Collins et al. v. Yellen: FHFA's structure found unconstitutional

[KickahaOta]

The Federal Housing Finance Agency is the executive-branch agency that Congress created to manage the bailout of Fannie Mae and Freddie Mac. That would seem to be a rather limited set of responsibilities. But with hundreds of billions of dollars at stake, as well as the stability of the mortgage market, it's a rather important agency. It's also run by a single Director who, according to the statute that created the agency, can be removed only "for cause".

The modern Supreme Court has expressed increasing hostility to this sort of structure, since the executive branch is supposed to be under the control of the President, and having an agency head who can't easily be removed by the President raises separation-of-powers concerns. And in fact the Supreme Court has recently held that the structure of several similar agencies was unconstitutional. There were thoughts that the FHFA would escape that, because those other agencies had more restrictive grounds for removal -- things like "for inefficiency, neglect of duty, or malfeasance in office". But the Supreme Court just held, in a largely-unanimous opinion, that even "for cause" was too much of a restriction.

To me, the most interesting part of the decision was a rather explosive footnote:

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.” [...] 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.

This calls to mind a very similar footnote in Blakely, the case that held Washington's sentencing guidelines unconstitutional: "The Federal
Guidelines are not before us, and we express no opinion on them." Shortly thereafter, in Apprendi, the Court did hold the Federal Guidelines unconstitutional, which turned out to have, er, rather dramatic effects.

I would wager that any number of lawyers representing folks with business before the SSA, the Comptroller, and various other federal agencies are more than willing to tee up cases to give the Court the opportunity to "comment on the constitutionality" of those agencies.

[Phoenix520]

Forgive my (clearly) NAL question:
Is there an equivalent to adverse possession for legislative acts? The SSA, for example, is around 80 years old. If she’s not been successfully challenged yet is she assumed to be in full possession of her…legality? *


* I’m so tired I can’t tell if this makes sense or not.

[KickahaOta]

I'm not a lawyer either, but I'll give it a shot:

There is no set period of years after which a law becomes presumptively constitutional. Judges may be more reluctant to overturn old laws, but it can certainly happen. As an example, think about the laws mandating racial segregation.

What is often true is that, if an old law has a problematic clause, someone may have already challenged that clause in the past and lost. And for someone who wants to challenge the same clause later, that sort of past precedent almost always makes things much harder.

And I should add that even if the Supreme Court decided that the Social Security Act had this fault, it would be mind-bogglingly unlikely to say "The Social Security system as a whole is unconstitutional." They would take the approach that they took in the FHFA case: they would sever the "the director can only be removed for cause" clause, so that the director could now be removed by the President for any reason.