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

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