Desperate times, desperate measures, and the long shadow of the New Deal

A difficult question of administrative law produced a divided panel in Collins v. Mnuchin. The panel majority concluded that the Federal Housing Finance Agency (a regulator for Fannie Mae and Freddie Mac created by Congress in the wake of the 2008 financial crisis) was unconstitutionally structured. After careful review of the Supreme Court’s precedents in the area, the panel excised a “for cause” limitation on the removal of FHFA’s director from the relevant statute, finding  that with this revision “the FHFA survives as a properly supervised executive agency.” One dissent took issue with that holding; another dissent criticized the majority’s conclusion that the specific FHFA action at issue – a “net worth sweep” requiring payment of substantial quarterly dividends to the Treasury by Fannie and Freddie – was within the scope of FHFA’s statutory authority and thus insulated from judicial review. No. 17-20364 (July 16, 2018).