Trump v. Cook

Decide or gross negligence by a financial regulator in financial transactions is caused for removal. In a two-week period in 2021, Lisa Cook submitted mortgage applications for two properties in Michigan and Georgia. In both, she told the lender that within 60 days, she would occupy that property for one year as her principal residence.

As President Trump stated in removing her, it is inconceivable that she was unaware of the first commitment when making the second, and it is impossible that she intended to honor both.

Such behavior imputes Cook's conduct, fitness, ability, or competence to serve as a governor of the Federal Reserve. The American people should not have their interest rates determined by someone who was at best grossly negligent in obtaining favorable interest rates for herself. Cook's conception of cause contradicts the terms longstanding meaning and overrides Congress's deliberate decision not to impose the inefficiency neglect or malfease and standard here. Her claim that she has a property interest in her public office was roundly rejected by the founding generation as pernicious in her Republican system of government.

Her claim that the statute grants her notice in a hearing contradicts this court's case is requiring very clear and explicit language to restrict the president's removal power.

And any such process would be futile because for months, she has never personally disputed this substantial truth of the material in question.

Finally, the remedy she obtained, a preliminary injunction counter-managing the president's decision and reinstating her to office violates longstanding principles of equity and was conspicuously non-existent in our nation's history from 1789 until 2025. I welcome the court's questions. General Sauer, this is in central to the case, but it is an anaceden point.

“On what basis are we to conclude that the Federal Reserve is an executive branch agency and hence that the president does have a removal authority?”

Just as I was actually in question, I would say two things about that. The first one is of course that the Federal Reserve, there's an academic dispute about whether or not the Federal Reserve's open market operations constitute executive power or something else, essentially private conduct. However, Congress has over the years kind of packed on traditional executive powers on the Federal Reserve, so the Federal Reserve can issue regulations about reserve requirements and banks and even credit card fees and so forth.

Or to think that some of what the Federal Reserve does is an executive at all. Certainly there are traditional executive powers in issue here and therefore we contend that this even though we haven't disputed the validity of the article to remove restriction here, this case is not transparent to article two.

And certainly there's a statutory authority that's very plain here because it says removable for cause by the president, so the statute is unambiguous giving the president removal power.

And at least there's what's kind of been packed on to the Federal Reserve over the years by Congress is clearly quintessential executive power. And we acknowledge what the court said in Will Cox, which is that it's a quasi-private uniquely structured entity that stands in the distinct historical tradition of the first and second banks of the United States and therefore we have not challenged the removal of restriction in this case. And so before we get back to the legal questions, I want to start with a little factual one, you began by talking about deceit.

“Is what you said after that apply it in the case of an inadvertent mistake contradicted by other documents of the record?”

We would say yes, for example, the president's removal order says either this is deceit or at least it's gross negligence and now obviously they've released their letter of counsel not from coker itself. And this is a briefing here where they contended that it was an inadvertent notation, but of course it's the sort of inadvertent notation that people could be indicted for at least the Federal regulators are fortunate by back alone. This is very significant representation that to the lender, this is going to be my principal residence because obviously you get a better interest rate if that is in fact your principal residence.

So it suffices from our perspective and therefore there's really no material facts and dispute that the president determined that this is at least gross negligence, even if it was inadvertent or mistake.

“So to speak in a key financial representation made in the context of it.”

I suppose we can debate that with how significant it is in a stack of papers you have to fill out when you're buying real estate.

In other words, the determination of cause is unreviewable, right?

“So it doesn't make a difference whether this was an inadvertent mistake or whether it was a devious way to get a better interest rate.”

Doesn't matter for you, right? Let me put it this way. We would contend there's judicial review kind of at the out of parameters of cause whether that something goes a conduct fitness ability or competence at all. But once you're within that and we clearly are here, then there would be difference to the press and we'd drive that from least three sources.

That's actually language cause without further qualifications itself when it's playing language.

A broad, you know, conferral authority on the president himself. Secondly, we think that places with that within the line of cases going from Martin against not through Dalton against specter and beyond pain and so forth. Where the president has broad discretion in the court is consistently held in those cases where the president's granted this broad discretion that that's not traditionally reviewable. Obviously in Marbury itself that they disregard pages 165 and 166 of Marbury, but even if the court doesn't accept that, there's a further layer here, which is that they've considered this is an ultra-virus challenge in this court held last term.

That the standard of review and an ultra-virus challenge is very, very high for them and very deferential to the president itself. The other tales with our Dalton and Martin argument as well in an ultra-virus challenge, the burden on would be on them to show that what the president did is entirely in excess of his delegated powers and contrary to a specific prohibition in the statute. So it's kind of three ways to get to the same conclusion there, which is that once the president's made a determination, it clearly does relate to conduct fitness ability or competence for that office.

Then at that point, there's no work for the review in court to do, the traditional discretion to the president's determination would kick in. Were any of these questions, except the constitutional questions decided by the DC circuit? The DC circuit, and it's stay up and in a relied exclusively on this order.

“No, this is not an opportunity to be heard. That's what it said, the Constitution required, correct?”

It said that, yes, it's not the property of the Constitution. That's the only issue it addressed. It did not address all of the things you've talked about today. What the definition of causes, including whether it includes pre-office conduct and how much, or what nexus there has to be between pre-office conduct and post-office conduct. One could imagine that what would constitute for cause during office would be different than what would happen pre-office.

If, although, said if something was known before confirmation, you likely can't rely on it. You haven't quite said that up or here, but logically pre-office has a different temporal connection. Then the court didn't address whether the president's determination of cause is reviewable and under what's standard. Ultra-virus seems to me to be whether or not, and that's all our cases I've ever said about ultra-virus situations. Whether another entity, another adjudicular entity, has jurisdiction or we do.

And three, whether cook has a right to notice and hearing under the statute and what that means.

What remedy of any cook can seek now or finally, in the case.

You ask us today in this emergency application to provide to finally decide these issues. I want to know why, meaning the president by your own admission, cannot fire someone for disagreeing with his policy. You've conceded that. Correct? Correct. So it's not as if keeping her is going to twort any right he has to run the department because he has none. He's conceded that on policy he does not.

Now, it's not as if she's been incompetent, negligent, or committed now fees and while in office. This is something pre-office. So keeping her in office is not causing an immediate harm to the agency.

“Number three, we know that the independence of the agency is very important.”

And that that independence is harmed if we decide these issues too quickly and with not due consideration.

knows the most sense to the public's confidence and to the world's confidence about the due process of law.

“Explain to me why the president's harm is greater than the public's greater than the federal reserve who deserves to have people acting that have been in office.”

Three, why we should disrupt, as we said in Wilcox, the disruptive effect of repeated removals and reinstatement of officers. Why shouldn't we wait till the end of this case? We're all the issues are clear and where we make a final decision as to whether she should have been removed or not.

Let me start by addressing that last point.

A of an unprecedented preliminary injection restoring a principal officer of the United States after being removed by the president. And it's unprecedented that any federal reserve officer has ever, has ever been removed.

“So the unprecedented nature of this case is a part of what the president did not what was coked it.”

We qualified by the recognition that there have been situations where governors have been incredibly accused or found to engage in financial and proprieties and those governors have resigned. Financial and priorities that are quite analogous to what is at issue in this particular case, but I want to make the fundamental point that in Sawyer this court held that a preliminary injunction was not available to restore an officer Sawyer was a preliminary injunction.

That's true, but weeks later in Drego, we permitted an officer who was still there to stay.

So that was a case of reinstating someone. We have plenty of cases that say keeping someone in place who hasn't left yet is different in issuing a preliminary injunction. I think the court's refer to the delgado case and that particular case. It was a there it was a rid of man Davis to an inferior there the clerk to recognize the defacto officers when there is dispute about who had been value elected to be the city commissioner or whatever the statute was. And this court, this is the final judgment in man Davis to say you have a ministerial duty to recognize the defacto officer that is totally different than issuing a preliminary injunction.

There is no such thing as final man Davis. In fact, Judge Friendly wants to scribe that is the starkest of sole assistance. There is no such thing as preliminary rid of man Davis, Judge Friendly described that as the starkest of sole assistance. Well, this court held in Sawyer is there is no jurisdiction to issue a preliminary injunction restoring a public officer to office. And that's never left.

She's still there. What the court framed it's holding as there is no jurisdiction over the appointment or removal of inequity of public officer. So it does not turn on whether or not she's sort of you know stoutly staying in office or whether that she's gone and that suit later that doesn't nothing. And I ask you a question that's also related to the stay factors. Just as a sort of my or brought up the public interest here. And we have immigrants raised from economists who tell us that if Governor Cook is if we grant you your say that it's a trigger of recession.

How should we think about the public interest in a case like this? Two things to say about that one is if you look at what actually happened here, she was removed on August 25th and the stock market went up for the next three days. The natural experiment, so to speak, about whether or not the predictions of doom will really be implemented. Surely that if investors are a generator or whatever the argument is, you would have seen that in August 25th and you did not see that in fact you have these surprised.

Well, I'm sure if you there to say that I don't want to be in the business of predicting exactly what the market's going to do.

“I agree and that's why I think the court ought to consider all those amigas briefs in their sort of, you know, predictions of doom with a fairly drawn decide.”

What has to do is way essentially have those amigas briefs in reflection of very elite opinion, elite opinion and risk general sour. I don't want to be responsible for quantifying that risk. I'm a judge not an economist, but if there is a risk doesn't that counsel in this day posture when the equities are at stake caution on our part. I think the court has to weigh that risk against the risk that there will be a permanent damage the Federal Reserve's credibility from allowing an officer a governor to remain an office who's engaged in this kind of behavior.

We also engage in some way of our own about how serious we think the misbehavior was in the state posture, not, and I'm not talking about once the case was here on the merits, but, you know, if she were accused of murder or something like that, if we're talking about something that was really an infamous crime.

What to take into account is the close nexus between the conduct and issue here, and the duties of this incredibly powerful position that has sweeping powerful authority over the entire United States economy. The governor set interest rates for ordinary Americans all across the country, and here there's the appearance of having played fast and lose or at least been grossly negligent in getting favorable interest rates for herself.

“The more near Americans that comes out of that is the question for the court, and how do you weigh that against the elite opinion that's reflected in the immediate risk?”

Obviously, President Trump's voice speaks to that concern of ordinary Americans.

I think with the balance of the equities what the court ought to do is look at the merits which are extremely strong for us, and then look at its traditional and can stay factors. When the government is a party, the repital harm to the government emerges with the public interest, and here we have traditional repital harms, injuries to the presence ability to remove a principal officer in the United States. When you look at, for example, the original evidence we've talked about in the decisions of 179 when everybody said,

"Of course, the president engaged in suspensory removals, and we have a preliminary injunction that is conspicuously non-existent in your words in Casa, you know, for 225 years of Americans." That's how it should be done.

“I guess I think you may have to be a little bit more specific with respect to the irreparable harm that you are alleging, because really, as Justice Barrett sort of indicated, we are in a state posture here.”

The question is, to what extent do we believe that the president or the public is harmed by allowing Ms. Cook to remain in her position for the tendency of this case?

I'm not sure that we have evidence here that Ms. Cook is an immediate threat to the public that she's been in this position for a long time. The kinds of things that you're pointing to as just as sort of my ear indicates are not related to conduct while in office. So it would seem to me that on the stay factors, you would have to say more about the harm of leaving her there for the next however many months while this case is being litigated. I'm not talking about the court's power to do it. I'm talking about assuming we have the power for the moment. I appreciate that you say we don't.

But assuming that we do, the question is, what is the harm of allowing that injunction to remain because she's in office now and would just continue? Among other reasons, we assert grievous irreparable injury to the public perception to the Federal Reserve of allowing her to stay in office. They argue that this is going to cause the markets to tell you what evidence related.

“You have evidence related to the public perception or is this just the president's view?”

The president has made that determination, it's reflected in the language of the dismissal order and as a... The president makes that determination based on evidence presented to him in the context of some kind of hearing related to Ms. Cook's conduct. The Federal Reserve Governor who sets interest rates for the entire country appears to have engaged in proper behavior. No, no, I understand what you're saying. You're raising it so low.

You're repeating the allegation. What I'm asking you is the evidence that supports that allegation. Similarly, when an allegation is made about someone's misconduct or whatnot, there's an opportunity for that person to present evidence for the other side to present evidence. And even if the president was the final arbiter of this one would expect that he would do so on the basis of evidence. So what I'm trying to understand is, what is the evidence that has been presented and considered with respect to Ms. Cook's alleged misconduct?

What is the removal order that the true social post? No, it's the August 25th letter. I think it's Dr. One dashboard and the district court. But the removal order addresses that. The evidence is you have mortgage applications within two weeks, see each other that make clearly conflicting representation. Was Ms. Cook given the opportunity in some sort of formal proceeding to contest that evidence or explain it?

Not a formal proceeding, she was given an opportunity in public because in the world, like she was supposed to post about it. Is the opportunity to be heard that her saying was afforded to her in this case?

Yes, and she said plenty of opportunities in the ensuing months where we've had ongoing litigation where there's never been a personal statement addressing that or how we're justified.

General, let's let's just suppose with me, I have patheticly for the moment that the court read the act to require notice and a hearing.

I would point to what the court has said in Vermont, Yankee, which this court is very reluctant to dictate procedures to even federal agencies in here.

I think they rely heavily on louder mail. Obviously we dispute there's a notice in here in the requirement, but louder mail requires only very minimal flexible procedures. In this quick into the Roosevelt room sitting across a conference table listening for, I don't know how long, how much evidence is a lawyer required and then making a decision, could that suffice you think of? What would be required? If the court were to conclude that, it would have to be entirely dependent on the executive to decide, and that's the case on the case. Certainly, I think the question points out a great weakness in their argument, which is that the word cause does not include notice in a hearing.

On its face, Congress knows how to provide notice in a hearing. It did so in the NLRA one month before, and it reenacted the four cause restriction here in 1935, and because it's not there, the court has nothing to provide guidance on that point.

So just a meeting across a conference table finished with your fire?

“All louder mail says that you have to be told of what the basis is of the allegations against you, and give a chance to tell your side of the story.”

We believe that was provided in the five day window between the three social posts and the removal letter. And then you've mentioned on remedy that there's no such thing as a preliminary injunction for men, Davis, and I just wanted to hear you a little bit more on that you mentioned, Judge Friendly. Please thoughts. The contention of the amicus briefs is that you could rely on Delgado to sort of bypass the holding of Sawyer and say that men, Davis can provide the essence, essentially the same relief as a preliminary injunction. I guess the argument would be you'd have to man, Davis, everybody. So all the members of the other members of the board to treat her as she still is, as she still a governor, all the staff to treat them as, as if they were still a governor because Delgado held where there's the city clerk who can't decide who is valid.

The city commissioner, the court held a good man, Davis that clerk to recognize that they fact of officer in the interim, and that doesn't work for a couple reasons. First of all, this is a preliminary injunction.

Men, Davis would have to be a final judgment, and that's what Judge Friendly said. There is no preliminary, men, Davis. That's the start as a solosystems.

To understand you general going back to Justice Gorsuch's first question, to continue to maintain the fact that there is no requirement for notice and opportunity for a hearing. Is that right? Absolutely yes.

“And why is not just because it's not stated in the statute?”

It's not stated explicitly in the statute, and Congress knows how to provide that. If you don't have to refer earlier in the similar statute and has done so in many many statutes. It doesn't do that. Yeah, I thought that with respect to the neglect and efficiency standard. You do recognize notice and the hearing for that, but not in this statute. Why the difference? Because neither is stated. In both shirtlif and rag in this court expressly recognized that that phrase, IMM would or specified causes would bring with it notice in a hearing.

And that's part of the court's holding in shirtlif as I read because there was an IMM standard.

“And there's a removal with no notice or hearing in the court held well clearly this wasn't for IMM.”

Because it was so to me. That that was a mistake in holding, because it since it's not stated in the statute, there's no need for notice and to hear him. Because the old soil argument that we reject as to just simply cause is we admit much stronger when it comes to specified causes. So we don't think the court necessarily got it wrong and rag in when it said, Specified causes mean that notice and the hearing are provided, because the case law, it's the one point in which they sort of background case law does seem to be unanimous.

Which is what they contended, the case law all goes in one direction, you have their own sources saying they're all over the map, they're directly contradictory. But the other part of your position is that in this case, without where you don't have the inefficiency neglect standard, the president need not provide any notice, the president need not provide any hearing. The president just really has to say, "Miss Cook, you're fired." He has to provide a cause, we contend that there has to be a cause, something that relates to conduct, fitness, the vicious ear competence.

We can see the count be for policy disagreement or for no reason at all or at will. The general sour, if you're correct that courts do not have the authority to reinstate a removed officer, why are we wasting our time wondering if there's cause or not?

How is that consistent with the time and energy being spent on determining if there's cause?

“We agree that that's alternative basis, as we say in a brief, that's a reason enough to roll on our favor and we have a holding of the court's Sawyer.”

This tradition, I was referring to earlier, of recognition that runs from the decision of 1789 to all the opinions and mayors that's alluded to and weiner and so forth, recognizing the presence, power of interim or suspensory removals. So we agree that's an alternative, that's an independent basis for us to prevail. Well, it's an independent basis, I guess it's not independent in the sense that if that's right, the other one is irrelevant. It seems to me that if there is any level of cause and you indicate that there is some level of cause, right, when you can't be right about the idea that a court's cat or anybody who's been removed to be reinstated.

There is a traditional remedy to reinstate wrong, we don't dispute, there's a traditional remedy to reinstate wrongfully remove officers, which is mandatimists, but they don't argue mandatimists here in the reason they don't argue mandatimists, they face a number of insurable obstacles to prevailing in mandatimists.

There's going all the way back to Marvin against Madison, you can't mandatimists, the president is discretionary acts.

In addition to that, there is no preliminary rate of mandatimists as Judge Friendly pointed out in the seven circuit as hell. In other words, and keep in mind that the standard in mandatimists would be clear and indesputable right to relief. In fact, this is an ultra-vera's challenge, what the standard is exactly opposite. So there's a circumstance in which a court can order the reinstatement of a wrongly removed officer. But there is a traditional remedy, mandatimists.

Here, obviously, be quote we're wrong to if there were two competing claimants, but it was just the one that would be mandatimists.

And they have not argued mandatimists are trying to find their way around mandatimists because the standards to prevail under mandatimists are insurable and they clearly cannot meet them.

But generally, I'm sorry, Justice Thomas. Justice Alito.

“Is there any reason why this whole matter had to be handled by everybody?”

By the executive branch, by the district court, by the DC circuit, in such a hurried manner, you began by laying out what you claim to be the factual basis for the four cause removal. But no court has ever explored those facts. Are the mortgage applications even in the record in this case? I know that the text of the social media pose that screenshots of the mortgage applications is in the record, but I don't recall the paperwork that self is in the record. So when this was before the executive branch, it was handled in a very cursory manner.

The district court decided the case on the ground that four cause doesn't mean anything that happened before the person took office. And I'll question Mr. Clement about that when he's when he stands up. The DC circuit decided it on two grounds. The same as the district court, and that there's a property interest in holding the position of the governor of the federal reserve board. Am I right on that? Not exactly the DC circuit, state panel relied only on the property.

“And that's in support of all. Well, did it not hold that that's what four cause means?”

My recollection is that the DC circuit, the Garcia opinion in the DC circuit relied solely on louder mail and the due process property interest, which is baseless for the reason that we say. And now the district court relied on the twin grounds, both at louder mail, rationale, and also the. All right, I stand corrected on that, but those are the only two issues that we're decided by the lower courts. That's correct. Just to show me your. I have a couple of follow-ups on Reagan and Shirley.

You're relying on those two cases for your proposition that cause could be whatever the person. The authority decides, but Reagan and Shirley were very careful in holding that the only reason that was true was because there would be life tenure involved. Otherwise, it was very careful to distinguish its holding from cases in which there were a tenured position and there was a four cause provision. So you're extrapolating, correct? I disagree with that. We read Reagan differently. If you have that, those two.

We can both look at it. Don't talk about fixed term at that point. I think the direct. But the court recognized the rule, and I'm quoting from the case, quote, where causes of removal are specified by statute as also the term of offices for a fixed period.

So, if I move on from that, I go back to Justice Alito's question of you. I thought and and the chiefs. I thought there was a factual dispute. I understood it.

Ms. Cook's letter, her attorneys letter, and quite frankly, I've never understood that a letter from a lawyer wasn't a representation by a client.

This is a new standard I've never heard of before in an informal proceeding. The president can go by social media and one believes that that is adequate notice under law. I'm not impressed to think a letter from a lawyer is not noticed from the adversary, but we can move on from that. The letter from Ms. Cook says, the Michigan bank gave me permission to rent because I got a job in Washington.

I had to move from New York when I got my job in Washington, and frankly, I renovated by apartment the year before, thinking I would be in New York for the rest of my life.

I had to change and the bank in Michigan, at least they represent, will say there was no deceit of them. As to the mortgage issue in Atlanta, Ms. Cook's lawyer represents that the paper submitted to the bank disclosed the fact that this was a vacation home.

“It may not have an experience to see. If they didn't experience deceit, then your left with gross negligence and the question becomes, is it grossly negligent to make a mistake on a mortgage application?”

I don't know that gross negligence has ever risen to the level of a mistake, so there is a factual issue. Now the question is, who resolves that issue, the level of review of that decision, and those are all questions that's just a solito point to two, have not been addressed below, correct? What was addressed below, is that I think, exactly what? Just have to try to say to notice in a hearing, by the circuit court, and for cause being something, it has to be only what's at the time in office. I do agree with you. Common law did permit pre-office conduct to be considered, but only if for an infamous crime. I don't think this rises to an infamous crime.

If I could say two things about that, first, on the narrow point about whether or not a letter of counsel can create a factual as if you're in this context, that's the holding of this court in Cod against Velgar, where the court said that suggestions of counsel are not enough, it's the party who asked to do it, so there were representations of counsel there in the court held that, that was-

This is an informal proceeding. Legal proceeding. Yeah, the point was there had never been any representation by the party in any context, formal or informal, and that's exactly what we have here.

“That's the one point. I can't remember the second point. I was going to make a response to that.”

General, can I take you back to the Chief Justice's question, the remedial question, the last one, because in response to him, you said kind of no worries, because there's a traditional remedy of man-demus, but then pretty much in the next sentence, you said, but of course man-demus doesn't apply here because it's the president. So, I mean, when we're talking about the president's removal powers, you're essentially saying that the only remedy doesn't apply, and that brings you back to the Chief Justice's question, which is, well, if there's no way to reinstate, what is this Cod's requirement amount to?

The Congress adopted a policy choice to impose on the president a cause requirement and not an I&M requirement, and it's just a solid appointed out in the CFPB funding case. This was a hard fought compromise.

“But I think there's some kind of cause. It doesn't have to be inefficiency neglect malfeasance, but there is some kind of cause that's necessary. You said that yourself in response to my last question, that the president has to stay to cause.”

If then you're saying, well, even if he flunks whatever that requirement is, there's no way to reinstate the person, there's no way to use the man-demus root. What is it amount to?

There's no way -- there's no way to test that. There's no way either that the person can come in and have that meeting in the Oval Office or the Roosevelt Room or wherever else, saying, I think you're really getting rid of me for policy reasons.

There's no way for a court to evaluate that. The president just has to say, "I'm removing you for cause. You committed gross negligence."

There's no way for all the reasons we discussed in our briefing that that confers broad discretion on the president. Now there's an out of perimeter that is subject to policing by judicial review, policy disagreement, no cause at all, and so forth. But that is good, confers broad discretion on the president. But even if it was a denobo review here, gross negligence in a very important financial transaction, that is this close nexus with what -- The president has to say what the gross negligence is or can the president just say, "I'm removing you. It's not for policy. It's for gross negligence."

We have, I think, conceded in the briefing that that sort of determination would be subject to judicial review, because he hasn't specified the cause. Now the case law -- that's a borderline case. The case law goes in different directions on that. Garland, one of the cases that we cited, I brief kind of goes the other way in a way that would be stronger for us. But we haven't disputed that. In this case, that it was -- there was no cause provided at all, then that would be subject to judicial review and likely an invalid removal.

“That's a source, it's just a follow-up on Justice Kagan's questions. I think in them was the question, if you think man-demist doesn't apply to the president at all ever, how could you ever test the things you say can be tested?”

He has to remove for cause and can't remove for policy disagreements. That might be one that the president says, "I remove you for policy disagreements."

Let's say, could happen. You would say still, man-demist is not available, I think. Wouldn't you? I think we would, now that might be a closer case, because the man-demist's statement is standard is clear and indisputable, right? When we have conceded that policy disagree would not be available. Actually, that might be a case where man-demist might be available with the caveat that how would Marbury apply to that? Because you cannot man-demist the president in a discretionary decision, and so baked into our jurisprudence from the dawn of this court.

We could say that the president does, but you can't. You just say that's not a discretionary decision. If the president says, "I fire you for policy reasons," that that would be outside of his discretion and therefore subject to man-demist.

“That would be ministerial within the media and Marbury, and then I think that that standard and Marbury kind of gets ported into the standard and shiny clear and indisputable, right?”

It would be clear and indisputable and therefore could run against the president in that case. Hypothetically, I'd have to do a lot more study or take in a firm position on that. Is this coming up? For President Purpose, as you accept the constitutionality of the foreclosed removal provision for the Federal Reserve, and that is what protects the independence of the Federal Reserve. What in your view is the purpose of that independence? It protects the government exactly reflecting the plain text of the statute, protects the governors for removal for policy disagreement or for no reason at all.

What is the broader purpose of that? Well, there is a number of reasons that are discussed by there, and I think not disputed by us, which is that there is a long tradition of having this exercise of monetary policy.

“It'd be exercising the independence of executive influence, and we don't dispute that that's what Congress was doing, and that statute, and again, we have not disputed the validity of the foreclosed removal restriction here.”

Why is that independence important in your view? I don't we don't dispute the importance of that for many of the reasons that they're a Mickey say, but we emphasize that there's a balance struck here.

This is not a ironclad, you can never be removed. There is a cause removal.

But on that, your position that there's no judicial review, no process required, no remedy available, very low bar for cause, but the president alone determines. And that would weaken if not chatter, the independence of the Federal Reserve that we just discussed. We disagree with that, and I would point to the point that the point you made this a low bar for cause.

But it would be in the view of the president, the president who might have a policy disagreement, and there's no judicial review, and the president can just define it on his or her own.

“The strongest traditions in this court's jurisprudence is the sort of presumption of regularity to the president's action that has applied to this provision. I think effectively for 112 years, and it continues to do so.”

Let's talk about the real world downstream effects of this, because if this were said as a precedent, it seems to me just thinking big picture.

What goes around comes around all the current president's appointees would likely be removed for cause on January 20, 29, if there's a Democratic president or January 20, 23.

And then, we're really at at will removal, so what are we doing here? What is, you know, we started, that's why I started with what's the purpose of the independence in the foreclosure removal.

“Except all these no procedure, no justice review, no remedy, you know, that's what's going to happen, I think.”

And then, then where are we? So, do you dispute that that is, you know, the real world effect?

I can't predict what future presidents may or may not do, but the argument strikes me out. And I think that's what, that's what we have to make sure we're, again, that can't drive the decision necessarily. We have to be aware of what we're doing in the consequences of your position for the structure of the government. The two points there, I dispute the characterization of these tools have been unleashed. The president has always had this tool to remove governors for, for, for financial and proprieties, not the history is, including twice in the last four years, governors who have incredibly accused the financial and proprieties have resigned, have enforced the president to remove them.

And I think the more sort of fundamental point is that cause is a standard that is quite differential to the president, Congress consciously adopted that instead of a more restrictive standard like INM, that was for, by all appearances, a legislative compromise between two camps, one of which wanted to give the president complete control.

“I agree with you that there's a balance here, and so I understand that, I'm not saying there's no interest on the other side here, I got that.”

But again, thinking about the real world and the brief of the former governors of the Federal Reserve, I'm your position again, because you say, well, the president can't say it's for policy reasons, which may be what's really, again, in, not talking about the current situation and other situations in the future, what's really driving it. The vice is a president too, come up with what, as the Federal Reserve, former governors say, trivial or inconsequential or old allegations that are very difficult to disprove, it incentivizes kind of the search and destroy, and find something and just put that on a piece of paper, no judicial review, no process, nothing you're done.

I mean, again, what are we doing when we have a system that incentivizes that and leads to that? Now, again, you can dispute that you think it's going to lead to that. And again, I'm not talking about the facts, this case, I'm taking, I don't know the facts of this case, I'm taking no position on that. This court has since Martin against Mont running all the way through Trump against United States, Trump against Hawaii, a whole host of decisions accorded consistently afforded the president, the presumption of regularity in his action and consistently declined to probe a president's actions for either for their subjective motivations.

And so in the hypothetical question that you pose, that hypothetical future president should also be afforded at the very same, that sort of difference and, and. That leads, I mean, that that brief that Amika's brief sites Justice Scalia's descent in Morrison, which is always a good place to look for a wisdom and the concern that you're putting all these resources because he can't say it's for policy, but all these resources, let's find something anything about this person. And, and, and, and, and then we're good, and by the way, there's no judicial review, so we're really good.

And there's no administrative process. And again, I disagree with that. I think that that argument, that presumption, when it applied to the president, contradicts a very, very two very strong.

And what's the fear of more process here?

In the sense that process protects you in the sense of helping you make better and more accurate decisions, and it helps process helps you then convince people on the outside.

“They've made a considered thorough appropriate decision. What's the concern about more process?”

Well, I don't think we think that process is necessarily bad. In this case, there's two reasons why, you know, processes like the right answer among others. One is in Vermont Yankee. This court said we're not going to dictate procedures to executive agencies, for sure. I should dictate procedures to the president. Our condition is that there already has been a process. There was a social media post that said, look, these two documents contradict each other, and the response was to fines. So there was a chance to tell it in the words of a louder mail to tell her side of the story and just wasn't, it wasn't a dump.

And if there hasn't been, if for months since then, any clear explanation other than it was the invert notation, it's just the kind of invert notation that ordinary people can be indict it for.

And again, none of my questions are comments about the facts of this case. I don't know the facts of this case, but thank you. Justice Barrett. I want to pick up on that question about why, and just as Kevin has said, why are you afraid of a hearing of what would there be, that would be wrong with process. I mean, you spent a lot of time litigating the case. You know, it's gone up from the district court to the court of appeals, and now we're here. And if there isn't anything to fear from a hearing, and if you have the evidence, why couldn't those resources have been put into a hearing,

I understand you think that you don't have to provide one either because of the statute or because of the due process clause, and that's fine.

“But, and thinking about a reprobable harm to the government, if one way to one step you could take to reduce your reprobable harm to show that there really was causes, just to have a hearing, why not?”

I don't think it's a question of resource allocation. It's our position that adequate process was already provided.

So it's a question of discourse, or it has to go further, and then go further and go further again, all without any legal or constitutional authority in our view. We think that imposes a reprobable injury on these things. I told you to go further, but not that much further. I mean, okay, so there's the truth social posts, and then burden on her to come back in five days and I understand that's your position. But, you know, just as much positive sit down across the table in the Roosevelt room, where the president provides Ms. Cook, Governor Cook, with the evidence and waits to hear what her responses gives her a chance to defend herself.

And it just wouldn't be that big a deal. It seems if that's enough. And it's an intrusion on the executive branch that dictate what procedures it ought to provide in the president. And our position is he has provided process. He's provided adequate process. If the district court said, "Well, that wasn't quite good enough. Try again." And then we try again. There's a word says, "No, that wasn't quite good enough. Try again.

We have gone left for Mon Yankee way in the rearview mirror." Do you concede that if the statute wasn't I and I'm statute, then under shirtlif you would have to provide process? No, it isn't hearing. Yes. Yes. We don't dispute that. And I want to go back to one of Justice Kagan's questions. She said, "Well, in shirtlif the statute itself didn't say that you got notice any hearing for I&M, but the court said that you did. Here, the statute does say cause. Cause isn't as specific maybe as I&M, but it does identify the grounds that the president must have for removal.

Why shouldn't we do the same thing with the shirtlif court did and say that, "Well, as we said in shirtlif, when a statute specifies the grounds for removal, there must be notice in a hearing given." Because the case law, presumably shirtlif, when it said that as to I&M, notice you get notice in a hearing,

“was relying on what we don't dispute as far as I can tell, pretty consistent strain in the case law that that's what that means.”

It gives you specified causes like that I&M, give you notice in a hearing. The case law and cause is the opposite. I mean, look at the lower court opinion, Reagan. The court claims opinion where they say cause does not mean you get a notice in a hearing. And we cite a strong line in the background case law as well. No, they say there's some cases going the other way. However, the notion that they are making an old soil argument. They're saying, "Oh, in order to avail on that, it has to be so well settled and clearly established

if there really wasn't a dispute about it." And you look at, I can't emphasize enough what, for example, the Tuddle Michigan Law Review article from 1905, that's heavily relied on, for example, in the manners of Mika's Reef that they rely heavily on in their supplemental brief. It says the case law is all over the map and all of these issues. That, that treaty says the courts differ on almost every conceivable part of this question. The only point of consistency is that specified causes I&M, which also as we can see is the holding of the court in shirtluff,

whereas cause just doesn't mean that. We've said all these cases that they dispute and there's this battle about what are the 19th century case law. I mean, cute in mind, in the context of that battle, they bear the burden of making the old soil argument. Does this Jackson? Just following up really quickly on that point, isn't the case law all over the map because the statutes were different?

and to have identified ones, for example, that have a fixed term, but allowed removal only for cause, or had a fixed term provided for removal at the President's discretion, or it didn't have a fixed cause of a fixed term, et cetera, et cetera. There's like a series of permutations, and in those different circumstances courts,

which are actually reviewing this, so that in the first instance, and it makes me question your view that court couldn't review it.

But setting that aside, we have a bunch of cases that come out different ways because the statutes are different. Professor Manning says, "Manners says that when you drill down in this situation with respect to fixed term and removeability for cause, as of 1913, it was well established, everybody agreed that that required least notice and an opportunity to be heard." So what is your response to that? We're looking at a particular statute that does two things.

Fixes the term and has four cause. She says, "Everybody said, got to have a notice in a hearing."

“So why is the government saying different right now?”

>> Respectfully to her, that contention is plainly incorrect.

So if you go to our supplemental brief, page nine, footnote four in the accompanying tax, we cite all Rick, and then 13 more cases in that footnote for the proposition that four cause is not required notice in the hearing. >> Her argument is, gee, I'm talking about that, it's a combination. >> Yes, the combination. >> Four cause.

>> Four cause. >> And they speak in a fixed term. So when I look at those cases, I'm going to find that combination and people are all over the map, you say? >> By our count in seven of the 14 cases, it's a combination. There's also a fixed term.

So that argument just, again, that brief, read the total article that it relies. So heavily on and you'll see this argument, there are nowhere near meeting the burden of an old soil.

“>> All right, and that's what they need to change the plain text of the statute.”

>> Well, let me talk about the plain text of the statute in light of its purposes. You explored who just this cabin on, I appreciated this, that Congress put the four clause provision in there for a reason. And you conceded that the reason was to try to ensure the independence of the federal reserve, that we were, we Congress, Congress had decided that this particular agency, because of the sensitive information and policy determinations that it has to make, needs to not have the pressure of having all of its governors be fireable at the whim of the president.

So in goes for cause removal for that purpose and you agree. So I guess what I'm trying to understand is how does reading the statute, to give the president broad discretion, which you've said many times, with respect to his removerability of these governors. How does that further the aims of the statute?

“>> It directly further the aim of protecting them for removal for policy disagreement, which would be the key to that.”

>> No, but that, but you, but you've conceded that the aim is actually broader. The aim is to ensure that this institution is not being pressured by the executive branch, by the president, with respect to its determinations that people can't just be fired because the president wants them to.

And so when I'm now asking is, if we read for cause to ultimately reduce to,

the president can pick some fact that has nothing to do with their actual tenure and office, something that happened way before and use that and say that's cause and it's not reviewable, and he doesn't have to show any evidence and doesn't have to give the person a hearing. Basically, the president is just making the determination that Congress apparently didn't want him to have the power to make, because they put four cause in the statute.

So how do you reconcile your vision of presidential discretion with a statute that was clearly designed to limit the president's discretion in this regard? >> It was designed to limit the president's discretion just as far as the plain text of the statute goes. The statute was a hard-fired compromise between two influential and insistent camps as Justice Alina recently wrote. One of them thought there should be complete presidential control of the Federal Reserve. The other thought it should essentially be a private entity.

They met in the middle with a removal standard that protects governors from removal. >> But it only protects them in so far as the president's determination about cause is reviewable and based on actual evidence that has been established.

>> It also provides a legislative determination that governors could be,

“and perhaps should be removed if they engage in financial and proprieties that undercut the Federal Reserve's credibility in the eyes of ordinary Americans.”

>> All right, one more question just about this idea of the district court's power. You've talked a lot about the man-demus being remedy, but as I read the cases in the law, man-demus was the remedy for courts of law that were being asked to reinstate removed officers. And this was back at a time in which courts of law and courts of equity were separate. We now have a fused system.

Courts of equity could always be asked to step in and prevent the removal of this person.

To be sent to person was claiming that they were not removable, say because the statute says they could only be removed for cause. A court of equity could be invited through this claim to come in and pause the circumstances, not allow this person to be removed until the courts of law had actually litigated the claim of removableability. I think that's the world we're in. This was the very first question that just to sort of my your asked you.

“And so can you just explain why you're insisting that man-demus is the only thing available to the district court in this situation.”

When this is an equitable decision in the interim in the way that I discussed.

It is the preliminary injection is an equitable determination and it's one that the district court plainly understory your plainly lack jurisdiction to enter. And again I also in addition to the holding of this court in Sawyer that a temporary restraining order resupported to restore a public. Right I said my my question posits that we're not talking about restoration. We're talking about Ms. Cook's application to the court before she was terminated to prevent being terminated because her claim is that I'm not removable.

That's an equitable determination. It's being made in the interim. She's not yet been removed because the court prevented that with its preliminary injunction. Courts if equity did that all the time.

“So I don't understand why you're saying it's inappropriate for that to be done now.”

Sawyer in addition to that as I alluded to before there's this strong tradition recognizing the president's authority to engage in suspensory removals. That's the final determination and that alone is enough to point out that there's no no power to do the preliminary injunction that was entered here. Thank you. Thank you general. Mr. Clement. Mr. Chief Justice and may it please the court.

The federal reserve is a uniquely structured entity with a distinct historical tradition. Part of that historical tradition is an unbroken history going back to its founding in 1913 in which no president from Woodrow Wilson to Joseph Biden has ever even tried to remove a governor for cause. Ever present temptation for lower rates and easier money. Even in this case the president recognizes the unique status of the fed by neither arguing that the removal restriction is unconstitutional nor asserting the ability to remove a fed governor without cause.

Despite that recognition the some total of the solicitor general's arguments would reduce the removal restriction in this unique institution to something that could only be recognized as at will employment. No procedural due process before removal. No judicial review after removal. No preliminary injunction to preserve the status quo in a conception of cause so capacious that a parent misconduct or gross negligence suffices. There's no rational reason to go through all the trouble of creating this unique quasi-private entity that is exempt from everything from the appropriations process to the civil service laws just to give it a removal restriction that is as toothless as the president imagines.

But if that removal restriction has real substantive and procedural bite then this emergency application should be denied. There is simply no reason to abandon over a hundred years of central bank independence on an emergency application on a preliminary record. I welcome the courts questions. But if there was such concern for independence could the removal statute have been written as others have been written to require a hearing and review. So it could have been just as Thomas, you know, the realm of interpreting statutes could have should have would have, right? But I think that you have to give faithful interpretation to what Congress actually did. And I think if you understand the original public meaning of four cause and either 1913 or 1935, I do not think it was as capacious as my friend suggests.

So if there were a Fed governor that insisted on being a director of Chase Manhattan, I think that would be removal for cause. And then on the context of the hearing and I think Justice Cagan already alluded to this. But there are all these statutes that I and M that don't mention a hearing and there are many statutes to talk about cause and don't mention a hearing. Now it's true that the NLA which was passed a month before did specify a hearing. But I think it would be a mistaken statutory interpretation to make that one expressed reference to a hearing sort of disable all the other old soil arguments with respect to all the other institutions.

I think there's a very strong old soil argument that whether it's I and M or four cause that means that you get noticed in an opportunity with that said with that said what would the hearing look like and what would the review look like. So I agree with General Sauer that the president would have a fair amount of discretion in how he or she wanted to fashion that hearing. One example we have historically is President Taft and he sort of gave the removed officials the full taft and it was notice opportunity for a hearing before an impartial tribunal that you know,

“serendipitously included future justice frankfurter and then he I mean so that's kind of the maximum that the president could give but we're not suggesting that you need to give the full taft the president would have a lot of flexibility on that.”

I think you asked what the review would look like and I think that actually sort of gets to the heart of where the president's incentives would be.

I think the more process that the president provides the less room there's going to be for judicial review and judicial second guessing of factual determinations.

So if a president wants to give the full taft I think the scope for review of factual determinations by that kind of tribunal would be very narrow but I do think there would be legal review. I'm not sure I understand exactly what you want hearing for if your argument is inadvertence. It doesn't seem to me that there's much you can say factually other than that you can't say well this is why we did it and this is okay and all that it's just an inadvertent mistake.

Now there obviously are a lot of legal questions to be addressed but again those are questions for the court a court and not the basis for a factual hearing.

“You know I think you have one sentence to say it was inadvertent mistake.”

Well I mean Mr. Chief Justice I think in a case where the president's going to say that it's an inadvertent mistake is enough and the potentially removed officials going to come in and say it was an inadvertent mistake then you're right. I think the hearing's not going to matter that much now in the in the real world where you have no precedent for this kind of removal I think if there were notice an opportunity for hearing there might be an opportunity to not just present the factual evidence but to also make the case and given these particular facts about this particular inadvertent mistake that is an a basis for removal.

Well I think you're talking about the legal arguments though.

The arguments we're hearing today. I think that's right Mr. Chief Justice and I do think those could be made in a preliminary way in the process that was provided by the executive branch. But as I alluded to I do think on the substantive question of what's for cause there needs to be judicial review and I think there needs to be judicial review of that question for all the reasons that were alluded to in the various colloquies because if there's no judicial review then this is all kind of a joke.

“We can we can sit here and pause it that well this would be for cause and that would be for cause but none of it would be matter because there'd be no judicial review on the question of what is for cause.”

What the district court held was that it must relate solely to in office conduct and you defend that with one caveat that if the office holder is in data later for In data while in office for pre office contact then that might be caused for removal because a person under and date it and diamond wouldn't be able to devote full attention to the job. But other than that you defend the district court's holding is that correct. We do defend the district court's holding on that and I would understand that is the rule for all the statutes that have I in it.

Another thing when under a four cause removal standard there is no pre office conduct that could constitute cause. That is my front line response I happen to have a backup argument which is if you pick up the common law then you would pick up.

Regis pattern of sexual misconduct that would not be for cause that would not be caused for removal. So what I would say just as a leader is I don't think that would be I and M and so if I'm going to stick to my front line position then that would not be for cause it would certainly be a basis for impeachment and I think in understanding why we've had I and M for at least 90 years.

“I understand your position how about if after the person assumes office videos are disclosed in which the office holder is expressing deep admiration for Hitler or for the clan.”

I can only imagine where these microphones are going to eventually go to your position. I'm going to stick with my position and I'm going to say that's an official that would be impeached in a heartbeat and the fact that they would be impeached in a heartbeat is going to cause them to resign in half a heartbeat and this has not proven a problem. For better for worse whatever you think of hungry's executor. We've had 90 years of what's your backup argument. My backup argument is the common law standard just as so to my or alluded to it which would be that it is that there's a removal basis for an infamous crime of the kind that is disabling for public office and you know and a common law it would it also required a conviction.

So it's it's an exception it helps me with a couple of these hypothetical that doesn't help me with justice Alito and doesn't help you there's no exception for the Hitler video. You have a backup to the backup impeachment it's the ultimate backup here this is not a situation where you're being asked you're you know have to tie your argument and pass that impeachment doesn't cover private conduct you obviously disagree with that. Well I certainly see this actually kind of makes the point about judicial review right I mean I can agree with that by the way it's been already right but but but but what I what I absolutely agree with is the Walter Nixon case says

That there's no judicial review of the impeachment determination in the end so whatever the house and the Senate ultimately determined.

I mean they can make constitutional law too and they can determine whether private conduct is or is not out and if they say and and with these hypos I mean you know we can we can go down the road to the hypos and they'll get worse. I am a back up to the backup to use justice course it just term would be the infamous but you don't need a conviction. Right I know absolutely and of course seems to solve your answer a lot of the difficult hypos correct. But the reason I want to spend at least a moment answering some of the hard hypos is not because I'm a massacist.

It's just because those are got to be the answers under INM. You'd your answers that those are funneled to the impeachment process.

“That's right and that's that's the way INM has worked for 150 years and I think it would continue to work it hasn't proven a problem in practice.”

But I'm not resisting very hard the backup to the backup on that because I don't think we're close and of course look all of these are hard questions. Which is all of the reasons why it's kind of crazy to decide this on emergency applications.

Yes although a million hard questions in this case and it is an emergency application and very difficult questions either no precedent or very conflicting or very uncertain body of precedent.

But there are two two things we're decided by the lower courts. One that what I just explored district court said it's got to be in office conduct nothing that happened before person took office counts. And then the DC circuit said that your client had a property interest in her in her office. And therefore a due process right.

“Does that right she had a property interest in being a governor on the Federal Reserve Board?”

So I think there's a perfectly reasonable argument for that but I also think that there's a better argument that's a constitutional avoidance argument. And what the DC circuit did in a per curium opinion is sort of an example of what happens when you're trying to rush all of this which is you jump right to a constitutional holding when there may be a perfectly good constitutional avoidance statutory holding there. And I think we've now had a couple of months and so a bunch of amicus briefs to ventilate some of these things.

And I think you get with that ventilation you get an understanding that there is a very good statutory argument. And I do want to talk about why wouldn't that be a basis for sending it back to consider these arguments in the first instance.

If you are prepared to defend the due process argument and perhaps you're front line argument on that things that happened before employment are categorically and always off the table.

If those two decisions which to be fair were of course issued under under a time constraint might have some flaws. Why shouldn't it go back to reconsider it you've advanced a lot of new arguments here. So if your friends on the other side.

And I think likelihood of success in the merits in this context doesn't mean just a likelihood of showing that the two grounds that were seized on in the quick briefing below are wrong. But that they're actually right and I think the briefing here has done two things. I think it showed that we're right. I'm not abandoning my front line arguments, but I love my backup arguments. I think they are very strong.

And I think it shows the sort of you know the problems that happen when you try to decide some of the most important issues of constitutional law in this kind of rushed way.

Can I ask you about the man Davis question? Why isn't man Davis the appropriate avenue here? It is an appropriate avenue at the end of the case. Even at the end of the case, though, I think this is consistent with Professor Bray says in his article.

“Even at the end of the case, I don't think you have to leap to man Davis. I think you can have a declaratory judgment.”

Let's put a declaratory judgment issue aside because we can talk about man Davis for a second. Assuming there is such thing as a preliminary injunctive relief for man Davis, which I'm going to ask you if that's a thing. First of all, and second if it were, wouldn't the standard you'd have to show a likelihood of success be the likelihood of success under the man Davis standard. So a couple of things, I mean, I don't like hearing preliminary man Davis any more than Judge Friendly Davis. I don't think it's the right way to think about it. I think it's preliminary relief to preserve the status quo, or if you want to be more specific.

The preliminary relief to preserve a de facto officer in their office while the case proceeds, and that is a really nice preliminary injunction or man Davis. I know with those two buckets, so I'm not sure I'm familiar with the third one you're describing.

What I'm describing is a preliminary injunction. I'm saying it's not a preliminary man Davis.

What wouldn't it have to be though, if your cause of action, war man Davis, and let's just suppose that's what it is, it would be preliminary injunctive relief because you have the likelihood of succeeding on under the man Davis standard. I would have fought. Well, perhaps, I mean, two things about that. One is, I'm not sure in this kind of man Davis posture. I don't think I agree with General Sauer that the standard is the standard you would have in like a Cheney situation. I do think this kind of original man Davis as the remedy in this particular situation.

I would resist the idea that that's sort of the standard more appellate man Davis standard. That's a debate even with all the briefing we've had. We haven't had a good chance to really duke it out on that.

“But I would say that's part of the reason I resisted the idea that you have to go to man Davis because I do think you would have declaratory judgment.”

I do think declaratory judgment. I asked you to put that aside for them. No, and I tried to, as long as I could, then I give off. Then to answer your question, I really had to get to declaratory judgment. I would like to say this is an issue. The DC circuit has thought a lot about.

And there's a particular case worth reading the swan against Clinton case. And that's a case where they kind of wrestled with this question about, can you, you know, would you have man Davis against the president at the end of the day? Can you direct the president?

And there's a great concurring opinion by Judge Silverman where he basically says, look.

The judiciary is creative and clever enough to figure out a way to fashion in junk to relief against the lower federal officials. And that solves the problem about having the relief run against the president. And the reason that the DC circuit has wrestled with that in a couple of contexts,

“and I think the Chief Justice alluded to this, they were really right about that.”

Then you'd have to wrestle with this at the beginning of the case as to whether there's any redressability at the end of the case. And in the swan case and even in the Severino case, the DC circuit is said there's not a redressability problem. We can figure out a way to direct the relief at the lower government officials. And that will be sufficient on to the day. And that happens at the end of the case, right?

After the whole thing has been litigated and some court, perhaps even this court, decides the removeability question. The president does not, we would say, have the right to remove her. And then we go to remedy, and the question is, is there a mandamus or not? The reason why I thought mandamus wasn't on the table right now is because we're not there.

We're in the middle of the case. We haven't, no one has made a definitive determination about the president's right to remove her. The question now is just in the interim. While that issue is being litigated, what happens? And that's about the equities, that's about whether it's going to be more harmful to leave her in the position than not.

That's what I thought this motion was about.

And I do take justice course, it's just question, which is at the end of the rainbow. All there is is mandamus, and you can't have mandamus against the president, then at this point you'd say, "What's your likelihood of success at the merits?" And you would say, "There's no likelihood of success in the merits."

“But I think, as I alluded to, even before that, you'd say, "Is there any redressability here?"”

The way I'm sorry, what would that be a merits issue? You'd have no likelihood of success on the merits, you'd just have no remedy. You would win on the merits, the merits are that the president wasn't supposed to remove you.

But you would lose because there's not, lose ultimately in terms of not having a remedy, right?

Well, I mean, you could draw the distinction that way. I think if you have no remedy at the end, you probably have the redressability problem at the front end, which is why the DC circuit has addressed this on a number of bases. These are not emergency application decisions. These are decisions of the DC circuit.

They obviously don't find this court, but they are the considered judgement of a court that's dealt with, you know, like, about, with all the removals they're been, and there haven't been a lot of them, but with respect to other officers.

“So, you know, I think that's pretty good authority.”

Well, what would judicial reveal in this context look like? I mean, this is not a question about what the standard is. It's more a question about, is there a kind of difference to give to the president? How does that difference operate whatever the standard is? Sure.

So, I would divide between sort of factual questions and legal questions. As to the factual questions, I would say that there's going to be a degree of difference and the degree of deference depends on the degree of process that's provided. So, if the president wants to go full-tapped, I don't think the courts are going to be in a position

to second guess the factual determinations.

If the president wants to do something more informal, that's -- he's entitled to do that, but then I would think there'd be more of a scope for, you know, having more hearing, more process in the judicial form. On the question, the legal question. I would say in a post-loper world, there's no difference to the legal questions

and the courts are going to have to decide, ultimately, what are the boundaries, the meets and bounds of four cause.

“And the only other thing I would add is, I think that you're going to want to”

erect meaningful standards of cause because, you know, there's kind of two options here. You could either have judicial review that spends a lot of time looking into pretext of the president. And that just doesn't seem like a good thing for the courts, for the president, or anybody. Or you could erect relatively demanding standards of cause.

And that's going to, I think, obviate the need for that kind of pretext inquiry. Yeah, so general sour is version of cause, which is, it's not policy. It's something other than policy. Why isn't that the backup to the backup to the backup? Well, because it would kind of destroy the whole point of having an independent central bank in the Fed.

And it just seems to me like at some point. I mean, we're all here on the assumption, for this case, that the Fed is a uniquely structured institution with the distinct historical tradition. And so if that's true, and then you tick through the statute and see all the things that Congress did. I mean, including, you know, Congress wasn't just trying to tick the threat Fed and keep it

from sort of being unduly influenced by the president when it came to rates right before an election. It did the same thing to itself by limiting the power of the person for this institution. And then you go through and, you know, just every provision of the statute is trying to treat this unique institution differently. And then at the end you have four cause, which, I mean, could mean what general sour says. But if it means which general sour says, then the whole enterprise was a lot of trouble for nothing.

On the future judicial review and what that looks like would the witnesses testify in court or is it done on the record established by the executive branch or does that maybe depend? I would say it depends on what kind of process was provided by the executive and look, I agree with general sour. This court's not going to dictate like, you know, here's Robert's rules, you know, have at it. But I think this court can do something useful, which is essentially to create an incentive for the executive to provide something that's a little bit more protective, a little bit closer to task than something incredibly informal.

That's sliding scale is extraordinarily unhelpful. What is the minimum that the executive in your view has to provide the minimum type of hearing that you think is required by the statute? So the minimum hearing, I think, would have three components, one is notice and that's really not much of an issue here. I agree with that.

The second is an opportunity to provide evidence to the decision maker and we don't think that happened here.

And then the third thing is some effort to keep the final decision maker from pre-judging the issue.

Because if I think he were, if he were sort of subject to that, he wouldn't have said in his opening tweet, you must resign.

“And he wouldn't have said two days later, resign or be fired. So does that mean it has to be a body of disinterested decision makers?”

No. People who are not part of the executive branch and can exercise independent judgment that way now, that doesn't require. It requires just what I said. Notice an opportunity to provide evidence and a decision maker hasn't pre-judged the issue. That decision maker can be the president.

I'm not sure necessarily recommended as my choice A, but how could it not be the president? The statute authorizes the president to make the removal decision. How could it be anybody else? Well, look, I mean, if you believe in the unitary executive theory, then anybody that makes the removal decision is acting on the president's power.

I think it would work. I think the way it worked for Taft is the tribunal made a recommendation and then Taft executed.

So as the president making the decision, President has to make the decision, right? Or delegated to somebody who he wishes to make that decision. Yes, it was reportable to him. Yes, yes. Okay.

That will. Yeah. Right, absolutely. So, and the president can be the final decision maker, but if he's going to be the final decision maker, and there's a due process, right. And I mean, I mean, that statutory or constitutional, then, you know, he needs to be a little bit careful and say,

these are the allegations. He can't start by prejudging the issue by saying, "We're sorry." Mr. Clement, you're understanding of foreclos, you know, we've went through hypotheticals with Justice Alito about how it doesn't cover a pre-office conduct.

“What about conduct in office that doesn't relate to the discharge of the office?”

What if you take some of Justice Alito's examples, but it's like Nazi videos while the governor is in office? Or, you know, things that would be a misdemeanors rather than infamous crimes like shoplifting, you know, stealing things. Domestic abuse. Would those things be cost-refiring or that's, they don't really seem like impeachable offenses necessarily? So, I don't think those would be removable offenses under INM.

Okay. And so, I don't think they would be removable offenses under foreclos properly construed. So, there's nothing that the President can do to get rid of someone who does those kinds of things while in office. So, I mean, you know, some of the things we're talking about, you know, seem like better grounds for, like, an intervention than foreremovell. And so...

Well, I mean, I could come up with others, but... I mean, absolutely, absolutely.

“I'm... I'm going to fall back on my answer, which is, that's my understanding, and I think it's actually everybody's understanding of how INM works.”

But it doesn't say INM, and so, I mean, I appreciate your argument that INM and for cause are one and the same. But you also kind of pull in and you're fall back, some sort of, like, jerry-mandered things, like infamous crimes, but you don't have to have a conviction. I mean, so it doesn't say INM. So, a couple of things.

One is, you know, I'd resist, I mean, you know, jerry-mandering generally not a compliment. So, I would sort of say that what we do is we bring in the common law. And that's what we do. And I really didn't try to jerry-mander it beyond that. But let me make the argument, which I really...

I just asked one clarifying question. I thought the common law of the required conviction. It did. And that would be our sort of frontline backup. I mean, but the happy thing for me, I think, is at this stage of the case, we win under all these variations.

And ultimately, you know, some court, and it may be this court, is going to ultimately say,

these are the meats and bounds of forecaws. Now, I think I have some pretty good arguments that it really is just INM plus ineligibility as kind of informed by Section 244. And let me just give you, like, my best shot at it, which is, this is the very unusual situation where, you know, we know that Congress was literally waiting for this court's home free's executor decision. And then it gets home free's executor's decision.

And this court and home free's executor, at least three times, uses forecaws and INM interchangeably. And then the senators themselves in the debate, and I got to look at debate, I think, even just, basically, it looks at debates for original public meaning. The senators in the debate use the terms absolutely interchangeably. And so, you have two of the three branches of government, original public meaning, saying, for cause, different words,

but what it means is INM, but I do think it must, you know, you got to make sense of Section 244 of the statute, which does provide a very specific eligibility requirement. And as I said before, I think if some bed governor was insisting that they also wanted to be a director at Chase National,

>> Okay. You think that there's a way at this posture of dealing with this case so that we don't have to confront the question of exactly what the forecaws standard means.

“>> Is there a way to deal with it at this stage without having to ultimately say that?”

I mean, sure, there'd be a lot of different ways to do that. You could say that forecaws, I mean, you know, one way to come at it would be to say, at a minimum forecaws doesn't mean a parent misconduct or gross negligence. And I think that would be sufficient to decide the case at least at this juncture. And I think you could say something more. I mean, you know, obviously if you took my position and said, it means INM plus eligibility isn't formed by Section 244.

I don't, I think we'd be done here because I don't think there's an argument, at least that I've heard at this juncture, that the conduct that's at issue here is either INM or eligibility. >> Couldn't we also resolve it by not even going to the likelihood of success on the merits element? I mean, the president would have to have all of them to get a stay and we could do it on harm, right? >> Sure. I mean, you know, I looked at emergency application.

You could deny it without opinion. I mean, that would be a little strange at this juncture.

But it is an extraordinary application made on a preliminary record. And so, you know, you sort of have a lot of optionality at this point. But I will say this. I mean, you know, I do think the briefing in this, in this court, which was, you know, sort of unusual. You had the application briefing, then you had a Mickey, then you had this supplemental briefing. I think it's been incredibly helpful in excavating some of these difficult questions.

I mean, you know, I looked at almost all of these common law cases. I have a different view than General Suitor on hours, sorry, on some of these questions.

“And, you know, in particular, I think it's very important, and I, you know, I want to get this out.”

That if you look at shirtlift, one of the things that shirtlift, there's a line there that says that we're, where Justice Peckham is invoking the common law. And he says that as long as there's certain causes, statutory restrictions for certain causes,

that's the term he uses, then there's notice in a hearing. He says seven common law cases.

Now, if you look at those common law cases, three of the seven just say four cause. And two of them say good behavior, which is even less. And then two of them have a more specific cause. So that's, to me, the best contemporaneous evidence that we're actually right about the issue, that if it just says four cause, and it doesn't say for a particular kind of cause,

you get notice in an opportunity for hearing. But that's the kind of thing you can excavate on full briefing on the merits, that I don't think you can in an application. Thank you, Council. I guess I get back to where I kind of started. And all this description, these are all sorts of legal issues.

“You don't have anything more to say on the facts, right?”

It was an inadvertent mistake. I don't see how you can say anything more. And we've had broad range of discussion on the legal issues. But it's very helpful for us to have lower court decisions on those. It may be that's a reason enough. But again, I guess I don't quite understand what's sending it back with before,

other than airing of the same sort of issues that we've been airing this morning. Well, I'm not going to resist too hard. You're deciding this on a more substantive ground that gives my client sort of, you know, relief that's more enduring at this stage. But I will say that, you know, another one of these like great common law cases

is the street commissioners of haggers town, which happens to be the case that Blacks law uses for its definition of cause. And one of the things that specifically says there is, like even if you don't think the due process the notice in a hearing is going to amount to much, it's still an error not to give it,

and we're still going to essentially not allow this removal to happen, because there wasn't notice and an opportunity for a hearing. So it may not be an error to go through the process of your client coming in and say it was an inverteam mistake since it was inadvertent. I don't have much more to add to that.

And the argument on the other side being with the president said, well, I think this is the serious enough mistake. And so that's why I'm removing her. Again, there's only so much I can say to resist the idea that, I mean, you know, we think this was at most an inverteam mistake.

We would have liked and more, you know, sort of opportunity to do that and present our actual evidence which would have substantiated that. But we also think at the end of the day, inadvertent mistake isn't like very close to forecaused, particularly when you understand the unique nature of this institution.

What is your actual evidence that would have substantiated the fact that it was an inadvertent mistake? I think the fact that there's an attachment to one of the applications that describes it as a vacation home. And that's not, we've got that too. No, I understand, but the president didn't. And it seems to me that, you know, usually when there's a procedural omission,

one doesn't say, well, you know, at this point we got everything we need, so forget the procedural omission.

especially if you're going to say you're with me on the substance.

“But, you know, it does seem to me if you want to reserve judgment on the substance,”

or you want more briefing on the substance, you could say. And this is, you know, that whether it was constitutional due process or statutory due process, I think this is the gist of the DC circuits decision, is like, at a minimum, you didn't get the process you were supposed to, so the government doesn't get this extraordinary emergency stay.

Justice Thomas? I just so I'm clear for you to prevail. We would have to say cause is the equivalent of INM. No, I don't think so, Justice Thomas. I think you could really take any definition of cause that we've been sort of batting about

with the exception of General Sauer's definition, and we would prevail.

“I think the only, and I do think the definition that's presented to you by the president is a pretty extraordinary one,”

because, you know, General Sauer's a very careful lawyer, so in his briefs, doesn't talk about mortgage fraud, he talks about apparent mortgage fraud. And when you're talking about apparent misconduct, as opposed to actually found misconduct, that A doesn't get four cause and B, it sort of is advertisement that you have a process failure. And so the fallback then is or gross negligence.

So one way to think about this is if the standard of four cause is more demanding than gross negligence, then we certainly win, and we didn't get a chance to sort of argue about gross negligence. Because if it's not the equivalent of I&M, what are some of the other standards that you would apply? That would be sufficient for you to prevail. So I think the single best reading of the statute is I&M plus in eligibility as informed by Section 244 of the statute.

I think then my fallback would be then you pick up the common law, and if the common law makes you uncomfortable, because of Justice Alito's hypos, you could tweak the common law. But you would then be tweaking the common law.

“And that's why honestly at the end of the day, although it's uncomfortable for a few moments to answer some of those hypos,”

you always have in peach minutes the backstop, and we had, was it 90 years?

Plus if you go back to the Interstate Commerce Commission at 1887, almost 150 years with I&M, and this didn't really pose a problem in practice. Justice Alito? Do you think that we should decide this case on the factual ground that what is shown by the materials that are before us shows nothing more than gross negligence, which is insufficient? Should we make that factual finding in the first instance?

I understood your answer to be. You should do that if you're going to find in favor of me. But you shouldn't do it if you're going to find the other way. I'll stand by that A&M. Really? That's your A&M. I think it would be a little irregular, but this whole case is irregular.

And if that seems to be the path of least resistance to decide this case in a way that is going to essentially obviate the need for this court to decide it again in a couple of years, that seems like a perfectly reasonable way to decide the case. Thank you. Justice Alito? This whole case is irregular.

Starting with a true social notice or thinking of it as notice at all. Certainly didn't invite an opportunity to be heard. But that's where we are. Now the question becomes and you answer the chief and said, "I don't have more to present." I don't know where you presented anything.

You have a letter from you that basically says that the application included notice that this was a vacation home.

But that's never been given to the president that's never been filed with a quarter.

No one's ever seen it. It's just statements being made. So I don't know why a factual hearing would be irrelevant. So assume, as I do for the purposes, that she did fully disclose this was a vacation home. So now the question is is this what she did negligence or gross negligence?

Does cause include just mere negligence? I think that you have a very strong argument under any reading of cause that mere negligence pre-office would not qualify. Correct? All right, because it would seem extreme to think that something separated from the functioning of the office unrelated to the work of the office at the time it's done that mere negligence would be enough for the president called it gross negligence.

Meaning who decides whether something should be called negligence or just gross negligence?

So I would think that ultimately that's a mixed question of law and fact that would be ultimately decided by the court on judicial review assuming you're with me that there's judicial review.

“I do think there would be an logically anterior purely legal question of whether gross negligence is sufficient for cause and I just as I think I have a pretty good argument that negligence pre-office is not a sufficient basis for cause.”

I think I have a pretty good argument that gross negligence pre-office is not a sufficient basis for cause. And in some respects I think in the long run it will be better to make clear that in the context of this unique institution with this distinct history that for cause is several steps north of gross negligence even because that's going to make it really something that the courts aren't going to have to get dragged into on a routine basis where I think the lower the standard is. The more likely you are to have removals in the future and the lower the standard I think the greater is going to be the judicial temptation to think about pretext.

And I'm not going to say that there's no role for a pretext inquiry, but it's not a happy sort of scenario for the courts to be considering pretext in the context of presidential decision making.

And it seems to me the way to solve that is to say there's real procedural and substantive kind of bite to this term sort of forecaused.

You do have to do some kind of notice and opportunity for a hearing. I mean even if it's an hour in the oval that's a big imposition on the president's time and that's going to keep some presidents from removing somebody. And if they know that it's going to be judicially reviewed then that's going to deter most presidents most of the time. And so I think kind of you know it's like what is it you know high walls make for good neighbors. I mean I think this is a situation where you do want to have this kind of meaningful legal requirements.

Is this taken? Do you understand the governments to mean by gross negligence? This.

“I mean you know I don't really know I don't think they've offered sort of a theory of gross negligence and that's why I don't think.”

You think it's just a label that they've put on this particular content set of facts? Sure and if heaven for fend we end up with a whole common law of fed governor removal then we might eventually be able to sort of piece it together. But it seems to me that you know you could you could label an awful lot of things gross negligence and that seems to be inconsistent with not just the forecaused provision. But the whole structure of this statute and I mean Justice Kavanaugh alluded to the Morrison descent and you know Justice Scalia creating this beautiful picture of some independent council with nothing to do but to find a crime on somebody.

But if all the independent council has to do is find gross negligence then I don't think the independent council would need more than a couple of hours with most of us. I mean that's such an elastic standard and I just can't imagine that's consistent with all the trouble Congress went to to make this unique entity insulated from kind of the political pressures of the day. Thank you Justice Gorsuch. Justice Kavanaugh? A couple things just to talk again about the standard.

I mean getting the definition of forecaused right which we may not have to do in this posture so I take that.

It's critical because on the one hand you have the independence of the federal reserve which we've talked about the other hand.

We have people committed again not talking about the facts of this case but serious ethical or other wrongdoing. Digging in and remaining in office and it seems like you're two answers to that when you said your front line positions I and M were. Intervention slash resignation and I'm not sure that really works with some people who are going to just dig in you know they're not going to leave. And then the other was impeachment but of course with the two thirds requirement and the Senate and then time constraints of the House and Senate.

I'm not sure that's available as often as you say all which is getting me to the point of I don't see how the front line position really can be the. The final position without making kind of tilting the balance here too far the other direction from where the solicitor general is you just want. That's when I tackle that at all I mean you've covered it but I want to get it out one more time so you can simply answer.

“Sure I think the best thing that I haven't said already that I could add is I think in the unique context of this particular agency.”

You want to strike the balance more in favor of keeping an official who maybe in a perfect world would be removed because you know this is the opposite of the situation in.

Here I think you know there it's less important that the president have full faith in every single governor and it's more important that the markets and the public have faith in the independence of the Fed from the president and from.

“And in this regard I think it's you know this is not a situation where the unlike Myers which is the ultimate example where the presidents trying to irrigate some power away from the executive.”

This is a situation where Congress political animals one and all new better than anyone that the short-term temptations to lower interest rates and have easy money was a disaster in the long term but was going to be irresistible.

And so they tied their own hands by taking the Fed out of the appropriations process and they tied the president's hand and I think they tied the president's hand in a pretty significant way.

And I understand the concerns about the balance but I would say in this one context. It probably makes more sense to you know maybe you want to you know bring in a little bit of common law and that's fine with me. But I do think you want to strike the balance so that the ultimate imperative is that the markets don't think that rates are being lowered for political pressure when rates are lowered. The markets are going to understand that that's actually pretty financial management of our monetary policy.

And you're a colleague with the chief justice about what a hearing would look like within the executive branch with the president or with the president's designate. It's going to make sure I just clear in that hearing you could make legal arguments as well. I assume not just factual arguments for legal arguments to say.

We don't think this rises to the level for cause basically the kinds of arguments that you've made here you could make to the president the same way in an impeachment proceeding.

We can make legal arguments to the Senate about what exactly is high crimes in this demeanor's correct. Correct and obviously the nature of the hearing is going to inform the scope for that. If it's you know just half an hour with the president I don't know how much you're going to get into sort of legal briefing. But if you did do anything like TAF or you just say well we got a couple of ALJs line around we'll have one of them to sort of hear the evidence on this. I mean then I would expect there to be presentation on both evidence and law.

Just for the kind of simplest way and just as Kagan was asking.

“To decide this case I think one way would just be say there was insufficient process and therefore we at this juncture deny the government's application.”

Thoughts.

I think that would be a very simple way to decide that this case I think perhaps the defect that was alluded to in the colloquly with the chief justice is that probably is also.

The way that probably maximizes the chances that it gets back here on the merits. Whereas if you decided to go a little further and say something substantive it might bring all of this to an end. And there's probably some virtue to that certainly there's some virtue to that from my clients perspective. Thank you. Justice Barrett.

I want to ask you about irreparable harm. You were just talking to Justice Kavanaugh about the uniqueness of the Fed and it's need for independence. And the government because it has not challenged the removal restriction for purposes of this case.

“I think we're all operating on that assumption.”

When the president, if you're thinking about the unitary executive when the president has untrambled authority to fire a subordinate. Keeping that subordinate in office I think inflicts maybe a different kind of irreparable harm than the argument that the government would be able to make here. Because the president doesn't have the same control over the Fed at least based on the assumptions we have in this case. What do you think about that? And what kind of an argument would you make for what is your best case argument that the president is not suffering irreparable harm by the inability?

Let's assume that he has the ability to remove Governor Cook. Let's assume that some of your merits arguments are going to lose. They still have to show irreparable harm. So what's your best argument that he's suffering none? Well, I think my best argument that he's not suffering irreparable harm in those circumstances that he's not suffering the unique indignity of having sort of pure executive power exercised by people that are removable at will outside of his control.

And maybe that's a little circular in the end. But I think it's like it's kind of why this case is, I think, problematic for the government. Because, you know, the could have come in here and said, you know, fetch mad. It's not that different. This is just like the FTC and so we're suffering the same irreparable injury as in those other cases. But when they come in and say, "No, we're going to accept that the Fed is different at least for purposes of this case and that we can't remove somebody just for policy disagreements."

then they do, or then you've been able to persuade a court so far about, doesn't strike me as irreparable harm.

“And then on the other side of the ledger, I think there are enormous irreparable harms here.”

They really don't have an analog in most of these other situations. I don't mean to denigrate any other agency, but, you know, there's a reason that monetary policy has been treated differently for, you know, low these many years. And there's a reason that the markets watch the Fed a little more closely than they watch, really any other agency of government. Justice Jackson? So you've had a couple of questions about what good is a hearing, what what what a hearing do in the situation where Miss Cook has made a statement through her lawyer about the, about the allegations.

I guess I'm wondering setting aside for a moment the standards for cause. Don't we have to have a circumstance in this kind of situation in which the facts are established. In other words, I thought the work of the hearing, even in this situation, would be to establish when these applications were signed. What she thought she was a testing to. What actually was going on would respect to these documents that the president is pointing to that says, and he says they establish her.

Deceit and gross negligence or whatnot.

“And I think before we even get there, we have to know what the facts are related to this.”

Isn't that what the hearing would be about, at least in part? I think it would be, and maybe though to try to defend my, you know, as I win tails, you lose answer to Justice Toledo. I mean, you know, you could think about this by analogy. I mean, there are certain circumstances where you essentially grant a motion to dismiss for one side.

You basically say, look, we didn't have a hearing here. That was a mistake.

But even on sort of the best reading of the evidence, this is at most an inadvertent mistake. And so there is no core cause removal in which case my client would win. On the other hand, if, you know, normally you have that kind of evidentiary hearing, and that is to establish sort of the facts. And then you then apply the law to those facts. But there are circumstances.

There are circumstances.

“But then you're in, you're in Justice Tavanol's world, which is you would still let the hearing,”

then go to the legal question of whether or not what you agree happened here counts as gross negligence. You would say it has to be at least that in order to satisfy the forecast standard.

The other side would say no.

So there's something, there's some work to be done in a hearing. Absolutely. And what I, another way of putting it is, look, the denial of the hearing to my client, if she does indeed have a right to a hearing, cannot be harmless air, like it just can't. No matter what you think of the facts, on the other hand, if you agree with us on the law, you could still resolve this case in her favor on the grounds that, you know, there were two mistakes here.

Once she didn't get a hearing, but we don't have to like remand for a hearing or any of the rest, because even on the facts kind of most, you know, in the light most favorable to the government, this isn't a removable offense. I go quickly to the standards, because as I read the sort of what happened here, it wasn't as though the district court just sort of made it up in terms of what she thought

should count as four cause. My understanding is that she was looking, as you've said several times, to the common law, and what courts have traditionally said. And I see, for example, a court, a Maryland court, Board of State Commissioners of Hager Town, in 1903, which is around the same time as the establishment of the statute,

that said, "The phrase four cause must mean some cause affecting the ability or thickness of the incumbent to perform the duty imposed upon him." And other similar courts at the time talked about pre-tenure conduct, and said, "If it was pre-tenure, it can't be sufficient cause unless it was serious enough to undermine the job performance." A mere allegation was not enough.

Back at Common Law, it had to have been tested and proven like through a conviction. The standards that were used here to determine, at least at the district court level, whether cause was satisfied came from somewhere. Is that right? Absolutely.

And I love that Hager's town case, because not only is it a very helpful Common Law case, but it's actually the basis for the definition in Blacks Law that the government and Judge Katzis below relied on. I mean, Blacks Law is an unusual dictionary. It just doesn't sort of pop out the meaning from like Noah Webster's mind.

It like sites cases for particular concepts.

And so all the hypotheticals, I mean, we see them, and they might be problematic,

“but they would be tested against the standards that the courts have applied.”

Absolutely. And if I could just elaborate in one respect, I mean, you know, if you think about pre-office conduct, there's only two kinds. One, there is pre-office conduct that was disclosed to the Senate in the confirmation process. And it's to that, even the government sort of says, well, you probably shouldn't let the next president sort of

re-litigate all of that.

And then the second kind is stuff that was undisclosed.

And if it's a serious as we're talking about, that's essentially the nominee, you know, defrauding the Senate. And so I actually think, in that respect, impeachment is probably a more fit remedy than it might be in some other circumstance, because you're going to have whatever the conduct is, plus you're going to have the Senate being pretty darn vast that was withheld from them in the confirmation process.

Final question.

“Do you -- I took you to be conceding that there was notice here.”

And I guess I'm a little concerned about that. I mean, are you conceding that a posting on social media is sufficient notice in a situation like this when the president is seeking to remove a governor for cause?

So what I would say is, you know, I --

I mean, I know what happened. She got notice. We live in a world that is connected, but I guess isn't notice a particular thing in the common law? Well, I mean, this way. Like, I don't sort of resist the idea that the truth social post is notice, because I think it's also fundamentally defective notice,

because it's also indisputable evidence that the president prejudged the matter. Right. So it's not the kind of notice that --

“So hypothesize he didn't say you are fired or you should be fired.”

I hypothesize he just said, you know, I have this information and I intend to fire the governor. Well, why wouldn't he have to like send the letter to her? How is it that we can assume that she's on social media or has looked at the news or that that's sufficient notice, even if she did turn on the news and he's saying that? I don't know why that would be enough.

Look, I might -- I might make that argument, but that doesn't seem -- You know, I mean, if he -- if he said on truth social, that look, here I have this allegation and I'm going to convene a hearing. You know, the Roosevelt room at 4 p.m. tomorrow, please bring all your evidence. What if she doesn't have a true social account? She doesn't show up. Is that enough notice? You know, I think under those circumstances probably not, but I think it's a practical matter in most circumstances.

The president puts it on true social, most people most of the time are going to consider that to be noticed. Again, the part of the reason I'm not resisting is -- or I'm sort of moderating this is because this notice isn't the kind of notice the common law in vision, that didn't pre-judge the matter. Thank you. Thank you, Council. Rebuttal General Sauer?

Thank you, Mr. Chief Justice. Turn to the question of whether or not in office, more pre-office, misconduct, can constitute cause. I want to make a statutory point, which is that the INM standard is, by, on its terms, limited to in-office, misconduct, and Congress did not adopt that here. They adopted the more capacious standards. This court recognized in Collins against Yellen, cause gives the present more discretion,

revised less protection to the officer than the INM standard does. And even if we were in a situation where you're looking at the 19th century case law, and so forth, they disregard a series of cases that pre-office misconduct is a sufficient cause, for example, in rate-gootin, which in from the New York in 1902, which involved an officer who engaged in a kind of shenanigan,

in order to get the officer in the first place. There was a corrupt agreement to appoint somebody to a position.

If they supported that person politically, I owe against Walsh, which was pre-office and bezel-ment, Gilligan's water town, in case they rely heavily on, he was set in Dictate, at least, that gross frauds committed before office would constitute cause to remove. So there really isn't support anywhere for this notion that pre-office misconduct can't be considered or when it comes to a cause standard. And related to that, I thought I was very telling that,

Mr. Colman was saying that if it does come to pre-office misconduct, a peachment would be the only remedy that would provide it, which, if taken to its full extent, would make governors the Federal Reserve have the kind of tenure projections that the constitution of forced article rejudges. That is not what this statute says. That is directly in the face of the statutory language, which says, cause with no further restrictions, clearly Congress envisioned that they could be removed for a good enough reason.

And on that point, I just want to emphasize, there's this concle about whether it should be sent back or decided now in the merits, whichever way the court comes out on that, the court should not,

This court, no court should hold that the misconduct that's alleged here, which is at least gross negligence,

“at least an inadvertent notation that is a grave misrepresentation on a mortgage document that's designed to determine”

the governor's interest rates is not caused to remove a principle officer with the United States who sets interest rates for the entire country.

So all the discussion of what are the outer bounds of cause, where it should just review, on that fundamental court, neither this court or any other court should look at this,

“and say, this is likely not caused. That sends the wrong message to the markets, it sends the wrong message to the American people”

who have to make correct representations to their backs when they're getting their mortgage interest rates. And the second point I would make is the remedy granted here a preliminary injunction that runs against the president,

reinstating a principle officer of the United States, is something that has never been granted for 2025 in this court, in a nation's history.

And in fact, contradicts a clear holding of this court insolire that a preliminary injunction is not available in equity. Those two reasons alone clearly suffice to send it, if there is going to be a decision to send it back, to send it back with the emergency stay that we've asked for. And then if the court decides to sort of send a case back to have many more of these issues that we discussed today to be aired, we urge the court.

“And I think there's a call that wouldn't disagree to direct the lower courts to receive very expeditiously.”

Here this is where our an emergency stay posture. The executive has been suffering a repital harm since early September, and the sooner that these issues are resolved, the better. Thank you. Thank you, Council. The case is submitted.