I’ve gone ahead and marked up the pdf with the relevant sections. Now a bit about the author. It is important because whenever stuff like this comes up, those who disagree will instantly go to the author’s bias in an attempt to mitigate their conclusions. So, who is Ms. Steel?
Ally is a 3L from Maryland, and a graduate of Tulane University. Before law school, she worked in politics and on Capitol Hill, including for President Obama’s 2008 campaign, and the U.S. Senate campaigns of Senators Patty Murray, Maria Cantwell and Tim Kaine. Most recently, she served as the Press Secretary on the Senate Budget Committee. At HLS she also serves as the Executive Policy Editor of the Harvard Law and Policy Review and on the board of the Women’s Law Association.
Yup, no “plaintiff bias” here. If anything, one would expect a viewpoint, given her past political affiliations, that more closely aligns with the viewpoint of the administration. That she takes a view perfectly counter to that is telling….kudos to her for her intellectual honesty.
For those who want crib notes:
1- HERA does NOT exclude judicial review when conflict of interest exists
2- Delta is the case law that covers this
3- It is clear both FHFA and Treasury have a conflict (on multiple levels)
4- Therefore, judicial review of the 3rd amendment of this is warranted
There is much much more but that is the very abbreviated version of her conclusions
Havard Law GSE Litigation paper