Replies to post #588502 on Fannie Mae-No Politics (FNMA)

[Guido2]

Wow! Thanks.

[obiterdictum]

Please provide the citation or citations for the precedents referring to inseverability and striking an entire statute.

Here are some relevant precedents relating to remedies and nullification in some instances.

Among the many paragraphs given below, there is only one relevant Supreme Court legal opinion and precedent related to the discussion: Murphy v. National Collegiate Athletic Association - https://www.oyez.org/cases/2017/16-476. In this case, the Supreme Court invalidated the Professional and Amateur Sports Protection Act (PASPA). The majority opined that a single provision of that act (28 U. S. C. §3702(1)) violated the Constitution (10th Amendment and the anti-commandeering rule). The majority determined that that the unconstitutional provision could not be severed from the remaining provisions, and thereby, ruled the PAPSA unconstitutional in a 6-3 vote. See: https://supreme.justia.com/cases/federal/us/584/16-476/

The Supreme Court has treated such cases on a case by case basis. Sometimes the majority ruled to sever an offending provision and leave the remaining parts of the statute intact and operative (5th Circuit en banc of Collins et. al.). As seen in the above case, the majority sometimes rules that the entire law is unconstitutional based on the determination that an unconstitutional provision is not severable.

SCOTUS is clearly as odds with itself concerning the severability doctrine. When there is an absence of a severability or an inseverability clause, SCOTUS Justices have to determine when an unconstitutional provision can be severed from a statute without altering the intent or operation of the statute or when they deem an unconstitutional provision cannot be severed. An instructional case example of the SCOTUS divisions in applying the severability doctrine is the 5-4 decision on National Federation of Independent Business v. Sebelius, 567 U.S. 519 (2012) case concerning the individual health mandate and Medicaid expansion and the Patient Protection and Affordable Care Act (Obamacare)- see: https://supreme.justia.com/cases/federal/us/567/519/

Given obvious divisions in SCOTUS Justices' views on the application of the severability doctrine, it not possible to determine with certainty how SCOTUS will rule if the writs of certiorari are granted for Collins et. al., Mnuchin et. al.

For reviews of the severability doctrine see:
Severability Doctrine: How Much of a Statute Should Federal Courts Invalidate? 16 Texas Review of Law & Politics 1 (2011)
https://bit.ly/2GhVIQg

SITUATIONAL SEVERABILITY. Brian Charles Lea, Virginia Law Review
Vol. 103, No. 5 (September 2017), pp. 735-806
http://www.virginialawreview.org/sites/virginialawreview.org/files/Lea_Online.pdf


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En Banc Order
https://cases.justia.com/federal/appellate-courts/ca5/17-20364/17-20364-2019-09-06.pdf?ts=1567812614

Page 86

The judicial power vested by Article III of the Constitution extends to “Cases” and “Controversies.” U.S. CONST. art. III, § 2, cl. 1. It generally does not include the legislative power to erase, rewrite, or otherwise “strike down” statutes: “[U]nder our constitutional system courts are not roving commissions assigned to pass judgment on the validity of the Nation’s laws.” Broadrick v. Oklahoma, 413 U.S. 601, 610–11 (1973).

Page 88
See, e.g., Noel Canning v. NLRB, 705 F.3d 490, 493, 514–15 (D.C. Cir. 2013), aff’d, 134 S. Ct. 2550 (2014) (vacating the NLRB’s order because the Board was unconstitutionally constituted); see also Dresser-Rand Co. v. NLRB, 576 F. App’x 332, 33–34 (5th Cir. 2014) (vacating Board’s order that was issued by only two lawfully appointed members).

Page 89-90
The second problem we have with the remedy endorsed by a majority of our Court is that we do not believe Article III of the Constitution permits us to “strike” the FHFA Director’s for-cause protection from the statute. See Murphy v. NCAA, 138 S. Ct. 1461, 1485 (2018) (Thomas, J., concurring) (explaining that “[e]arly American courts did not have a severability doctrine” because “[t]hey recognized that the judicial power is, fundamentally, the power to render judgments in individual cases”); Jonathan F. Mitchell, The Writ-of-Erasure Fallacy, 104 VA. L. REV. 933, 936 (2018) (explaining “federal courts have no authority to erase a duly enacted law from the statute books” but have only the power “to decline to enforce a statute in a particular case or controversy” and “to enjoin executive officials from taking steps to enforce a statute”); Kevin C. Walsh, Partial Unconstitutionality, 85 N.Y.U. L. REV. 738, 756 (2010) (explaining that the Founders did not conceive of judicial review as the power to “strike down” legislation). At the Constitutional Convention, several delegates, including James Wilson and James Madison, argued for a “Council of Revision” comprised of federal judges and the executive. Mitchell, supra, at 954. The Council would have had the power to veto legislation passed by Congress, subject to congressional override. Ibid. A veto of legislation would render it “void,” without any legal effect. Ibid. That proposal was defeated at the Convention on June 4, 1787. Id. at 957. Wilson and Madison tried again on July 21, but again they were defeated. Id. at 958. Finally, on August 15, they made one last attempt to give the judiciary a veto over federal legislation, proposing that the Supreme Court be given the power to veto legislation independent of the President, subject to congressional override. Id. at 958–59. Again, they were defeated. Id. at 959.

Page 90 This history has been obscured by rhetoric that Chief Justice Marshall used in Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), to explain judicial review. In that case he famously declared that a statute found unconstitutional by a court becomes “entirely void,” “invalid,” and “not law.” Id. at 177–78.


Page 118
When a plaintiff with Article III standing challenges the action of an unconstitutionally-insulated officer, that action must be set aside. In Bowsher v. Synar, the Supreme Court held the Comptroller General could not prescribe budget reductions because he was not removable by the President.1 “Once an officer is appointed, it is only the authority that can remove him, and not the authority that appointed him, that he must fear and, in the performance of his functions, obey.”2 The Comptroller General exercised executive power: His role required him to “interpret” the law and “exercise judgment” in applying it.3 Because he did so outside the President’s supervision, the Court set aside his sequestration order. The Court affirmed the district court’s judgment “that the presidential sequestration order issued . . . pursuant to the unconstitutional automatic deficit reduction process be, and hereby is, declared without legal force and effect.”4 Synar’s remedial approach applies here. It is the only Supreme Court case that presented the issue. In Myers v. United States, the Court upheld a postmaster’s removal, so it had no need to grant relief against past government

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Despite having no occasion to vacate agency action, Free Enterprise Fund reinforces Synar’s principle that an unconstitutionally-insulated officer may not exercise executive power. “[T]he Framers sought to ensure that ‘those who are employed in the execution of the law will be in their proper situation, and the chain of dependence be preserved; the lowest officers, the middle grade, and the highest, will depend, as they ought, on the President, and the President on the community.’”11 “By granting the Board executive power without the Executive’s oversight, this Act subverts the President’s ability to ensure that the laws are faithfully executed—as well as the public’s ability to pass judgment on his efforts. The Act’s restrictions are incompatible with the Constitution’s separation of powers.”12

Page 120
Unconstitutional protection from removal, like unconstitutional appointment, is a defect in authority. Appointments Clause decisions routinely set aside agency action. In Lucia v. SEC, the Court held that administrative law judges must be appointed by a “head of department,” not by staff.13 As remedy, the Court granted a new hearing before a different ALJ.14 It disapproved curing the defective appointment by a quick (already-issued) ratification of the ALJ’s appointment.15 Similarly, in NLRB v. Noel Canning, the Court held that three NLRB Members were unconstitutionally appointed without Senate advice and consent.16 It affirmed the Court of Appeals’s decision that the NLRB order, issued without a properly-appointed quorum, was “invalid.”17

Page 120
In debating the first executive agencies, James Madison insisted the President naturally had “the power of appointing, overseeing, and controlling those who execute the laws.”18 Unlike judicial
power or (arguably) legislative power, executive power can be delegated.19 But if an unconstitutional removal protection breaks the “chain of dependence” between the officer and the President, the delegation breaks down too.20 An unconstitutionally-insulated officer lacks authority to act.21
In Free Enterprise Fund, the Supreme Court made clear that Morrison only extends so far. The Free Enterprise Fund Court dealt with the members of the Public Company Accounting Oversight Board (“PCAOB”) who could be removed only by the Securities and Exchange Commission (“SEC”). 561 U.S. at 483. The PCAOB board members could only be removed by the SEC for cause, and the members of the SEC are principal officers who can only be removed by the President for cause. Id. at 486–87. The Court concluded this double for-cause protection arrangement violates the Constitution: This novel structure does not merely add to the Board’s independence, but transforms it. Neither the President, nor anyone directly responsible to him, nor even an officer whose conduct he may review only for good cause, has full control over the Board. Id. at 496. So the Court found PCAOB Commissioners could not constitutionally exercise executive power. See ibid.

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24 Noel Canning held an NLRB order invalid because of three defective appointments, which infected all the Board’s actions during those Members’ tenure.25

Page 122 “A transfer by an agent, trustee, or other fiduciary outside the scope of the transferor’s authority, or otherwise in breach of the transferor’s duty to the principal or beneficiary, is subject to rescission and restitution.”28