Throughout his time in office, Donald Trump has consistently shown an aversion to the word “no.” This tendency has not gone unnoticed, as courts have formally recognized this characteristic. Recently, the Supreme Court took the unusual step of issuing an advisory opinion, cautioning Trump that even his appointed majority would not support his desire to dismiss members of the Federal Reserve Board. Following this warning, it was inevitable that Trump would proceed with his plans, challenging the Court’s authority. Earlier today, his administration formally submitted a request to the Supreme Court, seeking permission to issue an injunction that would enable him to terminate Fed governor Lisa Cook.
In a related case from May, the Court addressed the contentious issue of whether Trump has the unilateral authority to remove commissioners from the NLRB, despite clear legal protections against politically motivated dismissals. During this deliberation, the Court downplayed the statutory “for cause” provisions, asserting that Article II of the Constitution grants the president the power to dismiss anyone exercising executive authority. This interpretation, if taken to its logical conclusion, implies that Trump could also fire members of the Federal Reserve Board, including Chair Jerome Powell. This concern is not simply theoretical; Trump has openly expressed his desire to oust Powell, expressing frustration over the individual who appointed him.
Ironically, that individual is Trump himself, which raises concerns about the cognitive state of a leader showing signs of dementia while holding the highest office in the land.
In an effort to protect their valuable stock portfolios from plummeting, and to a lesser degree, to prevent what they perceive as “destroying the economy,” conservative justices introduced an unexpected advisory exemption for the Federal Reserve. As Justice Kagan pointed out in her dissent, this carve-out was justified on the basis that “The Federal Reserve is a uniquely structured, quasi-private entity that follows in the distinct historical tradition.”
Consequently, the White House began strategizing on how to exert pressure on the Court to bend to its will.
The administration identified Lisa Cook as a test case for their plans. William Pulte, the Director of the Federal Housing Finance Agency, who has been criticized for his lack of engagement in actual housing finance oversight while focusing instead on scrutinizing the financial records of Trump’s opponents, claimed to have uncovered inconsistencies in Cook’s mortgage applications. He alleged that Cook had listed two different properties as her primary residence. However, upon further investigation, these accusations appear to lack merit. Nevertheless, Trump preemptively informed Cook that she was being terminated “for cause,” asserting that any financial discrepancies would undermine public confidence in an official with significant economic authority.
Interestingly, Trump’s own Secretary of the Treasury has also faced scrutiny for filing contradictory residence claims on mortgage documents. Although his attorney, Alex Spiro, has denied these allegations, the fact that Trump hastily acted on an unverified claim against Cook raises questions about the arbitrary nature of executive authority, especially considering the Treasury Secretary remains in their position.
Lower courts have consistently ruled that Cook should retain her position for the time being, as Trump’s argument for her dismissal is weak at best and lacks substantial evidence.
In a somewhat disingenuous acknowledgment of the earlier Supreme Court ruling, the brief submitted by the administration states that it “does not contest the constitutionality of the Federal Reserve Board’s for-cause removal provision.” While this admission might provide little comfort, it echoes a famous story involving Winston Churchill. He once posed a provocative question to a lady about engaging in an intimate relationship for a million pounds. Upon her affirmative response, he followed up with a question about whether she would do the same for one pound. When she questioned his intentions, he humorously remarked that they had already established her worth and were now merely negotiating the price. In this context, the Chief Justice is acutely aware of the administration’s motives, and this submission can be interpreted as mere negotiation.
If the Court grants this request, it’s likely that Jay Powell will discover that the administration deems even minor actions, such as the Fed’s office renovation, as “undermining public trust in the agency.” Interestingly, this renovation budget swelled after the first Trump administration insisted on a more extravagant design, preferring marble aesthetics over the originally planned steel and glass design.
Moreover, what specific type of hearing is mandated by the Due Process Clause? Is the President required to preside personally, or can he delegate this responsibility to subordinates? Is a formal evidentiary hearing necessary, or would an informal discussion suffice?
This situation highlights the administration’s stance: even if it must acknowledge the “for cause” provisions, it rejects the notion that the President is obligated to substantiate his claims with evidence. This effectively reduces the process to at-will employment with additional procedural hurdles, which contradicts the Supreme Court’s previous assertion about the principles and traditions upheld in the United States.
Article II establishes “an energetic, independent Executive,” as stated in Trump v. United States, 603 U.S. 593, 642 (2024)—not a subordinate Executive bound by judicially constructed procedures, even when exercising essential executive power.
This response, while seemingly clever, ignores the fundamental principles underpinning Article II. The Framers of the Constitution clearly intended to create a limited Executive, one that is held accountable by the powers vested in Congress. While there may be justifiable reasons for expanding executive powers in contemporary society beyond what the Framers envisioned, it is misleading to attribute this expansion solely to interpretations of “Article II.” This current Supreme Court has set a precedent, and we are now navigating the consequences of those decisions.
Ultimately, this petition underscores a dual narrative: on one hand, the administration feigns respect for the “for cause” protections safeguarding the Federal Reserve, while on the other hand, it demands unrestricted executive authority.
To bolster this argument, Solicitor General Sauer references numerous dissents, particularly focusing on the dissent authored by Judge Gregory Katsas in this very case. However, when tasked with citing binding legal precedents, he resorts to cases from the 1800s, a time when Andrew Jackson was still contemplating dueling Supreme Court justices. Typically, a legal brief grounded primarily in dissents and antiquated precedents would raise eyebrows, but in this context, it seems to have become the norm.
This predicament is a consequence of the Court’s own decisions. Had it adhered to established legal precedents and interpreted the law as recognized by the judiciary for decades, it could have thwarted Trump’s ambitions to dismiss commissioners from independent agencies and avoided the looming threat of him exerting control over monetary policy, potentially transforming the U.S. economy into a replica of Turkey’s.
In a tongue-in-cheek manner, one might argue that, as Mayor Eric Adams has suggested, Washington D.C. bears a striking resemblance to Ankara in many respects.
However, the far-right has become insatiable. They could not accept a scenario where Trump might have to temper his aggressive approach towards labor rights and consumer protection laws, so they devised a new standard granting him broad authority, mistakenly believing they could create a narrow exception buried within a less prominent judicial opinion.
It turns out that this strategy falters when confronting someone willing to instigate unrest in the Capitol over election results. They crafted a questionable exemption, and the administration is prepared to compel them to justify the unjustifiable.
We are now negotiating terms. The Republican justices have received Trump’s one-dollar offer.
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter or Bluesky if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.
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