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In a way, I missed it yesterday. You may think that it would be a new big news when the US Federal Reserve Chairman tells Congress that he will stay at work whether the executive likes it or not.
Especially when he does it on television, in response to a question from Maxine Waters, the enemy of Trump.
I mean, does this guy * try * to get fired? He waves a red cape in front of the big orange bull here.
"I have the right to demote him. I have the right to fire him, "Trump said of Powell a few weeks ago, still upset that the Fed is not cutting interest rates to hurt the economy even further. The demotion seems to be the first option on his menu at the moment; Bloomberg announced last month that Trump was planning to remove Powell from his presidency and leave him as governor of the Fed. But let's say he wanted to pull the hatch. Could he send Powell back under the law?
Answer: depends. The Federal Reserve Act stipulates that every governor of the Fed must serve a 14-year service sentence "unless the president designates it earlier for just cause". What does "for just cause" mean? The courts have never had to deal with the issue but Probably does not mean "because the Fed will not do what the president wants to do in terms of monetary policy". The purpose of the law is to give the Fed a minimum of independence from politics. Let the president dismiss the president "for a reason" because, basically, his independent behavior would destroy the whole scheme.
But save. Is the Federal Reserve Act constitutional – or at least that part of it that purports to limit the power of the president to fire his officers? My instinctive reaction is no. Apart from the particular case of federal judges, who perform their duties under Article III and are assured of being appointed for life, so that they feel free to rule equitably in all the cases, it is difficult to imagine a reason for leaving an unelected * federal official to the service of any responsibility to anyone. Of course, Powell can be summarily removed – or at least he seems to me instinctively. The New-Deal Supreme Court ruled differently, however, in 1935, that laws restricting the power of the president to revoke the supreme staff of independent agencies like the FTC are constitutional. This is because independent agencies are quasi-legislative and quasi-judicial, the court said, anyway. But that's what Powell is counting on if Trump drops the ax. He will ignore it, go to court and point to the case of Executor Humphrey of 1935 as a winner for Slam-Dun. Unless Trump can show "cause", he loses. As simple as that.
We will see, however. Conservative legal thinkers have developed a strong allergy to the idea of "independent" agencies and agents in recent decades. Over the past 40 years, no judicial opinion has influenced constitutional conservative thinking as much as Scalia's dissent in Morrison v. Olson, the case of the "independent council" frequently mentioned in the constitutional comments on the Mueller inquiry. Scalia said that the president was supreme in his constitutional sphere; In terms of basic responsibility, there can not be a leader so "independent" of the president that he can not be removed from office. In addition, Roberts Court has been monitoring the extent of the administrative state in recent years and making unfortunate noises, Roberts' recent opinion in the census citizenship issue the independence of the agency. The conservative majority will not like the idea of an agency head, like the Fed president, able to tell the president to piss off if Trump wants to overthrow him. If Trump and Powell forced them to decide if Humphrey's enforcer was still a good law, what direction would they take?
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