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(Slip Opinion) OCTOBER TERM, 2020 1 

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 Mortgage 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 enacted the Housing and Economic Recovery Act of 2008 (Recovery Act), 

which, among other things, created the Federal Housing Finance 

Agency (FHFA)—an independent agency tasked with regulating the 

companies and, if necessary, stepping in as their conservator or receiver. See 12 U. S. C. §4501 et seq. At the head of the Agency, Congress installed a single Director, removable by the President 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 agreements, 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-rate dividends. In the years that

followed, the agencies agreed to a number of amendments, the third of

which replaced the fixed-rate dividend 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—that the FHFA exceeded its authority 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 separation of powers because the 

Agency is led by a single Director, removable by the President only for 

cause. The District Court dismissed the statutory claim and granted 

summary judgment in the FHFA’s favor on the constitutional claim. 

The Fifth Circuit reversed the District Court’s dismissal of the statutory claim, held that the FHFA’s structure 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 Recovery Act, but not to vacate and set aside the third amendment. 

Held: 

1. The shareholders’ statutory claim must be dismissed. The “antiinjunction clause” of the Recovery Act provides that unless review is 

specifically authorized by one of its provisions or is requested by the

Director, “no court may take any action to restrain or affect the exercise of powers or functions of the Agency as a conservator or a receiver.” §4617(f). Where, as here, the FHFA’s challenged actions did 

not exceed its “powers or functions” “as a conservator,” relief is prohibited. Pp. 12–17. 

(a) The Recovery Act grants the FHFA expansive authority in its 

role as a conservator and permits the Agency to act in what it determines 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 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 to

the Agency and, by extension, the public it serves. This feature of an 

FHFA conservatorship is fatal to the shareholders’ statutory claim. 

The third amendment was adopted at a time when the companies had 

repeatedly been unable to make their fixed quarterly dividend payments without drawing on Treasury’s capital commitment. If things

had proceeded as they had in the past, 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 actually serve the best interests of the FHFA or the public because it did 
 

 

 

 

 

 

 

 

Cite as: 594 U. S. ____ (2021) 3 

Syllabus 

not further the asserted objective of protecting Treasury’s capital commitment. First, they claim that the FHFA agreed to the amendment 

at a time when the companies were on the precipice of a financial uptick 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 rather than decreased the risk that the companies would make further 

draws and eventually deplete Treasury’s commitment. But the success of the strategy that the shareholders tout was dependent on speculative projections about future earnings, and recent experience had 

given the FHFA reasons for caution. The nature of the conservatorship 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 companies and Treasury. Paying Treasury in kind would not have satisfied the cash dividend obligation; it 

would only have delayed that obligation, as well as the risk that the 

companies’ cash dividend obligations would consume Treasury’s capital commitment. Choosing to forgo this option in favor of one that

eliminated the risk entirely was not 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. Nothing about the third amendment precluded the companies from operating at full steam in the marketplace, and all available evidence suggests 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 standing 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 Mae 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, the 
 

 

 

 

 

 

 

4 COLLINS v. YELLEN 

Syllabus 

shareholders’ injury is traceable to the FHFA’s adoption and implementation of the third amendment, which is responsible for the variable dividend formula. For purposes of traceability, the relevant 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. 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’ constitutional claim is not moot. After 

oral argument was held in this case, the FHFA and Treasury agreed 

to amend the stock purchasing agreements for a fourth time. That 

amendment eliminated the variable dividend formula that caused the 

shareholders’ injury. As a result, the shareholders no longer have any 

ground for prospective relief, but they retain an interest in the retrospective relief they have requested. That interest saves their constitutional claim from mootness. P. 19. 

(iii) The shareholders’ constitutional claim is not barred by the 

Recovery Act’s “succession clause.” §4617(b)(2)(A)(i). That clause effects only a limited transfer 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 removal restriction. The succession clause therefore does not transfer to 

the FHFA the constitutional right at issue. Pp. 20–21.

(iv) The shareholders’ constitutional challenge can proceed even 

though the FHFA was led by an Acting Director, as opposed to a Senate-confirmed Director, at the time the third amendment was adopted.

The harm allegedly caused by the third 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 that 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 plenary 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. The answer to that question could, however, have a bearing on the scope of relief that may be awarded to the 

shareholders. If the statute does not restrict the removal of an Acting 

Director, any harm resulting from actions taken under an Acting Director would not be attributable to a constitutional violation. Only 

harm caused by a confirmed Director’s implementation of the third 

amendment could then provide a basis for relief. In the Recovery Act, 
 

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

Syllabus 

Congress expressly restricted the President’s power to remove a confirmed Director but said nothing of the kind with respect to an Acting

Director. When a statute does not limit the President’s power to remove an agency head, the Court generally presumes that the officer 

serves at the President’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 removal 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 the President’s power to remove the 

Director of the Consumer Financial Protection Bureau (CFPB) to instances of “inefficiency, neglect, or malfeasance.” Id., at ___. In so 

holding, the Court observed that the 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 unilateral actor insulated from Presidential control.” Id., at ___–___. A 

straightforward application of Seila Law’s reasoning 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. The 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 of an 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 problems. Courts are not well-suited to 

weigh the relative importance of the regulatory and enforcement authority 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 regulated entity as its conservator or 

receiver, 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 does, the 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 Government-sponsored enterprises that 

have federal charters, serve public objectives, and receive special privileges. This argument fails because the President’s removal power 
 

 

6 COLLINS v. YELLEN 

Syllabus 

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 but indirect effect on their lives. Finally, amicus contends that there is no constitutional problem in this

case because the Recovery Act offers only “modest” tenure protection. 

But the Constitution prohibits even “modest restrictions” on the President’s power to remove the head of an agency with a single top officer. 

Id., at ___. Pp. 26–32.

(c) The shareholders seek an order setting aside the third amendment 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 that the third amendment was adopted

and implemented by officers who lacked constitutional authority and 

that their actions were therefore void ab initio. This argument is neither logical nor supported by precedent. 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 authority 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 unconstitutional provision to inflict compensable harm. The possibility

that the unconstitutional restriction on the President’s power to remove a Director of the FHFA could have such an effect cannot be ruled 

out. The parties’ arguments on this point should 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. 

ALITO, J., delivered the opinion of the Court, in which ROBERTS, C. J., 

and THOMAS, KAVANAUGH, and BARRETT, JJ., joined in full; in which KAGAN and BREYER, JJ., joined as to all but Part III–B; in which GORSUCH, 

J., joined as to all but Part III–C; and in which SOTOMAYOR, J., joined as

to Parts I, II, and III–C. THOMAS, J., filed a concurring opinion. KAGAN, 

J., filed an opinion concurring in part and concurring in the judgment, in

which BREYER and SOTOMAYOR, JJ., joined as to Part II. GORSUCH, J., 

filed an opinion concurring in part. SOTOMAYOR, J., filed an opinion concurring in part and dissenting in part, in which BREYER, J., joined. 
 

 

 

_________________ 

_________________ 

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

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, Washington, D. C. 20543, of any typographical or other formal 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] 

JUSTICE ALITO 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 concern, Congress enacted the Housing and Economic Recovery Act of 2008 (Recovery Act), 122 Stat. 2654, 12 U. S. C.

§4501 et seq. Among other things, that law created the Federal Housing Finance Agency (FHFA), “an independent 

agency” tasked with regulating the companies and, if necessary, 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 negotiated agreements for the companies with the Department of Treasury. Under those agreements, 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-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 minus 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 constitutional grounds. With respect to their statutory claim, the 

shareholders contended that the Agency exceeded its authority 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 Government. 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 single Director who may be removed by the President only “for

cause.” §4512(b)(2). They sought declaratory and injunctive relief, including an order requiring Treasury either to 

return the variable dividend payments 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 affect the exercise of [the] powers

or functions of the Agency as a conservator.” §4617(f ). But 
Cite as: 594 U. S. ____ (2021) 3 

Opinion of the Court 

we conclude that the FHFA’s structure violates the separation of powers, and we remand for further proceedings to

determine what remedy, if any, the shareholders are entitled to receive on their constitutional claim. 

I 

A 

Congress created the Federal National Mortgage Association (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 operate under congressional charters as for-profit corporations owned by private shareholders. See Housing and Urban Development Act of 1968, §801, 82 Stat. 536, 12 U. S. C. 

§1716b; Financial Institutions Reform, Recovery, and Enforcement Act of 1989, §731, 103 Stat. 429–436, note following 12 U. S. C. §1452. Their primary business is purchasing mortgages, pooling them into mortgage-backed 

securities, and selling them to investors. By doing so, the 

companies “relieve mortgage lenders 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 lending market and promotes

access to mortgage credit. 

By 2007, the companies’ mortgage portfolios had a combined value of approximately $5 trillion and accounted for

almost half of the Nation’s mortgage 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 Inspector General, Analysis of the 2012 Amendments to the 

Senior Preferred Stock Purchase Agreements 5 (Mar. 20, 

2013), https://www.fhfaoig.gov/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 stock if it determined that 

infusing the companies with capital would protect taxpayers 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 automatically expire at the end of the 2009 calendar year. 

§§1455(l)(4), 1719(g)(4). 

Second, the Recovery Act created 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 choose 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 inception, 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-

—————— 1Before the Recovery Act was enacted, 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. 
 

 

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

Opinion of the Court 

pect of the companies’ management and operations. For example, the Agency must approve any new products that the 

companies would like to offer. §4541(a). It may reject acquisitions and certain transfers of interests the companies 

seek to execute. §4513(a)(2)(A). It establishes criteria governing 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 submit 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 appropriate, hire outside firms to perform additional reviews.

§§4517(a)–(b), 4519. 

The statute empowers the Agency with broad investigative 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; issue cease-and-desist orders, §§4581, 4632; bring civil actions 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 Director 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 authority 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 performing 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 companies or the Agency itself. §4617(b)(2)(J). 

Finally, the FHFA is not funded through the ordinary appropriations 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 assessments 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 following day, Treasury exercised its temporary authority to buy

their stock and the FHFA, acting as the companies’ conservator, entered into purchasing agreements with Treasury.3 

Under these agreements, Treasury committed to providing 

—————— 2Receivership is mandatory in certain circumstances not relevant 

here. See 12 U. S. C. §4617(a)(4). 3See Amended and Restated Senior Preferred Stock Purchase Agreement Between the United States Department of the Treasury and the 

Federal National Mortgage Association (Sept. 26, 2008); Amended and 

Restated Senior Preferred Stock Purchase Agreement Between the

United States Department of the Treasury and the Federal Home Loan

Mortgage Corporation (Sept. 26, 2008) (online sources archived at 

www.supremecourt.gov). 
 

 

Cite as: 594 U. S. ____ (2021) 7 

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 preferred stock in each company.

Those shares provided Treasury with four key entitlements. First, Treasury received a senior liquidation preference equal to $1 billion in each company, with a dollar-fordollar increase every time the company drew on the capital 

commitment. In other words, in the event the FHFA liquidated 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 commitment, before any other investors or shareholders could seek 

repayment. Second, Treasury was given warrants, or longterm 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 support 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 Treasury’s outstanding liquidation preference.

Within a year, Fannie Mae’s and Freddie Mac’s net worth

decreased substantially, and it became clear that Treasury’s initial capital commitment would prove inadequate.

To address that problem, the 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 December 2009, when Treasury agreed to provide as much 

—————— 4Treasury has the authority to waive this fee. At the time this lawsuit 

was filed, Treasury had always exercised this option and had never received a periodic commitment fee from the companies. See App. 61. 5See Amendment to Amended and Restated Senior Preferred Stock 
 

8 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 because of the fixed-rate dividend 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). Under the new formula, the companies were required to pay a

dividend equal to the amount, if any, by which their net 

—————— 

Purchase Agreement Between the United 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 United States Department of the Treasury and

Federal Home Loan Mortgage Corporation (May 6, 2009) (online sources

archived at www.supremecourt.gov). 6See Second Amendment to Amended and Restated Senior Preferred 

Stock Purchase Agreement Between the United States 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 United States Department of the

Treasury and Federal Home Loan Mortgage Corporation (Dec. 24, 2009)

(online sources archived at www.supremecourt.gov). 7See Third Amendment to Amended and Restated Senior Preferred 

Stock Purchase Agreement Between the United State Department of the 

Treasury and Federal National Mortgage Association (Aug. 17, 2012);

Third Amendment to Amended and Restated Senior Preferred Stock 

Purchase Agreement Between the United States Department of the

Treasury and Federal Home Loan Mortgage Corporation (Aug. 17, 2012)

(online sources archived at www.supremecourt.gov). 
 

 

Cite as: 594 U. S. ____ (2021) 9 

Opinion of the Court 

worth exceeded a pre-determined capital reserve.8 In addition, 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 nature 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 required 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 lost 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 quarters. 

After the third amendment took effect, the companies’ financial condition improved, and they ended up transferring

immense amounts of wealth to Treasury. In 2013, the companies 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 

—————— 8The capital reserve for each company began at $3 billion and was 

scheduled to decrease to zero by January 2018. In December 2017, however, Treasury agreed to restore the reserve to $3 billion per company in 

return for a liquidation-preference increase 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 preference. See Letters from S. Mnuchin, Secretary of Treasury, to M. Calabria, Director of the FHFA (Sept. 27, 2019) (online sources archived at

www.supremecourt.gov). 9See Fannie Mae, Form 10–K for Fiscal Year Ended Dec. 31, 2016, 

p. 120, https://www.fanniemae.com/media/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 companies’ quarterly dividend payments until they build up

enough capital to meet certain specified thresholds, a process that we are told is expected to take years. See Letter 

from E. Prelogar, Acting Solicitor General, to S. Harris,

Clerk of Court (Mar. 18, 2021). During that time, each company is required to pay Treasury 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 dividend payments, and those dividends will be equal to the 

lesser of 10% of Treasury’s liquidation preference or the incremental increase in the company’s net worth in the previous 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 shareholders 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 adopting the third amendment. Second, they asserted that because the FHFA is led by a single Director who may be removed by the President only “for cause,” its structure is

unconstitutional. They asked for various forms of equitable 

—————— 10See Letters from S. Mnuchin, Secretary of Treasury, to M. Calabria, 

Director of the FHFA (Jan. 14, 2021) (online source archived at www.supremecourt.gov). 
Cite as: 594 U. S. ____ (2021) 11 

Opinion of the Court 

relief, including a declaration that the third amendment violated 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 alternatively, a re-characterization of those payments as a paydown of the liquidation preference and a corresponding redemption 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 implement 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 dismissal of the statutory claim; held that the FHFA’s structure 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 Recovery Act, but not to vacate and set aside the third amendment. 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-

—————— 11The shareholders also sued Treasury 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 Circuit 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 Presidential control, we appointed Aaron 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 responsibilities. 

II 

We begin with the shareholders’ statutory claim and conclude that the Recovery Act requires its dismissal. 

In the Recovery Act, Congress sharply circumscribed judicial review of any action that the FHFA takes as a conservator or receiver. The Act states that unless review is 

specifically authorized by one of its provisions or is requested by the Director, “no court 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 relief 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 restrictions. 

With that understanding in mind, we must decide 
 

Cite as: 594 U. S. ____ (2021) 13 

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 shareholders’ 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 “necessary to put the regulated 

entity in a sound and solvent condition” and must be “appropriate 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 conservator, its mission is rehabilitation, and to that extent, an 

FHFA conservatorship is like any other. See, e.g., Resolution Trust Corporation v. CedarMinn Bldg. Ltd. Partnership, 956 F. 2d 1446, 1454 (CA8 1992).12 

An FHFA conservatorship, however, differs from a typical conservatorship in a key respect. Instead of mandating

that the FHFA always act in the best interests of the regulated entity, the Recovery Act authorizes the Agency to act

in what it determines is “in the best interests of the regulated 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 

—————— 12By contrast, when the FHFA acts as a receiver, it is required to “place

the regulated entity in liquidation and 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 entity under this section shall immediately terminate any conservatorship established 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 complaint demonstrate that the

FHFA chose a path of rehabilitation that was designed to 

serve public interests by ensuring Fannie Mae’s and Freddie Mac’s continued support of the secondary mortgage 

market. Recall that the third amendment was adopted at

a time when the companies’ liabilities had consistently exceeded their assets over at least the prior three years. See 

supra, at 8. It is undisputed that the companies had repeatedly been unable to make their fixed quarterly dividend

payments without drawing on Treasury’s capital commitment. And there is also no dispute that the cap on Treasury’s capital commitment was scheduled to be reinstated at 

the 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 commitment in order to pay their dividend obligations, which

were themselves increasing in size every time the companies made a draw. 

The third amendment eliminated this risk by replacing

the fixed-rate dividend formula with a variable one. Under 

the new formula, the companies would never again have to 

use capital from Treasury’s commitment to pay their dividends. And that, in turn, ensured that all of Treasury’s capital was available to backstop the companies’ operations 

during difficult quarters. In exchange, the companies had

to relinquish nearly all their net worth, and this made certain 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 shareholders, the FHFA could have reasonably concluded that it 
Cite as: 594 U. S. ____ (2021) 15 

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 public because it did not further the asserted objective of protecting 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 precipice 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 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. The 

success of the strategy that the shareholders tout was dependent on speculative projections about future earnings,

and recent experience had given the FHFA reasons for caution. The companies had been repeatedly unable to pay 

their dividends from 2009 to 2011. With the aim of more 

securely ensuring market stability, the FHFA did not exceed 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 capital commitment by ordering 

the companies to pay the dividends in kind rather than in 

cash. This argument rests on a misunderstanding of the 
 

16 COLLINS v. YELLEN 

Opinion of the Court 

agreement between the companies and Treasury. The companies’ stock certificates required 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 preference 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 dividends 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 consume 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 reserves and exit conservatorship, it is best viewed as a step 

toward ultimate liquidation and, according to the shareholders, the FHFA lacked the authority to take this decisive 

step without first placing the companies in receivership. 

The shareholders’ characterization of the third amendment as a step toward liquidation is inaccurate. Nothing

about the amendment precluded the companies from operating 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 million mortgages on single-family owner-occupied properties, 

—————— 13The senior preferred stock certificates provide: “[I]f at any time the 

Company shall have for any reason failed to pay dividends in cash in a 

timely manner as required by this Certificate, then immediately following such failure and for all Dividend Periods thereafter until the Dividend Period following the date on which the Company shall have paid in

cash full cumulative dividends (including any unpaid dividends added to

the Liquidation Preference . . . ), the ‘Dividend Rate’ shall mean 12.0%”). 

App. 180, 198. 
Cite as: 594 U. S. ____ (2021) 17 

Opinion of the Court 

and Fannie issued over $1.5 trillion in single-family mortgage-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 mortgage 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 affairs. 

It is not necessary for us to decide—and we do not decide—whether the FHFA made the best, or even a particularly 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 authority as a conservator, and therefore the anti-injunction

clause bars the shareholders’ statutory claim. 

III 

We now consider the shareholders’ claim that the statutory restriction on the President’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 decide this claim, see DaimlerChrysler Corp. 

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

—————— 14See Dept. of Treasury Press Release, Treasury Department and 

FHFA Amend Terms of Preferred Stock Purchase Agreements for Fannie 

Mae and Freddie Mac (Jan. 14, 2021), https://home.treasury.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 traceable” to the defendant’s conduct and would likely be “redressed by a favorable decision.” Lujan v. Defenders of 

Wildlife, 504 U. S. 555, 560–561 (1992) (alterations and internal 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 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. ___, ___ (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 nothing 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 context of the President’s removal power, we have found it sufficient 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 Enterprise Fund v. Public Company Accounting Oversight Bd., 

561 U. S. 477 (2010) (considering challenge to removal restriction where plaintiffs claimed injury from allegedly unlawful 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-
Cite as: 594 U. S. ____ (2021) 19 

Opinion of the Court 

ion of Costa, J.). But for purposes of traceability, the relevant 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 (explaining that the plaintiff must show “a causal connection between the injury and the conduct complained of,” and that

“the injury has to be fairly traceable to the challenged action of the defendant” (quoting Simon v. Eastern Ky. Welfare 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 satisfied. 

2 

After oral argument was held in this case, the federal parties 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 shareholders’ injury, it is necessary to consider whether the fourth

amendment moots the shareholders’ constitutional claim. 

It does so only with respect to some of the relief requested. In their complaint, the shareholders sought various forms of prospective relief, but because that amendment is no longer in place, the shareholders no longer have 

any ground for such relief. By contrast, they retain an interest in the retrospective relief they have requested, and 

that interest saves their constitutional claim from mootness. 

—————— 15See 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 regulated 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 their constitutional claim, and 

it therefore bars the shareholders 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 itself. 

The federal parties read the succession clause too

broadly. The clause effects only a limited transfer of stockholders’ 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 restriction. As we have explained 

on many prior occasions, the separation of powers is designed 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) (Jackson, J., concurring) (noting that the Constitution “diffuses 

power the better to secure liberty”). So whenever a separation-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 Seila 
 

 

Cite as: 594 U. S. ____ (2021) 21 

Opinion of the Court 

Law, 591 U. S., at ___–___ (slip op., at 6–7) (law firm to 

which the agency issued a civil investigative demand); Free 

Enterprise Fund, supra, at 487 (accounting firm placed under 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 Comptroller General).

Here, the right asserted is not 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 respect 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 Director17 who was removable 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 

—————— 16The federal parties also argue that the Recovery Act’s succession 

clause bars the shareholders’ statutory claim. Because we have concluded that the statutory claim is already barred by the anti-injunction 

clause, we do not address this argument. 17See 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 continued after the Acting Director was replaced by a succession of confirmed Directors, and it appears that any one of

those officers could have renegotiated the companies’ dividend formula with Treasury. From what we can tell from 

the record, the FHFA and Treasury consistently reevaluated the stock purchasing agreements and adopted amendments 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 bargaining table. After all, the agencies adopted a fourth

amendment just this year. The federal parties and amicus 

do not dispute this. Accordingly, continuing to implement 

the third amendment was a decision that each confirmed 

Director has made since 2012, and because confirmed Directors chose to continue implementing the third amendment while insulated from plenary 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 restricts 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 Director would not be attributable 

to a constitutional violation. Only harm caused by a confirmed 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 that 
Cite as: 594 U. S. ____ (2021) 23 

Opinion of the Court 

“[t]he Director shall be appointed for a term of 5 years, unless 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 provisions that apply only to the Director. See §4512(a) (establishing the position of the Director); §4512(b)(1) (setting out 

the procedure for appointing the Director); §4512(b)(3) (discussing the manner for selecting a new Director to fill a vacancy).

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 restriction on the removal of a 

confirmed Director. Ibid. Instead, it merely states that

“[i]n the event of the death, resignation, sickness, or absence of the Director, the President shall designate” one of

three Deputy Directors to serve 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 generally presume that the officer serves at the President’s pleasure. See Shurtleff v. United States, 189 U. S. 311, 316 

(1903). Moreover, “when Congress includes particular language in one section of a statute but omits it in another section 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 Recovery 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 weighs 
 

24 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 because the Act refers to the 

FHFA as an “independent agency of the Federal Government.” 12 U. S. C. §4511(a) (emphasis added). The reference to the FHFA’s independence, they claim, means that

any person heading the Agency was intended to enjoy a degree of independence from Presidential control. 

That interpretation reads far too much into the term “independent.” The term does not necessarily mean that the

Agency is “independent” of the President. It may mean instead that the Agency is not part of and is therefore independent of any other unit of the Federal Government. And 

describing an agency as independent 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 statutes that describe agencies 

as “independent” undermines the shareholders’ interpretation 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 Commission, 7 U. S. C. §2(a)(2), the Farm Credit Administration, 

12 U. S. C. §§2241–2242, the National Credit Union Administration, 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 “independent.” This is the case for the Commission on Civil 

Rights, 42 U. S. C. §§1975(a), (e), the Federal Trade Commission, 15 U. S. C. §41, and the National Labor Relations 
Cite as: 594 U. S. ____ (2021) 25 

Opinion of the Court 

Board, 29 U. S. C. §153. And in yet another group of statutes, 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 Administration); 42 U. S. C. §§1861, 1864 (National Science Foundation). That combination of provisions shows that the term

“independent” does not necessarily connote independence 

from Presidential control, and we refuse to read that connotation 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 Directors. Again, that provision states that if the Director is absent, “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 Acting Director differs from a confirmed 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 permissible 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 generally 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, supra, at 316. The shareholders argue that this is not a hard 

and fast rule, but we certainly see no grounds for an exception 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 the 
 

26 COLLINS v. YELLEN 

Opinion of the Court 

For all these reasons, we hold that the Recovery Act’s removal restriction does not extend to an Acting Director, and

we now proceed to the merits of the shareholders’ constitutional argument. 

B 

The Recovery Act’s for-cause restriction on the President’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 “inefficiency, neglect, or malfeasance.” 591 U. S., at ___ (slip op., 

at 11). We did “not revisit our prior decisions allowing certain 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 control.” 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 constitutionality of the Recovery Act’s removal restriction, amicus attempts 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 Commission was an adjudicatory body, 

and as such, it had a unique need for “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. 
Cite as: 594 U. S. ____ (2021) 27 

Opinion of the Court 

1 

Amicus first 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. Amicus points out that the

CFPB administers 19 statutes while the FHFA administers 

only 1; the CFPB regulates millions of individuals and businesses whereas the FHFA regulates a small number of Government-sponsored enterprises; the CFPB has broad rulemaking and enforcement authority and the FHFA has 

little; and the CFPB receives a large budget from the Federal 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 enterprises, not purely private actors”). But the nature and 

breadth of an agency’s authority is not dispositive in determining whether Congress may limit the President’s power 

to remove its head. The President’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 agencies. 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 people 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 accountability. 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 the 
 

28 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 whenever an agency does important work, and nothing about the size or role of the 

FHFA convinces us that its Director should be treated differently from the Director of the CFPB. The test that amicus 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-Frank Act, the CFPB’s final 

rules can be set aside by a super majority of the Financial 

Stability and Oversight Council whenever it concludes that 

the rule would “‘put the safety and soundness’” of the Nation’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 enforcement authority over purely private individuals and 

businesses, the FHFA has regulatory and enforcement authority over two companies that dominate the secondary 

mortgage market and have the power to reshape the housing sector. See App. 116. FHFA actions with respect to

those companies could have an immediate impact on millions of private individuals and the economy at large. See 

Seila Law, supra, at ___ (slip op., at 31) (KAGAN, J., concurring in judgment with respect to severability and dissenting 

in part) (noting that “the FHFA plays a crucial role in overseeing the mortgage market, on which millions of Americans annually rely”). 
Cite as: 594 U. S. ____ (2021) 29 

Opinion of the Court 

Courts are not well-suited to weigh the relative importance of the regulatory and enforcement authority of disparate agencies, and we do not think that the constitutionality of removal restrictions hinges on such an inquiry.19 

2 

Amicus next contends that Congress may restrict the removal of the FHFA Director because when the Agency steps 

into the shoes of a regulated entity as its conservator or receiver, 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 conservator or receiver, its authority stems from a special statute, not the laws that generally govern conservators and receivers. In deciding what it must do, what it cannot do, and 

the standards that govern its work, the FHFA must interpret 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 powers exercised by the Comptroller under the Act may be characterized as ‘executive’ in that they involve the interpretation and carrying out of the Act’s mandate”). 

—————— 19 Amicus argues that there is historical support for the removal restriction at issue here because the Comptroller of Currency and the members of the Sinking Fund Commission were subject to similar protection, 

but those agencies are materially different because neither of them operated beyond the President’s control, and one of them was led by a

multi-member Commission. As we explained in Seila Law, with the exception 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 critically from those of most conservators 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 “regulation or order” requiring stockholders, directors, and officers to exercise certain functions. §4617(b)(2)(C). It is authorized 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 violate the separation of powers because the entities it regulates are Government-sponsored enterprises that have federal 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 removal power exists to preserve “ring hollow where the only

entities an agency regulates are themselves not purely private 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 that capacity sheds no light on the nature of the

FHFA’s distinctive authority as conservator under the Recovery Act. 
 

 

 

 

Cite as: 594 U. S. ____ (2021) 31 

Opinion of the Court 

but indirect effect on their lives. And there can be no question 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] order,” including one about the Agency’s policy discretion. Id., 

at 41. 

We acknowledge that the Recovery Act’s “for cause” restriction appears to give the President more removal authority 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 disability, mental incapacity, or any other condition that substantially 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 disobeying an order is generally regarded 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 remove the head of an agency with a single top officer. Seila 
 

 

32 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 “intelligen[t] or wis[e],” ibid., those who have “different views of 

policy,” id., at 131, those who come “from a competing political 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-Appointed 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 shareholders’ 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 concerns 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 “call into question

many other aspects of the Federal Government.” Brief for Court-Appointed Amicus Curiae 47. Amicus points to the Social Security Administration, the Office of Special Counsel, the Comptroller, “multi-member

agencies for which the chair is nominated 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 restriction that applies to their officers. 
Cite as: 594 U. S. ____ (2021) 33 

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 constitutional authority and that their 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 entirety. We therefore consider the shareholders’ contention 

about remedy with respect to only the actions that confirmed Directors have taken to implement the third amendment during their tenures. But even as applied to that subset 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 unconstitutionally limited the President’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 separation-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) (administrative law judge appointed in violation of Appointments

Clause); Stern v. Marshall, 564 U. S. 462, 503 (2011) (bankruptcy 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 that the dividend payments be “recharacteriz[ed] . . . as a pay down of the liquidation preference and a corresponding 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 portions of bills under the Line Item Veto Act); Chadha, 462 

U. S., at 952–956 (one-house veto of Attorney General’s determination to suspend an alien’s deportation); Youngstown, 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 severing 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 lawfully ratified, but we said no such thing. The remand did 

not resolve any issue concerning ratification, including 

whether ratification was necessary. And in Bowsher, after 

—————— 23Settled precedent also confirms that the unlawfulness of the removal

provision does not strip the Director of the power to undertake the other

responsibilities of his office, including implementing the third amendment. 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 misunderstood as a holding on a party’s entitlement to relief based on an unconstitutional removal restriction. We held that a plaintiff that challenges

a statutory restriction on the President’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 (GORSUCH, J., concurring in part). 
 

 

Cite as: 594 U. S. ____ (2021) 35 

Opinion of the Court 

holding that the Gramm-Rudman-Hollings Act unconstitutionally authorized the Comptroller General to exercise executive power, the Court simply turned to the remedy specifically 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 shareholders have no entitlement to retrospective relief. Although an unconstitutional provision is never really part of 

the body of governing law (because the Constitution automatically displaces any conflicting 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 restriction 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 prevented from doing so by a 

lower court decision holding that 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 Director if the statute did not stand in the way. In those situations, 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 provision, they suggest, the President might have replaced one 

of the confirmed Directors who supervised the implementation 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 (THOMAS, J., concurring). 
 

 

36 COLLINS v. YELLEN 

Opinion of the Court 

have altered his behavior in a way that would have benefited the shareholders. 

The federal parties dispute the possibility that the unconstitutional 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 counterparty 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 parties’ 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 remanded for further proceedings consistent with this 

opinion. 

It is so ordered. 

—————— 26The 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. According to the federal parties, the shareholders waited to file suit until it

became apparent that the third amendment would not have that effect.

The shareholders respond that laches is inapplicable because they filed

their complaint within the time allowed by the statute of limitations, and

they argue that their delay did not cause prejudice because it was “mathematically 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 

THOMAS, 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] 

JUSTICE THOMAS, concurring. 

I join the Court’s opinion in full. I agree that the Directors were properly appointed and could lawfully exercise executive power. And I agree that, to the extent a Government 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 detail by the Court, Congress created 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 and 
 

 

2 COLLINS v. YELLEN 

THOMAS, J., concurring 

regulates Fannie Mae and Freddie Mac, two companies created 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 conservator 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 Director, Treasury, and the Secretary of the Treasury. They advanced four theories about why the adoption and enforcement of the Third Amendments violated the law: (1) The

FHFA’s conduct exceeded its statutory authority; (2) Treasury’s conduct exceeded its statutory authority; (3) Treasury’s conduct was arbitrary and capricious; and (4) the 

FHFA’s structure violated the “Separation of Powers” because the President could fire the FHFA Director only “for

cause.” App. 116–117; §4512(b)(2).

The District Court rejected their claims. The Fifth Circuit 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 correctly reverse that decision. Ante, at 12–17. The Fifth Circuit also held that the shareholders are entitled to judgment 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. They 
 

 

 

Cite as: 594 U. S. ____ (2021) 3 

THOMAS, J., concurring 

must show that the challenged Government action at issue—the adoption and implementation of the Third Amendment—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); accord, 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 implementation of the Third Amendment was unlawful.1 

The parties simply assume that the lawfulness of agency 

—————— 1Another 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 “does 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 individuals may have an implied private right of action under the Constitution to seek equitable relief to “ ‘preven[t] entities from acting unconstitutionally.’ ” Free Enterprise Fund v. Public Company Accounting 

Oversight Bd., 561 U. S. 477, 491, n. 2 (2010). This includes “Appointments Clause or separation-of-powers claim[s].” Ibid. I assume the 

shareholders have brought such a cause of action here and have a legal 

right to obtain equitable relief if they can show they suffered an injury 

traceable to a Government action that violates the Constitution. The 

shareholders did not raise the Administrative 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 constitutional right, power, privilege, or immunity.’ ” Brief for Collins et al. 74 

(quoting 5 U. S. C. §706; ellipses omitted; emphasis in original). Even 

assuming they raised their constitutional claim under the APA, it would 

not change the analysis; the shareholders would need to show they suffered an injury traceable to a Government action that violates the Constitution. 
 

 

 

4 COLLINS v. YELLEN 

THOMAS, 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 lawfulness to focus on remedy, 

but their briefing appears premised on several theories of

unlawfulness.2 First, that the removal restriction renders 

all Agency actions void because the Directors serve in violation 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 Administrative Law Judge was unlawfully appointed), and other separation-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 executive power granted to him by statute). Second, that even if 

the Director is in the Executive Branch and the removal restriction 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 exercises authority that was never properly his.” Brief for Collins et al. 64. Fourth, that the 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 makes clear, however, all these 

theories appear to fail on the merits. 

—————— 2Because the shareholders allege the Government acted unlawfully, 

because their alleged injury can be traced to those allegedly unlawful 

actions, and because this Court might 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). 
Cite as: 594 U. S. ____ (2021) 5 

THOMAS, J., concurring 

A 

I begin with whether the FHFA Director may lawfully exercise executive authority. The shareholders suggest that 

the removal restriction inherently renders the Agency’s actions 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 lawfully 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 belongs 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 Congress could remove the Comptroller General, and the structure 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 executive powers assigned to 

him by statute. Id., at 732–735.3 

Assuming the shareholders raise a Bowsher-type argument, I agree with the Court that the FHFA Director is an 

—————— 3See 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, cannot 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 jurisdiction 
 

 

 

6 COLLINS v. YELLEN 

THOMAS, 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 executive officer—an individual nominated by the President 

and confirmed by the Senate, who heads an agency exercising executive powers and who reports to the President. The 

only statutory powers assigned to the Director are executive. No party contends the office of the FHFA Director is 

a nonexecutive office. No statute refers to him as a nonexecutive 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 Director 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, usually does not take an otherwise executive officer outside the Executive Branch. True, 

statutory provisions governing 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). 
 

Cite as: 594 U. S. ____ (2021) 7 

THOMAS, J., concurring 

Myers v. United States, 272 U. S. 52, 108, 176 (1926).4 

The Appointments Clause cases do not help the shareholders 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 exercise the powers of the office generally is legally deficient. 

Id., at 179, 182–183. Here, “[a]ll the officers who headed

the FHFA during the time in question were properly appointed.” Ante, at 33. There is thus no barrier to them exercising power in the first instance. 

B 

The mere existence of an unconstitutional removal provision, too, generally does not automatically taint Government 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) (THOMAS, J., concurring in part and

dissenting in part) (slip op., at 15) (“In the context of a constitutional 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 JUSTICE GORSUCH 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 historically 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 Director is an executive officer. Ante, 

at 32. 
 

 

 

 

8 COLLINS v. YELLEN 

THOMAS, J., concurring 

(internal quotation marks omitted)); ante, at 35. 

That the Constitution automatically trumps an inconsistent 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 the power to fire the Director

for any reason. So regardless of whether the removal restriction 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 Curiae 15–16. 

Moreover, no Director has ever 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 unlawfully if protected by an unlawful 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 THOMAS, J.) (slip op., at 17). Perhaps we should have 

addressed it then. Post, at 6–7, n. 2 (opinion of GORSUCH, J.).

I continue to adhere to the views that I expressed in Seila Law: A combination of statutes can produce a separation-of-powers violation that 

renders Government action unlawful. See 591 U. S., at ___ (opinion concurring in part and dissenting in part) (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 

GORSUCH, 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 JUSTICE GORSUCH, 

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. 6A removal restriction may unconstitutionally insulate an officer such 

that his actions are unlawful. If the President tries to remove an official 
 

 

Cite as: 594 U. S. ____ (2021) 9 

THOMAS, J., concurring 

is a lawfully appointed executive officer whom the President may remove in a manner consistent with the Constitution 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 unconstitutional. Thus, if the President or Director misunderstood the 

circumstances under which the President could have removed 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 Constitution 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 another official incorrectly interpreted 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 that 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. 7The APA might permit this type of lawsuit in allowing an individual

to challenge an agency action as “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U. S. C. §706(2)(A). 

There is a colorable argument that a Government official’s misunderstanding about the scope of the President’s removal authority would render an agency action arbitrary or capricious in certain cases. However, 

the shareholders did not bring this constitutional challenge as an arbitrary and capricious claim against the FHFA. And if they had, we would

need to consider the interaction between this statutory claim and the 

Act’s anti-injunction provision. Cf. ante, at 12–13. 
 

 

 

10 COLLINS v. YELLEN 

THOMAS, J., concurring 

Court could not undo that lawful act simply because an injured 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 watchword [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 coequal 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 legislative and judicial power.” Id., at ___ (slip op., at 5). 

Seila Law and Free Enterprise do not help the shareholders 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 removal restriction was unconstitutional. 591 U. S., at ___ 

(opinion of THOMAS, J.) (slip op., at 17). So the Court assumed “that [petitioner] ‘sustain[ed] injury’ from an executive act that allegedly exceeds the official’s authority.” Id., 

at ___ (slip op., at 10); ante, at 34–35. In Free Enterprise, 

we considered a similar challenge to a removal restriction

without questioning the plaintiffs’ standing “where plaintiffs claimed injury from allegedly unlawful agency oversight.” Ante, at 18. And then we assumed that the agency 

lacked the authority to act lawfully if the removal restriction there were invalid. 

D 

The shareholders’ briefing strongly implies one final argument: 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 removal provision is unlawful, then §4617(b)(2)(j)(ii) is too 
Cite as: 594 U. S. ____ (2021) 11 

THOMAS, 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 THOMAS, J.) (slip op., at 20); Lea, Situational 

Severability, 103 Va. L. Rev. 735, 764–776 (2017). The Recovery Act contains no inseverability 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 removal 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 relevant action by an FHFA Director violated the Constitution. And, absent an unlawful act, the shareholders are not 

entitled to a remedy. The Fifth Circuit can certainly consider this issue on remand. 
_________________ 

_________________ 

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

Opinion of KAGAN, 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] 

JUSTICE KAGAN, with whom JUSTICE BREYER and 

JUSTICE SOTOMAYOR join as to Part II, concurring in part

and concurring in the judgment. 

Faced with a global financial 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 question, 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 further than it needs to. I also write to address the remedial 

question. The majority’s analysis, which I join, well explains why backwards-looking relief is not always necessary to redress a removal violation. I add only two 
 

 

2 COLLINS v. YELLEN 

Opinion of KAGAN, J. 

thoughts. The broader is that the majority’s remedial holding 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. Consumer 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” comports with the Constitution only if the President can fire the

director at will. 591 U. S., at ___ (slip op., at 18). I dissented from that decision—vehemently. See id., at ___ 

(KAGAN, J., dissenting) (slip op., at 4) (“The text of the Constitution, the history of the country, 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) (ROBERTS, 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 observed in Seila Law, the FHFA “plays a crucial role in overseeing the mortgage market, on which millions of Americans 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 discussion of the constitutional issue. First is the majority’s 
 

Cite as: 594 U. S. ____ (2021) 3 

Opinion of KAGAN, J. 

political theory. Throughout the relevant part of its opinion, 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 Framers). Seila Law, 591 U. S., at ___–___ (KAGAN, J., dissenting) (slip op., at 9–13). The right way to ensure that government operates with “electoral accountability” is to lodge

decisions about its structure with, well, “the branches accountable to the people.” Id., at ___ (slip op., at 38); see id., 

at ___ (slip op., at 39) (the Constitution “instructs Congress, 

not this Court, to decide on agency design”). I will subscribe 

to decisions contrary to my view where precedent, fairly 

read, controls (and there is no special justification for reversal). 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 executive 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 constitutionality of a removal restriction would remain an open question. Accord, post, at 

11–12 (SOTOMAYOR, J., concurring in part and dissenting in 

part). But today’s majority careens right past that boundary line. Without even mentioning Seila Law’s “significant

executive power” framing, the majority announces that, actually, “the constitutionality of removal restrictions” does 
 

 

4 COLLINS v. YELLEN 

Opinion of KAGAN, J. 

not “hinge[]” on “the nature and breadth of an agency’s authority.” Ante, at 27, 29. Any “agency led by a single Director,” 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 authority: 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 development of legal principles,” not just shifts in the Court’s 

personnel, stare decisis demands something of Justices previously 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 precedent 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 opportunity. 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 remedy 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) (requiring a new hearing before a properly appointed official). 

As the majority explains, the officers heading the FHFA,

unlike those with invalid appointments, possessed the “authority to carry out the functions of the office.” Ante, at 34. 

I also agree that plaintiffs alleging a removal violation are 
Cite as: 594 U. S. ____ (2021) 5 

Opinion of KAGAN, 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 position they “would have occupied in the absence” of the removal problem. Milliken v. Bradley, 433 U. S. 267, 280 

(1977); see D. Laycock & R. Hasen, Modern American Remedies 275 (5th ed. 2019). Granting relief in any other case 

would, contrary to usual remedial principles, put the plaintiffs “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 majority prevents theories of formal presidential control from stymying the President’s real-world ability to carry out his 

agenda. Similarly, the majority’s approach should help protect agency decisions that would never have risen to the 

President’s notice. Consider the hundreds of thousands of 

decisions that the Social Security Administration (SSA)

makes each year. The SSA has a single head with for-cause

removal protection; so a betting 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 remedial 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.” Kagan, Presidential Administration, 114 Harv. L. Rev. 2245,

2250 (2001). When an agency decision would not capture a 

President’s attention, his removal authority could not make 

a difference—and so no injunction should issue. 
 

 

6 COLLINS v. YELLEN 

Opinion of KAGAN, J. 

My final point relates to the last sentence of the majority’s remedial section. There, the Court holds that the decisive 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 Treasury is “subject to at will removal by the President.” Collins 

v. Mnuchin, 938 F. 3d 553, 594 (CA5 2019). For that reason, 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 President 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 analysis. So I join the Court’s opinion on the understanding that

this litigation could speedily come to a close. 
GORSUCH, J., concurring

_________________ 

_________________ 

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

GORSUCH, 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] 

JUSTICE GORSUCH, 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 concerns retrospective relief. Ante, at 32. By the time we turn 

to that question, the plaintiffs have proven that the Director was without constitutional authority when he took the 

challenged actions implementing the Third Amendment. 

In response to such a showing, a court would normally set 

aside the Director’s ultra vires actions as “contrary to constitutional 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. Gardner, 387 U. S. 136, 155 (1967). Because the Court of Appeals did not follow this course, this Court would normally 

vacate the judgment in this suit with instructions requiring 
 

 

 

2 COLLINS v. YELLEN 

GORSUCH, J., concurring in part 

the Court of Appeals to conform its judgment to traditional 

practice. Today, the Court acknowledges it has taken exactly this course in cases involving unconstitutionally appointed executive officials. Ante, at 33–34. 

Still, the Court submits, we should treat this suit differently because the Director was unconstitutionally insulated 

from removal rather than unconstitutionally appointed. 

Ante, at 33–34; see also ante, at 7 (THOMAS, J., concurring). 

It is unclear to me why this distinction should make a difference. Either way, governmental action is taken by someone 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 distinction 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 General with “the very essence” 

of executive power, id., at 732–733, but that he was (impermissibly) 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 sector, 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 

—————— 1The Court’s attempt to sidestep these cases leads nowhere. Seila 

Law, we are told, discussed standing—not remedies—when it said plaintiffs “‘sustain[] injury’” from unlawfully insulated executive action and 

may “challeng[e] [such] action as void.” See ante, at 34, n. 24. But standing and remedies are joined at the hip: 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 in 
 

 

Cite as: 594 U. S. ____ (2021) 3 

GORSUCH, J., concurring in part 

If anything, removal restrictions may be a greater constitutional evil than appointment defects. New Presidents always 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 executive power is enforced by the 

express mandate to take care that the laws be faithfully executed, it emphasizes the necessity for including within the 

executive power as conferred the exclusive power of removal.” Myers v. United States, 272 U. S. 52, 122 (1926). 

Because the power of supervising subordinates is essential 

to sound constitutional administration, as between presidential 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) (emphasis 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 officer—not an executive one, which supposedly makes all the difference. Ante, at 35, n. 25. But there the Comptroller was legislative only in the sense 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 “independent” agency, 12 U. S. C. 

§4511(a)—is accountable to no one. The idea that whether acts are void 

or not turns on a label 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 

GORSUCH, 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 freedom 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 removal defect, a wholly unaccountable government agent asserts the power to make decisions 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 (GORSUCH, 

J., concurring in part and dissenting in part). Few things

could be more perilous to liberty 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 traditional remedy for constitutional 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 insulated 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 Director’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 rejected. In Bowsher, the Court directly addressed and ex-
Cite as: 594 U. S. ____ (2021) 5 

GORSUCH, J., concurring in part 

pressly refused the dissent’s insistence that it should undertake a “‘consideration’ of the ‘practical result of the removal provision.’” 478 U. S., at 730. Instead of speculating

about what would have happened in a different world 

where the officer’s challenged actions were reviewable 

within the Executive Branch, the Court recognized that unconstitutionally 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 fiction. It proceeds on an assumption that Congress would

have adopted a version of the Housing and Economic Recovery Act (HERA) that allowed the President to remove the

Director. But that is sheer speculation. It is equally possible 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 supervision by the President.

This Court possesses no authority 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 reinvention. Indeed, while never uttering the words “severance 
 

 

6 COLLINS v. YELLEN 

GORSUCH, 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 legislative prerogative in the process. See, e.g., Arthrex, ante, at 6–7 (GORSUCH, J., concurring 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 JUSTICE THOMAS stakes out more foreign terrain. After saying that 

he “join[s] the Court’s opinion in full,” he argues there was no constitutional violation at all because the President—despite statutes barring his 

way—was free to remove the Director all along. Ante, at 1, 4, 11. Accordingly, it seems JUSTICE THOMAS 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 violation arises because of “the combination” of statutory terms that (1) confer 

executive power on an official and (2) improperly insulate him from removal. 591 U. S., at ___ (THOMAS, J., concurring in part and dissenting 

in part) (slip op., at 21). Second, absent statutory direction from Congress, we cannot divine “which of the provisions” Congress would have 

kept and which it would have scrapped—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, JUSTICE THOMAS 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., Zivotofsky v. Kerry, 576 U. S. 1, 41, n. 2 (2015) (THOMAS, 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. 
 

 

 

Cite as: 594 U. S. ____ (2021) 7 

GORSUCH, J., concurring in part 

The Court’s conjecture does not stop there. After guessing 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 prefers to reserve the big hypothetical (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 expressing displeasure” about 

something the Director did, or whether the President “attempted” to remove the Director 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 when inquiring into the President’s “displeasure”? Are they restricted to publicly available materials, even though the most probative evidence may 

be the most sensitive? To ascertain with any degree of confidence 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 intrude on often-privileged executive deliberations, the Court 

may calculate that the lower courts on remand in this suit 

will simply refuse retroactive relief. See, e.g., ante, at 6 
 

 

 

8 COLLINS v. YELLEN 

GORSUCH, J., concurring in part 

(KAGAN, 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 courts face isn’t how to resolve 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 ROBERTS, 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); Ryder v. United States, 515 U. S. 177, 182–183 (1995); Bowsher, 478 U. S., at 736. These cases—involving appointment and removal defects alike—remain good law. So what 

are lower courts faced with future removal defect cases to 

make of all this? The only lesson I can divine is that the 

Court’s opinion today is a product of its unique context—a

retreat prompted by the prospect that affording a more traditional 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 authorizing such relief today, but nothing it says undoes our prior 

guidance authorizing more meaningful relief in other situations. 

For my part, rather than carve out some suit-specific, removal-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 executive power except as Article II provides. Attempts to do so 

are void; speculation about alternate universes is neither 

necessary nor appropriate. In the world we inhabit, where 
Cite as: 594 U. S. ____ (2021) 9 

GORSUCH, J., concurring in part 

individuals are burdened by unconstitutional executive action, they are “entitled to relief.” Lucia, 585 U. S., at ___ 

(slip op., at 12). 
SOTOMAYOR, J., concurring in part and dissenting in part

_________________ 

_________________ 

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

Opinion of SOTOMAYOR, 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] 

JUSTICE SOTOMAYOR, with whom JUSTICE BREYER 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 removal. 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 separation of powers. Id., at ___ (slip op., at 3). As an “independent agency led by a single Director and vested with significant executive power,” the Court reasoned, the CFPB had

“no basis in history and no place in our constitutional struc- 
 

SOTOMAYOR, J., concurring in part and dissenting in part

2 COLLINS v. YELLEN 

Opinion of SOTOMAYOR, J. 

ture.” Id., at ___ (slip op., at 18). Seila Law expressly distinguished the Federal Housing Finance Agency (FHFA), 

another independent Agency headed by a single Director, 

on the ground that the FHFA does not possess “regulatory

or enforcement authority remotely comparable to that exercised by the CFPB.” Id., at ___–___ (slip op., at 20–21). 

Moreover, the Court found it significant that, unlike the

CFPB, 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 between the two are irrelevant to the constitutional separation of powers. That reasoning cannot be squared with this

Court’s precedents, least of all last Term’s Seila Law. I respectfully 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 Mortgage Corporation (Freddie Mac), and the 11 Federal Home

Loan Banks. These 13 Government-sponsored entities

(GSEs) provide liquidity and stability to the national housing market by, among other things, purchasing mortgage 

—————— 1 I join Parts I and II of the Court’s opinion rejecting petitioners’ argument that the FHFA actions under review violated the Housing and Economic Recovery Act of 2008, as well as Part III–C discussing what the 

appropriate remedial implications would be if the FHFA Director’s forcause removal protection were unconstitutional. I join also Part II of 

JUSTICE KAGAN’s concurrence concerning the proper remedial analysis 

for the Fifth Circuit to conduct on remand. Finally, I note that JUSTICE 

THOMAS’ arguments that an improper removal restriction does not necessarily render agency action unlawful warrant further consideration in 

an appropriate case. 
 

SOTOMAYOR, J., concurring in part and dissenting in part

Cite as: 594 U. S. ____ (2021) 3 

Opinion of SOTOMAYOR, J. 

loans from, and offering financing to, private lenders. 

The FHFA “establish[es] standards” for the GSEs relating 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, impose monetary penalties, §4585. In the event a GSE falls 

into financial distress, the FHFA may appoint itself “conservator or receiver for the purpose of reorganizing, rehabilitating, 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, challenging 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 Director 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 history, however, Congress has 

identified particular officers who, because of the nature of 

their office, require a degree of independence from Presidential 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 confidence that financial policy is guided by long-term thinking, not short-term political expediency. See Seila Law, 591 

U. S., at ___–___ (slip op., at 13–16) (KAGAN, J., concurring

in judgment with respect to severability and dissenting in 
 

 

 

SOTOMAYOR, J., concurring in part and dissenting in part

4 COLLINS v. YELLEN 

Opinion of SOTOMAYOR, J. 

part) (discussing examples). Other times, Congress has

provided tenure protection to officers who investigate other 

Government actors and thus might 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 approved 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); Morrison v. Olson, 487 U. S. 654 (1988). In recent years, however, the Court has taken an unprecedentedly active role in

policing Congress’ decisions about which officers should enjoy independence. See Seila Law, 591 U. S. ___; Free Enterprise 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 Congress’ constitutional authority to structure the Executive 

Branch as it deems necessary.

Never before, however, has the Court forbidden simple 

for-cause tenure protection for an Executive Branch officer 

who neither exercises significant executive power nor regulates the affairs of private parties. Because the FHFA Director 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 Director. 

A 

In Seila Law, the Court held that the CFPB Director, an 

individual with “the authority to bring the coercive power 
 

 

 

SOTOMAYOR, J., concurring in part and dissenting in part

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

Opinion of SOTOMAYOR, J. 

of the state to bear on millions of private citizens and businesses,” 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 respectively upheld the independence of the Federal Trade 

Commission’s (FTC) five-member board and an independent counsel tasked with investigating Government malfeasance. 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 Director 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 structured 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 individual with tenure protection.

Rather, that decision stated, repeatedly, that its holding 

was limited to a single-director agency with “significant executive 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 significance 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 mandate to prevent private individuals and corporations alike from engaging in “‘unfair 

—————— 2As JUSTICE KAGAN explained in dissent, Seila Law rested on implausible recharacterizations of this Court’s separation-of-powers jurisprudence. I continue to believe that Seila Law was wrongly decided. Whatever the merits of that decision, however, it does not support invalidating 

the FHFA Director’s independence. 
 

 

 

 

SOTOMAYOR, J., concurring in part and dissenting in part

6 COLLINS v. YELLEN 

Opinion of SOTOMAYOR, J. 

methods of competition in commerce.’” Humphrey’s Executor, 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 decree.’” 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 contrast to the CFPB’s powers, which far outstrip the 1935

FTC’s. While the 1935 FTC’s ambit was limited to preventing unfair competition and violations of antitrust law, the 

CFPB “possesses the authority to promulgate binding rules 

fleshing out 19 federal statutes, including a broad prohibition 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 behalf 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, responsible for creating substantive rules for a wide swath

of 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 insignificance as the 1935 FTC. To some, the CFPB Director was 

“the single most powerful official in the entire U. S. Government, other than the President, at least when measured in 
SOTOMAYOR, J., concurring in part and dissenting in part

Cite as: 594 U. S. ____ (2021) 7 

Opinion of SOTOMAYOR, J. 

terms of unilateral power.” PHH Corp. v. Consumer Financial Protection Bur., 881 F. 3d 75, 171 (CADC 2018) (Kavanaugh, 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 authority 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 respects, 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. Unlike the 1935 FTC, however, which was tasked with implementing 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 acting as a conservator or receiver, an agency like the FHFA

“‘steps into the shoes’” of the party under distress, O’Melveny & 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 conservator and those of a common-law conservator, “the FHFA’s 

conservatorship 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 impose fines on the 13 GSEs it regulates for failing to meet 
 

 

 

SOTOMAYOR, J., concurring in part and dissenting in part

8 COLLINS v. YELLEN 

Opinion of SOTOMAYOR, J. 

their reporting requirements and housing goals under the 

Recovery Act and for violating the requirements of the Federal 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 history 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, possessed executive authority, just not enough to be “significant.” 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 governmental actors. In that respect, the FHFA Director mimics

the independent counsel whose tenure protections were upheld 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). 

—————— 3By 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). 
 

 

SOTOMAYOR, J., concurring in part and dissenting in part

Cite as: 594 U. S. ____ (2021) 9 

Opinion of SOTOMAYOR, J. 

Separation-of-powers concerns were allayed, however, because “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 now privately owned, they still 

operate under congressional charters, see 12 U. S. C.

§4501(1), serve “important public missions,” ibid., and receive preferential treatment under law by dint of their Government 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 constitutionality of the FHFA Director’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- 

—————— 4The GSEs’ ongoing ties with the Government long fueled public perception that the Government would intervene if the GSEs were in danger

of collapse. See Congressional Research Serv., Fannie Mae and Freddie 

Mac in Conservatorship: Frequently Asked Questions 2 (updated May

31, 2019) (noting that it was “widely believed prior to 2008 that the federal government was an implicit backstop 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 Fannie Mae and Freddie Mac, and the 

FHFA put those entities under conservatorship. 
 

 

 

SOTOMAYOR, J., concurring in part and dissenting in part

10 COLLINS v. YELLEN 

Opinion of SOTOMAYOR, J. 

ecutive power, like the CFPB. Consider three such examples, each discussed in Seila Law. First, the Comptroller of

the Currency, who was briefly independent from Presidential 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 comparable to that exercised by the CFPB.” Id., at ___–___ (slip 

op., at 20–21). While these agencies thus offered “no foothold 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 regulators, including the Comptroller 

of the Treasury, the Second Bank of the United States, the

Federal Reserve Board, the Securities and Exchange Commission, the Commodity Futures Trading Commission, and 

the Federal Deposit Insurance Corporation. See id., at ___– 

___ (slip op., at 12–16) (opinion of KAGAN, J.). The public

has long accepted (indeed, expected) that financial regulators will best perform their duties if separated from the political 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 institutions . . . 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 important to economic stability makes the FHFA far more

similar to historically independent financial regulators 
 

SOTOMAYOR, J., concurring in part and dissenting in part

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

Opinion of SOTOMAYOR, J. 

than to the CFPB. See FHFA, Performance and Accountability Report 18 (2020) (“The [Recovery Act] vests FHFA

with the authorities, similar to those of other prudential financial 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 removable 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 independence 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-director 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 appears to take the position that exercising essentially any

executive power whatsoever is enough. Ante, at 27–29. In 

terms 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 constitutionality of removal restrictions hinges on such an inquiry.” Ante, at 29. 

The Court’s position unduly encroaches on Congress’ 

judgments about which executive officers can and should 

enjoy a degree of independence from Presidential removal, 
 

 

 

 

SOTOMAYOR, J., concurring in part and dissenting in part

12 COLLINS v. YELLEN 

Opinion of SOTOMAYOR, J. 

and it cannot be squared with Seila Law, which relied extensively 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 Morrison, see 591 U. S., at ___–___ (slip op., at 17–18), it concluded that the FHFA (along with the Comptroller of the

Currency, the Office of Special Counsel, and the Social Security Administration) does not possess “regulatory or enforcement 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 constitutional structure.” Id., at ___ (slip op., at 18). In the Court’s 

view today, however, all of those comparisons were irrelevant to the bottom-line question whether the CFPB Director’s tenure protections comport 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 important purposes regardless of whether the agency in question 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 independent 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 reason, see id., at ___ (slip op., at 20). That the Court is unwilling 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. 
SOTOMAYOR, J., concurring in part and dissenting in part

Cite as: 594 U. S. ____ (2021) 13 

Opinion of SOTOMAYOR, J. 

IV 

The Court has proved far too eager in recent years to insert itself into questions of agency structure best left to 

Congress. In striking down the independence of the FHFA 

Director, the Court reaches further than ever before, refusing tenure protections to an Agency head who neither 

wields significant executive power nor regulates private individuals. Troublingly, the Court justifies that result by ignoring the standards it set 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 independent from Presidential control, I respectfully dissent.