Calcutt v. Federal Deposit Insurance Corporation, Amicus Curiae Brief of Separation of Powers Clinic in Support of Petitioners Petition for Rehearing En Banc or Panel Rehearing

Abstract

Separation of powers is “the true mettle of the U.S. Constitution, the true long-term guardian of liberty.” In re MCP No. 165, 20 F.4th 264, 269 (6th Cir. 2021) (Sutton, C.J., dissenting from the denial of initial hearing en banc). The Court should grant rehearing in this case because the panel’s erroneous resolution of several important separation of powers issues otherwise will have longstanding detrimental consequences on the balance of power between Congress, the judiciary, and the executive.

First, the panel misread Collins as establishing a nearly insurmountable barrier for prevailing on challenges to unconstitutional officer removal protections. This conclusion sits in tension with Collins itself. More, it would essentially foreclose all future challenges to constitutional structural violations on appointments or removal grounds because it extends the principle of Collins beyond retrospective harm, creating a hurdle to challenging even ongoing actions by unconstitutionally serving officers. Courts have long possessed equitable power to remedy ongoing constitutional violations even where they may lack power to provide certain remedies for past violations. The en banc court should review the panel decision’s tension with this longstanding principle.

Second, by refusing to remand to the Federal Deposit Insurance Corporation (“FDIC”) and preserving the agency’s action at all costs, the panel violated the core doctrine of Chenery I, which prohibits courts from doing the agency’s job of providing reasons and legal justification for agency actions.

Keywords: FDIC, Removal power, Administrative Law, Executive Branch, Separation of Powers, Independent Agencies, Judicial Branch

JEL Classification: K00, K1, K10, K23, K4