A Note on the Unusual Procedures Surrounding the Expiration of Federal Reserve Gubernatorial Appointments...
...that I repost here, for reasons...
The Governors of the Federal Reserve have—uniquely—14-year terms putting them as far beyond any “unitary executive” control by the presidency that fantasists like C. Harvey Manfield and his epigones who wish the founders had sought to establish not a chief magistrate by a king, a tsar, a supreme sole autocrat might imagine in their drug-addled minds.
More interesting, right now, is that the congressional founders of the Fed envisioned that their terms might be considerably longer: §10 of the Federal Reserve Act says that: “Upon the expiration of their terms of office, members of the Board shall continue to serve until their successors are appointed and have qualified…” (12 U.S.C. §242).
Were I General Counsel of the Federal Reserve today, I would issue an opinion. It would state that:
Donald Trump’s purported act to cause the premature expiration of Lisa Cook’s term “for cause” triggers this provision,
thus removal requires not just that Trump find “cause” but that he nominate and the Senate confirm a successor,
hence there is no need for any action to enjoin Trump;
any case is not yet ripe until the Senate confirms a successor,
any successor must then sue to require that Lisa Cook move out of her office,
failing Senatorial action, Lisa Cook remains a Governor of the Federal Reserve as long as she wishes, even unto the Last Trump, the Last Day, and the Resurrection,
perhaps she remains a Governor beyond: we know little of monetary-policy institutions in the New Jerusalem, after all.
And I would further state that there is thus no “case or controversy” which any federal court could use to elbow itself into the situation. There is no facially-qualified successor. Hence there is no one with standing to sue to evict Lisa Cook from her office.
“This is stupid!” you say.
I might agree, with the proviso that it is a lot less stupid than John Roberts’s rationale for his Medicaid decision in NFIB vs. Sibelius was.
And it is infinitely stupid a lot less stupid than the Four Fascists and the Two Cowards claim on their Shadow Docket that although “the Constitution vests the executive power in the President, see Art. II, §1, cl. 1, [so] he may remove without cause executive officers who exercise that power on his behalf, subject to narrow exceptions…” one of which is “the Federal Reserve [because it] is a uniquely structured, quasi-private entity that follows in the distinct historical tradition of the First and Second Banks of the United States…”
<https://substack.com/profile/16879-brad-delong/note/c-149419205>