Trump’s Firing of a Fed Governor
If you listened to the January 21 oral argument in Trump v. Cook, you may have wondered, as I did, “Where did our stuck-in-the-18th-century-don’t-talk-to-us-about-the-real-world” Supreme Court go to? Except for Justice Clarence Thomas’s initial question, “On what basis are we to conclude that the Federal Reserve is an executive branch agency and, hence, that the president does have removal authority?” there was no hint of concern about ancient categorizations of federal power. Instead, we had Chief Justice John Roberts pointing out that, unless courts can reinstate an administrator wrongfully fired for alleged “cause,” there’s nothing to the “cause” requirement. You heard Justice Amy Coney Barrett wondering how to balance the risk of recession if presidents start removing Fed governors. We had Justice Brett Kavanaugh, erstwhile champion of the unitary executive, pointing out that Trump’s position would kneecap Fed independence and incentivize successors to engage in search-and-destroy missions to find “cause” for removing any Trump appointee. Technically, the sole issue before the Court was the government’s application for an emergency stay of a district court order blocking Trump, for now, from firing Lisa Cook from the Board of Governors of the Federal Reserve System. But thanks, no doubt, to Trump’s bombast and belligerence, Justices across the philosophical spectrum recognized that the stakes are much higher, thinking of the “big picture,” as Kavanaugh suggested.
One Trump behavior that would embarrass any set of Justices is his inability to resist voicing illegitimate, self-serving motives for his decisions. Such volubility makes it harder to accord his actions the so-called “presumption or regularity” that the Court generally prefers in reviewing presidential decision-making. In Cook’s case, the official impetus for Trump’s attempt to fire her arises from her alleged “gross negligence in financial transactions,” exemplified by misstating on a mortgage application that a vacation home would be her “principal residence.” Because it appears uncontested, however, that her application package elsewhere described the house in question as an intended vacation home, the attempted dismissal begs to be seen instead as part of Trump’s badgering the Fed to cut interest rates—most recently instigating what appears to be a baseless criminal investigation of its chairman, Jerome Powell. Yet Solicitor General D. John Sauer acknowledged to the Court that firing Cook over a policy disagreement would be unlawful.
The second source of embarrassment for the conservative majority is that, despite compelling textual and historical evidence, the Court insists that the Founding generation constitutionalized a “unitary executive” who is entitled, by virtue of Article II’s supposed “original public meaning,” to operate dangerously free of genuine legal or political accountability. Unfortunately, Trump seems intent on exploiting his freedom of action to bully or extort government agencies and private sources of countervailing power into compliance with his personal agenda. By displaying the authoritarianism latent in the Roberts Court’s “unitary executive” reading of Article II, Trump shows just how improbable their understanding of the Founding generation is. The revolutionary generation was unlikely to intentionally license tyranny through its new Constitution. In the Fed’s case, both Justices Kavanaugh and Barrett were troubled by the risk of giving presidents the power over the Fed that Trump craves.
Trump’s effort to fire Cook is best understood in light of his earlier firings of Gwynne Wilcox and Cathy Harris from the National Labor Relations Board and the Merit Systems Protection Board, respectively. Each, like Cook, was covered by a statute barring their dismissal at the president’s will, and both secured lower-court judgments keeping them in office while their constitutional claims climbed the judicial ladder. In May 2025, however, the Supreme Court granted the government’s request for an emergency stay of those orders, hinting strongly that the Court would soon overturn Humphrey’s Executor v. United States, the unanimous 1935 opinion upholding Congress’s authority to protect members of independent agencies from at-will firing. Nonetheless, the unsigned majority opinion accompanying the emergency stay implied the Court would not have the president’s back if he tried to fire Fed governors without legally required “cause.” The opinion stated: “The Federal Reserve is a uniquely structured, quasi-private entity that follows in the distinct historical tradition of the First and Second Banks of the United States,” suggesting it was in a different constitutional category from the NLRB and MSPB. The Court’s intentions sounded unmistakable because a bespoke carve-out for the Fed is both functionally and historically all-but-nonsensical.
As a consequence of the Court’s opinion, however, the administration recognized that Trump could only fire a Fed governor for “cause,” the standard set by the applicable statute. Bill Pulte, Trump’s director of the Federal Housing Finance Agency, provided the ammunition. In a letter to the Justice Department, he asserted Cook had “falsified bank documents and property records” to gain favorable loan terms and lower interest rates.
On September 5, Judge Jia Cobb of the U.S. District Court for the District of Columbia granted Cook a preliminary injunction keeping her in office. Cobb concluded that Cook’s alleged conduct could not constitute “cause” for dismissal because it occurred prior to her taking office. Further, the “for cause” language, she concluded, triggered a constitutional due-process requirement that Cook be granted an administrative hearing before she could be dismissed. On September 15, a split panel of the D.C. Circuit refused to block the Cobb order. On September 18, Sauer filed an emergency stay application with the Supreme Court.
It was unusual for the Supreme Court to set the application for a full briefing and oral argument. Technically, it would have been enough for the Court to deny it based entirely on the so-called “balance of equities”—a conclusion, that is, that the public interest in the Fed’s stability was stronger than the president’s interest in expelling a Fed governor who checked the wrong box on a loan application. Instead, the oral argument seemed to show a Court intent on answering a second question relevant to an emergency stay: Who, as a preliminary matter, seems likelier to win after all issues are vented and resolved by the courts below?
Unfortunately for the Solicitor General, his technical arguments defending Trump’s position ran into pragmatic skepticism from at least three conservative Justices. For Trump to prevail, the Court would have to accept four propositions. First, as a general matter, a good “cause” for dismissal by the Fed could include pre-appointment conduct. Second, and improbably, that conduct need not be any more serious than what Chief Justice Roberts speculated was no more than an “inadvertent mistake,” if the president simply labeled the mistake “gross negligence.” Third, the targeted Fed Governor would not be entitled to a hearing before dismissal. (Sauer conceded that, if the Federal Reserve Act, like many other independent agency statutes, limited “cause” explicitly to “inefficiency, neglect of duty, or malfeasance in office,” a hearing is required.) And finally, the Court could not second-guess the president unless the firing was clearly for mere “policy disagreement,” which would exceed the president’s authority.
In addition to Roberts’s doubts about the discharge-worthiness of Cook’s conduct and the hard, if predictable, questioning by Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson, the pushback from Barrett and Kavanaugh seemed most promising for Cook. Barrett asked, given the importance of balancing the relevant public interests, how the Court should weigh “amicus briefs from economists who tell us that if Governor Cook is—if we grant you your stay, that it could trigger a recession.” At this point, one might say, the mask slipped. Having avoided a right-wing populist framing of his argument up to that point, Sauer argued that more than “elite opinion,” what mattered was the “concern of ordinary Americans.” To Justice Jackson, he referred to a “grievous irreparable injury to the public perception of the Federal Reserve of allowing [Cook] to stay in office,” which sounds like vaporous rhetoric when compared to the risk of recession.
Justice Kavanaugh pursued the institutional stakes. He told Sauer: “[Y]our position . . . would weaken, if not shatter, the independence of the Federal Reserve.” (What happened, one is tempted to ask, to Kavanaugh’s usual paeans to a “unitary executive?”) Kavanaugh worried about what he called the “real-world downstream effects of Sauer’s position “because, if this were set as a precedent, it seems to me, just thinking big picture, what goes around comes around.” In other words, Kavanaugh continued, should a Democrat succeed Trump, “all of the president’s appointees would likely be removed for cause on January 20, 2029.”
And then Kavanaugh nearly acknowledged that the “presumption of regularity” was dangerous to rely on in this context. Sauer’s position, he said, “incentivizes a president to come up with… trivial or inconsequential or old allegations that are very difficult to disprove. It incentivizes a kind of search and destroy and find something and just put that on a piece of paper, no judicial review, no process, nothing, you’re done.”
Paul Clement, the former Solicitor General who argued in Cook’s defense, must have witnessed Sauer’s questioning with satisfaction. Besides deflecting the government’s technical arguments, he revealed his awareness that the Court dislikes delving into presidential motives. There was a solution, he said, that could avoid worrying about “pretext”—a word he was the first to use—and also protect Fed independence.
He argued that judges would likely be freed from the “temptation” of second-guessing presidential motive if the Court set a high bar for establishing “cause.” If the category of dismissible cause is narrow, a governor is entitled to a hearing before losing office, and the president knows that firing decisions would be judicially reviewed, fabricating a flimsy excuse for dismissal would be far less tempting. And, in any event, Clement’s position seemed to imply, the Court need not decide any of this right now. Without disrespecting the lower courts, he suggested that their hurried opinions revealed some of the technical “problems that happen when you try to decide some of the most important issues of constitutional law in this kind of rushed way.” Justice Samuel Alito appeared to bemoan any rush to judgment. “Is there any reason,” he asked Sauer, “why this whole matter had to be handled by everybody, by the executive branch, by the district court, by the D.C. Circuit, in such a hurried manner?”
For those who think Humphrey’s Executor v. United States was correct—I am among them—it is tempting to hope that the Cook dispute puts the Court in a pragmatic mood when deciding the fates of the NLRB, the MSPB, and the Federal Trade Commission—the last of which was the focus of Trump v. Slaughter, argued this past December. After all, a clear-eyed Court looking at the “big picture” might see that kneecapping independent agencies isn’t needed to give presidents influence over policymaking. Just like the Fed, each such agency is “uniquely structured,” and follows a “distinct historical tradition” of assigning certain decisions to independent administrative boards when expertise, impartiality, and bipartisan deliberation are deemed essential. (This is especially true of panels, such as the NLRB and MSPB, whose primary activity is all-but-entirely adjudicative.) Whether that hope is realistic remains to be seen.
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