Brief of Court-Appointed Amicus Curiae in Collins v. Mnuchin in Support of the Position that the Federal Housing Finance Agency's Structure Does Not Violate the Separation of Powers

64 Pages Posted: 7 Jan 2021

See all articles by Aaron Nielson

Aaron Nielson

Brigham Young University - J. Reuben Clark Law School

Christopher J. Walker

Ohio State University (OSU) - Michael E. Moritz College of Law

Date Written: October 16, 2020

Abstract

The Federal Housing Finance Agency is headed by a single director whom the President can remove "for cause." The U.S. Court of Appeals for the Fifth Circuit, sitting en banc, determined that this structure is unconstitutional. Because the U.S. Department of Justice declined to defend the agency's constitutionality, the Supreme Court appointed an amicus curiae to do so.

This brief offers a number of arguments why the FHFA's structure does not violate the separation of powers, including that: (i) the challenged action was performed by an FHFA Acting Director, not the Senate-confirmed Director, and acting directors are removable at will by the President in the absence of a legislation providing for removal protection; (ii) the President's removal power does not apply because the FHFA does not exercise significant executive authority; (iii) conservatorship does not implicate executive power; (iv) Congress has a freer hand to create removal restrictions for agencies that do not regulate purely private entities; and (5) "for cause" provisions offer the weakest tenure protection and, importantly, allows removal based on policy disagreement with the President.

Keywords: administrative law, separation of powers, removal power, executive power, conservatorship, for cause, tenure protection

Suggested Citation

Nielson, Aaron and Walker, Christopher J., Brief of Court-Appointed Amicus Curiae in Collins v. Mnuchin in Support of the Position that the Federal Housing Finance Agency's Structure Does Not Violate the Separation of Powers (October 16, 2020). BYU Law Research Paper No. 21-01, Available at SSRN: https://ssrn.com/abstract=3760016

Aaron Nielson (Contact Author)

Brigham Young University - J. Reuben Clark Law School ( email )

430 JRCB
Brigham Young University
Provo, UT 84602
United States

Christopher J. Walker

Ohio State University (OSU) - Michael E. Moritz College of Law ( email )

55 West 12th Avenue
Columbus, OH 43210
United States
614-247-1898 (Phone)

HOME PAGE: http://www.chrisjwalker.com

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