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 briefOct 29, 2025
Ask Donna
What actually matters in this document.
Text
No. 25A312
IN THE
Supreme Court of the United States
________________
DONALD J. TRUMP, PRESIDENT OF THE UNITED STATES,
Applicant,
v.
LISA D. COOK, ET AL.,
Respondents.
________________
On Application for a Stay of the Injunction Issued by the United States District
Court for the District of Columbia
________________
BRIEF OF PROFESSOR JANE MANNERS AS AMICUS CURIAE
IN SUPPORT OF RESPONDENTS
________________
KATHERINE L. PRINGLE
KYLE C. BAILEY
FRIEDMAN KAPLAN SEILER
ADELMAN & ROBBINS LLP
7 Times Square
New York, NY 10036
THOMAS P. WOLF
LAUREN MILLER KARALUNAS
SAMUEL R. BREIDBART
BRENNAN CENTER FOR JUSTICE
AT NYU SCHOOL OF LAW
120 Broadway, Suite 1750
New York, NY 10271
DONALD B. VERRILLI, JR.
Counsel of Record
DANIEL J. KANE
KYLE A. SCHNEIDER
MUNGER, TOLLES & OLSON LLP
601 Massachusetts Avenue, NW
Suite 500E
Washington, DC 20001
(202) 220-1100
donald.verrilli@mto.com
Counsel for Amicus Curiae Professor Jane Manners
TABLE OF CONTENTS
Page
TABLE OF CONTENTS ................................................................................................. i
TABLE OF AUTHORITIES .......................................................................................... ii
INTEREST OF AMICUS CURIAE ............................................................................... 1
INTRODUCTION AND SUMMARY OF ARGUMENT ............................................... 1
ARGUMENT .................................................................................................................. 4
I.
II.
Removal Under Section 242 Requires Notice and an Opportunity to Be
Heard ................................................................................................................... 4
A.
Section 242 Incorporates a Settled Understanding That Where
an Officer Was Tenured for a Term of Years, Removal “For
Cause” Required Notice and an Opportunity to Be Heard ..................... 6
B.
The President’s Contrary Arguments Are Unpersuasive ..................... 12
The Purported Removal of Governor Cook Was Not “For Cause” Under
Common-Law Standards .................................................................................. 17
A.
Removals Under Statutes Like Section 242 Are Judicially
Reviewable .............................................................................................. 17
B.
Unproven Allegations of Private Misconduct Before Taking
Office Did Not Constitute “Cause” for Removal Under Leading
Common-Law Decisions ......................................................................... 20
CONCLUSION............................................................................................................. 25
i
TABLE OF AUTHORITIES
Page(s)
Cases
Andrews v. King,
77 Me. 224 (1885) ............................................................................................. 18, 25
Andrews v. Police Bd. of Biddeford,
46 A. 801 (Me. 1900) ............................................................................................... 14
State ex rel. Att’y Gen. v. Hawkins,
5 N.E. 228 (Ohio 1886) ........................................................................................... 16
Bd. of St. Comm’rs of Hagerstown v. Williams,
53 A. 923 (Md. 1903)................................................................................... 14, 21, 24
Biggs v. McBride,
21 P. 878 (Or. 1889) .......................................................................................... 10, 12
City of Hoboken v. Gear,
27 N.J.L. 265 (N.J. 1859) ................................................................................. 15, 19
Commonwealth v. Shaver,
3 Watts & Serg. 338 (Pa. 1842) .............................................................................. 23
Dullam v. Willson,
19 N.W. 112 (Mich. 1884) ................................................................................. 10, 19
In re Eaves,
30 F. 21 (C.C.W.D.N.C. 1887) .......................................................................... 21, 22
Field v. Commonwealth,
32 Pa. 478 (1859) ........................................................................................ 10, 12, 16
United States ex rel. Garland v. Oliver,
17 D.C. 47 (1887) .............................................................................................. 19, 20
State ex rel. Gill v. Common Council of Watertown,
9 Wis. 254 (1859) ........................................................................................ 18, 22, 23
New Jersey ex rel. Haight v. Love,
39 N.J.L. 14 (N.J. 1876) ............................................................................. 10, 12, 15
ii
TABLE OF AUTHORITIES
(Continued)
Page(s)
Hallgrene v. Campbell,
46 N.W. 381 (Mich. 1890) ......................................................................................... 9
Ham v. Bd. of Police of Bos.,
7 N.E. 540 (Mass. 1886) ......................................................................................... 14
State ex rel. Hart v. Common Council of Duluth,
55 N.W. 118 (Minn. 1893) ...................................................................................... 18
In re Hennen,
38 U.S. (13 Pet.) 230 (1839) ..................................................................................... 7
Lamar, Archer & Cofrin, LLP v. Appling,
584 U.S. 709 (2018) ............................................................................................ 6, 17
Marbury v. Madison,
5 U.S. (1 Cranch) 137 (1803) .................................................................................... 4
People ex rel. Mayor of N.Y. v. Nichols,
79 N.Y. 582 (N.Y. 1880) ............................................................ 16, 19, 20, 21, 23, 24
Morissette v. United States,
342 U.S. 246 (1952) ................................................................................................ 11
Myers v. United States,
272 U.S. 52 (1926) .................................................................................................. 15
Page v. Harden,
47 Ky. 648 (1848) .................................................................................................... 16
Parsons v. United States,
167 U.S. 324 (1897) ................................................................................................ 14
People v. Whitlock,
92 N.Y. 191 (1883) .............................................................................................. 8, 15
New York ex rel. Platt v. Stout,
19 How. Pr. 171 (N.Y. Sup. Ct. Gen. Term. 1860)................................................. 20
Reagan v. United States,
182 U.S. 419 (1901) ...........................................................2, 5, 6, 7, 8, 11, 13, 14, 17
iii
TABLE OF AUTHORITIES
(Continued)
Page(s)
Rex v. Richardson,
1 Burr. 517, 97 Eng. Rep. 426 (K.B. 1758) ............................................................ 24
Richards v. Town of Clarksburg,
4 S.E. 774 (W. Va. 1887) ......................................................................................... 25
Sekhar v. United States,
570 U.S. 729 (2013) ................................................................................................ 12
Severino v. Biden,
71 F.4th 1038 (D.C. Cir. 2023) ............................................................................... 14
Shurtleff v. United States,
189 U.S. 311 (1903) .................................................................. 2, 5, 7, 11, 13, 14, 17
Townsend v. Kurtz,
34 A. 1123 (Md. 1896)....................................................................................... 10, 12
Trimble v. People,
34 P. 981 (Colo. 1893) ....................................................................................... 15, 20
Statutes
5 U.S.C. 7521(a) ........................................................................................................... 13
12 U.S.C. 242 ............................................................................................................. 1, 4
Federal Reserve Act of 1913, Pub. L. No. 63-43, 38 Stat. 251 ..................................... 4
Banking Act of 1935, Pub. L. No. 74-305, 49 Stat. 684 ................................................ 4
Other Authorities
John F. Dillon, 1 Commentaries on the Law of Municipal Corporations
(4th ed. 1890) .................................................................................................. 7, 8, 10
John F. Dillon, 2 Commentaries on the Law of Municipal Corporations
(5th ed. 1911) .......................................................................................................... 22
Felix Frankfurter, Some Reflections on the Reading of Statutes,
47 Colum. L. Rev. 527 (1947) ................................................................................. 12
iv
TABLE OF AUTHORITIES
(Continued)
Page(s)
Frank J. Goodnow, The Writ of Certiorari,
6 Pol. Sci. Q. 493 (1891) ......................................................................................... 17
Jane Manners & Lev Menand, The Three Permissions: Presidential
Removal and the Statutory Limits of Agency Independence,
121 Colum. L. Rev. 1 (2021) ......................................................................... 5, 14, 24
Floyd R. Mechem, A Treatise on the Law of Public Offices and Officers
(1890) ........................................................................................................ 8, 9, 10, 12
Montgomery H. Throop, A Treatise on the Law Relating to Public Officers
(1892) .................................................................................................. 7, 9, 12, 14, 16
Alonzo H. Tuttle, Removal of Public Officers from Office for Cause, I,
3 Mich. L. Rev. 290 (1905).................................................................. 7, 9, 14, 17, 20
v
INTEREST OF AMICUS CURIAE 1
Amicus Curiae Jane Manners is an Associate Professor of Law at Fordham
University School of Law. Professor Manners teaches and writes extensively on early
American understandings of presidential power, including the evolution of laws
governing officer removal. She holds a J.D. and B.A. from Harvard University and a
Ph.D. in American history from Princeton University.
Professor Manners submits this brief to provide the Court with a fuller
understanding of the distinct historical pedigree of the particular language that
Congress deployed in the Federal Reserve Act of 1913 and the Banking Act of 1935.
INTRODUCTION AND SUMMARY OF ARGUMENT
Members of the Federal Reserve Board of Governors serve for a term of
fourteen years, subject only to removal for cause by the President. 12 U.S.C. 242.
Congress imposed those removal limitations in 1913 and re-enacted them in 1935 for
an important reason: it sought to ensure that the Board of Governors would set the
course of the country’s monetary policy purely on the Board’s best assessment of the
economic merits, insulated from the risk of partisan political interference. Congress
thus sought to deter the President from trying to remove members of the Board for
pretextual reasons when the real reason for removal is a policy disagreement
Pursuant to Supreme Court Rule 37.6, amicus affirms that no counsel for a party
authored this brief in whole or in part, and that no person or entity other than amicus
and her counsel made a monetary contribution intended to fund the preparation or
submission of this brief. This brief does not purport to convey the position of New
York University School of Law.
1
1
regarding the exercise of the Governors’ statutory responsibilities, and to afford
avenues of relief in the event a president ever sought to do so.
The approach that Congress adopted to achieve those objectives was not an
innovation. To the contrary, laws providing that officials would serve a specified term
and could be removed only for cause were commonplace throughout the United States
by 1913, when Congress first enacted the tenure protection statute at issue here.
Accordingly, American courts—and state courts in particular—construing similar
provisions had developed a stable understanding of what those provisions meant, and
in particular how they shielded officers from removal.
And this Court had
acknowledged and ratified that settled understanding well before Congress included
those provisions in the Federal Reserve Act of 1913. See Shurtleff v. United States,
189 U.S. 311 (1903); Reagan v. United States, 182 U.S. 419 (1901). Congress therefore
should be presumed to have understood exactly what it was doing when it provided
that members of the Board of Governors would serve a fixed term and could be
removed only for cause prior to the expiration of their terms. A proper understanding
of the contemporary public meaning of the statutory standard at issue here thus
confirms that the President’s effort to remove Governor Lisa D. Cook was unlawful.
To start, the particular framework that Congress chose to adopt in Section
242—a fixed term of years coupled with for-cause removal—unambiguously
guaranteed officeholders the right to notice and an opportunity to be heard before
they could be removed from office. American courts in the nineteenth and twentieth
centuries often held that statutes providing either a fixed term of years or for-cause
2
removal required notice and an opportunity to be heard. The combination of those
terms, as in Section 242, made for an easy case. And the President’s responses here—
that notice and opportunity were required only if a statute specified particular causes
for removal, and that Governor Cook in fact received adequate process—are
irreconcilable with the established judicial understandings in place when the statute
was first enacted in 1913 and re-enacted in substantially the same form in 1935.
In addition, Section 242 incorporated the common-law rule that when a law
permitted for-cause removal of an officer serving a fixed term, courts were empowered
to review the legal sufficiency of the purported “cause.”
Numerous authorities
recognized and applied that rule in the century before Section 242’s enactment.
Those courts appreciated that judicial review of the asserted cause served as an
important bulwark against executive capriciousness and overreach. The few cases
the President cites in support of a contrary position are wholly inapposite.
Finally, prevailing common-law standards indicate that the purported removal
of Governor Cook was not for valid “cause.” Leading common-law decisions concluded
that laws permitting removal for cause of a defined-term officer ordinarily could not
support removal based on untested allegations of private misconduct—especially
when the alleged misconduct occurred before the officer took office. Rather, the
asserted “cause” for removal had to reflect a closer nexus to the particular office and
corresponding duties at issue. Here, the President purported to remove Governor
Cook based on unproven, private, pre-office conduct.
3
At common law, that
justification very likely would not have constituted sufficient cause to remove a fixedterm officer.
ARGUMENT
I.
Removal Under Section 242 Requires Notice and an Opportunity to Be
Heard
For more than a century, members of the Federal Reserve Board have served
for a fixed term of years, subject only to removal for cause by the President. In the
Federal Reserve Act of 1913, Congress provided that each member “shall serve for a
term of ten years unless sooner removed for cause by the President.” Pub. L. No. 6343, § 10, 38 Stat. 251, 260. And in the Banking Act of 1935, Congress provided that
each member “shall hold office for a term of fourteen years from the expiration of the
term of his predecessor, unless sooner removed for cause by the President.” Pub. L.
No. 74-305, § 203, 49 Stat. 684, 704-05. That same language remains in force today:
“each member shall hold office for a term of fourteen years from the expiration of the
term of his predecessor, unless sooner removed for cause by the President.” 12 U.S.C.
242.
In adopting that tenure structure—a term of years combined with removal only
for cause—Congress did not write on a blank slate. Rather, Congress legislated
against the backdrop of a long history of judicial decisions, from this Court and state
courts of last resort, construing legislation conferring term-of-years tenure to create
a “vested legal right” to serve in office, Marbury v. Madison, 5 U.S. (1 Cranch) 137,
162 (1803).
Offices held for a term of years were “understood to be inviolable:
Without provisions to the contrary in a controlling statute, constitution, or grant of
4
office, an officer serving for a term of years could not be removed mid-term short of
impeachment or other extraordinary measure.” Jane Manners & Lev Menand, The
Three Permissions:
Presidential Removal and the Statutory Limits of Agency
Independence, 121 Colum. L. Rev. 1, 18-19 (2021); see id. at 20-27. Accordingly,
statutory removal provisions were used to define the conditions under which an
appointing officer could remove an otherwise unremovable officer. See id. at 18.
Indeed, this Court was quite clear in 1901 in Reagan and in 1903 in Shurtleff
that when a statute constrains the grounds on which the removing authority may
remove an officer, that statute guarantees the officer notice and an opportunity for a
pre-removal hearing to contest the allegations on which removal might be based,
Shurtleff, 189 U.S. at 314; Reagan, 182 U.S. at 425, or some other “opportunity to
defend” herself, Shurtleff, 189 U.S. at 317. Both Shurtleff and Reagan involved
statutes dealing with federal officers, not employees, and the officer in Shurtleff was,
like Governor Cook, a principal officer. “[I]f a removal is made without such notice,”
this Court explained in Shurtleff, “there is a conclusive presumption that the officer
was not removed for any of those [permissible] causes.” 189 U.S. at 317.
This Court’s decisions in Reagan and Shurtleff were premised on (and entirely
consistent with) the established understanding of American courts in the nineteenth
and early twentieth centuries that statutes combining term-of-years tenure and forcause removal guaranteed officers a right to pre-removal notice and an opportunity
to be heard—an understanding that was also expressed in every leading treatise of
the era. As this Court explained, by 1901 it was well settled that “where causes of
5
removal are specified by Constitution or statute, as also where the term of office is
for a fixed period, notice and hearing are essential.” Reagan, 182 U.S. at 425. Given
that “longstanding judicial interpretation,” Congress presumptively intended the
tenure provision in Section 242 to “retain its established meaning.” Lamar, Archer
& Cofrin, LLP v. Appling, 584 U.S. 709, 722 (2018). And under that established
meaning, Board members are entitled to notice and an opportunity to be heard.
A.
Section 242 Incorporates a Settled Understanding That Where
an Officer Was Tenured for a Term of Years, Removal “For
Cause” Required Notice and an Opportunity to Be Heard
By 1913, when Congress created the Federal Reserve Board and gave its
members a term-of-years tenure subject only to removal for cause, statutory removal
schemes were ubiquitous. Those schemes varied across two important dimensions:
tenure and removal. And the way courts treated statutes with different tenure and
removal provisions confirms that Section 242 requires notice and an opportunity to
be heard. Where statutes did not specify a fixed term and did not provide expressly
for removal, courts generally did not require notice or an opportunity to be heard
before removal. But where statutes specified either a fixed term or removal for cause,
courts often required notice and opportunity, depending on the particular statutory
language at issue. And where statutes specified both a fixed term and removal for
cause—as Congress did in Section 242—courts were remarkably consistent: such
statutes guaranteed officeholders notice and an opportunity to be heard.
1. Courts generally understood statutes that specified neither a fixed term nor
any removal authority to allow the appointing officer to remove the non-tenured
6
appointee “at pleasure, and without notice, charges, or reasons assigned.”
Montgomery H. Throop, A Treatise on the Law Relating to Public Officers § 354, at
352 (1892). Accordingly, this Court ruled that court clerks appointed under statutes
that did not specify tenure or removal authority held their offices “at the discretion”
of the appointing district courts, such that bare notice was “amply sufficient” for
removal. In re Hennen, 38 U.S. (13 Pet.) 230, 259, 261 (1839).
2. Where statutes did not specify a fixed term but did authorize removal for
cause, courts frequently (though not invariably) held that officers were entitled to
pre-removal notice and an opportunity to be heard. As this Court explained, state
courts often held that “where an officer may be removed for certain causes, he is
entitled to notice and a hearing.” Shurtleff, 189 U.S. at 314 (collecting cases). And
contemporary legal observers agreed, explaining that the “great burden of authority
in both this country and in England is to the effect that removal for cause as well as
for cause specified requires notice, charges and a hearing.” Alonzo H. Tuttle, Removal
of Public Officers from Office for Cause, I, 3 Mich. L. Rev. 290, 297 (1905); accord John
F. Dillon, 1 Commentaries on the Law of Municipal Corporations § 250, at 333 (4th
ed. 1890) (“Dillon I”) (distinguishing “discretionary” removal schemes, under which
notice and opportunity to be heard are not required, from schemes “where the
appointment is during good behavior, or where the removal can only be for certain
specified causes,” under which notice and opportunity to be heard are required).
In Reagan, however, this Court held that territorial commissioners appointed
without a fixed term and subject to removal “for causes prescribed by law” were not
7
entitled to notice or an opportunity to be heard. 182 U.S. at 423-424, 427. Because
Congress had not in fact prescribed any causes for removal before the appellant
commissioner’s removal, the Court faced the prospect that the commissioner might
be entitled to the same life tenure protections as a federal judge. Id. at 425. Rather
than adopt such a construction of the relevant statutes, the Court held that where a
statute does not specify that the officer holds office “for life” or “any fixed tenure,” and
Congress has not specified any causes that would justify removal, “removal is incident
to the power of appointment.” Id. at 424-426.
3. Where statutes authorized appointment for a fixed term but also provided
for discretionary removal, courts generally assessed the necessity of notice and an
opportunity to be heard by reference to the specific removal language at issue. If the
relevant provisions made clear, notwithstanding the term-of-years tenure, that the
“office is held at the pleasure of the appointing power,” courts typically held that the
officer “may be removed without notice or hearing.” Floyd R. Mechem, A Treatise on
the Law of Public Offices and Officers § 454, at 287 (1890); accord Dillon I, supra,
§ 250, at 333 (“Where an officer is appointed during pleasure, or where the power of
removal is discretionary, the power to remove may be exercised without notice or
hearing.” (citation modified)). Thus, the New York Court of Appeals construed a
statute authorizing the mayor to remove a fixed-term police commissioner “for any
cause deemed sufficient to himself ” not to require notice or an opportunity to be
heard. People v. Whitlock, 92 N.Y. 191, 197-199 (1883).
8
But where statutes did not indicate that the office was held “at pleasure,” the
“common law rule” required “notice” where an office was held “for a fixed term.”
Throop, supra, § 364, at 359. A legislature’s choice to specify “a fixed term” displaced
the “general rule” that appointed officers could be removed “at pleasure, and without
notice, charges, or reasons assigned.” Id. § 354, at 352; see id. § 354, at 353 & n.2
(“[I]t is conceded, in all the cases, that where a fixed term is assigned to the office,
the appointing power has no absolute power of removal.”). Thus, courts often held
that “where the term of office is fixed and the power to remove the incumbent is given
with nothing further said, it must be presumed that he can be removed only for cause,
which means charges, notice and a hearing.” Tuttle, supra, at 293-294. Accordingly,
the Michigan Supreme Court held that absent “clear and unequivocal” language
granting the power to remove “without notice,” the court presumed “that the
legislature intended that every officer appointed for a fixed period should be entitled
to hold his office until the expiration of such period unless removed therefrom for
cause after a fair trial.” Hallgrene v. Campbell, 46 N.W. 381, 383 (Mich. 1890).
4.
Consistent with the understanding that fixed tenures and “for cause”
provisions each denoted procedural rights, courts construing statutes providing for
both a fixed term and removal for cause reliably held that removal required notice
and an opportunity to be heard. Indeed, it was “settled law in this country” that
where an officer’s tenure was “for a definite term, subject to be removed for cause,”
the officer could be removed “only upon notice, and after a hearing,” or the removal
would be considered “erroneous and void.” Throop, supra, § 364, at 360; see id. § 364,
9
at 359 (“So where he is appointed for a fixed term, and removable only for cause, he
can be removed only upon charges, notice, and an opportunity to be heard.”). Stated
otherwise, “where the appointment or election [was] made for a definite term or
during good behavior, and the removal [was] to be for cause, it [was] clearly
established by the great weight of authority that the power of removal can not, except
by clear statutory authority, be exercised without notice and hearing.” Mechem,
supra, § 454, at 287; accord Dillon I, supra, § 250, at 333 & n.3.
Courts around the country recognized that rule. The Pennsylvania Supreme
Court held that a statute granting county superintendents three-year terms subject
to removal for specified causes required notice and an opportunity to be heard. Field
v. Commonwealth, 32 Pa. 478, 481, 484-485 (1859). The Michigan Supreme Court
held that a trustee of a state institution serving a six-year term subject to removal
for specified causes was entitled to “reasonable notice of the time and place when and
where an opportunity will be given him for a hearing.” Dullam v. Willson, 19 N.W.
112, 112, 119 (Mich. 1884). And other courts agreed. See, e.g., Townsend v. Kurtz,
34 A. 1123, 1124 (Md. 1896) (“It must be conceded that, if the appellant could only
have been removed for cause, he was entitled to notice, and an opportunity to defend
himself; for, unless the statute authorize it, no one appointed for a definite term can
be removed for cause without having an opportunity to be heard in his defense.”);
Biggs v. McBride, 21 P. 878, 879, 881 (Or. 1889) (same); New Jersey ex rel. Haight v.
Love, 39 N.J.L. 14, 21-22 (N.J. 1876) (same).
10
Most importantly for present purposes, this Court also endorsed the same
principle in Reagan and Shurtleff—which is unsurprising given how well established
it was by the time the Court decided those cases. Indeed, in its brief in Reagan, the
United States conceded that under the “American rule,” “where causes for removal of
an officer are specified in a constitution or by statute, or the term of office is for a
fixed period, the officer can not be removed unless notice be given him and he be
afforded a hearing.” Brief for United States 17, Reagan v. United States, 182 U.S.
419 (No. 239). In its opinion, this Court cited that proposition as a settled “rule”:
“where causes of removal are specified by constitution or statute, as also where the
term of office is for a fixed period, notice and hearing are essential.” Reagan, 182 U.S.
at 425. And two years later, the Court reaffirmed the point, quoting that same
language from Reagan. See Shurtleff, 189 U.S. at 314.
The statutory scheme governing members of the Federal Reserve, first enacted
in 1913, fits squarely within that tradition. Ten years after Shurtleff, Congress chose
to employ a tenure scheme—a term-of-years office plus removal for cause—
encompassed by the “rule” that this Court invoked. In the historical context just
described, that choice carries meaning. When Congress “borrows terms of art” from
accumulated legal tradition, “it presumably knows and adopts the cluster of ideas
that were attached to each borrowed word in the body of learning from which it was
taken and the meaning its use will convey to the judicial mind unless otherwise
instructed.” Morissette v. United States, 342 U.S. 246, 263 (1952). Stated otherwise,
Congress transplanted the “old soil” of similar removal provisions into Section 242.
11
Sekhar v. United States, 570 U.S. 729, 732-733 (2013) (quoting Felix Frankfurter,
Some Reflections on the Reading of Statutes, 47 Colum. L. Rev. 527, 537 (1947)). By
doing so, Congress guaranteed Federal Reserve members notice and an opportunity
to be heard before removal.
B.
The President’s Contrary Arguments Are Unpersuasive
To the extent the President engages with that history, he offers three principal
responses.
First, he asserts that when Congress “intends to impose procedural
constraints on removal,” it does so expressly. Reply 6. Second, he argues that notice
and an opportunity to be heard are required only where a statute specifies particular
causes for removal. Reply 6-8. And third, he insists that Governor Cook in fact
received sufficient process. Reply 9. Each of those arguments is refuted by the
historical record.
1.
The President first argues that because some federal statutes include
express “notice-and-hearing requirements,” Section 242 must not require the same
procedure.
Reply 6.
But where an officer is “appointed for a fixed term, and
removable only for cause,” that language entitles him to “an opportunity to be heard,”
without specifying the particular procedures necessary. Throop, supra, § 364, at 359;
accord Mechem, supra, § 454, at 287 (“opportunity to be heard in his defense”); Field,
32 Pa. at 484 (“opportunity * * * to defend himself ”); Townsend, 34 A. at 1124
(“opportunity to defend himself”); Biggs, 21 P. at 881 (“opportunity be given him to
be heard in his defense”); Haight, 39 N.J.L. at 22 (“opportunity for defence”).
Although Congress may provide greater specificity by describing the particular form
12
that the opportunity to be heard must take—as where Congress granted
administrative law judges a “hearing” before the Merit Systems Protection Board, 5
U.S.C. 7521(a)—it hardly follows that members of the Federal Reserve receive no
opportunity to be heard whatsoever merely because Congress did not specify the
particular procedures that would afford that opportunity. See p. 16, infra.
2. Next, the President argues that notice and an opportunity to be heard are
required only where a statute “specif[ies] causes for removal.” Reply 6-7. As an initial
matter, the concession implicit in that argument—that some statutes require notice
and an opportunity to be heard even where they do not say so expressly—severely
undermines the President’s first argument, that statutes “impose procedural
constraints on removal” only where they “say[] so.” Reply 6.
Even more to the point, the President’s bespoke distinction, under which an
officer’s right to notice and opportunity turns solely on whether a statute specifies
causes for removal or instead authorizes removal “for cause,” is plainly incorrect.
Indeed, the lead cases the President cites for this proposition—Reagan and
Shurtleff—contradict his position, as they identify another statutory term that
independently requires notice and an opportunity to be heard: a “term of office” for
“a fixed period.” Shurtleff, 189 U.S. at 314 (quoting Reagan, 182 U.S. at 425). 2
Moreover, the President is incorrect that the Court in Reagan deemed notice and a
hearing unnecessary because “the statute at issue required cause without listing
specific causes.” Reply 7. The Court deemed notice and opportunity unnecessary
because the term of office was not for a fixed period and “causes of removal had [not]
been prescribed by law before the removal of [the] appellant.” Reagan, 182 U.S. at
427; see pp. 7-8, supra.
2
13
Rather than engage with those statements—which are fatal to his position—
the President simply repeats (Reply 7) the D.C. Circuit’s assertion that a fixed term
sets “a ceiling, not a floor, on the length of service.” Severino v. Biden, 71 F.4th 1038,
1045 (D.C. Cir. 2023).
But, as demonstrated, that was not the established
understanding when this Court decided Reagan and Shurtleff. Instead, it was well
established that a fixed term at common law granted the official a right to serve that
term, which the legislature could abrogate by authorizing removal. See Manners &
Menand, supra, at 18-27. 3 And the President’s argument (Reply 7) that a fixed term
“has no bearing on an officer’s entitlement to a hearing” cannot be reconciled with the
great mass of authority discussed above. See pp. 8-11, supra.
In any event, even setting aside the significance of a fixed term of years,
provisions authorizing removal “for cause” were regularly treated as functionally
equivalent to those specifying causes for removal, in that each required notice and an
opportunity to be heard. See, e.g., Bd. of St. Comm’rs of Hagerstown v. Williams, 53
A. 923, 925 (Md. 1903); Andrews v. Police Bd. of Biddeford, 46 A. 801, 804 (Me. 1900);
Ham v. Bd. of Police of Bos., 7 N.E. 540, 543 (Mass. 1886). Contemporary legal
observers recognized that point. See, e.g., Tuttle, supra, at 297 (“[R]emoval for cause
as well as for cause specified requires notice, charges and a hearing.”); accord Throop,
supra, § 364, at 359-360. And so too did the Senate Office of Legislative Counsel,
which, in a memorandum submitted to this Court in 1926, explained that statutes
In concluding otherwise, the D.C. Circuit in Severino relied on a misreading of this
Court’s decision in Parsons v. United States, 167 U.S. 324 (1897). See Manners &
Menand, supra, at 24 & n.137.
3
14
that “provid[e] for removal ‘for cause’” and statutes that “provide certain specified
causes for removal” both required “notice and opportunity to defend before removal.”
Amicus Br. of George Wharton Pepper, Appx. A, at 267, Myers v. United States, 272
U.S. 52 (1926).
The President also claims support (Reply 7-8 & n.1) for his makeshift rule in
state case law, but he misreads the cases he cites, all of which addressed statutes
that specified not only causes for removal, but also procedures for removal.
In
Trimble v. People, where the statute required the governor to state his cause “in
writing,” the court “assume[d] that the lawmaking body was of the opinion that the
requirement that the cause of removal should be stated in writing was the only check
necessary to prevent an arbitrary and oppressive abuse of the power.” 34 P. 981, 985
(Colo. 1893). And in In re Carter, where the statute required the mayor to “give
written notice” “to the person removed” and then “notify the common council of his
action and the reasons therefor,” the court reasoned that “[i]f a previous notice was
necessary, and a hearing of the charges was required, before a removal could be made,
it would be absurd to require a subsequent notice to the same effect.” 74 P. 997, 998
(Cal. 1903). 4
The President also cites a separate opinion in City of Hoboken v. Gear, 27 N.J.L. 265
(N.J. 1859). But there, too, the statute required the mayor to specify his cause in
writing, see id. at 287 (opinion of Vredenburgh, J.), and in any event the court
disposed of the case on different grounds, see id. at 280-281; see also Haight, 39 N.J.L.
at 22 (New Jersey Supreme Court subsequently confirming that “for cause” provisions
require notice and opportunity to be heard). In addition, the President invokes
Whitlock, but as explained above, see p. 8, supra, the statute in that case gave the
mayor authority to remove police commissioners “for any cause deemed sufficient to
himself,” such that “his conclusion is final.” 92 N.Y. at 197-198.
4
15
Those cases do not suggest that “for cause” removal provisions obviate any
need for notice and an opportunity to be heard. Rather, the President’s cases show
at most that a legislature may supersede the default notice-and-opportunity rule by
limiting the available processes.
3. Finally, the President argues (Reply 9) that Governor Cook received the
notice and opportunity she was due because the President waited five days between
demanding her resignation (on social media) and purporting to remove her (again, on
social media). Although Congress may specify different procedures, see pp. 12-13,
supra, an opportunity to be heard ordinarily requires at least some proceeding to
address the charges, with “evidence produced,” Field, 32 Pa. at 484, and “testimony”
heard, State ex rel. Att’y Gen. v. Hawkins, 5 N.E. 228, 245 (Ohio 1886); see also People
ex rel. Mayor of N.Y. v. Nichols, 79 N.Y. 582, 585 (N.Y. 1880) (“The existence of the
assigned cause must be ascertained by the production of proofs.”); Page v. Harden, 47
Ky. 648, 672 (1848) (“essentially judicial” proceeding “for the ascertainment of fact
and law”); accord Throop, supra, § 365, at 360-361 (“testimony is to be produced in
support of and against the charges”). The President plainly did not provide such an
opportunity to be heard, and he has failed to identify any historical support for his
contrary position.
16
II.
The Purported Removal of Governor Cook Was Not “For Cause” Under
Common-Law Standards
A.
Removals Under Statutes Like Section 242 Are Judicially
Reviewable
In enacting Section 242, Congress incorporated the default common-law rule—
recognized by this Court in Reagan and Shurtleff, explicated by state courts, and
reflected in leading contemporary treatises—that when a legislative provision
permitted removal of a defined-term officer for “cause,” courts could review whether
the asserted cause was sufficient to justify removal. See Lamar, Archer & Cofrin,
LLP, 584 U.S. at 722. The President’s contrary position relies on cases that are
inapposite or readily distinguishable.
1. Prior to the enactment of Section 242, the prevailing common-law rule
governing judicial review of the asserted “cause” for removal of defined-term officers
was well settled. Leading authorities explained that “the great burden of authority
in this country is to the effect that when an officer has a fixed term and is removable
for cause, and, as a result, charges, etc., must be had, the courts have the power to
inquire into the charges made and to see if they constitute legal cause for removal.”
Tuttle, supra, at 300; accord Frank J. Goodnow, The Writ of Certiorari, 6 Pol. Sci. Q.
493, 532 (1891) (“The courts have held in a series of cases that, where a statute
provides that an officer may be removed from office for cause only, the courts have
the right to control the discretion of the removing officer in deciding what is cause.”).
Numerous courts applied that rule, both in cases where removal was
authorized for “cause,” and where the permissible grounds for removal were specified
17
with more granularity. For instance, in State ex rel. Gill v. Common Council of
Watertown, where the law provided that an officer could be removed for “due cause,”
the Wisconsin Supreme Court explained that what constitutes “due cause” is not a
“decision
* * *
within the limits of [the removing authority’s] uncontrolled
discretion.” 9 Wis. 254, 260 (1859). After all, “if the authority to determine finally
what was ‘due cause,’ were given to the same body vested with the power of removal,
the limitation would be entirely defeated, and the power of removal absolute.” Id. at
261. The court thus concluded that “[w]hat is ‘due cause’ for the removal of an officer,
is a question of law to be determined by the judicial department, and in the absence
of any statutory provision as to what should constitute such cause, should be
determined with reference to the nature and character of the office and the
qualifications requisite to fill it.” Ibid.
Other courts similarly concluded that the judiciary was to evaluate the
asserted cause for removal when a legislative provision authorized removal of a
defined-term officer for cause. See, e.g., State ex rel. Hart v. Common Council of
Duluth, 55 N.W. 118, 120 (Minn. 1893) (“The sufficiency and reasonableness of the
cause of removal are questions for the courts. This has been the settled law ever since
Bagg’s Case,
* * *
and we are not aware of any respectable authority to the
contrary.”); Andrews v. King, 77 Me. 224, 234-235 (1885) (“The removal can not be
made, unless the alleged cause in fact exists, and such existence should be
ascertained and declared, as the legal basis for the sentence of removal. Such is the
immemorial practice in prosecutions in the common law courts.”).
18
Courts recognized that judicial review of the asserted “cause” served as a
bulwark against executive overreach. In Dullam, the court explained in assessing
whether “the specified causes exist” for removal that, “[u]nless it is the manifest
intention of the section under consideration that the proceedings should be ex parte
as well as summary,” the “exercise of such power, in such manner, would be too
despotic for any attempt at vindication in a country which boasts of the utmost liberty
compatible with the safety of the state, and is entirely opposed to the genius of our
free institutions.” 19 N.W. at 116; see also, e.g., Nichols, 79 N.Y. at 588-589 (when
an officer could be removed “only ‘for cause,’” there must be a “proceeding” that is
“judicial in its character, and, as a necessary consequence, is subject to review by a
writ of certiorari issued by the Supreme Court in the exercise of its superintending
power over inferior tribunals and persons exercising judicial functions”).
2. The few cases the President invokes to contend that the “determination of
cause is committed to the unreviewable discretion of the President,” App. 20, are
inapposite, easily distinguished, or both. To start, some of the President’s cases
involved circumstances in which the officer at issue did not serve for a term of years;
those cases are wholly inapt. See pp. 6-11, supra.
The President’s remaining cases are readily distinguishable.
Gear, for
instance, did not raise “a question * * * whether the assigned cause is sufficient,”
and instead involved the legislature’s decision to disband the municipal police force
altogether—rather than to remove a particular officer for “cause.” 27 N.J.L. at 287
(opinion of Vredenburgh, J.). In United States ex rel. Garland v. Oliver, 17 D.C. 47
19
(1887), the court expressly stated that “[i]t is not argued * * * that, if the power to
remove is in the President, this Court can review his action for the purpose of
determining the sufficiency of the causes which induce him to remove an officer.” Id.
at 56. As already noted, Trimble addressed a statute that specified the procedures
for and checks (or lack thereof) on removal, see p. 15, supra, and at any rate Trimble
was later singled out as “differ[ing] widely from the other cases,” including
subsequent cases in Colorado, Tuttle, supra, at 299-300. And in the President’s final
case, the distinctive scheme at issue permitted removal that was approved by a vote
of “a majority” of the legislature—rendering the “removal” more analogous to an
unreviewable impeachment than a true executive removal for “cause.” New York ex
rel. Platt v. Stout, 19 How. Pr. 171 (N.Y. Sup. Ct. Gen. Term. 1860). In all events, a
higher New York court later embraced the majority rule: Nichols made clear that a
defined-term officer who is removable for cause is entitled to judicial review of the
“cause” determination. See 79 N.Y. at 589-590.
B.
Unproven Allegations of Private Misconduct Before Taking
Office Did Not Constitute “Cause” for Removal Under Leading
Common-Law Decisions
When Congress enacted Section 242, laws permitting removal for “cause” of an
officer serving a fixed term ordinarily did not authorize removal based on unproven
allegations of private misconduct, especially when that alleged misconduct occurred
before the officer took office. Rather, the “cause” typically had to relate more closely
to the particular office at issue. Here, the President purported to remove Governor
Cook based on alleged, private, pre-office conduct. Under the prevailing common-law
20
standard, that justification very likely would not have supported a valid removal for
cause.
1.
Ample common-law authorities indicate that when a law permitted a
defined-term officer to be removed “for cause,” the “cause” had to bear a sufficient
connection to the particular office and duties involved. Courts explained that “[t]he
phrase ‘for cause’ does not mean the arbitrary will of the appointing power, for that
might be the outgrowth of mere whim, caprice, prejudice, or passion, which would, in
reality, be no cause at all.” Williams, 53 A. at 925; ibid. (“[T]he phrase ‘for cause’
must mean some cause affecting or concerning the ability or fitness of the incumbent
to perform the duty imposed upon him. * * * Hence [‘for cause’] must be inefficiency,
incompetency, or other kindred disqualification.”). In other words, the “power to
remove” “for cause” is not “an arbitrary one, to be exercised at pleasure, but only upon
just and reasonable grounds, and then not until after notice to the person charged.”
Nichols, 79 N.Y. at 588.
That protection against capricious removals served an important governance
function. A court evaluating whether removal was warranted by “sufficient cause”
recognized that “[i]t is all important to good government, and the public interests,
that an officer who exercises important judicial functions should be free in thought,
and independent in judgment, when he acts in the administration of justice and the
enforcement of the law.” In re Eaves, 30 F. 21, 23 (C.C.W.D.N.C. 1887). After all,
“[t]he course of justice would be impeded, and the efficiency of the commissioner
would be greatly impaired, if [the officer’s] freedom of action was restrained by
21
continual apprehensions of removal from office on account of honest official mistakes
and errors of judgment, or by [the removing authority’s] caprice, or by the clamor of
individuals excited by personal prejudices and hostility.” Ibid.
2. Courts applied those principles to conclude that removal based on alleged
private conduct before assuming office generally did not constitute sufficient “cause”
because the asserted cause was too attenuated from the nature of the office at issue.
And the cases that permitted removal based on conduct unrelated to the office usually
involved removal for proven serious or “infamous” crimes.
a. It was widely recognized that a defined-term officer’s conduct occurring
before he took office generally could not establish “cause” warranting removal. As
one treatise explained, “misconduct justifying the removal of an officer cannot, as a
general rule, be found in acts or conduct previous to his election or appointment.”
John F. Dillon, 2 Commentaries on the Law of Municipal Corporations § 477, at 799800 (5th ed. 1911).
Judicial decisions are in accord. Consider Gill, where the superintendent of
schools was removed based on “charges related to his conduct in the office during a
prior term, and not to anything done or omitted during the term in which he was
removed.” 9 Wis. at 257. The removal statute authorized removal “only ‘for due
cause.’” Id. at 259. After the court determined that it could evaluate the purported
“cause,” it reasoned that “we think it a sufficient answer to [the charges], that they
did not relate to anything occurring during that term.” Id. at 261. The court noted
that “[w]e do not say that in no case could acts done during a prior term, justify a
22
removal.” Id. at 261-262. But because this was not a case in which “during his prior
term [the officer] had committed a defalcation, and been guilty of gross frauds in the
management of his office,” the court concluded that this was not the rare case in
which conduct that occurred before taking office constituted “due cause.” Id. at 262.
Speed v. Common Council of Detroit, which involved the removal for “cause” of
a “duly appointed city counselor and head of the department of law,” is of a piece. 57
N.W. 406, 407 (Mich. 1894). The court explained that “the charges preferred, so far
as they relate to the acts of Mr. Speed committed before his appointment to, and
induction into, this office, are clearly beyond the jurisdiction of the respondents to
determine.” Ibid. The court then emphatically stated, “[w]e have been unable to find
any authority which justifies a removal for such previous misconduct.
The
misconduct for which any officer may be removed must be found in his acts and
conduct in the office from which his removal is sought, and must constitute a legal
cause for his removal, and affect the proper administration of the office.” Ibid.; see
also Commonwealth v. Shaver, 3 Watts & Serg. 338 (Pa. 1842).
b. Other authorities emphasized that more than allegations were typically
required to constitute “cause” warranting removal of a defined-term officer.
Nichols illustrates that principle.
There, the police commissioner was
appointed for “six years,” and the mayor had the “power to remove [him], but only ‘for
cause.’” 79 N.Y. at 588. The court explained that any removal proceedings “must be
instituted upon specific charges, sufficient in their nature to warrant the removal,
and then, unless admitted, be proven to be true.” Ibid. (emphasis added).
23
That is also why, as explained, see pp. 6-11, supra, provisions authorizing forcause removal required notice and an opportunity to be heard. Because the right to
notice before removal “for cause” encompassed testing the alleged “cause,” officers
could “cross-examine the witnesses produced to support the charges [and] call others
in his defense.” Nichols, 79 N.Y. at 588. Thus, “[w]hen the right to remove can be
exercised only for specific cause, or for cause generally, the appointing power cannot
arbitrarily remove the officer; and where the removal is to be had for cause the power
cannot be exercised until the officer has been duly notified, and an opportunity has
been given him to be heard in his own defense.” Williams, 53 A. at 925.
c. Although courts at times permitted removal of an officer based on conduct
that did not relate to the office at issue, those cases usually involved already proven
“infamous crimes.”
At common law, the leading rule was that an officer could be removed for one
type of conduct with “no immediate relation to his office”: a conviction for a crime “so
infamous a nature, as to render the offender unfit to execute any public franchise.”
Rex v. Richardson, 1 Burr. 517, 538-539, 97 Eng. Rep. 426, 438-439 (K.B. 1758); see
Manners & Menand, supra, at 30 & n.162. To justify removal based on such an
“infamous crime,” the offense must have been “established by previous conviction by
a jury, according to the law of the land.” Richardson, 97 Eng. Rep. at 439.
In keeping with that venerable rule, some state courts in the nineteenth
century concluded that when “removal can only be for cause, but the statute does not
specify in detail what the causes are,” the requisite “cause” could be based on
24
“commission of an infamous crime,” in addition to causes such as “a conviction of a
misdemeanor and sentence to imprisonment for a term which will prevent the officer
from discharging the duties of his office” or an “act of nonfeasance or malfeasance in
office.” Andrews, 77 Me. at 232; see also, e.g., Richards v. Town of Clarksburg, 4 S.E.
774, 779 (W. Va. 1887).
3. In light of the foregoing, it is highly unlikely that the asserted reason for
Governor Cook’s removal would constitute sufficient “cause” under leading commonlaw authorities. The stated reason for Governor Cook’s removal involved unproven,
private, pre-office conduct. See App. 7-8. That does not resemble the type of “cause”
that state courts deemed sufficient prior to Section 242’s enactment.
To be sure, the decisions from the relevant era are not a monolith that adopted
uniform and rigid rules. Here, amicus seeks to survey the prevailing standards and
reasoning of leading cases from the era. And given those standards, the asserted
“cause” for removing Governor Cook—which involves unproven, private, and preoffice conduct without a conviction for a serious crime—likely would not have
constituted sufficient cause to warrant removal in the years prior to Section 242’s
enactment.
CONCLUSION
The application should be denied.
25
Dated: October 29, 2025
Respectfully submitted,
KATHERINE L. PRINGLE
KYLE C. BAILEY
FRIEDMAN KAPLAN SEILER
ADELMAN & ROBBINS LLP
7 Times Square
New York, NY 10036
DONALD B. VERRILLI, JR.
Counsel of Record
DANIEL J. KANE
KYLE A. SCHNEIDER
MUNGER, TOLLES & OLSON LLP
601 Massachusetts Avenue, NW
Suite 500E
Washington, DC 20001
(202) 220-1100
donald.verrilli@mto.com
THOMAS P. WOLF
LAUREN MILLER KARALUNAS
SAMUEL R. BREIDBART
BRENNAN CENTER FOR JUSTICE
AT NYU SCHOOL OF LAW
120 Broadway, Suite 1750
New York, NY 10271
Counsel for Amicus Curiae Professor Jane Manners
26
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.