Amicus Curiae Brief — Donald J. Trump, President of the United States, Applicant v. Lisa D. Cook, Member of the Board of Governors of the Federal Reserve System, et al.

Supreme Court briefSep 26, 2025

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No. 25A312

________________________________________

IN THE SUPREME COURT OF THE UNITED STATES

________________________________________

DONALD J. TRUMP, Applicant,

v.

LISA D. COOK, Respondent.

________________________________________

BRIEF OF AMICI CURIAE FORMER GOVERNMENT OFFICIALS AND

ADVISORS OPPOSING THE STAY APPLICATION

________________________________________

JOSHUA PERRY

Counsel of Record

ELIZABETH TULIS*

KRISTA OEHLKE

E. DANYA PERRY

PERRY LAW, LLC

445 Park Avenue, 7th Floor

New York, NY 10022

(212) 251-2619

jperry@danyaperrylaw.com

Counsel for Amici

* Admitted only in New York.

Practice in D.C. is under D.C.

Bar member supervision.

TABLE OF CONTENTS

TABLE OF AUTHORITIES ......................................................................................... iii

IDENTITY AND INTEREST OF AMICI ...................................................................... 1

SUMMARY OF ARGUMENT ....................................................................................... 5

ARGUMENT .................................................................................................................. 7

I. The equities militate against a stay, which would upend the status quo and

injure the public interest............................................................................................ 7

A. The Administration seeks to upend the status quo. ....................................... 7

B. Upending the status quo would injure the public interest. ............................ 9

II. History, tradition, and venerable canons of statutory interpretation all cut

against the Administration on the merits. .............................................................. 13

A. 225 years of history and tradition evidence the robust substance of § 242’s

for cause protection–and undercut the Administration’s Due Process

argument. .............................................................................................................. 14

B. The Administration’s claim of unreviewable discretion defies the

presumption of judicial review and threatens the constitutional separation of

powers. ................................................................................................................... 21

CONCLUSION............................................................................................................. 23

ii

TABLE OF AUTHORITIES

Page(s)

Cases

A.A.R.P. v. Trump,

605 U.S. 91 (2025) .................................................................................................. 20

Advoc. Health Care Network v. Stapleton,

581 U.S. 468 (2017) ................................................................................................ 18

Block v. Community Nutrition Institute,

467 U.S. 340 (1984) ................................................................................................ 22

Consumer Fin. Prot. Bureau v. Cmty. Fin. Servs. Ass’n of Am., Ltd.,

601 U.S. 416 (2024) ................................................................................................ 14

Consumers’ Rsch. v. Consumer Prod. Safety Comm’n,

98 F.4th 646 (5th Cir. 2024) ................................................................................... 15

Cook v. Trump,

1:25-cv-02903-JMC (D.D.C.) ................................................................................ 7, 8

Dames & Moore v. Regan,

453 U.S. 654 (1981) ................................................................................................ 19

Dep’t of Com. v. New York,

588 U.S. 752 (2019) ................................................................................................ 18

Dep’t of Transp. v. Ass’n of Am. Railroads,

575 U.S. 43 (2015) .................................................................................................. 22

Ex parte Grossman,

267 U.S. 87 (1925) .................................................................................................. 19

Guerrero-Lasprilla v. Barr,

589 U.S. 221 (2020) ................................................................................................ 21

K Mart Corp. v. Cartier, Inc.,

486 U.S. 281 (1988) ................................................................................................ 18

Kisor v. Wilkie,

588 U.S. 558 (2019) ................................................................................................ 19

Labrador v. Poe,

144 S. Ct. 921 (2024) ............................................................................................ 8, 9

iii

Marbury v. Madison,

5 U.S. 137 (1803) ................................................................................................... 23

Nken v. Holder,

556 U.S. 418 (2009) .............................................................................................. 7, 8

Patel v. Garland,

596 U.S. 328 (2022) ................................................................................................ 22

Perry v. Sinderman,

408 U.S. 593 (2009) ................................................................................................ 20

Rutan v. Republican Party of Illinois,

497 U.S. 62 (1990) ............................................................................................ 18, 19

Thryv, Inc v. Click-To-Call Techs., LP,

590 U.S. 45 (2020) ............................................................................................ 22, 23

Trump v. International Refugee Assistance Project,

582 U.S. 571 (2017) .................................................................................................. 7

Trump v. Wilcox,

145 S. Ct. 1415 (2025) ............................................................................ 7, 12, 14, 20

United States v. Am. Tobacco Co.,

221 U.S. 106 (1911) ................................................................................................ 10

United States v. Midwest Oil Co.,

236 U.S. 459 (1915) ................................................................................................ 19

Zivotofsky v. Kerry,

576 U.S. 1 (2015) .............................................................................................. 19, 20

Constitution and Statutes

U.S. Const. art. 1 § 8 .................................................................................................... 15

5 U.S.C. § 807 ............................................................................................................... 16

12 U.S.C. § 225a ........................................................................................................... 17

12 U.S.C. § 242 ................................................................................. 4, 13, 14, 16, 19, 20

12 U.S.C. §§ 243 ........................................................................................................... 16

12 U.S.C. §§ 244 ........................................................................................................... 16

iv

12 U.S.C. § 248 ....................................................................................................... 16, 17

12 U.S.C. § 248(p) ........................................................................................................ 16

12 U.S.C. § 250 ............................................................................................................. 16

12 U.S.C. § 3910(a)(3) .................................................................................................. 16

Other Authorities

Aditya Bamzai & Peter M. Shane, The Removal Question: A Timeline

and Summary of the Legal Arguments, 78 Stan. L. Rev. Online 64

(2025) ...................................................................................................................... 15

Alan Greenspan: Transparency in monetary policy (Oct. 11, 2001),

https://perma.cc/6XZD-SMAK ................................................................................ 17

Brett M. Kavanaugh, Separation of Powers During the Forty-Fourth

Presidency and Beyond, 93 Minn. L. Rev. 1454 (2009) ......................................... 14

Colby Smith & Ben Casselman, How the Future of the Fed Came to

Rest on Lisa Cook, NYTimes (Aug. 29, 2025),

https://perma.cc/DT7E-7BD9 ................................................................................. 10

David Beckworth, What Would Milton Friedman Say about Financial

Stability?, Mercatus Center (May 2, 2022), https://perma.cc/3YUBCADJ ....................................................................................................................... 17

Dennis Snower, Ripples presaging a financial tsunami, VoxEU – CEPR

(Sep. 19, 2025), https://perma.cc/2C6E-AQ7Z ....................................................... 11

Heather Stewart, What Trump’s Move to Fire Fed Governor Means for

Central Bank’s Independence, The Guardian (Aug. 25, 2025),

https://perma.cc/VS5L-PK5Y ................................................................................. 11

Lawrence Lessig & Cass R. Sunstein, The President and the

Administration, 94 Colum. L. Rev. 1, 119 (1994) ............................................ 14, 15

Roger W. Ferguson Jr. & Maximilian Hippold, The Fed Is in Uncharted

Waters Ahead of Key September Rate Decision, Council on Foreign

Relations (Aug. 27, 2025), https://perma.cc/R5WB-ZT3V ..................................... 11

Sam Sutton & Kyle Cheney, Trump asks the Supreme Court to let him

fire Federal Reserve board member Lisa Cook, POLITICO (Sept. 18,

2025), https://perma.cc/6ACX-9PBS ........................................................................ 8

v

Tatyana Deryugina et al., Economists’ Open Letter in Support of

Governor Lisa Cook & Fed Independence, Economists’ Open Letter

(Sept. 2, 2025), https://perma.cc/28CM-F23X ........................................................ 10

Theo Leggett, US Fed loss of independence a serious danger, says

Lagarde, BBC News (Sep. 1, 2025), https://perma.cc/49AA-QF76 ....................... 10

The President’s News Conference, Ronald Reagan Presidential Library

& Museum (Feb. 18, 1982), https://perma.cc/AE9T-H8BF ................................... 17

What Is the U.S. Federal Reserve?, Council on Foreign Relations (Sept.

16, 2025), https://perma.cc/F5HV-6GJX .................................................................. 9

vi

IDENTITY AND INTEREST OF AMICI

Amici are lawyers, retired jurists, scholars, and former public officials elected

as Republicans, appointed by Republicans, or who served in Republican

administrations. Together, they have many hundreds of years of public service. They

are united by their shared reverence for the history and tradition of American

institutions, and by their commitment to liberty, limited government, and the rule of

law.

Amici write because they fear that the Administration’s unprecedented

attempt to remove a Federal Reserve Governor threatens the separation of powers

that defines our constitutional order. Amici deeply value stability, consistency, and

continuity—the qualities that Congress intended to assure by providing the Fed with

substantial independence, and which have helped make the United States economy

the strongest in the world. Amici know that there is nothing conservative about the

Administration’s break with 225 years of tradition underlying the Federal Reserve’s

independence.

Amici are:

•

Donald Ayer, Deputy Attorney General under President George H.W. Bush

(1989-90); Principal Deputy Solicitor General (1986-1988); U.S. Attorney for

the Eastern District of California, appointed by President Ronald Reagan

(1982-86); Assistant U.S. Attorney, N.D. California (1977-79).

•

Richard Bernstein, Attorney, Appointed by the Supreme Court to argue in

Carmell v. Texas, 529 U.S. 513 (2000) and Montgomery. Louisiana, 577 U.S.

190 (2016).

•

Ty Cobb, Special Counsel to the President in the Trump Administration (2017

-2018); Assistant U.S. Attorney for the District of Maryland (1980-1986).

•

Tom Coleman, Assistant Attorney General of Missouri (1969-1972); Missouri

State Representative (1973-1976); Representative of the 6th Congressional

District of Missouri (1976-1993) (R).

•

Barbara Comstock, Representative of the 10th Congressional District of

Virginia (2015-2019) (R).

•

Mickey Edwards, Representative of the 5th Congressional District of

Oklahoma (1977-1993) (R).

•

John J. Farmer, Jr., New Jersey Attorney General (1999-2002) (R); Assistant

U.S. Attorney for the District of New Jersey (1990-1994).

•

John Giraudo, Attorney Advisor in the Department of Justice Office of Legal

Counsel during the Reagan Administration (1986-1989).

•

James C. Greenwood, Representative of the 8th Congressional District of

Pennsylvania (1993-2005) (R).

•

Bob Inglis, Representative of the 4th Congressional District of South Carolina

(1993-1999; 2005-2011) (R).

2

•

Philip Allen Lacovara, Deputy Solicitor General in the Nixon Administration;

President Ronald Reagan’s representative on the DC Judicial Nomination

Commission.

•

J. Michael Luttig, Circuit Judge, United States Court of Appeals, appointed by

President George H.W. Bush (1991-2006); Assistant Attorney General, Office

of Legal Counsel and Counselor to the Attorney General in the Bush

Administration (1990-1991); Assistant Counsel to the President in the Reagan

Administration (1981-1982).

•

John McKay, U.S. Attorney for the Western District of Washington, appointed

by President George W. Bush (2001-2007).

•

Carter G. Phillips, Assistant to the Solicitor General during the Reagan

Administration (1981-1984).

•

Alan Charles Raul, Associate Counsel to the President (1986-1988); General

Counsel, Office of Management and Budget (1988-1989); General Counsel,

U.S. Department of Agriculture (1989-1993); Vice Chairman, Privacy and Civil

Liberties Oversight Board (2006-2008).

•

Claudine Schneider, Representative of the 2nd Congressional District of Rhode

Island (1981-1991) (R).

•

Robert Shanks, Deputy Assistant Attorney General, Office of Legal Counsel in

the Reagan Administration (1981-1984).

•

Christopher Shays, Representative of the 4th Congressional District of

Connecticut (1987-2009) (R).

3

•

Fern M. Smith, Judge of the U.S. District Court for the Northern District of

California, appointed by President Ronald Reagan (1988-2005).

•

David Trott, Representative of the 11th Congressional District of Michigan

(2015-2019) (R).

•

Stanley A. Twardy, Jr., United States Attorney for the District of Connecticut,

Appointed by President Ronald Reagan (1985-1991); Chief of Staff to

Connecticut Governor Lowell P. Weicker, Jr. (1991-1993).

•

James T. Walsh, Representative of the 27th Congressional District of New

York (1989-2009) (R).

•

William Joseph Walsh, Representative of the 8th Congressional District of

Illinois (2011-2013) (R).

•

William F. Weld, Governor of Massachusetts (1991-1997) (R); Assistant

Attorney General for the Criminal Division (1986-1988).

•

Christine Todd Whitman, Governor of New Jersey (1994-2001) (R);

Administrator of the Environmental Protection Agency in the George W. Bush

Administration (2001-2003).

4

SUMMARY OF ARGUMENT

Amici write to show why equitable principles, history, tradition, and

longstanding interpretive canons militate against the Administration’s stay request.

First, the public interest would be injured by the Administration’s

unprecedented attempt to break from our long tradition of monetary policy

independence. Amici are committed to stability, consistency, and continuity—the

same values that interim equitable relief is designed to protect. But the

Administration would upend two different status quos: Governor Lisa Cook’s service

on the Federal Reserve Board, which continues uninterrupted, and a history, going

back to 1791, of insulating the Federal Reserve and its predecessors from political

interference. The Administration’s defiance of history and tradition would threaten

the strength and stability of the U.S. and global economies.

Second, the Administration cannot show a likelihood of success on the merits.

Its case depends on the meaning of “for cause” in the Federal Reserve Act’s 12 U.S.C.

§ 242. But traditional canons of statutory interpretation support Governor Cook’s

position that § 242’s “for cause” protection is best understood as a specific legal

standard embodying a robust cause requirement subject to appropriate process and

judicial review.

The Federal Reserve Act grew out of a consistent tradition, dating back before

the Founding, of insulating monetary policy from executive interference. That

tradition explains the structure of the Act, whose overlapping protections against

political interference mean nothing without the “for cause” linchpin. This Court

5

should read the Act in light of that structure and history; in light of consistent

executive practice, which provides powerful evidence that the Act’s original public

meaning included robust protections for Fed Governors; in light of the presumption

of judicial review, which defaults to Article III review of executive action when a

statute is silent; and in light of the canon of constitutional avoidance, which is

implicated by the Administration’s frontal attack on both legislative and judicial

checks and balances.

6

ARGUMENT

I. The equities militate against a stay, which would upend the status quo

and injure the public interest.

The extraordinary remedy of interim equitable relief is appropriate only where

an applicant can show—among other things—that the equities weigh heavily in its

favor. See, e.g., Trump v. International Refugee Assistance Project, 582 U.S. 571, 580

(2017) (since “[t]he purpose of . . . interim equitable relief is . . . to balance the equities

as the litigation moves forward,” this Court examines not only likelihood of success

on the merits and irreparable harm to the applicant but also “the relative harms” and

“the interests of the public at large”), and see Nken v. Holder, 556 U.S. 418, 434 (2009).

Here, even setting aside potential harm to Governor Cook herself, the equities weigh

decisively against the Administration’s desired relief, which would end Federal

Reserve independence and threatens to wreak havoc on the global financial system.

A. The Administration seeks to upend the status quo.

The Administration wants to upend the status quo, abruptly removing

Governor Cook from the Federal Reserve Board—and threatening the stability of the

nation’s monetary policy and the world economy.

This Court has previously held that a stay is appropriate “to avoid the

disruptive effect of the repeated removal and reinstatement of officers during the

pendency of th[e] litigation.” Trump v. Wilcox, 145 S. Ct. 1415 (2025). Here, that

principle militates against a stay, which would have precisely the disruptive effect

that Wilcox feared. Governor Cook began serving on the Board in 2022, and was

appointed to a full 14-year term in 2023. See Memorandum Opinion, Cook v. Trump,

7

1:25-cv-02903-JMC (D.D.C. Sep. 9, 2025), ECF No. 27 at 4. She still serves, since the

Board of Governors has not effectuated the President’s removal demand. See, e.g.,

Resp. to Mot. for Temporary Restraining Order, Cook v. Trump, 1:25-cv-02903-JMC

(D.D.C. Aug. 29, 2025), ECF No. 12 (expressing the Board’s “interest in a prompt

ruling by [the district court] to remove the existing cloud of uncertainty” and the

Board’s “intent to follow any order” issued by that court). Just days ago, she attended

the most recent Board of Governors policy meeting. 1 Granting the Administration’s

application, then, would contravene the fundamental purpose of a stay—which,

properly deployed, “simply suspends judicial alteration of the status quo.” Nken, 556

U.S. at 429 (cleaned up) (quoting Ohio Citizens for Responsible Energy, Inc. v. NRC,

479 U.S. 1312, 1313 (1986) (Scalia, J., in chambers)).

Tacitly acknowledging that the interim relief it seeks conflicts with a stay’s

basic purpose, the Administration insists—citing Justice Kavanaugh’s concurrence

in Labrador v. Poe, 144 S. Ct. 921, 931 (2024)—that stay applications are resolved

with reference to the Nken factors rather than by applying “a blanket rule of

preserving the status quo.” App. 38. That is true as far as it goes, but it does not go

very far. Justice Kavanaugh observed that the “status quo” means different things in

different contexts. 144 S. Ct. at 930. In the context of Labrador, for instance, “status

quo” might have meant “the situation on the ground before enactment of the new

law,” “the situation after enactment of the new law, but before any judicial

1 See Sam Sutton & Kyle Cheney, Trump Asks the Supreme Court to Let Him Fire Federal Reserve

Board Member Lisa Cook, POLITICO (Sept. 18, 2025), https://perma.cc/6ACX-9PBS.

8

injunction,” “the situation after any district court ruling on a preliminary injunction,”

or “the situation after a court of appeals ruling on a stay or injunction.” Id. Justice

Kavanaugh recognized that each of those definitions can be defensible, and any might

apply in an appropriate case. See id. So a blanket rule may be impossible. But Judge

Kavanaugh’s concurrence nowhere questioned Nken’s foundational observation that

the purpose of a stay is to preserve some status quo—appropriately, and contextually,

defined.

Here, granting the relief sought would alter the status quo however it is

defined. Preserving the pre-presidential pronouncement status quo means leaving

Governor Cook in office. Preserving the pre-judicial action status quo also means that

Governor Cook keeps her job pending a merits resolution. Likewise with preserving

the post-preliminary injunction status quo, or the post Court of Appeals status quo.

And, perhaps most relevantly as this Court considers the public interest: granting

the stay would upend a 225-year status quo, sanctioned by history, that protects Fed

monetary policy stability by fending off political interference. See infra. pp. 14-18.

B. Upending the status quo would injure the public interest.

Allowing the President to remove Governor Cook at his discretion would expose

U.S. monetary policy, and the entire world economy, to profound instability.

The Fed’s independence is the bedrock of global confidence in U.S. financial

leadership. 2 Undermining that independence could trigger lasting doubt in the

2 See CFR Editors, What Is the U.S. Federal Reserve?, COUNCIL ON FOREIGN RELATIONS (Sept. 16, 2025),

https://perma.cc/F5HV-6GJX.

9

stability of American institutions. 3 Allowing Governor Cook to be removed now,

without even full merits review, would send an unmistakable signal that the Federal

Reserve is vulnerable to political control—especially if, as the Administration urges,

“cause” means nothing more than a President’s unreviewable whim. 4 On the

Administration’s reading, after all, the President could replace the entire Board,

claiming a pretextual cause that no court could gainsay. The unprecedented

disruption—and the very real threat of further, ongoing disruption, at least every

four years—would deeply injure the public interest, inflicting harms that preclude

the Administration from coming close to demonstrating that the equities favor relief.

Cf. United States v. Am. Tobacco Co., 221 U.S. 106, 187 (1911) (declining to enter

proposed permanent injunctive relief because the contemplated remedies “might

inflict infinite injury upon the public by leading to a stoppage of supply and a great

enhancement of prices” or otherwise “do grievous injury to the public”).

The downstream consequences of Governor Cook’s removal would be

monumental. Economic and policy experts have emphasized that interference with

the Fed’s independence would reverberate far beyond the United States. 5 Governor

Cook’s other Amici have explained, “Sectors that pay close attention to the Federal

3 See id.

4 Cf. Tatyana Deryugina et al., An Open Letter from Economists in Support of Governor Lisa Cook and

Federal Reserve Independence, Economists’ Open Letter (Sept. 2, 2025), https://perma.cc/28CM-F23X

(protecting the Federal Reserve’s independence is “not merely a legal formality; it is a practical

mechanism, designed to ensure that monetary policy cannot be misused for political gain at the

expense of what’s best for the economy”).

5 See, e.g., Theo Leggett, US Fed Loss of Independence a Serious Danger, Says Lagarde, BBC NEWS

(Sept. 1, 2025) (noting that the head of the European Central Bank has warned that if President

Donald Trump were to undermine the independence of the US Federal Reserve, it would represent a

‘very serious danger’ to the global economy”), https://perma.cc/49AA-QF76.

10

Reserve—including the financial markets, the public, employers, and lenders—are

watching the current dispute over the President’s removal of Governor Cook to judge

how credible the Fed will be going forward.” Brief of Amici Curiae Former Treasury

Secretaries, Federal Reserve Board Chairs and Governors, Council of Economic

Advisers Chairs, and Economists in Opposition to the Application To Stay the

Preliminary Injunction at 24, Trump v. Cook, No. 25A312 (Sept. 25, 2025). As experts

from the Council on Foreign Relations recently observed, “Eroding trust in the central

bank’s autonomy has implications far beyond any single administration. It threatens

the role of the dollar as the world’s reserve currency.” 6

Even the perception that the Fed’s independence is compromised could erode

market confidence, potentially raising U.S. Treasury yields—an outcome with farreaching consequences for global financial markets. 7 The dollar itself could weaken

dramatically, losing its position as the global reserve currency and sending

inflationary shocks worldwide. 8

The Administration nowhere disputes that those harms could and would follow

from Governor Cook’s removal. See, e.g., App. 16 (asserting only that “[t]he public’s

interest in the independence of the Federal Reserve Board does not somehow

establish that Cook has a private property right to the office of Governor”). It makes

Roger W. Ferguson Jr. & Maximilian Hippold, The Fed Is in Uncharted Waters Ahead of Key

September Rate Decision, COUNCIL ON FOREIGN RELATIONS (Aug. 27, 2025), https://perma.cc/R5WBZT3V.

6

7 Heather Stewart, What Trump’s Move to Fire Fed Governor Means for Central Bank’s Independence,

THE GUARDIAN (Aug. 25, 2025), https://perma.cc/VS5L-PK5Y.

Dennis Snower, Ripples Presaging a Financial Tsunami, VOXEU – CEPR (Sept. 19, 2025),

https://perma.cc/2C6E-AQ7Z.

8

11

only two feeble attempts to explain how the public interest and balance of the equities

support its application. Neither convinces.

First,

the

Administration

misstates

the

record.

Citing

Wilcox,

the

Administration argues that “the government faces a serious risk of irreparable harm

when a district court reinstates a removed principal executive officer.” App. 36. This

purported harm, the Administration says, outweighs any harm faced by Governor

Cook. App. 37-38. But, as noted above, the “disruptive effect of . . . repeated removal

and reinstatement” invoked by the Court in Wilcox, 145 S. Ct. 1415, would follow

from a grant of the Administration’s stay request, not its denial. And “the

government,” writ large, faces no such risk. Congress did not authorize this removal.

The harm to Congress’ scheme will come if the Administration wins. Meanwhile, the

Administration thinks the judiciary has nothing to say about any of this. So only one

branch of a three-part government faces the prospect of disappointment.

Second, the Administration plays a shell game, substituting a merits argument

for an argument about the equities. It invokes the President’s own determination that

Governor Cook should be removed, asserting that “the President may reasonably

determine that interest rates paid by the American people should not be set by a

Governor who appears to have lied about facts material to the interest rates she

secured for herself.” App. 5. 9 In essence, the Administration claims both that courts

may not interrogate the President’s purported “cause” and also that courts must

9 While the introduction to the Administration’s application alludes to “the public’s interest in ensuring

that an ethically compromised member does not continue wielding its vast powers,” App. 5, the

argument that follows entirely fails to address how the public interest supports issuance of a stay.

12

accept the President’s say-so in evaluating whether the Administration has met its

burden with respect to the other elements it must establish for interim equitable

relief. See also App. 37 (arguing that “the district court improperly substituted its

own judgment for the President’s” in assessing relative harm). That reasoning

collapses the final stay factors into the Administration’s merits argument and defies

the constitutional separation of powers. The President should not decide for this

Court whether the equities weigh in his favor.

Granting a stay would deeply harm the public interest and upend both the

status quo in this case—Governor Cook is in office now—and the long-term status

quo of Fed independence. Under traditional equitable principles, the Court should

deny the Administration’s application.

II. History, tradition, and venerable canons of statutory interpretation all

cut against the Administration on the merits.

History going back to the First Bank of the United States sanctions the Federal

Reserve’s unique independence, backed by a robust “for cause” protection that

insulates Governors from at-whim removal. Presidential practice across nineteen

administrations, in a tradition unbroken until August of this year, honored that

independence—which, in turn, served the congressional purpose of a stable monetary

policy that has undergirded U.S. economic success. And the availability of judicial

review to check presidential overreach protects that independence.

The Administration’s merits case casts aside history, traditional practice, the

presumption of judicial review, and the constitutional separation of powers. But those

values and institutions show why 12 U.S.C. § 242’s “for cause” protection must be

13

read robustly, to prevent policy-based and pretextual removals and to ensure the

availability of review.

A. 225 years of history and tradition evidence the robust substance of

§ 242’s for cause protection–and undercut the Administration’s Due

Process argument.

Congress has insulated the Fed and its predecessors from political interference

since the birth of our constitutional order. The Administration would upend that

“unique” arrangement, sanctioned by 225 years of a “distinct” history and tradition.

Wilcox, 145 S. Ct. 1415 (“The Federal Reserve is a uniquely structured, quasi-private

entity that follows in the distinct historical tradition of the First and Second Banks

of the United States.”); Consumer Fin. Prot. Bureau v. Cmty. Fin. Servs. Ass’n of Am.,

Ltd., 601 U.S. 416, 467 n. 16 (2024) (Alito, J., dissenting) (“The Board … is a unique

institution with a unique historical background … For Appropriations Clause

purposes, the funding of the Federal Reserve Board should be regarded as a special

arrangement sanctioned by history.”); Brett M. Kavanaugh, Separation of Powers

During the Forty-Fourth Presidency and Beyond, 93 Minn. L. Rev. 1454, 1474 (2009)

(“To be sure, in some situations it may be worthwhile to insulate particular agencies

from direct presidential oversight or control—the Federal Reserve Board may be one

example, due to its power to directly affect the short-term functioning of the U.S.

economy by setting interest rates and adjusting the money supply.”).

Start even before the Founding. The Framers at the Constitutional Convention

believed “that tyranny follows mixing power over the purse with power over the

sword.” Lawrence Lessig & Cass R. Sunstein, The President and the Administration,

14

94 Colum. L. Rev. 1, 29 n.137 (1994). So they denied the President the power of the

purse—including the powers, vested only in Congress, to borrow money and to

regulate the money supply. U.S. Const. art. 1, § 8. Since control over the public fisc

was not understood as an executive function, the Founding-era Congress moved

quickly to keep the President’s hands off the treasury. As one scholar put it, “Congress

at first believed the Treasury Department should be closely associated with it, ...

occupying a status different from that of State and War.” Id. at 28 (citing Leonard D.

White, The Federalists: A Study in Administrative History 55, 118-19 (1948)).

Congress—presaging

the

protections

for

Federal

Reserve

Governors—even

“shield[ed] the Comptroller (an office within Treasury) from presidential direction.”

Id. at 27.

No surprise, then, that Congress insulated our original banks from executive

control. 10 The First Bank of the United States, chartered in 1791, was run by twentyfive directors, elected by the shareholders. Aditya Bamzai & Peter M. Shane, The

Removal Question: A Timeline and Summary of the Legal Arguments, 78 Stan. L. Rev.

Online 64, 69–70 (2025). Since the United States could never be more than a minority

shareholder—it was “statutorily barred from subscribing to more than one-fifth of the

Bank stock”—the government could never dominate the bank’s direction or control

its policy. Id. Congress chose a different mechanism for insulating the Second Bank

of the United States, chartered in 1816, but the outcome was the same. The President

10 Monetary policy is still not seen as an executive function. See, e.g., Consumers’ Rsch. v. Consumer

Prod. Safety Comm’n, 98 F.4th 646, 657 (5th Cir. 2024) (Oldham, J., dissenting) (“The Fed’s most

important responsibility is administration of the money supply, . . . [which] is not an executive

function.”).

15

could name only five of the Bank’s twenty-five directors. Id. at 70. Here, too, the

President could never dictate the Board’s direction.

Congress built the Federal Reserve System to uphold that tradition of

independence. The President could not control the First and Second Banks, and he

would not be able to control the Fed, either. The Federal Reserve Act, passed in 1913,

insulates the Fed by giving its seven Governors stagged 14-year terms. 12 U.S.C.

§ 242. Bank assessments, not annual appropriations, fund the Board. Id. at §§ 243,

244. Neither Congress (through the Congressional Review Act) nor the Government

Accountability Office can review the Fed’s rules or audit its deliberations. 12 U.S.C.

§ 3910(a)(3); 5 U.S.C. § 807. And, unlike executive branch agencies, the Board

litigates independently, 12 U.S.C. § 248(p), and speaks to Congress independently,

without approval or intermediation by any “officer or agency of the United States.”

12 U.S.C. § 250. Governors survive presidential administrations, promoting stability

and continuity and minimizing the likelihood that any President will have the

opportunity to exert too much control over the Board.

But, without robust removal protections for Governors, that insulated

structure is not yet airtight. What if a new President—or a sitting President, eager

for a short-term economic boost—simply tries to clean house, and start over with a

slate of handpicked (and likeminded) Governors? Congress thought of that, too. That

is where § 242’s “for cause” protection comes in: it is the only bar to wholesale

presidential control over the Fed’s membership. If the President could replace Board

16

members at his sole discretion and without any judicial scrutiny, none of the other

protections would mean anything.

The Fed’s political independence mattered so much to Congress because

independence promotes stability across administrations and over time, and Congress

explicitly crafted a scheme aimed at maximizing “the stability of the financial system

of the United States.” 12 U.S.C. § 248; and see 12 U.S.C. § 225a (charging the Fed

with “promot[ing] effectively the goals of maximum employment, stable prices, and

moderate long-term interest rates.”). Congress was right. Monetary policy stability is

indispensable to long-term economic success. 11

Congress’ insulated structure worked. The Federal Reserve Act is both the

product and the progenitor of a “unique” historical tradition: it grew out of a history

of independence, and it has fostered a history of independence. Since Woodrow Wilson

signed the Federal Reserve Act, no President—for nineteen different administrations,

across 112 years—has ever tried to dismiss a Board Governor. Instead, prior

administrations have repeatedly endorsed the Fed’s independence. For instance:

while President Reagan had his disagreements with then-Federal Reserve Chairman

Paul Volcker, he still affirmed that “[t]his administration will always support the

political independence of the Federal Reserve Board.” 12

11 See, e.g., David Beckworth, What Would Milton Friedman Say about Financial Stability?, MERCATUS

CENTER (May 2, 2022), https://perma.cc/5J35-KQKH (arguing that Milton Friedman “believed a stable

monetary policy regime would lead to stable nominal income growth and, in turn, support financial

stability.”); Alan Greenspan: Transparency in Monetary Policy (Oct. 11, 2001), https://perma.cc/6XZDSMAK (characterizing the Fed’s “ultimate objectives” as achieving “price stability and the maximum

sustainable growth in output that is fostered when prices are stable.”).

12 See The President’s News Conference, Ronald Reagan Presidential Library & Museum (Feb. 18,

1982), https://perma.cc/AE9T-H8BF.

17

This history, and the “for cause” protection’s indispensable place in the

comprehensive congressional scheme, matter here in at least three ways that show

why the Administration cannot prevail on the merits.

First, Congress’ centuries-long insistence on central bank independence speaks

to the robust meaning of its “for cause” protection. If the Administration is right, that

protection is not even a speedbump. The President can invent any pretext he chooses,

and no judge can second-guess him. But see Dep’t of Com. v. New York, 588 U.S. 752,

785 (2019) (“[W]e are ‘not required to exhibit a naiveté from which ordinary citizens

are free.’”) (citation omitted). The Administration asks this Court to assume that

Congress, which spent two centuries protecting banks’ independence, also

deliberately built a fatal (and obvious) design flaw into its own structure. This is the

Death Star theory of congressional drafting. If “for cause” means whatever the

President wants it to mean, it is not just redundant but also cuts against the entire

statutory structure and the century and more of history behind the FRA. Cf. Advoc.

Health Care Network v. Stapleton, 581 U.S. 468, 477 (2017) (deploying the surplusage

canon); K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988) (deploying the wholetext canon, which requires looking to “the language and design of the statute as a

whole.”).

Second, the uninterrupted history of government practice post-FRA enactment

is strongly probative of the “for cause” protection’s meaning.

Traditions of practice help elucidate the meaning of ambiguous text. See, e.g.,

Rutan v. Republican Party of Illinois, 497 U.S. 62, 95 (1990) (Scalia, J., dissenting)

18

(“[W]hen a practice not expressly prohibited by the text ... bears the endorsement of

a long tradition of open, widespread, and unchallenged use that dates back to the

beginning of the Republic, we have no proper basis for striking it down.”). That is true

in constitutional interpretation. Zivotofsky v. Kerry, 576 U.S. 1, 23 (2015) (“In

separation-of-powers cases this Court has often ‘put significant weight upon

historical practice.’”) (citing N.L.R.B. v. Noel Canning, 573 U.S. 513, 524 (2014)). And

it is true in statutory interpretation. Kisor v. Wilkie, 588 U.S. 558, 594 (2019)

(Gorsuch, J., concurring) (“[T]he government’s early, longstanding, and consistent

interpretation of a statute ... could count as powerful evidence of its original public

meaning.”). Amici believe that our shared history makes meaning. Or, as Justice

Scalia put it, our venerable traditions “are themselves the stuff out of which the

Court’s principles are to be formed.” Rutan, 497 U.S. at 96.

Presidential practice is part of our interpretive tradition. In Dames & Moore v.

Regan, the Court cited presidential practice dating back to 1799 as evidence of the

scope of “Executive Power.” 453 U.S. 654, 679–681 & n.8, 686 (1981). In Ex parte

Grossman, it relied on unchallenged presidential use of the pardon power since 1841.

267 U.S. 87, 118–119 (1925). In United States v. Midwest Oil Co., the Court upheld

presidential authority to withdraw public lands from private use by citing a line of

executive practice “dat[ing] from an early period in the history of the government,”

“uniformly and repeatedly acquiesced in” by Congress. 236 U.S. 459, 469–471, 474

(1915). More recently, in Zivotofsky, the Court considered whether Congress could

compel the President to list “Israel” as the place of birth on a U.S. citizen’s passport.

19

Writing in dissent, Justice Thomas concluded that the President retained exclusive

authority over passports—not by appealing to abstract theories of executive power,

but by pointing to the consistent, unbroken practice of past Presidents. 576 U.S. at

43 (Thomas, J., dissenting).

Third, the Fed’s “distinct” history also shows why the Administration is

mistaken in contending that the D.C. Circuit’s due process decision somehow sets a

precedent beyond the Federal Reserve itself. See App. at 11-14. As described above,

Governors derive statutory tenure from their 14-year terms and the statutory bar to

removals that are not “for cause.” In addition, as also described above, there is an

unbroken history of insulation of Fed Governors—and those who managed the Fed’s

predecessors—from executive branch interference dating back to the dawn of our

Republic. And the Fed is “quasi-private” and “distinct.” Wilcox, 145 S.Ct. 1415. Most

important, no Governor has been removed over the Fed’s 112-year history. Even

absent statutory tenure or a “quasi-private” employer, long-standing government

practices in a specific setting far short of these have created property interests. See,

e.g., Perry v. Sinderman, 408 U.S. 593, 601-03 (1972). Under the Administration’s

argument, every President at any moment could fire the entire Board of Governors

with no notice or opportunity to be heard. Preventing hasty government action that

is “mistaken or unjustified” is exactly what the Due Process Clause is designed to do.

A.A.R.P. v. Trump, 605 U.S. 91, 94 (2025) (per curiam) (quotations and citations

omitted).

20

In 1913 and 1935, Congress wrote against the backdrop of more than a century

of national bank independence. Its “for cause” protection was meant to perpetuate

that history. And Congress crafted a Fed whose independence every President

respected for more than a century. This tradition speaks to the strength of the

protections that Congress crafted. The Administration’s stay application fails because

it has nothing to say about this vitally important history.

B. The Administration’s claim of unreviewable discretion defies the

presumption of judicial review and threatens the constitutional

separation of powers.

The Administration’s tendentious reading of the Federal Reserve Act upends

the presumption of judicial review. “When Congress means to authorize judicial

review of removals for cause,” the Administration wrongly contends, “it says so.” App.

22. From statutory silence, the Administration would infer Congress’ intent to

sideline a coequal branch of government—and leave the executive branch entirely

free from scrutiny. But that gets it backwards. And by sidelining the judiciary, the

Administration would threaten the constitutional separation of powers, a bulwark of

the liberty and limited government that Amici have spent their careers defending.

The Administration would mistakenly discard this Court’s “well-settled” and

“strong” presumption of judicial review, drawing precisely the wrong conclusion from

§ 242’s silence. Guerrero-Lasprilla v. Barr, 589 U.S. 221, 229 (2020). This Court has

not limited that presumption to agency action: “Because executive determinations

generally are subject to judicial review, we presume that review is available when a

21

statute is silent.” Patel v. Garland, 596 U.S. 328, 346 (2022) (emphasis added, cleaned

up). 13

By upending the presumption of judicial review, the Administration also

threatens the separation of powers. The stay application mistakenly invokes the

canon of constitutional avoidance. App. 23. But granting the stay would raise, not

allay, constitutional concerns.

Again: history and tradition matter. And judicial review is “deeply rooted” in

both “our history and separation of powers.” Thryv, Inc v. Click-To-Call Techs., LP,

590 U.S. 45, 72 (2020) (Gorsuch, J., dissenting). Judicial review is essential to our

system of limited government: “The ‘check’ the judiciary provides to maintain our

separation of powers is enforcement of the rule of law through judicial review.” Dep’t

of Transp. v. Ass’n of Am. Railroads, 575 U.S. 43, 76 (2015) (Thomas, J., concurring).

The President is an elected official. But, “to guard against arbitrary government, our

founders knew, elections are not enough: ‘An elective despotism was not the

government we fought for.’” Thryv, 590 U.S. at 72 (Gorsuch, J., dissenting) (quoting

The Federalist No. 48, p. 311 (C. Rossiter ed. 1961)). It is not enough to say that the

President is accountable to the people. When he seeks to encroach on the

independence that Congress provided and our history sanctions, he must also be

checked by the judiciary.

13 The presumption, of course, “may be overcome by specific language” or by evidence “drawn from the

statutory scheme as a whole.” Block v. Community Nutrition Institute, 467 U.S. 340, 349 (1984). But

everyone agrees that Congress inserted no such language in § 242—and, as shown above, the statutory

scheme evinces Congress’ strong desire to insulate and protect Governors from interference.

22

The President, the Administration irrelevantly reminds this Court, is not an

agency. App. 22. But no matter the identity of the executive official, an Article III

court is still an Article III court, and since Marbury it has been the judiciary’s

“duty…to say what the law is,” no matter who purports to be remaking it. 1 Cranch

137, 177, 5 U.S. 137, 2 L.Ed. 60 (1803). The constitutional demand for a judicial check

is strongest, not weakest, when the most powerful executive is involved. See Thryv,

590 U.S. at 72 (Gorsuch, J., dissenting) (“[P]ower must be set against power, ‘divided

and balanced among several bodies ... checked and restrained by the others.’”). The

Administration cannot show a likelihood of success on the merits because its

elimination of that check flies in the face of both the presumption of review and that

canon’s constitutional underpinning.

CONCLUSION

This Court should deny the stay application.

September 25, 2025

Respectfully Submitted,

JOSHUA PERRY

Counsel of Record

ELIZABETH TULIS*

KRISTA OEHLKE

E. DANYA PERRY

PERRY LAW, LLC

445 Park Avenue, 7th Floor

New York, NY 10022

(212) 251-2619

jperry@danyaperrylaw.com

Counsel for Amici

* Admitted only in New York.

Practice in D.C. is under D.C.

Bar member supervision.

23

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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