NOTICE: This opinion is subject to
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															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), 122Stat.
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.” §§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 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,
52Stat. 23; Federal Home Loan Mortgage Corporation Act, 84Stat.
451. The companies operate under congressional charters as
for-profit corporations owned by private shareholders. See Housing
and Urban Development Act of 1968, §801, 82Stat. 536, 12
U. S. C. §1716b; Financial Institutions Reform, Recovery,
and Enforcement Act of 1989, §731, 103Stat. 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–2013–002_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 aspect 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, §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
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-for-dollar 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 long-term options, to purchase up to 79.9%
of the companies’ common stock at a nominal price. Third, Treasury
became entitled to a quarterly periodic commitment fee, which the
companies would pay to compensate Treasury for the 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 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 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 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 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 pay-down 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
restriction 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
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 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 stock-purchasing 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 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 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, 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 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 (opinion 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.

															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
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 Director[ 17 ] 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 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 “[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 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 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 ]

															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.

															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.
At-will removal ensures that “the lowest officers, the middle
grade, and the highest, will depend, as they ought, on the
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”).

															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”).

															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 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
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 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 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
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 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. Notes 1 Before 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, 106Stat. 3944–3946. 2 Receivership is mandatory
in certain circumstances not relevant here. See 12
U. S. C. §4617(a)(4). 3 See Amended and Restated
Senior Preferred Stock Purchase 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). 4 Treasury 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. 5 See Amendment to Amended
and Restated Senior Preferred Stock 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). 6 See 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). 7 See 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). 8 The 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). 9 See 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 See
Letters from S. Mnuchin, Secretary of Treasury, to M. Calabria,
Director of the FHFA (Jan. 14, 2021) (online source archived at
www.supremecourt.gov). 11 The
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 By
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”). 13 The
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. 14 See
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. 15 See
Letter from E. Prelogar, Acting Solicitor General, to S. Harris,
Clerk of Court (Mar. 18, 2021). 16 The
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. 17 See Rop v. FHFA , 485 F. Supp. 3d 900, 915 (WD Mich.
2020). 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 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 . 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,
1Stat. 186 (1790). 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. 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. 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. 23 Settled 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). 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). 26 The
lower courts may also consider all issues related to the federal
parties’ argument that the doctrine of laches precludes any relief.
The federal parties argue that Treasury was prejudiced by the
shareholders’ delay in filing suit because, for some time after the
third amendment was adopted, there was a chance that it would
benefit the shareholders. 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. 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
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 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 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.

															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 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. 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”
(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 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 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
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. Notes 1 Another limit on the
judicial power is relevant: A party seeking relief must have a
legal right to redress. See Cohens v. Virginia , 6
Wheat. 264, 405 (1821) (explaining that Article III “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. 2 Because the shareholders
allege the Government acted unlawfully, because their alleged
injury can be traced to those allegedly unlawful actions, and
because this Court 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). 3 See also Stern v. Marshall , 564 U.S.
462 , 503 (2011) (bankruptcy judges, as Article I officers,
cannot exercise exclusive Article III power); Clinton v. City of New York , 524 U.S.
417 , 438–441, 448–449 (1998) (the President, an Article II
officer, 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
jurisdictioncan be exercised only by Article III courts, but
Article IV removes this limitation with respect to the
Territories). 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. 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. 6 A removal restriction may
unconstitutionally insulate an officer such that his actions are
unlawful. If the President tries to remove an officialbut 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. 7 The 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. 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 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 ]

															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).

															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
expressly 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 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 ]

															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
(Kagan, J., concurring in part and concurring in judgment in part).
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 individuals are
burdened by unconstitutional executive action, they are “entitled
to relief.” Lucia , 585 U. S., at ___ (slip op., at
12). Notes 1 The 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 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. 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. 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 in part.

															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 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 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 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, s tare 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 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.

															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. 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 for-cause 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-
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 Government- sponsored 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 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 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 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
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-and- desist 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
knee- buckling 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 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 hard-pressed 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 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, 106Stat. 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).
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. Single-
director independent agencies with limited executive power, like
the FHFA, boast a more storied pedigree than do single-director
independent agencies with significant ex- 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 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
well-suited 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, 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.

															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. Notes 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 for-cause
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. 2 As 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. 3 By comparison, the CFPB
has fined private actors billions of dollars. Seila Law LLC v. Consumer Financial Protection Bureau , 591 U. S. ___,
___ (2020) (slip op., at 5). 4 The 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.

Summary: The Supreme Court ruled that the Federal Housing Finance Agency (FHFA), created to regulate Fannie Mae and Freddie Mac, violated the separation of powers by having a single director who could only be removed by the President "for cause." The Court held that the FHFA director's removal protection was unconstitutional, but this did not affect the validity of the agency's previous actions. The Court sent the case back to the lower court to determine the appropriate remedy.