I will be very interested in how the conservative Justices reconcile their desire to maintain Fed independence with their unwillingness to do so with other "independent" agencies. From your reporting, it appears that Clement wants to give them as many ways to avoid having to make that tortured case as possible.
IMO, the conservative Justices have boxed themselves into a corner and they will come to regret it. They should have acknowledged that Congress (and only Congress) has the Constitutional authority to determine how the government is structured. It is the President's job to execute within the structure that Congress dictates. Congress has the right to say, "Once appointed, an Executive Officer can never be removed until the end of their term." (Note: they have never said such a thing; they have only tried to limit removal to "for cause," whether specified or not). The power that the Constitution provides the President is to nominate the Officer of his/her choosing.
We are all going to be worse off for these rulings because it will fully politicize all of these agencies whose success relies on expertise and experience and the stability of the domains that they address.
Gabe has been validated here by Kavanaugh. Gabe has repeatedly written about the potential for one parties enthusiastic support of some mechanism to come back to haunt it when the other party regains power.
(Kavanaugh responded: “Well, history is a pretty good guide. Once these tools are unleashed, they are used by both sides and usually more the second time around.”)
I think the piece is excellent, even the legal analysis (speaking as a non-lawyer); not many political lawyers are going to cite the Niken factors and correctly articulate what they mean (balancing the equities).
I disagree, however, that Trump could have won, even if he had gone “full Taft.” There was no way even this Court was going to give our Toddler President, who breaks institutions and norms like an impulsive child breaks toys, the chance to wreck this economy.
Gabe, I think you err in thinking any of these Justices feel bound by text or precedent. They are going to reach the result they want by saying whatever they think sounds good enough. (For example, virtually every analysis of their rationale for carving out the Fed in the NLRB/MSPB removal shadow docket case has found it factually wrong, incoherent, illogical, etc.). Short of a conviction, Cook will stay.
At the time of signing the two mortgage applications, Ms. Cook was an economics professor at Michigan State. To hold that cause is restricted to post appointment behavior would be nonsense. Imagine if Ms. Cook was found to be a regular at Epstein’s island. I do not believe that her statements under oath in a mortgage applications were inadvertent. She was just trying to shave a few bucks off her mortgages. The high court could remand the case for “process” but as Justice Barrett pointed out, there is no prescribed process and holding that Ms. Cook was entitled to an interview with the President would be as absurd as the scenario that did take place as illustrated by the Justice Brown Q & A. Someone, and I think the ball is with Scotus, will have to “find” advertence (on the basis of another document that may or may not have been under oath) or find that Ms. Wood’s intentional behavior is de minimus--an acceptable level of pre office hanky-panky for Fed officials.
And, that will put them squarely on the hook for future Fed lawfare disputes. Perhaps that is where the responsibility should lie.
I appreciate that you go to these proceedings and provide first hand reporting on them.
I will be very interested in how the conservative Justices reconcile their desire to maintain Fed independence with their unwillingness to do so with other "independent" agencies. From your reporting, it appears that Clement wants to give them as many ways to avoid having to make that tortured case as possible.
IMO, the conservative Justices have boxed themselves into a corner and they will come to regret it. They should have acknowledged that Congress (and only Congress) has the Constitutional authority to determine how the government is structured. It is the President's job to execute within the structure that Congress dictates. Congress has the right to say, "Once appointed, an Executive Officer can never be removed until the end of their term." (Note: they have never said such a thing; they have only tried to limit removal to "for cause," whether specified or not). The power that the Constitution provides the President is to nominate the Officer of his/her choosing.
We are all going to be worse off for these rulings because it will fully politicize all of these agencies whose success relies on expertise and experience and the stability of the domains that they address.
Very much appreciate the write up, also the similarity in career paths to both Powell and Roberts.
Gabe has been validated here by Kavanaugh. Gabe has repeatedly written about the potential for one parties enthusiastic support of some mechanism to come back to haunt it when the other party regains power.
(Kavanaugh responded: “Well, history is a pretty good guide. Once these tools are unleashed, they are used by both sides and usually more the second time around.”)
Sounds like it wouldn’t be a surprise to see a 9-0 ruling in favor of Cook. Cue Trump fury…
I think the piece is excellent, even the legal analysis (speaking as a non-lawyer); not many political lawyers are going to cite the Niken factors and correctly articulate what they mean (balancing the equities).
I disagree, however, that Trump could have won, even if he had gone “full Taft.” There was no way even this Court was going to give our Toddler President, who breaks institutions and norms like an impulsive child breaks toys, the chance to wreck this economy.
Gabe, I think you err in thinking any of these Justices feel bound by text or precedent. They are going to reach the result they want by saying whatever they think sounds good enough. (For example, virtually every analysis of their rationale for carving out the Fed in the NLRB/MSPB removal shadow docket case has found it factually wrong, incoherent, illogical, etc.). Short of a conviction, Cook will stay.
At the time of signing the two mortgage applications, Ms. Cook was an economics professor at Michigan State. To hold that cause is restricted to post appointment behavior would be nonsense. Imagine if Ms. Cook was found to be a regular at Epstein’s island. I do not believe that her statements under oath in a mortgage applications were inadvertent. She was just trying to shave a few bucks off her mortgages. The high court could remand the case for “process” but as Justice Barrett pointed out, there is no prescribed process and holding that Ms. Cook was entitled to an interview with the President would be as absurd as the scenario that did take place as illustrated by the Justice Brown Q & A. Someone, and I think the ball is with Scotus, will have to “find” advertence (on the basis of another document that may or may not have been under oath) or find that Ms. Wood’s intentional behavior is de minimus--an acceptable level of pre office hanky-panky for Fed officials.
And, that will put them squarely on the hook for future Fed lawfare disputes. Perhaps that is where the responsibility should lie.