Trump v. Cook

General Sauer, this isn't central to the case, but it is an antecedent point.

On what basis are we to conclude that the Federal Reserve is an executive branch agency and hence that the President does have a removal authority?

Justice Thomas, it's an excellent question.

I would say two things about that.

The first one is, of course, that the Federal Reserve, there's an academic dispute about whether or not the Federal Reserve's open market operations constitute executive power or something else, essentially private conducts.

However, Congress has, over the years, kind of packed on traditional executive powers on the Federal Reserve.

So the Federal Reserve can issue regulations about reserve requirements and banks and even credit card fees and so forth.

So even if the court were to think that some of what the Federal Reserve does isn't executive at all, certainly there are traditional executive powers at issue here.

And therefore, we contend that this, even though we haven't disputed the validity of the Article 2 removal restriction here, this case is not transparent to Article 2.

And certainly, there's a statutory authority that's very plain here because it says removable for cause by the president.

So the statute is unambiguous giving the president removal power.

And we contend that at least there's...

What's kind of been packed onto the Federal Reserve over the years by Congress is clearly quintessential executive power.

And we acknowledge what the Court said in Wilcox, which is that it's a quasi-private, uniquely structured entity that stands in the distinct historical tradition of the First and Second Banks of the United States, and therefore we have not challenged the removal restriction in this case.

Could counsel, I

want to, before we get back to the legal questions, I want to start with a little factual one.

You began by talking about deceit.

Is what you said after that apply in the case of an inadvertent mistake contradicted by other documents in the record?

We would say yes.

For example, the President's removal order says either this is deceit or at least it's gross negligence.

And now, obviously, they've released their letter of counsel, not from Cook herself, you know, two days before the close of briefing here where they contended that it was an inadvertent notation.

But, of course, it's the sort of inadvertent notation that people could be indicted for, or at least the federal regulators are forcing you to buy back your loans.

It's a very significant representation that, to the lender, this is going to be my principal residence, because obviously you get a better interest rate if that is, in fact, your principal residence.

It suffices from our perspective, and therefore there's really no material facts in dispute, that the President determined that this is at least gross negligence, even if it was inadvertent or a mistake.

It's quite a big mistake, so to speak, in a key financial representation made in the context of interest rates.