The Fifth Circuit tees up a major separation of powers caseby admin on 07/20/2018 12:46 AM
Calling Judge Kavanaugh
By The WSJ Editorial Board
July 29, 2018
One exciting prospect for a Supreme Court that may soon include Brett Kavanaugh and Neil Gorsuch is reining in the excesses of the administrative state. The Fifth Circuit Court of Appeals this month teed up a potential early blockbuster by ruling that the Federal Housing Finance Agency (FHFA) is unconstitutional. . .
One irony of Collins v. Mnuchin is that it was brought by Fannie Mae and Freddie Mac investors to overturn the 2012 decision by the Obama Treasury to sweep all Fannie and Freddie profits for the government. The constitutional argument was almost an afterthought.
Two of the three Fifth Circuit judges ruled that the FHFA profit sweep was legal under the congressional statute. New Fifth Circuit judge Don Willett agreed with his two colleagues on the constitutional issues but wrote a spirited dissent on the legality of the sweep that may also make it to the Supreme Court.
As we wrote when he was nominated, Judge Kavanaugh and Justice Gorsuch are part of a new generation of judges who want to restore the Constitution’s original understanding of the separation of powers. In particular they are less likely to defer to regulators who rewrite laws without proper statutory authority. And they may be more willing to strike down agencies that can’t be controlled by the President. Thanks to the Fifth Circuit, we may soon get a lesson anew in James Madison’s genius.
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Government is not the solution to our problems, government is the problem.
– Ronald Reagan
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