Supreme Court Lets Fed Governor Cook Keep Job Pending Oral Argument in January
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The Supreme Court has allowed Fed Governor Lisa Cook to remain in her position pending oral argument in January, amidst controversy surrounding her appointment during the Trump administration. The decision has sparked debate among commenters about the politicization of the Federal Reserve and the role of the Supreme Court.
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When the Court does what people like, they're a legitimate and vital check on government power. When it does what people don't like, they're unelected politicans in robes.
SCOTUS does not care about regulatory or labor protections, because the Justices are friends with and receive payments from the billionaire class (Leonard Leo, Charles Koch, Erik Prince) who benefit from weaker protections.
On the other hand, a corrupt Fed could lead to rampant inflation, which would devalue their 401k.
In other words, SCOTUS is motivated by self interest, not rule of law or justice.
The Court will have a bunch of briefs from both sides giving them legal justification for any decision. They will choose which briefs they like.
The Federal Reserve System is a bit more complicated than the Board of Governors (but is also effectively part of the federal government, but a sui generis, highly corporatist part of the federal government, with direct involvement in an unusual manner by powerful private entities.)
I think you know that blanket statements of this type are at best inaccurate and not helpful to the discussion. The Fed is an entity created by federal statute and staffed by presidential appointees, so it's at least a little misleading to say that it's not part of the federal government.
Yes, it's bullshit either way, but it's not hard to see the court's reasoning here.
The FTC is not simply under the executive branch, it’s defined to be an independent agency.
The handling of the Federal Reserve and the FTC cases are creating a very interesting situation for how agencies can be defined by Congress.
Ends up the USSC will have to decide.
I will argue that the inconsistency in the Supreme Court’s rulings are creating an environment where some independent agencies will receive special consideration based on their function. This sets up an environment where Congress loses out on the collaborative benefits and safeguards of independent agencies in favor of the courts further empowering the Executive.
That said, there isn’t a fourth branch of government and the strict boundaries of branches is a rather… elementary understanding how our government works.
If an independent agency is “unconstitutional” and a fourth branch, how would you define our Armed Forces in practice?
The Supreme Court has power because the express grant of power in Article III; the idea that they could somehow fulfill their role in adjudicating cases and controversies arising under the Constitution and laws of the United States without both deciding what those writings mean and deciding whether something purporting to be a law of the United States was, in fact, an act authorized by the Constitution when that is precisely the source of the controversy before them is patently absurd.
The argument is all of this violates the constitution. There has not yet been a clear principle articulated by the court for treating them differently.
The idea of a unitary executive is obviously being relitigated but there's no question that independent executive agencies have existed for a century.
The concrete impact of the act to be allowed or constrained is, very much, a part of that analysis, so situations which are otherwise legally similar in terms of the underlying issues but where the potential impacts in the interim of adjudication are different can very easily have very different outcomes at this level without judicial favoritism or misconduct.
Which isn't to say that there aren't problems with recent Supreme Court decisions in this area, just than you need more than “cases with similar underlying legal questions have different outcomes on preliminary orders governing what is allowed before the case is resolved” to make that case.
The problems aren’t with the recent decisions, but the 1930s ones. I don’t think there’s a decision on the books today that was more clearly wrongly decided than Humphrey’s Executor. I mean:
> The commission is to be nonpartisan, and it must, from the very nature of its duties, act with entire impartiality. It is charged with the enforcement of no policy except the policy of the law. Its duties are neither political nor executive, but predominantly quasi-judicial and quasi-legislative.
The concession in italics should have made this a slam dunk case in the other direction. Enforcement of the law is the quintessential executive power. An English peasant in the 1600s could have gotten this one right. And where does the constitution say anything about Congress being able to create “quasi-judicial and quasi-legislative” bodies? The founders spilled all this ink to make three branches of government, but they really meant “j/k mix them all up into one unelected body if you want!”
Having different playbooks for players to follow depending on whether one team is for you or against is an interesting approach but one that’s been tried many times before and not one that will leave this country unified or in a better shape than it was found.
The Second Amendment says: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”
There is nothing complicated about the prefatory clause. If the amendment read: “News reporting, being necessary to the public debate of a free State, the right of the people to free speech shall not be infringed,” nobody would say that only professional news reporters have a right to free speech. They would say that “the right of the people to free speech” refers to a preexisting right that belongs to “the people” and the introductory clause provides the rationale for protecting it. The meaning isn’t even confusing when you recall that, at the time, militias were “bring your own firearm.” You don’t even need to open up the Federalist Papers and read Hamilton’s writing on European monarchs disarming their people.
Even Larry Tribe, who hates Trump and conservatives more than anyone in legal academia, came around to this view of the Second Amendment: https://hls.harvard.edu/today/why-i-changed-my-mind.
In contrast, there concededly is no “right of privacy” in the Constitution. Griswold turned to “emanations from penumbras” to find such a right. Nobody left of center would apply similar reasoning to find economic rights in the “emanations from penumbras” of the Contract Clause. This is such a case—Lochner—and folks on both sides agree it’s wrong. Griswold and Roe are just Lochner applied to sexual liberties rather than economic ones.
Even most left of center folks would struggle to write an opinion like Griswold and Roe today. They’re relics of an age when the Supreme Court was like a Yankee WASP version of Iran’s Guardian Council, ensuring compliance of temporal law with higher moral law.
The right to bodily autonomy as such is implicitly protected by the 9th amendment which states the constitution is not a set of positive enumeration of rights granted but instead limits placed on the power of government to take away all rights which are inherently ours.
Whether you find those rights because you want to look for it in the 4th amendment limits on governments right to invade your privacy is largely irrelevant.
I’ll also point out that regardless of the arguments on the 2nd amendment, historically regulation of arms was completely allowed and even today that’s allowed (eg you can’t get a nuclear weapon). And ignoring that is very interesting considering the current SCOTUS’s random “historic tradition” argument from conservatives.
In any event, whatever right to bodily autonomy you think exists, the constitution is plainly more concerned about the right to bear firearms. The document devotes a whole amendment to firearms. But the most you can say about the right to bodily autonomy is that the constitution’s silence on it doesn’t preclude its existence.
What it says is that the constitution cares a lot about the power of the government to regulate the natural right to hold weapons and monopolize violence and how that monopoly works. Bodily autonomy comes for the natural born right of liberty from the government and I don’t see the governments power to regulate medical care anywhere in the positive enumeration of powers in the constitution. Like I don’t even know what gives the government constitutional power to regulate medical care in the first place.
That's not what it says! It says: "the right of the people to keep and bear Arms, shall not be infringed." The operative language is no less emphatic than the First Amendment: "Congress shall make no law ... abridging the freedom of speech."
Again, nobody would adopt this tortured reading if the underlying right was speech. You'd have Tik Toks saying "shall not be infringed means shall not be infringed!"
> Bodily autonomy comes for the natural born right of liberty from the government
What is the source of these supposed "natural born rights?"
> I don’t see the governments power to regulate medical care anywhere in the positive enumeration of powers in the constitution. Like I don’t even know what gives the government constitutional power to regulate medical care in the first place.
The federal government doesn't have the power to regulate medical care. But the state governments are not governments of enumerated powers. The state governments are successors of the British Parliament, and, "vested as they are with general police power, require no specific grant of authority in the Federal Constitution to legislate with respect to ... public health, welfare and morals." Joseph E. Seagram & Sons v. Hostetter, 384 U.S. 35, 41 (1966).
The US Declaration of Independence lists it:
> We hold these Truths to be self-evident, that all Men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness
But I’m not sure what you mean by “origin” and clearly these truths are not self-evident to some.
> The federal government doesn't have the power to regulate medical care
Tell that to the FDA, DEA and FTC.
> That's not what it says! It says: "the right of the people to keep and bear Arms, shall not be infringed."
And yet we’ve regularly infringed that right if that right is interpreted at the individual level. Also “arms” as understood in the constitution was specifically around personal weapons an individual could carry (muskets, pistols, swords). Not necessarily machine guns or weapons of mass destruction; even Scalia, one of the more conservative justices recognized this, writing in Heller that weapons that are “dangerous and unusual” (e.g., machine guns, bombs, or military-grade explosives) can be restricted.
https://www.dailycartoonist.com/index.php/2025/08/21/calvinb...
Justice Jackson said:
> This is Calvinball jurisprudence with a twist. Calvinball has only one rule: There are no fixed rules.6 We seem to have two: that one, and this Administration always wins.
I'm really not sure what you're talking about here because the decision didn't go against the administration.
Justice Jackson's comment was part of a dissenting opinion.
It's like claiming a game is rigged when your team won.
> You can see the court just outright ruling based on the preferences and not law.
And my reply was:
> The Supreme Court is playing "Calvinball" now, and that's not me saying it but (a member of) the Supreme Court saying it.
Who the Court decided for in the OP linked article is completely irrelevant to my reply.
It was merely reinforcing the idea that the Court appears to many to be making up the rules as they go along to suit their preferences, which is quite analogous to the rules for Calvinball.
My reply was not worded as, nor meant to be, an indication that I disagree with their ruling in the OP article.
How they ruled on any single specific matter is irrelevant to the case that they've made a lot of rulings lately which are at odds with precedents including some of their own.
But anyone reading the parent comment and your comment would have no idea that in your mind, you were replying to a general reading of the second sentence.
It's also worth noting that none of Justice Jackson's colleagues (even the other liberal ones) joined her outraged dissent. It was essentially 8-1 against. The current decision proves that she was in fact incorrect.
Someone should tell the Federal Reserve Board of Governors that they aren’t a government agency:
https://www.federalreserve.gov/aboutthefed/fedexplained/who-...
“The Federal Reserve System includes
· The Board of Governors, a federal agency located in Washington, D.C."
The whole federal reserve is also privately funded, and doesn't get money from congress.
From the outside it may appear like a regular federal agency, but it is very different from the FTC, DEA, FDA, DOE, etc.
No, its a federal agency. Explicitly.
> But the board is a subsection of the federal reserve systems.
Yes, the Federal Reserve System is a different thing from the Board with a sui generis relation to the government, which would maybe be relevant if the personnel action involved some part of the system which was not the Board, but we are talking about a personnel action pertaining to the Board.
> And even the board is kind of odd in it's structure, because the governors have staggered appointments and serve a term.
That’s not at all special (particularly when comparing to the FTC), but typical of “independent” federal agencies (including the FTC), which tend to have fixed terms that are longer than a Presidential term (7 years for the FTC, 14 for the Fed Board), staggered terms, and an explicit statutory limits on the number of members of the body that can be from one political party.
If that distinction sounds preposterous to you, then congratulations, you reached the same conclusion that Justice Jackson reached when she complained that the conservative majority is playing "Calvinball" to reach results-based decisions regardless of statute, precedent, and the Constitution.
For those who didn't grow up in the 90s, Calvinball is a reference to a fictional sport from the comic strip Calvin and Hobbes, in which the sport's rules are made up and change constantly.
[1] https://en.wiktionary.org/wiki/Calvinball
The FTC, for example, exercises classic “executive power.” It sues people for violating antitrust and consumer protection laws. It doesn’t get more “executive power” than that.
The Fed, by contrast, for the most part doesn’t exercise “executive power.” The Fed influences private conduct indirectly through open market operations as a bank. The Fed has ancillary functions in making and enforcing bank regulations, but arguably those are separable. That makes the independence of the Fed a much trickier question.
At the other extreme would be someone like the CEO of Amtrak. He can’t exercise the power of the state to prosecute you. It’s a train company that functions like any other company and happens to be government owned.
There are a lot of reasons why letting the executive control the Fed would be massively destabilizing. None of those reasons go to the constitutionality of the matter, so courts have generally chosen to sort of handwave it - and the executive hasn't really forced the issue.
Won't be able to depend on those factors much longer...
The core concept of a central bank that influences the economy through its transactions with other banks has a lengthy constitutional pedigree. It predates the 20th century precedent on “independent federal agencies” by 120 years or so.
More to the point, this doesn't address anything of substance from the discussion above. No one is arguing there shouldn't be a central bank, or that there's no textual/legal support for one.
McCulloch v. Maryland held that was broad enough to encompass chartering a federal bank: https://www.oyez.org/cases/1789-1850/17us316. Now, you have a point that it’s hard to see what enumerated power is served by creating a national bank. But I think it fairly falls within the enumerated power of providing for “the common defense and general welfare of the United States.” Remember, the huge issue at the time was how to pay for the military and what to do with all the war debt states had taken on. The first national bank was created to deal with that. So the central bank fit into the concept of the “general welfare of the United States” in a much more specific way than is usually imagined. That is to say, it doesn’t require a strained reading of “general welfare of the United States” that would be broad enough to basically gut the concept of enumerated powers. Instead, at the time, the management of the nation’s finances was seen as an existential threat to the new government as a whole.
So the reading of a bank that excecutes the law establishing it, I don't know how it could fall under anything but article ii. From your explanation, that wouldn't violate McCulloch v. Maryland authorization of the executive to execute the law.
The constitution assumes you can create various offices and departments associated with each of these organs, without spelling it out. But nothing turns on where anything “sits.” The question is whether any entity is exercising the “executive power,” or “legislative power,” or “judicial power.” For example, one of the first things Congress did in 1789 was to create the Marshall’s Service to provide security to courts. These were actually created as a body in the judicial branch. https://en.wikipedia.org/wiki/United_States_Marshals_Service. But they don’t exercise the “judicial power.” They exercise executive power—law enforcement.
So the Fed “sits” in the executive branch. But that doesn’t necessarily mean it exercises the “executive power” within the meaning of Article I, Section 1.
>The constitution assumes you can create various offices and departments associated with each of these organ
Definitely a valid point. But the legislative is unique in that the constitution explicitly defines what can exercise the legislative power, and it's defined as consisting of the house and senate. The executive and judiciary has no such restriction.
First, the Fed is not entirely government, as chartered banks are shareholders.
Second, the Fed is / can be construed under 'power of the purse', which is under the jurisdiction of Congress.
* https://en.wikipedia.org/wiki/Congressional_Budget_Office
Further, having a bank that is not directly controlled by Government dates back to the first Congress (Washington, Hamilton):
> The suspicion of this would most probably be a canker, that would continually corrode the vitals of the credit of the Bank, and would be most likely to prove fatal in those situations, in which the public good would require, that they should be most sound and vigorous. It would indeed be little less, than a miracle, should the credit of the Bank be at the disposal of the Government, if in a long series of time, there was not experienced a calamitous abuse of it. It is true, that it would be the real interest of the Government not to abuse it; its genuine policy to husband and cherish it with the most guarded circumspection as an inestimable treasure. But what Government ever uniformly consulted its true interest, in opposition to the temptations of momentary exigencies? What nation was ever blessed with a constant succession of upright and wise Administrators?
* https://founders.archives.gov/documents/Hamilton/01-07-02-02...
The legislative powers more accurately are vested in only congress and senate, and not only that are defined as consisting of the house and senate.
Therefore the CBO exists in a rather odd area, where it cannot exercise any power unless it moves into the execute branch, or it somehow uses executive power.
The idea that the members of the board of the federal reserve are structurally very distinct from appointed members of the NLRB or the FTC is ridiculous. It is just calvinball from the fact that the conservatives like the stability offered by the fed and don't like most of the other independent agencies that do things like empower unions and fine people committing financial fraud.
As you note, the FTC enforces antitrust laws. Enforcement of the law is a quintessential exercise of executive power. What’s the Fed’s core function? It performs open market operations to influence the economy as a bank. Is that an exercise of executive power? Maybe. But it’s a very different question than whether the FTC exercises executive power.
I also personally don't think that the founders were playing a joke on us when they wrote the 9th amendment.
Legally, they don’t! Nobody seriously argues Congress can create independent agencies that exercise Article III’s “judicial power.” The seeming “judicial actions” presided over by the NLRB, SEC, etc., are justified based on the theory that they are merely using court-like procedures to perform an executive function. It’s just a way of structuring an investigation and enforcement that resembles judicial procedures, but where the end result is something the executive would have the power to do anyway.
> I also personally don't think that the founders were playing a joke on us when they wrote the 9th amendment.
Can you help me understand this argument? Say I have a list of countries in Europe: Germany, France, Italy, Sweden, Norway. Then I say, “the enumeration in this list of certain countries shall not be construed to deny or disparage other countries being in Europe.” That paraphrases the 9th amendment, right? You couldn't rely on that provision to say “Denmarkistan” is a country in Europe, right? You’d need some outside evidence to prove that this country exists.
The problem with “emanations from penumbras” is that it uses the constitution itself to bootstrap a supposed privacy right that isn’t listed and isn’t supported by outside evidence. Maybe a right to privacy exists, maybe it doesn’t. But you can’t prove that by pointing to the 9th amendment.
The argument here is about independence. Can Congress define an organ of government (part of the executive branch as commonly understood) such that the president doesn't have the ability to directly administer it? Or is the president the head of all executive authority?
Similarly no one doubts that the intent of Congress was to do so here. And almost everyone thinks this has been a good thing, as macroeconomic policy can and has done terrible things in the hands of political actors in the past.
But the constitution is silent, thus the case.
Your argument amounts to the idea that, because Congress has done one wrong thing (allow the executive branch to make laws) it should be permitted to do a second wrong thing (allow the Article I “executive power” to be exercised independently of the President). That makes no sense. You can’t reward Congress for doing an unconstitutional thing by letting them do a second unconstitutional thing.
We all know he will immediately slam the interest rate lever to 0%. What happens after that is unknown but it won't happen overnight. So now you have a window where the dams break and money starts flowing everywhere but nothing is off the rails yet.
What would you do if you had 60-90 days to take advantage of this?
Ride the wave, accumulate cash, then exit early and start looking to relocate countries.
A sneakier answer is probably "short stuff". That will probably get you creamed.
What everyone is going to do is "get as much of that free money as you can, and worry about the rest later". At the end they'll make a ton of profit but be sad that they didn't predict the market peak, so it will feel like a loss.
Everyone closest to the money printer funnel becomes wildly rich buying appreciating assets on negative real interest rates.
As you get further from the sphere of influence with first shot at the money spigot, the worse off you are. The guy at the very end just gets a diluted jar of nothingness.
Just buckle up folks. Ain't no one getting out of this clean.
This will only work if mortgage rates actually drop hand in hand with the fed rate, BTW. And that isn't always guaranteed as the primary risk for a lender is inflation, so if high inflation is obvious and predicted as a consequence, mortgage rates will remain high to compensate.
If I knew before, I'd buy long bonds. (Or maybe medium would be better?)
Maybe the larger problem is that I'd expect, after that 60-90 days, the value of the dollar will get destroyed. So you made a ton of money during that 60-90 days. Now where are you going to put it?
* https://archive.is/https://www.vox.com/scotus/397729/supreme...
* https://en.wikipedia.org/wiki/Unitary_executive_theory
Right-leaning folks are all for it:
* https://www.journals.uchicago.edu/doi/full/10.1086/714860
Others less so:
* https://scholarship.law.nd.edu/ndlr/vol98/iss1/3/
Pre-Trump, one famous SCOTUS ruling determined that some agencies were / acted 'in between' branches:
> What the Court held in Humphrey’s Executor is that if an agency is of the latter kind—that is, the agency’s job description involves a mixture of quasi-legislative and quasi-judicial functions that are not within the President’s explicit Article II powers—then it is up to Congress to determine whether this kind of agency’s heads serve at the President’s pleasure. If such an agency’s role is essentially “to carry into effect legislative policies embodied in statute,” then Congress may protect its members against discharge except for good cause.
* https://verfassungsblog.de/the-unbearable-lightness-of-the-u...
* https://en.wikipedia.org/wiki/Humphrey%27s_Executor_v._Unite...
The term “unitary executive theory” is wordplay, meant to make the ordinary seem unusual. It’s not a “theory” it’s just the meaning of the first sentence of Article II: “The executive Power shall be vested in a President of the United States of America.”
The Constitution creates three organs of government: Congress, the President—not the “executive branch,” but a single officer—and the Supreme Court Court. It’s obvious that Congressional or judiciary staff can’t exercise the legislative or judicial power, respectively, independent of the constitutional actors. The same is true for the President. There is nothing in the Constitution to suggest otherwise.
Oh, and: There's no Necessary and Proper Clause in Article II for the president.
In 1787, “the executive power” was a well understood concept in political theory. The 1653 constitution of the Commonwealth of England had a concept of separation of powers between the legislative and executive. Locke's Second Treatise of Government (1690), and the 1777 English translation of Montesquieu's Spirit of the Laws use the actual term "executive power" dozens of times each.
This is consistent with Article III, which mentions the “judicial power,” but doesn’t mention most of the functions of a court. It doesn’t need to—“the judicial Power” is a reference to a preexisting concept.
The Constitution’s vesting clauses are like the sentence “this operating system runs the virtual memory pager and file system in separate processes.” You know I’m talking about a microkernel without my specifying any further details because the sentence uses well known computer science concepts.
Moreover, whatever “the executive Power” entails, it must always be “vested in a President of the United States.” Congress can alter the extent of “the executive Power” by law, but it can’t take that executive Power—including the power to faithfully execute the law—and give it to someone else.