Dem
47
GOP
53
The Supreme Court does not seem inclined to allow Donald Trump to remove Lisa Cook from the Federal Reserve Board of Governors, at least for now. The case comes to the Court on Trump's application for an emergency stay of a preliminary injunction put in place by the district court, which prohibited Cook's removal after she sued to prevent Trump from firing her. Cook was reappointed in 2023 to a 14-year term. Trump claimed that the court has no jurisdiction over the case and that he has unlimited discretion to fire Fed Governors in the same way the Court has said he can fire officials on other multi-member boards such as the NLRB or Merit Systems Protection Board. (The ruling in the FTC case over the firing of Rebecca Slaughter is expected this summer.)
Several of the more conservative members of the Court pointed out that a statutory requirement of a "for cause" justification for removal has to include some limits on the president's discretion or else the requirement is meaningless, even if the statute itself doesn't define "for cause." They also seemed to agree that there has to be at least some due process, such as notification and an opportunity to defend oneself, before a Fed Governor can be fired. There was near-unanimity that Trump's post on his social media site that is basically just a blog does not constitute notice under the statute, despite Solicitor General Sauer's vociferous arguments to the contrary. Associate Justices Amy Coney Barrett and Brett Kavanaugh and Chief Justice Roberts were also unimpressed by the so-called "deceit" allegedly perpetrated by Cook long before she took her seat on the Board. Although Kavanaugh once again made a point of telling everyone assembled that "I'm not familiar with the facts of this case," he was troubled by the implications of Sauer's arguments. (What kind of judge deliberately keeps himself ignorant of the facts of cases he's reviewing?—It borders on malpractice, if we do say so ourselves.)
There was also a question of whether conduct that occurred before Cook's appointment is relevant at all. The Justices seemed to agree that in those circumstances, the offense must rise to the level of severe misconduct, such as murder or some other grave criminal behavior. Allegedly making a mistake on some paperwork, which Roberts pointed out isn't even in the record and so can't be verified at this point, isn't such an offense.
Kavanaugh was also the most troubled at the implications of Sauer's argument that Trump can dismiss for any reason except for policy disagreements. This prompted Kavanaugh to observe that, if that were true, then any president who wanted to fire a Governor for policy differences could simply expend unlimited government resources to dig up something he could use to fire that Governor and evade any limits on his authority. Uh, welcome to the party Brett—that's just what Cook is alleging here. But again, he doesn't bother to learn the facts, or so he says.
In the end, it appears the Court will do what it always does when it disagrees with the Trump administration—punt. To that end, it can deny Trump's request to put a hold on the preliminary injunction and keep Cook in her position while the case plays out on the merits in the courts below. It could also hold that some notice and an opportunity to be heard on the allegations is required before a Fed Governor can be removed. Our guess is that the Court will not go beyond that. It's likely banking on the fact that by the time the case gets back to them, Trump will either be long gone from office or he will have been able to appoint a majority of the Federal Reserve Board by some other means, such as when terms for the current Governors expire. Still, the Court did not grant Trump's request for an emergency stay so Cook remains on the Board pending this decision. The Court, then, need not hurry to issue a ruling to ensure the outcome it wants. A profile in courage this is not.
Scotusblog is in agreement with our assessment. (L)