We mostly place this here, as a “mile marker” — should the Supremes one day decide to revisit Humphrey’s Executor. I believe these present cases will do no such thing, but some very well-respected law professors have laid out how this is yet another ham-handed, and lawless attempt by Tangerine to make himself a king — beyond contestation by any one, or any other court(s).
We will not let that ever happen — but here is what flows logically, from efforts to kill that long stand precedent, at the Supremes (this is an Alito / Thomas PIPE dream, BTW).
Here you go — without any additional… ado:
…The Government has asserted here and in other recent litigation that, even if Humphrey’s Executor is not overruled, the “exception” that Humphrey’s Executor created to the rule of unrestricted presidential removal power “does not apply to multimember agencies that exercise substantial executive power, for instance by promulgating binding rules or issuing final decisions in administrative adjudications….”
That reading of Humphrey’s Executor would eliminate Fed independence. The Fed is a “multimember agenc[y]” that promulgates “binding rules.” See 12 C.F.R. §§ 200–299. And the same officials oversee both short-term interest-rate policy and banking and financial-stability policy. If the latter are subject to executive control, then as a practical matter the former will be as well….
Overruling Humphrey’s Executor would even more clearly undermine the Fed’s independence. There are foundational structural similarities between the Fed — a multimember commission designed by Congress on the model of the Interstate Commerce Commission—and the Federal Trade Commission, the multimember commission that was created the following year (on the same model) and that was the subject of Humphrey’s Executor.
Courts likewise jeopardize the Fed’s policy credibility by characterizing it as “a special arrangement sanctioned by history,” as Justice Alito proposed in a dissent last term. For three reasons, market participants may not believe that a historically based “Fed exception” will hold.
First, a carve-out based on the Fed’s supposedly distinctive history would rest on dubious historiography. Recent scholarship has shown that the first Congress, many of whose members helped draft the Constitution, saw no constitutional impediment to empowering commissions, at least some of whose members could not be terminated at will by the President. For example, the first Congress created a Sinking Fund Commission to repay the national debt through open-market purchases of U.S. securities. Its members included Alexander Hamilton, Thomas Jefferson, John Jay, and Edmund Randolph; and the President had no power to replace or remove several of them. Likewise, Hamilton’s plan for the first National Bank provided for “removal of a Director by the Stockholders”—but not by the President. There is no evidence that these arrangements were treated at the time as special cases, as opposed to ordinary exercises of legislative power.
Second, market participants would have reason to doubt the longevity of a Fed carveout if the judiciary continues along its path of continually scaling back agency independence. Absent a logical basis in doctrine, observers may wonder how long the “Fed exception” will last (after all, in this hypothetical world, the “Humphrey’s Executor exception” has not survived) Third, as the only remaining independent agency, the Fed will be far more vulnerable to presidential interference. For example, the President might challenge the Fed carveout (a course of action consistent with what the President is now doing for the NLRB and MSPB); and observers could conclude that such a challenge may succeed on grounds that future courts will articulate.
Even if observers expect such a challenge to fail, significant damage may be inflicted by the very process of litigating over the authority of Fed officials whom the President has attempted to remove or demote. The mere possibility of policy uncertainty while such litigation remains pending may be enough to immediately damage the ability of the United States to sustain price stability over time, resulting in near-term and potentially irreversible harm to economic growth and vitality….
Musk, Rubio and Trump feel the need to destroy everything they… cannot understand, or control.
Their first inclination is “let’s break it — and then wait to see if anything bad happens….”
That is a very, very poor rubric — for governing.
This above will not come to pass — bank on that. Roberts will corral Thomas and Alito.
O U T.
Powerline Lies... 