Last year, I was asked by the Supreme Court in Collins v. Yellen to argue in defense of the constitutionality of the Federal Housing Finance Agency’s structure. Collins addressed a statute that purports to only allow the president to remove the FHFA’s director “for cause.” A few months ago, the Court concluded that this provision is unconstitutional. As Justice Alito explained for the majority, “amicus attempts to distinguish the FHFA from the CFPB [which the Court concluded was unconstitutionally structured in 2020’s Seila Law v. CFPB decision]. We do not find any of these distinctions sufficient to justify a different result.”
Reflecting on this experience, I have penned a short essay on Collins for the annual Cato Supreme Court Review entitled Three Views of the Administrative State: Lessons from Collins v. Yellen.
Here is a summary:
In Collins v. Yellen, the Supreme Court held that the Federal Housing Finance Agency’s structure violates the separation of powers because the president cannot remove the FHFA’s head at will. By itself, that constitutional holding — which significantly expands upon earlier precedent — makes Collins an important case. The Court, however, also resolved a statutory question worth billions of dollars and issued an important remedial decision regarding unconstitutional restrictions on presidential removal. This essay examines all three aspects of the Court’s decision and explores what Collins as a whole says about the modern administrative state. In particular, this essay argues that Collins demonstrates that federal power is ubiquitous in the housing sector, the White House has extensive control over that power, and the Court is reluctant to provide much relief to private plaintiffs.
It was interesting to dive into some of the aspects of the case beyond the separation-of-powers issue that we briefed. Many thanks for the folks at Cato for the kind invitation.
If you’re interested, I also spoke last week at Cato’s Constitution Day event.