President Trump, when he hosted the television program The Apprentice, was famous for the line: “You’re Fired!” This penchant for firing people is something he brought with him to the presidency. Two cases recently decided by the Supreme Court question the President’s power to fire.
The Federal Reserve
Let’s start with the Lisa Cook case.
In August 2025, President Trump purported to fire Lisa Cook, a member of the Board of Governors of the Federal Reserve System. Cook was the first Governor to be fired in the central bank’s 111-year history. She promptly filed suit. She alleged that the attempted removal was not “for cause,” as required by statute, and that the President had in any event failed to comply with the statute’s (and the Constitution’s) requirement that she receive pretermination process.
Trump, President of the United States v. Cook, Member Of The Board Of Governors of the Federal Reserve System, et al.
Lisa Cook was a member of the Federal Reserve Board of Governors, and she was fired. This quickly led to a lawsuit where she alleges her removal was not “for cause.” Meaning she was fired for no reason.
The District Court issued a preliminary injunction to prevent her removal. This Court must decide whether the District Court’s order should remain in effect pending the conclusion of litigation over the attempted removal.
Trump, President of the United States v. Cook, Member Of The Board Of Governors of the Federal Reserve System, et al.
The question before this court was whether or not the District Court’s injunction, which claims to prevent President Trump from removing Ms. Cook, should remain in effect. Let’s start with a little history on the Federal Reserve.
[A]fter an era of ruinous financial panics, a bipartisan congressional commission recommended the creation of another central bank to assume “the serious duty of protecting public and private interests at times when they are imperiled.” … What emerged is today’s central bank—called the Federal Reserve System—first created in 1913, and then restructured in 1933 and 1935.
Trump, President of the United States v. Cook, Member Of The Board Of Governors of the Federal Reserve System, et al.
Problem number one, where in the Constitution is Congress authorized to create a central bank? According to Article I, Section 8, Congress does have the power:
To coin Money, regulate the Value thereof
U.S. Constitution, Article I, Section 8, Clause 5
The central bank does not coin money, the treasury does. So can a central bank regulate the value of money? Not directly.
The Federal Reserve consists of 12 “independent but affiliated banks,” one for each region. … These regional banks, called Federal Reserve Banks, are privately owned (and operated) by the commercial banks of the area.
Trump, President of the United States v. Cook, Member Of The Board Of Governors of the Federal Reserve System, et al.
Just where does Congress get the authority to create independent banks, much less a bank that is privately owned? The answer is, nowhere I’ve ever seen. However, are we really surprised by Congress making up the rules as they go along?
Above those banks sits the Board of Governors, which supervises the system with an eye to the economy’s “long run growth.”
Trump, President of the United States v. Cook, Member Of The Board Of Governors of the Federal Reserve System, et al.
Again, Congress doesn’t have the authority to regulate the economy, only to regulate interstate commerce, but that is not the stated role of the Federal Reserve.
The Board consists of seven members, each appointed by the President and confirmed by the Senate. … Like the directors of its three predecessors, the Federal Reserve’s Governors do not serve at the President’s pleasure—they instead serve staggered 14-year terms, and may be removed only “for cause.”
Trump, President of the United States v. Cook, Member Of The Board Of Governors of the Federal Reserve System, et al.
If Federal Reserve Governors are appointed by the President, just like every other executive officer, why do the courts claim they are different? The answer is, they’re not. Federal Reserve Governors are just like any other executive agency officer.
Federal Trade Commission
While the details are different, the fundamental question is the same: Can the President fire members of these so-called independent agencies? Let’s look at the Federal Trade Commission. Justice Sotomayor noted :
In 1914, Congress enacted the Federal Trade Commission Act, which established the FTC primarily to prevent “unfair methods of competition in commerce.”
Trump, President of the United States, et al. v. Slaughter – Sotomayor Dissenting
Again, Congress can only regulate interstate or foreign commerce, not commerce in general. Furthermore, the FTC has claimed numerous powers.
The Federal Trade Commission (FTC) is a regulatory agency that has accumulated vast rulemaking, enforcement, and adjudicatory powers. The FTC’s powers belong not to the President or his appointees alone, but instead to five Commissioners, each of whom serves for seven years and may be removed by the President only “for inefficiency, neglect of duty, or malfeasance in office.” 15 U. S. C. §41.
Trump, President of the United States, et al. v. Slaughter
Congress created the Federal Trade Commission (FTC) in 1914 in an attempt to protect against “unfair trade practices.” However, the FTC has been used to control not only interstate commerce, but all commerce. And again, President Trump had people he wanted fired.
Soon after President Trump began his second term in January 2025, he fired the FTC’s two Democratic appointees, Rebecca Slaughter and Alvaro Bedoya. He did not identify a cause under the statute. He instead told them their “continued service on the FTC [was] inconsistent with [his] Administration’s priorities” and that they were removed “pursuant to [his] authority under Article II of the Constitution.” … Slaughter filed suit against the President and other executive officials, seeking relief to restore her to office.
Trump, President of the United States, et al. v. Slaughter
Ms. Cook sued the President and other officials, seeking her job back. What was the basis of this suit?
She argued that her removal was ultra vires, violated the Administrative Procedure Act, and violated the Constitution.
Trump, President of the United States, et al. v. Slaughter
Her ultra vires, Latin for “beyond the powers,” claim strikes at a fundamental aspect of the government created by the Constitution. Separation of powers.
The District Court granted Slaughter’s motion for summary judgment. It acknowledged that Myers v. United States …, generally permits the President to remove executive officers at will, but explained that Humphrey’s Executor v. United States…, carved out an exception for the FTC. The court declared the President’s “purported removal” ultra vires and issued a permanent injunction barring interference “with Ms. Slaughter’s right to perform her lawful duties.” … A divided Court of Appeals denied the Government’s motion for a stay pending appeal, and this Court stayed the District Court’s order and granted certiorari before judgment.
Trump, President of the United States, et al. v. Slaughter
So the District Court granted Ms. Slaughter her injunction while the case makes its way through the courts, and the Circuit court did not quash that injunction Which brought the case to the Supreme Court.
Independent Agencies
Now that we’ve dealt with the specifics of these two cases, let’s look at the 800 pound gorilla in both cases: The question of independent agencies. In the case of the Federal Reserve, the court looks at banking.
The United States has a long tradition of independent central banking. The Nation’s first de facto central bank, the Bank of North America, predates even our Constitution.
Trump, President of the United States v. Cook, Member Of The Board Of Governors of the Federal Reserve System, et al.
SCOTUS is using a British bank that predates not only the Constitution, but the Declaration of Independence as justification for an independent central bank? That seems like a reach, especially when we see the history of the Federal Reserve.
Under the Court’s precedents, Cook was entitled to notice and some opportunity to respond before her termination. When Congress created the Federal Reserve, it gave Governors a set term in office and permitted removal only “for cause.” That form of tenure—a term of years limited only by removal “for cause”—carried with it a settled interpretation at common law, one that the Court had expressly adopted just a decade before. “[T]he rule,” the Court explained in 1901, is that “notice and hearing are essential” before an officer’s removal “where the term of office is for a fixed period.”
Trump, President of the United States v. Cook, Member Of The Board Of Governors of the Federal Reserve System, et al.
Notice, the court’s position is not based on the Constitution or even federal law, but the court’s “precedents.” When Congress creates an executive agency, does it have the power to set the standards for both hiring and firing? Yes, they can require the advice and consent of the Senate for an appointment (Article II, Section 2, Clause 2), but the Constitution says nothing about Congress having a say in the termination of said appointment.
What about the Federal Trade Commission? Gorsuch wrote in his concurrence.
Today, independent agencies do not just exercise executive law-enforcement powers. Congress has also delegated to them vast legislative and judicial powers, effectively allowing these agencies to make laws and decide disputes under them. And, after today’s decision, the President can effectively exercise all those powers too.
It’s a development that raises important questions, not least these: Would Congress have delegated so much power, including legislative and judicial power, to independent agencies had it known that the President would come to control them? How will Congress respond now—if realistically it can? And what, if anything, will this Court do about it?
Trump, President of the United States, et al. v. Slaughter – Gorsuch Concurrence
The more important point, at least as far as I’m concerned, is where did Congress get the authority to create agencies with alleged legislative and judicial powers in the first place, much less place them outside of the branches authorized to exercise those powers? Sotomayor made an interesting statement in her dissent.
For most of this Nation’s history, Congress and the President together have decided that some Government functions should operate at a distance from partisan politics.
Trump, President of the United States, et al. v. Slaughter – Sotomayor Dissenting
If the Constitution didn’t authorize Congress and the President to operate government functions outside of partisan politics, then doing so was a violation of the supreme law of the land and a usurpation of powers.
Today, this Court undoes centuries of political practice and concludes that all three branches of Government have been acting in open defiance of the Constitution all this time. Its conclusion is wrong. The text of the Constitution, along with its history, the longstanding practices of the political branches, and the precedents of this Court, make clear that Congress may limit the causes for which the heads of Commissions like the FTC can be removed by the President.
Trump, President of the United States, et al. v. Slaughter – Sotomayor Dissenting
The idea that the government of the United States has been acting in open defiance of the Constitution is not only nothing new, but shown time and time again in these writings.
Separation of Powers
Part of the issue with independent agencies is the separation of powers. The Constitution vests the three branches, and only the three branches, with unique powers. Congress legislates, the President executes, and the courts decide controversies. As Justice Thomas wrote in his dissent in the Federal Reserve case:
The Board, unlike the Federal Reserve Banks, is a federal executive agency that regulates much of the Nation’s economy. After President Trump was elected, he learned that Cook may have committed mortgage fraud, a federal crime punishable by up to 30 years in prison, shortly before she took office. He thus removed Cook from the Board. He did so pursuant to his authority to remove principal executive officers under Article II of the Constitution and a statute that expressly authorizes him to remove officers on the Board for “cause.”
Trump, President of the United States v. Cook, Member Of The Board Of Governors of the Federal Reserve System, et al. – Thomas Dissent
If the Federal Reserve Board is an executive agency, as Justice Thomas states, then it gets its powers from the President, as the Constitution states.
The Constitution vests “[t]he executive Power” in a “President of the United States of America” and instructs that he “take Care that the Laws be faithfully executed.” Art. II, §§1, 3.
Trump, President of the United States, et al. v. Slaughter
The only person vested with the executive power of the United States is the President. And since §242 says that the President can remove a governor for cause, without defining what types of cause would be considered sufficient, they truly left the definition in the executive’s hands.
The Government first contends that the President’s determination of “cause” is wholly unreviewable because the statute “commits the determination of cause to” the President alone. … The Court sees no such commitment. Whether a Governor should be “removed for cause” is a decision only the President can make (short of impeachment). 12 U. S. C. §242. But that does not mean that he may make that decision for any reason, or no reason.
Trump, President of the United States v. Cook, Member Of The Board Of Governors of the Federal Reserve System, et al.
§242 does say that the President can remove a Federal Reserve Governor for cause, it doesn’t say what that cause must be.
Another question raised by Ms. Cook’s case is whose “property” is a job, the employer’s or employee’s? Again, Justice Thomas wrote:
Cook sued in federal court to reclaim her office. She argued that her office was her “property,” which the President could not deprive her of without “due process of law.” …
Cook’s office was not her “property” because, in this country, government officials do not own the public offices in which they serve.
Trump, President of the United States v. Cook, Member Of The Board Of Governors of the Federal Reserve System, et al. – Thomas Dissent
Clearly public offices belong to the people collectively, not the individual holding that office. That’s not to say that, once appointed, they have a property in that appointment, but not the office.
Conclusion
Can we come to any conclusions from these two cases? The Court did. In the Federal Reserve case:
Held: The Government’s application is denied. … (a) The Government has not shown that it is likely to prevail on the legal arguments advanced in its stay application. … Acceptance of the Government’s position would in effect transform the Federal Reserve’s for-cause protection into at-will employment—an interpretive leap out of step with the statute Congress enacted and our Nation’s tradition of central banking protected from political interference.
Trump, President of the United States v. Cook, Member Of The Board Of Governors of the Federal Reserve System, et al.
So Donald Trump does not get his stay on the injunction and Ms.Cook keeps her job while the case moves forward. As for the Federal Trade Commission.
Held: The FTC’s for-cause removal provision is contrary to the separation of powers enshrined in the Constitution.
Trump, President of the United States, et al. v. Slaughter
In the FTC case, Donald Trump’s power to remove a commissioner, with or without cause, is upheld by the Court. If you find this a bit confusing, I agree.
Slaughter’s view is incompatible with our constitutional design. Although it is up to the Senate to decide whether to confirm those with whom the President would prefer to work, neither Congress nor the courts may saddle him with those with whom he cannot work. Subordinates who exercise the President’s power are subject to removal by him. Then, and only then, can they remain accountable to the President, and the President to the people.
Trump, President of the United States, et al. v. Slaughter
How is it that the members of the Federal Trade Commission serve at the President’s pleasure, but the Governors of the Federal Reserve do not? After all:
To fulfill his constitutional duty to ensure the laws are faithfully executed, the Court holds, the President must have the ability to remove principal officers who exercise executive power in his name. That includes those who run independent agencies like the Federal Trade Commission (FTC). … With all this, I agree.
Trump, President of the United States, et al. v. Slaughter – Gorsuch Concurrence
Then why not the principal officers of the Federal Reserve?
What we seem to have here is a fundamental difference in understanding the powers of Congress. Can they create agencies outside of executive oversight? And can they even create a central bank?
