The Court’s conservatives seem likely to block Trump from firing Lisa Cook, not because they care about principles, but because they care about the Fed.
A woman protested outside the Supreme Court as she heard oral arguments Trump vs. Cookabout Trump’s attempt to fire Lisa Cook from the Federal Reserve Board of Governors.
(Tom Williams/CQ-Roll Call, Inc via Getty Images) The Supreme Court heard oral arguments Wednesday at Trump vs. Cooka case centered on Donald Trump’s illegal attempt to fire Federal Reserve Commissioner Lisa Cook. The legal arguments should be familiar to anyone who has watched Trump’s authoritarian takeover of the federal government: Trump claims he has the power to fire anyone he wants; Cook states:that’s not how it works, that’s not how it all works.”
Over the past year, the Supreme Court has generally appeared willing to allow Trump to fire whomever he wants. The court asserts that Trump is entitled to this power under the “unitary executive theory,” a fringe theory invented by Republican academics to justify dismantling the regulatory state and which has been embraced by Republicans on the Supreme Court in recent years. The theory reimagines every independent agency created by Congress as part of Trump’s personal fiefdom. Based on this view, the Supreme Court allowed Trump to fire members of the National Labor Relations Board (see Trump vs. Wilcox); and it will probably allow him to fire the commissioners of the Federal Trade Commission (see Trump against the massacre. If the theory holds, Trump should be able to fire Cook.
But here’s the advantage of using a made-up theory like the unitary executive theory: the Republicans on the ground can make it do what they want. While Trump was busy waving his magic wand and shouting “unit executed!”At the Fed, he failed to understand that the Supreme Court is the author of the whole book of spells. The court can defeat the spell whenever it wants.
Unlike the NLRB and the FTC, Republicans on the ground as the Fed. They as its independence. They as what he does. Since unitary executive theory did not exist in practice until Trump decided to strip away the independence of all the executive agencies that Republicans don’t like, it is very easy for Republican judges to say that unitary executive theory does not exist when it comes to the only independent agency that they actually care about.
Indeed, Chief Justice John Roberts laid the groundwork for granting the Fed a protective cloak invented during the crisis. Trump vs. Wilcox arguments, which took place after Trump made his first noises about firing Cook. Anticipating his likely dismissal, Roberts noted that the Fed was a “uniquely structured, quasi-private” independent agency, distinct from all others. Alleged rapist Brett Kavanaugh has made similar statements. That means at least two Republican judges are already willing to allow Trump to trample every independent agency except the Fed.
For what? Well, the simple answer is that the Fed has a direct impact on the financial health of Supreme Court Republicans and the donors who bought them. The stability of monetary policy, and its independence from the crazy white supremacist in the White House, is important for the stock market, and therefore for all the investments of the rich.
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It’s also worth pointing out that destabilizing the Fed could, without hyperbole, cause the economy to crash. Even beyond the question of their personal finances, Republican judges are likely to care. Remember that before the Roberts Court became known as the most pro-authoritarian court in U.S. history, it was widely considered the most business-friendly court in U.S. history.
As a practical matter, giving Trump personal control over the Fed is bad for business. While Republicans are notorious for not caring about practicalities when it comes to abortion rights or gun rights, when it comes to money? Republicans care a lot about this.
Much of the justices’ evident skepticism toward Trump in this case is only truly intelligible if one understands both the personal and national implications of the issue before the court. The main argument made by the Trump administration was that Cook was fired “for cause,” as required by law. The administration claims the “cause” is an allegation that Cook committed mortgage fraud (which she did not) before she was appointed to the Fed. Apparently, the justices were arguing over whether this alleged fraud was sufficient cause (because not only are the allegations false, they are allegations about conduct prior to his joining the Fed, which is not normally a “for cause” reason to fire someone from a federal position). The judges also argued over whether Cook should be given the opportunity to defend himself (again,
