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file://NoURLProvided[7/28/2021 12:36:49 PM]1 (Slip Opinion) OCTOBER TERM, 2020

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. 

## SUPREME COURT OF THE UNITED STATES

Syllabus

COLLINS ET AL

. v. YELLEN, SECRETARY OF THE TREASURY, ET AL

.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 19–422. Argued December 9, 2020—Decided June 23, 2021*
When the national housing bubble burst in 2008, the Federal National

Mortgage Association (Fannie Mae) and the Federal Home Loan Mort

gage Corporation (Freddie Mac), two of the Nation’s leading sources of mortgage financing, suffered significant losses that many feared would imperil the national economy. To address that concern, Congress en

acted the Housing and Economic Reco very Act of 2008 (Recovery Act), which, among other things, creat ed the Federal Housing Finance Agency (FHFA)—an independent agen cy tasked with regulating the companies and, if necessary, stepping in as their conservator or re

ceiver. See 12 U. S. C. §4501 et seq. At the head of the Agency, Con

gress installed a single Director, re movable by the Pres ident only “for cause.” §§4512(a), (b)(2). Soon after the FHFA’s creation, the Director placed Fannie Mae and Freddie Mac into conservatorship and negotiated agreements for the companies with the Department of Treasury. Under those agree

ments, Treasury committed to providing each company with up to $100 billion in capital, and in exchange received, among other things, senior preferred shares and quarterly fixed-ra te dividends. In the years that followed, the agencies agreed to a number of amendments, the third of which replaced the fixed-rate divi dend formula with a variable one that required the companies to make quarterly payments consisting of their entire net worth minus a small specified capital reserve.

A group of the companies’ shareholders challenged the third amend

-

——————

* Together with No. 19–563, Yellen, Secretary of the Treasury, et al. v. Collins et al. , also on certiorari to the same court.2 COLLINS v. YELLEN

Syllabus
ment on both statutory grounds—th at the FHFA exceeded its author

ity as a conservator under the Recovery Act by agreeing to the new variable dividend formula—and constitutional grounds—that the FHFA’s structure violates the se paration of powers because the Agency is led by a single Director, removable by the Pr esident only for cause. The District Court dismis sed the statutory claim and granted summary judgment in the FHFA’s favo r on the constitutional claim. The Fifth Circuit reversed the District Court’s dismissal of the statu

tory claim, held that the FHFA’s st ructure violates the separation of powers, and concluded that the appr opriate remedy for the constitu

tional violation was to sever the re moval restriction from the rest of the Recovery Act, but not to vacate and set aside th e third amendment.
Held : 1. The shareholders’ statutory claim must be dismissed. The “anti

injunction clause” of the Recovery Act provides that unless review is specifically author ized by one of its provisio ns or is requested by the Director, “no court may take any action to restrain or affect the exer

cise of powers or functions of th e Agency as a conservator or a re

ceiver.” §4617(f). Where, as here , the FHFA’s challenged actions did not exceed its “powers or functions” “as a conser vator,” relief is prohib

ited. Pp. 12–17. (a) The Recovery Act grants th e FHFA expansive authority in its role as a conservator and permits the Agency to act in what it deter

mines is “in the best interests of the regulated entity or the Agency .” §4617(b)(2)(J)(ii) (emphasis added). So when the FHFA acts as a con

servator, it may aim to rehabilitate the regulated entity in a way that, while not in the best interests of th e regulated entity, is beneficial to the Agency and, by extens ion, the public it serves . This feature of an FHFA conservatorship is fatal to th e shareholders’ statutory claim. The third amendment was adopted at a time when the companies had repeatedly been unable to make their fixed quarterly dividend pay

ments without drawing on Treasury’s capital commitment. If things had proceeded as they had in the pa st, there was a possibility that the companies would have consumed some or all of the remaining capital commitment in order to pay their dividend obligations. The third amendment’s variable dividend formula eliminated that risk, and in turn ensured that all of Treasury’s capital was available to backstop the companies’ operations during difficult quarters. Although the third amendment required the companies to relinquish nearly all of their net worth, the FHFA could have reasonably concluded that this course of action was in the best interests of members of the public who rely on a stable secondary mortgage market. Pp. 13–15. (b) The shareholders argue that the third amendment did not ac

tually serve the best interests of th e FHFA or the public because it did3 Cite as: 594 U. S. ____ (2021)

Syllabus

not further the asserted objective of protecting Treasury’s capital com

mitment. First, they claim that the FHFA agreed to the amendment at a time when the companies were on the precipice of a financial up

tick which would have allowed them to pay their cash dividends and build up capital buffers to absorb future losses. Thus, the shareholders assert, sweeping all the companies’ earnings to Treasury increased ra

ther than decreased the risk that the companies would make further draws and eventually deplete Treasury’s commitment. But the suc

cess of the strategy that the sharehol ders tout was dependent on spec

ulative projections about future ea rnings, and recent experience had given the FHFA reasons for caution. The nature of the conserva

torship authorized by the Recovery Act permitted the Agency to reject the shareholders’ suggested strategy in favor of one that the Agency reasonably viewed as more certain to ensure market stability. Second, the shareholders claim that the FHFA could have protected Treasury’s capital commitment by ordering the companies to pay the dividends in kind rather than in cash. This argument rests on a misunderstanding of the agreement between the compan ies and Treasury. Paying Treas

ury in kind would not have satisfied the cash dividend obligation; it would only have delayed that obligat ion, as well as the risk that the companies’ cash dividend obligations would consume Treasury’s capi

tal commitment. Choosing to forgo th is option in favor of one that eliminated the risk entirely was no t in excess of the FHFA’s authority as a conservator. Finally, the shareholders argue that because the third amendment left the companies unable to build capital reserves and exit conservatorship, it is best viewed as a step toward liquidation, which the FHFA lacked the authority to take without first placing the companies in receivership . This characterization is inaccurate. Noth

ing about the third amendment prec luded the companies from operat

ing at full steam in the marketplace, and all available evidence sug

gests that they did. The companies were not in the process of winding down their affairs. Pp. 15–17.

2. The Recovery Act’s restriction on the President’s power to remove the FHFA Director, 12 U. S. C. § 4512(b)(2), is unconstitutional. Pp. 17–36. (a) The threshold issues raised in the lower court or by the federal parties and appointed amicus do not bar a decision on the merits of the shareholders’ constitutional claim. Pp. 17–26. (i) The shareholders have stan ding to bring their constitutional claim. See Lujan v. Defenders of Wildlife, 504 U. S. 555, 560–561. First, the shareholders assert that the FHFA transferred the value of their property rights in Fannie Ma e and Freddie Mac to Treasury, and that sort of pocketbook injury is a prototypical form of injury in fact. See Czyzewski v. Jevic Holding Corp. , 580 U. S. ___, ___. Second, the4 COLLINS v. YELLEN

Syllabus
shareholders’ injury is traceable to the FHFA’s adoption and imple

mentation of the third amendment, which is responsible for the varia

ble dividend formula. For purposes of traceability, the relevant in

quiry is whether the plaintiffs’ in jury can be traced to “allegedly unlawful conduct” of the defendant, not to the provision of law that is challenged. Allen v. Wright , 468 U. S. 737, 751. Finally, a decision in the shareholders’ favor could easily lead to the award of at least some of the relief that the shareholders seek. Pp. 17–19. (ii) The shareholders’ constitu tional claim is not moot. After oral argument was held in this case, the FHFA and Treasury agreed to amend the stock purch asing agreements for a fourth time. That amendment eliminated the variable di vidend formula that caused the shareholders’ injury. As a result, th e shareholders no longer have any ground for prospective relief, but they retain an interest in the retro

spective relief they have requested. That interest saves their consti

tutional claim from mootness. P. 19. (iii) The shareholders’ constitu tional claim is not barred by the Recovery Act’s “succession clause.” §4617(b)(2)(A)(i). That clause ef

fects only a limited tran sfer of stockholders’ rights, namely, the rights they hold “with respect to the regulated entity” and its assets. Ibid. Here, by contrast, the shareholders assert a right that they hold in common with all other citizens who have standing to challenge the re

moval restriction. The succession clau se therefore does not transfer to the FHFA the constitutional right at issue. Pp. 20–21. (iv) The shareholders’ constitu tional challenge can proceed even though the FHFA was led by an Acti ng Director, as opposed to a Senate-confirmed Director, at the time the third amendment was adopted. The harm allegedly caused by the th ird amendment did not come to an end during the tenure of the Acting Director who was in office when the amendment was adopted. Rather , that harm is alleged to have continued after the Acting Director was replaced by a succession of confirmed Directors, and it appears th at any one of those officers could have renegotiated the companies’ dividend formula with Treasury. Because confirmed Directors chose to continue implementing the third amendment while insulated from plen ary Presidential control, the sur

vival of the shareholders’ constitutional claim does not depend on the answer to the question whether the Recovery Act restricted the re

moval of an Acting Director. The an swer to that question could, how

ever, have a bearing on the scope of relief that may be awarded to the shareholders. If the statute does no t restrict the removal of an Acting Director, any harm resulting from actions taken under an Acting Di

rector would not be attributable to a constitutional violation. Only harm caused by a confirmed Direct or’s implementation of the third amendment could then provide a basis for relief. In the Recovery Act,5 Cite as: 594 U. S. ____ (2021)

Syllabus

Congress expressly restricted the President’s power to remove a con

firmed Director but said nothing of the kind with respect to an Acting Director. When a statute does not limit the President’s power to re

move an agency head, the Court ge nerally presumes that the officer serves at the Presid ent’s pleasure. See Shurtleff v. United States , 189 U. S. 311, 316. Seeing no grounds for departing from that presumption here, the Court holds that the Recovery Act’s removal restriction does not extend to an Acting Director and proceeds to the merits of the shareholders’ constitutional argument. Pp. 21–26. (b) The Recovery Act’s for-cause restriction on the President’s re

moval authority violates the separation of powers. In Seila Law LLC

v. Consumer Financial Protection Bureau , 591 U. S. ___, the Court held that Congress could not limit th e President’s power to remove the Director of the Consumer Financia l Protection Bureau (CFPB) to in

stances of “inefficiency, ne glect, or malfeasance.” Id. , at ___. In so holding, the Court observed that th e CFPB, an independent agency led by a single Director, “lacks a foundation in historical practice and clashes with constitutional structure by concentrating power in a uni

lateral actor insulated from Presidential control.” Id., at ___–___. A straightforward application of Seila Law ’s reasoning dictates the re

sult here. The FHFA (like the CFPB) is an agency led by a single Di

rector, and the Recovery Act (like the Dodd-Frank Act) restricts the President’s removal power. Th e distinctions Court-appointed amicus draws between the FHFA and the CFPB are insufficient to justify a different result. First, amicus argues that Congress should have greater leeway to restrict the President’s power to remove the FHFA Director because the FHFA’s authority is more limited than that of the CFPB. But the nature and breadth ofan agency’s authority is not dispositive in determining whether Congress may limit the President’s power to remove its head. Moreover, the test that amicus proposes would lead to severe practical proble ms. Courts are not well-suited to weigh the relative importance of the regulatory and enforcement au

thority of disparate agencies. Second, amicus contends that Congress may restrict the removal of the FHFA Director because when the Agency steps into the shoes of a regu lated entity as its conservator or receiver, it takes on the status of a private party and thus does not wield executive power. But the Agen cy does not always act in such a capacity, and even when it does, th e Agency must implement a federal statute and may exercise powers that differ critically from those of most conservators and receivers. Third, amicus asserts that the FHFA’s structure does not violate the separation of powers because the entities it regulates are Gove rnment-sponsored enterprises that have federal charters, serve public objectives, and receive special priv

ileges. This argument fails beca use the President’s removal power6 COLLINS v. YELLEN

Syllabus
serves important purposes regardle ss of whether the agency in ques

tion affects ordinary Americans by directly regulating them or by tak

ing actions that have a profound but indirect effect on their lives. Fi

nally, amicus contends that there is no co nstitutional problem in this case because the Recovery Act offers only “modest” te nure protection. But the Constitution prohibits even “modest restrictions” on the Pres

ident’s power to remove the head of an agency with a single top officer. Id. , at ___. Pp. 26–32.

(c) The shareholders seek an or der setting aside the third amend

ment and requiring that all dividend payments made pursuant to that amendment be returned to Fannie Mae and Freddie Mac. In support of this request, they contend th at the third amendment was adopted and implemented by officers who la cked constitutional authority and that their actions were therefore void ab initio . This argument is nei

ther logical nor supported by preced ent. All the officers who headed the FHFA during the time in question were properly appointed . There is no basis for concluding that any head of the FHFA lacked the au

thority to carry out the functions of the office or that actions taken by the FHFA in relation to the third amendment are void. That does not necessarily mean, however, that the shareholders have no entitlement to retrospective relief. Although an unconstitutional provision is never really part of the body of governing law, it is still possible for an un

constitutional provision to inflic t compensable harm. The possibility that the unconstitutional restrictio n on the President’s power to re

move a Director of the FHFA could have such an effect cannot be ruled out. The parties’ argu ments on this point shou ld be resolved in the first instance by the lower courts. Pp. 32–36. 938 F. 3d 553, affirmed in part, reversed in part, vacated in part, and

remanded.

A LITO , J., delivered the opinion of the Court, in which R OBERTS , C. J., and T HOMAS , K AVANAUGH , and B ARRETT , JJ., joined in full; in which K A

GAN and B REYER , JJ., joined as to all bu t Part III–B; in which G ORSUCH , J., joined as to all but Part III–C; and in which S OTOMAYOR , J., joined as to Parts I, II, and III–C. T HOMAS , J., filed a concurring opinion. K AGAN , J., filed an opinion concurring in part and concurring in the judgment, in which B REYER and S OTOMAYOR , JJ., joined as to Part II. G ORSUCH , J., filed an opinion concurring in part. S OTOMAYOR , J., filed an opinion con

curring in part and dissent ing in part, in which B REYER , J., joined._________________

_________________ 1 Cite as: 594 U. S. ____ (2021)

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Wash

ington, D. C. 20543, of any typographical or other form al errors, in order that corrections may be made before the preliminary print goes to press. 

## SUPREME COURT OF THE UNITED STATES

Nos. 19–422 and 19–563

PATRICK J. COLLINS, ET AL ., PETITIONERS 19–422 v. JANET L. YELLEN, SECRETARY OF THE TREASURY, ET AL

.

JANET L. YELLEN, SECRETARY OF THE TREASURY,
ET AL ., PETITIONERS 19–563 v. PATRICK J. COLLINS, ET AL

.
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
[June 23, 2021]

J USTICE A LITO delivered the opinion of the Court.
Fannie Mae and Freddie Mac are two of the Nation’s leading sources of mortgage financing. When the housing crisis hit in 2008, the companies suffered significant losses, and many feared that their troubling financial condition would imperil the national economy. To address that con

cern, Congress enacted the Housing and Economic Recov

ery Act of 2008 (Recovery Act), 122 Stat. 2654, 12 U. S. C. §4501 et seq. Among other things, that law created the Fed

eral Housing Finance Agency (FHFA), “an independent agency” tasked with regulating the companies and, if nec

essary, stepping in as their conservator or receiver. §§4511, 4617. At its head, Congress installed a single Director, whom the President could remove only “for cause.”2 COLLINS v. YELLEN

Opinion of the Court §§4512(a), (b)(2). Shortly after the FHFA came into existence, it placed Fannie Mae and Freddie Mac into conservatorship and ne

gotiated agreements for the companies with the Depart

ment of Treasury. Under those agreements, Treasury com

mitted to providing each comp any with up to $100 billion in capital, and in exchange received, among other things, sen

ior preferred shares and quarte rly fixed-rate dividends. Four years later, the FHFA and Treasury amended the agreements and replaced the fixed-rate dividend formula with a variable one that required the companies to make quarterly payments consisting of their entire net worth mi

nus a small specified capital reserve. This deal, which the parties refer to as the “third amendment” or “net worth sweep,” caused the companies to transfer enormous amounts of wealth to Treasury. It also resulted in a slew of lawsuits, including the one before us today. A group of Fannie Mae’s and Freddie Mac’s shareholders challenged the third amendment on statutory and constitu

tional grounds. With respect to their statutory claim, the shareholders contended that the Agency exceeded its au

thority as a conservator under the Recovery Act when it agreed to a variable dividend formula that would transfer nearly all of the companies’ net worth to the Federal Gov

ernment. And with respect to their constitutional claim, the shareholders argued that the FHFA’s structure violates the separation of powers because the Agency is led by a sin

gle Director who may be removed by the President only “for cause.” §4512(b)(2). They so ught declaratory and injunc

tive relief, including an order requiring Treasury either to return the variable dividend pa yments or to re-characterize those payments as a pay down on Treasury’s investment. We hold that the shareholders’ statutory claim is barred by the Recovery Act, which prohibits courts from taking “any action to restrain or affe ct the exercise of [the] powers or functions of the Agency as a conservator.” §4617(f ). But3 Cite as: 594 U. S. ____ (2021)

Opinion of the Court we conclude that the FHFA’s structure violates the separa

tion of powers, and we remand for further proceedings to determine what remedy, if any, the shareholders are enti

tled to receive on their constitutional claim.

I A Congress created the Federa l National Mortgage Associ

ation (Fannie Mae) in 1938 and the Federal Home Loan Mortgage Corporation (Freddie Mac) in 1970 to support the Nation’s home mortgage system. See National Housing Act Amendments of 1938, 52 Stat. 23; Federal Home Loan Mortgage Corporation Act, 84 Stat. 451. The companies op

erate under congressional charters as for-profit corpora

tions owned by private shareholders. See Housing and Ur

ban Development Act of 1968, §801, 82 Stat. 536, 12 U. S. C. §1716b; Financial Institutions Reform, Recovery, and En

forcement Act of 1989, §731, 103 Stat. 429–436, note follow

ing 12 U. S. C. §1452. Their primary business is purchas

ing mortgages, pooling them into mortgage-backed securities, and selling them to investors. By doing so, the companies “relieve mortgage lend ers of the risk of default and free up their capital to make more loans,” Jacobs v. Federal Housing Finance Agcy . ( FHFA ), 908 F. 3d 884, 887 (CA3 2018), and this, in turn, increases the liquidity and stability of America’s home le nding market and promotes access to mortgage credit. By 2007, the companies’ mortgage portfolios had a com

bined value of approximately $5 trillion and accounted for almost half of the Nation’s mo rtgage market. So, when the housing bubble burst in 2008, the companies took a sizeable hit. In fact, they lost more that year than they had earned in the previous 37 years combined. See FHFA Office of In

spector General, Analysis of the 2012 Amendments to the Senior Preferred Stock Purchase Agreements 5 (Mar. 20, 2013), https://www.fhfaoig.g ov/Content/Files/WPR–2013 –4 COLLINS v. YELLEN

Opinion of the Court 002_2.pdf. Though they remained solvent, many feared the companies would eventually default and throw the housing market into a tailspin. To address that concern, Congress enacted the Recovery Act. Two aspects of that statute are relevant here. First, the Recovery Act authorized Treasury to purchase Fannie Mae’s and Freddie Mac’s st ock if it determined that infusing the companies with capital would protect taxpay

ers and be beneficial to the financial and mortgage markets. 12 U. S. C. §§1455( l )(1), 1719(g)(1). The statute further provided that Treasury’s purchasing authority would auto

matically expire at the end of the 2009 calendar year. §§1455( l )(4), 1719(g)(4). Second, the Recovery Act cr eated the FHFA to regulate the companies and, in certain specified circumstances, step in as their conservator or receiver. §§4502(20), 4511(b), 4617. 1 A few features of the Agency deserve mention. The FHFA is led by a single Director who is appointed by the President with the advice and consent of the Senate. §§4512(a), (b)(1). The Director serves a 5-year term but may be removed by the President “for cause.” §4512(b)(2). The Director is permitted to ch oose three deputies to assist in running the Agency’s various divisions, and the Director sits as Chairman of the Federal Housing Finance Oversight Board, which advises the Agency about matters of strategy and policy. §§4512(c)–(e), 4513a(a), (c)(4). Since its incep

tion, the FHFA has had three Senate-confirmed Directors, and in times of their absence, various Acting Directors have been selected to lead the Agency on an interim basis. See Rop v. FHFA , 485 F. Supp. 3d 900, 915 (WD Mich. 2020). The Agency is tasked with supervising nearly every as

-

——————

1 Before the Recovery Act was enac ted, Fannie Mae and Freddie Mac were regulated by the Office of Federal Housing Enterprise Oversight. See Federal Housing Enterprises Financial Safety and Soundness Act of 1992, §§1311–1313, 106 Stat. 3944–3946.5 Cite as: 594 U. S. ____ (2021)

Opinion of the Court pect of the companies’ management and operations. For ex

ample, the Agency must approv e any new products that the companies would like to offer. §4541(a). It may reject ac

quisitions and certain transfers of interests the companies seek to execute. §4513(a)(2)(A). It establishes criteria gov

erning the companies’ portfolio holdings. §4624(a). It may order the companies to dispose of or acquire any asset. §4624(c). It may impose caps on how much the companies compensate their executives and prohibit or limit golden parachute and indemnification payments. §4518. It may require the companies to subm it regular reports on their condition or “any other relevant topics.” §4514(a)(2). And it must conduct one on-site examination of the companies each year and may, on any terms the Director deems appro

priate, hire outside firms to perform additional reviews. §§4517(a)–(b), 4519. The statute empowers the Agency with broad investiga

tive and enforcement authority to ensure compliance with these standards. Among other things, the Agency may hold hearings, §§4582, 4633; issue subpoenas, §§4588(a)(3), 4641(a)(3); remove or suspend corporate officers, §4636a; is

sue cease-and-desist orders, §§4581, 4632; bring civil ac

tions in federal court, §§4584, 4635; and impose penalties ranging from $2,000 to $2 million per day, §§4514(c)(2), 4585, 4636(b). In addition to vesting the FHFA with these supervisory and enforcement powers, the Recovery Act authorizes the Agency to act as the companies ’ conservator or receiver for the purposes of reorganizing the companies, rehabilitating them, or winding down their affairs. §§4617(a)(1)–(2). The Director may appoint the Agency in either capacity if the companies meet certain specified benchmarks of financial risk or satisfy other criteria, §4617(a)(3), and once the Di

rector makes that appointment, the Agency succeeds to all of the rights, titles, powers, and privileges of the companies,6 COLLINS v. YELLEN

Opinion of the Court §4617(b)(2)(A)(i). 2 From there, the Agency has the author

ity to take control of the companies’ assets and operations, conduct business on their behalf, and transfer or sell any of their assets or liabilities. §§ 4617(b)(2)(B)–(C), (G). In per

forming these functions, the Agency may exercise whatever incidental powers it deems necessary, and it may take any authorized action that is in the best interests of the compa

nies or the Agency itself. §4617(b)(2)(J). Finally, the FHFA is not funded through the ordinary ap

propriations process. Rather, the Agency’s budget comes from the assessments it imposes on the entities it regulates, which include Fannie Mae, Freddie Mac, and the Nation’s federal home loan banks. §§4502(20), 4516(a). Those as

sessments are unlimited so long as they do not exceed the “reasonable costs . . . and expenses of the Agency.” §4516(a)

. In fiscal year 2020, the FHFA collected more than $311 million. See FHFA, Performance & Accountability Report 24 (2020), https://www.fhfa.gov/AboutUs/Reports/ ReportDocuments/FHFA-2020-PAR.pdf.

B In September 2008, less than two months after Congress enacted the Recovery Act, the Director appointed the FHFA as conservator of Fannie Mae and Freddie Mac. The follow

ing day, Treasury exercised its temporary authority to buy their stock and the FHFA, acti ng as the companies’ conser

vator, entered into purchasin g agreements with Treasury. 3 Under these agreements, Treasury committed to providing

——————

2 Receivership is mandatory in certain circumstances not relevant here. See 12 U. S. C. §4617(a)(4).

3 See Amended and Restated Senior Preferred Stock Purchase Agree

ment Between the United States De partment of the Treasury and the Federal National Mortgage Association (Sept. 26, 2008); Amended and Restated Senior Preferred Stoc k Purchase Agreement Between the United States Department of the Tr easury and the Federal Home Loan Mortgage Corporation (Sept. 26, 2008) (online sources archived at www.supremecourt.gov ).7 Cite as: 594 U. S. ____ (2021)

Opinion of the Court each company with up to $100 billion in capital, upon which it could draw in any quarter in which its liabilities exceeded its assets. In return for this funding commitment, Treasury received 1 million shares of specially created senior pre

ferred stock in each company. Those shares provided Treasury with four key entitle

ments. First, Treasury receiv ed a senior liquidation prefer

ence equal to $1 billion in each company, with a dollar-for

dollar increase every time the company drew on the capital commitment. In other words, in the event the FHFA liqui

dated Fannie Mae or Freddie Mac, Treasury would have the right to be paid back $1 billion, as well as whatever amount the company had already drawn from the capital commit

ment, before any other investors or shareholders could seek repayment. Second, Treasury was given warrants, or long

term options, to purchase up to 79.9% of the companies’ common stock at a nominal price. Third, Treasury became entitled to a quarterly periodic commitment fee, which the companies would pay to compensate Treasury for the sup

port provided by the ongoing access to capital. 4 And finally, the companies became obligated to pay Treasury quarterly cash dividends at an annualized rate equal to 10% of Treas

ury’s outstanding liquidation preference. Within a year, Fannie Mae’s and Freddie Mac’s net worth decreased substantially, and it became clear that Treas

ury’s initial capital commitment would prove inadequate. To address that problem, th e FHFA and Treasury twice amended the agreements to increase the available capital. The first amendment came in May 2009, when Treasury doubled its combined commitment from $200 billion to $400 billion. 5 And the second amendment was adopted in De

cember 2009, when Treasury agreed to provide as much

——————

4 Treasury has the authority to waive this fee. At the time this lawsuit was filed, Treasury had always exe rcised this option and had never re

ceived a periodic commitment fee fr om the companies. See App. 61.

5 See Amendment to Amended and Re stated Senior Preferred Stock8 COLLINS v. YELLEN

Opinion of the Court funding as the companies needed through 2012, after which the cap would be reinstated. 6 The companies drew sizeable amounts from Treasury’s capital commitment in the years that followed. And be

cause of the fixed-rate divide nd formula, the more money they drew, the larger their dividend obligations became. The companies consistently lacked the cash necessary to pay them, and they began the circular practice of drawing funds from Treasury’s capital commitment just to hand those funds back as a quarterly dividend. By the middle of 2012, the companies had drawn over $187 billion, and $26 billion of that was used to satisfy their dividend obligations. In August 2012, the FHFA and Treasury decided to amend the agreements for a third time. 7 This amendment replaced the fixed-rate dividend formula (which was tied to the size of Treasury’s investment) with a variable dividend formula (which was tied to the companies’ net worth). Un

der the new formula, the compani es were required to pay a dividend equal to the amount, if any, by which their net

—————— Purchase Agreement Between the Un ited States Department of the Treasury and Federal National Mortgage Association (May 6, 2009); Amendment to Amended and Restated Senior Preferred Stock Purchase Agreement Between the Un ited States Department of the Treasury and Federal Home Loan Mortgage Corporation (May 6, 2009) (online sources archived at www.supremecourt.gov).

6 See Second Amendment to Amended and Restated Senior Preferred Stock Purchase Agreement Between the United St ates Department of the Treasury and Federal National Mortgage Association (Dec. 24, 2009); Second Amendment to Amended and Restated Senior Preferred Stock Purchase Agreement Between the Un ited States Department of the Treasury and Federal Home Loan Mortgage Corporation (Dec. 24, 2009) (online sources archived at www.supremecourt.gov).

7 See Third Amendment to Amended and Restated Senior Preferred Stock Purchase Agreemen t Between the United St ate Department of the Treasury and Federal National Mortgage Association (Aug. 17, 2012); Third Amendment to Amended and Re stated Senior Preferred Stock Purchase Agreement Between the Un ited States Department of the Treasury and Federal Home Loan Mortgage Corporation (Aug. 17, 2012) (online sources archived at www.supremecourt.gov).9 Cite as: 594 U. S. ____ (2021)

Opinion of the Court worth exceeded a pre-determined capital reserve. 8 In addi

tion, the amendment suspended the companies’ obligations to pay periodic commitment fees. Shifting from a fixed-rate dividend formula to a variable one materially changed the nat ure of the agreements. If the net worth of Fannie Mae or Freddie Mac at the end of a quarter exceeded the capital reserve, the amendment re

quired the company to pay all of the surplus to Treasury. But if a company’s net worth at the end of a quarter did not exceed the reserve or if it lo st money during a quarter, the amendment did not require the company to pay anything. This ensured that Fannie Mae and Freddie Mac would never again draw money from Treasury just to make their quarterly dividend payments, but it also meant that the companies would not be able to accrue capital in good quar

ters. After the third amendment took effect, the companies’ fi

nancial condition improved, and they ended up transferring immense amounts of wealth to Treasury. In 2013, the com

panies paid a total of $130 billion in dividends. In 2014, they paid over $40 billion. In 2015, they paid almost $16 billion. And in 2016, they paid almost $15 billion. 9 These payments totaled approximately $200 billion, which is at

——————

8 The capital reserve for each company began at $3 billion and was scheduled to decrease to zero by January 2018. In December 2017, how

ever, Treasury agreed to restore th e reserve to $3 billion per company in return for a liquidation-preference in crease of the same amount. See Letters from S. Mnuchin, Secretary of Treasury, to M. Watt, Director of the FHFA (Dec. 21, 2017). And in September 2019, Treasury agreed to raise the reserve to $25 billion for Fannie Mae and $20 billion for Freddie Mac, again in return for corresponding increases in the liquidation pref

erence. See Letters from S. Mnuchin, Secretary of Treasury, to M. Ca

labria, Director of the FHFA (Sept. 27, 2019) (online sources archived at www.supremecourt.gov ).

9 See Fannie Mae, Form 10–K for Fiscal Year Ended Dec. 31, 2016, p. 120, https://www.fanniemae.com/med ia/26811/display; Freddie Mac, Form 10–K for Fiscal Year Ended Dec. 31, 2016, p. 283, https://www

. freddiemac.com/investors/financials/pdf/10k_021617.pdf

.10 COLLINS v. YELLEN

Opinion of the Court least $124 billion more than the companies would have had to pay during those four years under the fixed-rate dividend formula that previously applied. The third amendment stayed in place for another four years. In January 2021, the FHFA and Treasury amended the stock purchasing agreements for a fourth time. 10 This amendment, which is currently in place, suspends the com

panies’ quarterly dividend payments until they build up enough capital to meet certain specified thresholds, a pro

cess that we are told is expecte d to take years. See Letter from E. Prelogar, Acting Solicitor General, to S. Harris, Clerk of Court (Mar. 18, 2021). During that time, each com

pany is required to pay Trea sury through increases in the liquidation preference that are equal to the increase, if any, in its net worth during the previous fiscal year. Once that threshold is met, the company will resume quarterly divi

dend payments, and those dividends will be equal to the lesser of 10% of Treasury’s liquidation preference or the in

cremental increase in the company’s net worth in the pre

vious quarter. In addition, the company will be required to pay periodic commitment fees.

C In 2016, three of Fannie Mae’s and Freddie Mac’s share

holders brought suit against the FHFA and its Director, and they asserted two claims that are relevant for present purposes. First, they claimed that the FHFA exceeded its statutory authority as the companies’ conservator by adopt

ing the third amendment. Second, they asserted that be

cause the FHFA is led by a single Director who may be re

moved by the President only “for cause,” its structure is unconstitutional. They asked for various forms of equitable

——————

10 See Letters from S. Mnuchin, Secret ary of Treasury, to M. Calabria, Director of the FHFA (Jan. 14, 2021) (online source archived at www.su

premecourt.gov ).11 Cite as: 594 U. S. ____ (2021)

Opinion of the Court relief, including a declaration that the third amendment vi

olated the Recovery Act and that the FHFA’s structure is unconstitutional; an injunction ordering Treasury to return to Fannie Mae and Freddie Mac all the dividend payments that were made under the third amendment or alterna

tively, a re-characterization of those payments as a paydown of the liquidation preference and a corresponding re

demption of Treasury’s stock; an order vacating and setting aside the third amendment; and an order enjoining the FHFA and Treasury from taking any further action to im

plement the third amendment. 11 The District Court dismissed the statutory claim and granted summary judgment in favor of the FHFA on the constitutional claim, Collins v. FHFA , 254 F. Supp. 3d 841 (SD Tex. 2017), and a three-judge panel of the Fifth Circuit affirmed in part and reversed in part, Collins v. Mnuchin

, 896 F. 3d 640 (2018) ( per curiam ). At the request of both parties, the Fifth Circuit reheard the case en banc. Collins

v. Mnuchin , 908 F. 3d 151 (2018). In a deeply fractured opinion, the en banc court reversed the District Court’s dis

missal of the statutory claim; held that the FHFA’s struc

ture violates the separation of powers; and concluded that the appropriate remedy for the constitutional violation was to sever the removal restriction from the rest of the Recov

ery Act, but not to vacate and set aside the third amend

ment. Collins v. Mnuchin , 938 F. 3d 553 (2019). Both the shareholders and the federal parties sought this Court’s review, and we granted certiorari. 591 U. S. ___ (2020). Because the federal parties did not contest the Fifth Circuit’s conclusion that the Recovery Act’s removal re

-

——————

11 The shareholders also sued Treasu ry and its Secretary, contending that the Agency exceeded its statutory authority and acted arbitrarily and capriciously in adopting the third amendment. The District Court dismissed these claims, the Fifth Circu it affirmed, and the shareholders did not seek review of those holdings in this Court.12 COLLINS v. YELLEN

Opinion of the Court striction improperly insulates the Director from Presiden

tial control, we appointed Aaro n Nielson to brief and argue,

as amicus curiae , in support of the position that the FHFA’s structure is constitutional. He has ably discharged his re

sponsibilities.

II We begin with the shareholders’ statutory claim and con

clude that the Recovery Act requires its dismissal. In the Recovery Act, Cong ress sharply circumscribed ju

dicial review of any action that the FHFA takes as a con

servator or receiver. The Act states that unless review is specifically authorized by one of its provisions or is re

quested by the Director, “no co urt may take any action to restrain or affect the exercise of powers or functions of the Agency as a conservator or a receiver.” 12 U. S. C. §4617(f ). The parties refer to this as the Act’s “anti-injunction clause.” Every Court of Appeals that has confronted this language has held that it prohibits re lief where the FHFA action at issue fell within the scope of the Agency’s authority as a conservator, but that relief is allowed if the FHFA exceeded that authority. See Jacobs , 908 F. 3d, at 889; Saxton v. FHFA , 901 F. 3d 954, 957–958 (CA8 2018); Roberts v. FHFA , 889 F. 3d 397, 402 (CA7 2018); Robinson v. FHFA
, 876 F. 3d 220, 228 (CA6 2017); Perry Capital LLC v. Mnuchin , 864 F. 3d 591, 605–606 (CADC 2017); County of Sonoma v. FHFA , 710 F. 3d 987, 992 (CA9 2013); Leon Cty.

v. FHFA , 700 F. 3d 1273, 1278 (CA11 2012). We agree with that consensus. The anti-injunction clause applies only where the FHFA exercised its “powers or functions” “as a conservator or a receiver.” Where the FHFA does not exercise but instead exceeds those powers or functions, the anti-injunction clause imposes no re

strictions. With that understanding in mind, we must decide13 Cite as: 594 U. S. ____ (2021)

Opinion of the Court whether the FHFA was exercising its powers or functions as a conservator when it agreed to the third amendment. If it was, then the anti-injunction clause bars the sharehold

ers’ statutory claim.

A The Recovery Act grants the FHFA expansive authority in its role as a conservator. As we have explained, the Agency is authorized to take control of a regulated entity’s assets and operations, conduct business on its behalf, and transfer or sell any of its assets or liabilities. See §§4617(b)(2)(B)–(C), (G). When the FHFA exercises these powers, its actions must be “n ecessary to put the regulated entity in a sound and solvent condition” and must be “ap

propriate to carry on the business of the regulated entity and preserve and conserve [its] assets and property.” §4617(b)(2)(D). Thus, when the FHFA acts as a conserva

tor, its mission is rehabilitation, and to that extent, an FHFA conservatorship is like any other. See, e.g., Resolu

tion Trust Corporation v. CedarMinn Bldg. Ltd. Partner

ship , 956 F. 2d 1446, 1454 (CA8 1992). 12 An FHFA conservatorship, ho wever, differs from a typi

cal conservatorship in a key respect. Instead of mandating that the FHFA always act in the best interests of the regu

lated entity, the Recovery Act authorizes the Agency to act in what it determines is “in the best interests of the regu

lated entity or the Agency .” §4617(b)(2)(J)(ii) (emphasis added). Thus, when the FHFA acts as a conservator, it may aim to rehabilitate the regulated entity in a way that, while not in the best interests of the regulated entity, is beneficial

——————

12 By contrast, when the FHFA acts as a receiver, it is required to “place the regulated entity in liquidation an d proceed to realize upon the assets of the regulated entity.” §4617(b)(2)(E). The roles of conservator and receiver are very different. See §4617(a)(4)(D) (“The appointment of the Agency as receiver of a regulated en tity under this section shall immedi

ately terminate any conservatorship es tablished for the regulated entity under this chapter”).14 COLLINS v. YELLEN

Opinion of the Court to the Agency and, by extension, the public it serves. This distinctive feature of an FHFA conservatorship is fatal to the shareholders’ statutory claim. The facts alleged in the co mplaint demonstrate that the FHFA chose a path of rehabilitation that was designed to serve public interests by ensuring Fannie Mae’s and Fred

die Mac’s continued support of the secondary mortgage market. Recall that the third amendment was adopted at a time when the companies’ liabi lities had consistently ex

ceeded their assets over at le ast the prior three years. See
supra, at 8. It is undisputed that the companies had repeat

edly been unable to make their fixed quarterly dividend payments without drawing on Treasury’s capital commit

ment. And there is also no dispute that the cap on Treas

ury’s capital commitment was sche duled to be reinstated atthe end of the year and that Treasury’s temporary stockpurchasing authority had expired in 2009. See §§1455( l )(4), 1719(g)(4). If things had proceeded as they had in the past, there was a realistic possibility that the companies would have consumed some or all of the remaining capital com

mitment in order to pay thei r dividend obligations, which were themselves increasing in size every time the compa

nies made a draw. The third amendment eliminated this risk by replacing the fixed-rate dividend formul a with a variable one. Under the new formula, the companies would never again have to use capital from Treasury’s commitment to pay their divi

dends. And that, in turn, ensured that all of Treasury’s cap

ital was available to backst op the companies’ operations during difficult quarters. In exchange, the companies had to relinquish nearly all their net worth, and this made cer

tain that they would never be able to build up their own capital buffers, pay back Treasury’s investment, and exit conservatorship. Whether or not this new arrangement was in the best interests of the companies or their share

holders, the FHFA could have reasonably concluded that it15 Cite as: 594 U. S. ____ (2021)

Opinion of the Court was in the best interests of members of the public who rely on a stable secondary mortgage market. The Recovery Act therefore authorized the Agency to choose this option.

B
The shareholders contend that the third amendment did not actually serve the best interests of the FHFA or the pub

lic because it did not further the asserted objective of pro

tecting Treasury’s capital commitment. This is so, the shareholders argue, for two reasons. First, they claim that the FHFA adopted the third amendment at a time when the companies were on the prec

ipice of a financial uptick and that they would soon have been in a position not only to pay cash dividends, but also to build up capital buffers to absorb future losses. Thus, the shareholders assert, sweeping all the companies’ earnings to Treasury increased rather than decreased the risk that the companies would make further draws and eventually deplete Treasury’s commitment. The nature of the conservatorship authorized by the Re

covery Act permitted the Agency to reject the shareholders’ suggested strategy in favor of one that the Agency reasona

bly viewed as more certain to ensure market stability. The success of the strategy that the shareholders tout was de

pendent on speculative projections about future earnings, and recent experience had gi ven the FHFA reasons for cau

tion. The companies had been repeatedly unable to pay their dividends from 2009 to 2011. With the aim of more securely ensuring market st ability, the FHFA did not ex

ceed the scope of its conservatorship authority by deciding on what it viewed as a less risky approach. Second, the shareholders contend that the FHFA could have protected Treasury’s capi tal commitment by ordering the companies to pay the dividends in kind rather than in cash. This argument rests on a misunderstanding of the16 COLLINS v. YELLEN

Opinion of the Court agreement between the companies and Treasury. The com

panies’ stock certificates re quired Fannie Mae and Freddie Mac to pay their dividends “in cash in a timely manner.” App. 180, 198. If the companies had failed to do so, they would have incurred a penalty: Treasury’s liquidation pref

erence would have immediately increased by the dividend amount, and the dividend rate would have increased from 10% to 12% until the companies paid their outstanding div

idends in cash. 13 Thus, paying Treasury in kind would not have satisfied the cash dividend obligation, and the risk that the companies’ cash dividend obligations would con

sume Treasury’s capital commitment in the future would have remained. Choosing to forgo this option in favor of one that eliminated the risk entirely was not in excess of the FHFA’s statutory authority as conservator. Finally, the shareholders argue that because the third amendment left the companies unable to build capital re

serves and exit conservatorship, it is best viewed as a step toward ultimate liquidation and, according to the share

holders, the FHFA lacked the authority to take this decisive step without first placing the companies in receivership. The shareholders’ characterization of the third amend

ment as a step toward liquidation is inaccurate. Nothing about the amendment precluded the companies from oper

ating at full steam in the marketplace, and all the available evidence suggests that they did so. Between 2012 and 2016 alone, the companies “collectively purchased at least 11 mil

lion mortgages on single-family owner-occupied properties,

——————

13 The senior preferred stock certificat es provide: “[I]f at any time the Company shall have for any reason fa iled to pay dividends in cash in a timely manner as required by this Certificate, then immediately follow

ing such failure and for all Dividend Periods thereafter until the Divi

dend Period following the date on which the Company shall have paid in cash full cumulative dividends (inclu ding any unpaid dividends added to the Liquidation Preference . . . ), the ‘Dividend Rate’ shall mean 12.0%”). App. 180, 198.17 Cite as: 594 U. S. ____ (2021)

Opinion of the Court
and Fannie issued over $1.5 tr illion in single-family mort

gage-backed securities.” Perry Capital , 864 F. 3d, at 602. During that time, the companies amassed over $200 billion in net worth and, as of November 2020, Fannie Mae’s mort

gage portfolio had grown to $163 billion and Freddie Mac’s to $193 billion. 14 This evidence does not suggest that the companies were in the process of winding down their af

fairs. It is not necessary for us to decide—and we do not de

cide—whether the FHFA made the best, or even a particu

larly good, business decision when it adopted the third amendment. Instead, we conclude only that under the terms of the Recovery Act, the FHFA did not exceed its au

thority as a conservator, and therefore the anti-injunction clause bars the shareholders’ statutory claim.

III
We now consider the shareholders’ claim that the statu

tory restriction on the Pres ident’s power to remove the FHFA Director, 12 U. S. C. §4512(b)(2), is unconstitutional.

A Before turning to the merits of this question, however, we must address threshold issues raised in the lower court or by the federal parties and appointed amicus

. 1 In the proceedings below, some judges concluded that the shareholders lack standing to bring their constitutional claim. See 938 F. 3d, at 620 (Costa, J., dissenting in part). Because we have an obligation to make sure that we have jurisdiction to deci de this claim, see DaimlerChrysler Corp.

v. Cuno , 547 U. S. 332, 340 (2006), we begin by explaining

——————

14 See Dept. of Treasury Press Rele ase, Treasury Department and FHFA Amend Terms of Preferred Stock Purchase Agreements for Fannie Mae and Freddie Mac (Jan. 14, 2021), https://home.trea sury.gov/news/ press-releases/sm1236.18 COLLINS v. YELLEN

Opinion of the Court why the shareholders have standing. To establish Article III standing, a plaintiff must show that it has suffered an “injury in fact” that is “fairly tracea

ble” to the defendant’s conduct and would likely be “re

dressed by a favorable decision.” Lujan v. Defenders of Wildlife , 504 U. S. 555, 560–561 (1992) (alterations and in

ternal quotation marks omitted). The shareholders meet these requirements. First, the shareholders claim that the FHFA transferred the value of their property rights in Fannie Mae and Fred

die Mac to Treasury, and that sort of pocketbook injury is a prototypical form of injury in fact. See Czyzewski v. Jevic Holding Corp. , 580 U. S. ___, ___ (2017) (slip op., at 11). Second, the shareholders’ injury is traceable to the FHFA’s adoption and implementation of the third amendment, which is responsible for the variable dividend formula that swept the companies’ net worth to Treasury and left noth

ing for their private shareholders. Finally, a decision in the shareholders’ favor could easily lead to the award of at least some of the relief that the shareholders seek. We found standing under similar circumstances in Seila Law LLC v. Consumer Financial Protection Bureau , 591 U. S. ___ (2020). See id ., at ___ (slip op., at 10) (“In the specific con

text of the President’s removal power, we have found it suf

ficient that the challenger sustains injury from an executive act that allegedly exceeds the official’s authority” (brackets and internal quotation marks omitted)); see also Free En

terprise Fund v. Public Company Accounting Oversight Bd.

, 561 U. S. 477 (2010) (considering challenge to removal re

striction where plaintiffs clai med injury from allegedly un

lawful agency oversight). The judges who thought that the shareholders lacked standing reached that conclusion on the ground that the shareholders could not trace their injury to the Recovery Act’s removal restriction. See 938 F. 3d, at 620–621 (opin

-19 Cite as: 594 U. S. ____ (2021)

Opinion of the Court ion of Costa, J.). But for purposes of traceability, the rele

vant inquiry is whether the plaintiffs’ injury can be traced to “allegedly unlawful conduct” of the defendant, not to the provision of law that is challenged. Allen v. Wright , 468 U. S. 737, 751 (1984); see also Lujan
, supra , at 560 (explain

ing that the plaintiff must show “a causal connection be

tween the injury and the conduct complained of,” and that “the injury has to be fairly traceable to the challenged ac

tion of the defendant” (quoting Simon v. Eastern Ky. Wel

fare Rights Organization , 426 U. S. 26, 41 (1976); brackets, ellipsis, and internal quotation marks omitted)). Because the relevant action in this case is the third amendment, and because the shareholders’ concrete injury flows directly from that amendment, the traceability requirement is sat

isfied.

2 After oral argument was held in this case, the federal par

ties notified the Court that the FHFA and Treasury had agreed to amend the stock purchasing agreements for a fourth time. 15 And because that amendment eliminated the variable dividend formula that had caused the sharehold

ers’ injury, it is necessary to consider whether the fourth amendment moots the shareholders’ constitutional claim. It does so only with resp ect to some of the relief re

quested. In their complaint, the shareholders sought vari

ous forms of prospective relief, but because that amend

ment is no longer in place, the shareholders no longer have any ground for such relief. By contrast, they retain an in

terest in the retrospective relief they have requested, and that interest saves their cons titutional claim from moot

ness.

——————

15 See Letter from E. Prelogar, Acting Solicitor General, to S. Harris, Clerk of Court (Mar. 18, 2021).20 COLLINS v. YELLEN

Opinion of the Court

3 The federal parties contend that the “succession clause” in the Recovery Act bars the shareholders’ constitutional claim. Under this clause, when the FHFA appoints itself as conservator, it immediately succeeds to “all rights, titles, powers, and privileges of the regulated entity, and of any stockholder, officer, or director of such regulated entity with respect to the regulated entity and the assets of the regu

lated entity.” 12 U. S. C. §4617(b)(2)(A)(i). According to the federal parties, this clause transferred to the FHFA the shareholders’ right to bring th eir constitutional claim, and it therefore bars the shareholde rs from asserting that claim on their own behalf. In other words, the federal parties read the succession clause to mean that the only party with the authority to challenge the restriction on the President’s power to remove the Director of the FHFA is the FHFA it

self. The federal parties read the succession clause too broadly. The clause effects only a limited transfer of stock

holders’ rights, namely, the rights they hold as stockholders “with respect to the regulated entity” and its assets . The right the shareholders assert in this case is one that they hold in common with all other citizens who have standing to challenge the removal restri ction. As we have explained on many prior occasions, the separation of powers is de

signed to preserve the liberty of all the people. See, e.g. , Bowsher v. Synar , 478 U. S. 714, 730 (1986); Youngstown Sheet & Tube Co. v. Sawyer , 343 U. S. 579, 635 (1952) (Jack

son, J., concurring) (noting t hat the Constitution “diffuses power the better to secure libe rty”). So whenever a separa

tion-of-powers violation occurs, any aggrieved party with standing may file a constitutional challenge. See, e.g. , Seila Law
, supra , at ___ (slip op., at 10); Bond v. United States

, 564 U. S. 211, 223 (2011); INS v. Chadha , 462 U. S. 919, 935–936 (1983). Nearly half our hallmark removal cases have been brought by aggrieved private parties. See Seila21 Cite as: 594 U. S. ____ (2021)

Opinion of the Court

Law , 591 U. S., at ___–___ (slip op., at 6–7) (law firm to which the agency issued a ci vil investigative demand); Free Enterprise Fund

, supra , at 487 (accounting firm placed un

der agency investigation); Morrison v. Olson , 487 U. S. 654, 668 (1988) (federal officials subject to subpoenas issued at the request of an independent counsel); Bowsher

, supra , at 719 (union representing employee-members whose benefit increases were suspended due to an action of the Comptrol

ler General). Here, the right asserted is no t one that is distinctive to shareholders of Fannie Mae and Freddie Mac; it is a right shared by everyone in this country. Because the succession clause transfers the rights of “stockholder[s] . . . with re

spect to the regulated entity,” it does not transfer to the FHFA the constitutional right at issue. 16

4 The federal parties and appointed amicus next contend that the shareholders’ constitutional challenge was dead on arrival because the third amendment was adopted when the FHFA was led by an Acting Director 17 who was remov

able by the President at will. This argument would have merit if (a) the Acting Director was indeed removable at will (a matter we address below, see infra , at 22–26) and (b) all the harm allegedly incurred by the shareholders had been completed at the time of the third amendment’s adoption. Under those circumstances, any constitutional defect in the provision restricting the removal of a confirmed Director would not have harmed the shareholders, and they would not be entitled to any relief. But the harm allegedly caused by the third amendment did not come to an end during the

——————

16 The federal parties also argue that the Recovery Act’s succession clause bars the shareholders’ statutory claim. Because we have con

cluded that the statutory claim is already barred by the anti-injunction clause, we do not address this argument.

17 See Rop v. FHFA , 485 F. Supp. 3d 900, 915 (WD Mich. 2020).22 COLLINS v. YELLEN

Opinion of the Court tenure of the Acting Director who was in office when the amendment was adopted. That harm is alleged to have con

tinued after the Acting Director was replaced by a succes

sion of confirmed Directors, and it appears that any one of those officers could have rene gotiated the companies’ divi

dend formula with Treasury. From what we can tell from the record, the FHFA and Treasury consistently reevalu

ated the stock purchasing agreements and adopted amend

ments as they thought necessary. Nothing in the third amendment suggested that it was permanent or that the FHFA lacked the ability to bring Treasury back to the bar

gaining table. After all, the agencies adopted a fourth amendment just this year. The federal parties and amicus do not dispute this. Accordin gly, continuing to implement the third amendment was a decision that each confirmed Director has made since 2012, and because confirmed Di

rectors chose to continue implementing the third amend

ment while insulated from ple nary Presidential control, the survival of the shareholders’ constitutional claim does not depend on the answer to the question whether the Recovery Act restricted the removal of an Acting Director. On the other hand, the answer to that question could have a bearing on the scope of relief that may be awarded to the shareholders. If the statute unconstitutionally re

stricts the authority of the President to remove an Acting Director, the shareholders could seek relief rectifying injury inflicted by actions taken while an Acting Director headed the Agency. But if the statute does not restrict the removal of an Acting Director, any harm resulting from actions taken under an Acting Directo r would not be attributable to a constitutional violation. Only harm caused by a con

firmed Director’s implementation of the third amendment could then provide a basis for relief. We therefore consider what the Recovery Act says about the removal of an Acting Director. The Recovery Act’s removal restriction provides that23 Cite as: 594 U. S. ____ (2021)

Opinion of the Court “[t]he Director shall be appointed for a term of 5 years, un

less removed before the end of such term for cause by the President.” 12 U. S. C. §4512(b)(2). That provision refers only to “the Director,” and it is surrounded by other provi

sions that apply only to the Director. See §4512(a) (estab

lishing the position of the Di rector); §4512(b)(1) (setting out the procedure for appointing the Director); §4512(b)(3) (dis

cussing the manner for selecting a new Director to fill a va

cancy). The Act’s mention of an “acting Director” does not appear until four subsections later, and that subsection does not include any removal restriction. See §4512(f ). Nor does it cross-reference the earlier res triction on the removal of a confirmed Director. Ibid. Instead, it merely states that “[i]n the event of the death, resignation, sickness, or ab

sence of the Director, the President shall designate” one of three Deputy Directors to serv e as an Acting Director until the Senate-confirmed Director returns or his successor is appointed. Ibid. That omission is telling. When a statute does not limit the President’s power to remove an agency head, we gener

ally presume that the officer serves at the President’s pleas

ure. See Shurtleff v. United States , 189 U. S. 311, 316 (1903). Moreover, “when Congress includes particular lan

guage in one section of a statute but omits it in another sec

tion of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.” Barnhart v. Sigmon Coal Co., 534 U. S. 438, 452 (2002) (internal quotation marks omitted). In the Re

covery Act, Congress expressly restricted the President’s power to remove a confirmed Director but said nothing of the kind with respect to an Acting Director. And Congress might well have wanted to provide greater protection for a Director who had been confirmed by the Senate than for an Acting Director in whose appointment Congress had played no role. In any event, the disparate treatment weighs24 COLLINS v. YELLEN

Opinion of the Court against the shareholders’ interpretation. In support of that interpretation, the shareholders first contend that the Recovery Act should be read to restrict the removal of an Acting Director be cause the Act refers to the FHFA as an “ independent agency of the Federal Govern

ment.” 12 U. S. C. §4511(a) (emphasis added). The refer

ence to the FHFA’s independence, they claim, means that any person heading the Agency was intended to enjoy a de

gree of independence from Presidential control. That interpretation reads fa r too much into the term “in

dependent.” The term does not necessarily mean that the Agency is “independent” of the President. It may mean in

stead that the Agency is not part of and is therefore inde

pendent of any other unit of the Federal Government. And describing an agency as inde pendent would be an odd way to signify that its head is removable only for cause because even an agency head who is shielded in that way would hardly be fully “independent” of Presidential control. A review of other enabling stat utes that describe agencies as “independent” undermines the shareholders’ interpreta

tion of the term. Congress has described many agencies as “independent” without imposing any restriction on the President’s power to remove the agency’s leadership. This is true, for example, of the Peace Corps, 22 U. S. C. §§2501– 1, 2503, the Defense Nuclear Facilities Safety Board, 42 U. S. C. §2286, the Commodity Futures Trading Commis

sion, 7 U. S. C. §2(a)(2), the Farm Credit Administration, 12 U. S. C. §§2241–2242, the National Credit Union Admin

istration, 12 U. S. C. §1752a, and the Railroad Retirement Board, 45 U. S. C. §231f(a). In other statutes, Congress has restricted the President’s removal power without referring to the agency as “inde

pendent.” This is the case for the Commission on Civil Rights, 42 U. S. C. §§1975(a), (e), the Federal Trade Com

mission, 15 U. S. C. §41, and the National Labor Relations25 Cite as: 594 U. S. ____ (2021)

Opinion of the Court Board, 29 U. S. C. §153. And in yet another group of stat

utes, Congress has referred to an agency as “independent” but has not expressly provided that the removal of the agency head is subject to any restrictions. See 44 U. S. C. §§2102, 2103 (National Archives and Records Administra

tion); 42 U. S. C. §§1861, 1864 (National Science Founda

tion). That combination of provisions shows that the term “independent” does not necessa rily connote independence from Presidential control, and we refuse to read that conno

tation into the Recovery Act. Taking a different tack, the shareholders claim that their interpretation is supported by the absence of any reference to removal in the Recovery Act’s provision on Acting Direc

tors. Again, that provision states that if the Director is ab

sent, “the President shall designate [one of the FHFA’s three Deputy Directors] to serve as acting Director until the return of the Director, or the appointment of a successor.” 12 U. S. C. §4512(f ). According to the shareholders, this text makes clear that an Acti ng Director differs from a con

firmed Director in three respects (manner of appointment, qualifications, and length of tenure). They assume that these are the only respects in which confirmed and Acting Directors differ, and they therefore conclude that the per

missible grounds for removing an Acting Director are the same as those for a confirmed Director. This argument draws an unwarranted inference from the Recovery Act’s silence on this matter. As noted, we gener

ally presume that the President holds the power to remove at will executive officers and that a statute must contain “plain language to take [that power] away.” Shurtleff

, su

pra , at 316. The shareholders argue that this is not a hard and fast rule, but we certainly see no grounds for an excep

tion in this case. 18

——————

18 In Wiener v. United States , 357 U. S. 349 (1958), the Court read a removal restriction into the War Claims Act of 1948. But it did so on the26 COLLINS v. YELLEN

Opinion of the Court
For all these reasons, we hold that the Recovery Act’s re

moval restriction does not extend to an Acting Director, and we now proceed to the merits of the shareholders’ constitu

tional argument.

B The Recovery Act’s for-cause restriction on the Presi

dent’s removal authority violates the separation of powers. Indeed, our decision last Term in Seila Law is all but dispositive. There, we held that Congress could not limit the President’s power to remove the Director of the Consumer Financial Protection Bureau (CFPB) to instances of “ineffi

ciency, neglect, or malfeasance.” 591 U. S., at ___ (slip op., at 11). We did “not revisit ou r prior decisions allowing cer

tain limitations on the President’s removal power,” but we found “compelling reasons not to extend those precedents to the novel context of an independent agency led by a single Director.” Id., at ___ (slip op., at 2) . “Such an agency,” we observed, “lacks a foundation in historical practice and clashes with constitutional structure by concentrating power in a unilateral actor insulated from Presidential con

trol.” Id. , at ___–___ (slip op., at 2–3). A straightforward application of our reasoning in Seila Law dictates the result here. The FHFA (like the CFPB) is an agency led by a single Director, and the Recovery Act (like the Dodd-Frank Act) restricts the President’s removal power. Fulfilling his obligation to defend the constitution

ality of the Recovery Act’s removal restriction, amicus at

tempts to distinguish the FHFA from the CFPB. We do not find any of these distinctions sufficient to justify a different result.

—————— rationale that the War Claims Comm ission was an adjudicatory body, and as such, it had a unique need fo r “absolute freedom from Executive interference.” Id., at 353, 355–356. The FHFA is not an adjudicatory body, so Shurtleff , not Weiner, is the more applicable precedent

.27 Cite as: 594 U. S. ____ (2021)

Opinion of the Court

1
Amicus first argues that Congress should have greater leeway to restrict the Presid ent’s power to remove the FHFA Director because the FHFA ’s authority is more lim

ited than that of the CFPB. Amicus points out that the CFPB administers 19 statutes while the FHFA administers only 1; the CFPB regulates millions of individuals and busi

nesses whereas the FHFA regulates a small number of Gov

ernment-sponsored enterprises; the CFPB has broad rulemaking and enforcement authority and the FHFA has little; and the CFPB receives a large budget from the Fed

eral Reserve while the FHFA collects roughly half the amount from regulated entities. We have noted differences between these two agencies. See Seila Law , 591 U. S.

, at ___ (slip op., at 20) (noting that the FHFA “regulates primarily Government-sponsored en

terprises, not purely private actors”). But the nature and breadth of an agency’s authority is not dispositive in deter

mining whether Congress may limit the President’s power to remove its head. The Pres ident’s removal power serves vital purposes even when the officer subject to removal is not the head of one of the largest and most powerful agen

cies. The removal power helps the President maintain a degree of control over the subordinates he needs to carry out his duties as the head of the Executive Branch, and it works to ensure that these subordinates serve the people effectively and in accordance with the policies that the peo

ple presumably elected the President to promote. See, e.g. , id., at ___–___ (slip op., at 11–12); Free Enterprise Fund

, 561 U. S., at 501–502; Myers v. United States , 272 U. S. 52, 131 (1926). In addition, because the President, unlike agency officials, is elected, this control is essential to subject Executive Branch actions to a degree of electoral accounta

bility. See Free Enterprise Fund , 561 U. S., at 497–498. Atwill removal ensures that “the lowest officers, the middle grade, and the highest, will depend, as they ought, on the28 COLLINS v. YELLEN

Opinion of the Court President, and the President on the community.” Id., at 498 (quoting 1 Annals of Cong. 499 (1789) (J. Madison)). These purposes are implicated wh enever an agency does im

portant work, and nothing about the size or role of the FHFA convinces us that its Director should be treated dif

ferently from the Director of the CFPB. The test that ami

cus proposes would also lead to severe practical problems. Amicus does not propose any clear standard to distinguish agencies whose leaders must be removable at will from those whose leaders may be protected from at-will removal. This case is illustrative. As amicus points out, the CFPB might be thought to wield more power than the FHFA in some respects. But the FHFA might in other respects be considered more powerful than the CFPB. For example, the CFPB’s rulemaking authority is more constricted. Under the Dodd-Fr ank Act, the CFPB’s final rules can be set aside by a super majority of the Financial Stability and Oversight Council wh enever it concludes that the rule would “ ‘put the safety and soundness ’ ” of the Na

tion’s banking or financial systems at risk. See Seila Law

, supra , at ___, n. 9 (slip op., at 25, n. 9) (quoting 12 U. S. C. §§5513(a), (c)(3)). No board or commission can set aside the FHFA’s rules. In addition, while the CFPB has direct regulatory and en

forcement authority over pure ly private individuals and businesses, the FHFA has regulatory and enforcement au

thority over two companies that dominate the secondary mortgage market and have the power to reshape the hous

ing sector. See App. 116. FHFA actions with respect to those companies could have an immediate impact on mil

lions of private individuals and the economy at large. See Seila Law

, supra , at ___ (slip op., at 31) (K AGAN , J., concur

ring in judgment with respe ct to severability and dissenting in part) (noting that “the FHFA plays a crucial role in over

seeing the mortgage market, on which millions of Ameri

cans annually rely”).29 Cite as: 594 U. S. ____ (2021)

Opinion of the Court Courts are not well-suited to weigh the relative im

portance of the regulatory and enforcement authority of dis

parate agencies, and we do no t think that the constitution

ality of removal restrictions hinges on such an inquiry. 19

2
Amicus next contends that Congress may restrict the re

moval of the FHFA Director because when the Agency steps into the shoes of a regulated en tity as its conservator or re

ceiver, it takes on the status of a private party and thus does not wield executive power. But the Agency does not always act in such a capacity, and even when it acts as con

servator or receiver, its authori ty stems from a special stat

ute, not the laws that generally govern conservators and re

ceivers. In deciding what it must do, what it cannot do, and the standards that govern its work, the FHFA must inter

pret the Recovery Act, and “[i]nterpreting a law enacted by Congress to implement the legislative mandate is the very essence of ‘execution’ of the law.” Bowsher , 478 U. S., at 733; see also id., at 765 (White, J., dissenting) (“[T]he pow

ers exercised by the Comptroller under the Act may be char

acterized as ‘executive’ in that they involve the interpreta

tion and carrying out of the Act’s mandate”).

——————

19 Amicus argues that there is historical support for the removal re

striction at issue here because the Comptroller of Currency and the mem

bers of the Sinking Fund Commission were subject to similar protection, but those agencies are materially di fferent because neither of them op

erated beyond the President’s contro l, and one of them was led by a multi-member Commission. As we explained in Seila Law , with the ex

ception of a 1-year aberration during the Civil War, the Comptroller was removable at will by the President, who needed only to communicate the reasons for his decision to Congress. 591 U. S., at ___, n. 5 (slip op., at 19, n. 5). And the Sinking Fund Commission, which Congress created to purchase U. S. securities following the Revolutionary War, was run by a 5-member Commission, and three of those Commissioners were part of the President’s Cabinet and therefore removable at will. See An Act Making Provision for the Reduction of the Public Debt, ch. 47, 1 Stat. 186 (1790).30 COLLINS v. YELLEN

Opinion of the Court Moreover, as we have already mentioned, see supra , at 5–6, the FHFA’s powers under the Recovery Act differ crit

ically from those of most conser vators and receivers. It can subordinate the best interests of the company to its own best interests and those of the public. See 12 U. S. C. §4617(b)(2)(J)(ii). Its business decisions are protected from judicial review. §4617(f ). It is empowered to issue a “reg

ulation or order” requiring st ockholders, directors, and of

ficers to exercise certain functions. §4617(b)(2)(C). It is au

thorized to issue subpoenas. §4617(b)(2)(I). And of course, it has the power to put the company into conservatorship and simultaneously appoint itself as conservator. §4617(a)(1). For these reasons, the FHFA clearly exercises executive power. 20

3
Amicus asserts that the FHFA’s structure does not vio

late the separation of powers because the entities it regu

lates are Government-sponsored enterprises that have fed

eral charters, serve public objectives, and receive “ ‘special privileges’ ” like tax exemptions and certain borrowing rights. Brief for Court-Appointed Amicus Curiae 27–28. In amicus ’s view, the individual-liberty concerns that the re

moval power exists to preserve “ring hollow where the only entities an agency regulates are themselves not purely pri

vate actors.” Id., at 29 (internal quotation marks omitted). This argument fails because the President’s removal power serves important purposes regardless of whether the agency in question affects ordinary Americans by directly regulating them or by taking actions that have a profound

——————

20 Amicus claims that O’Melveny & Myers v. FDIC , 512 U. S. 79 (1994), supports his argument, but that decision is far afield. It held that state law, not federal common law, governed an attribute of the FDIC’s status as receiver for an insolvent savings bank. Id., at 81–82. The nature of the FDIC’s authority in th at capacity sheds no light on the nature of the FHFA’s distinctive authority as conservator under the Recovery Act.31 Cite as: 594 U. S. ____ (2021)

Opinion of the Court but indirect effect on their lives. And there can be no ques

tion that the FHFA’s control over Fannie Mae and Freddie Mac can deeply impact the lives of millions of Americans by affecting their ability to buy and keep their homes.

4 Finally, amicus contends that there is no constitutional problem in this case because the Recovery Act offers only “modest [tenure] protection.” Id., at 37. That is so, amicus claims, because the for-cause standard would be satisfied whenever a Director “disobey[ed] a lawful [Presidential] or

der,” including one about the Agency’s policy discretion. Id., at 41. We acknowledge that the Recovery Act’s “for cause” re

striction appears to give the President more removal au

thority than other removal provisions reviewed by this Court. See, e.g., Seila Law , 591 U. S., at ___ (slip op., at 5) (“for ‘inefficiency, neglect of duty, or malfeasance in office’ ”); Morrison , 487 U. S., at 663 (“ ‘for good cause, physical disa

bility, mental incapacity, or any other condition that sub

stantially impairs the performance of [his or her] duties’ ”); Bowsher

, supra , at 728 (“by joint resolution of Congress” due to “ ‘permanent disability,’ ” “ ‘inefficiency,’ ” “ ‘neglect of duty,’ ” “ ‘malfeasance,’ ” “ ‘a felony[,] or conduct involving moral turpitude’ ”); Humphrey’s Executor v. United States

, 295 U. S. 602, 619 (1935) (“ ‘ “for inefficiency, neglect of duty, or malfeasance in office” ’ ”); Myers , 272 U. S., at 107 (“ ‘by and with the advice and consent of the Senate’ ”). And it is certainly true that disobeyi ng an order is generally re

garded as “cause” for removal. See NLRB v. Electrical Workers , 346 U. S. 464, 475 (1953) (“The legal principle that insubordination, disobedience or disloyalty is adequate cause for discharge is plain enough”). But as we explained last Term, the Constitution prohibits even “modest restrictions” on the President’s power to re

move the head of an agency wi th a single top officer. Seila32 COLLINS v. YELLEN

Opinion of the Court

Law
, supra , at ___ (slip op., at 26) (internal quotation marks omitted). The President must be able to remove not just officers who disobey his commands but also those he finds “negligent and inefficient,” Myers , 272 U. S.

, at 135, those who exercise their discretion in a way that is not “intelli

gen[t ] or wis[e ],” ibid. , those who have “different views of policy,” id., at 131, those who come “from a competing polit

ical party who is dead set against [the President’s] agenda,” Seila Law

, supra , at ___ (slip op., at 24) (emphasis deleted), and those in whom he has simply lost confidence, Myers
, supra , at 124. Amicus recognizes that “ ‘for cause’ . . . does not mean the same thing as ‘at will,’ ” Brief for Court-Ap

pointed Amicus Curiae 44–45, and therefore the removal restriction in the Recovery Act violates the separation of
powers. 21

C Having found that the removal restriction violates the Constitution, we turn to the s hareholders’ request for relief. And because the shareholders no longer have a live claim for prospective relief, see supra , at 19, the only remaining remedial question concer ns retrospective relief. On this issue, the shareholders’ lead argument is that the third amendment must be completely undone. They seek an order setting aside the amendment and requiring the “return to Fannie and Freddie [of] all dividend payments

——————

21 Amicus warns that if the Court holds that the Recovery Act’s removal restriction violates the Constitution, the decision will “c all into question many other aspects of the Federal Government.” Brief for Court-Ap

pointed Amicus Curiae 47. Amicus points to the Social Security Admin

istration, the Office of Special Counsel, the Comptroller, “multi-member agencies for which the chair is nomi nated by the President and confirmed by the Senate to a fixed term,” and the Civil Service. Id., at 48 (emphasis deleted). None of these agencies is before us, and we do not comment on the constitutionality of any removal re striction that applies to their of

ficers.33 Cite as: 594 U. S. ____ (2021)

Opinion of the Court made pursuant to [it].” 22 App. 117–118. In support of this request, they contend that the third amendment was adopted and implemented by officers who lacked constitu

tional authority and that thei r actions were therefore void ab initio

. We have already explained that the Acting Director who adopted the third amendment was removable at will. See
supra, at 22–26. That conclusion defeats the shareholders’ argument for setting aside the third amendment in its en

tirety. We therefore consider the shareholders’ contention about remedy with respect to only the actions that con

firmed Directors have taken to implement the third amend

ment during their tenures. But even as applied to that sub

set of actions, the shareholders’ argument is neither logical nor supported by precedent. All the officers who headed the FHFA during the time in question were properly appointed

. Although the statute unconstit utionally limited the Presi

dent’s authority to remove the confirmed Directors, there was no constitutional defect in the statutorily prescribed method of appointment to that office. As a result, there is no reason to regard any of the actions taken by the FHFA in relation to the third amendment as void. The shareholders argue that our decisions in prior sepa

ration-of-powers cases support their position, but most of the cases they cite involved a Government actor’s exercise of power that the actor did not lawfully possess. See Lucia

v. SEC , 585 U. S. ___, ___ (2018) (slip op., at 12) (adminis

trative law judge appointed in violation of Appointments Clause); Stern v. Marshall , 564 U. S. 462, 503 (2011) (bank

ruptcy judge’s exercise of exclusive power of Article III judge); Clinton v. City of New York , 524 U. S. 417, 425, and

——————

22 In the alternative, they request th at the dividend payments be “re

characteriz[ed] . . . as a pay down of the liquidation preference and a cor

responding redemption of Treasury’s Government Stock.” App. 118.34 COLLINS v. YELLEN

Opinion of the Court

n. 9, 438 (1998) (President’s cancellation of individual por

tions of bills under the Line Item Veto Act); Chadha , 462 U. S., at 952–956 (one-house veto of Attorney General’s de

termination to suspend an alien’s deportation); Youngs

town , 343 U. S., at 585, 587–589 (Presidential seizure and operation of steel mills). As we have explained, there is no basis for concluding that any head of the FHFA lacked the authority to carry out the functions of the office. 23 The shareholders claim to find implicit support for their argument in Seila Law and Bowsher , but they read far too much into those decisions. In Seila Law

, 24 after holding that the restriction on the removal of the CFPB Director was unconstitutional and severi ng that provision from the rest of the Dodd-Frank Act, we remanded the case so that the lower courts could decide whether, as the Government claimed, the Board’s issuance of an investigative demand had been ratified by an Acting Director who was removable at will by the President. See 591 U. S.

, at ___ (slip op., at 36). The shareholders argue that this disposition implicitly meant that the Director’s action would be void unless law

fully ratified, but we said no such thing. The remand did not resolve any issue concerni ng ratification, including whether ratification was necessary. And in Bowsher , after

——————

23 Settled precedent also confirms th at the unlawfulness of the removal provision does not strip the Director of the power to undertake the other responsibilities of his office, incl uding implementing the third amend

ment. See, e.g., Seila Law , 591 U. S., at ___–___ (slip op., at 30–36).

24 What we said about standing in Seila Law should not be misunder

stood as a holding on a party’s enti tlement to relief based on an uncon

stitutional removal restriction. We he ld that a plaintiff that challenges a statutory restriction on the Presid ent’s power to remove an executive officer can establish standing by showing that it was harmed by an action that was taken by such an officer and that the plaintiff alleges was void. See 591 U. S., at ___–___ (slip op., at 9–10). But that holding on standing does not mean that actions taken by such an officer are void ab initio and must be undone. Compare post , at 2 (G ORSUCH , J., concurring in part).35 Cite as: 594 U. S. ____ (2021)

Opinion of the Court holding that the Gramm-Rudman-Hollings Act unconstitu

tionally authorized the Comptroller General to exercise ex

ecutive power, the Court simply turned to the remedy spe

cifically prescribed by Congress. See 478 U. S.

, at 735. 25 We therefore see no reason to hold that the third amendment must be completely undone. That does not necessarily mean, however, that the share

holders have no entitlement to retrospective relief. Alt

hough an unconstitutional provis ion is never really part of the body of governing law (because the Constitution auto

matically displaces any conflicti ng statutory provision from the moment of the provision’s enactment), it is still possible for an unconstitutional provision to inflict compensable harm. And the possibility that the unconstitutional re

striction on the President’s power to remove a Director of the FHFA could have such an effect cannot be ruled out. Suppose, for example, that the President had attempted to remove a Director but was prev ented from doing so by a lower court decision holding t hat he did not have “cause” for removal. Or suppose that the President had made a public statement expressing displeasure with actions taken by a Director and had asserted that he would remove the Direc

tor if the statute did not stand in the way. In those situa

tions, the statutory provision would clearly cause harm. In the present case, the situation is less clear-cut, but the shareholders nevertheless claim that the unconstitutional removal provision inflicted harm. Were it not for that pro

vision, they suggest, the President might have replaced one of the confirmed Directors who supervised the implementa

tion of the third amendment, or a confirmed Director might

——————

25 In addition, the constitutional defect in Bowsher was different from the defect here. In Bowsher , the Comptroller General, whom Congress had long viewed as “an officer of the Legislative Branch,” 478 U. S., at 731, was vested with executive power. Here, the FHFA Director is clearly an executive officer. See post, at 5–6 (T HOMAS , J., concurring).36 COLLINS v. YELLEN

Opinion of the Court have altered his behavior in a way that would have bene

fited the shareholders. The federal parties dispute the possibility that the uncon

stitutional removal restriction caused any such harm. They argue that, irrespective of the President’s power to remove the FHFA Director, he “retained the power to supervise the [Third] Amendment’s adoption . . . because FHFA’s coun

terparty to the Amendment was Treasury—an executive department led by a Secretary subject to removal at will by the President.” Reply Brief for Federal Parties 43. The par

ties’ arguments should be resolved in the first instance by the lower courts. 26

* * * The judgment of the Court of Appeals is affirmed in part, reversed in part, and vacated in part, and the case is re

manded for further proceedings consistent with this opinion. It is so ordered.

——————

26 The lower courts may also consider all issues related to the federal parties’ argument that the doctrine of laches precludes any relief. The federal parties argue that Treasury was prejudiced by the shareholders ’ delay in filing suit because, for some time after the third amendment was adopted, there was a chance that it would benefit the shareholders. Ac

cording to the federal parties, the shar eholders waited to file suit until it became apparent that the third amen dment would not have that effect.

The shareholders respond that laches is inapplicable because they filed their complaint within the time allowe d by the statute of limitations, and they argue that their delay did not cause prejudice beca use it was “math

ematically impossible” for Treasury to make less money under the Third Amendment than under the prior regime. Reply Brief for Collins et al. 4–5 (emphasis deleted). We decline to decide this fact-bound question in the first instance._________________

_________________ Cite as: 594 U. S. ____ (2021) 1

T HOMAS , J., concurring 

## SUPREME COURT OF THE UNITED STATES

Nos. 19–422 and 19–563

PATRICK J. COLLINS, ET AL ., PETITIONERS 19–422 v. JANET L. YELLEN, SECRETARY OF THE TREASURY, ET AL

.

JANET L. YELLEN, SECRETARY OF THE TREASURY,
ET AL ., PETITIONERS 19–563 v. PATRICK J. COLLINS, ET AL

.
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
[June 23, 2021]

J USTICE T HOMAS , concurring. I join the Court’s opinion in full. I agree that the Direc

tors were properly appointed and could lawfully exercise ex

ecutive power. And I agree that, to the extent a Govern

ment action violates the Constitution, the remedy should fit the injury. But I write separately because I worry that the Court and the parties have glossed over a fundamental problem with removal-restriction cases such as these: The Government does not necessarily act unlawfully even if a removal restriction is unlawful in the abstract.

I
As discussed in more deta il by the Court, Congress cre

ated the Federal Housing Finance Agency (FHFA) in 2008. Housing and Economic Recovery Act of 2008, 12 U. S. C. §4501 et seq. The FHFA is “an independent agency.” 12 U. S. C. §4511(a). Among other things, it supervises and2 COLLINS v. YELLEN

T HOMAS , J., concurring regulates Fannie Mae and Freddie Mac, two companies cre

ated by Congress to provide liquidity and stability to the mortgage market. See §4511(b). In the midst of the 2008 financial crisis, the FHFA’s Director exercised his statutory authority under §4617(a)(1) to appoint the Agency as con

servator of Fannie Mae and Freddie Mac. As conservator, the Agency in effect had full control over the companies. The FHFA used this control to have the companies enter into several agreements with the Treasury Department to secure financing to keep both companies afloat. Relevant here, the FHFA and Treasury signed two agreements, known as the Third Amendments, requiring the companies to pay a quarterly dividend to Treasury of nearly all their net worth minus a predetermined capital reserve. Shareholders of the companies sued the FHFA, the Direc

tor, Treasury, and the Secretary of the Treasury. They ad

vanced four theories about why the adoption and enforce

ment of the Third Amendments violated the law: (1) The FHFA’s conduct exceeded its statutory authority; (2) Treas

ury’s conduct exceeded its st atutory authority; (3) Treas

ury’s conduct was arbitrary and capricious; and (4) the FHFA’s structure violated the “Separation of Powers” be

cause the President could fire the FHFA Director only “for cause.” App. 116–117; §4512(b)(2). The District Court rejected their claims. The Fifth Cir

cuit affirmed the dismissal of claims two and three, and the shareholders did not seek review of that decision. The Fifth Circuit reinstated the statutory claim, but today we cor

rectly reverse that decision. Ante
, at 12–17. The Fifth Cir

cuit also held that the shareh olders are entitled to judg

ment on the separation-of-powers claim. Collins v. Mnuchin , 938 F. 3d 553, 587 (2019)

II For the shareholders to prevail, identifying some conflict between the Constitution and a statute is not enough. They3 Cite as: 594 U. S. ____ (2021)

T HOMAS , J., concurringmust show that the challenged Government action at issue—the adoption and implementation of the Third Amend

ment—was, in fact, unlawful. See California v. Texas , 593 U. S. ___, ___–___ (2021) (slip op., at 4–9). Modern standing doctrine reflects this principle: To have standing, a plaintiff must allege an injury traceable to an “allegedly unlawful” action (or threatened action) and seek a remedy to redress that action. Allen v. Wright , 468 U. S. 737, 751 (1984); ac

cord, Virginia v. American Booksellers Assn., Inc. , 484 U. S. 383, 392 (1988); contra, 938 F. 3d, at 586 (tracing injury to the removal restriction). Here , before a court can provide relief, it must conclude that either the adoption or imple

mentation of the Third Amendment was unlawful. 1 The parties simply assume that the lawfulness of agency

——————

1 Another limit on the judicial power is relevant: A party seeking relief must have a legal right to redress. See Cohens v. Virginia , 6 Wheat. 264, 405 (1821) (explaining that Article III “d oes not extend the judicial power to every violation of the constitution which may possibly take place”). The judicial power extends only “to ‘a case in law or equity,’ in which a right, under such law, is asserted.” Ibid. We have indicated that indi

viduals may have an implied private right of action under the Constitu

tion to seek equitable relief to “ ‘preven[t] entities from acting unconsti

tutionally.’ ” Free Enterprise Fund v. Public Company Accounting Oversight Bd. , 561 U. S. 477, 491, n. 2 (2010). This includes “Appoint

ments Clause or separation-of-powers claim[s].” Ibid. I assume the shareholders have brought such a caus e of action here and have a legal right to obtain equitable relief if they can show they su ffered an injury traceable to a Government action th at violates the Constitution. The shareholders did not raise the Admi nistrative Procedure Act (APA) in count four of their complaint, but now contend their “constitutional claim is cognizable under the APA,” which permits a “ ‘reviewing court [to] hold unlawful and set aside agency action found to be contrary to constitu

tional right, power, privilege, or immunity.’ ” Brief for Collins et al. 74 (quoting 5 U. S. C. §706; ellipses om itted; emphasis in original). Even assuming they raised their constituti onal claim under the APA, it would not change the analysis; the sharehol ders would need to show they suf

fered an injury traceable to a Government action that violates the Con

stitution.4 COLLINS v. YELLEN

T HOMAS , J., concurring

action turns on the lawfulness of the removal restriction. Our recent precedents have not clearly questioned this premise, and on this premise, the Court correctly resolves the remaining legal issues. But in the future, parties and courts should ensure not only that a provision is unlawful but also that unlawful action was taken. This suit provides a good example. The shareholders largely neglect the issue of la wfulness to focus on remedy, but their briefing appears prem ised on several theories of unlawfulness. 2 First, that the removal restriction renders all Agency actions void because the Directors serve in vio

lation of the Constitution’s structural provisions, similar to Appointments Clause cases, see Lucia v. SEC , 585 U. S. ___, ___ (2018) (slip op., at 12) (holding that an Administra

tive Law Judge was unlawfully appointed), and other sepa

ration-of-powers cases, e.g., Bowsher v. Synar , 478 U. S. 714, 727–736 (1986) (holding that the Comptroller General was not an executive officer and could not exercise execu

tive power granted to him by statute). Second, that even if the Director is in the Executive Branch and the removal re

striction is just unenforceable, the mere existence of the law somehow taints all of the Director’s actions. Third, that “when FHFA’s single Director exercises Executive Power without meaningful oversight from the President, he exer

cises authority that was never properly his.” Brief for Col

lins et al. 64. Fourth, that th e statutory provision that gave the Director the power to adopt and implement the Third Amendments must fall if the statutory removal restriction is unlawful. §4617(b)(2)(J)(ii). As the Court’s reasoning make s clear, however, all these theories appear to fail on the merits.

——————

2 Because the shareholders allege the Government acted unlawfully, because their alleged injury can be traced to those allegedly unlawful actions, and because this Court migh t be able to redress that injury, I agree with the Court that they have standing. See Steel Co. v. Citizens for Better Environment , 523 U. S. 83, 89 (1998).5 Cite as: 594 U. S. ____ (2021)

T HOMAS , J., concurring

A I begin with whether the FHFA Director may lawfully ex

ercise executive authority. Th e shareholders suggest that the removal restriction inherently renders the Agency’s ac

tions void. In support, they point to our Appointments Clause cases and our other separation-of-powers cases. But the cases on which they rely prove quite the opposite. Consider our separation-of-powers cases, which set out a two-part analysis to determine whether an official can law

fully exercise a statutory power at all . First, we ask in what branch (if any) an official is located. Second, we determine whether the statutory power possessed by the official be

longs to that branch. In Bowsher , the Court determined that the Comptroller General of the United States was “an officer of the Legislative Branch” based on other statutes dating back to 1945 declaring him as such, the expressed views of other Comptrollers General, the fact that only Con

gress could remove the Comptro ller General, and the struc

ture of the office. 478 U. S., at 727–732. In light of this legislative identity, the Court held the Comptroller General could not lawfully exercise ex ecutive powers assigned to him by statute. Id., at 732–735. 3 Assuming the shareholders raise a Bowsher -type argu

ment, I agree with the Court that the FHFA Director is an

——————

3 See also Stern v. Marshall , 564 U. S. 462, 503 (2011) (bankruptcy judges, as Article I officers, cannot exercise exclusive Article III power); Clinton v. City of New York , 524 U. S. 417, 438–441, 448–449 (1998) (the President, an Article II officer, ca nnot exercise Article I line-item-veto power); Morrison v. Olson , 487 U. S. 654, 677–679 (1988) (a law cannot give a court powers that violated Article III); Glidden Co. v. Zdanok , 370 U. S. 530, 584 (1962) (plurality opinion) (concluding after exhaustive analysis that two courts were Article III courts); id., at 585–588 (Clark, J., concurring in result) (agreeing “in light of the congressional power exercised and the jurisdiction enjoyed, together with the characteristics of its judges”); American Ins. Co. v. 356 Bales of Cotton , 1 Pet. 511, 546 (1828) (a territorial court is an Article I court and admiralty jurisdiction6 COLLINS v. YELLEN

T HOMAS , J., concurring executive official who can lawfully “carry out the functions of the office.” Ante , at 33–35, and n. 25 (discussing Bowsher ). The statutory scheme creates a common type of ex

ecutive officer—an individual nominated by the President and confirmed by the Senate, who heads an agency exercis

ing executive powers and who reports to the President. The only statutory powers assigned to the Director are execu

tive. No party contends the o ffice of the FHFA Director is a nonexecutive office. No stat ute refers to him as a nonex

ecutive officer. And the statutory scheme recognizes that the President can remove the officer (but only “for cause”). §4512(b)(2). In fact, the Court concludes that the removal restriction is unconstitutional in part because the FHFA Di

rector is an executive officer whom the President needs to be able to control. See ante, at 26–32. Our cases demonstrate that the existence of a removal restriction, without more, usua lly does not take an other

wise executive officer outside the Executive Branch. True, statutory provisions governin g who can remove an officer (and when) can provide evidence of the branch to which that officer belongs. E.g., Bowsher , 478 U. S., at 727–728, and

n. 5; American Ins. Co. v. 356 Bales of Cotton , 1 Pet. 511, 546 (1828). But they generally are not dispositive. In many cases, it is obvious that the officer is executive, and it is the removal restriction—not the officer’s exercise of executive powers—that is the problem. E.g., Free Enterprise Fund v. Public Company Accounting Oversight Bd. , 561 U. S. 477, 492–508 (2010) (holding unconstitutional tenure provisions protecting executive officer, but concluding “the existence of the Board does not violate the separation of powers”); cf.

—————— can be exercised only by Article III courts, but Article IV removes this limitation with respect to the Territories).7 Cite as: 594 U. S. ____ (2021)

T HOMAS , J., concurring Myers v. United States , 272 U. S. 52, 108, 176 (1926). 4 The Appointments Clause cases do not help the share

holders either. These cases also ask whether an officer can lawfully exercise the statutory power of his office at all in light of the rule that an officer must be properly appointed before he can legally act as an officer. Lucia , 585 U. S., at ___ (slip op., at 12); Ryder v. United States , 515 U. S 177, 182–183 (1995). Otherwise, the official’s authority to exer

cise the powers of the office ge nerally is legally deficient. Id. , at 179, 182–183. Here, “[a]ll the officers who headed the FHFA during the time in question were properly ap

pointed .” Ante , at 33. There is thus no barrier to them ex

ercising power in the first instance.

B The mere existence of an unc onstitutional removal provi

sion, too, generally does not automatically taint Govern

ment action by an official unlawfully insulated. It is true the removal restriction here is unlawful. But while the shareholders are correct that the Constitution authorizes the President to dismiss the FHFA Director for any reason, no statute can take that Presidential power away. See Seila Law LLC v. Consumer Financial Protection Bureau , 591 U. S. ___, ___ (2020) (T HOMAS , J., concurring in part and dissenting in part) (slip op., at 15) (“In the context of a con

stitutional challenge, . . . if a party argues that a statute and the Constitution conflict, then courts must resolve that dispute and . . . follow the higher law of the Constitution”

——————

4 I agree with J USTICE G ORSUCH that a court must look at more than the label to determine in what branch an officer sits. Post , at 3, n. 1 (opinion concurring in part). To answer this question, courts have his

torically looked at various factors. See n.3, supra . Here, everything about the Director’s position, except the removal restriction, indicates he is an executive officer. See also ante, at 35, n. 25 (opinion of the Court). As the Court correctly explains, “the removal restriction . . . violates the separation of powers” because the Di rector is an executive officer. Ante
, at 32.8 COLLINS v. YELLEN

T HOMAS , J., concurring (internal quotation marks omitted)); ante, at 35. That the Constitution automatically trumps an incon

sistent statute creates a paradox for the shareholders. Had the removal restriction not conflicted with the Constitution, the law would never have unconstitutionally insulated any Director. And while the provision does conflict with the Constitution, the Constitution has always displaced it and the President has always had th e power to fire the Director for any reason. So regardless of whether the removal re

striction was lawful or not, the President always had the legal power to remove the Director in a manner consistent with the Constitution. 5 Brief for Harrison as Amicus Cu

riae 15–16. Moreover, no Director has ev er purported to occupy the office and exercise its powers despite a Presidential attempt at removal. No court, for example, has enjoined an attempt by the President to remove the Director. 6 So every Director

——————

5 In Seila Law , the Court did not address whether an officer acts un

lawfully if protected by an unl awful removal restriction. See ante , at 34, and nn. 23–24. That is because the Government in effect conceded the issue. Seila Law , 591 U. S., at ___ (plurality opinion) (slip op., at 30); id., at ___ (opinion of T HOMAS , J.) (slip op., at 17). Perhaps we should have addressed it then. Post , at 6–7, n. 2 (opinion of G ORSUCH , J.).

I continue to adhere to the views that I expressed in Seila Law : A com

bination of statutes can produce a separation-of-powers violation that renders Government action unlawful. See 591 U. S., at ___ (opinion con

curring in part and dissenting in pa rt) (slip op., at 21). In remedying such a separation-of-powers violation, courts cannot purport to rewrite the statute to avoid the violation. Ibid. ; post, at 6, n. 2 (opinion of G ORSUCH , J.) (“[W]e cannot divine ‘which of the provisions’ Congress would have kept and which it would have scrapped . . . had it known its actual choice was unconstitutional, ” “absent statutory direction from Congress”). However, I respectfully part ways with J USTICE G ORSUCH , because, on the merits, I am uncertain whether the unlawful removal restriction here combines with any other statutory provision in a way that renders the Government action at issue unlawful.

6 A removal restriction may unconstitutionally insulate an officer such that his actions are unlawful. If the President tries to remove an official9 Cite as: 594 U. S. ____ (2021)

T HOMAS , J., concurring is a lawfully appointed executive officer whom the Presi

dent may remove in a manner consistent with the Consti

tution but did not attempt to do so.

C Another possible theory the shareholders seem to rely on is that a misunderstanding about the correct state of the law makes an otherwise constitutional action unconstitu

tional. Thus, if the President or Director misunderstood the circumstances under which the President could have re

moved the Director, then that creates a defect in authority. But nothing in the Constitution, history, or our case law supports this expansive view of unlawfulness. The Consti

tution does not transform unfamiliarity with the Vesting Clause into a legal violation when an executive officer acts with authority. 7 Perhaps the better understanding of this argument is the Director might have acted differently if he knew that he served at the pleasure of the President. That may be true, but it is not enough for a party to show that an official acted differently because he or anoth er official incorrectly inter

preted the Vesting Clause—the party must show that the official acted unlawfully. If the President vetoed a bill on the ground that he believed it to be unconstitutional, this

—————— but a court blocks this action, then th at official is not lawfully occupying his office and would likely be acting without authority. Cf. ante , at 35. But that circumstance has not arisen here.

7 The APA might permit this type of lawsuit in allowing an individual to challenge an agency action as “arbitrary, capricious, an abuse of dis

cretion, or otherwise not in accordance with law.” 5 U. S. C. §706(2)(A). There is a colorable argument that a Government official’s misunder

standing about the scope of the Pres ident’s removal authority would ren

der an agency action arbitrary or capricious in certain cases. However, the shareholders did not bring this constitutional challenge as an arbi

trary and capricious claim against the FHFA. And if they had, we would need to consider the interaction be tween this statutory claim and the Act’s anti-injunction provision. Cf. ante, at 12–13.10 COLLINS v. YELLEN

T HOMAS , J., concurring Court could not undo that lawful act simply because an in

jured plaintiff persuasively establishes that the President was mistaken. Sure enough, we have not held that a misunderstanding about authority results in a constitutional defect where the action was otherwise lawful. Absent such authority in a “constitutional cas[e], our watch word [should be] caution.” Hernández v. Mesa , 589 U. S. ___, ___ (2020) (slip op., at 6). We should be reluctant to create a new restriction on a co

equal branch and enforce it through a new private right of action. Id. , at ___–___ (slip op., at 6–7). Doing so places great stress upon “the Constitution’s separation of legisla

tive and judicial power.” Id. , at ___ (slip op., at 5). Seila Law and Free Enterprise do not help the sharehold

ers on the lawfulness of the Government actions question. Ante , at 18, 34–35. In Seila Law , the Government in effect “conceded that [its] actions were unconstitutional” if the re

moval restriction was unconstitutional. 591 U. S., at ___ (opinion of T HOMAS , J.) (slip op., at 17). So the Court as

sumed “that [petitioner] ‘sustain[ed] injury’ from an execu

tive act that allegedly exceed s the official’s authority.” Id., at ___ (slip op., at 10); ante , at 34–35. In Free Enterprise
, we considered a similar challe nge to a removal restriction without questioning the plaintiffs’ standing “where plain

tiffs claimed injury from allegedly unlawful agency over

sight.” Ante , at 18. And then we assumed that the agency lacked the authority to act lawfully if the removal re

striction there were invalid.

D The shareholders’ briefing strongly implies one final ar

gument: The statutory provision giving the FHFA the power to act as conservator, 12 U. S. C. §4617(b)(2)(J)(ii), cannot be severed from the removal restriction. Brief for Collins et al. 77–79. Thus, the argument goes, if the re

moval provision is unlawful, then §4617(b)(2)(j)(ii) is too11 Cite as: 594 U. S. ____ (2021)

T HOMAS , J., concurring and the FHFA Directors acted without statutory authority. Assuming that the unlawfulness of one provision can cause another to be unlawful, this inquiry is just a question of statutory interpretation. See Seila Law , 591 U. S., at ___ (opinion of T HOMAS , J.) (slip op., at 20); Lea, Situational Severability, 103 Va. L. Rev. 735, 764–776 (2017). The Re

covery Act contains no inse verability clause. Contra, 4 U. S. C. §125 (inseverability clause). Nor does it contain any fallback provision stating that §4617(b)(2)(j)(ii) should be altered if the removal clause is found unlawful. Without something in the statutory text or structure to show that §4617(b)(2)(j)(ii)’s lawfulness rises or falls based on the re

moval restriction, this argument is also unconvincing.

* * * I do not understand the parties to have sought review of these issues in this Court. So the Court correctly resolves the legal issues presented. That being said, I seriously doubt that the shareholders can demonstrate that any rel

evant action by an FHFA Director violated the Constitu

tion. And, absent an unlawful act, the shareholders are not entitled to a remedy. The Fifth Circuit can certainly con

sider this issue on remand._________________

_________________ 1 Cite as: 594 U. S. ____ (2021)

Opinion of K AGAN , J. 

## SUPREME COURT OF THE UNITED STATES

Nos. 19–422 and 19–563

PATRICK J. COLLINS, ET AL ., PETITIONERS 19–422 v. JANET L. YELLEN, SECRETARY OF THE TREASURY, ET AL

.

JANET L. YELLEN, SECRETARY OF THE TREASURY,
ET AL ., PETITIONERS 19–563 v. PATRICK J. COLLINS, ET AL

.
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
[June 23, 2021]

J USTICE K AGAN , with whom J USTICE B REYER and J USTICE S OTOMAYOR join as to Part II, concurring in part and concurring in the judgment. Faced with a global financia l crisis, Congress created the Federal Housing Finance Agency (FHFA) and gave it broad powers to rescue the Nation’s mortgage market. I join the Court in deciding that the FHFA wielded its authority within statutory limits. On the main constitutional ques

tion, though, I concur only in the judgment. Stare decisis compels the conclusion that the FHFA’s for-cause removal provision violates the Constitution. But the majority’s opinion rests on faulty theoretical premises and goes fur

ther than it needs to. I also write to address the remedial question. The majority’s analysis, which I join, well ex

plains why backwards-looking relief is not always neces

sary to redress a removal violation. I add only two2 COLLINS v. YELLEN

Opinion of K AGAN , J. thoughts. The broader is that the majority’s remedial hold

ing mitigates the harm of the removal doctrine applied here. The narrower is that, as I read the decision below, the Court of Appeals has already done what is needed to find that the plaintiffs are not entitled to their requested relief.

I I agree with the majority that Seila Law LLC v. Con

sumer Financial Protection Bureau , 591 U. S. ___ (2020), governs the constitutional question here. See ante , at 26. In Seila Law , the Court held that an “agency led by a single [d]irector and vested with significant executive power” com

ports with the Constitution only if the President can fire the director at will. 591 U. S., at ___ (slip op., at 18). I dis

sented from that decision—vehemently. See id. , at ___ (K AGAN , J., dissenting) (slip op., at 4) (“The text of the Con

stitution, the history of the co untry, the precedents of this Court, and the need for sound and adaptable governance— all stand against the majority’s opinion”). But the “doctrine of stare decisis requires us, absent special circumstances, to treat like cases alike”—even when that means adhering to a wrong decision. June Medical Services L. L. C. v. Russo
, 591 U. S. ___, ___ (2020) (R OBERTS , C. J., concurring in judgment) (slip op., at 2). So the issue now is not whether Seila Law was correct. The question is whether that case is distinguishable from this one. And it is not. As I ob

served in Seila Law , the FHFA “plays a crucial role in over

seeing the mortgage market, on which millions of Ameri

cans annually rely.” 591 U. S., at ___ (slip op., at 31). It thus wields “significant executive power,” much as the agency in Seila Law did. And I agree with the majority that there is no other legally relevant distinction between the two. See ante , at 29–32. For two reasons, however, I do not join the majority’s dis

cussion of the constitutional issue. First is the majority’s3 Cite as: 594 U. S. ____ (2021)

Opinion of K AGAN , J. political theory. Throughout the relevant part of its opin

ion, the majority offers a contestable—and, in my view, deeply flawed—account of how our government should work. At-will removal authority, the majority intones, “is essential to subject Executive Branch actions to a degree of electoral accountability”—and so courts should grant the President that power in cases like this one. Ante , at 27. I see the matter differently (as, I might add, did the Fram

ers). Seila Law , 591 U. S., at ___–___ (K AGAN , J., dissent

ing) (slip op., at 9–13). The right way to ensure that gov

ernment operates with “electoral accountability” is to lodge decisions about its structure with, well, “the branches ac

countable to the people.” Id.

, at ___ (slip op., at 38); see id.

, at ___ (slip op., at 39) (the Co nstitution “ins tructs Congress, not this Court, to decide on ag ency design”). I will subscribe to decisions contrary to my view where precedent, fairly read, controls (and there is no special justification for rever

sal). But I will not join the majority’s mistaken musings about how to create “a workable government.” Id. , at ___ (slip op., at 38) (quoting Youngstown Sheet & Tube Co. v. Sawyer , 343 U. S. 579, 635 (1952) (Jackson, J., concurring)). My second objection is to the majority’s extension of Seila Law ’s holding. Again and again, Seila Law emphasized that its rule was limited to single-director agencies “wield[ing] significant executiv e power.” 591 U. S., at ___ (plurality opinion) (slip op., at 2); see id. , at ___ (majority opinion) (slip op., at 18); id. , at ___ (plurality opinion) (slip op., at 36). To take Seila Law at its word is to acknowledge where it left off: If an agency did not exercise “significant executive power,” the constitu tionality of a removal re

striction would remain an open question. Accord, post , at 11–12 (S OTOMAYOR , J., concurring in part and dissenting in part). But today’s majority careens right past that bound

ary line. Without even mentioning Seila Law ’s “significant executive power” framing, the majority announces that, ac

tually, “the constitutionality of removal restrictions” does4 COLLINS v. YELLEN

Opinion of K AGAN , J. not “hinge[ ]” on “the nature and breadth of an agency’s au

thority.” Ante , at 27, 29. Any “agency led by a single Direc

tor,” no matter how much executive power it wields, now becomes subject to the requirement of at-will removal. Ante , at 26. And the majority’s broadening is gratuitous— unnecessary to resolve the dispute here. As the opinion later explains, the FHFA exercises plenty of executive au

thority: Indeed, it might “be considered more powerful than the CFPB.” Ante , at 28. So the majority could easily have stayed within, rather than reached out beyond, the rule Seila Law created. In thus departing from Seila Law , the majority strays from its own obligation to respect precedent. To ensure that our decisions reflect the “evenhanded” and “consistent de

velopment of legal principles,” not just shifts in the Court’s personnel, s tare decisis demands something of Justices pre

viously on the losing side. Payne v. Tennessee , 501 U. S. 808, 827 (1991). They (meaning here, I) must fairly apply decisions with which they disagree. But fidelity to prece

dent also places demands on the winners. They must apply the Court’s precedents—limits and all—wherever they can, rather than widen them unnecessarily at the first oppor

tunity. Because today’s majority does not conform to that command, I concur in the judgment only.

II I join in full the majority’s discussion of the proper rem

edy for the constitutional violation it finds. I too believe that our Appointments Clause precedents have little to say about remedying a removal problem. See ante , at 33–34; cf. Lucia v. SEC , 585 U. S. ___, ___ (2018) (slip op., at 12) (re

quiring a new hearing before a pr operly appointed official). As the majority explains, the officers heading the FHFA, unlike those with invalid appointments, possessed the “au

thority to carry out the functions of the office.” Ante , at 34. I also agree that plaintiffs al leging a removal violation are5 Cite as: 594 U. S. ____ (2021)

Opinion of K AGAN , J. entitled to injunctive relief— a rewinding of agency action— only when the President’s inability to fire an agency head affected the complained-of decision. See ante , at 35–36. Only then is relief needed to restore the plaintiffs to the po

sition they “would have occupied in the absence” of the re

moval problem. Milliken v. Bradley , 433 U. S. 267, 280 (1977); see D. Laycock & R. Hasen, Modern American Rem

edies 275 (5th ed. 2019). Granting relief in any other case would, contrary to usual reme dial principles, put the plain

tiffs “in a better position” than if no constitutional violation had occurred. Mt. Healthy City Bd. of Ed. v. Doyle , 429 U. S. 274, 285 (1977). The majority’s remedial holding limits the damage of the Court’s removal jurisprudence. As the majority explains, its holding ensures that actions the President supports— which would have gone forward whatever his removal power—will remain in place. See ante , at 35. In refusing to rewind those presidentially favored decisions, the major

ity prevents theories of formal presidential control from sty

mying the President’s real-world ability to carry out his agenda. Similarly, the majority’s approach should help pro

tect agency decisions that wo uld never have risen to the President’s notice. Consider the hundreds of thousands of decisions that the Social Se curity Administration (SSA) makes each year. The SSA has a single head with for-cause removal protection; so a betti ng person might wager that the agency’s removal provision is next on the chopping block. Cf. ante , at 32, n. 21. But given the majority’s reme

dial analysis, I doubt the mass of SSA decisions—which would not concern the President at all—would need to be undone. That makes sense. “[P]residential control [does] not show itself in all, or even all important, regulation.” Ka

gan, Presidential Administration, 114 Harv. L. Rev. 2245, 2250 (2001). When an agency decision would not capture a President’s attention, his remo val authority could not make a difference—and so no injunction should issue.6 COLLINS v. YELLEN

Opinion of K AGAN , J. My final point relates to the last sentence of the major

ity’s remedial section. There, the Court holds that the de

cisive question—whether the removal provision mattered— “should be resolved in the first instance by the lower courts.” Ante , at 36. That remand follows the Court’s usual practice: We are, as we often say, not a “court of first view.” Alabama v. Shelton , 535 U. S. 654, 673 (2002). But here the lower court proceedings may be brief indeed. As I read the opinion below, the Court of Appeals already considered and decided the issue remanded today. The court noted that all of the FHFA’s policies were jointly “created [by] the FHFA and Treasury” and that the Secretary of the Treas

ury is “subject to at will removal by the President.” Collins

v. Mnuchin , 938 F. 3d 553, 594 (CA5 2019). For that rea

son, the court concluded, “we need not speculate about whether appropriate presidential oversight would have stopped” the FHFA’s actions. Ibid. “We know that the President, acting through the Secretary of the Treasury, could have stopped [them] but did not.” Ibid ; see ibid. , n. 6 (noting that the plaintiffs’ “allegations show that the Pres

ident had oversight of the action”). That reasoning seems sufficient to answer the question the Court kicks back, and nothing prevents the Fifth Circuit from reiterating its anal

ysis. So I join the Court’s opinion on the understanding that this litigation could speedily come to a close.G ORSUCH , J., concurring

_________________

_________________ 1 Cite as: 594 U. S. ____ (2021)

G ORSUCH , J., concurring in part 

## SUPREME COURT OF THE UNITED STATES

Nos. 19–422 and 19–563

PATRICK J. COLLINS, ET AL ., PETITIONERS 19–422 v. JANET L. YELLEN, SECRETARY OF THE TREASURY, ET AL

.

JANET L. YELLEN, SECRETARY OF THE TREASURY,
ET AL ., PETITIONERS 19–563 v. PATRICK J. COLLINS, ET AL

.
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
[June 23, 2021]

J USTICE G ORSUCH , concurring in part. I agree with the Court on the merits and am pleased to join nearly all of its opinion. I part ways only when it comes to the question of remedy addressed in Part III–C. As the Court observes, the only question before us con

cerns retrospective relief. Ante , at 32. By the time we turn to that question, the plainti ffs have proven that the Direc

tor was without constitutional authority when he took the challenged actions implementing the Third Amendment. In response to such a showin g, a court would normally set aside the Director’s ultra vires actions as “contrary to con

stitutional right,” 5 U. S. C. §706(2)(B), subject perhaps to consideration of traditional remedial principles such as laches. See ante , at 36, n. 26; Abbott Laboratories v. Gard

ner , 387 U. S. 136, 155 (1967). Because the Court of Ap

peals did not follow this course , this Court would normally vacate the judgment in this suit with instructions requiring2 COLLINS v. YELLEN

G ORSUCH , J., concurring in part the Court of Appeals to confor m its judgment to traditional practice. Today, the Court acknowledges it has taken ex

actly this course in cases involving unconstitutionally ap

pointed executive officials. Ante , at 33–34. Still, the Court submits, we should treat this suit differ

ently because the Director was unconstitutionally insulated from removal rather than unconstitutionally appointed. Ante, at 33–34; see also ante , at 7 (T HOMAS , J., concurring). It is unclear to me why this distinction should make a dif

ference. Either way, governme ntal action is taken by some

one erroneously claiming the mantle of executive power— and thus taken with no authority at all. The Court points to not a single precedent in 230 years of history for the dis

tinction it would have us draw. Nor could it. The course it pursues today defies our precedents. In Bowsher v. Synar

, 478 U. S. 714 (1986), this Court concluded that Congress had vested the Comptroller Gene ral with “the very essence” of executive power, id. , at 732–733, but that he was (imper

missibly) removable only by Congress, id.

, at 727–728. In Seila Law LLC v. Consumer Financial Protection Bureau

, 591 U. S. ___ (2020), we found Congress had assigned the CFPB Director sweeping authority over the financial sec

tor, id. , at ___–___ (slip op., at 4–6), while insulating him “from removal by an accountable President,” id. , at ___ (slip op., at 23). In both cases that meant the officers could “not be entrusted with executive powers” from day one, Bowsher

, 478 U. S., at 732, and the challenged actions were “void,” Seila Law , 591 U. S., at ___ (slip op., at 10). 1

—————— 1 The Court’s attempt to sidestep these cases leads nowhere. Seila Law , we are told, discussed standing—n ot remedies—when it said plain

tiffs “ ‘sustain[ ] injury’ ” from unlawfully insulate d executive action and may “challeng[e] [such] action as void.” See ante, at 34, n. 24. But stand

ing and remedies are joined at the hi p: Article III permits a court only to provide “a remedy that redresses the plaintiffs’ injury-in-fact .” Collins

v. Mnuchin , 938 F. 3d 553, 609 (CA5 2019) (Oldham, J., concurring in3 Cite as: 594 U. S. ____ (2021)

G ORSUCH , J., concurring in part If anything, removal restricti ons may be a greater consti

tutional evil than appointment defects. New Presidents al

ways inherit thousands of Executive Branch officials whom they did not select. It is the power to supervise—and, if need be, remove—subordinate officials that allows a new President to shape his administration and respond to the electoral will that propelled him to office. After all, from the moment “an officer is appointed, it is only the authority that can remove him, and not the authority that appointed him, that he must fear.” Synar v. United States , 626 F. Supp. 1374, 1401 (DC 1986) ( per curiam ). Chief Justice Taft, who knew a little about such things, put it this way: “[W]hen the grant of the execut ive power is enforced by the express mandate to take care t hat the laws be faithfully ex

ecuted, it emphasizes the necessity for including within the executive power as conferred the exclusive power of re

moval.” Myers v. United States , 272 U. S. 52, 122 (1926). Because the power of supervising subordinates is essential to sound constitutional administration, as between presi

dential hiring and firing “the unfettered ability to remove is the more important.” M. McConnell, The President Who Would Not Be King 167 (2020).

—————— part and dissenting in part) (emphasi s added). That is why a plaintiff “must have standing [for] each form of relief” sought. Town of Chester v. Laroe Estates, Inc. , 581 U. S. ___, ___ (2017) (slip op., at 5). Bowsher , we are told, involved a legislative offi cer—not an executive one, which sup

posedly makes all the difference. Ante , at 35, n. 25. But there the Comp

troller was legislative only in the se nse that he headed an “independent” department and was accountable to Congress rather than the President. 478 U. S, at 730–732. If there is any difference here, it’s that the FHFA Director—who likewise heads an “i ndependent” agency , 12 U. S. C. §4511(a)—is accountable to no one

. The idea that whether acts are void or not turns on a labe l rather than on the functions an officer is assigned and who he is accountable to should not be taken seriously. E.g., Bowsher , 478 U. S., at 727–728, 732–733; Free Enterprise Fund v. Public Company Accounting Oversight Bd. , 561 U. S. 477, 484–486, 496–498 (2010); Seila Law , 591 U. S., at ___–___, ___ (slip op., at 4–6, 23); ante , at 27–29, 31–32.4 COLLINS v. YELLEN

G ORSUCH , J., concurring in part Protecting this aspect of the separation of powers isn’t just about protecting presidential authority. Ultimately, the separation of powers is designed to “secure[ ] the free

dom of the individual.” Bond v. United States , 564 U. S. 211, 221 (2011); ante , at 20–21. That’s no less true here than anywhere else. As Hamilton explained, the point of ensuring presidential supervision of the Executive Branch is to ensure “a due dependence on the people” and “a due responsibility” to them; these are key “ingredients which constitute safety in the republican sense.” The Federalist No. 70, p. 424 (C. Rossiter ed. 1961). In the case of a re

moval defect, a wholly unaccountable government agent as

serts the power to make decisi ons affecting individual lives, liberty, and property. The chain of dependence between those who govern and those who endow them with power is broken. United States v. Arthrex, Inc.

, ante, at 3 (G ORSUCH , J., concurring in part and dissenting in part). Few things could be more perilous to lib erty than some “fourth branch” that does not answer even to the one executive official who is accountable to the body politic. FTC v. Ruberoid Co. , 343 U. S. 470, 487 (1952) (Jackson, J., dissenting). Instead of applying our tradi tional remedy for constitu

tional violations like these, the Court supplies a novel and feeble substitute. The Court says that, on remand in this suit, lower courts should inquire whether the President would have removed or overruled the unconstitutionally in

sulated official had he known he had the authority to do so. Ante , at 35. So, if lower courts find that the President would have removed or overruled the Director, then the for-cause removal provision “clearly cause[d] harm” and the Direc

tor’s actions may be set aside. Ibid. Not only is this “relief ” unlike anything this Court has ever before authorized in cases like ours; it is materially identical to a remedial approach this Court previously re

jected. In Bowsher , the Court directly addressed and ex

-5 Cite as: 594 U. S. ____ (2021)

G ORSUCH , J., concurring in part pressly refused the dissent’s insistence that it should un

dertake a “ ‘consideration’ of the ‘practical result of the re

moval provision.’ ” 478 U. S., at 730. Instead of speculating about what would have happe ned in a different world where the officer’s challenged actions were reviewable within the Executive Branch, the Court recognized that un

constitutionally insulating an officer from removal “inflicts a ‘here-and-now’ injury” on affected parties. Seila Law , 591 U. S., at ___ (slip op., at 10). In this world, real people are injured by actions taken without lawful authority. “The Framers did not rest our liberties on . . . minutiae” like some guessing game about what might have transpired in another timeline. Free Enterprise Fund v. Public Company Accounting Oversight Bd. , 561 U. S. 477, 500 (2010). Other problems attend the Court’s remedial science fic

tion. It proceeds on an assumption that Congress would have adopted a version of the Housing and Economic Recov

ery Act (HERA) that allowed the President to remove the Director. But that is sheer speculation. It is equally possi

ble that—had Congress known it could not have a Director independent from presidential supervision—it would have deployed different tools to rein in Fannie Mae and Freddie Mac. Surely, Congress possessed no shortage of options. By way of example, it could have conferred new regulatory functions on an existing (and accountable) agency like the Department of Housing and Urban Development, or it might have enacted detailed statutes to govern Fannie and Freddie’s activities directly. For that matter, Congress might have opted for no additional oversight rather than subject the Federal Housing Finance Agency (FHFA) to su

pervision by the President. This Court possesses no autho rity to substitute its own judgment about which legislative solution Congress might have adopted had it considered a problem never put to it. That is not statutory interpretation; it is statutory reinven

tion. Indeed, while never uttering the words “severance6 COLLINS v. YELLEN

G ORSUCH , J., concurring in part doctrine,” the Court today winds up implicitly resting its remedial enterprise upon it—severing, or removing, one part of Congress’s work based on speculation about its wishes and usurping a legisl ative prerogative in the pro

cess. See, e.g., Arthrex

, ante, at 6–7 (G ORSUCH , J., concur

ring in part and dissenting in part); Synar

, 626 F. Supp., at 1393. By once again purporting to do Congress’s job, we discourage the people’s representatives from taking up for themselves the task of consulting their oaths, grappling with constitutional problems, and specifying a solution in statutory text. “Congress can now simply rely on the courts to sort [it] out.” Tennessee v. Lane , 541 U. S. 509, 552 (2004) (Rehnquist, C. J., dissenting). 2

——————

2 J USTICE T HOMAS stakes out more foreign terrain. After saying that he “join[s] the Court’s opinion in fu ll,” he argues there was no constitu

tional violation at all because the Pr esident—despite statutes barring his way—was free to remove the Director all along. Ante , at 1, 4, 11. Ac

cordingly, it seems J USTICE T HOMAS disagrees with all of Part III–B’s merits analysis in addition to the Court’s novel remedy in Part III–C. Like the Court, though, he seemingly takes as given that Congress would have chosen to adopt HERA even if it had known this course required subjecting the Director to removal by the President. Ante , at 5–6. In doing so, he parts ways with his opinion last year in Seila Law , where he recognized the following: First, in cases like ours, a constitutional viola

tion arises because of “the combination” of statutory terms that (1) confer executive power on an official and (2 ) improperly insulate him from re

moval. 591 U. S., at ___ (T HOMAS , J., concurring in part and dissenting in part) (slip op., at 21). Second, absent statutory direction from Con

gress, we cannot divine “which of the provisions” Congress would have kept and which it would have scra pped—or what else it might have done—had it known its actual choice was unconstitutional. Id., at ___ (slip op., at 23). Third, this Court lacks the “ ‘editorial freedom’ ” to pick and choose among options like these, for doing so would usurp Congress ’s legislative authority. Ibid. Today, J USTICE T HOMAS suggests Seila Law rested on one party’s concession about the meaning of the law. Ante , at 8, n. 5; ante , at 10. But parties cannot stipulate to the law. E.g., Zivo

tofsky v. Kerry , 576 U. S. 1, 41, n. 2 (2015) (T HOMAS , J., concurring in judgment in part and dissenting in part); Young v. United States , 315 U. S. 257, 258–259 (1942). More importantly, his observations were right then—and they remain so today.7 Cite as: 594 U. S. ____ (2021)

G ORSUCH , J., concurring in part The Court’s conjecture does not stop there. After guess

ing what legislative scheme Congress would have adopted in some hypothetical but-for world, the Court tasks lower courts and the parties with reconstructing how executive agents would have reacted to it . On remand, we are told, the litigants and lower courts must ponder whether the President would have removed the Director had he known he was free to do so. Ante , at 35. But how are judges and lawyers supposed to construct the counterfactual history? It is no less a speculative enterprise than guessing what Congress would have done had it known its statutory scheme was unconstitutional. It ’s only that the Court pre

fers to reserve the big hypothet ical (legislative) choice for itself and leave others for lower courts to sort out. Consider the guidance the Court offers. It says lower courts should examine clues such as whether the President made a “public statement expr essing displeasure” about something the Director did, or whether the President “at

tempted” to remove the Dire ctor but was stymied by lower
courts. Ibid. But what if the President never considered the possibility of removing the Director because he was never advised of that possibility? What if his advisers themselves never contemplated the option given statutory law? And even putting all that aside, what evidence should courts and parties consult wh en inquiring into the Presi

dent’s “displeasure”? Are they restricted to publicly availa

ble materials, even though the most probative evidence may be the most sensitive? To ascertain with any degree of con

fidence the President’s state of mind regarding the Director, don’t we need testimony from him or his closest staff? The Court declines to tangle with any of these questions. It’s hard not to wonder whether that’s because it intends for this speculative enterprise to go nowhere. Rather than in

trude on often-privileged exec utive deliberations, the Court may calculate that the lower courts on remand in this suit will simply refuse retroactive relief. See, e.g., ante , at 68 COLLINS v. YELLEN

G ORSUCH , J., concurring in part (K AGAN , J., concurring in part and concurring in the judgment). But if this is what the Court intends, why not just admit it and put these parties out of their misery? As strange as the Court’s remand instructions are, the more important question lower co urts face isn’t how to re

solve this suit but what to do with the next one. Today, the Court sounds the call to arms and declares a constitutional violation only to head for the hills as soon as it’s faced with a request for meaningful relief. But as we have seen, the Court has in the past consistently vindicated Article II both in reasoning and in remedy. E.g., Seila Law , 591 U. S., at ___ (opinion of R OBERTS , C. J.) (slip op., at 36); Lucia v. SEC , 585 U. S. ___, ___–___, n. 5 (2018) (slip op., at 12–13,

n. 5); NLRB v. Noel Canning , 573 U. S. 513, 557 (2014); Ry

der v. United States , 515 U. S. 177, 182–183 (1995); Bowsher , 478 U. S., at 736. These cases—involving appoint

ment and removal defects alike—remain good law. So what are lower courts faced with fu ture removal defect cases to make of all this? The only lesson I can divine is that the Court’s opinion today is a pr oduct of its unique context—a retreat prompted by the prospect that affording a more tra

ditional remedy here could mean unwinding or disgorging hundreds of millions of dollars that have already changed hands. Ante , at 32–33. The Court may blanch at authoriz

ing such relief today, but nothing it says undoes our prior guidance authorizing more meaningful relief in other situ

ations. For my part, rather than carv e out some suit-specific, re

moval-only, money-in-the-bank exception to our normal rules for Article II violations, I would take a simpler and more familiar path. Whether unconstitutionally installed or improperly unsupervised, officials cannot wield execu

tive power except as Article II provides. Attempts to do so are void; speculation about al ternate universes is neither necessary nor appropriate. In the world we inhabit, where9 Cite as: 594 U. S. ____ (2021)

G ORSUCH , J., concurring in part individuals are burdened by unc onstitutional executive ac

tion, they are “entitled to relief.” Lucia , 585 U. S., at ___ (slip op., at 12).S OTOMAYOR , J., concurring in part and dissenting in part

_________________

_________________ 1 Cite as: 594 U. S. ____ (2021)

Opinion of S OTOMAYOR , J. 

## SUPREME COURT OF THE UNITED STATES

Nos. 19–422 and 19–563

PATRICK J. COLLINS, ET AL ., PETITIONERS 19–422 v. JANET L. YELLEN, SECRETARY OF THE TREASURY, ET AL

.

JANET L. YELLEN, SECRETARY OF THE TREASURY,
ET AL ., PETITIONERS 19–563 v. PATRICK J. COLLINS, ET AL

.
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
[June 23, 2021]

J USTICE S OTOMAYOR , with whom J USTICE B REYER joins, concurring in part and dissenting in part. Prior to 2010, this Court had gone the greater part of a century since it last prevented Congress from protecting an Executive Branch officer from unfettered Presidential re

moval. Yet today, for the third time in just over a decade, the Court strikes down the tenure protections Congress provided an independent agency’s leadership. Last Term, the Court held in Seila Law LLC v. Consumer Financial Protection Bureau , 591 U. S. ___ (2020), that forcause removal protection for the Director of the Consumer Financial Protection Bureau (CFPB) violated the separa

tion of powers. Id. , at ___ (slip op., at 3). As an “independ

ent agency led by a single Di rector and vested with signifi

cant executive power,” the Court reasoned, the CFPB had “no basis in history and no place in our constitutional struc-S OTOMAYOR , J., concurring in part and dissenting in part 2 COLLINS v. YELLEN

Opinion of S OTOMAYOR , J.
ture.” Id. , at ___ (slip op., at 18). Seila Law expressly dis

tinguished the Federal Hous ing Finance Agency (FHFA), another independent Agency he aded by a single Director, on the ground that the FHFA does not possess “regulatory or enforcement authority remote ly comparable to that exer

cised by the CFPB.” Id. , at ___–___ (slip op., at 20–21). Moreover, the Court found it significant that, unlike theCFPB, the FHFA “regulates primarily Governmentsponsored enterprises, not purely private actors.” Id. , at ___ (slip op., at 20). Nevertheless, the Court today holds that the FHFA and CFPB are comparable after all, and that any differences be

tween the two are irrelevant to the constitutional separa

tion of powers. That reasoning cannot be squared with this Court’s precedents, least of all last Term’s Seila Law . I re

spectfully dissent in part from the Court’s opinion and from the corresponding portions of the judgment. 1

I Congress created the FHFA in the Housing and Economic Recovery Act of 2008 (Recovery Act), 12 U. S. C. §4501 et
seq. The FHFA supervises the Federal National Mortgage Association (Fannie Mae), the Federal Home Loan Mort

gage Corporation (Freddie Mac), and the 11 Federal Home Loan Banks. These 13 Government-sponsored entities (GSEs) provide liquidity and stability to the national hous

ing market by, among other things, purchasing mortgage

——————

1 I join Parts I and II of the Court’s opinion rejecting petitioners’ argu

ment that the FHFA actions under re view violated the Housing and Eco

nomic Recovery Act of 2008, as well as Part III–C discussing what theappropriate remedial implications would be if the FHFA Director’s forcause removal protection were unconsti tutional. I join also Part II of J USTICE K AGAN ’s concurrence concerning the proper remedial analysis for the Fifth Circuit to conduct on remand. Finally, I note that J USTICE T HOMAS ’ arguments that an improper removal restriction does not nec

essarily render agency action unlaw ful warrant further consideration in an appropriate case.S OTOMAYOR , J., concurring in part and dissenting in part 3 Cite as: 594 U. S. ____ (2021)

Opinion of S OTOMAYOR , J. loans from, and offering financing to, private lenders. The FHFA “establish[es] standards” for the GSEs relat

ing to risk management, internal auditing, and minimum capital requirements. §4513b(a). If the FHFA believes a GSE may be failing to meet its requirements under the Act, the Agency may initiate administrative proceedings, §4581, issue subpoenas, §4517(g), and, in some circumstances, im

pose monetary penalties, §4585. In the event a GSE falls into financial distress, the FHFA may appoint itself “con

servator or receiver for the purpose of reorganizing, reha

bilitating, or winding up” the GSE’s affairs. §4617(a)(2). In 2008, the FHFA put both Fannie Mae and Freddie Mac under conservatorship. In 2016, shareholders of Fannie Mae and Freddie Mac (petitioners) sued the FHFA, chal

lenging the Agency’s conservatorship decisions in part by arguing that the Agency’s structure is unconstitutional. The FHFA is headed by a single Director, who serves a 5

- year term and may be removed by the President “for cause.” §4512(b)(2). According to petitioners, the separation of powers requires the FHFA Direct or to be removable by the President at will.

II Where Congress is silent on the question, the general rule is that the President may remove Executive Branch officers at will. See Myers v. United States , 272 U. S. 52, 126 (1926). Throughout our Nation’s hist ory, however, Congress has identified particular officers who, because of the nature of their office, require a degree of independence from Presi

dential control. Those officers may be removed from their posts only for cause. Often, Congress has granted financial regulators such independence in order to bolster public con

fidence that financial policy is guided by long-term think

ing, not short-term political expediency. See Seila Law

, 591 U. S., at ___–___ (slip op., at 13–16) (K AGAN , J., concurring in judgment with respect to severability and dissenting inS OTOMAYOR , J., concurring in part and dissenting in part 4 COLLINS v. YELLEN

Opinion of S OTOMAYOR , J. part) (discussing examples). Other times, Congress has provided tenure protection to officers who investigate other Government actors and thus migh t face conflicts of interest if directly controlled by the President. See, e.g. , 28 U. S. C. §596(a)(1) (making an independent counsel removable “only by the personal action of the Attorney General and only for good cause” or disability). In a line of decisions spanning more than half a century, this Court consistently approv ed of independent agencies and independent counsels within the Executive Branch. See Humphrey’s Executor v. United States , 295 U. S. 602 (1935); Wiener v. United States , 357 U. S. 349 (1958); Mor

rison v. Olson , 487 U. S. 654 (1988). In recent years, how

ever, the Court has taken an unprecedentedly active role in policing Congress’ decisions about which officers should en

joy independence. See Seila Law , 591 U. S. ___; Free Enter

prise Fund v. Public Company Accounting Oversight Bd.

, 561 U. S. 477 (2010). These decisions have focused almost exclusively on perceived threats to the separation of powers posed by limiting the President’s removal power, while largely ignoring the Court’s own encroachment on Con

gress’ constitutional authorit y to structure the Executive Branch as it deems necessary. Never before, however, has the Court forbidden simple for-cause tenure protection fo r an Executive Branch officer who neither exercises signific ant executive power nor regu

lates the affairs of private parties. Because the FHFA Di

rector fits that description, this Court’s precedent, separation-of-powers principles, and proper respect for Congress all support leaving in place Congress’ limits on the grounds upon which the President may remove the Di

rector.
A
In Seila Law , the Court held that the CFPB Director, an individual with “the authority to bring the coercive powerS OTOMAYOR , J., concurring in part and dissenting in part 5 Cite as: 594 U. S. ____ (2021)

Opinion of S OTOMAYOR , J.
of the state to bear on millions of private citizens and busi

nesses,” 591 U. S., at ___ (slip op., at 18), must be removable by the President at will. In so holding, the Court declined to overrule Humphrey’s Executor and Morrison , which re

spectively upheld the independence of the Federal Trade Commission’s (FTC) five-member board and an independ

ent counsel tasked with investigating Government malfea

sance. See 591 U. S., at ___ (slip op., at 27) (“[W]e do not revisit Humphrey’s Executor or any other precedent today”). Instead, Seila Law opted not to “extend those precedents” to the CFPB, “an independent agency led by a single Direc

tor and vested with significant executive power.” 591 U. S., at ___ (slip op., at 18). 2 The Court today concludes that the reasoning of Seila Law “dictates” that the FHFA is unconstitutionally struc

tured because it, too, is led by a single Director. Ante , at 26. But Seila Law did not hold that an independent agency may never be run by a single indivi dual with tenure protection. Rather, that decision stated, repeatedly, that its holding was limited to a single-director agency with “significant ex

ecutive power.” 591 U. S., at ___, ___, ___ (slip op., at 2, 18, 36). The question, therefore, is not whether the FHFA is headed by a single Director, but whether the FHFA wields “significant” executive power. It does not. As a yardstick for measuring the constitutional signifi

cance of an agency’s executive power, Seila Law looked to the FTC as it existed at the time of Humphrey’s Executor (the 1935 FTC). 591 U. S., at ___–___ (slip op., at 16–17). That agency had a roving mand ate to prevent private indi

viduals and corporations alike from engaging in “ ‘unfair

——————

2 As J USTICE K AGAN explained in dissent, Seila Law rested on implau

sible recharacterizations of this Co urt’s separation-of-powers jurispru

dence. I continue to believe that Seila Law was wrongly decided. What

ever the merits of that decision, howe ver, it does not support invalidating the FHFA Director’s independence.S OTOMAYOR , J., concurring in part and dissenting in part 6 COLLINS v. YELLEN

Opinion of S OTOMAYOR , J. methods of competition in commerce.’ ” Humphrey’s Execu

tor , 295 U. S., at 620 (citing 15 U. S. C. §45). To carry out its mandate, the 1935 FTC had broad authority to issue complaints and cease-and-desist orders. 295 U. S., at 620. The agency also had “wide powers of investigation,” which it used to make recommendations to Congress, as well as the responsibility to assist courts in antitrust litigation by

“ ‘ascertain[ing] and report[ing] an appropriate form of de

cree.’ ” Id. , at 621. These powers may seem “significant” in a colloquial sense. In Seila Law ’s view, however, they did not rise to the level of constitutional significance. That was in con

trast to the CFPB’s powers , which far outstrip the 1935 FTC’s. While the 1935 FTC’s ambit was limited to prevent

ing unfair competition and violations of antitrust law, the CFPB “possesses the authority to promulgate binding rules fleshing out 19 federal statutes, including a broad prohibi

tion on unfair and deceptive practices in a major segment of the U. S. economy.” Seila Law , 591 U. S., at ___ (slip op., at 17). While the 1935 FTC could issue cease-anddesist orders and recommended dispositions, the CFPB “may unilaterally issue final decisions awarding legal and equitable relief in administrative adjudications” and “seek daunting monetary penalties against private parties on be

half of the United States in federal court.” Ibid. Far from a “mere legislative or judicial aid” like the 1935 FTC, ibid

., the CFPB is a “mini legislature, prosecutor, and court, re

sponsible for creating substantive rules for a wide swathof industries, prosecuting violations, and levying kneebuckling penalties against private citizens,” id. , at ___, n. 8 (slip op., at 21, n. 8). Measured against such standards, the FHFA comfortably fits within the same category of constitutional insignifi

cance as the 1935 FTC. To some, the CFPB Director was “the single most powerful official in the entire U. S. Govern

ment, other than the President, at least when measured inS OTOMAYOR , J., concurring in part and dissenting in part 7 Cite as: 594 U. S. ____ (2021)

Opinion of S OTOMAYOR , J. terms of unilateral power.” PHH Corp. v. Consumer Finan

cial Protection Bur. , 881 F. 3d 75, 171 (CADC 2018) (Ka

vanaugh, J., dissenting). The FHFA Director is not one of the most powerful officials in the U. S. Government. As the Court recognized in Seila Law , the FHFA does “not involve regulatory or enforcement aut hority remotely comparable to that exercised by the CFPB.” 591 U. S., at ___ (slip op., at 20–21). The FHFA’s authority is much closer to (and, in some re

spects, far less than) that of the 1935 FTC. Like the 1935 FTC, the FHFA oversees regulated entities and gathers specified information from them on Congress’ behalf. Un

like the 1935 FTC, however, which was tasked with imple

menting the Nation’s antitrust laws and policing unfair competition, the FHFA is limited to specified duties under the Recovery Act. Furthermore, while the 1935 FTC had jurisdiction over countless individuals and corporations, the FHFA regulates just 13 GSEs. Moreover, one of the FHFA’s main powers is assuming the mantle of conservatorship or receivership over the GSEs, which hardly registers as executive at all. When act

ing as a conservator or receiver, an agency like the FHFA

“ ‘steps into the shoes’ ” of the party under distress, O’Mel

veny & Myers v. FDIC , 512 U. S. 79, 86 (1994), and largely

“ ‘shed[s] its government character, ’” Herron v. Fannie Mae
, 861 F. 3d 160, 169 (CADC 2017). Even granting that there are differences between the FHFA’s powers as a conserva

tor and those of a common-law conservator, “the FHFA’sconservatorship function [is] a role one would be hardpressed to characterize as near the heart of executive power.” Collins v. Mnuchin , 938 F. 3d 553, 620 (CA5 2019) (Higginson, C. J., dissenting in part). To be sure, the FHFA has at least one executive power that the 1935 FTC did not: the power to impose fines. But that fining authority is quite limited. The FHFA may im

pose fines on the 13 GSEs it regulates for failing to meetS OTOMAYOR , J., concurring in part and dissenting in part 8 COLLINS v. YELLEN

Opinion of S OTOMAYOR , J. their reporting requirements and housing goals under the Recovery Act and for violatin g the requirements of the Fed

eral Housing Enterprises Financial Safety and Soundness Act of 1992, 106 Stat. 3941. See 12 U. S. C. §§4585, 4636. Petitioners point to no instance in the Agency’s 13-year his

tory in which it has ever fined a GSE. 3 That is not to say that the FHFA possesses no executive authority whatsoever. It does. But the 1935 FTC, too, pos

sessed executive authority, just not enough to be “signifi

cant.” See Seila Law

, 591 U. S., at ___, n. 2 (slip op., at 14,

n. 2) (“ ‘[I]t is hard to dispute that the powers of the FTC at the time of Humphrey’s Executor would at the present time be considered “executive,” at least to some degree’” (quoting Morrison , 487 U. S., at 690, n. 28)). When measured against the benchmark of the 1935 FTC, the FHFA does not possess “significant executive power” within the meaning of Seila Law . It is in “an entirely different league” from the CFPB. 591 U. S., at ___, n. 8 (slip op., at 21, n. 8).

B Because the FHFA does not possess significant executive power, the question under Seila Law is whether this Court’s decisions upholding for-cause removal provisions in Humphrey’s Executor and Morrison should be “extend[ed]” to the FHFA Director. 591 U. S., at ___ (slip op., at 18). The clear answer is yes. Not only does the FHFA lack significant executive power, the authority it does possess is exercised over other govern

mental actors. In that resp ect, the FHFA Director mimics the independent counsel whose tenure protections were up

held in Morrison . The independent counsel, as Seila Law noted, could bring criminal prosecutions and thus “wielded core executive power.” 591 U. S., at ___ (slip op., at 18).

——————

3 By comparison, the CFPB has fined private actors billions of dollars. Seila Law LLC v. Consumer Financial Protection Bureau , 591 U. S. ___, ___ (2020) (slip op., at 5).S OTOMAYOR , J., concurring in part and dissenting in part 9 Cite as: 594 U. S. ____ (2021)

Opinion of S OTOMAYOR , J. Separation-of-powers concerns were allayed, however, be

cause “that power, while significant, was trained inward to high-ranking Governmental actors identified by others.” Ibid. In explaining why “[t]he logic of Morrison” did “not apply” to the CFPB, Seila Law emphasized that the CFPB “has the authority to bring the coercive power of the state to bear on millions of private citizens and businesses.” Id.

, at ___–___ (slip op., at 17–18). Morrison ’s logic may not have applied to the CFPB, but it certainly applies to the FHFA. The FHFA’s executive power, too, is “trained inward,” on the 13 GSEs “identified by” the Recovery Act. Seila Law , 591 U. S., at ___ (slip op., at 18). While the GSEs are no w privately owned, they still operate under congressional charters, see 12 U. S. C. §4501(1), serve “important public missions,” ibid. , and re

ceive preferential treatment und er law by dint of their Gov

ernment affiliation, §1719. 4 Seila Law itself distinguished the CFPB from the FHFA precisely on the basis that the latter Agency “regulates primarily Government-sponsored enterprises, not purely private actors.” 591 U. S., at ___ (slip op., at 20). Historical considerations further confirm the constitu

tionality of the FHFA Directo r’s independence. Singledirector independent agencies with limited executive power, like the FHFA, boast a more storied pedigree than do single-director independent agencies with significant ex-

——————

4 The GSEs’ ongoing ties with the Go vernment long fueled public per

ception that the Government would intervene if the GSEs were in danger of collapse. See Congressional Rese arch Serv., Fannie Mae and Freddie Mac in Conservatorship: Frequent ly Asked Questions 2 (updated May 31, 2019) (noting that it was “widely believed prior to 2008 that the fed

eral government was an implicit backs top for the GSEs in light of their congressional charters”). This perception became reality during the 2008 financial crisis, when the Treasury Department extended hundreds of billions of dollars in credit to Fa nnie Mae and Freddie Mac, and the FHFA put those entities under conservatorship.S OTOMAYOR , J., concurring in part and dissenting in part 10 COLLINS v. YELLEN

Opinion of S OTOMAYOR , J. ecutive power, like the CFPB. Consider three such exam

ples, each discussed in Seila Law . First, the Comptroller of the Currency, who was briefly independent from Presiden

tial removal during the Civil War and thereafter retained a lesser form of tenure protection. Id.

, at ___ (slip op., at 19). Second, the Office of Special Counsel, which has been “headed by a single officer since 1978.” Id

., at ___–___ (slip op., at 19–20). Third, the Social Security Administration, which has been “run by a single Administrator since 1994.” Id

., at ___ (slip op., at 20). Like the FHFA, these examples lack “regulatory or enforcement authority remotely compa

rable to that exercised by the CFPB.” Id.

, at ___–___ (slip op., at 20–21). While these agencies thus offered “no foot

hold in history or tradition” for the CFPB, id.

, at ___ (slip op., at 21), they provide historical support for an agency with the FHFA’s limited purview. The FHFA also draws on a long tradition of independence enjoyed by financial regulato rs, including the Comptroller of the Treasury, the Second Bank of the United States, the Federal Reserve Board, the Securities and Exchange Com

mission, the Commodity Futures Trading Commission, and the Federal Deposit Insurance Corporation. See id.

, at ___– ___ (slip op., at 12–16) (opinion of K AGAN , J.). The public has long accepted (indeed, expected) that financial regula

tors will best perform their duties if separated from the po

litical exigencies and pressures of the present moment. In Seila Law , this tradition of independence was of little help to the CFPB because, “even assuming financial insti

tutions . . . can claim a special historical status,” the CFPB’s unique powers put it “in an entirely different league” from other financial regulators. Id.

, at ___, n. 8 (majority opinion) (slip op., at 21, n. 8). In contrast, the FHFA’s function as a monitor of regulated entities im

portant to economic stability makes the FHFA far more similar to historically independent financial regulatorsS OTOMAYOR , J., concurring in part and dissenting in part 11 Cite as: 594 U. S. ____ (2021)

Opinion of S OTOMAYOR , J. than to the CFPB. See FHFA, Performance and Accounta

bility Report 18 (2020) (“The [Recovery Act] vests FHFA with the authorities, similar to those of other prudential fi

nancial regulators, to maintain the financial health of the regulated entities”). To recap, the FHFA does not wield significant executive power, the executive power it does wield is exercised over Government affiliates, and its independence is supported by historical tradition. All considerations weigh in favor of recognizing Congress’ power to make the FHFA Director re

movable only for cause.

III The Court disagrees. After Seila Law , the Court reasons, all that matters is that “[t]he FHFA (like the CFPB) is an agency led by a single Director.” Ante , at 26. From that, the unconstitutionality of the FHFA Director’s independ

ence follows virtually a fortiori . The Court reaches that conclusion by disavowing the very distinctions it relied upon just last Term in Seila Law in striking down the CFPB Director’s independence. On three separate occasions, Seila Law stated that its holding applied to single-dir ector independent agencies with “significant executive power.” See 591 U. S

. , at ___,

___, ___ (slip op., at 2, 18, 36). Remarkably, those words appear nowhere in today’s decision. Instead, the Court ap

pears to take the position that exercising essentially any executive power whatsoever is enough. Ante , at 27–29. Interms of explanation, the Court says that it is “not wellsuited to weigh the relative importance of the regulatory and enforcement authority of disparate agencies” and that it “do[es] not think that the co nstitutionality of removal re

strictions hinges on such an inquiry.” Ante , at 29. The Court’s position unduly encroaches on Congress’ judgments about which executiv e officers can and should enjoy a degree of independence from Presidential removal,S OTOMAYOR , J., concurring in part and dissenting in part 12 COLLINS v. YELLEN

Opinion of S OTOMAYOR , J. and it cannot be squared with Seila Law , which relied ex

tensively on such agency comparisons. Not only did Seila Law contrast the CFPB’s powers against those of the 1935 FTC in Humphrey’s Executor , see 591 U. S

. , at ___–___ (slip op., at 16–17), as well as the independent counsel in Morri

son , see 591 U. S., at ___–___ (slip op., at 17–18), it con

cluded that the FHFA (along with the Comptroller of the Currency, the Office of Special Counsel, and the Social Se

curity Administration) does not possess “regulatory or en

forcement authority remotely comparable to that exercised by the CFPB.” Id. , at ___–___ (slip op., at 20–21). Those distinctions underpinned Seila Law ’s proclamation that the CFPB had “no basis in history and no place in our constitu

tional structure.” Id. , at ___ (slip op., at 18). In the Court’s view today, however, all of those comparisons were irrele

vant to the bottom-line question whether the CFPB Direc

tor’s tenure protections comp ort with the Constitution. The Court today also suggests that whether an agency regulates private individuals or Government actors does not meaningfully affect the separation-of-powers analysis. Ante , at 30–31 (“[T]he President’s removal power serves im

portant purposes regardless of whether the agency in ques

tion affects ordinary Americans by directly regulating them or by taking actions that have a profound but indirect effect on their lives”). That, too, is flatly inconsistent with Seila Law , which returned repeatedly to this consideration. Not only did Seila Law distinguish the CFPB from the inde

pendent counsel in Morrison on this basis, see 591 U. S., at ___ (slip op., at 18), it distinguished the CFPB from both the FHFA and the Office of Special Counsel for the same rea

son, see id ., at ___ (slip op., at 20). That the Court is un

willing to stick to the methodology it articulated just last Term in Seila Law is a telltale sign that the Court’s separation-of-powers jurisprudence has only continued to lose its way.S OTOMAYOR , J., concurring in part and dissenting in part 13 Cite as: 594 U. S. ____ (2021)

Opinion of S OTOMAYOR , J.

IV The Court has proved far too eager in recent years to in

sert itself into questions of agency structure best left to Congress. In striking down the independence of the FHFA Director, the Court reaches fu rther than ever before, refus

ing tenure protections to an Agency head who neither wields significant executive power nor regulates private in

dividuals. Troublingly, the Court justifies that result by ig

noring the standards it se t out just last Term in Seila Law

. Because I would afford Congress the freedom it has long possessed to make officers like the FHFA Director inde

pendent from Presidential control, I respectfully dissent.