Calcutt v. Federal Deposit Insurance Corporation, Brief of Separation of Powers Clinic as Amicus Curiae in Support of Petitioner

Separation of powers is “basic and vital” to preserving and securing liberty and the proper functioning of the federal government. The Court should grant the Petition because the Sixth Circuit’s erroneous resolution of several important separation of powers issues otherwise will have longstanding detrimental consequences on the balance of power between Congress, the judiciary, and the executive.First, the Sixth Circuit misread Collins as establishing a nearly insurmountable barrier for prevailing on challenges to unconstitutional officer removal protections. This conclusion sits in tension with Collins itself. More, it would essentially foreclose all future challenges to constitutional structural violations on removal grounds because it extends the principle of Collins beyond retrospective harm, creating a hurdle to challenging even ongoing actions by unconstitutionally serving officers. Courts have long possessed equitable power to remedy ongoing constitutional violations even where they may lack power to provide certain remedies for past violations. The Court should grant review to consider the tension between this longstanding principle and the Sixth Circuit’s decision below.Second, by refusing to remand to the Federal Deposit Insurance Corporation and preserving the agency’s action at all costs, the Sixth Circuit violated the core doctrine of Chenery I, which prohibits courts from doing the agency’s job of providing reasons and legal justification for agency actions