Lisa Cook prevails...barely
As widely expected. But much else about the opinion surprised me
We interrupt our usual Monday Links post for a quick-and-dirty reaction to the Supreme Court’s blockbuster opinion, Trump v. Cook. I’m responding to it as I read in real time, so watch this space after I have had a chance to chew and swallow this sharply-divided opinion.
Caveats noted, here are my eight reactions to this blockbuster opinion.
1. The Chief Justice writes for a five-person majority.
I would have bet my eye teeth that the three liberals were on Cook’s side, along with Kavanaugh. I was also confident that Barrett was on board. I thought Alito and Thomas would vote with Trump, mostly because my heuristic for them is, as with Sotomayor and Jackson, a partisan one. My only real question was Gorsuch and Roberts. The latter is the architect of the last twenty years of dismantling the bureaucratic executive, the former its biggest proponent, but both were cryptic in oral argument about what they were encountering in the present litigation.
I was wrong about half of these predictions. The final count was Roberts + Kavanaugh + the liberals for Cook, the rest again.
2. The case has always been easy or hard depending on what one thinks of the rest of the federal government.
That is to say, in Trump v. Slaughter, also issued today, the Court finally, fully embraced the theory of executive power with which it has long been flirting. After today, the President has plenary authority to dismiss any and all officers who exercise the executive function. To the extent that previous Court precedents — e.g., Humphrey’s Executor, which decided the current landscape 81 years ago - conflict with that determination, those precedents are overruled.
Easy peasy, as they say. Except what about the Fed? There’s the rub. If Fed’s Board of Governors—an administrative agency just like the Federal Trade Commission (the agency at stake in Slaughter), then it would follow that Cook is as easy a case.
But the Court concluded that the Fed is not the same as the FTC because — and here, I expect all of you to cue Fiddler on the Roof — “TRADITION!!”
That’s what makes this hard. I think as a historical matter this opinion makes almost no sense, with no serious effort to grapple with these historical differences. Opening the opinion as he does with a reference to the Bank of North America and the Banks of the United States tells us nothing about whether the President can fire a government employee who works at the regulator and supervisor of the modern-day analogue to those banks.
Instead, I think these two justices — those who voted against fired FTC commissioner Slaughter and voted for not-fired Fed Governor Lisa Cook — simply prefer one outcome and not the other. It’s judicial realpolitik.
3. Much of this opinion is technical, about justiciability and other topics of interest mostly just to lawyers.
The Government stipulated from the beginning that it didn’t think the Fed was the same as the FTC. It might not have wanted to make that argument originally, but the Court already signaled in its initial order in Cook that it wouldn’t make much of the contrary argument. So then the Solicitor General had to make this argument:
The President can fire anybody for any or no reason in the executive branch, the Court has nothing it can say about any of that.
Except for the Fed! We agree the Fed is different.
Except that even for the Fed the Court can’t review the President’s reasons for firing a Fed official, which are up to him.
The Court concluded today that this argument collapses under its own weight. Point two and three are mutually inconsistent: they can’t both be true. So the second point is true, the third is not.
4. “For cause” is not a low bar. But it’s not a high bar either.
The Government wanted “for cause” to include any “concerns” about a person’s “integrity.”
This is also the view adopted by Justice Thomas, in dissent.
The Court rejected that view.
But Cook thought “for cause” in the Federal Reserve Act should incorporate the tradition of “inefficiency, neglect of duty, or malfeasance,” the standard identified in other statutes.
The Court purports, in Solomonic fashion, to reject both of these. It’s neither too low nor too high.
So where is it? “Having rejected both parties’ positions, we need not fully demarcate the contours of ‘cause’ today.”
The Court is now in the position of procrastinators everywhere: let’s let future SCOTUS handle that one.
