The Supreme Court issued two seemingly irreconcilable decisions on Monday: one that authorized the president to fire heads of otherwise independent agencies created by Congress, and another that seemingly halted President Donald Trump’s efforts to remove Lisa Cook as a member of the Board of Governors of the Federal Reserve, also a body created by Congress.  

But Cook’s narrow win still hands this president and future presidents a clear path forward to take action that could intimidate members of the Fed in ways that threaten its independence. Instead of strengthening the Federal Reserve’s ability to protect its independence, the Court has handed the administration yet another tool for applying pressure on its members: the punishment of procedure. 

The differing outcomes of the cases — one involving Rebecca Slaughter, a member of the Federal Trade Commission, and the other involving Cook — cannot really turn on the differences in the statutes that created those entities and specify the grounds on which the president may remove their members.

In the case of Slaughter at the FTC, the relevant statute provides that she could not be removed except for “inefficiency, neglect of duty, or malfeasance in office.” In contrast (but not really in contrast), the statute that identifies the terms of office of members of the Federal Reserve and their grounds for removal provides that such officers may only be removed for “cause.” It is hard to draw a distinction between the words of these two authorizing statutes.

Instead of looking at the distinctions between the statutes, the Supreme Court’s majority in Slaughter’s case overturns a roughly 91-year-old precedent in Humphrey’s Executor v. United States, which held that Congress can create limits on the power of the president to terminate the officers of congressionally created agencies, on what the majority in the Slaughter decision describes as separation-of-powers concerns. Once Congress creates an agency and it carries out executive branch functions, the president can terminate any officer of that agency because the president holds plenary power over such functions and Congress is not allowed to hamper those powers in any way.

With respect to Cook’s termination, which the Court found to have been improper, the Court did not look at the language of the two statutes at issue in these two cases. Instead, it turned to the history of federal banking entities, like the existence of the First and Second Banks of the United States in the early days of the republic, to claim that monetary policy has been treated differently from other functions of the government over the years. Despite the similar language of the two statutes — laws that were passed just one year apart in the early 20th century — the Court discerned a difference outside those texts by looking at the nation’s history, given the importance of Fed independence in context of setting monetary policy for the nation.

For even casual Court watchers, this should come as a surprise. The Court’s current conservative supermajority often says that the role of the judiciary is to adhere to  the text of a statute when interpreting it. In addition, these justices also claim that it is not the proper role of the Court to look for policy reasons for reaching a conclusion on a statute’s meaning.

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While the Court’s majority opinion in Cook’s case did technically reject the Trump administration’s efforts to terminate her from her position, it laid out a clear path for the administration to do so in the future. It must provide her notice of the ground or grounds upon which she is being terminated and she must be given an opportunity to challenge those allegations. Once a final decision is made by the executive branch, she can go to court to challenge that determination. But there is nothing stopping the administration from commencing such a process, on any basis it wants, or no basis at all, just to harass and intimidate Cook or any other member of the Federal Reserve.

Ray Brescia

Ray Brescia is a professor of law at Albany Law School and author of the book “The Private Is Political: Identity and Democracy in the Age of Surveillance Capitalism.”