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High Court Takes on FHFA ‘Separation of Powers’ Case

The U.S. Supreme Court has taken up the case of Collins v. Mnuchin, which will determine whether the leadership structure of the Federal Housing Finance Agency (FHFA) violates the federal separation of powers and whether the courts will be able to void agency actions taken by the FHFA if it is determined that it acted unconstitutionally.

The case is based on a lawsuit brought by shareholders of the government-sponsored enterprises (GSEs) Fannie Mae and Freddie Mac, which were placed into federal conservatorship in September 2008 after losing roughly $108 billion in the run-up to the Great Recession. The FHFA was created in 2008 to serve as the regulator for the GSEs.

Under the terms of the conservatorship, the Treasury Department provided the GSEs with up to $100 billion in funding in exchange for a compensation agreement that encompassed the GSEs’ stock, all dividends tied to the amount of money invested in the GSEs prior to the conservatorship period, and a priority over individual and institutional shareholders trying to
recover their pre-conservatorship investments in Fannie Mae and Freddie Mac. In August 2012, the FHFA and Treasury updated the agreement with Fannie Mae and Freddie Mac paying quarterly dividends tied to their net worth instead of the size of the Treasury Department’s 2008 investment.

In pursuing their lawsuit, the plaintiffs originally argued the FHFA and the Treasury Department did not have the authority to transact the 2012 update on the initial agreement, adding that the FHFA should not have been allowed to negotiate the agreement because its leadership structure of a single director who can only be fired by the president “for cause” was unconstitutional.

The case before the Supreme Court does not focus on the 2012 amendment—a ruling by the U.S. Court of Appeals for the 5th Circuit stated that the issue needed to be addressed legislatively through an update to the Housing and Economic Recovery Act of 2008 that created the FHFA. Instead, the Supreme Court will decide whether the FHFA’s structure is unconstitutional because the president is limited in the ability to remove its director, who is appointed for a five-year term.

The Supreme Court heard oral arguments in the case today prior to adjourning for the remainder of the month. The court will resume its work after the New Year’s Day holiday and the case is expected to be ruled upon by late spring.

About Author: Phil Hall

Phil Hall is a former United Nations-based reporter for Fairchild Broadcast News, the author of nine books, the host of the award-winning SoundCloud podcast "The Online Movie Show," co-host of the award-winning WAPJ-FM talk show "Nutmeg Chatter" and a writer with credits in The New York Times, New York Daily News, Hartford Courant, Wired, The Hill's Congress Blog and Profit Confidential. His real estate finance writing has been published in the ABA Banking Journal, Secondary Marketing Executive, Servicing Management, MortgageOrb, Progress in Lending, National Mortgage Professional, Mortgage Professional America, Canadian Mortgage Professional, Mortgage Professional News, Mortgage Broker News and HousingWire.

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