Lisa Cook’s Lost ‘Cause’

A federal judge finds that President Trump lacks the power to fire a Federal Reserve governor, Lisa Cook. Yet Judge Jia Cobb concedes that this is legal terra incognita, since this is “the first purported ‘for cause’ removal of a Board Governor in the Federal Reserve’s 111-year history.” More’s the reason, then, to tread carefully on what constitutes cause. For termination, Justice Antonin Scalia reckoned, disobeying the president counts as “cause.”Judge Cobb, nominated to the bench by President Biden, takes a different view, teeing up a constitutional contretemps. She reckons that the Federal Reserve Act, which bars Mr. Trump from firing a Fed board member except “for cause,” shields Ms. Cook, accused of mortgage fraud. “The bases for removal” of a board member, per Judge Cobb, center on their “behavior in office and whether they have been faithfully and effectively executing their statutory duties.”The dispute over firing Ms. Cook has broad import, with the Fed’s purported “independence” in the balance. Since the Constitution grants the powers of the Executive Branch to the president alone, though, it’s hard to understand how a federal agency like the Fed can legally operate outside of his authority. The Nine, in a recent ruling, suggested the Fed could be a special case. Can Congress’s conception of “cause” constrain the commander in chief? The case could reach the Supreme Court, which in 1988 weighed like questions after Congress created an “independent counsel,” named by judges but serving in the executive branch. The Nine, in Morrison v. Olson, upheld by seven to one this constitutional chimera, which, akin to Fed governors, could only be fired for “good cause.” Chief Justice Rehnquist backed a “good cause” requirement to protect the “independence of the office.”Scalia dissented, saying Congress shielding an independent counsel from firing ran afoul of the principle that “the President must have control over all exercises of the executive power.” That means the president needs the power “to remove principal officers” at will. As for the power to remove “inferior officers,” Scalia said “it is enough” that “they be removable for cause, which would include, of course, the failure to accept supervision.” Emphasis added by the Sun. An independent counsel, doing executive branch work without being under the president’s control, breached the separated powers, the “central guarantee of a just Government,” Scalia said. Nor did a “good cause” requirement, per se, make the independent counsel an “inferior officer,” he said. “If it were common usage to refer to someone as ‘inferior’ who is subject to removal for cause by another,” he said, then “the President is ‘inferior’ to Congress.”Which brings us back to Judge Cobb and Ms. Cook. By Scalia’s definition of “cause” — disobedience to the head of the executive branch — the Fed governor would lack a legal leg on which to stand. Judge Cobb by contrast dilates at length about “cause” depending on factors like “inefficiency, neglect of duty, and malfeasance in office.” Such criteria, though, amount to replacing the president’s judgment with that of Congress — or judges.The dispute over the independent counsel, and the “good cause” requirement, Scalia said, was a question of “Power.” There is to be no second-guessing by the Congress or courts when it comes to the president’s duty to supervise the executive branch. “It is not for us to determine,” he said, “how much of the purely executive powers of government must be within the full control of the President. The Constitution prescribes that they all are.”

Lisa Cook’s Lost ‘Cause’

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