexplainable.