Justices appoint Utah law professor to defend structure of Federal Housing Finance Agency

The Supreme Court on Monday appointed Aaron Nielson, a professor at Brigham Young University’s J. Reuben Clark Law School, as a “friend of the court” in Collins v. Mnuchin, in which the justices are likely to hear argument this fall. Nielson, an expert on administrative law, will defend the constitutionality of the structure of the Federal Housing Finance Agency after the federal government declined to do so.

The case is a dispute between shareholders of Fannie Mae and Freddie Mac and the FHFA, which became the conservator for Fannie and Freddie after the 2008 financial crisis, over the FHFA’s 2012 financing agreement with the Treasury Department. One of the questions that the justices agreed in July to decide is whether the FHFA’s structure violates the Constitution because the agency is headed by a single director, who can be removed by the president only “for cause.” In proceedings before the full U.S. Court of Appeals for the 5th Circuit and in its brief opposing review in the Supreme Court, the Justice Department did not defend the removal restriction. The FHFA defended the restriction in the court of appeals but has not appeared in the Supreme Court.

Facing the prospect that neither side in the case would defend the removal restriction, the justices appointed Nielson, a former law clerk to Justice Samuel Alito who was a partner in the Washington, D.C., office of Kirkland & Ellis before going into academia; Nielson continues to serve “of counsel” at the firm. Such appointments are not uncommon at the Supreme Court, and the justices have a longstanding tradition of allowing the circuit justice for the circuit from which the case hails to appoint the lawyer who will brief and argue the case as a “friend of the court.” The circuit justice – here, Alito, who handles emergency appeals from the 5th Circuit – will often call on a former clerk, frequently giving the lawyer, as is true for Nielson, his first opportunity to appear before the justices. However, Justice Elena Kagan departed last term from this tradition when she appointed Paul Clement, a former U.S. solicitor general who has argued over 100 cases, to defend the constitutionality of the leadership structure of the Consumer Financial Protection Bureau.

This post was originally published at Howe on the Court.