Transcription
Isn't the case law all over the map because the statutes were different? I mean, I understand the Manners brief, which they rely upon to really drill down on the various statutes related to removal and to have identified ones, for example, that have a fixed term but allowed removal only for cause, or had a fixed term and provided for removal at the president's discretion, or didn't have a fixed cause, a fixed term, et cetera, et cetera. There's like a series of permutations, and in those different circumstances, courts, which, asterisks, we're actually reviewing this so that in the first instance makes me question your view that courts 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 removability for cause, as of 1913, it was well established. Everybody agreed that that required at 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 for cause. She says, everybody said got to have a notice and 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 9, footnote 4 in the accompanying text, we cite Ulrich and then 13 more cases in that footnote for the proposition that for cause does not require notice in a hearing.
Her argument is Jerry... I'm talking about the combination. Yes, the combination. For cause and 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 those 14 cases, it's a combination. There's also a fixed term. So that argument just, again, that brief, you know, read the Tuttle article that it relies so heavily on and you'll see this argument. They're nowhere near meeting the burden of an old soil argument. 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 with Justice Kavanaugh, and I appreciated this, that Congress put the for cause 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, uh, we Congress, Congress had decided, uh, that, uh, 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 removability of these governors, how does that further the aims of the statute?
It directly furthers the aim of protecting them for removal for policy disagreement, which would be the key protection... No, 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 what 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 in 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 for 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-fought compromise between two influential and insistent camps, as Justice Alito 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 insofar as the president's determination about cause is reviewable and based on actual evidence that has been established. It doesn't protect them if the president can just make it up. It also provides a legislative determination that governors could be and perhaps should be removed if they engage in financial improprieties 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 mandamus being the remedy, but as I read the cases in the law, mandamus 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 the extent the 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 removability. I think that's the world we're in. This was the very first question that Justice Sotomayor asked you. And so can you just explain why you're insisting that mandamus 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?
The preliminary injunction is an equitable determination, and it's one that the district court plainly under Sawyer plainly lacked jurisdiction to enter. And again, I also in addition to the holding of this court in Sawyer that a temporary restraining order purporting to restore a public officer... 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 of 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 of recognizing the president's authority to engage in suspensory removals pending the final determination. And that alone would 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.