Supreme Court Appoints Prof. Aaron Nielson to Defend Constitutionality of Federal Housing Finance Agency

Circuit Justice Alito (likely) calls on his former law clerk to argue the post-Seila Law Case.

|The Volokh Conspiracy |

Last term, the Supreme Court decided that the structure of the Consumer Finance Protection Bureau (CFPB) violated the separation of powers. In Seila Law v. CFPB, on appeal from the Ninth Circuit, the Trump Administration declined to defend the agency. Circuit Justice Elena Kagan appointed Paul Clement, the former Solicitor General, to take that position. (I wrote about that choice here).

In the wake of Seila Law, the Supreme Court granted review in Collins v. Mnuchin. This appeal from the Fifth Circuit considers a challenge to the Federal Housing Finance Agency (FHFA). The Fifth Circuit found that the FHFA was unconstitutional, but sharply divided on the remedy. The FHFA, like the CFPB, is headed by a single-director protected by for-cause protection. Indeed, Chief Justice Roberts's majority opinion flagged the similarities between the FHFA and the CFPB:

[The CFPB] regulates primarily Government-sponsored enterprises, not purely private actors. And its single-Director structure is a source of ongoing controversy. Indeed, it was recently held unconstitutional by the Fifth Circuit, sitting en banc. See Collins v. Mnuchin, 938 F. 3d 553, 587–588 (2019).

The Trump Administration has declined to defend the FHFA. As a result, Circuit Justice Alito appointed his former clerk, Professor Aaron Nielson (BYU), to argue the case. Nielson also clerked for Judge Jerry Smith on the Fifth Circuit. Congratulations to Aaron on what will be his first oral argument before the Supreme Court. I have no doubt he will give the FHFA the best defense it can get.

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  1. There’s a typo in the block quote. Justice Roberts’ opinion accurately states the FHFA, and not the CFPB, regulates primarily the GSEs (Fannie and Freddie).

  2. Why stop at nepotism when predictable partisanship is also available?

    1. All the little Kirkland nieces and nephews must be so proud of you for all the help you’ve provided over the years. Christmas and Thanksgiving must be wonderful times of the year.

  3. When an appt like this is made, how is the person compensated? Does SCOTUS have a discretionary slush fund? (“Hey, take $1,000/hour out of petty cash.”) Something that Congress would have to somehow fund (But always always always does fund, out of sense of comity.)? Funded by the Justice Dept? Some other way?

    Or is it expected that the person will do this pro bono? I would imagine that cases like this could take hundreds and hundreds (if not thousands) of hours, so if there’s no compensation–other than a significant boost to one’s reputation–that seems pretty harsh . . . I’m not sure if I could go for 3 months with no income.

    1. For the people interested in this sort of thing, the opportunity to argue before the Supreme Court does not require compensation. If it were permissible, i have no doubt that litigants whose cases have been granted cert could easily charge for the opportunity to be represented.

      1. Noscitur,
        While I don’t disagree with anything you wrote; are you making a factual statement that, when the Sup. Ct appoints you to a case like this, you know going in that you will NOT receive compensation?

        Are people/groups favorable to your side (ie, the party you’ve been appointed to represent) allowed to pay you out of their own pocket? Or is that not done, for something something historical/tradition reason?

        How common is this? Does SCOTUS do this at least once a term? Or is it much more common (or less common)?

        1. As far as I know, 1. There is no financial compensation involved and 2. It would be highly improper (and almost certainly illegal) for the litigants to provide any. Note that the conceit is that the litigants are “representing” the judgment below, not a party, and the nature of the appointment typically means that both parties want to see the amicus lose.

          Here’s a law review article with more information about the development of the practice:

          https://scholarship.law.cornell.edu/cgi/viewcontent.cgi?article=4708&context=clr

          1. That article is helpful and informative, although it doesn’t address the original question raised by sm811–how the invited amicus is compensated. In fact, the article points out (p. 1535 & n.10) that, unlike “ordinary amicus filers”, “[the Court’s] rules do not reference [invited amicus briefs]”.

            However, Rule 39 may somewhat illuminate the question because it deals with appointed counsel in a related context–for parties proceeding under IFP status. Rule 39.6 provides that “[t]he Clerk [] will reimburse appointed counsel for any necessary travel expenses to Washington, D. C., and return in connection with [oral] argument.” But even that rule is silent on compensation for preparing the brief itself. So if even pro bono counsel for indigent parties aren’t provided a stipend, then it would seem to follow that neither are invited amici.

            I’ve also seen other evidence that invited amici must rely on their own resources. The article at one point references another article on invited amici from a few years prior. While that earlier article doesn’t actually address the question at hand squarely either, it does have one useful nugget. In a passage (p. 935 & n.157) discussing an instance where the Court appointed counsel as amicus, there is a quotation from a document seemingly indicating that counsel “[we]re willing to prepare a brief and to participate in oral argument at their own expense”.

            http://www.stanfordlawreview.org/wp-content/uploads/sites/3/2011/04/Goldman-63_Stan._L._Rev._907.pdf

            All the above is also consistent with two actual examples of invited amicus briefs in recent years. First, in 2013, Prof. Vicki Jackson at Harvard was appointed amicus in U.S. v. Windsor. That’s especially relevant because it involves appointing a law professor, just like Prof. Nielson here. Although I won’t provide a link (it’s easy to find), the brief doesn’t say anything on the funding topic. Interestingly too, it does reflect that Prof. Jackson had some high-powered support from the folks at Akin Gump, including the now-Judge Millett of the DC Circuit. The takeaway here would seem to be this was all (both Prof. J. and AG) done with self-funding. Second, in Culbertson v. Berryhill (again, you can easily get the brief on the SCOTUS website), the Court appointed a solo practitioner in Atlanta. That’s particularly relevant to sm811’s comment about potentially “go[ing] for 3 months with no income” while working on the brief. But like the first example, there was no indication that any funding was provided.

            So in the end, I completely agree with Nas’s point 1 that no compensation seems to be provided. Of course, Prof. Nielson has a salaried, tenured (I assume on the latter aspect) position at a law school also with presumably research assistants etc. at his disposal for side projects like this, so I don’t see it as being all that much of a hardship to do the work. Especially considering the “soft” benefits of recognition and prestige. And it doesn’t seem like it was a hardship in the past example of Prof. Jackson in Windsor. Likewise, even for the Atlanta solo practitioner in Culbertson, she somehow managed to pull it off without experiencing financial collapse in the process. That makes sense too. Even when preparing a brief that can take 100, or multiple 100s of hours (although I tend to question sm811’s suggestion of 1000s of hours, unless you’re really inefficient!), competent lawyers are capable of doing other work concurrently, particularly when it’s something like an appellate brief where the work is spread out over time. I would also think anyone with the chops to be invited as amicus in the first place would be especially well-suited to handle such multitasking.

            Finally, to Nas’s point 2, why is it improper/illegal–putting aside whether it would ever actually happen in practice, as noted–for the parties to fund the brief? SCOTUS Rule 37.6 speaks to that specific point and only requires disclosing such funding, but it doesn’t prohibit it altogether. Of course, one might say the disclosure requirement itself is meant to act as a deterrent, but again, it’s not as strong a deterrent as an outright ban.

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