The SCOTUS Protects Fed Independence But Guts The Rest

The unelected, conservative SCOTUS majority is comprised of unconstrained politicians disguised as impartial justices. They must be stopped.

I’ve got more to say about the SCOTUS rulings from yesterday, starting from Justice Barrett’s dissent from the majority’s decision blocking Trump from firing Fed governor Lisa Cook.

BLUF: I draw two conclusions from yesterday’s consequential decisions. One, in scuttling the concept of the independent agency, other than the Fed, the SCOTUS majority is making a grave mistake with the potential to seriously damage our politics, society, and living standards. Two, which follows closely from one, the conservative majority of this high court—unelected politicians disguised as impartial justices—must somehow be stopped.

Am I saying the high court did the wrong thing on the Fed decision? Not at all. As I said yesterday, they made the right call, albeit a narrow one (passed by a mere one-vote majority). I was particularly gratified to see the numerous references to the importance of Fed independence. But read on. The Fed call should also have been the FTC call.

Barrett’s dissent partially rests on what I and many others view as a glaring contradiction in the way the high court treated the Cook/Fed case and the Slaughter/FTC case (wherein the 6-3 conservative majority cleared POTUS to fire independent regulators at will):

…the Court’s holding is in serious tension with Trump v. Slaughter, which we also decide today….Slaughter announces a categorical rule: Whenever “an agency ‘executes’ a congressional mandate against private parties, it exercises executive power” and must be subject to plenary executive control…Yet here, the Court claims a special exception “‘sanctioned by history’” and based on the Federal Reserve’s role in setting monetary policy….How can history support both a categorical rule and a carveout?

My Biden-era colleague Bharat Ramamurti, who’s smart, progressive, and, unlike me, an actual lawyer (sort of—he’s got a law degree but I personally wouldn’t hire him to defend a parking ticket, as he’d likely lecture the court on structural inequalities) noted the same contradiction, asking how the court can hold such opposing views:

They can’t! The holdings of these two cases are irreconcilable, even though Chief Justice Roberts wrote both opinions. If the Constitution requires the president to be able to fire an executive branch official at will, then why are the appointees to the Fed magically exempt from this constitutional principle?

“The Fed is special” is not a legal concept that appears in the Constitution. Chief Justice Roberts seems to rely on the fact that the Fed is old and its independence has a long historical precedent. But the FDIC is nearly as old (founded in 1933, twenty years after the Fed’s creation). Do those 20 extra years make a dispositive constitutional difference? Like much of the Roberts Court’s jurisprudence, these distinctions are invented from whole cloth to justify a policy outcome the conservative majority desires: weakening the independence of the administrative state but protecting the sanctity of the Fed because it offers stability to financial markets.

“They can’t!” and yet they did. Of course, there are two ways to bounce on this. Barrett concludes that the Fed should have been treated like the FTC. I bounce the other way. The leadership of FTC, and the other independent agencies, should have retained their independent status. Turning them over to the POTUS, as noted, was a fateful mistake. Back to Bharat:

Congress created independent federal agencies to provide apolitical, long-term regulation in many fields, from consumer product safety to food and drug safety to elections. [I’d add financial market oversight, like the SEC.—JB] In practice, these agencies were never that apolitical—they either were run by commissions where the president’s party had a majority of votes or run by a single head who had been nominated by the president. But “for-cause” protections [meaning they couldn’t be arbitrarily fired, e.g., because they wouldn’t do the POTUS’s bidding—JB] did offer those appointees a measure of flexibility and independence to look past the president’s short-term interests and try to protect the long-term interests of the country.

The need for these functions is obvious. At the least, politically motivated administrations facing near-term elections would be prone to dial back protections to boost their electoral chances, such as blocking a financial watchdog from shutting down bubbly, economy-juicing investments or…um, I dunno…toxic digital currencies whose primary use cases are crime and terrorism! At the worst, corrupt admins like this one will enhance their own coffers at the expense of public well-being every chance they get.

Perhaps normal presidents would resist such temptations. But giving this president such carte blanche is crazy. Name one firing or removal he’s made or attempted to make that was motivated by anything other than personal retribution, prejudice (it is not a coincidence that Lisa Cook is a Black woman), or personal greed.

In this regard, it does not feel like an overreaction to argue that these six “jurists” just took yet another broad swipe at democracy as we know it, undermining a critical power-balancing function. And it’s neither their first nor last foray into this realm, which, as Bharat stresses, they do with improvisatory glee, citing precedent when it suits them, ignoring it when it doesn’t.

How can they be stopped? This isn’t my lane, but it’s a critical policy question with which we must grapple. Impeachment of justices requires two-thirds of the Senate, so that’s an unlikely path anytime soon. Congress can, of course, pass laws reversing court actions, but that requires majorities including 60 in the Senate (or removal of the filibuster). And then there’s stacking the court to dilute the dominance of the conservative bloc.

Readers know that I do not generally gravitate toward radical solutions. But, if any of these ideas—e.g., stacking the court—seem radical, my only defense is that desperate times call for desperate measures.

If someone has a better idea, or if I’m overreacting, let me know. I notice Bharat doesn’t go this far, so perhaps I am. But I don’t think so.