Trump is arguing for a big-ticket ruling from the Supreme Court that presidents have the constitutional power to remove executive officers.
The Supreme Court isn’t removing Lisa Cook from the Federal Reserve Board of Governors. Not now, and not for some time.
That much, at least, was quite clear from this morning’s oral argument in Trump v. Cook. There are a lot of legal questions embedded within this case, and the Court may well rule on some of those questions in ways that favor the Trump Administration. The justices were not entirely unsympathetic to the administration’s positions as argued by Solicitor General John Sauer, and even the liberals sounded some reasonable notes — perhaps ominously for Trump, as if they expected to be joining a majority opinion rather than gearing up to write a furious dissent. But Sauer needs a clean sweep on just about every legal question at hand in order to get the Court to where he wants to be: Cook either permanently removed from the Fed or, at least, off its board temporarily while the lawsuit plays out. Instead, it seems that the best he can hope for is to keep the final resolution of Cook’s status in doubt rather than get an outright ruling that Trump hasn’t cited a proper basis to remove her.
To recap the state of play: Trump is arguing, in other cases (such as Trump v. Slaughter), for a big-ticket ruling from the Supreme Court that presidents have the constitutional power to remove executive officers — even if Congress, by the statute creating that office, tries to restrict their removal. This is a very longstanding fight in American constitutional law: the “Whig theory of removal” developed by Andrew Jackson’s opponents held that Congress had to consent to the removal of officers it confirmed (a theory that was explicit in the Confederate Constitution, which was written by former Whigs), and Andrew Johnson was impeached for violating a statute that purported to bar him from firing the Secretary of War. In modern times, it has been a long-running project of the conservative legal movement to restore the broad concept of presidential removal power advanced by Chief Justice William Howard Taft in Myers v. United States (1926) and by Justice Antonin Scalia in his Morrison v. Olson (1988) dissent, and the justices seem ready to rule in his favor on that score. The Roberts Court now seems primed to rule in Trump’s favor on that broad removal power in Slaughter — but it has signaled that it is hesitant to extend the same removal power to the Fed.
Trump, for once, is listening to his lawyers enough that he’s not claiming a power to fire the governors of the Fed at will. But he very much wants to reshape the Fed to comply with his demands for lower interest rates. (This is partly because Trump wants to spur economic growth even at the cost of more inflation, and partly because lower rates on our colossal national debt would cut the budget deficit.) So, he needs some other way to fire or threaten members of the board. The hard way is his thuggish unleashing of a criminal investigation against Fed Chairman Jerome Powell, which is probably not helping him convince the Court that he’s playing within the rules. But the Federal Reserve Act allows governors to be fired “for cause.” So, Trump cited a cause and fired Cook. That means he has acted within his proper powers as delegated by Congress, and isn’t asking the Court to invoke any constitutional grounds for invalidating that restriction — if Trump’s actions comply with the for-cause removal standard written by Congress. This morning’s argument was all about deciding that broad question.
But there was a series of questions within the question:
First, what causes are sufficient cause? The statute doesn’t say. Other federal statutes cite “inefficiency, neglect of duty, or malfeasance in office” as a standard, but the fact that the Fed’s statute is not so limited suggests that it may not be the standard. Trump fired Cook on the theory that she misrepresented her residential status in seeking a mortgage in 2021 on a vacation home. But Cook wasn’t appointed to the board until 2022. Is financial dishonesty outside the job “cause”? The district court that heard the case cited common-law doctrines that strictly limited causes from before an officer or employee started work – and that occupied a lot of the justices’ attention, with multiple justices focused on whether a pre-employment cause is limited to an “infamous” crime or one that results in the governor being under indictment and thus unable to do the job while in office. Justice Samuel Alito drilled down with Paul Clement (arguing Cook’s case): what if prior misconduct only came to light later? What about videos of someone praising Hitler or the Klan?
Second, can the president just announce a cause, or does he have to prove it in court — or is there some in-between rule where he has to provide some notice to the official and an opportunity to defend herself? Unlike in other statutes, Congress has not specified any process, so the justices sounded sympathetic to giving presidents a lot of leeway on what sort of process could be adequate. Clement conceded that this could be something far short of a hearing before an impartial judge or jury. Justice Neil Gorsuch asked Sauer if this meant “Just a meeting across a conference table that ends with ‘you’re fired’?” Justice Amy Coney Barrett suggested a meeting would be enough, but dueling social media posts would not. Clement shot back that even requiring a president to spend an hour in the Oval Office would at least deter presidents from firing someone lightly. He added that he didn’t expect the Court to legislate Robert’s Rules of Order (a sly double meaning that drew some chuckles), but argued that the more process a president provided, the less need there would be for judicial review. While Justices Sonia Sotomayor and Ketanji Brown Jackson both complained that a Truth Social post was not really a legally proper form of notice, both acknowledged that Cook had, in fact, been notified.
Alito sounded annoyed that the informal way in which Trump went about handling the firing left the Court uncertain as to what facts were properly in the record. Thomas asked why, if process was important, Congress didn’t specify one. Chief Justice John Roberts, however, pressed Clement repeatedly on whether he actually had any additional facts to present if he got a hearing.
Third, what powers do the courts have here? Can they review what the president does? If so, are they limited to deciding that he’s invoked a legally proper cause, or can they second-guess whether the president actually has evidence to back that up? For the most part, the justices seemed inclined to some deference and not to require, say, that presidents can only fire a governor for cause after a full civil lawsuit or criminal conviction. And the question of remedies was complicated by Marbury v. Madison, which established that a writ of mandamus can’t be issued against the president. There was also a lot of skepticism about suggesting that the standard for removing a governor should be so high that effectively only impeachment could accomplish it. But while many on the Left would prefer that courts delve into presidential motivations in order to declare Trump’s acts pretextual, the justices instead suggested that they should seek for a standard that would make pretextual removals harder in practice – without getting courts into asking what a president’s actual motives were, so long as he could cite adequate causes and show some sort of diligence in proving them.
Fourth, should the Court act now? The case came up through the emergency docket, and many of these questions were not resolved by the lower courts. The Court has a whole separate decision first about whether the president is more harmed by keeping Cook in place than Cook is harmed by being removed — and how the public interest factors in. Barrett noted that there’s a particular public interest in certainty that stabilizes the markets, but also emphasized that the justices shouldn’t be in the position of guessing how markets will react.
It fell to Justice Brett Kavanaugh to talk about the biggest-picture incentives involved. If removals are too easy, he worried, history tells us that the next Democratic president will clear the decks of Trump appointees — and that this “incentivizes a president to come up with trivial or inconsequential or old allegations that are very hard to disprove” — the latter being an obvious sore spot for Kavanaugh. Anything that easy, he added, would shatter public confidence in the Fed’s monetary policy independence.
My guess is that the Court will, lopsidedly and perhaps unanimously, leave Cook in place and send the case either back down to a lower court, back to Trump to hold some further process, or most likely a combination of both, allowing an opportunity for Cook to make her evidentiary case to Trump on the record. But it is likely that they will do so after clarifying at least some of the rules for what “for cause” means — possibly by setting such a high standard for removals for pre-office causes that it is effectively a road map for Cook to win.