We are patiently awaiting the Appeals Court’s decision in Perry v US regarding the GSE’s. Well, not patiently really but we have no other choice. The case is before Judges BROWN and MILLETT, Circuit Judges, and GINSBURG, Senior Circuit Judge.  It is always helpful to note previous decisions for possible clues as to how they view things.  Today a decision in Heartland v NLRB I think gives us some insight that this panel is not one to simply acquiesce to the “HERA says we can do whatever we want so bud out” line of thinking advanced by the government to this point (and Perry argues erroneously accepted by Lambreth).

From the decision (h/t reader Mark):

We recognize the Board’s unimpeded access to the public fisc means these modest fees can be dismissed as chump change. But money does not explain the Board’s bad faith; “the pleasure of being above the rest” does. 24 See C.S. Lewis, MERE CHRISTIANITY 122 (Harper Collins 2001).

Let the word go forth: for however much the judiciary has emboldened the administrative state, we “say what the law is.” Marbury, 5 U.S. (1 Cranch) at 177. In other words, administrative hubris does not get the last word under our Constitution. And citizens can count on it.