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.