just skimmed quickly Anthrex. the unenforceable section of the statute as per the Chief Justice was not allowing the ALJ decision to be reviewed by the supervising patent officer. To extent the ALJ can make binding determinations (re patents), those determinations must be made or reviewed by someone removable by POTUS (and the ALJs are not so removable). so "We also conclude that the appropriate remedy is a remand to the Acting Director for him to decide whether to rehear the petition filed by Smith & Nephew." so this is backward relief lite...meaning that if the statute needed to have that decisional supervisory review in order for the statute to avoid a separation of powers problem, then P Anthrax is entitled to have that review conducted.
So I dont see this decision and the remedy selected to be antagonistic to Collins Ps. Put another way, Anthrex cant be made to apply to Collins since the constitutional issue in Collins is not the FHFA acting director's supervision by someone removable by POTUS, but rather his own removability.
Gorsuch has also suggested colleagues are seeking certain outcomes in a case, irrespective of the law. In an immigration controversy that broke the usual ideological lines, he wrote the majority opinion favoring an immigrant fighting deportation. He referred to dissenters’ view that the majority’s reading of the disputed statute would “impose substantial costs and burdens on the immigration system.”
“[T]hat kind of raw consequentialist calculation plays no role in our decision,” Gorsuch wrote.
This time, Roberts alone is not enough.
In addition, it may be not as hard as you think. $100B was taken from GSE's bank. Not even a penalty.
Reading back through the oral arguments, I am struck again by how little of it was focused on the two questions the government brought up in their petition: whether the APA claims should be barred by 4617(f) or the succession clause. I know that SCOTUS is infamous for their decisions not being all that predictable from the contents of the oral arguments, but does such a lack of focus on those two issues mean that they are seen as a fait accompli?
What is your take on the remedy provided in the SCOTUS released today US vs Arthrex regarding another constitutional violation (appointments clause)? It seems like the removable at will fix isn't going far enough.
I think $100B refund may not be the biggest decision. Voiding NWS because of unconstitutional FHFA has a massive consequence. Conservatorship to be voided? Senior shares too?
@scotusfan#1.
just skimmed quickly Anthrex. the unenforceable section of the statute as per the Chief Justice was not allowing the ALJ decision to be reviewed by the supervising patent officer. To extent the ALJ can make binding determinations (re patents), those determinations must be made or reviewed by someone removable by POTUS (and the ALJs are not so removable). so "We also conclude that the appropriate remedy is a remand to the Acting Director for him to decide whether to rehear the petition filed by Smith & Nephew." so this is backward relief lite...meaning that if the statute needed to have that decisional supervisory review in order for the statute to avoid a separation of powers problem, then P Anthrax is entitled to have that review conducted.
So I dont see this decision and the remedy selected to be antagonistic to Collins Ps. Put another way, Anthrex cant be made to apply to Collins since the constitutional issue in Collins is not the FHFA acting director's supervision by someone removable by POTUS, but rather his own removability.
https://www.cnn.com/2021/05/21/politics/supreme-court-finger-pointing-kavanaugh-kagan-gorsuch/index.html
Gorsuch has also suggested colleagues are seeking certain outcomes in a case, irrespective of the law. In an immigration controversy that broke the usual ideological lines, he wrote the majority opinion favoring an immigrant fighting deportation. He referred to dissenters’ view that the majority’s reading of the disputed statute would “impose substantial costs and burdens on the immigration system.”
“[T]hat kind of raw consequentialist calculation plays no role in our decision,” Gorsuch wrote.
This time, Roberts alone is not enough.
In addition, it may be not as hard as you think. $100B was taken from GSE's bank. Not even a penalty.
Great stuff! Thank you for writing it up.
Reading back through the oral arguments, I am struck again by how little of it was focused on the two questions the government brought up in their petition: whether the APA claims should be barred by 4617(f) or the succession clause. I know that SCOTUS is infamous for their decisions not being all that predictable from the contents of the oral arguments, but does such a lack of focus on those two issues mean that they are seen as a fait accompli?
What is your take on the remedy provided in the SCOTUS released today US vs Arthrex regarding another constitutional violation (appointments clause)? It seems like the removable at will fix isn't going far enough.
I think $100B refund may not be the biggest decision. Voiding NWS because of unconstitutional FHFA has a massive consequence. Conservatorship to be voided? Senior shares too?