Collins v. Mnuchin
The effects of the 2008 housing crisis decimated the American economy. And at the height of the crisis, nearly half of the nation’s mortgage debt was owned or guaranteed by Fannie Mae and Freddie Mac. But to compete with Wall Street and increase profits, Fannie and Freddie had over-invested in risky mortgages and securities, ultimately requiring billions in federal bailouts. These practices were made possible by the lax oversight of a weak and politically dependent government regulator. To correct that problem, Congress established a new agency to oversee Fannie and Freddie, the Federal Housing Finance Agency (FHFA). Congress further provided that the FHFA’s director could be fired by the president for good cause but not for policy disagreements alone—ensuring accountability while shielding the agency from undue political pressure aimed at weakening oversight.
In Collins v. Mnuchin, the FHFA’s leadership structure is being challenged as an unconstitutional infringement on presidential power. CAC filed a friend-of-the-court brief on behalf of members of Congress defending the agency’s constitutionality.
In our brief, we first explain that the Constitution gives Congress broad power to shape the structure of federal agencies and to give their leaders a degree of independence from presidential policy control. As we show, the Framers deliberately provided such flexibility to Congress so that future lawmakers could respond effectively to new and unforeseen national crises. Our brief then describes how Congress exercised this discretion amidst the housing crisis of 2008, concluding that a strong and independent new regulator was needed to help preserve the security of the housing finance system. Finally, our brief demonstrates that Congress had every right to make this choice: the Supreme Court has long recognized that the heads of regulatory agencies may be shielded from firing without cause, and the FHFA is materially indistinguishable from the agencies addressed in the Court’s prior decisions. Thus, the agency’s leadership structure is constitutional.
In a 9-7 decision, the en banc Fifth Circuit held that the leadership structure of the FHFA violates the separation of powers because, according to the majority, the President has less ability to influence the policies of a single-director independent agency than he does with respect to independent agencies led by boards or commissions. Judge Higginson’s dissent described “these assertions [as] little more than debatable empirical claims—hardly the firm footing judges need to take the bold step of declaring Congress’s agency design choices unconstitutional.”
January 18, 2019
CAC files an amicus brief5th. Cir. Amicus Brief
January 23, 2019
The court hears arguments en banc
September 6, 2019
The en banc Fifth Circuit issues its decision