Can HERA remain on the books without an independent FHFA? Or does the law become unconstitutional?
Today's Selia ruling makes this quite clear. The entirety of HERA will stand outside of the director's removal clause if the Supreme Court applies the arguments they used today to Collins.
The Supreme Court decision said that they would have severed CFPB's removal clause even if the Dodd-Frank Act didn't have a severability clause. The key phrases are on page 33:
In Free Enterprise Fund, we found a set of unconstitutional removal provisions severable even in the absence of an express severability clause because the surviving provisions were capable of “functioning independently” and “nothing in the statute’s text or historical context [made] it evident that Congress, faced with the limitations imposed by the Constitution, would have preferred no Board at all to a Board whose members are removable at will.” 561 U. S., at 509 (internal quotation marks omitted).
and at the end of page 35:
We think it clear that Congress would prefer that we use a scalpel rather than a bulldozer in curing the constitutional defect we identify today.
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