Replies to post #680948 on Fannie Mae-No Politics (FNMA)

[Robert from yahoo bd]

Quote: "The warrants are legal no matter what happens in Collins." Does that include if the SCOTUS is unable to determine exactly how the US Congress would have wanted the Judicial Branch to rewrite HERA and uses the Bulldozer approach?

[Commons_Cancelled]

The warrants are legal no matter what happens in Collins.

Exactly this. FNMA Warrants will be executed.

[ano]

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The original PSPA was supposed to wind next step toward responsibly winding down down the company, it does not contain an exit, “With today’s announcement, we are taking the Fannie Mae and Freddie Mac, while continuing to support the necessary process of repair and recovery in the housing market,” said Michael Stegman
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Your link is from the day of the NWS: August 17 2012. The NWS was absolutely meant to facilitate wind-down, but your link does not support your first statement there.

“next step toward responsibly winding down” so the first step was also wind-down

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the FHFA has full blanket protection under FHFA-C statute
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False. No fewer than three different federal appellate courts have said the opposite. Check the bottom of page 18 of the Collins Fifth Circuit en banc opinion:

The 3rd was implemented because of the downward spiral, so claims the government, but “now we know” the companies are profitable effective 2012 onwards, with this theory (the reality) the FHFA-C should have acted and should have re-negotiated the deal as it cannot continue forever (“put in sound and solvent condition), this is an inaction of FHFA-C it should have done something about it but it didn’t

Then we have 4617(f) itself this claims no courts can take action, the court says it can take action if ultra vires, but the real action of FHFA-C is “do nothing” as it is allowed per 4617(f), so the courts can always take action if ultra vires, but in this case, it was inaction that caused the injury, so 4617(f) will have to go as the courts will void the action/inaction taken, and not because it is ultra vires(it also is by the way), with this it takes an action that is prohibited by 4617(f) so because the court takes action on the inaction of FHFA-C therefore 4617(f) will have to go as “now we know” the companies are profitable

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If the FHFA did not have the power to enact, anything they did is void (“for cause”) as at the time the power to do so was missing, it follows the payments made under this structure are void too, not voidable, but just void, it doesn’t necessarily mean it will undo everything the FHFA ever did, but it is a difficult negotiation process for the FHFA
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The two bolded parts appear contradictory. If the Supreme Court applies a similar ruling as Selia, where they sever only the parts of HERA that they deem unconstitutional, will any of FHFA's past actions be undone? Or only those taken by a Senate-confirmed director (as opposed to an acting director)? We will find out soon.

On top of that it's possible that the Supreme Court will allow Calabria, now able to be removed at will by Biden, to ratify past directors' decisions and not have to undo any of them (other than the NWS). I don't see any reason for Calabria to choose to void the original SPSPAs when there is good reason that it would harm the companies (through the removal of Treasury's backstop).

We differ in opinion, prospective relief (2012-up) will need to be reversed when the un-redacted documents contain an illegal fact(RFP 1-30), therefore it would be wise just to void the entire PSPA per SCOTUS as it is an easy way out for the government and permanent damage to the government can be prevented, and the documents can remain in sealed condition as the SCOTUS decided it was illegal anyway, on the other hand the FHFA is independent, HERA is independent, if the FHFA “for cause” is replaced with “at-will” it becomes executive, so HERA will need to become executive too, if it changes HERA to executive, the powers for a director to determine by himself in his sole discretion to put the companies into conservatorship will be taken away as it otherwise would violate the separation of powers, as the director only can act on regulation in place, we know that did not happen so it will void the PSPA
It is the Fiduciary duty that FHFA has to put the companies in sound and solvent condition, so it needs to take action the courts soon will force upon FHFA, “do nothing” is also illegal according to their statute, the miserable 5% backstop ($200B-$3,7T) from the government can be stricken instantly, it has no use whatsoever

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Correct if Collins loses on both counts they are legal from the beginning
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The warrants are legal no matter what happens in Collins.

This is incorrect, if it is determined the FHFA-C! (not FHFA) had the power to implement a wind-down contract per conservator statute(4513 absent 4512”for cause”), and the BOD/FHFA meeting documents are unsealed, the contract is legal, upto now the warrant cannot be executed as it is part of the PSPA and the 3rd amendment lawsuits

SCOTUS will probably let us know how/what exactly legal means, or if legal really means illegal, a dissent will be closely watched as it will tell upfront how far the judge is willing to depart from the constitution, my guess is “if” there is a dissent it will be on the surroundings and not on the questions asked itself, on the questions itself I expect a 9-0