The “But Muh Portfolio” carve-out

As Chris Geinder observes, the Supreme Court is almost certain to honor its ipse dixit and prevent Trump from firing Lisa Cook, although they might wait to actually rule on the merits:

President Donald Trump doesn’t like rules.

Last May, in a shadow-docket order, the U.S. Supreme Court essentially told Trump, “Fire anyone you want, but not governors of the Federal Reserve Board.”1

Announcing that “the Fed is different“ carve-out was all but a dare to a man like Trump, and, on August 25, he tried to fire Lisa Cook as a governor of the Federal Reserve Board, via a letter in a Truth social post.

As her lawyers wrote in filing a lawsuit to stop Trump’s effort, “This case challenges President Trump’s unprecedented and illegal attempt to remove Governor Cook from her position which, if allowed to occur, would the first of its kind in the Board’s history.“

After two quick hours of arguments on Wednesday, the Supreme Court appeared almost certain to allow Cook to remain in office at this time — although it could send the case back down to let lower courts to fully consider Cook’s case while she remains in office or to require Trump to provide Cook with an opportunity to respond to the president’s purported reasons for firing her.

It was “an extraordinary application” as Cook’s lawyer, Paul Clement, told the justices at one point of DOJ’s request.

With this president, many have been saying that a moment like this was inevitable. More than that, though, it was the combination of a president like Trump with this court’s recent executive authority expansion that brought us to Wednesday.

Despite that expansion, though, it was an extraordinarily difficult argument for Solicitor General John Sauer — due to the pushback and skepticism he faced from across the bench.

[…]

Sauer was attempting to argue three main points: (1) Cook has no right to a hearing to counter the allegations or standards applied; (2) courts have no authority to review Trump’s cause determination; and (3) courts can’t order reinstatement by way of a preliminary injunction and can’t issue final relief by way of mandamus against the president.

Justices across the board were skeptical of all three points, and, on top of that, questioned whether the Trump administration could show it would face irreparable harm necessary to get the “emergency” relief sought here, what the public interest is, or even why the case was being rushed forward in this way.

It was, in so many ways, an upside-down world when it came to the Republican appointees. On Wednesday, they understood the problems with the expansive executive powers they’ve been advancing with gusto throughout the time of Trump, they understood that not everything that the federal government does is “executive,” and they understood the need to let lower courts actually consider cases before the Supreme Court upsets the apple cart with a shadow docket order.

Most directly, of course, it was a sharp contrast the arguments over Trump’s effort to fire Rebecca Kelly Slaughter as a member of the Federal Trade Commission back in December. While Sauer had strong support from the justices that day, arguing that the president must be able to fire the heads of virtually any agency because “democratic accountability” is more important than Congress’s decision that an agency’s leaders should be protected from being fired by the president for no reason — particularly under the “unitary executive theory” advanced by many on the right.

All of that, the Republican appointees made clear on Wednesday, goes out the window when “monetary policy” is at issue. They were joined by the Democratic appointees, who have questioned the expansion of presidential power in many areas — and in all of these removal cases.

Needless to say, the arguments made by the Republicans throughout oral argument were 1)persuasive on their own terms, and 2)completely inconsistent with the broad UNITARY EXECUTIVE THEORY they’re about to apply to every other federal agency: once you start carving out exceptions the whole edifice collapses. But this isn’t about the law; this is “gutting the administrative state is one thing, gutting my capital gains while making Marco Rubio unelectable is going too far.”