Supreme Court seems poised to try to 'outrun' its own theory to rein in Trump: analyst

The Republican-dominated Supreme Court has spent months steadily giving more and more powers to President Donald Trump, overruling or often just summarily blocking carefully crafted, nuanced decisions by lower courts. But now, it seems they've run into an issue on which even they fear the consequences of Trump being given absolute authority, Pema Levy wrote for Mother Jones.

The issue centers on Lisa Cook, a Federal Reserve governor who was accused by Trump's Federal Housing Finance Agency director Bill Pulte of committing mortgage fraud.

Those allegations appear to have growing evidence contradicting them, but it didn't stop Trump from ordering her fired, without any litigation of the claims and without even giving Cook a chance to defend herself. Analysts believe this is all part of Trump's ploy to coerce the Fed into lowering interest rates beyond what they deem prudent.

The case reached the Supreme Court earlier this week — and it was there, Levy wrote, where even justices who usually take Trump's side were suddenly not so sure about the huge new powers they're handing to the president.

"The problem the Republican wing of the court faces is that it has spent the past several years creating the legal basis for an all-powerful president who can indeed remove independent agency commissioners, like Federal Reserve Board Governors, at will," wrote Levy. "In caseaftercase, they have decreed that the president must control the entire executive branch, which must operate as an extension of his will. The Republican appointees have let Trump get away with illegal firings at other agencies on the theory that the president suffers an irreparable harm when he is blocked from wielding executive power as he sees fit."

In fact, Levy noted, the Supreme Court has another case before it, Trump v. Slaughter, that would overrule the ability of Congress to limit Trump's hiring and firing power of agency heads, effectively eliminating the independence of numerous federal agencies. The GOP justices appear eager to toss out 90 years of precedent to do so, endorsing a radical view known as "unitary executive theory" — but even they don't appear comfortable letting Trump do this with the Fed.

In fact, she noted, the same justices "seemed to embrace the kind of consequentialist thinking that was completely lacking in the Slaughter case just last month," warning that at-will removal of Fed officials could trigger a recession, and demanding an analysis of the real-world effects.

"It’s not obvious how the justices will outrun their unitary executive theory in the end, but after oral argument, it appears clear they are going to try — at least in some ways — to carve out the Fed," she concluded, even though it doesn't seem to make any legal sense. "The Supreme Court has boxed itself in when it comes to protecting the Fed. It remains to be seen how much they will stand up to Trump and how effectively they can wall off the Fed through rulings that are logically incoherent at best, and undermined by the rest of their judicial agenda at worst."