Collins v. Yellen ( 2021 )

(Slip Opinion) OCTOBER TERM, 2020 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
COLLINS ET AL. v. YELLEN, SECRETARY OF THE
TREASURY, ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE FIFTH CIRCUIT
No. 19–422. Argued December 9, 2020—Decided June 23, 2021*
When the national housing bubble burst in 2008, the Federal National
Mortgage Association (Fannie Mae) and the Federal Home Loan Mort-
gage Corporation (Freddie Mac), two of the Nation’s leading sources of
mortgage financing, suffered significant losses that many feared would
imperil the national economy. To address that concern, Congress en-
acted the Housing and Economic Recovery Act of 2008 (Recovery Act),
which, among other things, created the Federal Housing Finance
Agency (FHFA)—an independent agency tasked with regulating the
companies and, if necessary, stepping in as their conservator or re-
ceiver. See 12 U. S. C. §4501 et seq. At the head of the Agency, Con-
gress installed a single Director, removable by the President only “for
cause.” §§4512(a), (b)(2).
Soon after the FHFA’s creation, the Director placed Fannie Mae and
Freddie Mac into conservatorship and negotiated agreements for the
companies with the Department of Treasury. Under those agree-
ments, Treasury committed to providing each company with up to $100
billion in capital, and in exchange received, among other things, senior
preferred shares and quarterly fixed-rate dividends. In the years that
followed, the agencies agreed to a number of amendments, the third of
which replaced the fixed-rate dividend formula with a variable one
that required the companies to make quarterly payments consisting of
their entire net worth minus a small specified capital reserve.
A group of the companies’ shareholders challenged the third amend-
——————
* Together with No. 19–563, Yellen, Secretary of the Treasury, et al. v.
Collins et al., also on certiorari to the same court.
2 COLLINS v. YELLEN
Syllabus
ment on both statutory grounds—that the FHFA exceeded its author-
ity as a conservator under the Recovery Act by agreeing to the new
variable dividend formula—and constitutional grounds—that the
FHFA’s structure violates the separation of powers because the
Agency is led by a single Director, removable by the President only for
cause. The District Court dismissed the statutory claim and granted
summary judgment in the FHFA’s favor on the constitutional claim.
The Fifth Circuit reversed the District Court’s dismissal of the statu-
tory claim, held that the FHFA’s structure violates the separation of
powers, and concluded that the appropriate remedy for the constitu-
tional violation was to sever the removal restriction from the rest of
the Recovery Act, but not to vacate and set aside the third amendment.
Held:
1. The shareholders’ statutory claim must be dismissed. The “anti-
injunction clause” of the Recovery Act provides that unless review is
specifically authorized by one of its provisions or is requested by the
Director, “no court may take any action to restrain or affect the exer-
cise of powers or functions of the Agency as a conservator or a re-
ceiver.” §4617(f). Where, as here, the FHFA’s challenged actions did
not exceed its “powers or functions” “as a conservator,” relief is prohib-
ited. Pp. 12–17.
(a) The Recovery Act grants the FHFA expansive authority in its
role as a conservator and permits the Agency to act in what it deter-
mines is “in the best interests of the regulated entity or the Agency.”
§4617(b)(2)(J)(ii) (emphasis added). So when the FHFA acts as a con-
servator, it may aim to rehabilitate the regulated entity in a way that,
while not in the best interests of the regulated entity, is beneficial to
the Agency and, by extension, the public it serves. This feature of an
FHFA conservatorship is fatal to the shareholders’ statutory claim.
The third amendment was adopted at a time when the companies had
repeatedly been unable to make their fixed quarterly dividend pay-
ments without drawing on Treasury’s capital commitment. If things
had proceeded as they had in the past, there was a possibility that the
companies would have consumed some or all of the remaining capital
commitment in order to pay their dividend obligations. The third
amendment’s variable dividend formula eliminated that risk, and in
turn ensured that all of Treasury’s capital was available to backstop
the companies’ operations during difficult quarters. Although the
third amendment required the companies to relinquish nearly all of
their net worth, the FHFA could have reasonably concluded that this
course of action was in the best interests of members of the public who
rely on a stable secondary mortgage market. Pp. 13–15.
(b) The shareholders argue that the third amendment did not ac-
tually serve the best interests of the FHFA or the public because it did
Cite as: 594 U. S. ____ (2021) 3
Syllabus
not further the asserted objective of protecting Treasury’s capital com-
mitment. First, they claim that the FHFA agreed to the amendment
at a time when the companies were on the precipice of a financial up-
tick which would have allowed them to pay their cash dividends and
build up capital buffers to absorb future losses. Thus, the shareholders
assert, sweeping all the companies’ earnings to Treasury increased ra-
ther than decreased the risk that the companies would make further
draws and eventually deplete Treasury’s commitment. But the suc-
cess of the strategy that the shareholders tout was dependent on spec-
ulative projections about future earnings, and recent experience had
given the FHFA reasons for caution. The nature of the conserva-
torship authorized by the Recovery Act permitted the Agency to reject
the shareholders’ suggested strategy in favor of one that the Agency
reasonably viewed as more certain to ensure market stability. Second,
the shareholders claim that the FHFA could have protected Treasury’s
capital commitment by ordering the companies to pay the dividends in
kind rather than in cash. This argument rests on a misunderstanding
of the agreement between the companies and Treasury. Paying Treas-
ury in kind would not have satisfied the cash dividend obligation; it
would only have delayed that obligation, as well as the risk that the
companies’ cash dividend obligations would consume Treasury’s capi-
tal commitment. Choosing to forgo this option in favor of one that
eliminated the risk entirely was not in excess of the FHFA’s authority
as a conservator. Finally, the shareholders argue that because the
third amendment left the companies unable to build capital reserves
and exit conservatorship, it is best viewed as a step toward liquidation,
which the FHFA lacked the authority to take without first placing the
companies in receivership. This characterization is inaccurate. Noth-
ing about the third amendment precluded the companies from operat-
ing at full steam in the marketplace, and all available evidence sug-
gests that they did. The companies were not in the process of winding
down their affairs. Pp. 15–17.
2. The Recovery Act’s restriction on the President’s power to remove
the FHFA Director, 12 U. S. C. §4512(b)(2), is unconstitutional.
Pp. 17–36.
(a) The threshold issues raised in the lower court or by the federal
parties and appointed amicus do not bar a decision on the merits of the
shareholders’ constitutional claim. Pp. 17–26.
(i) The shareholders have standing to bring their constitutional
claim. See Lujan v. Defenders of Wildlife, 504 U. S. 555, 560–561.
First, the shareholders assert that the FHFA transferred the value of
their property rights in Fannie Mae and Freddie Mac to Treasury, and
that sort of pocketbook injury is a prototypical form of injury in fact.
See Czyzewski v. Jevic Holding Corp., 580 U. S. ___, ___. Second, the
4 COLLINS v. YELLEN
Syllabus
shareholders’ injury is traceable to the FHFA’s adoption and imple-
mentation of the third amendment, which is responsible for the varia-
ble dividend formula. For purposes of traceability, the relevant in-
quiry is whether the plaintiffs’ injury can be traced to “allegedly
unlawful conduct” of the defendant, not to the provision of law that is
challenged. Allen v. Wright, 468 U. S. 737, 751. Finally, a decision in
the shareholders’ favor could easily lead to the award of at least some
of the relief that the shareholders seek. Pp. 17–19.
(ii) The shareholders’ constitutional claim is not moot. After
oral argument was held in this case, the FHFA and Treasury agreed
to amend the stock purchasing agreements for a fourth time. That
amendment eliminated the variable dividend formula that caused the
shareholders’ injury. As a result, the shareholders no longer have any
ground for prospective relief, but they retain an interest in the retro-
spective relief they have requested. That interest saves their consti-
tutional claim from mootness. P. 19.
(iii) The shareholders’ constitutional claim is not barred by the
Recovery Act’s “succession clause.” §4617(b)(2)(A)(i). That clause ef-
fects only a limited transfer of stockholders’ rights, namely, the rights
they hold “with respect to the regulated entity” and its assets. Ibid.
Here, by contrast, the shareholders assert a right that they hold in
common with all other citizens who have standing to challenge the re-
moval restriction. The succession clause therefore does not transfer to
the FHFA the constitutional right at issue. Pp. 20–21.
(iv) The shareholders’ constitutional challenge can proceed even
though the FHFA was led by an Acting Director, as opposed to a Sen-
ate-confirmed Director, at the time the third amendment was adopted.
The harm allegedly caused by the third amendment did not come to an
end during the tenure of the Acting Director who was in office when
the amendment was adopted. Rather, that harm is alleged to have
continued after the Acting Director was replaced by a succession of
confirmed Directors, and it appears that any one of those officers could
have renegotiated the companies’ dividend formula with Treasury.
Because confirmed Directors chose to continue implementing the third
amendment while insulated from plenary Presidential control, the sur-
vival of the shareholders’ constitutional claim does not depend on the
answer to the question whether the Recovery Act restricted the re-
moval of an Acting Director. The answer to that question could, how-
ever, have a bearing on the scope of relief that may be awarded to the
shareholders. If the statute does not restrict the removal of an Acting
Director, any harm resulting from actions taken under an Acting Di-
rector would not be attributable to a constitutional violation. Only
harm caused by a confirmed Director’s implementation of the third
amendment could then provide a basis for relief. In the Recovery Act,
Cite as: 594 U. S. ____ (2021) 5
Syllabus
Congress expressly restricted the President’s power to remove a con-
firmed Director but said nothing of the kind with respect to an Acting
Director. When a statute does not limit the President’s power to re-
move an agency head, the Court generally presumes that the officer
serves at the President’s pleasure. See Shurtleff v. United States, 189
U. S. 311, 316. Seeing no grounds for departing from that presumption
here, the Court holds that the Recovery Act’s removal restriction does
not extend to an Acting Director and proceeds to the merits of the
shareholders’ constitutional argument. Pp. 21–26.
(b) The Recovery Act’s for-cause restriction on the President’s re-
moval authority violates the separation of powers. In Seila Law LLC
v. Consumer Financial Protection Bureau, 591 U. S. ___, the Court
held that Congress could not limit the President’s power to remove the
Director of the Consumer Financial Protection Bureau (CFPB) to in-
stances of “inefficiency, neglect, or malfeasance.” Id., at ___. In so
holding, the Court observed that the CFPB, an independent agency led
by a single Director, “lacks a foundation in historical practice and
clashes with constitutional structure by concentrating power in a uni-
lateral actor insulated from Presidential control.” Id., at ___–___. A
straightforward application of Seila Law’s reasoning dictates the re-
sult here. The FHFA (like the CFPB) is an agency led by a single Di-
rector, and the Recovery Act (like the Dodd-Frank Act) restricts the
President’s removal power. The distinctions Court-appointed amicus
draws between the FHFA and the CFPB are insufficient to justify a
different result. First, amicus argues that Congress should have
greater leeway to restrict the President’s power to remove the FHFA
Director because the FHFA’s authority is more limited than that of the
CFPB. But the nature and breadth of an agency’s authority is not dis-
positive in determining whether Congress may limit the President’s
power to remove its head. Moreover, the test that amicus proposes
would lead to severe practical problems. Courts are not well-suited to
weigh the relative importance of the regulatory and enforcement au-
thority of disparate agencies. Second, amicus contends that Congress
may restrict the removal of the FHFA Director because when the
Agency steps into the shoes of a regulated entity as its conservator or
receiver, it takes on the status of a private party and thus does not
wield executive power. But the Agency does not always act in such a
capacity, and even when it does, the Agency must implement a federal
statute and may exercise powers that differ critically from those of
most conservators and receivers. Third, amicus asserts that the
FHFA’s structure does not violate the separation of powers because
the entities it regulates are Government-sponsored enterprises that
have federal charters, serve public objectives, and receive special priv-
ileges. This argument fails because the President’s removal power
6 COLLINS v. YELLEN
Syllabus
serves important purposes regardless of whether the agency in ques-
tion affects ordinary Americans by directly regulating them or by tak-
ing actions that have a profound but indirect effect on their lives. Fi-
nally, amicus contends that there is no constitutional problem in this
case because the Recovery Act offers only “modest” tenure protection.
But the Constitution prohibits even “modest restrictions” on the Pres-
ident’s power to remove the head of an agency with a single top officer.
Id., at ___. Pp. 26–32.
(c) The shareholders seek an order setting aside the third amend-
ment and requiring that all dividend payments made pursuant to that
amendment be returned to Fannie Mae and Freddie Mac. In support
of this request, they contend that the third amendment was adopted
and implemented by officers who lacked constitutional authority and
that their actions were therefore void ab initio. This argument is nei-
ther logical nor supported by precedent. All the officers who headed
the FHFA during the time in question were properly appointed. There
is no basis for concluding that any head of the FHFA lacked the au-
thority to carry out the functions of the office or that actions taken by
the FHFA in relation to the third amendment are void. That does not
necessarily mean, however, that the shareholders have no entitlement
to retrospective relief. Although an unconstitutional provision is never
really part of the body of governing law, it is still possible for an un-
constitutional provision to inflict compensable harm. The possibility
that the unconstitutional restriction on the President’s power to re-
move a Director of the FHFA could have such an effect cannot be ruled
out. The parties’ arguments on this point should be resolved in the
first instance by the lower courts. Pp. 32–36.
938 F. 3d 553, affirmed in part, reversed in part, vacated in part, and
remanded.
ALITO, J., delivered the opinion of the Court, in which ROBERTS, C. J.,
and THOMAS, KAVANAUGH, and BARRETT, JJ., joined in full; in which KA-
GAN and BREYER, JJ., joined as to all but Part III–B; in which GORSUCH,
J., joined as to all but Part III–C; and in which SOTOMAYOR, J., joined as
to Parts I, II, and III–C. THOMAS, J., filed a concurring opinion. KAGAN,
J., filed an opinion concurring in part and concurring in the judgment, in
which BREYER and SOTOMAYOR, JJ., joined as to Part II. GORSUCH, J.,
filed an opinion concurring in part. SOTOMAYOR, J., filed an opinion con-
curring in part and dissenting in part, in which BREYER, J., joined.
Cite as: 594 U. S. ____ (2021) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order that
corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
Nos. 19–422 and 19–563
_________________
PATRICK J. COLLINS, ET AL., PETITIONERS
19–422 v.
JANET L. YELLEN, SECRETARY
OF THE TREASURY, ET AL.
JANET L. YELLEN, SECRETARY OF THE TREASURY,
ET AL., PETITIONERS
19–563 v.
PATRICK J. COLLINS, ET AL.
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT
[June 23, 2021]
JUSTICE ALITO delivered the opinion of the Court.
Fannie Mae and Freddie Mac are two of the Nation’s
leading sources of mortgage financing. When the housing
crisis hit in 2008, the companies suffered significant losses,
and many feared that their troubling financial condition
would imperil the national economy. To address that con-
cern, Congress enacted the Housing and Economic Recov-
ery Act of 2008 (Recovery Act), 122 Stat. 2654, 12 U. S. C.
§4501 et seq. Among other things, that law created the Fed-
eral Housing Finance Agency (FHFA), “an independent
agency” tasked with regulating the companies and, if nec-
essary, stepping in as their conservator or receiver. §§4511,
4617. At its head, Congress installed a single Director,
whom the President could remove only “for cause.”
2 COLLINS v. YELLEN
Opinion of the Court
§§4512(a), (b)(2).
Shortly after the FHFA came into existence, it placed
Fannie Mae and Freddie Mac into conservatorship and ne-
gotiated agreements for the companies with the Depart-
ment of Treasury. Under those agreements, Treasury com-
mitted to providing each company with up to $100 billion in
capital, and in exchange received, among other things, sen-
ior preferred shares and quarterly fixed-rate dividends.
Four years later, the FHFA and Treasury amended the
agreements and replaced the fixed-rate dividend formula
with a variable one that required the companies to make
quarterly payments consisting of their entire net worth mi-
nus a small specified capital reserve. This deal, which the
parties refer to as the “third amendment” or “net worth
sweep,” caused the companies to transfer enormous
amounts of wealth to Treasury. It also resulted in a slew of
lawsuits, including the one before us today.
A group of Fannie Mae’s and Freddie Mac’s shareholders
challenged the third amendment on statutory and constitu-
tional grounds. With respect to their statutory claim, the
shareholders contended that the Agency exceeded its au-
thority as a conservator under the Recovery Act when it
agreed to a variable dividend formula that would transfer
nearly all of the companies’ net worth to the Federal Gov-
ernment. And with respect to their constitutional claim,
the shareholders argued that the FHFA’s structure violates
the separation of powers because the Agency is led by a sin-
gle Director who may be removed by the President only “for
cause.” §4512(b)(2). They sought declaratory and injunc-
tive relief, including an order requiring Treasury either to
return the variable dividend payments or to re-characterize
those payments as a pay down on Treasury’s investment.
We hold that the shareholders’ statutory claim is barred
by the Recovery Act, which prohibits courts from taking
“any action to restrain or affect the exercise of [the] powers
or functions of the Agency as a conservator.” §4617(f ). But
Cite as: 594 U. S. ____ (2021) 3
Opinion of the Court
we conclude that the FHFA’s structure violates the separa-
tion of powers, and we remand for further proceedings to
determine what remedy, if any, the shareholders are enti-
tled to receive on their constitutional claim.
I
A
Congress created the Federal National Mortgage Associ-
ation (Fannie Mae) in 1938 and the Federal Home Loan
Mortgage Corporation (Freddie Mac) in 1970 to support the
Nation’s home mortgage system. See National Housing Act
Amendments of 1938, 52 Stat. 23; Federal Home Loan
Mortgage Corporation Act, 84 Stat. 451. The companies op-
erate under congressional charters as for-profit corpora-
tions owned by private shareholders. See Housing and Ur-
ban Development Act of 1968, §801, 82 Stat. 536, 12 U. S. C.
§1716b; Financial Institutions Reform, Recovery, and En-
forcement Act of 1989, §731, 103 Stat. 429–436, note follow-
ing 12 U. S. C. §1452. Their primary business is purchas-
ing mortgages, pooling them into mortgage-backed
securities, and selling them to investors. By doing so, the
companies “relieve mortgage lenders of the risk of default
and free up their capital to make more loans,” Jacobs v.
Federal Housing Finance Agcy. (FHFA), 908 F. 3d 884, 887
(CA3 2018), and this, in turn, increases the liquidity and
stability of America’s home lending market and promotes
access to mortgage credit.
By 2007, the companies’ mortgage portfolios had a com-
bined value of approximately $5 trillion and accounted for
almost half of the Nation’s mortgage market. So, when the
housing bubble burst in 2008, the companies took a sizeable
hit. In fact, they lost more that year than they had earned
in the previous 37 years combined. See FHFA Office of In-
spector General, Analysis of the 2012 Amendments to the
Senior Preferred Stock Purchase Agreements 5 (Mar. 20,
2013), https://www.fhfaoig.gov/Content/Files/WPR–2013–
4 COLLINS v. YELLEN
Opinion of the Court
002_2.pdf. Though they remained solvent, many feared the
companies would eventually default and throw the housing
market into a tailspin.
To address that concern, Congress enacted the Recovery
Act. Two aspects of that statute are relevant here.
First, the Recovery Act authorized Treasury to purchase
Fannie Mae’s and Freddie Mac’s stock if it determined that
infusing the companies with capital would protect taxpay-
ers and be beneficial to the financial and mortgage markets.
12 U. S. C. §§1455(l)(1), 1719(g)(1). The statute further
provided that Treasury’s purchasing authority would auto-
matically expire at the end of the 2009 calendar year.
§§1455(l)(4), 1719(g)(4).
Second, the Recovery Act created the FHFA to regulate
the companies and, in certain specified circumstances, step
in as their conservator or receiver. §§4502(20), 4511(b),
4617.1 A few features of the Agency deserve mention.
The FHFA is led by a single Director who is appointed by
the President with the advice and consent of the Senate.
§§4512(a), (b)(1). The Director serves a 5-year term but
may be removed by the President “for cause.” §4512(b)(2).
The Director is permitted to choose three deputies to assist
in running the Agency’s various divisions, and the Director
sits as Chairman of the Federal Housing Finance Oversight
Board, which advises the Agency about matters of strategy
and policy. §§4512(c)–(e), 4513a(a), (c)(4). Since its incep-
tion, the FHFA has had three Senate-confirmed Directors,
and in times of their absence, various Acting Directors have
been selected to lead the Agency on an interim basis. See
Rop v. FHFA, 485 F. Supp. 3d 900, 915 (WD Mich. 2020).
The Agency is tasked with supervising nearly every as-
——————
1 Before the Recovery Act was enacted, Fannie Mae and Freddie Mac
were regulated by the Office of Federal Housing Enterprise Oversight.
See Federal Housing Enterprises Financial Safety and Soundness Act of
1992, §§1311–1313, 106 Stat. 3944–3946.
Cite as: 594 U. S. ____ (2021) 5
Opinion of the Court
pect of the companies’ management and operations. For ex-
ample, the Agency must approve any new products that the
companies would like to offer. §4541(a). It may reject ac-
quisitions and certain transfers of interests the companies
seek to execute. §4513(a)(2)(A). It establishes criteria gov-
erning the companies’ portfolio holdings. §4624(a). It may
order the companies to dispose of or acquire any asset.
§4624(c). It may impose caps on how much the companies
compensate their executives and prohibit or limit golden
parachute and indemnification payments. §4518. It may
require the companies to submit regular reports on their
condition or “any other relevant topics.” §4514(a)(2). And
it must conduct one on-site examination of the companies
each year and may, on any terms the Director deems appro-
priate, hire outside firms to perform additional reviews.
§§4517(a)–(b), 4519.
The statute empowers the Agency with broad investiga-
tive and enforcement authority to ensure compliance with
these standards. Among other things, the Agency may hold
hearings, §§4582, 4633; issue subpoenas, §§4588(a)(3),
4641(a)(3); remove or suspend corporate officers, §4636a; is-
sue cease-and-desist orders, §§4581, 4632; bring civil ac-
tions in federal court, §§4584, 4635; and impose penalties
ranging from $2,000 to $2 million per day, §§4514(c)(2),
4585, 4636(b).
In addition to vesting the FHFA with these supervisory
and enforcement powers, the Recovery Act authorizes the
Agency to act as the companies’ conservator or receiver for
the purposes of reorganizing the companies, rehabilitating
them, or winding down their affairs. §§4617(a)(1)–(2). The
Director may appoint the Agency in either capacity if the
companies meet certain specified benchmarks of financial
risk or satisfy other criteria, §4617(a)(3), and once the Di-
rector makes that appointment, the Agency succeeds to all
of the rights, titles, powers, and privileges of the companies,
6 COLLINS v. YELLEN
Opinion of the Court
§4617(b)(2)(A)(i).2 From there, the Agency has the author-
ity to take control of the companies’ assets and operations,
conduct business on their behalf, and transfer or sell any of
their assets or liabilities. §§4617(b)(2)(B)–(C), (G). In per-
forming these functions, the Agency may exercise whatever
incidental powers it deems necessary, and it may take any
authorized action that is in the best interests of the compa-
nies or the Agency itself. §4617(b)(2)(J).
Finally, the FHFA is not funded through the ordinary ap-
propriations process. Rather, the Agency’s budget comes
from the assessments it imposes on the entities it regulates,
which include Fannie Mae, Freddie Mac, and the Nation’s
federal home loan banks. §§4502(20), 4516(a). Those as-
sessments are unlimited so long as they do not exceed the
“reasonable costs . . . and expenses of the Agency.”
§4516(a). In fiscal year 2020, the FHFA collected more than
$311 million. See FHFA, Performance & Accountability
Report 24 (2020), https://www.fhfa.gov/AboutUs/Reports/
ReportDocuments/FHFA-2020-PAR.pdf.
B
In September 2008, less than two months after Congress
enacted the Recovery Act, the Director appointed the FHFA
as conservator of Fannie Mae and Freddie Mac. The follow-
ing day, Treasury exercised its temporary authority to buy
their stock and the FHFA, acting as the companies’ conser-
vator, entered into purchasing agreements with Treasury.3
Under these agreements, Treasury committed to providing
——————
2 Receivership is mandatory in certain circumstances not relevant
here. See 12 U. S. C. §4617(a)(4).
3 See Amended and Restated Senior Preferred Stock Purchase Agree-
ment Between the United States Department of the Treasury and the
Federal National Mortgage Association (Sept. 26, 2008); Amended and
Restated Senior Preferred Stock Purchase Agreement Between the
United States Department of the Treasury and the Federal Home Loan
Mortgage Corporation (Sept. 26, 2008) (online sources archived at
www.supremecourt.gov).
Cite as: 594 U. S. ____ (2021) 7
Opinion of the Court
each company with up to $100 billion in capital, upon which
it could draw in any quarter in which its liabilities exceeded
its assets. In return for this funding commitment, Treasury
received 1 million shares of specially created senior pre-
ferred stock in each company.
Those shares provided Treasury with four key entitle-
ments. First, Treasury received a senior liquidation prefer-
ence equal to $1 billion in each company, with a dollar-for-
dollar increase every time the company drew on the capital
commitment. In other words, in the event the FHFA liqui-
dated Fannie Mae or Freddie Mac, Treasury would have the
right to be paid back $1 billion, as well as whatever amount
the company had already drawn from the capital commit-
ment, before any other investors or shareholders could seek
repayment. Second, Treasury was given warrants, or long-
term options, to purchase up to 79.9% of the companies’
common stock at a nominal price. Third, Treasury became
entitled to a quarterly periodic commitment fee, which the
companies would pay to compensate Treasury for the sup-
port provided by the ongoing access to capital.4 And finally,
the companies became obligated to pay Treasury quarterly
cash dividends at an annualized rate equal to 10% of Treas-
ury’s outstanding liquidation preference.
Within a year, Fannie Mae’s and Freddie Mac’s net worth
decreased substantially, and it became clear that Treas-
ury’s initial capital commitment would prove inadequate.
To address that problem, the FHFA and Treasury twice
amended the agreements to increase the available capital.
The first amendment came in May 2009, when Treasury
doubled its combined commitment from $200 billion to $400
billion.5 And the second amendment was adopted in De-
cember 2009, when Treasury agreed to provide as much
——————
4 Treasury has the authority to waive this fee. At the time this lawsuit
was filed, Treasury had always exercised this option and had never re-
ceived a periodic commitment fee from the companies. See App. 61.
5 See Amendment to Amended and Restated Senior Preferred Stock
8 COLLINS v. YELLEN
Opinion of the Court
funding as the companies needed through 2012, after which
the cap would be reinstated.6
The companies drew sizeable amounts from Treasury’s
capital commitment in the years that followed. And be-
cause of the fixed-rate dividend formula, the more money
they drew, the larger their dividend obligations became.
The companies consistently lacked the cash necessary to
pay them, and they began the circular practice of drawing
funds from Treasury’s capital commitment just to hand
those funds back as a quarterly dividend. By the middle of
2012, the companies had drawn over $187 billion, and $26
billion of that was used to satisfy their dividend obligations.
In August 2012, the FHFA and Treasury decided to
amend the agreements for a third time.7 This amendment
replaced the fixed-rate dividend formula (which was tied to
the size of Treasury’s investment) with a variable dividend
formula (which was tied to the companies’ net worth). Un-
der the new formula, the companies were required to pay a
dividend equal to the amount, if any, by which their net
——————
Purchase Agreement Between the United States Department of the
Treasury and Federal National Mortgage Association (May 6, 2009);
Amendment to Amended and Restated Senior Preferred Stock Purchase
Agreement Between the United States Department of the Treasury and
Federal Home Loan Mortgage Corporation (May 6, 2009) (online sources
archived at www.supremecourt.gov).
6 See Second Amendment to Amended and Restated Senior Preferred
Stock Purchase Agreement Between the United States Department of
the Treasury and Federal National Mortgage Association (Dec. 24, 2009);
Second Amendment to Amended and Restated Senior Preferred Stock
Purchase Agreement Between the United States Department of the
Treasury and Federal Home Loan Mortgage Corporation (Dec. 24, 2009)
(online sources archived at www.supremecourt.gov).
7 See Third Amendment to Amended and Restated Senior Preferred
Stock Purchase Agreement Between the United State Department of the
Treasury and Federal National Mortgage Association (Aug. 17, 2012);
Third Amendment to Amended and Restated Senior Preferred Stock
Purchase Agreement Between the United States Department of the
Treasury and Federal Home Loan Mortgage Corporation (Aug. 17, 2012)
(online sources archived at www.supremecourt.gov).
Cite as: 594 U. S. ____ (2021) 9
Opinion of the Court
worth exceeded a pre-determined capital reserve.8 In addi-
tion, the amendment suspended the companies’ obligations
to pay periodic commitment fees.
Shifting from a fixed-rate dividend formula to a variable
one materially changed the nature of the agreements. If
the net worth of Fannie Mae or Freddie Mac at the end of a
quarter exceeded the capital reserve, the amendment re-
quired the company to pay all of the surplus to Treasury.
But if a company’s net worth at the end of a quarter did not
exceed the reserve or if it lost money during a quarter, the
amendment did not require the company to pay anything.
This ensured that Fannie Mae and Freddie Mac would
never again draw money from Treasury just to make their
quarterly dividend payments, but it also meant that the
companies would not be able to accrue capital in good quar-
ters.
After the third amendment took effect, the companies’ fi-
nancial condition improved, and they ended up transferring
immense amounts of wealth to Treasury. In 2013, the com-
panies paid a total of $130 billion in dividends. In 2014,
they paid over $40 billion. In 2015, they paid almost $16
billion. And in 2016, they paid almost $15 billion.9 These
payments totaled approximately $200 billion, which is at
——————
8 The capital reserve for each company began at $3 billion and was
scheduled to decrease to zero by January 2018. In December 2017, how-
ever, Treasury agreed to restore the reserve to $3 billion per company in
return for a liquidation-preference increase of the same amount. See
Letters from S. Mnuchin, Secretary of Treasury, to M. Watt, Director of
the FHFA (Dec. 21, 2017). And in September 2019, Treasury agreed to
raise the reserve to $25 billion for Fannie Mae and $20 billion for Freddie
Mac, again in return for corresponding increases in the liquidation pref-
erence. See Letters from S. Mnuchin, Secretary of Treasury, to M. Ca-
labria, Director of the FHFA (Sept. 27, 2019) (online sources archived at
www.supremecourt.gov).
9 See Fannie Mae, Form 10–K for Fiscal Year Ended Dec. 31, 2016,
p. 120, https://www.fanniemae.com/media/26811/display; Freddie Mac,
Form 10–K for Fiscal Year Ended Dec. 31, 2016, p. 283, https://www
.freddiemac.com/investors/financials/pdf/10k_021617.pdf.
10 COLLINS v. YELLEN
Opinion of the Court
least $124 billion more than the companies would have had
to pay during those four years under the fixed-rate dividend
formula that previously applied.
The third amendment stayed in place for another four
years. In January 2021, the FHFA and Treasury amended
the stock purchasing agreements for a fourth time.10 This
amendment, which is currently in place, suspends the com-
panies’ quarterly dividend payments until they build up
enough capital to meet certain specified thresholds, a pro-
cess that we are told is expected to take years. See Letter
from E. Prelogar, Acting Solicitor General, to S. Harris,
Clerk of Court (Mar. 18, 2021). During that time, each com-
pany is required to pay Treasury through increases in the
liquidation preference that are equal to the increase, if any,
in its net worth during the previous fiscal year. Once that
threshold is met, the company will resume quarterly divi-
dend payments, and those dividends will be equal to the
lesser of 10% of Treasury’s liquidation preference or the in-
cremental increase in the company’s net worth in the pre-
vious quarter. In addition, the company will be required to
pay periodic commitment fees.
C
In 2016, three of Fannie Mae’s and Freddie Mac’s share-
holders brought suit against the FHFA and its Director,
and they asserted two claims that are relevant for present
purposes. First, they claimed that the FHFA exceeded its
statutory authority as the companies’ conservator by adopt-
ing the third amendment. Second, they asserted that be-
cause the FHFA is led by a single Director who may be re-
moved by the President only “for cause,” its structure is
unconstitutional. They asked for various forms of equitable
——————
10 See Letters from S. Mnuchin, Secretary of Treasury, to M. Calabria,
Director of the FHFA (Jan. 14, 2021) (online source archived at www.su-
premecourt.gov).
Cite as: 594 U. S. ____ (2021) 11
Opinion of the Court
relief, including a declaration that the third amendment vi-
olated the Recovery Act and that the FHFA’s structure is
unconstitutional; an injunction ordering Treasury to return
to Fannie Mae and Freddie Mac all the dividend payments
that were made under the third amendment or alterna-
tively, a re-characterization of those payments as a pay-
down of the liquidation preference and a corresponding re-
demption of Treasury’s stock; an order vacating and setting
aside the third amendment; and an order enjoining the
FHFA and Treasury from taking any further action to im-
plement the third amendment.11
The District Court dismissed the statutory claim and
granted summary judgment in favor of the FHFA on the
constitutional claim, Collins v. FHFA, 254 F. Supp. 3d 841(SD Tex. 2017), and a three-judge panel of the Fifth Circuit
affirmed in part and reversed in part, Collins v. Mnuchin,
896 F. 3d 640 (2018) (per curiam). At the request of both
parties, the Fifth Circuit reheard the case en banc. Collins
v. Mnuchin, 908 F. 3d 151 (2018). In a deeply fractured
opinion, the en banc court reversed the District Court’s dis-
missal of the statutory claim; held that the FHFA’s struc-
ture violates the separation of powers; and concluded that
the appropriate remedy for the constitutional violation was
to sever the removal restriction from the rest of the Recov-
ery Act, but not to vacate and set aside the third amend-
ment. Collins v. Mnuchin, 938 F. 3d 553 (2019).
Both the shareholders and the federal parties sought this
Court’s review, and we granted certiorari. 591 U. S. ___
(2020). Because the federal parties did not contest the Fifth
Circuit’s conclusion that the Recovery Act’s removal re-
——————
11 The shareholders also sued Treasury and its Secretary, contending
that the Agency exceeded its statutory authority and acted arbitrarily
and capriciously in adopting the third amendment. The District Court
dismissed these claims, the Fifth Circuit affirmed, and the shareholders
did not seek review of those holdings in this Court.
12 COLLINS v. YELLEN
Opinion of the Court
striction improperly insulates the Director from Presiden-
tial control, we appointed Aaron Nielson to brief and argue,
as amicus curiae, in support of the position that the FHFA’s
structure is constitutional. He has ably discharged his re-
sponsibilities.
II
We begin with the shareholders’ statutory claim and con-
clude that the Recovery Act requires its dismissal.
In the Recovery Act, Congress sharply circumscribed ju-
dicial review of any action that the FHFA takes as a con-
servator or receiver. The Act states that unless review is
specifically authorized by one of its provisions or is re-
quested by the Director, “no court may take any action to
restrain or affect the exercise of powers or functions of the
Agency as a conservator or a receiver.” 12 U. S. C. §4617(f ).
The parties refer to this as the Act’s “anti-injunction
clause.”
Every Court of Appeals that has confronted this language
has held that it prohibits relief where the FHFA action at
issue fell within the scope of the Agency’s authority as a
conservator, but that relief is allowed if the FHFA exceeded
that authority. See Jacobs, 908 F. 3d, at 889; Saxton v.
FHFA, 901 F. 3d 954, 957–958 (CA8 2018); Roberts v.
FHFA, 889 F. 3d 397, 402 (CA7 2018); Robinson v. FHFA,
876 F. 3d 220, 228 (CA6 2017); Perry Capital LLC v.
Mnuchin, 864 F. 3d 591, 605–606 (CADC 2017); County of
Sonoma v. FHFA, 710 F. 3d 987, 992 (CA9 2013); Leon Cty.
v. FHFA, 700 F. 3d 1273, 1278 (CA11 2012).
We agree with that consensus. The anti-injunction
clause applies only where the FHFA exercised its “powers
or functions” “as a conservator or a receiver.” Where the
FHFA does not exercise but instead exceeds those powers
or functions, the anti-injunction clause imposes no re-
strictions.
With that understanding in mind, we must decide
Cite as: 594 U. S. ____ (2021) 13
Opinion of the Court
whether the FHFA was exercising its powers or functions
as a conservator when it agreed to the third amendment. If
it was, then the anti-injunction clause bars the sharehold-
ers’ statutory claim.
A
The Recovery Act grants the FHFA expansive authority
in its role as a conservator. As we have explained, the
Agency is authorized to take control of a regulated entity’s
assets and operations, conduct business on its behalf, and
transfer or sell any of its assets or liabilities. See
§§4617(b)(2)(B)–(C), (G). When the FHFA exercises these
powers, its actions must be “necessary to put the regulated
entity in a sound and solvent condition” and must be “ap-
propriate to carry on the business of the regulated entity
and preserve and conserve [its] assets and property.”
§4617(b)(2)(D). Thus, when the FHFA acts as a conserva-
tor, its mission is rehabilitation, and to that extent, an
FHFA conservatorship is like any other. See, e.g., Resolu-
tion Trust Corporation v. CedarMinn Bldg. Ltd. Partner-
ship, 956 F. 2d 1446, 1454 (CA8 1992).12
An FHFA conservatorship, however, differs from a typi-
cal conservatorship in a key respect. Instead of mandating
that the FHFA always act in the best interests of the regu-
lated entity, the Recovery Act authorizes the Agency to act
in what it determines is “in the best interests of the regu-
lated entity or the Agency.” §4617(b)(2)(J)(ii) (emphasis
added). Thus, when the FHFA acts as a conservator, it may
aim to rehabilitate the regulated entity in a way that, while
not in the best interests of the regulated entity, is beneficial
——————
12 By contrast, when the FHFA acts as a receiver, it is required to “place
the regulated entity in liquidation and proceed to realize upon the assets
of the regulated entity.” §4617(b)(2)(E). The roles of conservator and
receiver are very different. See §4617(a)(4)(D) (“The appointment of the
Agency as receiver of a regulated entity under this section shall immedi-
ately terminate any conservatorship established for the regulated entity
under this chapter”).
14 COLLINS v. YELLEN
Opinion of the Court
to the Agency and, by extension, the public it serves. This
distinctive feature of an FHFA conservatorship is fatal to
the shareholders’ statutory claim.
The facts alleged in the complaint demonstrate that the
FHFA chose a path of rehabilitation that was designed to
serve public interests by ensuring Fannie Mae’s and Fred-
die Mac’s continued support of the secondary mortgage
market. Recall that the third amendment was adopted at
a time when the companies’ liabilities had consistently ex-
ceeded their assets over at least the prior three years. See
supra, at 8. It is undisputed that the companies had repeat-
edly been unable to make their fixed quarterly dividend
payments without drawing on Treasury’s capital commit-
ment. And there is also no dispute that the cap on Treas-
ury’s capital commitment was scheduled to be reinstated at
the end of the year and that Treasury’s temporary stock-
purchasing authority had expired in 2009. See §§1455(l)(4),
1719(g)(4). If things had proceeded as they had in the past,
there was a realistic possibility that the companies would
have consumed some or all of the remaining capital com-
mitment in order to pay their dividend obligations, which
were themselves increasing in size every time the compa-
nies made a draw.
The third amendment eliminated this risk by replacing
the fixed-rate dividend formula with a variable one. Under
the new formula, the companies would never again have to
use capital from Treasury’s commitment to pay their divi-
dends. And that, in turn, ensured that all of Treasury’s cap-
ital was available to backstop the companies’ operations
during difficult quarters. In exchange, the companies had
to relinquish nearly all their net worth, and this made cer-
tain that they would never be able to build up their own
capital buffers, pay back Treasury’s investment, and exit
conservatorship. Whether or not this new arrangement
was in the best interests of the companies or their share-
holders, the FHFA could have reasonably concluded that it
Cite as: 594 U. S. ____ (2021) 15
Opinion of the Court
was in the best interests of members of the public who rely
on a stable secondary mortgage market. The Recovery Act
therefore authorized the Agency to choose this option.
B
The shareholders contend that the third amendment did
not actually serve the best interests of the FHFA or the pub-
lic because it did not further the asserted objective of pro-
tecting Treasury’s capital commitment. This is so, the
shareholders argue, for two reasons.
First, they claim that the FHFA adopted the third
amendment at a time when the companies were on the prec-
ipice of a financial uptick and that they would soon have
been in a position not only to pay cash dividends, but also
to build up capital buffers to absorb future losses. Thus, the
shareholders assert, sweeping all the companies’ earnings
to Treasury increased rather than decreased the risk that
the companies would make further draws and eventually
deplete Treasury’s commitment.
The nature of the conservatorship authorized by the Re-
covery Act permitted the Agency to reject the shareholders’
suggested strategy in favor of one that the Agency reasona-
bly viewed as more certain to ensure market stability. The
success of the strategy that the shareholders tout was de-
pendent on speculative projections about future earnings,
and recent experience had given the FHFA reasons for cau-
tion. The companies had been repeatedly unable to pay
their dividends from 2009 to 2011. With the aim of more
securely ensuring market stability, the FHFA did not ex-
ceed the scope of its conservatorship authority by deciding
on what it viewed as a less risky approach.
Second, the shareholders contend that the FHFA could
have protected Treasury’s capital commitment by ordering
the companies to pay the dividends in kind rather than in
cash. This argument rests on a misunderstanding of the
16 COLLINS v. YELLEN
Opinion of the Court
agreement between the companies and Treasury. The com-
panies’ stock certificates required Fannie Mae and Freddie
Mac to pay their dividends “in cash in a timely manner.”
App. 180, 198. If the companies had failed to do so, they
would have incurred a penalty: Treasury’s liquidation pref-
erence would have immediately increased by the dividend
amount, and the dividend rate would have increased from
10% to 12% until the companies paid their outstanding div-
idends in cash.13 Thus, paying Treasury in kind would not
have satisfied the cash dividend obligation, and the risk
that the companies’ cash dividend obligations would con-
sume Treasury’s capital commitment in the future would
have remained. Choosing to forgo this option in favor of one
that eliminated the risk entirely was not in excess of the
FHFA’s statutory authority as conservator.
Finally, the shareholders argue that because the third
amendment left the companies unable to build capital re-
serves and exit conservatorship, it is best viewed as a step
toward ultimate liquidation and, according to the share-
holders, the FHFA lacked the authority to take this decisive
step without first placing the companies in receivership.
The shareholders’ characterization of the third amend-
ment as a step toward liquidation is inaccurate. Nothing
about the amendment precluded the companies from oper-
ating at full steam in the marketplace, and all the available
evidence suggests that they did so. Between 2012 and 2016
alone, the companies “collectively purchased at least 11 mil-
lion mortgages on single-family owner-occupied properties,
——————
13 The senior preferred stock certificates provide: “[I]f at any time the
Company shall have for any reason failed to pay dividends in cash in a
timely manner as required by this Certificate, then immediately follow-
ing such failure and for all Dividend Periods thereafter until the Divi-
dend Period following the date on which the Company shall have paid in
cash full cumulative dividends (including any unpaid dividends added to
the Liquidation Preference . . . ), the ‘Dividend Rate’ shall mean 12.0%”).
App. 180, 198.
Cite as: 594 U. S. ____ (2021) 17
Opinion of the Court
and Fannie issued over $1.5 trillion in single-family mort-
gage-backed securities.” Perry Capital, 864 F. 3d, at 602.
During that time, the companies amassed over $200 billion
in net worth and, as of November 2020, Fannie Mae’s mort-
gage portfolio had grown to $163 billion and Freddie Mac’s
to $193 billion.14 This evidence does not suggest that the
companies were in the process of winding down their af-
fairs.
It is not necessary for us to decide—and we do not de-
cide—whether the FHFA made the best, or even a particu-
larly good, business decision when it adopted the third
amendment. Instead, we conclude only that under the
terms of the Recovery Act, the FHFA did not exceed its au-
thority as a conservator, and therefore the anti-injunction
clause bars the shareholders’ statutory claim.
III
We now consider the shareholders’ claim that the statu-
tory restriction on the President’s power to remove the
FHFA Director, 12 U. S. C. §4512(b)(2), is unconstitutional.
A
Before turning to the merits of this question, however, we
must address threshold issues raised in the lower court or
by the federal parties and appointed amicus.
1
In the proceedings below, some judges concluded that the
shareholders lack standing to bring their constitutional
claim. See 938 F. 3d, at 620 (Costa, J., dissenting in part).
Because we have an obligation to make sure that we have
jurisdiction to decide this claim, see DaimlerChrysler Corp.
v. Cuno, 547 U. S. 332, 340 (2006), we begin by explaining
——————
14 See Dept. of Treasury Press Release, Treasury Department and
FHFA Amend Terms of Preferred Stock Purchase Agreements for Fannie
Mae and Freddie Mac (Jan. 14, 2021), https://home.treasury.gov/news/
press-releases/sm1236.
18 COLLINS v. YELLEN
Opinion of the Court
why the shareholders have standing.
To establish Article III standing, a plaintiff must show
that it has suffered an “injury in fact” that is “fairly tracea-
ble” to the defendant’s conduct and would likely be “re-
dressed by a favorable decision.” Lujan v. Defenders of
Wildlife, 504 U. S. 555, 560–561 (1992) (alterations and in-
ternal quotation marks omitted). The shareholders meet
these requirements.
First, the shareholders claim that the FHFA transferred
the value of their property rights in Fannie Mae and Fred-
die Mac to Treasury, and that sort of pocketbook injury is a
prototypical form of injury in fact. See Czyzewski v. Jevic
Holding Corp., 580 U. S. ___, ___ (2017) (slip op., at 11).
Second, the shareholders’ injury is traceable to the FHFA’s
adoption and implementation of the third amendment,
which is responsible for the variable dividend formula that
swept the companies’ net worth to Treasury and left noth-
ing for their private shareholders. Finally, a decision in the
shareholders’ favor could easily lead to the award of at least
some of the relief that the shareholders seek. We found
standing under similar circumstances in Seila Law LLC v.
Consumer Financial Protection Bureau, 591 U. S. ___
(2020). See id., at ___ (slip op., at 10) (“In the specific con-
text of the President’s removal power, we have found it suf-
ficient that the challenger sustains injury from an executive
act that allegedly exceeds the official’s authority” (brackets
and internal quotation marks omitted)); see also Free En-
terprise Fund v. Public Company Accounting Oversight Bd.,
561 U. S. 477 (2010) (considering challenge to removal re-
striction where plaintiffs claimed injury from allegedly un-
lawful agency oversight).
The judges who thought that the shareholders lacked
standing reached that conclusion on the ground that the
shareholders could not trace their injury to the Recovery
Act’s removal restriction. See 938 F. 3d, at 620–621 (opin-
Cite as: 594 U. S. ____ (2021) 19
Opinion of the Court
ion of Costa, J.). But for purposes of traceability, the rele-
vant inquiry is whether the plaintiffs’ injury can be traced
to “allegedly unlawful conduct” of the defendant, not to the
provision of law that is challenged. Allen v. Wright, 468
U. S. 737, 751 (1984); see also Lujan, supra, at 560 (explain-
ing that the plaintiff must show “a causal connection be-
tween the injury and the conduct complained of,” and that
“the injury has to be fairly traceable to the challenged ac-
tion of the defendant” (quoting Simon v. Eastern Ky. Wel-
fare Rights Organization, 426 U. S. 26, 41 (1976); brackets,
ellipsis, and internal quotation marks omitted)). Because
the relevant action in this case is the third amendment, and
because the shareholders’ concrete injury flows directly
from that amendment, the traceability requirement is sat-
isfied.
2
After oral argument was held in this case, the federal par-
ties notified the Court that the FHFA and Treasury had
agreed to amend the stock purchasing agreements for a
fourth time.15 And because that amendment eliminated the
variable dividend formula that had caused the sharehold-
ers’ injury, it is necessary to consider whether the fourth
amendment moots the shareholders’ constitutional claim.
It does so only with respect to some of the relief re-
quested. In their complaint, the shareholders sought vari-
ous forms of prospective relief, but because that amend-
ment is no longer in place, the shareholders no longer have
any ground for such relief. By contrast, they retain an in-
terest in the retrospective relief they have requested, and
that interest saves their constitutional claim from moot-
ness.
——————
15 See Letter from E. Prelogar, Acting Solicitor General, to S. Harris,
Clerk of Court (Mar. 18, 2021).
20 COLLINS v. YELLEN
Opinion of the Court
3
The federal parties contend that the “succession clause”
in the Recovery Act bars the shareholders’ constitutional
claim. Under this clause, when the FHFA appoints itself as
conservator, it immediately succeeds to “all rights, titles,
powers, and privileges of the regulated entity, and of any
stockholder, officer, or director of such regulated entity with
respect to the regulated entity and the assets of the regu-
lated entity.” 12 U. S. C. §4617(b)(2)(A)(i). According to the
federal parties, this clause transferred to the FHFA the
shareholders’ right to bring their constitutional claim, and
it therefore bars the shareholders from asserting that claim
on their own behalf. In other words, the federal parties
read the succession clause to mean that the only party with
the authority to challenge the restriction on the President’s
power to remove the Director of the FHFA is the FHFA it-
self.
The federal parties read the succession clause too
broadly. The clause effects only a limited transfer of stock-
holders’ rights, namely, the rights they hold as stockholders
“with respect to the regulated entity” and its assets. The
right the shareholders assert in this case is one that they
hold in common with all other citizens who have standing
to challenge the removal restriction. As we have explained
on many prior occasions, the separation of powers is de-
signed to preserve the liberty of all the people. See, e.g.,
Bowsher v. Synar, 478 U. S. 714, 730 (1986); Youngstown
Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 635 (1952) (Jack-
son, J., concurring) (noting that the Constitution “diffuses
power the better to secure liberty”). So whenever a separa-
tion-of-powers violation occurs, any aggrieved party with
standing may file a constitutional challenge. See, e.g., Seila
Law, supra, at ___ (slip op., at 10); Bond v. United States,
564 U. S. 211, 223 (2011); INS v. Chadha, 462 U. S. 919,
935–936 (1983). Nearly half our hallmark removal cases
have been brought by aggrieved private parties. See Seila
Cite as: 594 U. S. ____ (2021) 21
Opinion of the Court
Law, 591 U. S., at ___–___ (slip op., at 6–7) (law firm to
which the agency issued a civil investigative demand); Free
Enterprise Fund, supra, at 487 (accounting firm placed un-
der agency investigation); Morrison v. Olson, 487 U. S. 654,
668 (1988) (federal officials subject to subpoenas issued at
the request of an independent counsel); Bowsher, supra, at
719 (union representing employee-members whose benefit
increases were suspended due to an action of the Comptrol-
ler General).
Here, the right asserted is not one that is distinctive to
shareholders of Fannie Mae and Freddie Mac; it is a right
shared by everyone in this country. Because the succession
clause transfers the rights of “stockholder[s] . . . with re-
spect to the regulated entity,” it does not transfer to the
FHFA the constitutional right at issue.16
4
The federal parties and appointed amicus next contend
that the shareholders’ constitutional challenge was dead on
arrival because the third amendment was adopted when
the FHFA was led by an Acting Director17 who was remov-
able by the President at will. This argument would have
merit if (a) the Acting Director was indeed removable at will
(a matter we address below, see infra, at 22–26) and (b) all
the harm allegedly incurred by the shareholders had been
completed at the time of the third amendment’s adoption.
Under those circumstances, any constitutional defect in the
provision restricting the removal of a confirmed Director
would not have harmed the shareholders, and they would
not be entitled to any relief. But the harm allegedly caused
by the third amendment did not come to an end during the
——————
16 The federal parties also argue that the Recovery Act’s succession
clause bars the shareholders’ statutory claim. Because we have con-
cluded that the statutory claim is already barred by the anti-injunction
clause, we do not address this argument.
17 See Rop v. FHFA, 485 F. Supp. 3d 900, 915 (WD Mich. 2020).
22 COLLINS v. YELLEN
Opinion of the Court
tenure of the Acting Director who was in office when the
amendment was adopted. That harm is alleged to have con-
tinued after the Acting Director was replaced by a succes-
sion of confirmed Directors, and it appears that any one of
those officers could have renegotiated the companies’ divi-
dend formula with Treasury. From what we can tell from
the record, the FHFA and Treasury consistently reevalu-
ated the stock purchasing agreements and adopted amend-
ments as they thought necessary. Nothing in the third
amendment suggested that it was permanent or that the
FHFA lacked the ability to bring Treasury back to the bar-
gaining table. After all, the agencies adopted a fourth
amendment just this year. The federal parties and amicus
do not dispute this. Accordingly, continuing to implement
the third amendment was a decision that each confirmed
Director has made since 2012, and because confirmed Di-
rectors chose to continue implementing the third amend-
ment while insulated from plenary Presidential control, the
survival of the shareholders’ constitutional claim does not
depend on the answer to the question whether the Recovery
Act restricted the removal of an Acting Director.
On the other hand, the answer to that question could
have a bearing on the scope of relief that may be awarded
to the shareholders. If the statute unconstitutionally re-
stricts the authority of the President to remove an Acting
Director, the shareholders could seek relief rectifying injury
inflicted by actions taken while an Acting Director headed
the Agency. But if the statute does not restrict the removal
of an Acting Director, any harm resulting from actions
taken under an Acting Director would not be attributable
to a constitutional violation. Only harm caused by a con-
firmed Director’s implementation of the third amendment
could then provide a basis for relief. We therefore consider
what the Recovery Act says about the removal of an Acting
Director.
The Recovery Act’s removal restriction provides that
Cite as: 594 U. S. ____ (2021) 23
Opinion of the Court
“[t]he Director shall be appointed for a term of 5 years, un-
less removed before the end of such term for cause by the
President.” 12 U. S. C. §4512(b)(2). That provision refers
only to “the Director,” and it is surrounded by other provi-
sions that apply only to the Director. See §4512(a) (estab-
lishing the position of the Director); §4512(b)(1) (setting out
the procedure for appointing the Director); §4512(b)(3) (dis-
cussing the manner for selecting a new Director to fill a va-
cancy).
The Act’s mention of an “acting Director” does not appear
until four subsections later, and that subsection does not
include any removal restriction. See §4512(f ). Nor does it
cross-reference the earlier restriction on the removal of a
confirmed Director. Ibid. Instead, it merely states that
“[i]n the event of the death, resignation, sickness, or ab-
sence of the Director, the President shall designate” one of
three Deputy Directors to serve as an Acting Director until
the Senate-confirmed Director returns or his successor is
appointed. Ibid.
That omission is telling. When a statute does not limit
the President’s power to remove an agency head, we gener-
ally presume that the officer serves at the President’s pleas-
ure. See Shurtleff v. United States, 189 U. S. 311, 316
(1903). Moreover, “when Congress includes particular lan-
guage in one section of a statute but omits it in another sec-
tion of the same Act, it is generally presumed that Congress
acts intentionally and purposely in the disparate inclusion
or exclusion.” Barnhart v. Sigmon Coal Co., 534 U. S. 438,
452 (2002) (internal quotation marks omitted). In the Re-
covery Act, Congress expressly restricted the President’s
power to remove a confirmed Director but said nothing of
the kind with respect to an Acting Director. And Congress
might well have wanted to provide greater protection for a
Director who had been confirmed by the Senate than for an
Acting Director in whose appointment Congress had played
no role. In any event, the disparate treatment weighs
24 COLLINS v. YELLEN
Opinion of the Court
against the shareholders’ interpretation.
In support of that interpretation, the shareholders first
contend that the Recovery Act should be read to restrict the
removal of an Acting Director because the Act refers to the
FHFA as an “independent agency of the Federal Govern-
ment.” 12 U. S. C. §4511(a) (emphasis added). The refer-
ence to the FHFA’s independence, they claim, means that
any person heading the Agency was intended to enjoy a de-
gree of independence from Presidential control.
That interpretation reads far too much into the term “in-
dependent.” The term does not necessarily mean that the
Agency is “independent” of the President. It may mean in-
stead that the Agency is not part of and is therefore inde-
pendent of any other unit of the Federal Government. And
describing an agency as independent would be an odd way
to signify that its head is removable only for cause because
even an agency head who is shielded in that way would
hardly be fully “independent” of Presidential control.
A review of other enabling statutes that describe agencies
as “independent” undermines the shareholders’ interpreta-
tion of the term. Congress has described many agencies as
“independent” without imposing any restriction on the
President’s power to remove the agency’s leadership. This
is true, for example, of the Peace Corps, 22 U. S. C. §§2501–
1, 2503, the Defense Nuclear Facilities Safety Board, 42
U. S. C. §2286, the Commodity Futures Trading Commis-
sion, 7 U. S. C. §2(a)(2), the Farm Credit Administration,
12 U. S. C. §§2241–2242, the National Credit Union Admin-
istration, 12 U. S. C. §1752a, and the Railroad Retirement
Board, 45 U. S. C. §231f(a).
In other statutes, Congress has restricted the President’s
removal power without referring to the agency as “inde-
pendent.” This is the case for the Commission on Civil
Rights, 42 U. S. C. §§1975(a), (e), the Federal Trade Com-
mission, 15 U. S. C. §41, and the National Labor Relations
Cite as: 594 U. S. ____ (2021) 25
Opinion of the Court
Board, 29 U. S. C. §153. And in yet another group of stat-
utes, Congress has referred to an agency as “independent”
but has not expressly provided that the removal of the
agency head is subject to any restrictions. See 44 U. S. C.
§§2102, 2103 (National Archives and Records Administra-
tion); 42 U. S. C. §§1861, 1864 (National Science Founda-
tion). That combination of provisions shows that the term
“independent” does not necessarily connote independence
from Presidential control, and we refuse to read that conno-
tation into the Recovery Act.
Taking a different tack, the shareholders claim that their
interpretation is supported by the absence of any reference
to removal in the Recovery Act’s provision on Acting Direc-
tors. Again, that provision states that if the Director is ab-
sent, “the President shall designate [one of the FHFA’s
three Deputy Directors] to serve as acting Director until the
return of the Director, or the appointment of a successor.”
12 U. S. C. §4512(f ). According to the shareholders, this
text makes clear that an Acting Director differs from a con-
firmed Director in three respects (manner of appointment,
qualifications, and length of tenure). They assume that
these are the only respects in which confirmed and Acting
Directors differ, and they therefore conclude that the per-
missible grounds for removing an Acting Director are the
same as those for a confirmed Director.
This argument draws an unwarranted inference from the
Recovery Act’s silence on this matter. As noted, we gener-
ally presume that the President holds the power to remove
at will executive officers and that a statute must contain
“plain language to take [that power] away.” Shurtleff, su-
pra, at 316. The shareholders argue that this is not a hard
and fast rule, but we certainly see no grounds for an excep-
tion in this case.18
——————
18 In Wiener v. United States, 357 U. S. 349 (1958), the Court read a
removal restriction into the War Claims Act of 1948. But it did so on the
26 COLLINS v. YELLEN
Opinion of the Court
For all these reasons, we hold that the Recovery Act’s re-
moval restriction does not extend to an Acting Director, and
we now proceed to the merits of the shareholders’ constitu-
tional argument.
B
The Recovery Act’s for-cause restriction on the Presi-
dent’s removal authority violates the separation of powers.
Indeed, our decision last Term in Seila Law is all but dis-
positive. There, we held that Congress could not limit the
President’s power to remove the Director of the Consumer
Financial Protection Bureau (CFPB) to instances of “ineffi-
ciency, neglect, or malfeasance.” 591 U. S., at ___ (slip op.,
at 11). We did “not revisit our prior decisions allowing cer-
tain limitations on the President’s removal power,” but we
found “compelling reasons not to extend those precedents to
the novel context of an independent agency led by a single
Director.” Id., at ___ (slip op., at 2). “Such an agency,” we
observed, “lacks a foundation in historical practice and
clashes with constitutional structure by concentrating
power in a unilateral actor insulated from Presidential con-
trol.” Id., at ___–___ (slip op., at 2–3).
A straightforward application of our reasoning in Seila
Law dictates the result here. The FHFA (like the CFPB) is
an agency led by a single Director, and the Recovery Act
(like the Dodd-Frank Act) restricts the President’s removal
power. Fulfilling his obligation to defend the constitution-
ality of the Recovery Act’s removal restriction, amicus at-
tempts to distinguish the FHFA from the CFPB. We do not
find any of these distinctions sufficient to justify a different
result.
——————
rationale that the War Claims Commission was an adjudicatory body,
and as such, it had a unique need for “absolute freedom from Executive
interference.” Id., at 353, 355–356. The FHFA is not an adjudicatory
body, so Shurtleff, not Weiner, is the more applicable precedent.
Cite as: 594 U. S. ____ (2021) 27
Opinion of the Court
1
Amicus first argues that Congress should have greater
leeway to restrict the President’s power to remove the
FHFA Director because the FHFA’s authority is more lim-
ited than that of the CFPB. Amicus points out that the
CFPB administers 19 statutes while the FHFA administers
only 1; the CFPB regulates millions of individuals and busi-
nesses whereas the FHFA regulates a small number of Gov-
ernment-sponsored enterprises; the CFPB has broad rule-
making and enforcement authority and the FHFA has
little; and the CFPB receives a large budget from the Fed-
eral Reserve while the FHFA collects roughly half the
amount from regulated entities.
We have noted differences between these two agencies.
See Seila Law, 591 U. S., at ___ (slip op., at 20) (noting that
the FHFA “regulates primarily Government-sponsored en-
terprises, not purely private actors”). But the nature and
breadth of an agency’s authority is not dispositive in deter-
mining whether Congress may limit the President’s power
to remove its head. The President’s removal power serves
vital purposes even when the officer subject to removal is
not the head of one of the largest and most powerful agen-
cies. The removal power helps the President maintain a
degree of control over the subordinates he needs to carry
out his duties as the head of the Executive Branch, and it
works to ensure that these subordinates serve the people
effectively and in accordance with the policies that the peo-
ple presumably elected the President to promote. See, e.g.,
id., at ___–___ (slip op., at 11–12); Free Enterprise Fund,
561 U. S., at 501–502; Myers v. United States, 272 U. S. 52,
131 (1926). In addition, because the President, unlike
agency officials, is elected, this control is essential to subject
Executive Branch actions to a degree of electoral accounta-
bility. See Free Enterprise Fund, 561 U. S., at 497–498. At-
will removal ensures that “the lowest officers, the middle
grade, and the highest, will depend, as they ought, on the
28 COLLINS v. YELLEN
Opinion of the Court
President, and the President on the community.” Id., at 498(quoting 1 Annals of Cong. 499 (1789) (J. Madison)). These
purposes are implicated whenever an agency does im-
portant work, and nothing about the size or role of the
FHFA convinces us that its Director should be treated dif-
ferently from the Director of the CFPB. The test that ami-
cus proposes would also lead to severe practical problems.
Amicus does not propose any clear standard to distinguish
agencies whose leaders must be removable at will from
those whose leaders may be protected from at-will removal.
This case is illustrative. As amicus points out, the CFPB
might be thought to wield more power than the FHFA in
some respects. But the FHFA might in other respects be
considered more powerful than the CFPB.
For example, the CFPB’s rulemaking authority is more
constricted. Under the Dodd-Frank Act, the CFPB’s final
rules can be set aside by a super majority of the Financial
Stability and Oversight Council whenever it concludes that
the rule would “ ‘put the safety and soundness’ ” of the Na-
tion’s banking or financial systems at risk. See Seila Law,
supra, at ___, n. 9 (slip op., at 25, n. 9) (quoting 12 U. S. C.
§§5513(a), (c)(3)). No board or commission can set aside the
FHFA’s rules.
In addition, while the CFPB has direct regulatory and en-
forcement authority over purely private individuals and
businesses, the FHFA has regulatory and enforcement au-
thority over two companies that dominate the secondary
mortgage market and have the power to reshape the hous-
ing sector. See App. 116. FHFA actions with respect to
those companies could have an immediate impact on mil-
lions of private individuals and the economy at large. See
Seila Law, supra, at ___ (slip op., at 31) (KAGAN, J., concur-
ring in judgment with respect to severability and dissenting
in part) (noting that “the FHFA plays a crucial role in over-
seeing the mortgage market, on which millions of Ameri-
cans annually rely”).
Cite as: 594 U. S. ____ (2021) 29
Opinion of the Court
Courts are not well-suited to weigh the relative im-
portance of the regulatory and enforcement authority of dis-
parate agencies, and we do not think that the constitution-
ality of removal restrictions hinges on such an inquiry.19
2
Amicus next contends that Congress may restrict the re-
moval of the FHFA Director because when the Agency steps
into the shoes of a regulated entity as its conservator or re-
ceiver, it takes on the status of a private party and thus
does not wield executive power. But the Agency does not
always act in such a capacity, and even when it acts as con-
servator or receiver, its authority stems from a special stat-
ute, not the laws that generally govern conservators and re-
ceivers. In deciding what it must do, what it cannot do, and
the standards that govern its work, the FHFA must inter-
pret the Recovery Act, and “[i]nterpreting a law enacted by
Congress to implement the legislative mandate is the very
essence of ‘execution’ of the law.” Bowsher, 478 U. S., at
733; see also id., at 765 (White, J., dissenting) (“[T]he pow-
ers exercised by the Comptroller under the Act may be char-
acterized as ‘executive’ in that they involve the interpreta-
tion and carrying out of the Act’s mandate”).
——————
19 Amicus argues that there is historical support for the removal re-
striction at issue here because the Comptroller of Currency and the mem-
bers of the Sinking Fund Commission were subject to similar protection,
but those agencies are materially different because neither of them op-
erated beyond the President’s control, and one of them was led by a
multi-member Commission. As we explained in Seila Law, with the ex-
ception of a 1-year aberration during the Civil War, the Comptroller was
removable at will by the President, who needed only to communicate the
reasons for his decision to Congress. 591 U. S., at ___, n. 5 (slip op., at
19, n. 5). And the Sinking Fund Commission, which Congress created to
purchase U. S. securities following the Revolutionary War, was run by a
5-member Commission, and three of those Commissioners were part of
the President’s Cabinet and therefore removable at will. See An Act
Making Provision for the Reduction of the Public Debt, ch. 47, 1 Stat. 186(1790).
30 COLLINS v. YELLEN
Opinion of the Court
Moreover, as we have already mentioned, see supra, at
5–6, the FHFA’s powers under the Recovery Act differ crit-
ically from those of most conservators and receivers. It can
subordinate the best interests of the company to its own
best interests and those of the public. See 12 U. S. C.
§4617(b)(2)(J)(ii). Its business decisions are protected from
judicial review. §4617(f ). It is empowered to issue a “reg-
ulation or order” requiring stockholders, directors, and of-
ficers to exercise certain functions. §4617(b)(2)(C). It is au-
thorized to issue subpoenas. §4617(b)(2)(I). And of course,
it has the power to put the company into conservatorship
and simultaneously appoint itself as conservator.
§4617(a)(1). For these reasons, the FHFA clearly exercises
executive power.20
3
Amicus asserts that the FHFA’s structure does not vio-
late the separation of powers because the entities it regu-
lates are Government-sponsored enterprises that have fed-
eral charters, serve public objectives, and receive “ ‘special
privileges’ ” like tax exemptions and certain borrowing
rights. Brief for Court-Appointed Amicus Curiae 27–28. In
amicus’s view, the individual-liberty concerns that the re-
moval power exists to preserve “ring hollow where the only
entities an agency regulates are themselves not purely pri-
vate actors.” Id., at 29 (internal quotation marks omitted).
This argument fails because the President’s removal
power serves important purposes regardless of whether the
agency in question affects ordinary Americans by directly
regulating them or by taking actions that have a profound
——————
20 Amicus claims that O’Melveny & Myers v. FDIC, 512 U. S. 79 (1994),
supports his argument, but that decision is far afield. It held that state
law, not federal common law, governed an attribute of the FDIC’s status
as receiver for an insolvent savings bank. Id., at 81–82. The nature of
the FDIC’s authority in that capacity sheds no light on the nature of the
FHFA’s distinctive authority as conservator under the Recovery Act.
Cite as: 594 U. S. ____ (2021) 31
Opinion of the Court
but indirect effect on their lives. And there can be no ques-
tion that the FHFA’s control over Fannie Mae and Freddie
Mac can deeply impact the lives of millions of Americans by
affecting their ability to buy and keep their homes.
4
Finally, amicus contends that there is no constitutional
problem in this case because the Recovery Act offers only
“modest [tenure] protection.” Id., at 37. That is so, amicus
claims, because the for-cause standard would be satisfied
whenever a Director “disobey[ed] a lawful [Presidential] or-
der,” including one about the Agency’s policy discretion. Id.,
at 41.
We acknowledge that the Recovery Act’s “for cause” re-
striction appears to give the President more removal au-
thority than other removal provisions reviewed by this
Court. See, e.g., Seila Law, 591 U. S., at ___ (slip op., at 5)
(“for ‘inefficiency, neglect of duty, or malfeasance in office’ ”);
Morrison, 487 U. S., at 663 (“ ‘for good cause, physical disa-
bility, mental incapacity, or any other condition that sub-
stantially impairs the performance of [his or her] duties’ ”);
Bowsher, supra, at 728 (“by joint resolution of Congress”
due to “ ‘permanent disability,’ ” “ ‘inefficiency,’ ” “ ‘neglect of
duty,’ ” “ ‘malfeasance,’ ” “ ‘a felony[,] or conduct involving
moral turpitude’ ”); Humphrey’s Executor v. United States,
295 U. S. 602, 619 (1935) (“ ‘ “for inefficiency, neglect of duty,
or malfeasance in office” ’ ”); Myers, 272 U. S., at 107 (“ ‘by
and with the advice and consent of the Senate’ ”). And it is
certainly true that disobeying an order is generally re-
garded as “cause” for removal. See NLRB v. Electrical
Workers, 346 U. S. 464, 475 (1953) (“The legal principle that
insubordination, disobedience or disloyalty is adequate
cause for discharge is plain enough”).
But as we explained last Term, the Constitution prohibits
even “modest restrictions” on the President’s power to re-
move the head of an agency with a single top officer. Seila
32 COLLINS v. YELLEN
Opinion of the Court
Law, supra, at ___ (slip op., at 26) (internal quotation marks
omitted). The President must be able to remove not just
officers who disobey his commands but also those he finds
“negligent and inefficient,” Myers, 272 U. S., at 135, those
who exercise their discretion in a way that is not “intelli-
gen[t ] or wis[e ],” ibid., those who have “different views of
policy,” id., at 131, those who come “from a competing polit-
ical party who is dead set against [the President’s] agenda,”
Seila Law, supra, at ___ (slip op., at 24) (emphasis deleted),
and those in whom he has simply lost confidence, Myers,
supra, at 124. Amicus recognizes that “ ‘for cause’ . . . does
not mean the same thing as ‘at will,’ ” Brief for Court-Ap-
pointed Amicus Curiae 44–45, and therefore the removal
restriction in the Recovery Act violates the separation of
powers.21
C
Having found that the removal restriction violates the
Constitution, we turn to the shareholders’ request for relief.
And because the shareholders no longer have a live claim
for prospective relief, see supra, at 19, the only remaining
remedial question concerns retrospective relief.
On this issue, the shareholders’ lead argument is that the
third amendment must be completely undone. They seek
an order setting aside the amendment and requiring the
“return to Fannie and Freddie [of] all dividend payments
——————
21 Amicus warns that if the Court holds that the Recovery Act’s removal
restriction violates the Constitution, the decision will “call into question
many other aspects of the Federal Government.” Brief for Court-Ap-
pointed Amicus Curiae 47. Amicus points to the Social Security Admin-
istration, the Office of Special Counsel, the Comptroller, “multi-member
agencies for which the chair is nominated by the President and confirmed
by the Senate to a fixed term,” and the Civil Service. Id., at 48 (emphasis
deleted). None of these agencies is before us, and we do not comment on
the constitutionality of any removal restriction that applies to their of-
ficers.
Cite as: 594 U. S. ____ (2021) 33
Opinion of the Court
made pursuant to [it].”22 App. 117–118. In support of this
request, they contend that the third amendment was
adopted and implemented by officers who lacked constitu-
tional authority and that their actions were therefore void
ab initio.
We have already explained that the Acting Director who
adopted the third amendment was removable at will. See
supra, at 22–26. That conclusion defeats the shareholders’
argument for setting aside the third amendment in its en-
tirety. We therefore consider the shareholders’ contention
about remedy with respect to only the actions that con-
firmed Directors have taken to implement the third amend-
ment during their tenures. But even as applied to that sub-
set of actions, the shareholders’ argument is neither logical
nor supported by precedent. All the officers who headed the
FHFA during the time in question were properly appointed.
Although the statute unconstitutionally limited the Presi-
dent’s authority to remove the confirmed Directors, there
was no constitutional defect in the statutorily prescribed
method of appointment to that office. As a result, there is
no reason to regard any of the actions taken by the FHFA
in relation to the third amendment as void.
The shareholders argue that our decisions in prior sepa-
ration-of-powers cases support their position, but most of
the cases they cite involved a Government actor’s exercise
of power that the actor did not lawfully possess. See Lucia
v. SEC, 585 U. S. ___, ___ (2018) (slip op., at 12) (adminis-
trative law judge appointed in violation of Appointments
Clause); Stern v. Marshall, 564 U. S. 462, 503 (2011) (bank-
ruptcy judge’s exercise of exclusive power of Article III
judge); Clinton v. City of New York, 524 U. S. 417, 425, and
——————
22 In the alternative, they request that the dividend payments be “re-
characteriz[ed] . . . as a pay down of the liquidation preference and a cor-
responding redemption of Treasury’s Government Stock.” App. 118.
34 COLLINS v. YELLEN
Opinion of the Court
n. 9, 438 (1998) (President’s cancellation of individual por-
tions of bills under the Line Item Veto Act); Chadha, 462
U. S., at 952–956 (one-house veto of Attorney General’s de-
termination to suspend an alien’s deportation); Youngs-
town, 343 U. S., at 585, 587–589 (Presidential seizure and
operation of steel mills). As we have explained, there is no
basis for concluding that any head of the FHFA lacked the
authority to carry out the functions of the office.23
The shareholders claim to find implicit support for their
argument in Seila Law and Bowsher, but they read far too
much into those decisions. In Seila Law,24 after holding
that the restriction on the removal of the CFPB Director
was unconstitutional and severing that provision from the
rest of the Dodd-Frank Act, we remanded the case so that
the lower courts could decide whether, as the Government
claimed, the Board’s issuance of an investigative demand
had been ratified by an Acting Director who was removable
at will by the President. See 591 U. S., at ___ (slip op., at
36). The shareholders argue that this disposition implicitly
meant that the Director’s action would be void unless law-
fully ratified, but we said no such thing. The remand did
not resolve any issue concerning ratification, including
whether ratification was necessary. And in Bowsher, after
——————
23 Settled precedent also confirms that the unlawfulness of the removal
provision does not strip the Director of the power to undertake the other
responsibilities of his office, including implementing the third amend-
ment. See, e.g., Seila Law, 591 U. S., at ___–___ (slip op., at 30–36).
24 What we said about standing in Seila Law should not be misunder-
stood as a holding on a party’s entitlement to relief based on an uncon-
stitutional removal restriction. We held that a plaintiff that challenges
a statutory restriction on the President’s power to remove an executive
officer can establish standing by showing that it was harmed by an action
that was taken by such an officer and that the plaintiff alleges was void.
See 591 U. S., at ___–___ (slip op., at 9–10). But that holding on standing
does not mean that actions taken by such an officer are void ab initio and
must be undone. Compare post, at 2 (GORSUCH, J., concurring in part).
Cite as: 594 U. S. ____ (2021) 35
Opinion of the Court
holding that the Gramm-Rudman-Hollings Act unconstitu-
tionally authorized the Comptroller General to exercise ex-
ecutive power, the Court simply turned to the remedy spe-
cifically prescribed by Congress. See 478 U. S., at 735.25 We
therefore see no reason to hold that the third amendment
must be completely undone.
That does not necessarily mean, however, that the share-
holders have no entitlement to retrospective relief. Alt-
hough an unconstitutional provision is never really part of
the body of governing law (because the Constitution auto-
matically displaces any conflicting statutory provision from
the moment of the provision’s enactment), it is still possible
for an unconstitutional provision to inflict compensable
harm. And the possibility that the unconstitutional re-
striction on the President’s power to remove a Director of
the FHFA could have such an effect cannot be ruled out.
Suppose, for example, that the President had attempted to
remove a Director but was prevented from doing so by a
lower court decision holding that he did not have “cause” for
removal. Or suppose that the President had made a public
statement expressing displeasure with actions taken by a
Director and had asserted that he would remove the Direc-
tor if the statute did not stand in the way. In those situa-
tions, the statutory provision would clearly cause harm.
In the present case, the situation is less clear-cut, but the
shareholders nevertheless claim that the unconstitutional
removal provision inflicted harm. Were it not for that pro-
vision, they suggest, the President might have replaced one
of the confirmed Directors who supervised the implementa-
tion of the third amendment, or a confirmed Director might
——————
25 In addition, the constitutional defect in Bowsher was different from
the defect here. In Bowsher, the Comptroller General, whom Congress
had long viewed as “an officer of the Legislative Branch,” 478 U. S., at
731, was vested with executive power. Here, the FHFA Director is
clearly an executive officer. See post, at 5–6 (THOMAS, J., concurring).
36 COLLINS v. YELLEN
Opinion of the Court
have altered his behavior in a way that would have bene-
fited the shareholders.
The federal parties dispute the possibility that the uncon-
stitutional removal restriction caused any such harm. They
argue that, irrespective of the President’s power to remove
the FHFA Director, he “retained the power to supervise the
[Third] Amendment’s adoption . . . because FHFA’s coun-
terparty to the Amendment was Treasury—an executive
department led by a Secretary subject to removal at will by
the President.” Reply Brief for Federal Parties 43. The par-
ties’ arguments should be resolved in the first instance by
the lower courts.26
* * *
The judgment of the Court of Appeals is affirmed in part,
reversed in part, and vacated in part, and the case is re-
manded for further proceedings consistent with this
opinion.
It is so ordered.
——————
26 The lower courts may also consider all issues related to the federal
parties’ argument that the doctrine of laches precludes any relief. The
federal parties argue that Treasury was prejudiced by the shareholders’
delay in filing suit because, for some time after the third amendment was
adopted, there was a chance that it would benefit the shareholders. Ac-
cording to the federal parties, the shareholders waited to file suit until it
became apparent that the third amendment would not have that effect.
The shareholders respond that laches is inapplicable because they filed
their complaint within the time allowed by the statute of limitations, and
they argue that their delay did not cause prejudice because it was “math-
ematically impossible” for Treasury to make less money under the Third
Amendment than under the prior regime. Reply Brief for Collins et al.
4–5 (emphasis deleted). We decline to decide this fact-bound question in
the first instance.
Cite as: 594 U. S. ____ (2021) 1
THOMAS, J., concurring
SUPREME COURT OF THE UNITED STATES
_________________
Nos. 19–422 and 19–563
_________________
PATRICK J. COLLINS, ET AL., PETITIONERS
19–422 v.
JANET L. YELLEN, SECRETARY
OF THE TREASURY, ET AL.
JANET L. YELLEN, SECRETARY OF THE TREASURY,
ET AL., PETITIONERS
19–563 v.
PATRICK J. COLLINS, ET AL.
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT
[June 23, 2021]
JUSTICE THOMAS, concurring.
I join the Court’s opinion in full. I agree that the Direc-
tors were properly appointed and could lawfully exercise ex-
ecutive power. And I agree that, to the extent a Govern-
ment action violates the Constitution, the remedy should fit
the injury. But I write separately because I worry that the
Court and the parties have glossed over a fundamental
problem with removal-restriction cases such as these: The
Government does not necessarily act unlawfully even if a
removal restriction is unlawful in the abstract.
I
As discussed in more detail by the Court, Congress cre-
ated the Federal Housing Finance Agency (FHFA) in 2008.
Housing and Economic Recovery Act of 2008, 12 U. S. C.
§4501 et seq. The FHFA is “an independent agency.” 12
U. S. C. §4511(a). Among other things, it supervises and
2 COLLINS v. YELLEN
THOMAS, J., concurring
regulates Fannie Mae and Freddie Mac, two companies cre-
ated by Congress to provide liquidity and stability to the
mortgage market. See §4511(b). In the midst of the 2008
financial crisis, the FHFA’s Director exercised his statutory
authority under §4617(a)(1) to appoint the Agency as con-
servator of Fannie Mae and Freddie Mac. As conservator,
the Agency in effect had full control over the companies.
The FHFA used this control to have the companies enter
into several agreements with the Treasury Department to
secure financing to keep both companies afloat. Relevant
here, the FHFA and Treasury signed two agreements,
known as the Third Amendments, requiring the companies
to pay a quarterly dividend to Treasury of nearly all their
net worth minus a predetermined capital reserve.
Shareholders of the companies sued the FHFA, the Direc-
tor, Treasury, and the Secretary of the Treasury. They ad-
vanced four theories about why the adoption and enforce-
ment of the Third Amendments violated the law: (1) The
FHFA’s conduct exceeded its statutory authority; (2) Treas-
ury’s conduct exceeded its statutory authority; (3) Treas-
ury’s conduct was arbitrary and capricious; and (4) the
FHFA’s structure violated the “Separation of Powers” be-
cause the President could fire the FHFA Director only “for
cause.” App. 116–117; §4512(b)(2).
The District Court rejected their claims. The Fifth Cir-
cuit affirmed the dismissal of claims two and three, and the
shareholders did not seek review of that decision. The Fifth
Circuit reinstated the statutory claim, but today we cor-
rectly reverse that decision. Ante, at 12–17. The Fifth Cir-
cuit also held that the shareholders are entitled to judg-
ment on the separation-of-powers claim. Collins v.
Mnuchin, 938 F. 3d 553, 587 (2019)
II
For the shareholders to prevail, identifying some conflict
between the Constitution and a statute is not enough. They
Cite as: 594 U. S. ____ (2021) 3
THOMAS, J., concurring
must show that the challenged Government action at is-
sue—the adoption and implementation of the Third Amend-
ment—was, in fact, unlawful. See California v. Texas, 593
U. S. ___, ___–___ (2021) (slip op., at 4–9). Modern standing
doctrine reflects this principle: To have standing, a plaintiff
must allege an injury traceable to an “allegedly unlawful”
action (or threatened action) and seek a remedy to redress
that action. Allen v. Wright, 468 U. S. 737, 751 (1984); ac-
cord, Virginia v. American Booksellers Assn., Inc., 484 U. S.
383, 392 (1988); contra, 938 F. 3d, at 586 (tracing injury to
the removal restriction). Here, before a court can provide
relief, it must conclude that either the adoption or imple-
mentation of the Third Amendment was unlawful.1
The parties simply assume that the lawfulness of agency
——————
1 Another limit on the judicial power is relevant: A party seeking relief
must have a legal right to redress. See Cohens v. Virginia, 6 Wheat. 264,
405 (1821) (explaining that Article III “does not extend the judicial power
to every violation of the constitution which may possibly take place”).
The judicial power extends only “to ‘a case in law or equity,’ in which a
right, under such law, is asserted.” Ibid. We have indicated that indi-
viduals may have an implied private right of action under the Constitu-
tion to seek equitable relief to “ ‘preven[t] entities from acting unconsti-
tutionally.’ ” Free Enterprise Fund v. Public Company Accounting
Oversight Bd., 561 U. S. 477, 491, n. 2 (2010). This includes “Appoint-
ments Clause or separation-of-powers claim[s].” Ibid. I assume the
shareholders have brought such a cause of action here and have a legal
right to obtain equitable relief if they can show they suffered an injury
traceable to a Government action that violates the Constitution. The
shareholders did not raise the Administrative Procedure Act (APA) in
count four of their complaint, but now contend their “constitutional claim
is cognizable under the APA,” which permits a “ ‘reviewing court [to] hold
unlawful and set aside agency action found to be contrary to constitu-
tional right, power, privilege, or immunity.’ ” Brief for Collins et al. 74
(quoting 5 U. S. C. §706; ellipses omitted; emphasis in original). Even
assuming they raised their constitutional claim under the APA, it would
not change the analysis; the shareholders would need to show they suf-
fered an injury traceable to a Government action that violates the Con-
stitution.
4 COLLINS v. YELLEN
THOMAS, J., concurring
action turns on the lawfulness of the removal restriction.
Our recent precedents have not clearly questioned this
premise, and on this premise, the Court correctly resolves
the remaining legal issues. But in the future, parties and
courts should ensure not only that a provision is unlawful
but also that unlawful action was taken.
This suit provides a good example. The shareholders
largely neglect the issue of lawfulness to focus on remedy,
but their briefing appears premised on several theories of
unlawfulness.2 First, that the removal restriction renders
all Agency actions void because the Directors serve in vio-
lation of the Constitution’s structural provisions, similar to
Appointments Clause cases, see Lucia v. SEC, 585 U. S.
___, ___ (2018) (slip op., at 12) (holding that an Administra-
tive Law Judge was unlawfully appointed), and other sepa-
ration-of-powers cases, e.g., Bowsher v. Synar, 478 U. S.
714, 727–736 (1986) (holding that the Comptroller General
was not an executive officer and could not exercise execu-
tive power granted to him by statute). Second, that even if
the Director is in the Executive Branch and the removal re-
striction is just unenforceable, the mere existence of the law
somehow taints all of the Director’s actions. Third, that
“when FHFA’s single Director exercises Executive Power
without meaningful oversight from the President, he exer-
cises authority that was never properly his.” Brief for Col-
lins et al. 64. Fourth, that the statutory provision that gave
the Director the power to adopt and implement the Third
Amendments must fall if the statutory removal restriction
is unlawful. §4617(b)(2)(J)(ii).
As the Court’s reasoning makes clear, however, all these
theories appear to fail on the merits.
——————
2 Because the shareholders allege the Government acted unlawfully,
because their alleged injury can be traced to those allegedly unlawful
actions, and because this Court might be able to redress that injury, I
agree with the Court that they have standing. See Steel Co. v. Citizens
for Better Environment, 523 U. S. 83, 89 (1998).
Cite as: 594 U. S. ____ (2021) 5
THOMAS, J., concurring
A
I begin with whether the FHFA Director may lawfully ex-
ercise executive authority. The shareholders suggest that
the removal restriction inherently renders the Agency’s ac-
tions void. In support, they point to our Appointments
Clause cases and our other separation-of-powers cases. But
the cases on which they rely prove quite the opposite.
Consider our separation-of-powers cases, which set out a
two-part analysis to determine whether an official can law-
fully exercise a statutory power at all. First, we ask in what
branch (if any) an official is located. Second, we determine
whether the statutory power possessed by the official be-
longs to that branch. In Bowsher, the Court determined
that the Comptroller General of the United States was “an
officer of the Legislative Branch” based on other statutes
dating back to 1945 declaring him as such, the expressed
views of other Comptrollers General, the fact that only Con-
gress could remove the Comptroller General, and the struc-
ture of the office. 478 U. S., at 727–732. In light of this
legislative identity, the Court held the Comptroller General
could not lawfully exercise executive powers assigned to
him by statute. Id., at 732–735.3
Assuming the shareholders raise a Bowsher-type argu-
ment, I agree with the Court that the FHFA Director is an
——————
3 See also Stern v. Marshall, 564 U. S. 462, 503 (2011) (bankruptcy
judges, as Article I officers, cannot exercise exclusive Article III power);
Clinton v. City of New York, 524 U. S. 417, 438–441, 448–449 (1998) (the
President, an Article II officer, cannot exercise Article I line-item-veto
power); Morrison v. Olson, 487 U. S. 654, 677–679 (1988) (a law cannot
give a court powers that violated Article III); Glidden Co. v. Zdanok, 370
U. S. 530, 584 (1962) (plurality opinion) (concluding after exhaustive
analysis that two courts were Article III courts); id., at 585–588 (Clark,
J., concurring in result) (agreeing “in light of the congressional power
exercised and the jurisdiction enjoyed, together with the characteristics
of its judges”); American Ins. Co. v. 356 Bales of Cotton, 1 Pet. 511, 546
(1828) (a territorial court is an Article I court and admiralty jurisdiction
6 COLLINS v. YELLEN
THOMAS, J., concurring
executive official who can lawfully “carry out the functions
of the office.” Ante, at 33–35, and n. 25 (discussing Bow-
sher). The statutory scheme creates a common type of ex-
ecutive officer—an individual nominated by the President
and confirmed by the Senate, who heads an agency exercis-
ing executive powers and who reports to the President. The
only statutory powers assigned to the Director are execu-
tive. No party contends the office of the FHFA Director is
a nonexecutive office. No statute refers to him as a nonex-
ecutive officer. And the statutory scheme recognizes that
the President can remove the officer (but only “for cause”).
§4512(b)(2). In fact, the Court concludes that the removal
restriction is unconstitutional in part because the FHFA Di-
rector is an executive officer whom the President needs to
be able to control. See ante, at 26–32.
Our cases demonstrate that the existence of a removal
restriction, without more, usually does not take an other-
wise executive officer outside the Executive Branch. True,
statutory provisions governing who can remove an officer
(and when) can provide evidence of the branch to which that
officer belongs. E.g., Bowsher, 478 U. S., at 727–728, and
n. 5; American Ins. Co. v. 356 Bales of Cotton, 1 Pet. 511,
546 (1828). But they generally are not dispositive. In many
cases, it is obvious that the officer is executive, and it is the
removal restriction—not the officer’s exercise of executive
powers—that is the problem. E.g., Free Enterprise Fund v.
Public Company Accounting Oversight Bd., 561 U. S. 477,
492–508 (2010) (holding unconstitutional tenure provisions
protecting executive officer, but concluding “the existence of
the Board does not violate the separation of powers”); cf.
——————
can be exercised only by Article III courts, but Article IV removes this
limitation with respect to the Territories).
Cite as: 594 U. S. ____ (2021) 7
THOMAS, J., concurring
Myers v. United States, 272 U. S. 52, 108, 176 (1926).4
The Appointments Clause cases do not help the share-
holders either. These cases also ask whether an officer can
lawfully exercise the statutory power of his office at all in
light of the rule that an officer must be properly appointed
before he can legally act as an officer. Lucia, 585 U. S., at
___ (slip op., at 12); Ryder v. United States, 515 U. S 177,
182–183 (1995). Otherwise, the official’s authority to exer-
cise the powers of the office generally is legally deficient.
Id., at 179, 182–183. Here, “[a]ll the officers who headed
the FHFA during the time in question were properly ap-
pointed.” Ante, at 33. There is thus no barrier to them ex-
ercising power in the first instance.
B
The mere existence of an unconstitutional removal provi-
sion, too, generally does not automatically taint Govern-
ment action by an official unlawfully insulated. It is true
the removal restriction here is unlawful. But while the
shareholders are correct that the Constitution authorizes
the President to dismiss the FHFA Director for any reason,
no statute can take that Presidential power away. See Seila
Law LLC v. Consumer Financial Protection Bureau, 591
U. S. ___, ___ (2020) (THOMAS, J., concurring in part and
dissenting in part) (slip op., at 15) (“In the context of a con-
stitutional challenge, . . . if a party argues that a statute
and the Constitution conflict, then courts must resolve that
dispute and . . . follow the higher law of the Constitution”
——————
4 I agree with JUSTICE GORSUCH that a court must look at more than
the label to determine in what branch an officer sits. Post, at 3, n. 1
(opinion concurring in part). To answer this question, courts have his-
torically looked at various factors. See n.3, supra. Here, everything
about the Director’s position, except the removal restriction, indicates he
is an executive officer. See also ante, at 35, n. 25 (opinion of the Court).
As the Court correctly explains, “the removal restriction . . . violates the
separation of powers” because the Director is an executive officer. Ante,
at 32.
8 COLLINS v. YELLEN
THOMAS, J., concurring
(internal quotation marks omitted)); ante, at 35.
That the Constitution automatically trumps an incon-
sistent statute creates a paradox for the shareholders. Had
the removal restriction not conflicted with the Constitution,
the law would never have unconstitutionally insulated any
Director. And while the provision does conflict with the
Constitution, the Constitution has always displaced it and
the President has always had the power to fire the Director
for any reason. So regardless of whether the removal re-
striction was lawful or not, the President always had the
legal power to remove the Director in a manner consistent
with the Constitution.5 Brief for Harrison as Amicus Cu-
riae 15–16.
Moreover, no Director has ever purported to occupy the
office and exercise its powers despite a Presidential attempt
at removal. No court, for example, has enjoined an attempt
by the President to remove the Director.6 So every Director
——————
5 In Seila Law, the Court did not address whether an officer acts un-
lawfully if protected by an unlawful removal restriction. See ante, at 34,
and nn. 23–24. That is because the Government in effect conceded the
issue. Seila Law, 591 U. S., at ___ (plurality opinion) (slip op., at 30); id.,
at ___ (opinion of THOMAS, J.) (slip op., at 17). Perhaps we should have
addressed it then. Post, at 6–7, n. 2 (opinion of GORSUCH, J.).
I continue to adhere to the views that I expressed in Seila Law: A com-
bination of statutes can produce a separation-of-powers violation that
renders Government action unlawful. See 591 U. S., at ___ (opinion con-
curring in part and dissenting in part) (slip op., at 21). In remedying
such a separation-of-powers violation, courts cannot purport to rewrite
the statute to avoid the violation. Ibid.; post, at 6, n. 2 (opinion of
GORSUCH, J.) (“[W]e cannot divine ‘which of the provisions’ Congress
would have kept and which it would have scrapped . . . had it known its
actual choice was unconstitutional,” “absent statutory direction from
Congress”). However, I respectfully part ways with JUSTICE GORSUCH,
because, on the merits, I am uncertain whether the unlawful removal
restriction here combines with any other statutory provision in a way
that renders the Government action at issue unlawful.
6 A removal restriction may unconstitutionally insulate an officer such
that his actions are unlawful. If the President tries to remove an official
Cite as: 594 U. S. ____ (2021) 9
THOMAS, J., concurring
is a lawfully appointed executive officer whom the Presi-
dent may remove in a manner consistent with the Consti-
tution but did not attempt to do so.
C
Another possible theory the shareholders seem to rely on
is that a misunderstanding about the correct state of the
law makes an otherwise constitutional action unconstitu-
tional. Thus, if the President or Director misunderstood the
circumstances under which the President could have re-
moved the Director, then that creates a defect in authority.
But nothing in the Constitution, history, or our case law
supports this expansive view of unlawfulness. The Consti-
tution does not transform unfamiliarity with the Vesting
Clause into a legal violation when an executive officer acts
with authority.7
Perhaps the better understanding of this argument is the
Director might have acted differently if he knew that he
served at the pleasure of the President. That may be true,
but it is not enough for a party to show that an official acted
differently because he or another official incorrectly inter-
preted the Vesting Clause—the party must show that the
official acted unlawfully. If the President vetoed a bill on
the ground that he believed it to be unconstitutional, this
——————
but a court blocks this action, then that official is not lawfully occupying
his office and would likely be acting without authority. Cf. ante, at 35.
But that circumstance has not arisen here.
7 The APA might permit this type of lawsuit in allowing an individual
to challenge an agency action as “arbitrary, capricious, an abuse of dis-
cretion, or otherwise not in accordance with law.” 5 U. S. C. §706(2)(A).
There is a colorable argument that a Government official’s misunder-
standing about the scope of the President’s removal authority would ren-
der an agency action arbitrary or capricious in certain cases. However,
the shareholders did not bring this constitutional challenge as an arbi-
trary and capricious claim against the FHFA. And if they had, we would
need to consider the interaction between this statutory claim and the
Act’s anti-injunction provision. Cf. ante, at 12–13.
10 COLLINS v. YELLEN
THOMAS, J., concurring
Court could not undo that lawful act simply because an in-
jured plaintiff persuasively establishes that the President
was mistaken.
Sure enough, we have not held that a misunderstanding
about authority results in a constitutional defect where the
action was otherwise lawful. Absent such authority in a
“constitutional cas[e], our watchword [should be] caution.”
Hernández v. Mesa, 589 U. S. ___, ___ (2020) (slip op., at 6).
We should be reluctant to create a new restriction on a co-
equal branch and enforce it through a new private right of
action. Id., at ___–___ (slip op., at 6–7). Doing so places
great stress upon “the Constitution’s separation of legisla-
tive and judicial power.” Id., at ___ (slip op., at 5).
Seila Law and Free Enterprise do not help the sharehold-
ers on the lawfulness of the Government actions question.
Ante, at 18, 34–35. In Seila Law, the Government in effect
“conceded that [its] actions were unconstitutional” if the re-
moval restriction was unconstitutional. 591 U. S., at ___
(opinion of THOMAS, J.) (slip op., at 17). So the Court as-
sumed “that [petitioner] ‘sustain[ed] injury’ from an execu-
tive act that allegedly exceeds the official’s authority.” Id.,at ___ (slip op., at 10); ante, at 34–35. In Free Enterprise,
we considered a similar challenge to a removal restriction
without questioning the plaintiffs’ standing “where plain-
tiffs claimed injury from allegedly unlawful agency over-
sight.” Ante, at 18. And then we assumed that the agency
lacked the authority to act lawfully if the removal re-
striction there were invalid.
D
The shareholders’ briefing strongly implies one final ar-
gument: The statutory provision giving the FHFA the
power to act as conservator, 12 U. S. C. §4617(b)(2)(J)(ii),
cannot be severed from the removal restriction. Brief for
Collins et al. 77–79. Thus, the argument goes, if the re-
moval provision is unlawful, then §4617(b)(2)(j)(ii) is too
Cite as: 594 U. S. ____ (2021) 11
THOMAS, J., concurring
and the FHFA Directors acted without statutory authority.
Assuming that the unlawfulness of one provision can
cause another to be unlawful, this inquiry is just a question
of statutory interpretation. See Seila Law, 591 U. S., at ___
(opinion of THOMAS, J.) (slip op., at 20); Lea, Situational
Severability, 103 Va. L. Rev. 735, 764–776 (2017). The Re-
covery Act contains no inseverability clause. Contra, 4
U. S. C. §125 (inseverability clause). Nor does it contain
any fallback provision stating that §4617(b)(2)(j)(ii) should
be altered if the removal clause is found unlawful. Without
something in the statutory text or structure to show that
§4617(b)(2)(j)(ii)’s lawfulness rises or falls based on the re-
moval restriction, this argument is also unconvincing.
* * *
I do not understand the parties to have sought review of
these issues in this Court. So the Court correctly resolves
the legal issues presented. That being said, I seriously
doubt that the shareholders can demonstrate that any rel-
evant action by an FHFA Director violated the Constitu-
tion. And, absent an unlawful act, the shareholders are not
entitled to a remedy. The Fifth Circuit can certainly con-
sider this issue on remand.
Cite as: 594 U. S. ____ (2021) 1
Opinion of KAGAN, J.
SUPREME COURT OF THE UNITED STATES
_________________
Nos. 19–422 and 19–563
_________________
PATRICK J. COLLINS, ET AL., PETITIONERS
19–422 v.
JANET L. YELLEN, SECRETARY
OF THE TREASURY, ET AL.
JANET L. YELLEN, SECRETARY OF THE TREASURY,
ET AL., PETITIONERS
19–563 v.
PATRICK J. COLLINS, ET AL.
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT
[June 23, 2021]
JUSTICE KAGAN, with whom JUSTICE BREYER and
JUSTICE SOTOMAYOR join as to Part II, concurring in part
and concurring in the judgment in part.
Faced with a global financial crisis, Congress created the
Federal Housing Finance Agency (FHFA) and gave it broad
powers to rescue the Nation’s mortgage market. I join the
Court in deciding that the FHFA wielded its authority
within statutory limits. On the main constitutional ques-
tion, though, I concur only in the judgment. Stare decisis
compels the conclusion that the FHFA’s for-cause removal
provision violates the Constitution. But the majority’s
opinion rests on faulty theoretical premises and goes fur-
ther than it needs to. I also write to address the remedial
question. The majority’s analysis, which I join, well ex-
plains why backwards-looking relief is not always neces-
sary to redress a removal violation. I add only two
2 COLLINS v. YELLEN
Opinion of KAGAN, J.
thoughts. The broader is that the majority’s remedial hold-
ing mitigates the harm of the removal doctrine applied
here. The narrower is that, as I read the decision below,
the Court of Appeals has already done what is needed to
find that the plaintiffs are not entitled to their requested
relief.
I
I agree with the majority that Seila Law LLC v. Con-
sumer Financial Protection Bureau, 591 U. S. ___ (2020),
governs the constitutional question here. See ante, at 26.
In Seila Law, the Court held that an “agency led by a single
[d]irector and vested with significant executive power” com-
ports with the Constitution only if the President can fire the
director at will. 591 U. S., at ___ (slip op., at 18). I dis-
sented from that decision—vehemently. See id., at ___
(KAGAN, J., dissenting) (slip op., at 4) (“The text of the Con-
stitution, the history of the country, the precedents of this
Court, and the need for sound and adaptable governance—
all stand against the majority’s opinion”). But the “doctrine
of stare decisis requires us, absent special circumstances, to
treat like cases alike”—even when that means adhering to
a wrong decision. June Medical Services L. L. C. v. Russo,
591 U. S. ___, ___ (2020) (ROBERTS, C. J., concurring in
judgment) (slip op., at 2). So the issue now is not whether
Seila Law was correct. The question is whether that case
is distinguishable from this one. And it is not. As I ob-
served in Seila Law, the FHFA “plays a crucial role in over-
seeing the mortgage market, on which millions of Ameri-
cans annually rely.” 591 U. S., at ___ (slip op., at 31). It
thus wields “significant executive power,” much as the
agency in Seila Law did. And I agree with the majority that
there is no other legally relevant distinction between the
two. See ante, at 29–32.
For two reasons, however, I do not join the majority’s dis-
cussion of the constitutional issue. First is the majority’s
Cite as: 594 U. S. ____ (2021) 3
Opinion of KAGAN, J.
political theory. Throughout the relevant part of its opin-
ion, the majority offers a contestable—and, in my view,
deeply flawed—account of how our government should
work. At-will removal authority, the majority intones, “is
essential to subject Executive Branch actions to a degree of
electoral accountability”—and so courts should grant the
President that power in cases like this one. Ante, at 27. I
see the matter differently (as, I might add, did the Fram-
ers). Seila Law, 591 U. S., at ___–___ (KAGAN, J., dissent-
ing) (slip op., at 9–13). The right way to ensure that gov-
ernment operates with “electoral accountability” is to lodge
decisions about its structure with, well, “the branches ac-
countable to the people.” Id., at ___ (slip op., at 38); see id.,
at ___ (slip op., at 39) (the Constitution “instructs Congress,
not this Court, to decide on agency design”). I will subscribe
to decisions contrary to my view where precedent, fairly
read, controls (and there is no special justification for rever-
sal). But I will not join the majority’s mistaken musings
about how to create “a workable government.” Id., at ___
(slip op., at 38) (quoting Youngstown Sheet & Tube Co. v.
Sawyer, 343 U. S. 579, 635 (1952) (Jackson, J., concurring)).
My second objection is to the majority’s extension of Seila
Law’s holding. Again and again, Seila Law emphasized
that its rule was limited to single-director agencies
“wield[ing] significant executive power.” 591 U. S., at ___
(plurality opinion) (slip op., at 2); see id., at ___ (majority
opinion) (slip op., at 18); id., at ___ (plurality opinion) (slip
op., at 36). To take Seila Law at its word is to acknowledge
where it left off: If an agency did not exercise “significant
executive power,” the constitutionality of a removal re-
striction would remain an open question. Accord, post, at
11–12 (SOTOMAYOR, J., concurring in part and dissenting in
part). But today’s majority careens right past that bound-
ary line. Without even mentioning Seila Law’s “significant
executive power” framing, the majority announces that, ac-
tually, “the constitutionality of removal restrictions” does
4 COLLINS v. YELLEN
Opinion of KAGAN, J.
not “hinge[ ]” on “the nature and breadth of an agency’s au-
thority.” Ante, at 27, 29. Any “agency led by a single Direc-
tor,” no matter how much executive power it wields, now
becomes subject to the requirement of at-will removal.
Ante, at 26. And the majority’s broadening is gratuitous—
unnecessary to resolve the dispute here. As the opinion
later explains, the FHFA exercises plenty of executive au-
thority: Indeed, it might “be considered more powerful than
the CFPB.” Ante, at 28. So the majority could easily have
stayed within, rather than reached out beyond, the rule
Seila Law created.
In thus departing from Seila Law, the majority strays
from its own obligation to respect precedent. To ensure that
our decisions reflect the “evenhanded” and “consistent de-
velopment of legal principles,” not just shifts in the Court’s
personnel, stare decisis demands something of Justices pre-
viously on the losing side. Payne v. Tennessee, 501 U. S.
808, 827 (1991). They (meaning here, I) must fairly apply
decisions with which they disagree. But fidelity to prece-
dent also places demands on the winners. They must apply
the Court’s precedents—limits and all—wherever they can,
rather than widen them unnecessarily at the first oppor-
tunity. Because today’s majority does not conform to that
command, I concur in the judgment only.
II
I join in full the majority’s discussion of the proper rem-
edy for the constitutional violation it finds. I too believe
that our Appointments Clause precedents have little to say
about remedying a removal problem. See ante, at 33–34; cf.
Lucia v. SEC, 585 U. S. ___, ___ (2018) (slip op., at 12) (re-
quiring a new hearing before a properly appointed official).
As the majority explains, the officers heading the FHFA,
unlike those with invalid appointments, possessed the “au-
thority to carry out the functions of the office.” Ante, at 34.
I also agree that plaintiffs alleging a removal violation are
Cite as: 594 U. S. ____ (2021) 5
Opinion of KAGAN, J.
entitled to injunctive relief—a rewinding of agency action—
only when the President’s inability to fire an agency head
affected the complained-of decision. See ante, at 35–36.
Only then is relief needed to restore the plaintiffs to the po-
sition they “would have occupied in the absence” of the re-
moval problem. Milliken v. Bradley, 433 U. S. 267, 280
(1977); see D. Laycock & R. Hasen, Modern American Rem-
edies 275 (5th ed. 2019). Granting relief in any other case
would, contrary to usual remedial principles, put the plain-
tiffs “in a better position” than if no constitutional violation
had occurred. Mt. Healthy City Bd. of Ed. v. Doyle, 429
U. S. 274, 285 (1977).
The majority’s remedial holding limits the damage of the
Court’s removal jurisprudence. As the majority explains,
its holding ensures that actions the President supports—
which would have gone forward whatever his removal
power—will remain in place. See ante, at 35. In refusing
to rewind those presidentially favored decisions, the major-
ity prevents theories of formal presidential control from sty-
mying the President’s real-world ability to carry out his
agenda. Similarly, the majority’s approach should help pro-
tect agency decisions that would never have risen to the
President’s notice. Consider the hundreds of thousands of
decisions that the Social Security Administration (SSA)
makes each year. The SSA has a single head with for-cause
removal protection; so a betting person might wager that
the agency’s removal provision is next on the chopping
block. Cf. ante, at 32, n. 21. But given the majority’s reme-
dial analysis, I doubt the mass of SSA decisions—which
would not concern the President at all—would need to be
undone. That makes sense. “[P]residential control [does]
not show itself in all, or even all important, regulation.” Ka-
gan, Presidential Administration, 114 Harv. L. Rev. 2245,
2250 (2001). When an agency decision would not capture a
President’s attention, his removal authority could not make
a difference—and so no injunction should issue.
6 COLLINS v. YELLEN
Opinion of KAGAN, J.
My final point relates to the last sentence of the major-
ity’s remedial section. There, the Court holds that the de-
cisive question—whether the removal provision mattered—
“should be resolved in the first instance by the lower
courts.” Ante, at 36. That remand follows the Court’s usual
practice: We are, as we often say, not a “court of first view.”
Alabama v. Shelton, 535 U. S. 654, 673 (2002). But here
the lower court proceedings may be brief indeed. As I read
the opinion below, the Court of Appeals already considered
and decided the issue remanded today. The court noted
that all of the FHFA’s policies were jointly “created [by] the
FHFA and Treasury” and that the Secretary of the Treas-
ury is “subject to at will removal by the President.” Collins
v. Mnuchin, 938 F. 3d 553, 594 (CA5 2019). For that rea-
son, the court concluded, “we need not speculate about
whether appropriate presidential oversight would have
stopped” the FHFA’s actions. Ibid. “We know that the
President, acting through the Secretary of the Treasury,
could have stopped [them] but did not.” Ibid; see ibid., n. 6
(noting that the plaintiffs’ “allegations show that the Pres-
ident had oversight of the action”). That reasoning seems
sufficient to answer the question the Court kicks back, and
nothing prevents the Fifth Circuit from reiterating its anal-
ysis. So I join the Court’s opinion on the understanding that
this litigation could speedily come to a close.
Cite as: 594 U. S. ____ (2021) 1
GORSUCH, J., ,concurring
GORSUCH J., concurring
in part
SUPREME COURT OF THE UNITED STATES
_________________
Nos. 19–422 and 19–563
_________________
PATRICK J. COLLINS, ET AL., PETITIONERS
19–422 v.
JANET L. YELLEN, SECRETARY
OF THE TREASURY, ET AL.
JANET L. YELLEN, SECRETARY OF THE TREASURY,
ET AL., PETITIONERS
19–563 v.
PATRICK J. COLLINS, ET AL.
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT
[June 23, 2021]
JUSTICE GORSUCH, concurring in part.
I agree with the Court on the merits and am pleased to
join nearly all of its opinion. I part ways only when it comes
to the question of remedy addressed in Part III–C.
As the Court observes, the only question before us con-
cerns retrospective relief. Ante, at 32. By the time we turn
to that question, the plaintiffs have proven that the Direc-
tor was without constitutional authority when he took the
challenged actions implementing the Third Amendment.
In response to such a showing, a court would normally set
aside the Director’s ultra vires actions as “contrary to con-
stitutional right,” 5 U. S. C. §706(2)(B), subject perhaps to
consideration of traditional remedial principles such as
laches. See ante, at 36, n. 26; Abbott Laboratories v. Gard-
ner, 387 U. S. 136, 155 (1967). Because the Court of Ap-
peals did not follow this course, this Court would normally
vacate the judgment in this suit with instructions requiring
2 COLLINS v. YELLEN
GORSUCH, J., concurring in part
the Court of Appeals to conform its judgment to traditional
practice. Today, the Court acknowledges it has taken ex-
actly this course in cases involving unconstitutionally ap-
pointed executive officials. Ante, at 33–34.
Still, the Court submits, we should treat this suit differ-
ently because the Director was unconstitutionally insulated
from removal rather than unconstitutionally appointed.
Ante, at 33–34; see also ante, at 7 (THOMAS, J., concurring).
It is unclear to me why this distinction should make a dif-
ference. Either way, governmental action is taken by some-
one erroneously claiming the mantle of executive power—
and thus taken with no authority at all. The Court points
to not a single precedent in 230 years of history for the dis-
tinction it would have us draw. Nor could it. The course it
pursues today defies our precedents. In Bowsher v. Synar,
478 U. S. 714 (1986), this Court concluded that Congress
had vested the Comptroller General with “the very essence”
of executive power, id., at 732–733, but that he was (imper-
missibly) removable only by Congress, id., at 727–728. In
Seila Law LLC v. Consumer Financial Protection Bureau,
591 U. S. ___ (2020), we found Congress had assigned the
CFPB Director sweeping authority over the financial sec-
tor, id., at ___–___ (slip op., at 4–6), while insulating him
“from removal by an accountable President,” id., at ___ (slip
op., at 23). In both cases that meant the officers could “not
be entrusted with executive powers” from day one, Bowsher,
478 U. S., at 732, and the challenged actions were “void,”
Seila Law, 591 U. S., at ___ (slip op., at 10).1
——————
1 The Court’s attempt to sidestep these cases leads nowhere. Seila
Law, we are told, discussed standing—not remedies—when it said plain-
tiffs “ ‘sustain[ ] injury’ ” from unlawfully insulated executive action and
may “challeng[e] [such] action as void.” See ante, at 34, n. 24. But stand-
ing and remedies are joined at the hip: Article III permits a court only
to provide “a remedy that redresses the plaintiffs’ injury-in-fact.” Collins
v. Mnuchin, 938 F. 3d 553, 609 (CA5 2019) (Oldham, J., concurring in
Cite as: 594 U. S. ____ (2021) 3
GORSUCH, J., concurring in part
If anything, removal restrictions may be a greater consti-
tutional evil than appointment defects. New Presidents al-
ways inherit thousands of Executive Branch officials whom
they did not select. It is the power to supervise—and, if
need be, remove—subordinate officials that allows a new
President to shape his administration and respond to the
electoral will that propelled him to office. After all, from
the moment “an officer is appointed, it is only the authority
that can remove him, and not the authority that appointed
him, that he must fear.” Synar v. United States, 626
F. Supp. 1374, 1401 (DC 1986) (per curiam). Chief Justice
Taft, who knew a little about such things, put it this way:
“[W]hen the grant of the executive power is enforced by the
express mandate to take care that the laws be faithfully ex-
ecuted, it emphasizes the necessity for including within the
executive power as conferred the exclusive power of re-
moval.” Myers v. United States, 272 U. S. 52, 122 (1926).
Because the power of supervising subordinates is essential
to sound constitutional administration, as between presi-
dential hiring and firing “the unfettered ability to remove
is the more important.” M. McConnell, The President Who
Would Not Be King 167 (2020).
——————
part and dissenting in part) (emphasis added). That is why a plaintiff
“must have standing [for] each form of relief” sought. Town of Chester v.
Laroe Estates, Inc., 581 U. S. ___, ___ (2017) (slip op., at 5). Bowsher, we
are told, involved a legislative officer—not an executive one, which sup-
posedly makes all the difference. Ante, at 35, n. 25. But there the Comp-
troller was legislative only in the sense that he headed an “independent”
department and was accountable to Congress rather than the President.
478 U. S, at 730–732. If there is any difference here, it’s that the FHFA
Director—who likewise heads an “independent” agency, 12 U. S. C.
§4511(a)—is accountable to no one. The idea that whether acts are void
or not turns on a label rather than on the functions an officer is assigned
and who he is accountable to should not be taken seriously. E.g., Bow-
sher, 478 U. S., at 727–728, 732–733; Free Enterprise Fund v. Public
Company Accounting Oversight Bd., 561 U. S. 477, 484–486, 496–498
(2010); Seila Law, 591 U. S., at ___–___, ___ (slip op., at 4–6, 23); ante, at
27–29, 31–32.
4 COLLINS v. YELLEN
GORSUCH, J., concurring in part
Protecting this aspect of the separation of powers isn’t
just about protecting presidential authority. Ultimately,
the separation of powers is designed to “secure[ ] the free-
dom of the individual.” Bond v. United States, 564 U. S.
211, 221 (2011); ante, at 20–21. That’s no less true here
than anywhere else. As Hamilton explained, the point of
ensuring presidential supervision of the Executive Branch
is to ensure “a due dependence on the people” and “a due
responsibility” to them; these are key “ingredients which
constitute safety in the republican sense.” The Federalist
No. 70, p. 424 (C. Rossiter ed. 1961). In the case of a re-
moval defect, a wholly unaccountable government agent as-
serts the power to make decisions affecting individual lives,
liberty, and property. The chain of dependence between
those who govern and those who endow them with power is
broken. United States v. Arthrex, Inc., ante, at 3 (GORSUCH,
J., concurring in part and dissenting in part). Few things
could be more perilous to liberty than some “fourth branch”
that does not answer even to the one executive official who
is accountable to the body politic. FTC v. Ruberoid Co., 343
U. S. 470, 487 (1952) (Jackson, J., dissenting).
Instead of applying our traditional remedy for constitu-
tional violations like these, the Court supplies a novel and
feeble substitute. The Court says that, on remand in this
suit, lower courts should inquire whether the President
would have removed or overruled the unconstitutionally in-
sulated official had he known he had the authority to do so.
Ante, at 35. So, if lower courts find that the President would
have removed or overruled the Director, then the for-cause
removal provision “clearly cause[d] harm” and the Direc-
tor’s actions may be set aside. Ibid.Not only is this “relief ” unlike anything this Court has
ever before authorized in cases like ours; it is materially
identical to a remedial approach this Court previously re-
jected. In Bowsher, the Court directly addressed and ex-
Cite as: 594 U. S. ____ (2021) 5
GORSUCH, J., concurring in part
pressly refused the dissent’s insistence that it should un-
dertake a “ ‘consideration’ of the ‘practical result of the re-
moval provision.’ ” 478 U. S., at 730. Instead of speculating
about what would have happened in a different world
where the officer’s challenged actions were reviewable
within the Executive Branch, the Court recognized that un-
constitutionally insulating an officer from removal “inflicts
a ‘here-and-now’ injury” on affected parties. Seila Law, 591
U. S., at ___ (slip op., at 10). In this world, real people are
injured by actions taken without lawful authority. “The
Framers did not rest our liberties on . . . minutiae” like
some guessing game about what might have transpired in
another timeline. Free Enterprise Fund v. Public Company
Accounting Oversight Bd., 561 U. S. 477, 500 (2010).
Other problems attend the Court’s remedial science fic-
tion. It proceeds on an assumption that Congress would
have adopted a version of the Housing and Economic Recov-
ery Act (HERA) that allowed the President to remove the
Director. But that is sheer speculation. It is equally possi-
ble that—had Congress known it could not have a Director
independent from presidential supervision—it would have
deployed different tools to rein in Fannie Mae and Freddie
Mac. Surely, Congress possessed no shortage of options. By
way of example, it could have conferred new regulatory
functions on an existing (and accountable) agency like the
Department of Housing and Urban Development, or it
might have enacted detailed statutes to govern Fannie and
Freddie’s activities directly. For that matter, Congress
might have opted for no additional oversight rather than
subject the Federal Housing Finance Agency (FHFA) to su-
pervision by the President.
This Court possesses no authority to substitute its own
judgment about which legislative solution Congress might
have adopted had it considered a problem never put to it.
That is not statutory interpretation; it is statutory reinven-
tion. Indeed, while never uttering the words “severance
6 COLLINS v. YELLEN
GORSUCH, J., concurring in part
doctrine,” the Court today winds up implicitly resting its
remedial enterprise upon it—severing, or removing, one
part of Congress’s work based on speculation about its
wishes and usurping a legislative prerogative in the pro-
cess. See, e.g., Arthrex, ante, at 6–7 (GORSUCH, J., concur-
ring in part and dissenting in part); Synar, 626 F. Supp., at
1393. By once again purporting to do Congress’s job, we
discourage the people’s representatives from taking up for
themselves the task of consulting their oaths, grappling
with constitutional problems, and specifying a solution in
statutory text. “Congress can now simply rely on the courts
to sort [it] out.” Tennessee v. Lane, 541 U. S. 509, 552 (2004)
(Rehnquist, C. J., dissenting).2
——————
2 JUSTICE THOMAS stakes out more foreign terrain. After saying that
he “join[s] the Court’s opinion in full,” he argues there was no constitu-
tional violation at all because the President—despite statutes barring his
way—was free to remove the Director all along. Ante, at 1, 4, 11. Ac-
cordingly, it seems JUSTICE THOMAS disagrees with all of Part III–B’s
merits analysis in addition to the Court’s novel remedy in Part III–C.
Like the Court, though, he seemingly takes as given that Congress would
have chosen to adopt HERA even if it had known this course required
subjecting the Director to removal by the President. Ante, at 5–6. In
doing so, he parts ways with his opinion last year in Seila Law, where he
recognized the following: First, in cases like ours, a constitutional viola-
tion arises because of “the combination” of statutory terms that (1) confer
executive power on an official and (2) improperly insulate him from re-
moval. 591 U. S., at ___ (THOMAS, J., concurring in part and dissenting
in part) (slip op., at 21). Second, absent statutory direction from Con-
gress, we cannot divine “which of the provisions” Congress would have
kept and which it would have scrapped—or what else it might have
done—had it known its actual choice was unconstitutional. Id., at ___
(slip op., at 23). Third, this Court lacks the “ ‘editorial freedom’ ” to pick
and choose among options like these, for doing so would usurp Congress’s
legislative authority. Ibid. Today, JUSTICE THOMAS suggests Seila Law
rested on one party’s concession about the meaning of the law. Ante, at
8, n. 5; ante, at 10. But parties cannot stipulate to the law. E.g., Zivo-
tofsky v. Kerry, 576 U. S. 1, 41, n. 2 (2015) (THOMAS, J., concurring in
judgment in part and dissenting in part); Young v. United States, 315
U. S. 257, 258–259 (1942). More importantly, his observations were
right then—and they remain so today.
Cite as: 594 U. S. ____ (2021) 7
GORSUCH, J., concurring in part
The Court’s conjecture does not stop there. After guess-
ing what legislative scheme Congress would have adopted
in some hypothetical but-for world, the Court tasks lower
courts and the parties with reconstructing how executive
agents would have reacted to it. On remand, we are told,
the litigants and lower courts must ponder whether the
President would have removed the Director had he known
he was free to do so. Ante, at 35. But how are judges and
lawyers supposed to construct the counterfactual history?
It is no less a speculative enterprise than guessing what
Congress would have done had it known its statutory
scheme was unconstitutional. It’s only that the Court pre-
fers to reserve the big hypothetical (legislative) choice for
itself and leave others for lower courts to sort out.
Consider the guidance the Court offers. It says lower
courts should examine clues such as whether the President
made a “public statement expressing displeasure” about
something the Director did, or whether the President “at-
tempted” to remove the Director but was stymied by lower
courts. Ibid. But what if the President never considered
the possibility of removing the Director because he was
never advised of that possibility? What if his advisers
themselves never contemplated the option given statutory
law? And even putting all that aside, what evidence should
courts and parties consult when inquiring into the Presi-
dent’s “displeasure”? Are they restricted to publicly availa-
ble materials, even though the most probative evidence may
be the most sensitive? To ascertain with any degree of con-
fidence the President’s state of mind regarding the Director,
don’t we need testimony from him or his closest staff?
The Court declines to tangle with any of these questions.
It’s hard not to wonder whether that’s because it intends for
this speculative enterprise to go nowhere. Rather than in-
trude on often-privileged executive deliberations, the Court
may calculate that the lower courts on remand in this suit
will simply refuse retroactive relief. See, e.g., ante, at 6
8 COLLINS v. YELLEN
GORSUCH, J., concurring in part
(KAGAN, J., concurring in part and concurring in judgment
in part). But if this is what the Court intends, why not just
admit it and put these parties out of their misery?
As strange as the Court’s remand instructions are, the
more important question lower courts face isn’t how to re-
solve this suit but what to do with the next one. Today, the
Court sounds the call to arms and declares a constitutional
violation only to head for the hills as soon as it’s faced with
a request for meaningful relief. But as we have seen, the
Court has in the past consistently vindicated Article II both
in reasoning and in remedy. E.g., Seila Law, 591 U. S., at
___ (opinion of ROBERTS, C. J.) (slip op., at 36); Lucia v.
SEC, 585 U. S. ___, ___–___, n. 5 (2018) (slip op., at 12–13,
n. 5); NLRB v. Noel Canning, 573 U. S. 513, 557 (2014); Ry-
der v. United States, 515 U. S. 177, 182–183 (1995); Bow-
sher, 478 U. S., at 736. These cases—involving appoint-
ment and removal defects alike—remain good law. So what
are lower courts faced with future removal defect cases to
make of all this? The only lesson I can divine is that the
Court’s opinion today is a product of its unique context—a
retreat prompted by the prospect that affording a more tra-
ditional remedy here could mean unwinding or disgorging
hundreds of millions of dollars that have already changed
hands. Ante, at 32–33. The Court may blanch at authoriz-
ing such relief today, but nothing it says undoes our prior
guidance authorizing more meaningful relief in other situ-
ations.
For my part, rather than carve out some suit-specific, re-
moval-only, money-in-the-bank exception to our normal
rules for Article II violations, I would take a simpler and
more familiar path. Whether unconstitutionally installed
or improperly unsupervised, officials cannot wield execu-
tive power except as Article II provides. Attempts to do so
are void; speculation about alternate universes is neither
necessary nor appropriate. In the world we inhabit, where
Cite as: 594 U. S. ____ (2021) 9
GORSUCH, J., concurring in part
individuals are burdened by unconstitutional executive ac-
tion, they are “entitled to relief.” Lucia, 585 U. S., at ___
(slip op., at 12).
Cite as: 594 U. S. ____ (2021) 1
SOTOMAYOR, J., Opinion
concurring
of SinOTOMAYOR
part and,dissenting
J. in part
SUPREME COURT OF THE UNITED STATES
_________________
Nos. 19–422 and 19–563
_________________
PATRICK J. COLLINS, ET AL., PETITIONERS
19–422 v.
JANET L. YELLEN, SECRETARY
OF THE TREASURY, ET AL.
JANET L. YELLEN, SECRETARY OF THE TREASURY,
ET AL., PETITIONERS
19–563 v.
PATRICK J. COLLINS, ET AL.
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT
[June 23, 2021]
JUSTICE SOTOMAYOR, with whom JUSTICE BREYER joins,
concurring in part and dissenting in part.
Prior to 2010, this Court had gone the greater part of a
century since it last prevented Congress from protecting an
Executive Branch officer from unfettered Presidential re-
moval. Yet today, for the third time in just over a decade,
the Court strikes down the tenure protections Congress
provided an independent agency’s leadership.
Last Term, the Court held in Seila Law LLC v. Consumer
Financial Protection Bureau, 591 U. S. ___ (2020), that for-
cause removal protection for the Director of the Consumer
Financial Protection Bureau (CFPB) violated the separa-
tion of powers. Id., at ___ (slip op., at 3). As an “independ-
ent agency led by a single Director and vested with signifi-
cant executive power,” the Court reasoned, the CFPB had
“no basis in history and no place in our constitutional struc-
2 COLLINS v. YELLEN
SOTOMAYOR, J., Opinion
concurring
of SinOTOMAYOR
part and,dissenting
J. in part
ture.” Id., at ___ (slip op., at 18). Seila Law expressly dis-
tinguished the Federal Housing Finance Agency (FHFA),
another independent Agency headed by a single Director,
on the ground that the FHFA does not possess “regulatory
or enforcement authority remotely comparable to that exer-
cised by the CFPB.” Id., at ___–___ (slip op., at 20–21).
Moreover, the Court found it significant that, unlike the
CFPB, the FHFA “regulates primarily Government-
sponsored enterprises, not purely private actors.” Id., at
___ (slip op., at 20).
Nevertheless, the Court today holds that the FHFA and
CFPB are comparable after all, and that any differences be-
tween the two are irrelevant to the constitutional separa-
tion of powers. That reasoning cannot be squared with this
Court’s precedents, least of all last Term’s Seila Law. I re-
spectfully dissent in part from the Court’s opinion and from
the corresponding portions of the judgment.1
I
Congress created the FHFA in the Housing and Economic
Recovery Act of 2008 (Recovery Act), 12 U. S. C. §4501 et
seq. The FHFA supervises the Federal National Mortgage
Association (Fannie Mae), the Federal Home Loan Mort-
gage Corporation (Freddie Mac), and the 11 Federal Home
Loan Banks. These 13 Government-sponsored entities
(GSEs) provide liquidity and stability to the national hous-
ing market by, among other things, purchasing mortgage
——————
1 I join Parts I and II of the Court’s opinion rejecting petitioners’ argu-
ment that the FHFA actions under review violated the Housing and Eco-
nomic Recovery Act of 2008, as well as Part III–C discussing what the
appropriate remedial implications would be if the FHFA Director’s for-
cause removal protection were unconstitutional. I join also Part II of
JUSTICE KAGAN’s concurrence concerning the proper remedial analysis
for the Fifth Circuit to conduct on remand. Finally, I note that JUSTICE
THOMAS’ arguments that an improper removal restriction does not nec-
essarily render agency action unlawful warrant further consideration in
an appropriate case.
Cite as: 594 U. S. ____ (2021) 3
SOTOMAYOR, J., Opinion
concurring
of SinOTOMAYOR
part and,dissenting
J. in part
loans from, and offering financing to, private lenders.
The FHFA “establish[es] standards” for the GSEs relat-
ing to risk management, internal auditing, and minimum
capital requirements. §4513b(a). If the FHFA believes a
GSE may be failing to meet its requirements under the Act,
the Agency may initiate administrative proceedings, §4581,
issue subpoenas, §4517(g), and, in some circumstances, im-
pose monetary penalties, §4585. In the event a GSE falls
into financial distress, the FHFA may appoint itself “con-
servator or receiver for the purpose of reorganizing, reha-
bilitating, or winding up” the GSE’s affairs. §4617(a)(2).
In 2008, the FHFA put both Fannie Mae and Freddie Mac
under conservatorship. In 2016, shareholders of Fannie
Mae and Freddie Mac (petitioners) sued the FHFA, chal-
lenging the Agency’s conservatorship decisions in part by
arguing that the Agency’s structure is unconstitutional.
The FHFA is headed by a single Director, who serves a 5-
year term and may be removed by the President “for cause.”
§4512(b)(2). According to petitioners, the separation of
powers requires the FHFA Director to be removable by the
President at will.
II
Where Congress is silent on the question, the general rule
is that the President may remove Executive Branch officers
at will. See Myers v. United States, 272 U. S. 52, 126 (1926).
Throughout our Nation’s history, however, Congress has
identified particular officers who, because of the nature of
their office, require a degree of independence from Presi-
dential control. Those officers may be removed from their
posts only for cause. Often, Congress has granted financial
regulators such independence in order to bolster public con-
fidence that financial policy is guided by long-term think-
ing, not short-term political expediency. See Seila Law, 591
U. S., at ___–___ (slip op., at 13–16) (KAGAN, J., concurring
in judgment with respect to severability and dissenting in
4 COLLINS v. YELLEN
SOTOMAYOR, J., Opinion
concurring
of SinOTOMAYOR
part and,dissenting
J. in part
part) (discussing examples). Other times, Congress has
provided tenure protection to officers who investigate other
Government actors and thus might face conflicts of interest
if directly controlled by the President. See, e.g., 28 U. S. C.
§596(a)(1) (making an independent counsel removable “only
by the personal action of the Attorney General and only for
good cause” or disability).
In a line of decisions spanning more than half a century,
this Court consistently approved of independent agencies
and independent counsels within the Executive Branch.
See Humphrey’s Executor v. United States, 295 U. S. 602(1935); Wiener v. United States, 357 U. S. 349 (1958); Mor-
rison v. Olson, 487 U. S. 654 (1988). In recent years, how-
ever, the Court has taken an unprecedentedly active role in
policing Congress’ decisions about which officers should en-
joy independence. See Seila Law, 591 U. S. ___; Free Enter-
prise Fund v. Public Company Accounting Oversight Bd.,
561 U. S. 477 (2010). These decisions have focused almost
exclusively on perceived threats to the separation of powers
posed by limiting the President’s removal power, while
largely ignoring the Court’s own encroachment on Con-
gress’ constitutional authority to structure the Executive
Branch as it deems necessary.
Never before, however, has the Court forbidden simple
for-cause tenure protection for an Executive Branch officer
who neither exercises significant executive power nor regu-
lates the affairs of private parties. Because the FHFA Di-
rector fits that description, this Court’s precedent,
separation-of-powers principles, and proper respect for
Congress all support leaving in place Congress’ limits on
the grounds upon which the President may remove the Di-
rector.
A
In Seila Law, the Court held that the CFPB Director, an
individual with “the authority to bring the coercive power
Cite as: 594 U. S. ____ (2021) 5
SOTOMAYOR, J., Opinion
concurring
of SinOTOMAYOR
part and,dissenting
J. in part
of the state to bear on millions of private citizens and busi-
nesses,” 591 U. S., at ___ (slip op., at 18), must be removable
by the President at will. In so holding, the Court declined
to overrule Humphrey’s Executor and Morrison, which re-
spectively upheld the independence of the Federal Trade
Commission’s (FTC) five-member board and an independ-
ent counsel tasked with investigating Government malfea-
sance. See 591 U. S., at ___ (slip op., at 27) (“[W]e do not
revisit Humphrey’s Executor or any other precedent today”).
Instead, Seila Law opted not to “extend those precedents”
to the CFPB, “an independent agency led by a single Direc-
tor and vested with significant executive power.” 591 U. S.,
at ___ (slip op., at 18).2
The Court today concludes that the reasoning of Seila
Law “dictates” that the FHFA is unconstitutionally struc-
tured because it, too, is led by a single Director. Ante, at 26.
But Seila Law did not hold that an independent agency may
never be run by a single individual with tenure protection.
Rather, that decision stated, repeatedly, that its holding
was limited to a single-director agency with “significant ex-
ecutive power.” 591 U. S., at ___, ___, ___ (slip op., at 2, 18,
36). The question, therefore, is not whether the FHFA is
headed by a single Director, but whether the FHFA wields
“significant” executive power. It does not.
As a yardstick for measuring the constitutional signifi-
cance of an agency’s executive power, Seila Law looked to
the FTC as it existed at the time of Humphrey’s Executor
(the 1935 FTC). 591 U. S., at ___–___ (slip op., at 16–17).
That agency had a roving mandate to prevent private indi-
viduals and corporations alike from engaging in “ ‘unfair
——————
2 As JUSTICE KAGAN explained in dissent, Seila Law rested on implau-
sible recharacterizations of this Court’s separation-of-powers jurispru-
dence. I continue to believe that Seila Law was wrongly decided. What-
ever the merits of that decision, however, it does not support invalidating
the FHFA Director’s independence.
6 COLLINS v. YELLEN
SOTOMAYOR, J., Opinion
concurring
of SinOTOMAYOR
part and,dissenting
J. in part
methods of competition in commerce.’ ” Humphrey’s Execu-
tor, 295 U. S., at 620 (citing 15 U. S. C. §45). To carry out
its mandate, the 1935 FTC had broad authority to issue
complaints and cease-and-desist orders. 295 U. S., at 620.
The agency also had “wide powers of investigation,” which
it used to make recommendations to Congress, as well as
the responsibility to assist courts in antitrust litigation by
“ ‘ascertain[ing] and report[ing] an appropriate form of de-
cree.’ ” Id., at 621.
These powers may seem “significant” in a colloquial
sense. In Seila Law’s view, however, they did not rise to
the level of constitutional significance. That was in con-
trast to the CFPB’s powers, which far outstrip the 1935
FTC’s. While the 1935 FTC’s ambit was limited to prevent-
ing unfair competition and violations of antitrust law, the
CFPB “possesses the authority to promulgate binding rules
fleshing out 19 federal statutes, including a broad prohibi-
tion on unfair and deceptive practices in a major segment
of the U. S. economy.” Seila Law, 591 U. S., at ___ (slip op.,
at 17). While the 1935 FTC could issue cease-and-
desist orders and recommended dispositions, the CFPB
“may unilaterally issue final decisions awarding legal and
equitable relief in administrative adjudications” and “seek
daunting monetary penalties against private parties on be-
half of the United States in federal court.” Ibid. Far from
a “mere legislative or judicial aid” like the 1935 FTC, ibid.,
the CFPB is a “mini legislature, prosecutor, and court, re-
sponsible for creating substantive rules for a wide swath
of industries, prosecuting violations, and levying knee-
buckling penalties against private citizens,” id., at ___, n. 8
(slip op., at 21, n. 8).
Measured against such standards, the FHFA comfortably
fits within the same category of constitutional insignifi-
cance as the 1935 FTC. To some, the CFPB Director was
“the single most powerful official in the entire U. S. Govern-
ment, other than the President, at least when measured in
Cite as: 594 U. S. ____ (2021) 7
SOTOMAYOR, J., Opinion
concurring
of SinOTOMAYOR
part and,dissenting
J. in part
terms of unilateral power.” PHH Corp. v. Consumer Finan-
cial Protection Bur., 881 F. 3d 75, 171 (CADC 2018) (Ka-
vanaugh, J., dissenting). The FHFA Director is not one of
the most powerful officials in the U. S. Government. As the
Court recognized in Seila Law, the FHFA does “not involve
regulatory or enforcement authority remotely comparable
to that exercised by the CFPB.” 591 U. S., at ___ (slip op.,
at 20–21).
The FHFA’s authority is much closer to (and, in some re-
spects, far less than) that of the 1935 FTC. Like the 1935
FTC, the FHFA oversees regulated entities and gathers
specified information from them on Congress’ behalf. Un-
like the 1935 FTC, however, which was tasked with imple-
menting the Nation’s antitrust laws and policing unfair
competition, the FHFA is limited to specified duties under
the Recovery Act. Furthermore, while the 1935 FTC had
jurisdiction over countless individuals and corporations,
the FHFA regulates just 13 GSEs.
Moreover, one of the FHFA’s main powers is assuming
the mantle of conservatorship or receivership over the
GSEs, which hardly registers as executive at all. When act-
ing as a conservator or receiver, an agency like the FHFA
“ ‘steps into the shoes’ ” of the party under distress, O’Mel-
veny & Myers v. FDIC, 512 U. S. 79, 86 (1994), and largely
“ ‘shed[s] its government character,’ ” Herron v. Fannie Mae,
861 F. 3d 160, 169 (CADC 2017). Even granting that there
are differences between the FHFA’s powers as a conserva-
tor and those of a common-law conservator, “the FHFA’s
conservatorship function [is] a role one would be hard-
pressed to characterize as near the heart of executive
power.” Collins v. Mnuchin, 938 F. 3d 553, 620 (CA5 2019)
(Higginson, C. J., dissenting in part).
To be sure, the FHFA has at least one executive power
that the 1935 FTC did not: the power to impose fines. But
that fining authority is quite limited. The FHFA may im-
pose fines on the 13 GSEs it regulates for failing to meet
8 COLLINS v. YELLEN
SOTOMAYOR, J., Opinion
concurring
of SinOTOMAYOR
part and,dissenting
J. in part
their reporting requirements and housing goals under the
Recovery Act and for violating the requirements of the Fed-
eral Housing Enterprises Financial Safety and Soundness
Act of 1992, 106 Stat. 3941. See 12 U. S. C. §§4585, 4636.
Petitioners point to no instance in the Agency’s 13-year his-
tory in which it has ever fined a GSE.3
That is not to say that the FHFA possesses no executive
authority whatsoever. It does. But the 1935 FTC, too, pos-
sessed executive authority, just not enough to be “signifi-
cant.” See Seila Law, 591 U. S., at ___, n. 2 (slip op., at 14,
n. 2) (“ ‘[I]t is hard to dispute that the powers of the FTC at
the time of Humphrey’s Executor would at the present time
be considered “executive,” at least to some degree’ ” (quoting
Morrison, 487 U. S., at 690, n. 28)). When measured
against the benchmark of the 1935 FTC, the FHFA does not
possess “significant executive power” within the meaning of
Seila Law. It is in “an entirely different league” from the
CFPB. 591 U. S., at ___, n. 8 (slip op., at 21, n. 8).
B
Because the FHFA does not possess significant executive
power, the question under Seila Law is whether this Court’s
decisions upholding for-cause removal provisions in
Humphrey’s Executor and Morrison should be “extend[ed]”
to the FHFA Director. 591 U. S., at ___ (slip op., at 18). The
clear answer is yes.
Not only does the FHFA lack significant executive power,
the authority it does possess is exercised over other govern-
mental actors. In that respect, the FHFA Director mimics
the independent counsel whose tenure protections were up-
held in Morrison. The independent counsel, as Seila Law
noted, could bring criminal prosecutions and thus “wielded
core executive power.” 591 U. S., at ___ (slip op., at 18).
——————
3 By comparison, the CFPB has fined private actors billions of dollars.
Seila Law LLC v. Consumer Financial Protection Bureau, 591 U. S. ___,
___ (2020) (slip op., at 5).
Cite as: 594 U. S. ____ (2021) 9
SOTOMAYOR, J., Opinion
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of SinOTOMAYOR
part and,dissenting
J. in part
Separation-of-powers concerns were allayed, however, be-
cause “that power, while significant, was trained inward to
high-ranking Governmental actors identified by others.”
Ibid. In explaining why “[t]he logic of Morrison” did “not
apply” to the CFPB, Seila Law emphasized that the CFPB
“has the authority to bring the coercive power of the state
to bear on millions of private citizens and businesses.” Id.,at ___–___ (slip op., at 17–18).
Morrison’s logic may not have applied to the CFPB, but it
certainly applies to the FHFA. The FHFA’s executive
power, too, is “trained inward,” on the 13 GSEs “identified
by” the Recovery Act. Seila Law, 591 U. S., at ___ (slip op.,
at 18). While the GSEs are now privately owned, they still
operate under congressional charters, see 12 U. S. C.
§4501(1), serve “important public missions,” ibid., and re-
ceive preferential treatment under law by dint of their Gov-
ernment affiliation, §1719.4 Seila Law itself distinguished
the CFPB from the FHFA precisely on the basis that the
latter Agency “regulates primarily Government-sponsored
enterprises, not purely private actors.” 591 U. S., at ___
(slip op., at 20).
Historical considerations further confirm the constitu-
tionality of the FHFA Director’s independence. Single-
director independent agencies with limited executive
power, like the FHFA, boast a more storied pedigree than
do single-director independent agencies with significant ex-
——————
4 The GSEs’ ongoing ties with the Government long fueled public per-
ception that the Government would intervene if the GSEs were in danger
of collapse. See Congressional Research Serv., Fannie Mae and Freddie
Mac in Conservatorship: Frequently Asked Questions 2 (updated May
31, 2019) (noting that it was “widely believed prior to 2008 that the fed-
eral government was an implicit backstop for the GSEs in light of their
congressional charters”). This perception became reality during the 2008
financial crisis, when the Treasury Department extended hundreds of
billions of dollars in credit to Fannie Mae and Freddie Mac, and the
FHFA put those entities under conservatorship.
10 COLLINS v. YELLEN
SOTOMAYOR, J., Opinion
concurring
of SinOTOMAYOR
part and,dissenting
J. in part
ecutive power, like the CFPB. Consider three such exam-
ples, each discussed in Seila Law. First, the Comptroller of
the Currency, who was briefly independent from Presiden-
tial removal during the Civil War and thereafter retained a
lesser form of tenure protection. Id., at ___ (slip op., at 19).
Second, the Office of Special Counsel, which has been
“headed by a single officer since 1978.” Id., at ___–___ (slip
op., at 19–20). Third, the Social Security Administration,
which has been “run by a single Administrator since 1994.”
Id., at ___ (slip op., at 20). Like the FHFA, these examples
lack “regulatory or enforcement authority remotely compa-
rable to that exercised by the CFPB.” Id., at ___–___ (slip
op., at 20–21). While these agencies thus offered “no foot-
hold in history or tradition” for the CFPB, id., at ___ (slip
op., at 21), they provide historical support for an agency
with the FHFA’s limited purview.
The FHFA also draws on a long tradition of independence
enjoyed by financial regulators, including the Comptroller
of the Treasury, the Second Bank of the United States, the
Federal Reserve Board, the Securities and Exchange Com-
mission, the Commodity Futures Trading Commission, and
the Federal Deposit Insurance Corporation. See id., at ___–
___ (slip op., at 12–16) (opinion of KAGAN, J.). The public
has long accepted (indeed, expected) that financial regula-
tors will best perform their duties if separated from the po-
litical exigencies and pressures of the present moment.
In Seila Law, this tradition of independence was of little
help to the CFPB because, “even assuming financial insti-
tutions . . . can claim a special historical status,” the
CFPB’s unique powers put it “in an entirely different
league” from other financial regulators. Id., at ___, n. 8
(majority opinion) (slip op., at 21, n. 8). In contrast, the
FHFA’s function as a monitor of regulated entities im-
portant to economic stability makes the FHFA far more
similar to historically independent financial regulators
Cite as: 594 U. S. ____ (2021) 11
SOTOMAYOR, J., Opinion
concurring
of SinOTOMAYOR
part and,dissenting
J. in part
than to the CFPB. See FHFA, Performance and Accounta-
bility Report 18 (2020) (“The [Recovery Act] vests FHFA
with the authorities, similar to those of other prudential fi-
nancial regulators, to maintain the financial health of the
regulated entities”).
To recap, the FHFA does not wield significant executive
power, the executive power it does wield is exercised over
Government affiliates, and its independence is supported
by historical tradition. All considerations weigh in favor of
recognizing Congress’ power to make the FHFA Director re-
movable only for cause.
III
The Court disagrees. After Seila Law, the Court reasons,
all that matters is that “[t]he FHFA (like the CFPB) is an
agency led by a single Director.” Ante, at 26. From that,
the unconstitutionality of the FHFA Director’s independ-
ence follows virtually a fortiori. The Court reaches that
conclusion by disavowing the very distinctions it relied
upon just last Term in Seila Law in striking down the CFPB
Director’s independence.
On three separate occasions, Seila Law stated that its
holding applied to single-director independent agencies
with “significant executive power.” See 591 U. S., at ___,
___, ___ (slip op., at 2, 18, 36). Remarkably, those words
appear nowhere in today’s decision. Instead, the Court ap-
pears to take the position that exercising essentially any
executive power whatsoever is enough. Ante, at 27–29. In
terms of explanation, the Court says that it is “not well-
suited to weigh the relative importance of the regulatory
and enforcement authority of disparate agencies” and that
it “do[es] not think that the constitutionality of removal re-
strictions hinges on such an inquiry.” Ante, at 29.
The Court’s position unduly encroaches on Congress’
judgments about which executive officers can and should
enjoy a degree of independence from Presidential removal,
12 COLLINS v. YELLEN
SOTOMAYOR, J., Opinion
concurring
of SinOTOMAYOR
part and,dissenting
J. in part
and it cannot be squared with Seila Law, which relied ex-
tensively on such agency comparisons. Not only did Seila
Law contrast the CFPB’s powers against those of the 1935
FTC in Humphrey’s Executor, see 591 U. S., at ___–___ (slip
op., at 16–17), as well as the independent counsel in Morri-
son, see 591 U. S., at ___–___ (slip op., at 17–18), it con-
cluded that the FHFA (along with the Comptroller of the
Currency, the Office of Special Counsel, and the Social Se-
curity Administration) does not possess “regulatory or en-
forcement authority remotely comparable to that exercised
by the CFPB.” Id., at ___–___ (slip op., at 20–21). Those
distinctions underpinned Seila Law’s proclamation that the
CFPB had “no basis in history and no place in our constitu-
tional structure.” Id., at ___ (slip op., at 18). In the Court’s
view today, however, all of those comparisons were irrele-
vant to the bottom-line question whether the CFPB Direc-
tor’s tenure protections comport with the Constitution.
The Court today also suggests that whether an agency
regulates private individuals or Government actors does
not meaningfully affect the separation-of-powers analysis.
Ante, at 30–31 (“[T]he President’s removal power serves im-
portant purposes regardless of whether the agency in ques-
tion affects ordinary Americans by directly regulating them
or by taking actions that have a profound but indirect effect
on their lives”). That, too, is flatly inconsistent with Seila
Law, which returned repeatedly to this consideration. Not
only did Seila Law distinguish the CFPB from the inde-
pendent counsel in Morrison on this basis, see 591 U. S., at
___ (slip op., at 18), it distinguished the CFPB from both the
FHFA and the Office of Special Counsel for the same rea-
son, see id., at ___ (slip op., at 20). That the Court is un-
willing to stick to the methodology it articulated just last
Term in Seila Law is a telltale sign that the Court’s
separation-of-powers jurisprudence has only continued to
lose its way.
Cite as: 594 U. S. ____ (2021) 13
SOTOMAYOR, J., Opinion
concurring
of SinOTOMAYOR
part and,dissenting
J. in part
IV
The Court has proved far too eager in recent years to in-
sert itself into questions of agency structure best left to
Congress. In striking down the independence of the FHFA
Director, the Court reaches further than ever before, refus-
ing tenure protections to an Agency head who neither
wields significant executive power nor regulates private in-
dividuals. Troublingly, the Court justifies that result by ig-
noring the standards it set out just last Term in Seila Law.
Because I would afford Congress the freedom it has long
possessed to make officers like the FHFA Director inde-
pendent from Presidential control, I respectfully dissent.