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" ... The Supreme Court has been more aggressive toward regulatory agencies in recent years, perhaps reflecting a conservative push to return policymaking to elected legislators. Congress, of course, finds it uncomfortable to make such politically dangerous decisions and the Clean Water Act and the Clean Air Act both have become encrusted with conflicting judiciary interpretations of what their manifold provisions actually mean. The Sixth Circuit noted this in its decision, saying g iven the uncertainty over the definitions of “navigable waters” and “waters of the U.S.,” “the clarification that the new Rule strives to achiev is long overdue.” But the “sheer breadth of the ripple effects” of the rule counsel in favor of maintaining the status quo for a while. ... "
" ... The government then further notes in the same vein that “[g]iven that the plaintiffs maintain no current right to a liquidation preference while the GSEs are in conservatorship, the plaintiffs are no worse off today than they were before the Third Amendment.” The first of these arguments means that if the government strips out all the money from Fannie and Freddie but never liquidates them, it can never be challenged in court. The second argument flies in the face that the Third Amendment purports to be a binding contract whose immediate effect was to send the market into a tailspin. The ripeness argument is also incorrect for a variety of technical reasons. ... "