Jack speaks with University of Virginia School of Law Professor Saikrishna Prakash about the implications of the Supreme Court’s decisions in Trump v. Slaughter and Trump v. Cook. They discussed the breadth of the holding in Slaughter; its implications for the president’s control over inferior officers, civil servants, and non-Article III courts; and its broader import for the non-delegation doctrine, the major questions doctrine, and other mechanisms that could constrain the now-more-broadly-empowered unitary executive. They also discussed the validity of the carve-out in both cases for the Federal Reserve.
Relevant reading:
“The Executive Power of Removal” by Aditya Bamzai and Saikrishna Bangalore Prakash (Harvard Law Review, 2023)
“New Light on the Decision of 1789” by Saikrishna Prakash (Cornell Law Review, 2006)
Thumbnail: The Supreme Court Of The United States. (Jesse Collins, cropped; CC BY 3.0, https://creativecommons.org/licenses/by/3.0/deed.en)
This is an edited transcript of an episode of “Executive Functions Chat.” You can listen to the full conversation by following or subscribing to the show on Substack, Apple, Spotify, or wherever you get your podcasts.
Jack Goldsmith: Today I’m chatting with Professor Sai Prakash of the University of Virginia Law School about the Supreme Court’s decisions earlier this week on presidential removal power in the Slaughter case and the Cook case.
Sai is an expert in these debates. He’s been arguing about these issues for decades now, I think, and his scholarship was cited in both the majority and dissenting opinions in Slaughter, and so he’s a perfect person to talk to us about the cases and the implications of the cases. Sai, thanks for talking to me.
Sai Prakash: Great to be here with you, Jack, and your audience.
So I want to start with Slaughter, and then we’ll talk about Cook. How would you state the holding in Slaughter? What do you think the kind of strict holding is about the scope of the president’s removal power?
I think the Chief was very careful to enunciate a broad principle, one in tension with some cases that went unmentioned in the opinion. The Court seems to be saying that whoever is exercising the president’s executive power is subject to presidential removal. And even though there’s not a discussion of inferior officers, I think the Chief is telling us that the president can remove them.
I’m not sure that’s what it says. Justice Gorsuch, in his concurrence, in the first paragraph describes the holding as limited to principal officers, and I took the Chief to be saying later in his opinion that he doesn’t want to go beyond the current case. But do you think that’s not a stable line? Do you think that’s not the right way to see it?
It’s not that it’s not a stable line. I mean, I think it’s a perfectly stable line. I think that the Chief says that people who are engaging in rulemaking, people that are adjudicating, and people that are prosecuting are utilizing the president’s powers, and he believes that the president should be able to supervise and superintend all those officials.
And the way he’s characterized it, you know, in I think two places, is the president’s removal authority extends to all those whom he can superintend, which then raises the question, well, who can he superintend? And I think he’s saying that he can superintend all these people, not merely just, you know, the cabinet secretaries or even merely the people that he appoints by and with the advice and consent of the Senate.
So at one point, he says that the president can remove those within the president’s general administrative control, and I wasn’t sure what that meant, if that meant principal officers or something below. Is that a term of art?
No, I don’t think so. I think, I mean, it’s a backwards way of putting it, right? Because then you have to then figure out, well, who can he control? And of course, you might think that the people he can control are the people he can remove.
But I think he’s done that deliberately, right? I think he’s saying that these people are exercising the president’s powers. It almost reads as if there’s somehow a delegation to them to do these things from the executive power because it’s all part of the executive power.
He then, you know, quotes various people from before the Constitution’s ratification that talk about the president being able to direct and superintend these folks. He also then discusses how people, you know, in the First Congress talk about officers, including Madison, who says that the highest and the lowest officers should all be accountable to the president.
So I think that’s why I think he has a remarkably broad view of whom the president can remove. And even though he cites Morrison once or twice, he does not say that Morrison‘s holding with respect to inferior officers still applies, even though he had consistently said as much in Seila Law and other cases.
So, as you may recall, and as your viewers may recall, there were two exceptions, the Court said, where Congress could limit removal. One was inferior officers, see Morrison, and one was multi-member agencies. And now the multi-member agencies branch has been clipped off by the Court, but they don’t repeat the Morrison point.
Now, the first problem with their characterization of Morrison is Morrison wasn’t about inferior officers. The claim wasn’t about inferior officers. So they just said that whether the president has an illimitable removal power will depend upon the office in question and whether it makes it more difficult for the president to carry out his constitutionally assigned tasks.
They kind of ignore that language and just say it’s about inferior officers. And in this case, they don’t say anything about inferior officers at all.
So that’s why I think he’s setting up a broader claim in a future case. He’s, you know, like Hansel and Gretel. He’s leaving breadcrumbs for his future self to pick up later on and say, well, the independent counsel or these various other officers who may not be appointed by and with the advice and consent of the Senate are exercising presidential power, see Slaughter, and as such they’re subject to the president’s superintendence, and therefore they’re subject to removal.
Right. So in that view, this is the maximalist view of the unitary executive, which is everyone who exercises executive power has to be directable and removable, basically, by the president.
That’s what I think he is moving toward. So there’s a question about, you know, what reading of the Constitution is right, and there’s just a more narrow question of what he is saying in this opinion.
That’s what I want to focus on.
I’m just saying that I think he’s saying he’s adopting the maximalist approach, whether or not one agrees with the maximalist approach. He’s basically saying all these people are exercising the president’s power. They are his envoys. They are his deputies. They are his hands and feet, and he is the mind controlling them. And as such, he should be able to fire them if he doesn’t like what they’re doing.
And again, it’s striking that there’s no reference to one of the two branches that he said repeatedly were exceptions to the rule that he was advancing in those previous cases like Seila Law. That’s just not found here. So I think it’s telling, but maybe I’m wrong.
Let me make a counterargument. I mean, you’re right about the vibes of the opinion in certain places. He does technically say that, I’m quoting now, “Because the FTC’s activities fall well within the heartland of executive power, we have no occasion today to define the bounds of what such power entails.”
Now, you might be right that he’s on board for the implications, but who knows if there are five votes to be on board for the full implications? And he did say that we don’t need to define what the scope of that is.
But the other reason that gives me pause about your quite plausible reading of the opinion is he really exalts Myers as the greatest opinion of all time. And tell me if I’m wrong about this, but what you’re suggesting is that the implications of the opinion go beyond Myers and require it to be overridden, right? Isn’t that right? Because doesn’t Myers draw distinctions about civil servants and other inferior officers that would be entailed by the broad maximalist reading you’re suggesting?
Yeah. So I think, look, Myers read previous cases in a particular way. There had been cases about whether Congress could limit the removal of inferior officers. I think a case called Parsons dealt with this issue.
And in Parsons, I think the removal at issue was by a cabinet secretary, not the president. And the Court said, well, they could restrict it. But the restriction there was on the cabinet secretary, not on the president. The president didn’t try to remove, I think, the naval cadet that was removed by the cabinet secretary.
And I think Myers built upon that and assumed the correctness of it, and just said, well, that was built upon the correctness of it and the reading that it applied to the president as well.
And so, yes, if what I’m saying is true, it’s possible that he’s not necessarily overruling Myers, but instead eliminating the restrictions that Myers itself assumed on the removability of inferior officers.
We don’t—I don’t know if he’s going to do that. It’s just weird to me that, having said in, I think, two or three cases—I think three cases—that there are two exceptions to removal, he does not mention the one that’s left.
I agree.
Maybe he’s not sure what to do with that. And then I think the FTC being in the heartland—what’s in the heartland? The heartland is these three things: rulemaking, adjudications internally, and prosecutions. Well, the people that are doing that are often not commissioners. They’re other people doing that.
Now, the rulemaking is almost always done by the cabinet secretary or what we’d call the principal officers, but the adjudications are not. And he does not discuss ALJs separately. He discusses the Court of Claims.
Myers itself said that the president could remove ALJs. They just intimated that he couldn’t intervene in a particular case to tell the ALJ how to decide the case, but that the president could remove them.
So I do think he’s saying that the president—I mean, how often is the president going to fire an ALJ as opposed to the secretary or someone else? We’re assuming that the statute tries to limit the secretary.
The other way of thinking about this: most of these statutes limit what the secretary can do to people in their department rather than limiting the president.
So if you go back to Morrison, it doesn’t say that the president can’t remove. It says the attorney general can only remove for cause, which isn’t actually saying anything about what the president may or may not do. But it’s assumed that if the attorney general can remove only for cause, the president can’t do more than that.
And maybe you can’t even remove with cause. There’s a lot of ways of reaching the conclusion that the president will be able to remove inferior officers, some of which are statutory and clever slash wrong, and some of which will just be constitutional.
Time will tell. I mean, is he going to be on the Court long enough to effect that radical of a change? I don’t know.
Yeah. But I just want to back up a little bit so everyone understands what we’re talking about. The maximalist view of the unitary executive that you think the opinion embraces would mean that inferior officers are removable, including all civil servants—that the civil service protections would be unconstitutional. Is that right?
I’m not sure about the civil service. So let’s distinguish not civil service from non-civil service, but officers from employees.
Okay. Explain that distinction for everybody.
So the Constitution mentions officers. It nowhere mentions employees. But I think it was understood at the founding that not everybody who worked for the government was an officer.
So we had NCOs—sorry—we had people in the Army and the Navy that wouldn’t be officers but were still in the government. And then we also had contractors who worked for the government who weren’t officers.
I don’t know when, within the civil establishment, we started having employees who weren’t officers. But it’s clear today that we have officers and employees.
The civil service, to my understanding—and I haven’t looked into this with great care—is that some of the people in the civil service are officers and some are employees.
It’s possible to say that the Constitution gives the president authority over officers but not employees. On the other hand, if the employees are doing one of the three things that he says are part of the executive power and, quote, “at the heartland of the president’s authority,” it’s not clear to me why they wouldn’t be covered by this opinion.
I think that if you take the maximalist view of executive power, that the persons in the executive branch who are exercising one of those executive powers, if you think that’s what the opinion covers in broad terms, I don’t see how you distinguish between inferior officers and civil servants.
As you said, the Constitution doesn’t even talk about employees. And if they’re exercising one of the categories of executive power, it seems to me that the logic of the opinion—your understanding of the logic of the opinion—would include that.
I think that’s right. I mean, I think someone might say, look, if Congress wants to give someone an annuity for life in order to give them a spine and a backbone, the president might be able to say, “You can’t execute the law, but you’re going to keep your salary,” which would, in a sense, protect people. It would be a civil-service-like protection, but not the kind that people typically associate with, which is that you get to keep your job and you can’t be fired.
I’m not sure the civil service rules actually provide as much, but that’s how I think most people conceive of those protections, right? That it’s not just about you can’t be fired. It’s that you can’t be fired and you can’t be stripped of all your duties.
I don’t think they quite say that, but that’s kind of maybe how they work in practice.
Okay. And then the other category—and you alluded to this—that would be entailed under the maximalist view as subject to presidential removability are all of the non-Article III courts, not just administrative law judges, but all non-Article III courts: military courts, Court of Claims, and the whole array of adjudicatory functions that aren’t within Article III.
And on the maximalist view, those would all seem to be, under current doctrine, under the current understanding that these functions are ultimately executive, subject to presidential removal. Is that right?
Well, look, I think the Chief expressly says that he’s not discussing the Court of Federal Claims.
I know, but yeah, he wasn’t discussing anything outside the FTC.
Right, right. I mean, look, I think the unitary executive claim for removability makes the most sense for functions that are executive. And then the question is, well, what’s executive?
He says some things that aren’t obvious to me. I wouldn’t have thought rulemaking is at the heartland of executive power, but he had said something like this in Seila Law, and he just cited it again.
But if you think about rulemaking in the abstract, you might think, no, that’s what Congress does. It’s called lawmaking. And if there’s some entity that only does that, then maybe the president doesn’t have a claim to removing the people that are doing that.
It’s just that when Congress has created these agencies, they’ve mixed three functions together: prosecution, lawmaking, and adjudication. And in the context of doing that, sometimes they’ve given removal protections, see the FTC, sometimes they haven’t, right? See other agencies that are in the executive branch that do all three.
And then the question is, well, what are you going to do? Can Congress basically, on my view, eliminate the removal power by just adding other functions that aren’t, in my view, core executive? And my answer is no, that they don’t get to basically strip out the president’s prosecution by adding other functions.
The Chief’s answer is those other functions are executive as well.
It’s hard to see how adjudication is executive when we have a whole branch dedicated to adjudication called the courts, right?
We have two branches. There’s more adjudication in the executive branch than there is in Article III.
Well, fair enough. But I mean, I think someone like Gorsuch—and my intuition—is, well, that’s not the core of executive power.
Both the executive and the judiciary find law and find facts. But there’s something different, I think, about what the executive is doing versus what the courts are doing, certainly vis-à-vis third parties and being able to impose sanctions on them, et cetera.
And so it’s not my area. I don’t do Fed Courts, and I really don’t do admin law.
But I think two of the three areas that the Court says are core executive areas aren’t obviously core executive areas.
Again, the strongest case for the unitary executive is when the president is executing a law, expending money, apprehending suspects, prosecuting them. The president should be able to remove those people.
Once we start moving away from that, the claim that the Chief is making is something like, well, they’re executing the law that Congress passed that authorized rulemaking.
But the courts are executing the laws too. No one thinks that what the courts are doing is therefore executive, even though in the 18th century judicial power was seen as a branch of the executive.
Okay, a lot of interesting things here. It’s almost a formalism that the adjudicatory functions in the executive branch and the rulemaking functions in the executive branch have to be executive power because the executive branch can’t be exercising the judicial power or the legislative power. And that’s part of the logic for why those things have to be seen as executive.
What you’re suggesting is those things aren’t really, in a meaningful sense, executive. This is going to take us to Justice Gorsuch’s concurrence, which I want to talk about in a second. This is a point that I think Justice Kagan made in the oral argument in Slaughter, and I think maybe Justice Gorsuch as well.
But in any event, the agencies, over the many decades, have garnered all of these various responsibilities. Some look adjudicative, some look like law enforcement, some look like lawmaking—rulemaking—but we call it all executive power.
And now, given Slaughter and given the broad understanding of executive power, that might mean if the president can control all of those executive functions, that all of these functions inside the executive branch by different entities are subject to removability.
But one argument might be, in response to the one that Justice Gorsuch makes, that now that we have clarified that the president gets to control and remove executive officers exercising the executive functions, maybe we need to turn and be more rigorous about what counts as an executive function.
But I think the implication there is that the rulemaking functions and the adjudicatory functions of the executive branch are constitutionally problematic. Is that your view?
Oh, very much so. I think Gorsuch is now saying this was the right decision, but what’s wrong is the agglomeration of other functions within the executive branch. And so I think he’s been a strong proponent of reviving the nondelegation doctrine. And if you did that, then you’d be stripping away at least some, if not most, of the rulemaking that occurs within the executive branch.
And then I think he also thinks that this adjudication should be occurring in Article III courts—maybe the state courts—but not within the executive branch.
So he has a solution. The problem for the progressives is they don’t like the solution, right? They don’t want to limit rulemaking in the executive branch. And they don’t, for whatever reason, like adjudication within the administrative superstructure rather than in Article III courts.
But I think now they’re going to have to decide what they prefer, right? Because I think till now they could have their cake and eat it too. They could have these independent agencies doing these things.
Going forward, I don’t think they can have an agency that does all three.
It’s not obvious to me what Justice Gorsuch’s view is about an agency that only does rulemaking, right? The U.S. Sentencing Commission, my understanding is, only did rulemaking.
Justice Scalia famously said it’s a junior varsity Congress, and it’s unconstitutional because all it does is engage in rulemaking. If it had some executive or judicial functions, it would be fine.
The Court didn’t adopt that view.
So one sort of solution that wouldn’t satisfy Justice Gorsuch but might satisfy progressives is to have a junior varsity Congress across all of these areas, or many junior varsity Congresses, that do nothing but rulemaking.
And then we’d have to see whether there’s a majority that’s actually behind the claim in Slaughter that this is the heartland of executive power, right? That an agency that just does rulemaking is quintessentially engaged in executive power.
I’m not sure there is a majority for that proposition. The Chief says it, but I’m not sure that if people had to focus on it, they’d come to the same conclusion.
So you don’t think there’s a majority for the Gorsuch position, which didn’t get any concurrences?
I don’t think there’s been sufficient attention paid to it. I think the way the Court’s thinking about it is the president is responsible for the administration of the government, and these removal restrictions make that impossible.
They’re not separately focused on whether or not — I mean, again, Mistretta was, I think, a seven-to-one case. They’ve already blessed it. Now those people are all gone, I think. I don’t know if any of those justices are still around. But there’s a precedent of the Court rejecting the idea that Congress can’t do this.
And I don’t—I mean, is this Court saying that that agency would now... all the people on the Sentencing Commission are removable by the president? Perhaps they are saying that, given what they say in this case.
But I could see someone saying, “I hadn’t thought that through,” and finding some way to distinguish it.
So I’m not saying that there isn’t a majority. We don’t know. But I just don’t know because I don’t think they’re focused on it.
Again, I think they’re focused on their sense that there’s a bureaucracy that’s a fourth branch. Now, a junior varsity Congress in charge of various rulemakings would also be a headless fourth branch, but it wouldn’t pose the problems that Gorsuch is talking about.
I just want to step back and put what we’re talking about in a very simplistic context and see if you agree.
So the administrative state grew up over many decades, and it grew up with the understanding, at least after Humphrey’s Executor, that Congress could place various functions inside the executive branch, at least to some degree, outside of the president’s control: independent agencies, civil servants, maybe ALJs.
There was an assumption that these functions could be in the executive branch but not subject to the full control of the president. This massive administrative state grows up.
Now the Court has said, nope, the president gets to remove all people who, if this is the right reading of Slaughter, gets to remove everyone who exercises an executive function.
Suddenly, this opinion, if read in that maximalist way, supercharges presidential power because now you’ve got a president with this massive administrative apparatus who’s basically, on the maximalist view, completely in control.
So the consequence of this opinion, narrowly conceived, is to massively empower the president vis-à-vis the bureaucracy, which raises the question: now what does one do if you don’t like this massively empowered president?
And the options seem to be to chop down the executive, the scope of this administrative state. This is the Gorsuch approach through various means—nondelegation, major questions doctrine, et cetera.
And that’s, given this opinion, if it’s the maximalist opinion, the basic choice.
And it may be that that’s part of the plan, that the first step is to maximally empower the president, get clear on the idea of what executive power is, and then figure out if these things that the executive branch has been doing are actually executive, and maybe they’re not.
Is that the right way to see it?
That is possible, that the Chief’s going to, you know, go towards Gorsuch and revive the nondelegation doctrine, to some extent.
I don’t think that’s actually right. I don’t think he’s interested in that, but keep going.
Look, certainly other justices who are in the majority do believe that the Court should add some teeth to the nondelegation doctrine. I don’t think it’s the case that this case actually massively increases presidential power.
The dirty little secret is these independent agencies aren’t that independent. They have some independence in the first year or two of a new administration, but after a year or two the president gains practical control over them because they appoint enough commissioners, and they already have enough existing commissioners, to adopt their agenda.
And so the FTC worked hand in glove with the Biden administration before. The person who was complaining about being removed, I think, was part of that majority that worked very closely with Biden.
Trump was going to appoint a majority of the FTC eventually, and then he was going to take it over, and they were going to work with him.
It’s telling that two of the commissioners of the FTC signed a brief filed by the administration saying that the president could fire them at will. And they did that because they are, in part, on the president’s team.
So the vaunted independence and expertise of these agencies, and the nonpartisanship of these agencies, has been overblown. I don’t know if it was ever true, but I don’t think it’s been true for a decade or two, if not more.
I do think that Gorsuch’s point still holds true, that there’s still a lot of power in the president. But that’s true whether or not this case comes down, because the FTC and these other agencies weren’t going to be meaningfully independent of the president a year or two after he came in.
I agree with that with regard to the high-profile multi-member agencies that presidents have found ways to exercise control over before this decision. But I think that understates it.
If the opinion is the broad—is the maximalist version—then it goes far beyond those agencies all the way down.
I mean, when you get to the adjudicators, the lower-level adjudicators, if you set aside the due process concern, if the president can fire or direct those decisions, the MSPB, the kind of lower-level agencies like the MSPB and the—I can’t remember the name of the election agency, the four-person agency, I think it is. It’s supposed to be a bipartisan agency.
Is it the Federal Election Commission?
No, not the FEC. There’s another election committee. It doesn’t matter.
The point is, you were saying that if this is the maximalist opinion—I agree that, in some sense, wherever one is focused, presidents have been able to exercise control over the independent agencies to a large degree.
But if this is a maximalist opinion, don’t you think it dramatically enhances the president’s vertical power?
I think if it does, in fact, turn out that it reaches into the bowels of the agency and covers all officers, or even further, all employees, it will influence their incentives and make them less resistant to presidential direction. It’s famous that—what did Truman say of Eisenhower? “Poor Ike, he’s going to go into office and he’s going to order all kinds of things, and then they won’t do it.”
And he was saying that Ike’s used to being a general, and the bureaucracy doesn’t work this way. The bureaucracy will bend to the president’s will a little more willingly if they think that they will be fired if they don’t.
And so I do think it will have those consequences. But what the FTC is doing, or the SEC, I think those were already under the president’s thumb a year or two into the administration.
Okay, let’s switch. I want to bring Cook into it, but let’s start with the Federal Reserve.
The thrust of these opinions is that there’s a giant exception to what we’ve been talking about, and it’s called the Federal Reserve.
Which I read the Court as saying, that the independence of the Federal Reserve, the independent Federal Reserve as currently constituted, is constitutional—i.e., that the removal restrictions, which we’ll talk about in a second in their substance, the for-cause removal restriction for the Fed governors, is constitutional and therefore is kind of an exception to everything we’ve been saying.
Is that what you see the Court is saying? And do you think that exception is justified?
I think they are saying that. I don’t think it’s the only exception. Another exception, I think, is the territories themselves.
They seem to, you know, in a footnote, dismiss Marbury by saying, well, that was a territorial situation. D.C. is likened to a territory, and territorial governments aren’t under the president’s thumb, even though they are executing a statute passed by Congress.
So it seems to be one exception is the territories, and another exception is the Fed.
And so I do agree with you that they basically say, you know, twice in two different opinions that the Fed is different, in part because there’s something called the First and Second Banks that they think are akin to the Fed.
Yeah. And the idea seems to be that the Fed exercises monetary policy, which is not executive power in some sense—that fact, and I’ll qualify that in a second—combined with this supposed long historical pedigree, the Court thinks is enough to kind of establish an exception.
The Court doesn’t talk about the fact that the Fed exercises all sorts of regulatory—i.e., executive—power as well, other than in a footnote to say that they’re saying that the Fed, as currently constituted, is constitutional, but that Congress can’t go adding more executive functions to it.
But it was just remarkably thin, to the point of nonexistent, analysis to me to reach this conclusion that there is this exception for the Fed.
Do you agree with that?
Yeah, it was bare bones.
You know, if there had been a separate case about the constitutionality of the Fed’s for-cause protections, they would have written pages upon pages to explain it.
It’s precisely because it’s coming in another opinion that they’re able to say so little about it.
It wasn’t even raised by the government. They only really addressed it in the Cook case because Justice Thomas raised it in his dissent, I think.
That’s what they say. But I think they would have addressed it anyway.
I think they are just trying to say to President Trump, “You cited cause as the reason for firing Lisa Cook. Just know that if you try to fire her without cause because you believe the statute’s unconstitutional, we are telling you now that it’s constitutional.”
So I think Justice Thomas’s opinion is a pretext for them reaching an issue that, as you said, wasn’t advanced by either party. But I think they’re just trying to get ahead of Trump.
And frankly, they had made that point in an interim order last fall, and the SG had not really questioned it, had not raised it, had not argued that the for-cause restriction was unconstitutional. So it seems that the government had kind of acquiesced in the point anyway, but I guess they wanted to nail it down.
It was just—to me, it sounds like an approach to President Trump, right? We told you that you couldn’t do this. Now we’re telling you again that you can’t do this. So don’t do it.
And, you know, obviously he could still do it, but every lower court’s going to say the Court’s already told us twice that the Fed’s different. And so, you know, we’re not going to permit you to fire Lisa Cook without cause by arguing that the statute’s unconstitutional.
But don’t you think, given what we were saying earlier about how the Court had, in parts at least, suggested this maximalist view of executive power—that the president had to have firing and directive control over all executive functions—that given that, and given that the Fed exercises executive power pretty clearly beyond its monetary policy, setting that point aside, don’t you think it warranted more discussion on that point?
I mean, maybe the less discussed the better, but it seemed remarkably untoward to me.
The way I think about it is, I think the Chief thought the less we say the better, in part because he can’t justify the exception.
Yeah, that’s what I’m getting at.
I think that he’s thinking that this exception doesn’t make sense, given what he said earlier, because the Fed is regulating parties. It’s rulemaking. I think it’s doing things that he said are quintessentially executive, in the heartland of executive power.
It’s not merely a bank like the Bank of the United States.
The Bank of the United States didn’t make rules for other banks, right? And didn’t audit other banks, right? It was just a private bank authorized by the government in order to facilitate the movement of funds and the possible granting of loans in times of war.
But it wasn’t a government instrumentality. And there were debates about whether it was a government instrumentality, whether it was an office of the government. But I think the best understanding was it was private.
The Fed’s not. The Fed has governors, I believe, that are appointed by private banks, but it’s doing things that aren’t private, like regulating banks.
So I think he took the position that the less said the better. And let’s just say it’s analogous to the Bank of the United States, one and two. People will disagree, but the less said the better.
Less said the better.
He did say it—I alluded to this—but I want to read this footnote:
“In upholding the constitutionality of the Federal Reserve as currently structured and with its existing enforcement authorities, we do not suggest that Congress could assign the Federal Reserve additional regulatory powers that are attenuated from monetary policy.”
I.e., as I read it, yes, they exercise executive powers. No, we’re not going to get into explaining how this is squarable with what we said in Slaughter. But we’re telling you, you can’t go one inch further in giving them more executive power.
Is that the way you read it?
I do. But of course, you know, they already have some bank regulatory powers, and it can’t be that they can never change. I mean, they can decrease them, but they can’t maybe add to them.
That seems to be what he’s saying, that they can lessen them but not expand them. That seems to be what he’s saying.
I think it’s a brushback pitch.
I mean, you know, you and I know, and everyone knows, that Congress is unlikely to pass banking reform now. Unless there’s some financial crisis, they’re not going to restructure how banks are regulated because Congress just can’t pass anything, right, of any consequence right now.
But I do think you’re right. He’s just saying, “Don’t mess with Texas. Don’t mess with the Fed.”
Yeah. So there’s a lot to talk about in Cook. A lot of it was Fed Courts-y, and a lot of it was down in the weeds of for-cause.
What was your takeaway from the Cook decision?
This is President Trump fired Lisa Cook. She had a 14-year term and for-cause protection, and the Court was in an interim-order posture trying to figure out—and the lower courts enjoined the president from firing her, which itself was legally controversial.
The question for the Court was whether to stay the lower court injunction, and the Court ultimately held that it would not stay the lower court injunction.
What was your reaction to this opinion?
I think because the government argued it on statutory grounds, I think the Court was right to say that this statute implies some procedure and a right to be heard.
It’s not that the statute says as much. It’s just that that language was understood to imply a hearing and an ability to present arguments.
And none of those were afforded to Lisa Cook. So she might have had some explanation as to why they thought something that was mortgage fraud wasn’t. They didn’t seem interested in hearing from her.
And, you know, my recollection is that Trump just tweeted something out that she’d done something wrong, and then she was subsequently fired.
And the administration said that was her notice to file something with Trump. It was all sort of post hoc, right? They didn’t think through what they should do.
They didn’t read my colleague’s article about what for-cause means. Professor Bonds and I wrote an entire piece about how there were procedures in place when they tried to remove someone with for-cause protection.
And the Court was basically agreeing with the core thesis of that argument.
And the Trump folks just weren’t aware of what they had to do in order to do it. Or maybe the president was just so eager to fire Ms. Cook that he just wasn’t willing to go through a process.
But having decided to argue on the statute that they had complied with the process, I think it was inevitable that they were going to lose.
Yeah. I just don’t think that their argument about the statute was tenable.
Although I’ll just say two things. One, it doesn’t seem like the Court set a terribly high procedural bar. It seems to me open to President Trump to have a mini hearing, state what the allegations are, give Cook the opportunity to respond, and that might be enough.
But the Court says that because of the independence of the Fed, and it tied it to that argument, they have to look seriously to make sure they gave a little bit of detail about whether there was real cause.
But it seems to me—and do you agree?—that the president is not necessarily foreclosed from firing her if he gives her more process.
Look, I think, given the statute, the statute contemplates that people can be fired for inefficiency, neglect of duty, or malfeasance.
Obviously, officers can be guilty of those things, and I think the executive branch can so find.
I think it’s still open to that person to then go to court to get an adjudication of that. I don’t think this statute says that the president gets to decide that dispositively.
I kind of think that the Court is basically kicking the can down the road, that they’ve come up with a decision that says that President Trump, you know, didn’t follow the procedures. The administration didn’t follow the procedures, and they’ve got to follow the procedures.
But they kind of fully know that this won’t be resolved over the next year or two and that the lower courts aren’t likely to hold. This case may not come back to the Court again before President Trump leaves office.
Perhaps President Trump will think better and not try to fire her again after giving her some hearing.
Will there be questions about a biased adjudicator, given that they already decided this ex parte? You know, I don’t know enough about biased adjudicators and due process to know what the Court might say.
But I just feel like they’ve bought themselves some breathing room and prevented President Trump from firing her in this way.
If the president has the goods on Lisa Cook or someone else, then they ought to be fired, and the Court might uphold it.
But I don’t think the allegations against her were—they were kind of thin. We know that there was some claim of mortgage fraud, but we never got to hear her side of the story. And we typically don’t adjudicate things without hearing from both sides.
So it’s funny. I have something of the opposite reaction, in that I think the Court already kicked it down the road.
It bought itself six or seven months of time because this was an interim-order request last fall or winter, in which the Court was asked to stay the lower court injunction, and it did not grant that stay.
Instead, it took its time, set oral argument—I think oral argument was in January—and then announced something in late June.
So it already bought itself six months of time. But now I think it’s open to the president to force the issue again if he wants to. But then it will have to play out again in the courts.
And we could see an interim-order request coming back to the Supreme Court, it seems to me, very soon, if President Trump chooses to go that way.
But that’s speculation. We don’t know.
I mean, they don’t have to take up his request for relief, right? They could just say, well, we’re just going to let this play out, right? They don’t have to give him—
I agree.
If they wanted to, they could. And you’re right that he might want to press it.
If he presses it and gives her some sort of process, and then fires her saying he satisfied the procedural requirements set forth in the opinion, then she’s going to go to court again, and she’s going to seek an injunction again, right?
And then let’s just imagine that the district court issues that injunction. It’s very quickly going to go right back to the Supreme Court asking them for a stay, at which point they’re going to have to address the question whether a stay is appropriate.
And we’re right back in the position that we were last fall.
And it could deny the stay, it could grant the stay, it could set the case for oral argument several months later.
I just think that they’ve already kicked it down the road six or seven months, and it’s up to Trump now to push the issue if he wants to.
I agree with all that. And then the question is, are they going to try to kick the can down the road again?
Yeah, exactly.
And I think they will, but I don’t know for sure.
Okay. There were some Fed Courts-y issues in Cook that I don’t think we need to get into. They’re really interesting and important Fed Courts-y issues.
Do you have any other reactions to either one of these two cases, any kind of wrap-up thoughts on them? I mean, since you’ve been arguing in this direction—for a while, correct me if I’m wrong—you must have been satisfied with the opinion.
Although, as the Chief said, and I think this is right, most of Humphrey’s Executor had been destroyed anyway. And he basically said, “If there’s anything left of Humphrey’s Executor, we overrule it.”
Anyway, any wrap-up thoughts on these decisions and reflections on the unitary executive?
Look, I think the founders wanted to create a strong executive—not all-powerful, but strong.
And they wanted someone in charge of law execution. I think that’s the principal function of the executive, not rulemaking and not acting as a substitute court.
And they had examples of plural executives in the states, and they eschewed them.
So I think the Court got it right.
I don’t think that the Court got it right because it read something I wrote. I think they came to this conclusion independent of what Professor Baude and I wrote.
And my view as a scholar is I’m not right because the Court says I’m right, and I’m not wrong because the Court says I’m wrong.
I do think the country is better off having a president in charge of law execution rather than having a bunch of people independently doing it.
Having said that, we do have states where we have plural executives, and it’s not as if people think they’re dysfunctional.
But I think there are advantages to executive unity, particularly when it comes to law execution.
All right. Well, we’re going to see it playing out over the next whatever period of time.
Thanks, Sai.
Great to be with you, Jack.
Appreciate it.
