In essence the USSCT would be saying that the US Congress gave FHFA "clear Congressional Authority", to NATIONALIZE 2 PRIVATE CORPORATIONS THAT CONTROL 60%+ OF THE US SECONDARY MORTGAGE MARKET.
That type of Major Economic and Political Question is for our ELECTED REPRESENTATIVES not UNELECTED BURAUCRATS ED DEMARCO.
But, I was completely stunned by Collins, so it would just be par for the course ;-) !
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Check out this Congressional Research Services report to Congress from the CRS's Legislative Assistant (11-2-22) - Notice her recommendation to the US Congress that the Chevron Doctrine is not always the go to pick by the Supremes:
The Major Questions Doctrine
In several recent decisions, the Court has placed increasing
emphasis on the major questions doctrine. First, in Alabama
Association of Realtors v. HHS, the Court explained that the
CDC’s eviction moratorium was of major national
significance and required a clear statutory basis because the
agency’s action covered 80% or more of the nation; created
an estimated economic impact of tens of billions of dollars;
and interfered with the landlord-tenant relationship, which
the Court explained is “the particular domain of state law.”
Then, in National Federation of Independent Business v.
OSHA, the Court considered OSHA’s emergency temporary
standard to be of major economic and political significance
because, in its estimation, it seriously intruded upon the
lives of more than 80 million people.
Most recently, the Court’s decision in West Virginia v. EPA
marked the first express reference to the major questions
doctrine in a majority opinion of the Supreme Court. In
West Virginia, the Court rejected EPA’s reliance on a
statutory provision that, in the Court’s view, was a
“previously little-used backwater.” The Court concluded
that it was unlikely Congress would task EPA with
“balancing the many vital considerations of national policy
implicated in deciding how Americans will get their
energy,” such as deciding the optimal mix of energy
sources nationwide over time and identifying an acceptable
level of energy price increases. For more information on the
case, see CRS Legal Sidebar LSB10791, Supreme Court
Addresses Major Questions Doctrine and EPA’s Regulation
of Greenhouse Gas Emissions, by Kate R. Bowers.
Relationship to the Chevron Doctrine
The major questions doctrine’s precise relationship to the
Chevron doctrine is unclear. The Chevron doctrine, which
the Court established in Chevron U.S.A., Inc. v. Natural
Resources Defense Council, Inc., 467 U.S. 837 (1984),
governs judicial review of an agency’s interpretation of a
statute it administers. If Chevron applies, a court will
typically engage in a two-step analysis to determine if it
must defer to an agency’s statutory interpretation. At step
one, the court asks whether the statute directly addresses the
precise issue before the court. If the statute is ambiguous or
silent in that respect, the court must proceed to step two,
which instructs the court generally to defer to the agency’s
reasonable interpretation.
In some cases, the Court has treated the major questions
doctrine as an exception to the Chevron doctrine. In those
cases, when an agency’s interpretation of an ambiguous
statute concerns an issue of vast economic and political
significance, the Court has invoked the major questions
doctrine to deny the agency the deference traditionally
accorded under Chevron. When the Court refuses to defer
to an agency’s interpretation of a major question, it has
often (but not always) rejected the agency’s position. At
times, the Court has applied the major questions doctrine at
step one of Chevron, concluding that Congress did not
authorize the agency to regulate the major question at issue.
The Court has also invoked the major questions doctrine at
step two, determining that the agency’s interpretation was
unreasonable because Congress did not clearly give it such
authority. The Court has even used the doctrine as a reason
to reject engaging in the Chevron two-step analysis
altogether.
The Court, therefore, has arguably applied the major
questions doctrine in the Chevron context in an unclear, ad
hoc manner. In its three most recent cases applying the
major questions doctrine, the Court did not discuss the
Chevron framework, possibly signaling that the major
questions doctrine is an independent principle of statutory
interpretation focused on ensuring Congress bears the
responsibility for confronting questions of major national
significance. This approach also appears to be consistent
with other recent cases in which the Court has not applied
or referred to the Chevron doctrine in reviewing agency
actions. See, e.g., Am. Hosp. Ass’n v. Becerra, 142 S. Ct.
1896 (2022). That silence leaves unanswered questions
about how to determine which doctrine applies or whether
courts should undertake a major questions inquiry prior to
or as part of their Chevron analyses. These questions will
likely be important to the lower courts in challenges to
agency action in the near future.
Considerations for Congress
Under the Court’s formulation of the major questions
doctrine, an agency will lack the ability to determine
authoritatively a major question if it lacks “clear
congressional authorization” to do so. Therefore, if
Congress wants an agency to decide issues in an area courts
would likely consider to be of vast economic and political
significance, Congress should clearly specify that intention
in the relevant underlying statute as opposed to relying on
vague or imprecise statutory language. This task may be
difficult at times, given the lack of clear guidance from the
Court on what can be considered a “major” question or
clear congressional authorization. The Court’s
jurisprudence also leaves open the question of how, or even
whether, Congress may grant agencies the authority to act
to address major issues in the future that Congress did not
anticipate when it enacted a statute.
Additionally, the Supreme Court has not specified whether
material other than the text of an enacted statute could
constitute clear congressional authorization. The Court in
West Virginia looked beyond the statutory text in its
analysis of EPA’s authority, including by considering that
Congress “conspicuously and repeatedly declined to enact”
a program similar to aspects of the challenged regulation.
Even when a statutory delegation of authority over a major
economic and political question is clear, courts may find
that the underlying statute raises other problems. For
example, in his concurrence in the OSHA case, Justice
Gorsuch argued that even had Congress clearly authorized
the vaccination mandate at issue in that case, that delegation
would have probably violated the non-delegation
doctrine—the separation-of-powers principle that limits
Congress’s ability to confer legislative authority on
entities—because the statute contained no meaningful
restrictions on the agency’s regulatory power and, per the
agency, conferred near-unlimited discretion on the agency.
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