The Supreme Court sounded skeptical Wednesday that President Donald Trump has the sweeping powers he has asserted to sack members of the Federal Reserve Board of Governors. The case involves technical legal questions, but Justice Brett M. Kavanaugh made a telling point during oral arguments about tit-for-tat partisan escalations.
Trump tried to fire Lisa Cook, a Biden appointee to the Fed’s seven-member board, last August. The law says the president needs “cause” to remove Fed governors, so Trump pointed to unsubstantiated allegations of mortgage fraud dug up by one of his allies. There was no hearing, and Cook denies wrongdoing.
“What goes around comes around,” Kavanaugh observed in an exchange with Solicitor General D. John Sauer. If Trump can fire Cook, then all of his own Fed appointees “would likely be removed for cause on January 20, 2029, if there’s a Democratic president, or January 20, 2033,” the justice pointed out.
It’s hard to imagine a Democratic president acquiescing to a Fed stacked with Trump appointees if Trump prevailed in this case.
When Sauer protested that “I cannot predict what future presidents may or may not do,” Kavanaugh responded: “Well, history is a pretty good guide. Once these tools are unleashed, they are used by both sides — and usually more the second time around.”
Examples abound in modern American politics. Take the Democrats eliminating the Senate filibuster for most nominees when Barack Obama was president in 2013. Republicans finished the job by invoking the nuclear option for Supreme Court nominees in Trump’s first term. Or take President Joe Biden’s preemptive pardon of political allies on his way out of office last year, which has been followed by Trump’s pardon-power rampage.
Republicans could use Kavanaugh’s reminder as they cheer Trump’s aggressive assertions of executive power over spending, trade, law enforcement and so much else. The Supreme Court can limit some of those powers, including in this case.
But other Trump administration tactics will be remembered and replicated. “In order for us to correct the abuses that are happening now, we have to act the same in similar capacities that Trump has given himself,” Rep. Alexandria Ocasio-Cortez (D-N.Y.) told NOTUS.
Trump has a short political horizon. Other Republican politicians will need to live with the new norms he is creating.
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