I assume, first, that the current status quo is deliberate, and second, that the government and the courts are doing their best to bend the law in their favor to keep things the way they are.
To make matters worse, the Supreme Court allowed FHFA to loot FnF against all principles of responsible conservatorship.
The CFPB case could in principle be applicable to FHFA, but the government and the (very pro-government) courts are likely to leave no stone unturned to ensure that FHFA's past decisions, such as the Net Worth Sweap, do not have to be retroactively invalidated on constitutional grounds. An estimated $61 billion (KThomp's calculation) is at stake that the government would otherwise have to repay. Under these premises, government lawyers can get very creative in their interpretation of the law.
In short, I have lost confidence that the government will honor the principles of the rule of law and the constitution when this violates its own interests. The government's handling of the GSEs to date can only be described as scandalous. In my opinion, the de facto expropriation of the existing shareholders is one of the biggest economic crimes ever committed in the U.S., and in this case the perpetrator is the state. The fact that the government and the courts are trying to give this farce a pseudo-legal veneer by constantly invoking the "gag law" HERA does nothing to change this.
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