It didn\u2019t work.<\/p>\n
The statutory regime behind the Federal Trade Commission specifies that commissioners may be removed only \u201cfor inefficiency, neglect of duty, or malfeasance in office.\u201d The statutes behind the Federal Reserve mandate that a governor may be removed only \u201cfor cause,\u201d a term traditionally understood to mean, well, inefficiency, neglect of duty, or malfeasance in office<\/em>.<\/p>\n In rubberstamping Trump\u2019s decision to fire FTC Commissioner Rebecca Slaughter as an at will employee, Roberts writes: <\/p>\n When an agency \u201cexecutes\u201d a congressional mandate against private parties, it exercises executive power\u2014no ifs, ands, or quasis about it.<\/p>\n<\/blockquote>\n 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<\/a> put it in a statement, this decision from Roberts \u201cis the culmination of his determination to erect an imperial presidency under the guise of the made-up \u2018unitary executive theory.\u2019\u201d 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. <\/p>\n As a man who really<\/a>, really<\/a> hates<\/a> Black<\/a> voting<\/a> rights<\/a>, this doctrine appeals to John Roberts a lot.<\/p>\n 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\u2019t empower presidents to unilaterally gut laws they don\u2019t like. Independent agencies like the FTC were designed to operate on their own \u2014 and to make sure they didn\u2019t become their own kind of tyrranincal, the duly passed laws setting them up require politically balanced membership \u2014 as the Constitutional Accountability Center<\/a> said in a statement, \u201cCommissions 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.\u201d If someone needs to step in to make sure people follow the FTC\u2019s rulings, the president is right there. Until then, Congress and the president decided that these federal trade issues should be decided independently. <\/p>\n 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. <\/p>\n And when John Roberts writes that the Constitution prevents an independent agency acting with executive power \u201cno ifs, ands, or quasis about it\u201d he means there\u2019s still one \u201cif, and, and quasi,\u201d 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<\/em>.<\/p>\n Undeterred by the attendant hypocrisy, in Trump v. Cook<\/em>, 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\u2026 which he has roughly as much chance of doing as he does getting his bloated frame to clear a real hurdle):<\/p>\n To accept any one of those arguments would in effect transform the Federal Reserve\u2019s for-cause protection into at-will employment\u2014an interpretive leap out of step with the statute Congress enacted and our Nation\u2019s tradition of central banking protected from political interference.<\/p>\n<\/blockquote>\n Yeah, except Congress enacted the statutes surrounding the FTC too! Roberts isn\u2019t 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 \u201cfor cause\u201d 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\u2019t 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<\/em> opinion, Roberts instead shrugs that for cause has a totally malleable meaning:<\/p>\n That counsels a substantial threshold for \u201ccause.\u201d It is true, of course, that \u201ccause\u201d cannot be reduced to a precise set of rules, and some close calls are inevitable. <\/p>\n<\/blockquote>\n Potter Stewart had a more concrete definition of porn. Also, if you\u2019re keeping score, Roberts is saying the agency with more<\/em> explicit protections is the one that loses. It\u2019s always \u201cCongress should be explicit if it really means this stuff,\u201d right up until John Roberts writes, \u201cNo, not like that!\u201d<\/p>\n Rightfully unwilling to rest on statutory laurels, Roberts invokes the vague \u201chistory and tradition\u201d machinery that conservatives routinely cherry-pick from when striking down gun laws and abortion rights:<\/p>\n 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 \u201cgreat regulating wheel\u201d of the early American financial system.\u00a0<\/p>\n<\/blockquote>\n True\u2026 and then they blew them both up. Why is the fact that America had two independent national banks and subsequently rejected<\/em> this structure \u2014 twice! \u2014 not just as relevant to the nation\u2019s 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\u2019t firmly etched into the nation\u2019s history and tradition?<\/p>\n The FTC, by the way, is 112 years old. What a difference a year makes!<\/p>\n Justice Sotomayor, dissenting in Slaughter<\/em>, actually walked the timeline out for anyone slow on the uptake:<\/p>\n Federal Reserve Board followed with similar removal protections in 1913. . . . The next year, Congress created the FTC with removal protections aimed at ensuring \u201ca continuous policy,\u201d \u201cfree from the effect of . . . changing [White House] incumbency.\u201d<\/p>\n<\/blockquote>\n Justice Barrett couldn\u2019t swallow the glaring hole that Roberts created, writing in her Cook<\/em> dissent:<\/p>\n How can history support both a categorical rule and a carveout?<\/p>\n<\/blockquote>\n She\u2019s so close to getting it, you guys! <\/p>\n History got nothing to do with it. Graves notes in another statement that the Roberts decision is, \u201cconsistent 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.\u201d It is, in fact, all about the money. And, to that end, Barrett\u2019s dissent reads like she lit a fuse in Slaughter<\/em> and then filed a noise complaint in Cook<\/em>.<\/p>\n It\u2019s not even just the decisions. The FTC got a two-sentence shadow-docket execution<\/a> 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\u2019s 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\u2019re not willing to let Donald Trump break the Fed. As Kavanaugh\u2019s concurrence states, leaving the Fed\u2019s status open risks \u201cturmoil in the U.S. and world economies.\u201d <\/p>\n Mr. Balls and Strikes tried his hand at switch-hitting today. I\u2019d say he should stick to his day job, but let\u2019s be honest\u2026 this is his day job.<\/p>\n The post Supreme Court Slaughters FTC, Lets Federal Reserve Cook<\/a> appeared first on Above the Law<\/a>.<\/p>\n Donald Trump put the Supreme Court in a pickle. <\/p>\n 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\u2019s financial policy. It\u2019s 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.<\/p>\n 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\u2019re personally beholden to wealthy oligarchs who personally benefit from the former and not the latter? <\/p>\n Chief Justice John Roberts decided to take on the impossible task of reconciling the irreconcilable today, writing simultaneous opinions in both Slaughter<\/em> and Cook<\/em>. One might have thought that Roberts would space these out in an effort to obscure the fact that he\u2019s 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\u2019s much more clever than he is, and instead ran headlong into the contradiction, draped in hubris, convinced that we\u2019ll all be dazzled by the lipstick job he gives these pigs. <\/p>\n It didn\u2019t work.<\/p>\n The statutory regime behind the Federal Trade Commission specifies that commissioners may be removed only \u201cfor inefficiency, neglect of duty, or malfeasance in office.\u201d The statutes behind the Federal Reserve mandate that a governor may be removed only \u201cfor cause,\u201d a term traditionally understood to mean, well, inefficiency, neglect of duty, or malfeasance in office<\/em>.<\/p>\n In rubberstamping Trump\u2019s decision to fire FTC Commissioner Rebecca Slaughter as an at will employee, Roberts writes: <\/p>\n When an agency \u201cexecutes\u201d a congressional mandate against private parties, it exercises executive power\u2014no ifs, ands, or quasis about it.<\/p>\n<\/blockquote>\n 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<\/a> put it in a statement, this decision from Roberts \u201cis the culmination of his determination to erect an imperial presidency under the guise of the made-up \u2018unitary executive theory.\u2019\u201d 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. <\/p>\n As a man who really<\/a>, really<\/a> hates<\/a> Black<\/a> voting<\/a> rights<\/a>, this doctrine appeals to John Roberts a lot.<\/p>\n 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\u2019t empower presidents to unilaterally gut laws they don\u2019t like. Independent agencies like the FTC were designed to operate on their own \u2014 and to make sure they didn\u2019t become their own kind of tyrranincal, the duly passed laws setting them up require politically balanced membership \u2014 as the Constitutional Accountability Center<\/a> said in a statement, \u201cCommissions 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.\u201d If someone needs to step in to make sure people follow the FTC\u2019s rulings, the president is right there. Until then, Congress and the president decided that these federal trade issues should be decided independently. <\/p>\n 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. <\/p>\n And when John Roberts writes that the Constitution prevents an independent agency acting with executive power \u201cno ifs, ands, or quasis about it\u201d he means there\u2019s still one \u201cif, and, and quasi,\u201d 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<\/em>.<\/p>\n Undeterred by the attendant hypocrisy, in Trump v. Cook<\/em>, 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\u2026 which he has roughly as much chance of doing as he does getting his bloated frame to clear a real hurdle):<\/p>\n To accept any one of those arguments would in effect transform the Federal Reserve\u2019s for-cause protection into at-will employment\u2014an interpretive leap out of step with the statute Congress enacted and our Nation\u2019s tradition of central banking protected from political interference.<\/p>\n<\/blockquote>\n Yeah, except Congress enacted the statutes surrounding the FTC too! Roberts isn\u2019t 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 \u201cfor cause\u201d 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\u2019t 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<\/em> opinion, Roberts instead shrugs that for cause has a totally malleable meaning:<\/p>\n That counsels a substantial threshold for \u201ccause.\u201d It is true, of course, that \u201ccause\u201d cannot be reduced to a precise set of rules, and some close calls are inevitable. <\/p>\n<\/blockquote>\n Potter Stewart had a more concrete definition of porn. Also, if you\u2019re keeping score, Roberts is saying the agency with more<\/em> explicit protections is the one that loses. It\u2019s always \u201cCongress should be explicit if it really means this stuff,\u201d right up until John Roberts writes, \u201cNo, not like that!\u201d<\/p>\n Rightfully unwilling to rest on statutory laurels, Roberts invokes the vague \u201chistory and tradition\u201d machinery that conservatives routinely cherry-pick from when striking down gun laws and abortion rights:<\/p>\n 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 \u201cgreat regulating wheel\u201d of the early American financial system.\u00a0<\/p>\n<\/blockquote>\n True\u2026 and then they blew them both up. Why is the fact that America had two independent national banks and subsequently rejected<\/em> this structure \u2014 twice! \u2014 not just as relevant to the nation\u2019s 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\u2019t firmly etched into the nation\u2019s history and tradition?<\/p>\n The FTC, by the way, is 112 years old. What a difference a year makes!<\/p>\n Justice Sotomayor, dissenting in Slaughter<\/em>, actually walked the timeline out for anyone slow on the uptake:<\/p>\n Federal Reserve Board followed with similar removal protections in 1913. . . . The next year, Congress created the FTC with removal protections aimed at ensuring \u201ca continuous policy,\u201d \u201cfree from the effect of . . . changing [White House] incumbency.\u201d<\/p>\n<\/blockquote>\n Justice Barrett couldn\u2019t swallow the glaring hole that Roberts created, writing in her Cook<\/em> dissent:<\/p>\n How can history support both a categorical rule and a carveout?<\/p>\n<\/blockquote>\n She\u2019s so close to getting it, you guys! <\/p>\n History got nothing to do with it. Graves notes in another statement that the Roberts decision is, \u201cconsistent 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.\u201d It is, in fact, all about the money. And, to that end, Barrett\u2019s dissent reads like she lit a fuse in Slaughter<\/em> and then filed a noise complaint in Cook<\/em>.<\/p>\n It\u2019s not even just the decisions. The FTC got a two-sentence shadow-docket execution<\/a> 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\u2019s 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\u2019re not willing to let Donald Trump break the Fed. As Kavanaugh\u2019s concurrence states, leaving the Fed\u2019s status open risks \u201cturmoil in the U.S. and world economies.\u201d <\/p>\n Mr. Balls and Strikes tried his hand at switch-hitting today. I\u2019d say he should stick to his day job, but let\u2019s be honest\u2026 this is his day job.<\/p>\n 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 […]<\/p>\n","protected":false},"author":3,"featured_media":155552,"comment_status":"","ping_status":"","sticky":false,"template":"","format":"standard","meta":{"_et_pb_use_builder":"","_et_pb_old_content":"","_et_gb_content_width":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16],"tags":[],"class_list":["post-155579","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-above_the_law"],"jetpack_featured_media_url":"https:\/\/i0.wp.com\/xira.com\/p\/wp-content\/uploads\/2026\/06\/Headshot-300x200-Pfgecu.jpg?fit=300%2C200&ssl=1","jetpack_sharing_enabled":true,"_links":{"self":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/posts\/155579","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/users\/3"}],"replies":[{"embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/comments?post=155579"}],"version-history":[{"count":0,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/posts\/155579\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/media\/155552"}],"wp:attachment":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/media?parent=155579"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/categories?post=155579"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/tags?post=155579"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}\n
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\n![\"Headshot\"](\"https:\/\/i0.wp.com\/abovethelaw.com\/wp-content\/uploads\/2016\/11\/Headshot-300x200.jpg?resize=188%2C125&ssl=1\" "\\"\\"")
Joe Patrice<\/a>\u00a0is a senior editor at Above the Law and co-host of Thinking Like A Lawyer<\/a>. Feel free to\u00a0email<\/a> any tips, questions, or comments. Follow him on\u00a0Twitter<\/a>\u00a0or Bluesky<\/a> if you\u2019re interested in law, politics, and a healthy dose of college sports news.<\/em><\/strong><\/p>\n![\"\"](\"https:\/\/i0.wp.com\/abovethelaw.com\/wp-content\/uploads\/sites\/4\/2025\/01\/donald-trump-GettyImages-1152627372-300x200.jpg?resize=300%2C200&ssl=1\" "\\"\\"")
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\nJoe Patrice<\/a>\u00a0is a senior editor at Above the Law and co-host of Thinking Like A Lawyer<\/a>. Feel free to\u00a0email<\/a> any tips, questions, or comments. Follow him on\u00a0Twitter<\/a>\u00a0or Bluesky<\/a> if you\u2019re interested in law, politics, and a healthy dose of college sports news.<\/em><\/strong><\/p>\n","protected":false},"excerpt":{"rendered":"