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Secure The Arctic Infrastructure
00:02:42
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| Observer states. | |
| We have a question on X. If you were in charge of the Pentagon, what would be the first step you would take to secure the polar region against Russia and China's military aspirations? | |
| I would first look at some of the infrastructure that we currently have in the High North in Alaska and in Greenland and restructure it, build for the cold weather, build for the thawing permafrost to make sure that those buildings are secured and that the service members who are working there are taken care of. | |
| Starlink would be another thing that I would implement across the entire U.S. Coast Guard fleet in order to have them operating with communications that are reliant in the High North. | |
| And lastly, I think, you know, if we are wanting to position ourselves more defensively in Greenland, we certainly have the ability and the wherewithal to place short to medium range defensive missiles on our base in Greenland, as well as fifth-generation fighters like we have out in Alaska. | |
| This, you touched on this a bit earlier, but somebody was also asking on X how you got so interested and that, you know, they've never seen an expert on this region that wasn't in the Department of Defense. | |
| There haven't been that many pieces from a journalistic perspective on this. | |
| Over the last year, ever since President Trump took office again, there are more and more, you know, the Wall Street Journal, the New York Times have been putting out more and more pieces about trainings in the Arctic, about the need for sustained interest in the Arctic as it's changing. | |
| I found it interesting in part because I had focused on so many wards in the Middle East, but knew that we were shifting gears as a nation to look at the Pacific. | |
| But I wasn't convinced that, you know, going from one region to just another region was a holistic approach to our national defense, that we needed a more robust and full view of the different threats that exist. | |
| And if the threat existed in the Cold War from the north, then I'm certain that it would exist today, to say nothing of 2022, 2023, when Chinese research balloons were able to float in across Alaska and into our High North region without detection until the last minute. | |
| So I feel like there were a lot of vulnerabilities that weren't being addressed. | |
| And when I was able to travel and see for myself some of those vulnerabilities, it worried me. | |
| Well, that is all the time that we have for today. | |
| Thank you so much, Kenneth Rosen, who's the author of the book, Polar War: Submarines, Spies, and the Struggle for Power in a Melting Arctic. | |
| Thank you very much for your time. | |
| Thank you. | |
| And thanks to everyone who called in for Washington Journal this morning. | |
| We're going to be back with another edition of the show tomorrow, starting at 7 a.m. Eastern. | |
|
Carl Hyason's Q&A
00:03:26
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| C-SPAN's Washington Journal, our live forum inviting you to discuss the latest issues in government, politics, and public policy from Washington, D.C. to across the country. | |
| Coming up Monday morning, we'll discuss the 2026 midterm elections and factors that could determine who controls the House and Senate with Cook Political Report senior editor David Wasserman. | |
| Then White House reporter for The Hill, Julia Manchester, previews the week ahead at the White House. | |
| And global affairs correspondent for The Guardian, Andrew Roth, and North America editor for Velt, Stephanie Bolzon, on U.S.-European relations in the Trump administration. | |
| C-SPAN's Washington Journal. | |
| Join the conversation live at 7 Eastern Monday morning on C-SPAN, C-SPAN Now, our free mobile app, or online at c-span.org. | |
| Watch America's Book Club, C-SPAN's bold, original series. | |
| Today, with our guest, Christopher Buckley, best-selling satirical author and son of conservative writer William F. Buckley. | |
| He has written more than a dozen books, including The White House Mess, Thank You for Smoking, Florence of Arabia, and The Deeply Personal, Losing Mum and Pup. | |
| He joins our host, renowned author and civic leader David Rubinstein. | |
| You have written 20 books, many of them satires. | |
| Satire is a lost art a bit. | |
| I don't see that many satirists that are best-selling authors. | |
| There are. | |
| Carl Hyason, Dave Barry, although they might be more classified as humorists. | |
| The difference between a satire and a humorist, we would say, is hundreds of thousands of sales. | |
| Watch America's Book Club with Christopher Buckley today at 6 p.m. and 9 p.m. Eastern and Pacific, only on C-SPAN. | |
| Tonight on C-SPAN's Q&A, in his book Retribution, ABC News Chief Washington Correspondent Jonathan Carl gives a behind-the-scenes look at Donald Trump's 2024 presidential campaign win. | |
| Mr. Carl also talks about his longtime relationship with the 47th president and the contrast between President Trump's public and private sides. | |
| You're not a wonderful person. | |
| Frankie, you're a terrible reporter. | |
| You know it, and so do I. | |
| Okay, so as we were leaving, which was right after that, he took maybe one or two more, and we're told to leave, Trump motions to me to come towards the resolute desk. | |
| And he does this kind of emotion. | |
| He's like, we're okay. | |
| You know, basically saying, we're okay. | |
| We're okay. | |
| Don't worry about that. | |
| And I turned to him and I just said, I said, that was tough. | |
| And he goes, oh, you were tough. | |
| No, you were tough. | |
| Jonathan Carl with his book, Retribution. | |
| Tonight at 8 p.m. Eastern on C-SPAN's Q ⁇ A. You can listen to Q ⁇ A and all of our podcasts on our free C-SPAN Now app or wherever you get your podcasts. | |
| C-SPAN, Democracy Unfiltered. | |
|
Three Ways to Removal
00:14:56
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| We're funded by these television companies and more, including Comcast. | |
| The flag replacement program got started by a good friend of mine, a Navy vet, who saw the flag at the office that needed to be replaced and said, wouldn't this be great if this was going to be something that we did for anyone? | |
| Comcast has always been a community-driven company. | |
| This is one of those great examples of the way we're getting out there. | |
| Comcast supports C-SPAN as a public service, along with these other television providers, giving you a front-row seat to democracy. | |
| Next, Supreme Court oral argument on the legality of President Trump's firing of Lisa Cook from the Federal Reserve Board of Governors. | |
| This comes after the president posted he was firing Ms. Cook on social media last August. | |
| During the two-hour court session, Federal Reserve Bank Chair Jerome Powell was also in attendance. | |
| We will hear argument this morning in case 25A312, Trump versus Cook. | |
| General Sauer. | |
| Mr. Chief Justice, deceit or gross negligence by a financial regulator in financial transactions is cause 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 impugns 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 term's long-standing meaning and overrides Congress's deliberate decision not to impose the inefficiency, neglect, or malfeasance standard here. | |
| Her claim that she has a property interest in her public office was roundly rejected by the founding generation as pernicious in a Republican system of government. | |
| Her claim that the statute grants her notice in the hearing contradicts this court's cases, 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 the substantial truth of the material in question. | |
| Finally, the remedy she obtained, a preliminary injunction countermanding the president's decision and reinstating her to office, violates long-standing 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 isn't central to the case, but it is an antecedent 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? | |
| Justice Thomas, an excellent 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 in banks and even credit card fees and so forth. | |
| So even if the court were to think that some of what the Federal Reserve does isn't executive at all, certainly there are traditional executive powers at issue here. | |
| And therefore, we contend that this, even though we haven't disputed the validity of the Article II removal restriction here, this case is not transparent to Article II. | |
| 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 we contend that 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 Wilcox, 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 restriction in this case. | |
| Good counsel, 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 in the case of an inadvertent mistake contradicted by other documents in 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 a letter of counsel, not from Cook herself, you know, two days before the close of 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 forced you to buy back your loans. | |
| 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 in dispute that the president determined that this is at least gross negligence. | |
| Even if it was inadvertent or mistake, it's quite a big mistake, so to speak, in a key financial representation made in the context of interest. | |
| Well, I mean, I suppose we can debate that, how significant it is in a stack of papers you have to fill out when you're buying real estate. | |
| But I gather under your position, it doesn't make a difference, right? | |
| 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 outer perimeters of cause, whether that something goes to conduct, fitness, ability, or competence at all. | |
| But once you're within that, and we clearly are here, then there would be deference to the president. | |
| We derive that from at least three sources. | |
| First of all, the statutory language cause without further qualification is itself, and it's plain language, a broad, you know, control of authority on the president himself. | |
| Secondly, we think that places with that within the line of cases going from Martin against Mott through Dalton against Specter and beyond Payne and so forth, where the President has broad discretion, and the court has consistently held in those cases where the President's granted this broad discretion that that's not judicially reviewable. | |
| And there are statements to that effect, 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 conceded this is an ultra-verse challenge. | |
| And this court held last term that the standard of review in an ultra-verse challenge is very, very high for them and very deferential to the president himself. | |
| It kind of dovetails with our Dalton and Martin argument as well. | |
| In an ultraviolet challenge, the burden 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 there'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 reviewing court to do. | |
| The traditional discretion to the president's determination would kick in. | |
| Council, were any of these questions except the constitutional question decided by the DC Circuit? | |
| The DC Circuit, in its stay opinion, relied exclusively on the sort of opportunity to be heard. | |
| That's what it said the Constitution required, correct? | |
| It said that, yes, it said there's property business officials in Clouder Mill. | |
| That's the only issue it addressed. | |
| It did not address all of the things you've talked about today. | |
| What the definition of cause is, 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. | |
| Even yourself below said if something was known before confirmation, you likely can't rely on it. | |
| You haven't quite said that up 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 standard. | |
| Ultravirus seems to me to be whether or not another, and that's what all our cases have ever said about ultravirus situations, whether another entity, another adjudicatory entity, has jurisdiction or we do. | |
| And three, whether Cook has a right to notice and hearing under the statute and what that means, and what remedy, if 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 choices. | |
| You've conceded that, correct? | |
| Correct. | |
| All right? | |
| So it's not as if keeping her is going to thwart 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 malfeasance 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. | |
| So waiting to me to have at least the lower courts look at these issues first makes 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. | |
| And number three, why we should disrupt, as we said in Wilcott, the disruptive effect of repeated removals and reinstatement of officers. | |
| Why shouldn't we wait till the end of this case, where 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. | |
| We are seeking a stay of an unprecedented preliminary injunction restoring a principal officer of the United States after being removed by the President of the United States. | |
| 112 years, and it's unprecedented that any Federal Reserve officer has ever been removed. | |
| So the unprecedented nature of this case is a part of what the President did, not what Ms. Cook did. | |
| I think that statement has to be qualified by the recognition that there have been situations where governors have been credibly accused or found to engage in financial improprieties, and those governors have resigned for financial imprieties 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. | |
| It's a preliminary injunction against the. | |
| That's true, but weeks later in Drago, 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 than issuing a preliminary injunction. | |
| I think the court's referring to the Delgado case. | |
| And in that particular case, there it was a writ of mandamus to an inferior there, the clerk, to recognize the de facto officers when there is dispute about who had been validly elected to be the city commissioner or whatever the statute was. | |
| And this court says, this is the final judgment in mandamus to say you have a ministerial duty to recognize the de facto officer. | |
| That is totally different than issuing a preliminary injunction. | |
| Keep in mind, there is no such thing as final mandamus. | |
| In fact, Judge Friendly once described that as the starkus of solecisms. | |
| I'm sorry, there is no such thing as preliminary writ of mandamus. | |
| Judge Friendly described that as the starkest of solecisms. | |
| What this court held in Sawyer is there is no jurisdiction to issue a preliminary injunction restoring a public officer to office. | |
| And that's holding the court. | |
| She never left. | |
| She's still there. | |
| She has reinstated what the court framed its holding as. | |
| There is no jurisdiction over the appointment or removal of inequity of public officers. | |
| So it does not turn on whether or not she's sort of, you know, stoutly staying in office or whether or not she's gone and then sued later. | |
| That doesn't, nothing turns up. | |
| General Sauer, can I ask you a question that's also related to the stay factors? | |
| Justice Sotomayor brought up the public interest here, and we have ambiguous briefs from economists who tell us that if Governor Cook is, if we grant you your stay, that it could trigger a recession. | |
|
Preliminary Injunction Posture
00:15:38
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| 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. | |
| So we've already had a kind of natural experiment, so to speak, about whether or not the predictions of doom will really be implemented. | |
| And surely that if investors are jittery or whatever the argument is, you would have seen that on August 25th, and you did not see that. | |
| In fact, you have these surprised. | |
| Well, I'll interrupt 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 amigus briefs and their sort of, you know, predictions of doom with a fairly drawn decide. | |
| What the court has to do is weigh, essentially you have those amigus briefs a reflection of very elite opinion, elite opinion that things happen. | |
| That's risk, General Sauer. | |
| Yes, 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 the stay 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 to the Federal Reserve's credibility from allowing an officer, a governor, to remain in office who's engaged in this kind of behavior before she gets to the right. | |
| Do we also engage in some weighing of our own about how serious we think the misbehavior was in the stay posture? | |
| And I'm not talking about once the case was here on the merits, but if she were accused of murder or something like that, if we're talking about something that was really an infamous crime, should we take the nature of the crime into account in the stay posture in the weighing of the equities? | |
| I think what the court ought to take into account is the close nexus between the conduct at 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 loose or at least been grossly negligent in getting favorable interest rates for herself. | |
| So it's a premium. | |
| What's the message that ordinary Americans that come out of that is the question for the court? | |
| And how do you weigh that against the elite opinion that's reflected in the amigos freeze? | |
| Obviously, President Trump's voice speaks to that concern of ordinary Americans. | |
| I think when 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. | |
| The court says when the government is a party, the irreparable harm to the government merges with the public interest. | |
| And here we have traditional irreparable harms, injuries to the president's 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 1789, when everybody said, or both camps were saying, of course, the president can engage in suspensory, remote. | |
| Removals, and we have a preliminary injunction that is conspicuously non-existent in your words, in CASA, you know, for 225 years of American general Sauer. | |
| Excuse me, 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 stay posture here. | |
| So 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 pendency 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 Justice Sotomayor 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. | |
| We have a remedy here, which is a preliminary injunction this court squarely held in Sawyer. | |
| There was no jurisdiction to issue. | |
| Yeah, but I'm not talking about the jury, 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 tangential. | |
| They didn't tang. | |
| 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 I said, the president made that closer. | |
| The president make 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 improper behavior. | |
| No no no, I understand council, you're repeating. | |
| You're repeating the allegation. | |
| What i'm asking you is the evidence that supports that allegation. | |
| Uh traditionally, 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 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? | |
| Well, the removal order addresses that because it is. | |
| What is the removal order? | |
| The truth social post? | |
| No, it's the August 25th letter. | |
| I think it's Doc 1-4 in the district court. | |
| But the removal order addresses that. | |
| The evidence is you have mortgage applications within two weeks of each other that make clearly conflicting representations. | |
| 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 like she was supposed to post about it, and that was the opportunity to be heard that you're saying was afforded to her in this? | |
| Yes, and she's had plenty of opportunities in the ensuing months where we've had ongoing litigation where there's never been a personal statement addressing that or justifying it. | |
| General, let's just suppose with me hypothetically for the moment that the court read the act to require notice and a hearing. | |
| I assume everybody has notice now. | |
| Here we are. | |
| What would that hearing look like? | |
| I would point to what the court has said in Vermont and Yankee, which this court is very reluctant to dictate procedures to even federal agencies. | |
| And here the court would be dictating, or a court would be dictating procedures to the president. | |
| I think they rely heavily on Laudermill. | |
| Obviously, we dispute that there's any notice and hearing requirement, but Laudermill requires only very minimal, flexible procedures. | |
| Would that be calling Ms. Cook 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? | |
| What would be required? | |
| It would probably be entirely, if the court were to conclude that, it would have to be entirely dependent on the executive to decide. | |
| And that's what the case will indicate. | |
| Certainly, I think the question points out a great weakness in their argument, which is that the word cause does not include notice in the hearing on its face. | |
| Congress knows how to provide notice in the hearing. | |
| It did so in the NLRA one month before 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. | |
| And if the court were to conclude that, it would be up to executive discretion. | |
| Just a meeting across a conference table finished with you're fired. | |
| I mean. | |
| All Laudermill says is 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 true social post and the removal letter. | |
| And then you mentioned on remedy that there's no such thing as a preliminary injunction for mandamus. | |
| And I just wanted to hear you a little bit more on that. | |
| You mentioned Judge Friendly. | |
| Please, thoughts. | |
| So the contention in the Amicus briefs is that you could rely on Delgado to sort of bypass the holding of Sawyer and say that Mandamus can provide the essence, essentially the same relief as a preliminary injunction. | |
| I guess the argument would be you'd have to mandamus everybody. | |
| So all the other members of the board to treat her as if she's still a governor, all the staff to treat them as if they were still a governor, because Delgado held where there's the city clerk who can't decide who is validly elected city commissioner. | |
| The court held you could mandamus that clerk to recognize the de facto officer in the interim. | |
| And that doesn't work for a couple reasons. | |
| First of all, this is a preliminary injunction. | |
| Mandamus would have to be a final judgment, and that's what Judge Friendly said. | |
| There is no preliminary mandamus. | |
| That's the starkest of solacisms. | |
| So I understand you, General, going back to Justice Gorsuch's first question, to continue to maintain that in fact there is no requirement for notice and opportunity for a hearing. | |
| Is that right? | |
| Absolutely, yes. | |
| And why is that? | |
| Just because it's not stated in the statute? | |
| It's not stated explicitly in the statute, and Congress knows how to provide that because it did so a month earlier in a similar statute and has done so in many, many statutes. | |
| It doesn't do that. | |
| Yeah, I thought that with respect to the neglect inefficiency standard, you do recognize notice in a hearing for that, but not in this statute. | |
| Why the difference? | |
| Because neither is stated. | |
| Yeah, two reasons. | |
| Both Shirtliff and Reagan, this court expressly recognized that that phrase INM or specified causes would bring with it notice in a hearing. | |
| And that's part of the court's holding in Shirtliff, as I read it, because there it was an INM standard, and there's a removal with no notice or hearing, and the court held well. | |
| Clearly, this wasn't for INM because it was notice in the hearing. | |
| The reasoning would be that that was a mistake in holding, because since it's not stated in the statute, there's no need for notice in the hearing. | |
| Not exactly, 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 in Reagan when it said specified causes mean that notice and a hearing are provided because the case law, it's the one point in which the sort of background case law does seem to be unanimous. | |
| On the other issues where 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 example argument. | |
| The example 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, Ms. 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, sufficiency, or competence. | |
| We concede it cannot be for policy disagreement or for no reason at all or at will. | |
| General Sauer, 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? | |
| Because even if we say yes, there is cause, shouldn't have removed her, but we don't have the authority to order her reinstatement. | |
| How is that consistent with the time and energy being spent on determining if there's cause? | |
| We agree that that's an alternative basis. | |
| As we say in our brief, that's reason enough to rule in our favor, and we have a holding of the court, Sawyer. | |
| We also have this tradition I was referring to earlier of recognition that runs from the decision of 1789 to all the opinions in Myers, it's alluded to in Wiener and so forth, recognizing the president's 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, right? | |
| It seems to me that if there is any level of cause, and you indicate that there is some level of cause, right? | |
| Well, then you can't be right about the idea that courts can't order anybody who's been removed to be reinstated. | |
| There is a traditional remedy to reinstate, we don't dispute, there's a traditional remedy to reinstate wrongfully removed officers, which is mandamus. | |
| But they don't argue mandamus here, and the reason they don't argue mandamus is they face a number of insuperable obstacles to prevailing in mandamus. | |
| One is, of course, going all the way back to Marvin against Madison, who can't mandamus the president, his discretionary acts. | |
| In addition to that, there is no preliminary writ of mandamus, as Judge Friendly pointed out in the Seventh Circuit has held. | |
| In other words, and keep in mind that the standard in mandamus would be clear and indisputable right to relief. | |
| And in fact, this is an ultra-virus challenge, but the standard is exactly the opposite. | |
| So, there is a circumstance in which a court can order the reinstatement of a wrongly removed officer. | |
| But there is a traditional remedy, mandamus. | |
| Here, obviously, it'd be quoto-oronto if there were two competing claimants, but where there's just the one, that would be mandamus. | |
| And they have not argued mandamus. | |
| They're trying to find their way around mandamus because the standards to prevail under mandamus are insuperable and they clearly cannot meet them. | |
| But, general. | |
| Thank you. | |
| 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 post that screenshots of the mortgage applications is in the record, but I don't recall if the paperwork itself is in the record, in the district court's 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 for cause doesn't mean anything that happened before the person took office. | |
| And I'll question Mr. Clement about that when he stands up. | |
| The D.C. Circuit decided it on two grounds: the same as the district court, and that there's a property interest in holding the position of governor of the Federal Reserve Board. | |
| Am I right on that? | |
| Not exactly. | |
| The D.C. Circuit state panel relied only on the property interest, did not rely on the pre-office misconduct, and that's insupportable. | |
| Well, did it not hold that that's what four-cause means? | |
| My recollection is that the D.C. Circuit, the Garcia opinion in the D.C. Circuit, relied solely on Laudermill and the due process property interest, which is baseless for the reasons we say. | |
| And now, the district court relied on the twin grounds, both that Laudermill rationale and also the. | |
| But those are the only two issues that were decided by the lower courts. | |
| That's correct. | |
| Justice O'Mayor. | |
|
Disagreements Not Grounds
00:14:51
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|
| I have a couple of follow-ups on Reagan and Shirdliff. | |
| You're relying on those two cases for your proposition that cause could be whatever the person the authority decides. | |
| But Reagan and Shirdliff 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 for-cause provision. | |
| So, you're extrapolating, correct? | |
| I disagree with that. | |
| We read Reagan differently. | |
| If you have those two key characters, 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 where the term of office is for a fixed period, notice and hearing are essential. | |
| Here, you need four cause, and there's a fixed period of tenure. | |
| And Reagan very clearly said notice and in hearing are required. | |
| So, if I move on from that, I go back to Justice Alito's question of you. | |
| I thought, and the chiefs, I thought there was a factual dispute. | |
| As I understood it, Ms. Cook's letter, her attorney's 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. | |
| If the president can go by social media and one believes that that is adequate notice under law, I'm hard-pressed to think a letter from a lawyer is not notice 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 my apartment the year before, thinking I would be in New York for the rest of my life. | |
| Things 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 papers submitted to the bank disclose the fact that this was a vacation home. | |
| So they may not have experienced deceit. | |
| If they didn't experience deceit, then you're left with gross negligence. | |
| And the question becomes, is it grossly negligent to make a mistake on a mortgage application? | |
| And 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, as Justice Alito pointed to, have not been addressed below, correct? | |
| What was dressed below? | |
| I think exactly what's the right to notice in a hearing by the circuit court and for cause being something that 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 can say two things about that. | |
| First, on the narrow point about whether or not a letter of counsel can create a factual dispute in this context, that's the holding of this court in Cottagin's Velga, where the court said that suggestions of counsel are not enough. | |
| It's the party who has to do it. | |
| So there were representations of counsel there, and the court held that that wasn't. | |
| That's an illegal proceeding. | |
| 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 on that. | |
| Thank you. | |
| Mrs. Kagan? | |
| 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 mandamus. | |
| But then, pretty much in the next sentence, you said, but of course, mandamus 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 that what does this cause requirement amount to? | |
| Well, Congress adopted a policy choice to impose on the president a cause requirement and not an INM requirement. | |
| As Justice Alita pointed out in the CFPB funding case, this was a hard-fought compromise. | |
| No, but I think it is 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 state a cause. | |
| But 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 mandamus route. | |
| What does it amount to? | |
| It seems pretty non-effectual. | |
| If it is non-effectual, which we dispute, we think it's very effectual, and it's proven to be effectual in history because it provides the governors with the most important protection, which is that Congress apparently wanted to give them, which is removal for protection against removal for policy disagreements. | |
| And governors have not been removed for policy disagreements. | |
| That has been a problem. | |
| Except 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 commitTedros negligence. | |
| And there's no question for all the reasons we discussed in our briefing that that confers broad discretion on the president. | |
| Now there's an outer perimeter that is subject to policing by judicial review, policy disagreement, no cause at all, and so forth. | |
| But that confers broad discretion on the president. | |
| But even if it was a de novo review here, gross negligence in a very important financial transaction that has this close nexus with what a government has to say to satisfy it. | |
| Does the president have 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. | |
| So 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 in our brief, kind of goes the other way in a way that'd be stronger for us, but we haven't disputed that in this case. | |
| That if it was there was no cause provided at all, then that would be subject to judicial review and likely an invalid removal. | |
| Thank you. | |
| Justice Gorsuch. | |
| Just to follow up on Justice Kagan's questions, I think in them was the question: if you think mandamus 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. | |
| He can't remove for policy disagreements. | |
| That might be one. | |
| The president says, I remove you for policy disagreements. | |
| He's open about it, let's say. | |
| Could happen. | |
| You would say still mandamus is not available, I think, wouldn't you? | |
| I think we would. | |
| Now, that might be a closer case because the mandamus standard is clear and indisputable right when we have conceded that policy disagreement would not be available. | |
| Actually, that might be a case where mandamus might be available with the caveat that how would Marbury apply to that? | |
| Marbury says you cannot mandamus the president in a discretionary decision. | |
| And so baked into our jurisprudence from the dawn of this court is the notion there's going to be some things the president does that you can't say. | |
| That's not a discretionary decision. | |
| If the president says I fire you for for policy reasons, that that would be outside of his discretion and therefore subject to mandamus, essentially that the argument would have to be that'd be ministerial, within the, within the meeting at Marbury, and then I think that that that standard in Marbury kind of gets ported into the standard in Cheney clear and indisputable right. | |
| Well, 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, but we're taking a firm position on that, Mrs. Cameron. | |
| For present purposes, you accept the constitutionality of the four-cause 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. | |
| It protects the governors for removal for policy disagreement, or for no reason at all. | |
| What is the broader purpose of that? | |
| To preserve the independence of the Federal Reserve. | |
| And what is the broader purpose of that? | |
| Well, there's a number of reasons that are discussed by the Aramiki, and I think not disputed by us, which is that there is a long tradition of having this exercise of monetary policy be exercised independent of executive influence. | |
| And we don't dispute that that's what Congress was doing in that statute. | |
| And again, we have not disputed the validity of the four-cause removal restriction here. | |
| And why is that independence important, in your view? | |
| We don't dispute the importance of that for many of the reasons that the Aramiki say, but we emphasize that there's a balance struck here. | |
| This is not an ironclad. | |
| You can never be removed. | |
| There is a cause removal authorized. | |
| But on that, your position that there's no judicial review, no process required, no remedy available, very low bar for cause that the president alone determines. | |
| I mean, that would weaken, if not shatter, 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 that this is a low bar for cause. | |
| In a sense, it's a very high bar. | |
| It's our very strong protection because it does protect them from the one thing that Congress was apparently most worried about, which is a removal for policy disagreement. | |
| 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. | |
| One of 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 set 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 20th, 2029, if there's a Democratic president or January 20th, 2033. | |
| And then we're really at at-will removal. | |
| So what are we doing here? | |
| That's why I started with what's the purpose of the independence and the four-cause removal. | |
| If we accept all these, no procedure, no judicial review, no remedy, you know, that's what's going to happen, I think. | |
| And 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 as a policy argument. | |
| Well, history is a pretty good God. | |
| Once these tools are unleashed, they are used by both sides, and usually more the second time around. | |
| And I think 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 and the consequences of your position for the structure of the government. | |
| Two points there. | |
| I dispute the characterization that these tools have been unleashed. | |
| The president has always had this tool to remove governors for financial improprieties. | |
| Now, the history is, including twice in the last four years, governors who have been credibly accused of financial improprieties have resigned. | |
| They haven't forced the president to remove them. | |
| And I think the more sort of fundamental point is that cause is a standard that is quite deferential to the president. | |
| Congress consciously adopted that instead of a more restrictive standard like INM. | |
| That was, 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 interests on the other side here. | |
| I get that. | |
| But again, thinking about the real world and the brief of the former governors of the Federal Reserve, I mean, your position, again, because you say, well, the president can't say it's for policy reasons, which may be what's really, again, not talking about the current situation and other situations in the future, what's really driving it. | |
| It incentivizes a president to 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? | |
|
Incentivizing Destruction Without Process
00:08:46
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|
| Now, again, you can dispute that you think it's going to lead to that. | |
| And again, I'm not talking about the facts of this case. | |
| I don't know the facts of this case, so I'm taking no position on that. | |
| This court has, since Martin against Mott, running all the way through Trump against the United States, Trump against Hawaii, a whole host of decisions, a court had consistently afforded the president the presumption of regularity in his action and consistently declined to probe a president's actions for their subjective motivations. | |
| And so in the hypothetical question that you posed, that hypothetical future president should also be afforded the very same sort of deference. | |
| That leads, I mean, that brief, that Amicus brief cites Justice Scalia's dissent in Morrison, which is always a good place to look for wisdom, and the concern that you're putting all these resources, because you can't say it's for policy, you put all these resources, let's find something, anything about this person. | |
| 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 some very, very, two very strong strains in this court's jurisprudence that go back to the founding. | |
| And what's the fear of more process here? | |
| In the sense that process protects you in the sense of helping you make better, more accurate decisions, and it helps, process helps you then convince people on the outside that you've made a considered, thorough, appropriate decision. | |
| What's the concern about more process? | |
| I don't think we think that process is necessarily bad. | |
| In this case, there's two reasons why process is not 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 contention 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 defiance. | |
| So there was a chance to tell, in the words of Lauder Mill to tell her side of the story, and it just wasn't, it wasn't adopted. | |
| And in fact, there hasn't been for months since then any clear explanation other than it was invert notation. | |
| It's just the kind of invert notation that ordinary people can be indicted for. | |
| And again, none of my questions or comments are 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 Justice Kavanaugh said, why are you afraid of a hearing or 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 in thinking about irreparable harm to the government, if one way, one step you could take to reduce your irreparable harm, to show that there really was cause, is 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 if it's a question of the district courts ordering us 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 irreparable injury on the existence. | |
| Well, they told you to go farther, but not that much farther. | |
| I mean, okay, so there's the truth social post and then, you know, burden on her to come back in five days. | |
| I understand that's your position. | |
| But, you know, Justice Gorsuch posited a 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 response is, gives her a chance to defend herself. | |
| I mean, that just wouldn't be that big a deal, it seems, if that's enough. | |
| Again, it's an intrusion on the executive branch to dictate what procedures it ought to be the president. | |
| And our position is he has provided process. | |
| He's provided adequate process. | |
| And if the district court said, well, that wasn't quite good enough, try again. | |
| And then we try again. | |
| And the district court says, nope, that wasn't quite good enough. | |
| Try again. | |
| We have gone left Vermont Yankee way in the rearview mirror. | |
| Do you concede that if the statute was an INM statute, then under Shirtliff you would have to provide process? | |
| Notice in 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 Shirtliff, the statute itself didn't say that you got notice in a hearing for INM, but the court said that you did. | |
| Here, the statute does say cause. | |
| Cause isn't as specific maybe as INM, but it does identify the grounds that the president must have for removal. | |
| Why shouldn't we do the same thing that the Shirtliff Court did and say that, well, as we said in Shirtliff, when a statute specifies the grounds for removal, there must be notice in a hearing given? | |
| Because the case law, presumably shortlift, when it said that as to INM, notice you get notice in a hearing, was relying on what we don't dispute is a, 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 INM give you notice in a hearing. | |
| The case law on cause is the opposite. | |
| I mean, look at the lower court opinion in Reagan. | |
| The court of 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 dispute, 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 prevail on that, it has to be so well settled and clearly established that there really wasn't a dispute about it. | |
| And you look, I can't emphasize enough, you know, what, for example, the Tuttle Michigan Law Review article from 1905 that's heavily relied on, for example, in the Manners and Miguel's brief that they rely heavily on in their supplemental brief. | |
| It says the case law is all over the map on all of these issues. | |
| That treaty says the courts differ on almost every conceivable part of this question. | |
| The only point of consistency is that specified causes, INM, which also, as we can see, is a holding of the court in shirtlif. | |
| Whereas cause just doesn't mean that. | |
| We cite all these cases and they dispute and there's this battle about what did the 19th century case law mean. | |
| Keep in mind, in the context of that battle, they bear the burden of making the old soil argument. | |
| Justice Jackson? | |
| Just following up really quickly on that point, 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. etc, etc. | |
| There's like a series of permutations and in those different circumstances, courts which asterisk were 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 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 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. | |
| So I'm talking about the combination. | |
| Yes, the combination. | |
| 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 four-clause provision in there for a reason. | |
|
Combination For Cause and Fixed Term
00:00:32
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|
| 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. | |