Why the Supreme Court will overturn the Cook firing.

8 min read

Below is a partial from a Breitbart article by John Carney.

The D.C. Circuit Court of Appeals handed Federal Reserve Governor Lisa Cook a temporary victory Monday night, blocking President Trump from removing her while litigation proceeds. But the 2-1 decision—and particularly Judge Gregory Katsas’s forceful dissent—suggests that any Supreme Court review will likely go the other way.

The majority opinion by Judge Bradley Garcia reads like an exercise in judicial creative writing. It extends civil service employee protections to a principal officer of the United States, creating a constitutional right to hearings before removal that appears nowhere in the Federal Reserve Act. Judge Katsas’s dissent, by contrast, follows the textualist methodology that has defined the Roberts Court’s approach to separation-of-powers cases.

That methodological difference matters more than the specific legal arguments. And when you combine it with the historical evidence about what Congress actually intended when it wrote the Fed’s removal standard, the Supreme Court’s likely response comes into focus.

What Congress Actually Did in 1935.

Let’s begin with legislative record from 1935, when Congress deliberately chose a broad “for cause” standard over more restrictive alternatives.

Here’s what happened: In the chaos of banking reform during the Depression, Congress accidentally deleted the Fed’s “for cause” protection in 1933. For nearly two years, Fed governors technically served at the president’s pleasure. When lawmakers discovered the mistake in 1935, they had a crucial choice to make.

The Supreme Court had just decided Humphrey’s Executor v. United States, blessing tight removal restrictions for FTC commissioners: officials could be fired only for “inefficiency, neglect of duty, or malfeasance in office, but for no other cause.” Congress could have simply copied that court-approved formula into the Federal Reserve Act.

Instead, they chose something completely different. Senator Carter Glass—one of the Fed’s founding architects—was explicit about the balance they were striking. The Fed wasn’t meant to be hermetically sealed from politics. If the Board pursued policies “manifestly damaging to the public interests,” a president could “for cause stated in writing” dismiss members and “change its policy.”Glass specifically rejected the idea that presidents had to “prefer charges” like prosecutors. The requirement was reason-giving, not judicialization.

This wasn’t an oversight. Democratic lawmakers in 1935 were watching the Supreme Court systematically dismantle Roosevelt’s agenda. The last thing they wanted was to hand unelected conservative justices yet another tool to second-guess whether an elected president had “sufficient” cause to remove Fed officials.

The Constitutional Framework Judge Katsas Got Right.

Judge Katsas understood what the majority missed: Lisa Cook isn’t just any government employee. She’s a principal officer of the United States, appointed by the president and confirmed by the Senate. The constitutional framework for such officials is fundamentally different from the civil service employees protected by cases like Cleveland Board of Education v. Loudermill.

Loudermill, decided back in 1985, established that government employees with statutory “for cause” protection from termination have a constitutionally protected property interest in their jobs. The Supreme Court held that such employees are entitled to notice of the charges against them and some opportunity to respond before being fired. The case involved a security guard who was dismissed without any hearing after his employer discovered he had lied on his job application about a felony conviction.

This precedent is central to the Cook dispute because Judge Garcia’s majority extended Loudermill‘s employee-protection framework to Cook as a Fed governor, reasoning that her statutory “for cause” protection created the same kind of property interest. Judge Katsas rejected this extension, arguing that principal officers of the United States are fundamentally different from civil service employees and serve in positions of public trust rather than private property.

The Supreme Court established over a century ago in Taylor v. Beckham that “public office is not property.” Cook’s attempt to claim a constitutional property interest in her Fed seat runs headlong into that precedent. As Katsas noted, even the Kentucky governor in Taylor had strong tenure protections—a fixed four-year term and removal only through impeachment—yet the Court found no constitutional property right.Judge Garcia’s majority tries to distinguish Taylor, but the core holding applies directly: high-ranking government officials serve in positions of public trust, not private property.

The fact that Congress gave Fed governors statutory removal protection doesn’t transform that trust into a constitutionally protected property interest requiring hearings.

Why Noah Feldman Gets Fed Independence Backwards.

Bloomberg’s Noah Feldman argued this week that without judicial review, the Fed’s “for cause” protection becomes “meaningless” and Fed independence “would effectively end.” This gets the constitutional design exactly backwards.

Feldman assumes judicial review is necessary for any meaningful constraint on presidential removal, but the 1935 evidence shows Congress explicitly rejected that model in favor of political checks and transparency requirements. When lawmakers restored the “for cause” provision, they had the Supreme Court’s Humphrey’s Executor decision fresh in mind—complete with its court-supervised removal procedures—and consciously chose not to follow that template.

The textual evidence demonstrates that “for cause” isn’t toothless without judicial review. It requires reason-giving and creates Senate and public accountability. The fact that no president had attempted Fed governor removal in 112 years before Trump suggests this was remarkably effective protection.

Feldman misses the structural safeguards that actually protect Fed independence. The institution was designed to rely on architectural features—14-year staggered terms, Senate confirmation for replacements, and a multi-member board—rather than judicial personnel management. If a president overreaches on “cause,” the confirmation process provides the proper venue for pushback.

Why the Supreme Court’s Methodology Favors Trump.

Judge Katsas’s dissent reads like a primer in conservative legal reasoning. He cites Black’s Law Dictionary from 1910 and 1933 to establish the original meaning of “for cause”—defining it as “some cause other than the will or pleasure of the removing authority, that is, some cause relating to the conduct, ability, fitness, or competence of the officer.”

That definition is crucial because it shows how broad the 1935 Congress intended the standard to be. As Katsas noted, this “for cause” language gives “the President more removal authority than other removal provisions” like “good cause” requirements or the stricter “inefficiency, neglect of duty, or malfeasance in office” standard that other agencies use.

The mortgage fraud allegations against Cook clearly fall within this broad historical definition—they relate directly to her “conduct” and “fitness” as a financial regulator. Katsas emphasizes that Congress deliberately chose broader language than other removal statutes, and he focuses on what the statutory text actually says rather than policy arguments about Fed independence.

Compare that to Judge Garcia’s approach, which emphasizes “the myriad unique features of this case,” relies on “equitable balancing of competing interests,” and creates procedural requirements that appear nowhere in the statute.

The current Supreme Court has consistently preferred Katsas’s textualist methodology over Garcia’s policy-driven analysis. In separation-of-powers cases especially, the Court has moved toward mechanical application of constitutional text rather than case-by-case balancing tests.

Recent precedent reinforces this pattern. The Court has stayed multiple injunctions blocking Trump’s removal of officials at independent agencies, suggesting deep skepticism about judicial micromanagement of executive personnel decisions.

The Supreme Court Is Likely to Side with Trump.

When this case reaches the Supreme Court—as it almost certainly will—the conservative majority will likely find Judge Katsas’s reasoning more persuasive than Judge Garcia’s novel constitutional theory.

The textualist justices will note that Congress had the Humphrey’s Executor template available in 1935 and consciously rejected it. They’ll cite the 1910 Black’s Law Dictionary definition of “for cause” as evidence of broad presidential discretion. And they’ll distinguish Cook’s situation from civil service cases by emphasizing the constitutional framework governing principal officers.

The Court’s recent pattern of protecting executive removal authority, combined with their textualist methodology and skepticism of judicial personnel management, all point toward reversal of the D.C. Circuit’s decision.

Judge Garcia’s majority opinion may have given Cook a temporary reprieve, but it created constitutional doctrine that the Supreme Court is unlikely to embrace. When the justices weigh the 1935 legislative history, the text of Section 242, and the constitutional framework for principal officers, Trump will likely prevail.

The Fed’s independence was never meant to depend on judicial supervision of presidential personnel decisions. It was supposed to rely on the structural protections Congress built: Senate confirmation, 14-year terms, and a multi-member board. Those safeguards remain in place regardless of how this case ends.

What Congress wrote in 1935, Judge Katsas understood in 2025. The Supreme Court will likely agree.