The Supreme Court checks Donald Trump every now and then. The latest example of this sporadic phenomenon was seemingly on display at Wednesday’s hearing in Trump v. Cook, over the president’s bid to remove Lisa Cook from the Federal Reserve’s Board of Governors long before her Senate-confirmed term is up in 2038.
We won’t know how the court will rule until it issues a decision at an uncertain date in the future. But questions from justices across the ideological spectrum highlighted the extreme nature of the administration’s stance, in a case involving a key financial body whose independence the court cares about more than that of other federal agencies.
At the center of the legal dispute is the Federal Reserve Act’s provision that presidents can prematurely remove governors “for cause,” a term that isn’t defined in the law.
Arguing for the administration, U.S. Solicitor General John Sauer conceded that Trump can’t remove Cook over a policy disagreement. But he insisted that the president can remove her over an unproven claim of possible mortgage fraud from before she joined the board.
He argued that courts can’t even review Trump’s rationale for wanting to remove Cook.
Justice Elena Kagan observed that under Sauer’s position, it would be impossible to test whether a removal is over a policy disagreement at all. “There’s no way for a court to evaluate that. The president just has to say: I’m removing you for cause,” the Obama appointee said.
Trump appointee Brett Kavanaugh said that if there’s no process or judicial review required, “that would weaken, if not shatter, the independence of the Federal Reserve.”
Overall, the hearing suggested an impending loss for Trump, though it’s unclear on exactly what grounds.
A complicating factor is that the appeal is at a procedurally unusual point. It’s at a preliminary stage of the litigation, but the justices granted a hearing instead of just issuing a ruling on the shadow docket. What’s pending before the justices is the administration’s application to lift a lower court order keeping Cook on the board while the case continues. In deciding whether to grant or deny the application, the court doesn’t have to fully answer weighty questions like how much cause is needed to remove a governor or what sort of notice and hearing procedures (if any) are required.
Whatever the court says, it would be surprising if Trump wins, certainly on anything resembling some of the extreme grounds that Sauer urged.
Of course, the court’s apparent skepticism of Trump’s power over the central bank could logically apply to his firing of members of other independent agencies without cause, which is at stake in another case argued earlier this term and awaiting decision, called Trump v. Slaughter. The court sounded likely to side with the administration in that case, which would underscore its white-glove treatment of the Federal Reserve — that is, if the court winds up ruling against Trump in the Cook case.
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