Federal Court Holds FHFA Unconstitutional

A divided panel of the U.S. Court of Appeals for the Fifth Circuit concludes that the Federal Housing Finance Agency violates the separation of powers.


Today the U.S. Court of Appeals for the Fifth Circuit issued its opinion in Collins v. Mnuchin, in which a divided panel, in a per curiam opinion, concluded that the Federal Housing Finance Agency (FHFA) is unconstitutional.

The panel consisted of Chief Judge Carl Stewart and Judges Catharina Haynes and Don Willett. Judge Haynes joined the opinion for the court in its entirety. Chief Judge Stewart agreed with the opinion's conclusion that the FHFA's actions were authorized by statute, but dissented on the constitutional holding. Judge Willett disagreed on the statutory holding, but joined the panel opinion's conclusion that the FHFA is unconstitutional.

Here is how the per curiam opinion for the court begins:

A decade ago, the United States was engulfed in perhaps the worst financial crisis since the Great Depression. Toxic mortgage debt had poisoned the global financial system. Hoping to reverse a national housing-market meltdown, Congress passed the Housing and Economic Recovery Act of 2008 ("HERA"), Pub. L. No. 110-289, 122 Stat. 2654 (codified in various sections of 12 U.S.C.). Among other things, HERA created a new independent federal entity—the Federal Housing Finance Agency ("FHFA")—to oversee two of the nation's largest financial companies, government-chartered mainstays of the U.S. mortgage market: the Federal National Mortgage Association ("Fannie Mae") and the Federal Home Loan Mortgage Corporation ("Freddie Mac").

Since their inception, these twin mortgage-finance giants have always been government-sponsored entities ("GSEs"). But Fannie and Freddie are also private corporations with private stockholders, and many investors are disenchanted with the Federal Government's management. This case is the latest in a series of shareholder challenges to an agreement between the FHFA, as conservator to Fannie and Freddie, and the Treasury Department. Under the 2012 agreement, Treasury provided billions of taxpayer dollars in capital. In exchange, Fannie and Freddie were required to pay Treasury quarterly dividends equal to their entire net worth. This exchange is known as the "net worth sweep," and aggrieved investors are unhappy with the bailout terms.

Plaintiffs–Appellants Patrick J. Collins, Marcus J. Liotta, and William M. Hitchcock (collectively "Shareholders") are Fannie Mae and Freddie Mac shareholders. They sued the FHFA and its Director, as well as Treasury and its Secretary, arguing that the agreement rendered their shares valueless. They contend that Treasury and the FHFA (collectively the "Agencies") exceeded their statutory authority under HERA and that the agreement was arbitrary and capricious under the Administrative Procedure Act, 5 U.S.C. § 706(2)(A) ("APA"). They also claim that the FHFA is unconstitutionally structured in violation of Article II, §§ 1 and 3 of the Constitution because, among other things, the agency is headed by a single Director removable only for cause, does not depend on congressional appropriations, and evades meaningful judicial review. The district court dismissed the Shareholders' statutory claims and granted summary judgment in favor of the Agencies on the constitutional claim.

Because we find that the FHFA acted within its statutory authority by adopting the net worth sweep, we hold that the Shareholders' APA claims are barred by § 4617(f). But we also find that the FHFA is unconstitutionally structured and violates the separation of powers. Accordingly, we AFFIRM in part and REVERSE in part.

Chief Judge Stewart's opinion begins:

The constitutional issue presented by the Shareholders—whether the FHFA's structure impermissibly inhibits the President's ability to oversee and remove the Director consistent with his Article II obligation to "take care that the laws are faithfully executed"—does not lend itself to a clear-cut answer. As the panel majority's opinion states, Congress may mix and match a number of "features of independence" when crafting an independent agency's internal structure, subject of course to constitutional limitations set both within the Constitution's text and by Supreme Court precedent. These features include: placing formal constraints on the President's removal power through the use of "for-cause" removal restrictions, establishing a multimember leadership structure, subjecting agency heads to fixed terms of service, mandating that an agency be composed of a bipartisan leadership team, exempting the agency from the standard appropriations process, and granting the agency unilateral litigation authority. See P.C. Opn. at pg. 28; see also Free Enter. Fund v. Pub. Co. Accounting Oversight Bd, 561 U.S. 477, 588 app. D (2010) (Breyer, J., dissenting). And Congress has used these features in several different combinations. Importantly, neither the presence nor absence of any given feature is dispositive of the agency's viability under Articles I and II and separation-of-powers principles.

The Supreme Court's Article II removal precedent, although sparse, has only rejected Congress's attempts to fashion independent agencies on two occasions. The first was in Myers v. United States, 272 U.S. 52, 60 (1926), in which Congress attempted to simultaneously limit the President's removal power and increase its own authority over the agency by conditioning the President's removal power on the Senate's advice and consent. This form of appropriation and aggrandizement was deemed violative of the Constitution's separation of powers. The second was in Free Enterprise Fund, which presented an "extreme variation on the traditional good-cause removal standard" by doubly insulating members of Public Company Accounting Oversight Board with two layers of for-cause removal protection. PHH Corp. v. Consumer Fin. Prot. Bureau, 881 F.3d 75, 89 (D.C. Cir. 2018) (en banc). These cases and others within the Supreme Court's body of Presidential removalpower precedent establish, as the panel majority explains, that Congress's use and construction of independent agencies is subject to constitutional limitations, the outer boundary of which is the President's domestic executive authority under Article II.

Notwithstanding my agreement with this fundamental principle of law, I conclude that the FHFA's structure does not reach that boundary and therefore does not impinge on the President's oversight and removal authority. My reasoning substantially mirrors that of the D.C. Circuit's en banc majority opinion in PHH Corporation, which concluded that the CFPB's similar structure does not exceed constitutional constraints on the agency's makeup. Thus, and for reasons expressed by the en banc majority in PHH Corporation, I respectfully dissent from the panel majority opinion's conclusion that the FHFA's structure unconstitutionally restricts the President's removal power under Article II.

Judge Willett's opinion begins:

Desperate times breed desperate measures. Exhibit A is the Housing and Economic Recovery Act of 2008 ("HERA"), enacted after the United States housing bubble burst and triggered a massive mortgage-security and generalcredit crisis. Nobody disputes that Congress created the Federal Housing Finance Authority ("FHFA") amid a dire financial calamity. The situation, both domestic and international, was grim and worsening quickly:

• housing market—melting down
• national economy—circling the drain
• global financial system—teetering on collapse

The FHFA was cast as a silver bullet, a super-agency endowed with farreaching regulatory authority to stanch the bleeding and to restore liquidity to the U.S. housing and financial markets.

But contrary to how other federal courts have so far ruled on this issue (including this court's opinion today), Congress did not vest the FHFA with unbounded, unreviewable power. The FHFA—like any agency—is restrained by the four corners of its enabling statute: "An agency literally has no power to act . . . unless and until Congress confers power upon it." Every agency requires a defined statutory basis for its actions. Absent a valid delegation of authority, an agency's actions are dubious at best, and contrary to bedrock constitutional principles at worst. Exigency does not justify conferring nighunchecked power on an agency insulated from judicial review. Expedience does not license omnipotence.

This case concerns whether the net worth sweep falls within the scope of the FHFA's statutory authority as conservator. To answer the question before us, we need only look to HERA's plain text. And it is our duty to ensure that the FHFA operates squarely within the bounds of its statutory authority.

Regrettably, the majority opinion does otherwise. The upshot is a lucrative limbo: Mortgage-finance giants Fannie Mae and Freddie Mac are forever trapped in a zombie-like trance as wards of the state, bled of their profits quarter after quarter in perpetuity. In rejecting the Shareholders' statutory claims, the majority opinion embraces the views of our sister circuits, adopting "the same well-reasoned basis common to those courts' opinions." But what the majority opinion finds convincing, I find confounding.

With respect I dissent.

We can expect a petition for rehearing en banc or a petition for certiorari to follow in due course.

NEXT: Judge Kavanaugh and the Administrative State

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  1. Interesting that two judges on a three judge panel dissent (I am aware that one is only partial but the language of two quoted passages doesn’t make that clear).

    1. Yeah, that took me a while to puzzle out, too. I finally had to frame it out as a logic problem. The court was asked to answer to independent questions. The votes in the panel were 2 for A, 1 for not-A and 1 for B, 2 for not-B. Thus, the final decision had to be A and not-B.

      Looking in detail, judge 1 also thought A and not-B so he “joined” the opinion in full (but apparently he didn’t write it?). Judge 2 thought A and B and judge 3 thought not-A and not-B so they both agreed in part and dissented in part, though different parts for each.

      The thing I still can’t figure out is why, if the agency is unconstitutional (not-B), the question of statutory compliance (A) got reached at all. Why didn’t “the FHFA is unconstitutional” end the matter?

      1. For your last question, it has to do with the order federal courts address matters. They will avoid answering a question of constitutionality if some other avenue of getting rid of the case suffices.

        Here if the panel had agreed that the agency overstepped they wouldn’t need to address FHFA’s constitutionality at all. I do think that’s backwards but it is the way things are.

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  2. I have to say that I agree with Judge Willet’s opinion on one part. The fact that a federal agency demanded a total dividend in perpetuity is concerning.

    This seems to be more of a takings clause problem. The shareholders will never see another dime so long as this agreement, created and enforced by government law, is in placed. Thus, as any person who has taken finance 101 knows, this means that their calculated value is $0. With this agreement, the government took all of the value of the shares.

    In fact, I question how this is not a writ of attainder.

    1. My own reaction when I heard of it at the time.

      Also, IIRC, the 2012 agreement was agreed to under threat of abusive regulatory action, coerced, not freely entered into.

      I don’t think a writ of attainder is a good fit, though; But a taking? Absolutely.

      1. What was the fair market value of ownership of Fannie Mae and Freddie Mac at the time of the financial crisis? Takings for public use are authorized by the Constitution, provided just compensation is provided. Does this constitute a public use? How much compensation is due to shareholders of companies with a highly negative net worth in this particular circumstance?

        1. Based on the data at the time, Fannie Mae was valued at $7.04 per share and Freddie Mac at $5.10 per share.

          How much compensation is due to shareholders of companies with a highly negative net worth in this particular circumstance?

          Given that neither Fannie nor Freddie had a negative net worth, I don’t see why this is relevant.

          1. Would a court accept the historical share prices as the actual value of those entities? The traders willing to pay those prices may have assumed the government would give the shareholders a better deal despite the two institutions having an actual negative net worth (once risks are also priced) or may have had incomplete information on the up to date value of the assets held by them.

  3. The key constitutional question is, can you pronounce FHFA as “foofaw”?

    1. I think the H is silent. “fuffa”? As in, the panhandler asking if you can spare money fo-fo-fo-a meal?

      1. Liquid lunches for the win.

        1. XXX BZZT

          Sorry, you forgot to word your answer in the form of a question.

  4. “We can expect a petition for rehearing en banc or a petition for certiorari to follow in due course.”

    I wonder if there is any chance the administration won’t? Leaving this intact would be big blow to the regulatory state.

    1. Can’t the plaintiffs appeal the negative holding on the statutory point? Or is that mooted by the constitutional holding.

      Also, is this one of the circuits where the non-panel judges can move sua sponte to rehear en banc?

  5. “mandating that an agency be composed of a bipartisan leadership team”

    I don’t believe that The Constitution enshrines our two-party system.

    Suppose we made a leadership team with members from two parties, but neither of those parties was Republican or Democrat? Does that satisfy the restriction?

    In short, I’m objecting to the word “bipartisan” in constitutional discussions.

  6. HUD nor the federal involvement of Freddie and Fannie exist.

    1. As a policy matter or as a Constitutional matter?

  7. Federal Housing Finance Agency (“FHFA”)?to oversee two of the nation’s largest financial companies, government-chartered mainstays of the U.S. mortgage market: the Federal National Mortgage Association (“Fannie Mae”) and the Federal Home Loan Mortgage Corporation (“Freddie Mac”).

    Exactly what is the Constitutional authority for the existence of ANY of those agencies?

    1. Here’s your answer (from the per curiam opinion):

      Congress may establish independent agencies as “necessary and proper” in order to exercise its enumerated powers. But whatever Congress finds “necessary and proper” must be consistent with Constitution’s “letter and spirit.” Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 537 (2012) (quoting McCulloch v. Maryland, 4 Wheat. 316, 421 (1819)). . . .

      1. But whatever Congress finds “necessary and proper” must be consistent with Constitution’s “letter and spirit.”

        Not saying that isn’t a fair representation of what is in the case you cite, but could you provide a bit more of the quote, in context? Reason I ask is, the way you put it suggests that the Court narrowed Marshall’s interpretation of the necessary and proper clause, without providing specificity as to how much it was narrowed, or what tests now determine what falls outside the new boundaries. I’m wondering if that is really what happened, and if so, why it doesn’t come up all the time?

        To make my question clearer, isn’t Marshall’s interpretation that the test is whether the ends sought fall within the enumerated powers delegated to Congress? And if that is the case, then all necessary and proper means which do not actually contravene specific Constitutional provisions are permitted. The bit about the Constitution’s “spirit,” doesn’t sound like Marshall to me. Have I overlooked something?

  8. Does Judge Willett _really_ not hyphenate “farreaching” and “nighunchecked”?! I feel ill.

  9. Does Judge Willett _really_ not hyphenate “farreaching” and “nighunchecked”?! I feel ill.

    1. I swear I only clicked once!

  10. I have a question – and please be gentle, I’m not a lawyer. I read through the entire opinion (really) and they struck the “removal only for cause” language from HERA and left the remainder of the legislation intact. Does this mean that President Trump could fire FHFA Director Mel Watt tomorrow? In a week? Only if the decision isn’t appealed? I have no idea what those latin phrases mean.

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