Donald Trump put the Supreme Court in a pickle.
The conservative supermajority had dropped hints with all the subtlety of setting off a fireworks display while riding a Sea-Doo naked across the green ooze of the Reflecting Pool that it was ready, willing, and able to allow Trump to fire independent agency leadership. But then Trump launched a bid to fire Federal Reserve governor Lisa Cook as part of a hostile takeover of the country’s financial policy. It’s one thing to burn down federal law to screw over consumers, but guys like John Roberts draw the line at letting Trump crash the economy.
But how can the law support striking down the for cause protections one independent agency enjoys by explicit statutory text, while upholding the same protections for a different independent agency simply because you’re personally beholden to wealthy oligarchs who personally benefit from the former and not the latter?
Chief Justice John Roberts decided to take on the impossible task of reconciling the irreconcilable today, writing simultaneous opinions in both Slaughter and Cook. One might have thought that Roberts would space these out in an effort to obscure the fact that he’s writing out of both sides of his mouth. Or to assign each opinion to someone else and let his own breezy inconsistency in voting pass without comment. But Roberts thinks he’s much more clever than he is, and instead ran headlong into the contradiction, draped in hubris, convinced that we’ll all be dazzled by the lipstick job he gives these pigs.
It didn’t work.
The statutory regime behind the Federal Trade Commission specifies that commissioners may be removed only “for inefficiency, neglect of duty, or malfeasance in office.” The statutes behind the Federal Reserve mandate that a governor may be removed only “for cause,” a term traditionally understood to mean, well, inefficiency, neglect of duty, or malfeasance in office.
In rubberstamping Trump’s decision to fire FTC Commissioner Rebecca Slaughter as an at will employee, Roberts writes:
When an agency “executes” a congressional mandate against private parties, it exercises executive power—no ifs, ands, or quasis about it.
Sure. But this is only an issue if you adopt a rule invented out of the ether for the first time in American history in the late 1970s, emerging from academic musings to policy during the 80s. As Lisa Graves of Court Accountability put it in a statement, this decision from Roberts “is the culmination of his determination to erect an imperial presidency under the guise of the made-up ‘unitary executive theory.’” Unitary executive theory is a right-wing fever dream invented by Nixonian dead-enders hoping to retroactively justify presidents creating enemies lists and using the FBI to wiretap the Black voting rights activists that they hated.
As a man who really, really hates Black voting rights, this doctrine appeals to John Roberts a lot.
It is, legally, bogus. Where the Constitution vests executive authority in the office of the president, it creates a duty not a power. Article II charged an officer to make sure laws are faithfully executed, it didn’t empower presidents to unilaterally gut laws they don’t like. Independent agencies like the FTC were designed to operate on their own — and to make sure they didn’t become their own kind of tyrranincal, the duly passed laws setting them up require politically balanced membership — as the Constitutional Accountability Center said in a statement, “Commissions like the FTC were created to be led by multiple members who serve as a check on one another and have some insulation from political pressure.” If someone needs to step in to make sure people follow the FTC’s rulings, the president is right there. Until then, Congress and the president decided that these federal trade issues should be decided independently.
The importance of having independent agencies making decisions free from political interference is also evident in the Federal Reserve system. After years and years of economic crises, Congress and the president set up an independent agency to manage banking policy.
And when John Roberts writes that the Constitution prevents an independent agency acting with executive power “no ifs, ands, or quasis about it” he means there’s still one “if, and, and quasi,” where a lack of independence might hurt his personal stock portfolio. The Federal Reserve executes congressional mandates against private parties roughly all day, every day. It fines banks a million dollars a day. It bans individuals from working in the industry. It controls the fundamental shape of the economy! For his part, Justice Thomas spends pages cataloging exactly this.
Undeterred by the attendant hypocrisy, in Trump v. Cook, Roberts crossed the aisle to join the three liberals and Kavanaugh, sparing Federal Reserve Governor Lisa Cook from being fired at will (she could still lose her job if Trump clears the hurdle of proving she actually committed an action justifying a for cause firing… which he has roughly as much chance of doing as he does getting his bloated frame to clear a real hurdle):
To accept any one of those arguments would in effect transform the Federal Reserve’s for-cause protection into at-will employment—an interpretive leap out of step with the statute Congress enacted and our Nation’s tradition of central banking protected from political interference.
Yeah, except Congress enacted the statutes surrounding the FTC too! Roberts isn’t even striving for intellectual consistency here, having just issued a companion opinion resting on the exact same interpretive leap out of step with the statute he scolds here. Indeed, one of the few textual thornbushes Roberts is willing to wade into involves the aforementioned fact that “for cause” means, traditionally, inefficiency, neglect of duty, or malfeasance in office. Cook argues that this definition is proof that even the mortgage fraud claims the Trump administration lodged against Cook can’t constitute malfeasance because they have no connection to her office, having allegedly happened years earlier. Knowing that conceding this would leave him tied in knots with the Slaughter opinion, Roberts instead shrugs that for cause has a totally malleable meaning:
That counsels a substantial threshold for “cause.” It is true, of course, that “cause” cannot be reduced to a precise set of rules, and some close calls are inevitable.
Potter Stewart had a more concrete definition of porn. Also, if you’re keeping score, Roberts is saying the agency with more explicit protections is the one that loses. It’s always “Congress should be explicit if it really means this stuff,” right up until John Roberts writes, “No, not like that!”
Rightfully unwilling to rest on statutory laurels, Roberts invokes the vague “history and tradition” machinery that conservatives routinely cherry-pick from when striking down gun laws and abortion rights:
So when they established the First Bank of the United States, they guaranteed its independence from Presidential control. Their successors did the same for the Second Bank. That enabled both banks to serve as the “great regulating wheel” of the early American financial system.
True… and then they blew them both up. Why is the fact that America had two independent national banks and subsequently rejected this structure — twice! — not just as relevant to the nation’s history and tradition? But, Roberts contends, the Federal Reserve is different, having ultimately won the historical battle and remained ascendant since 1913. And, hey, how can you argue that a legal regime in place for 113 years isn’t firmly etched into the nation’s history and tradition?
The FTC, by the way, is 112 years old. What a difference a year makes!
Justice Sotomayor, dissenting in Slaughter, actually walked the timeline out for anyone slow on the uptake:
Federal Reserve Board followed with similar removal protections in 1913. . . . The next year, Congress created the FTC with removal protections aimed at ensuring “a continuous policy,” “free from the effect of . . . changing [White House] incumbency.”
Justice Barrett couldn’t swallow the glaring hole that Roberts created, writing in her Cook dissent:
How can history support both a categorical rule and a carveout?
She’s so close to getting it, you guys!
History got nothing to do with it. Graves notes in another statement that the Roberts decision is, “consistent with the throughline of his decisions on the Court, which is to rule for Wall Street when it is at odds with Donald Trump, as with the tariff case.” It is, in fact, all about the money. And, to that end, Barrett’s dissent reads like she lit a fuse in Slaughter and then filed a noise complaint in Cook.
It’s not even just the decisions. The FTC got a two-sentence shadow-docket execution last fall and a funeral today. The Fed got 280 days, oral argument, and a full-dress opinion that both Alito and Barrett flagged as wildly abnormal for the posture. Roberts and Kavanaugh (who plays the role as creepy Robin to Roberts’s Batman-if-he-were-more-interested-about-being-a-billionaire-than-a-hero) were both pretty clear: because the global financial sector needs to understand that we’re not willing to let Donald Trump break the Fed. As Kavanaugh’s concurrence states, leaving the Fed’s status open risks “turmoil in the U.S. and world economies.”
Mr. Balls and Strikes tried his hand at switch-hitting today. I’d say he should stick to his day job, but let’s be honest… this is his day job.
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.
The post Supreme Court Slaughters FTC, Lets Federal Reserve Cook appeared first on Above the Law.
Donald Trump put the Supreme Court in a pickle.
The conservative supermajority had dropped hints with all the subtlety of setting off a fireworks display while riding a Sea-Doo naked across the green ooze of the Reflecting Pool that it was ready, willing, and able to allow Trump to fire independent agency leadership. But then Trump launched a bid to fire Federal Reserve governor Lisa Cook as part of a hostile takeover of the country’s financial policy. It’s one thing to burn down federal law to screw over consumers, but guys like John Roberts draw the line at letting Trump crash the economy.
But how can the law support striking down the for cause protections one independent agency enjoys by explicit statutory text, while upholding the same protections for a different independent agency simply because you’re personally beholden to wealthy oligarchs who personally benefit from the former and not the latter?
Chief Justice John Roberts decided to take on the impossible task of reconciling the irreconcilable today, writing simultaneous opinions in both Slaughter and Cook. One might have thought that Roberts would space these out in an effort to obscure the fact that he’s writing out of both sides of his mouth. Or to assign each opinion to someone else and let his own breezy inconsistency in voting pass without comment. But Roberts thinks he’s much more clever than he is, and instead ran headlong into the contradiction, draped in hubris, convinced that we’ll all be dazzled by the lipstick job he gives these pigs.
It didn’t work.
The statutory regime behind the Federal Trade Commission specifies that commissioners may be removed only “for inefficiency, neglect of duty, or malfeasance in office.” The statutes behind the Federal Reserve mandate that a governor may be removed only “for cause,” a term traditionally understood to mean, well, inefficiency, neglect of duty, or malfeasance in office.
In rubberstamping Trump’s decision to fire FTC Commissioner Rebecca Slaughter as an at will employee, Roberts writes:
When an agency “executes” a congressional mandate against private parties, it exercises executive power—no ifs, ands, or quasis about it.
Sure. But this is only an issue if you adopt a rule invented out of the ether for the first time in American history in the late 1970s, emerging from academic musings to policy during the 80s. As Lisa Graves of Court Accountability put it in a statement, this decision from Roberts “is the culmination of his determination to erect an imperial presidency under the guise of the made-up ‘unitary executive theory.’” Unitary executive theory is a right-wing fever dream invented by Nixonian dead-enders hoping to retroactively justify presidents creating enemies lists and using the FBI to wiretap the Black voting rights activists that they hated.
As a man who really, really hates Black voting rights, this doctrine appeals to John Roberts a lot.
It is, legally, bogus. Where the Constitution vests executive authority in the office of the president, it creates a duty not a power. Article II charged an officer to make sure laws are faithfully executed, it didn’t empower presidents to unilaterally gut laws they don’t like. Independent agencies like the FTC were designed to operate on their own — and to make sure they didn’t become their own kind of tyrranincal, the duly passed laws setting them up require politically balanced membership — as the Constitutional Accountability Center said in a statement, “Commissions like the FTC were created to be led by multiple members who serve as a check on one another and have some insulation from political pressure.” If someone needs to step in to make sure people follow the FTC’s rulings, the president is right there. Until then, Congress and the president decided that these federal trade issues should be decided independently.
The importance of having independent agencies making decisions free from political interference is also evident in the Federal Reserve system. After years and years of economic crises, Congress and the president set up an independent agency to manage banking policy.
And when John Roberts writes that the Constitution prevents an independent agency acting with executive power “no ifs, ands, or quasis about it” he means there’s still one “if, and, and quasi,” where a lack of independence might hurt his personal stock portfolio. The Federal Reserve executes congressional mandates against private parties roughly all day, every day. It fines banks a million dollars a day. It bans individuals from working in the industry. It controls the fundamental shape of the economy! For his part, Justice Thomas spends pages cataloging exactly this.
Undeterred by the attendant hypocrisy, in Trump v. Cook, Roberts crossed the aisle to join the three liberals and Kavanaugh, sparing Federal Reserve Governor Lisa Cook from being fired at will (she could still lose her job if Trump clears the hurdle of proving she actually committed an action justifying a for cause firing… which he has roughly as much chance of doing as he does getting his bloated frame to clear a real hurdle):
To accept any one of those arguments would in effect transform the Federal Reserve’s for-cause protection into at-will employment—an interpretive leap out of step with the statute Congress enacted and our Nation’s tradition of central banking protected from political interference.
Yeah, except Congress enacted the statutes surrounding the FTC too! Roberts isn’t even striving for intellectual consistency here, having just issued a companion opinion resting on the exact same interpretive leap out of step with the statute he scolds here. Indeed, one of the few textual thornbushes Roberts is willing to wade into involves the aforementioned fact that “for cause” means, traditionally, inefficiency, neglect of duty, or malfeasance in office. Cook argues that this definition is proof that even the mortgage fraud claims the Trump administration lodged against Cook can’t constitute malfeasance because they have no connection to her office, having allegedly happened years earlier. Knowing that conceding this would leave him tied in knots with the Slaughter opinion, Roberts instead shrugs that for cause has a totally malleable meaning:
That counsels a substantial threshold for “cause.” It is true, of course, that “cause” cannot be reduced to a precise set of rules, and some close calls are inevitable.
Potter Stewart had a more concrete definition of porn. Also, if you’re keeping score, Roberts is saying the agency with more explicit protections is the one that loses. It’s always “Congress should be explicit if it really means this stuff,” right up until John Roberts writes, “No, not like that!”
Rightfully unwilling to rest on statutory laurels, Roberts invokes the vague “history and tradition” machinery that conservatives routinely cherry-pick from when striking down gun laws and abortion rights:
So when they established the First Bank of the United States, they guaranteed its independence from Presidential control. Their successors did the same for the Second Bank. That enabled both banks to serve as the “great regulating wheel” of the early American financial system.
True… and then they blew them both up. Why is the fact that America had two independent national banks and subsequently rejected this structure — twice! — not just as relevant to the nation’s history and tradition? But, Roberts contends, the Federal Reserve is different, having ultimately won the historical battle and remained ascendant since 1913. And, hey, how can you argue that a legal regime in place for 113 years isn’t firmly etched into the nation’s history and tradition?
The FTC, by the way, is 112 years old. What a difference a year makes!
Justice Sotomayor, dissenting in Slaughter, actually walked the timeline out for anyone slow on the uptake:
Federal Reserve Board followed with similar removal protections in 1913. . . . The next year, Congress created the FTC with removal protections aimed at ensuring “a continuous policy,” “free from the effect of . . . changing [White House] incumbency.”
Justice Barrett couldn’t swallow the glaring hole that Roberts created, writing in her Cook dissent:
How can history support both a categorical rule and a carveout?
She’s so close to getting it, you guys!
History got nothing to do with it. Graves notes in another statement that the Roberts decision is, “consistent with the throughline of his decisions on the Court, which is to rule for Wall Street when it is at odds with Donald Trump, as with the tariff case.” It is, in fact, all about the money. And, to that end, Barrett’s dissent reads like she lit a fuse in Slaughter and then filed a noise complaint in Cook.
It’s not even just the decisions. The FTC got a two-sentence shadow-docket execution last fall and a funeral today. The Fed got 280 days, oral argument, and a full-dress opinion that both Alito and Barrett flagged as wildly abnormal for the posture. Roberts and Kavanaugh (who plays the role as creepy Robin to Roberts’s Batman-if-he-were-more-interested-about-being-a-billionaire-than-a-hero) were both pretty clear: because the global financial sector needs to understand that we’re not willing to let Donald Trump break the Fed. As Kavanaugh’s concurrence states, leaving the Fed’s status open risks “turmoil in the U.S. and world economies.”
Mr. Balls and Strikes tried his hand at switch-hitting today. I’d say he should stick to his day job, but let’s be honest… this is his day job.
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.
