Trump v. Cook

Mr. Chief Justice, and may it please the Court: Deceit or gross negligence by a financial regulator in financial transactions is cause for removal. In a two-week period in 2021, Lisa Cook submitted mortgage applications for two properties in Michigan and Georgia. In both, she told the lender that, within 60 days, she would occupy that property for one year as her principal residence. As President Trump stated in removing her, it is inconceivable that she intend -- she was unaware of the first commitment when making the second, and it is impossible that she intended to honor both. Such behavior impugns Cook's conduct, fitness, ability, or competence to serve as a governor of the Federal Reserve. The American people should not have their interest rates determined by someone who was, at best, grossly negligent in obtaining favorable interest rates for herself. Cook's conception of cause contradicts the term's longstanding meaning and overrides Congress's deliberate decision not to impose the inefficiency, neglect, or malfeasance standard here. Her claim that she has a property interest in her public office was roundly rejected by the founding generation as pernicious in a republican system of government. Her claim that the statute grants her notice and a hearing contradicts this Court's cases requiring very clear and explicit language to restrict the president's removal power. And any such process would be futile because, for months, she has never personally disputed the substantial truth of the material in question. Finally, the remedy she obtained, a preliminary injunction countermanding the president's decision and reinstating her to office, violates longstanding principles of equity and was conspicuously nonexistent in our nation's history from 1789 until 2025. I welcome the Court's questions.

Justice Thomas, an excellent question. I would say two things about that. The first one is, of course, that the Federal Reserve -- there's an academic dispute about whether or not the Federal Reserve's open market operations constitute executive power or something else, essentially private conduct. However, Congress has, over the years, kind of packed on traditional executive powers on the Federal Reserve. So the Federal Reserve can issue regulations about reserve requirements in banks and even credit card fees and so forth. So, even if the Court were to think that some of what the Federal Reserve does isn't executive at all, certainly, there are traditional executive powers at issue here, and, therefore, we contend that this -- even though we haven't disputed the validity of the Article II removal restriction here, this case is not transparent to Article II. And, certainly, there's a statutory authority that's very plain here because it says removable for cause by the president, so the statute is unambiguous, giving the president removal power. And we contend that there -- there -- at least there's -- what's kind of been packed on to the Federal Reserve over the years by Congress is clearly quintessential executive power.

Now we acknowledge what the Court said in Wilcox, which is that it's a quasi-private, uniquely structured entity that stands in the distinct historical tradition of the First and Second Banks of the United States, and, therefore, we have not challenged the -- the removal restriction in this case.

We would say yes. For example, the president's removal order says either this is deceit or at least it's gross negligence. And now, obviously, they've released their letter of counsel, not from Cook herself, you know, two days before the close of briefing here, where they contended that it was an inadvertent notation. But, of course, it's the sort of inadvertent notation that people could be indicted for or at least the federal regulators would force you to buy back your loans. It's a very significant representation that, to the lender, this is going to be my principal residence because, obviously, you get a better interest rate if that is, in fact, your principal residence. So it suffices from our perspective, and, therefore, there's really no material facts in dispute that the president determined that this is at least gross negligence. Even if it was inadvertent or a mistake, it's quite a big mistake, so to speak, in a key financial representation made in -- in the context of interest rates.

Let me put it this way. We would contend there's judicial review kind of at the outer perimeters of cause, whether something goes to conduct, fitness, ability, or competence at all. But, once you're within that, and we clearly are here, then there would be deference to the president. And we derive that from at least three sources. First of all, the statutory language, "cause," without further qualification, is itself on its plain language a broad, you know, conferral of authority on the president himself. Secondly, we think that places that within the line of cases going from Martin against Mott through Dalton against Specter and beyond Payne and so forth, where the president has broad discretion, and the Court has consistently held in those cases where the president is granted this broad discretion and that's not judicially reviewable. And there are statements to that effect obviously in Marbury itself that they disregard, pages 165 and 166 of Marbury. But, even if the Court doesn't accept that, there's a further layer here, which is that they've conceded this is an ultra vires challenge, and this Court held last term that the standard of review of in an ultra vires challenge is very, very high for them and very deferential to the president itself. It kind of, you know, dovetails with our Dalton and Martin argument as well. In an ultra vires challenge, the burden on -- would be on them to show that what the president did is entirely in excess of his delegated powers and contrary to a specific prohibition in the statute. So there's kind of three ways to get to the same conclusion there, which is that once the president has made a determination, it clearly does relate to conduct, fitness, ability, or competence for that office. Then, at that point, there's no work for the reviewing court to do. The traditional discretion to the president's determination would kick in.

The D.C. Circuit, in its stay opinion, relied exclusively on the sort of property interest argument.

It said that, yes.

It said there's a property interest --

-- in this office under Loudermill.

Correct.

Let me start by addressing that last point. We are seeking a stay of an unprecedented preliminary injunction, restoring a principal officer of the United States after being removed by the president of the United States.

I think that statement has to be qualified by the recognition that there have been situations where governors have been credibly accused or found to have engaged in financial improprieties, and those governors have resigned for financial improprieties that are quite analogous to what is at issue in this particular case. But I want to make the fundamental point that in Sawyer, this Court held that a preliminary injunction was not available to restore an officer. Sawyer was a preliminary injunction. It's a preliminary injunction against the --

I think the Court's referring to the Delgado case, and in that particular case --

-- it was a -- there, it was a writ of mandamus to an inferior there, the clerk, to recognize the -- the de facto officers when there was a dispute about who had been validly elected to be the city commissioner or whatever the statute was. And this Court said it could --

-- grant a final judgment in mandamus to say you have a ministerial duty to recognize the de facto officer. That is totally different than issuing a preliminary injunction. Keep in mind there is no such thing as final mandamus. In fact, Judge -- Judge Friendly once described that as the starkest of solecisms. Or, sorry, there is no such thing as a preliminary writ of mandamus. Judge Friendly described that as the starkest of solecisms. What this Court held in Sawyer is there is no jurisdiction to issue a preliminary injunction restoring a public officer to office, and -- and that's a holding of the Court.

She is reinstated. What -- what the Court -- the Court framed its holding as, there is no jurisdiction over the appointment or removal in equity of public officers. So it does not turn on whether or not she's sort of, you know, stoutly staying in office or whether or not she's gone and then sued later. That doesn't -- nothing turns on that.

Yeah. Two -- two things to say about that. One is, if you look at what actually happened here, she was removed on August 25th and the stock market went up for the next three days. So we've already had a kind of natural experiment, so to speak, about whether or not the predictions of doom will really be implemented. Surely, that if investors are jittery or whatever the argument is, you would have seen that on August 25th, and you did not see that. In fact, you have the surprised --

I agree, and -- and that's why I think the Court ought to consider all those amicus briefs and their sort of, you know, predictions of doom with a fairly jaundiced eye. What the Court has to do is weigh -- essentially, you have those amicus briefs as a reflection of very elite opinion, elite opinion that what's happened here --

Yes.

I think the Court has to weigh that risk against the risk that there will be a permanent damage to the Federal Reserve's credibility from allowing an officer, a governor, to remain in office who's engaged in this kind of behavior before she came in office. That's --

I think what the Court ought to take into account is the close nexus between the conduct at issue here and the duties of this incredibly powerful position that has sweeping, powerful authority over the entire United States economy. The governors set interest rates for ordinary Americans all across the country. And, here, there's the appearance of having played fast and loose or at least been grossly negligent in getting favorable interest rates for herself.

What's the message to ordinary Americans that comes out of that is the question for the Court and how do you weigh that against the elite opinion that's reflected in the amicus briefs. Obviously, President Trump's voice speaks to that concern of ordinary Americans. I think, when you balance the equities, what the Court ought to do is look at the merits, which are extremely strong for us, and then look at its traditional Nken stay factors. The Court says, when the government is a party, the irreparable harm to the government merges with the public interest. And, here, we have traditional irreparable harms, injuries to the president's ability to remove a principal officer of the United States. When you look at, for example, the originalist evidence we talked about in the Decision of 1789, when everybody said or both camps were saying, of course, the president can engage in suspensory removals, and we have a preliminary injunction that is conspicuously nonexistent, in your words, in CASA, you know, for 225 years of American history --

-- that's how it should be balanced.

We have a remedy here, which is a preliminary injunction, that this Court squarely held in Sawyer there was no jurisdiction to issue.

So it's about framing --

Among other reasons, we assert grievous irreparable injury to the public perception to the Federal Reserve of allowing her to stay in office. They argue that this is going to cause the markets to tank.

When she was first removed, they didn't tank.

The president has made that determination. It's reflected in the language of the dismissal order, and as I discussed remotely during this --

-- close week --

A Federal Reserve governor who sets interest rates for the entire country appears to have engaged in improper behavior --

-- to obtain favorable interest rates for herself --

-- by seeing it so low --

I'm sorry.

Well, the removal order addresses that because it --

It's the -- no. It's the August 25th letter. I think it's Doc 1-4 in the district court. But the removal order addresses that. The evidence is you have mortgage applications within two weeks of each other that make clearly conflicting representations.

Not a formal proceeding. She was given an opportunity in public because she was notified --

Yes.

Yeah.

Yes, and she's had plenty of opportunities in the ensuing months where we've had ongoing litigation where there's never been a personal statement addressing that --

-- or -- or justifying it.

I would point to what the Court has said in Vermont Yankee, which this Court is very reluctant to dictate procedures to even federal agencies. And, here, the Court would be dictating or a court would be dictating procedures to the president. I think they rely heavily on Loudermill. Obviously, we dispute that there's any notice and hearing requirement. But Loudermill requires only very minimal, flexible procedures.

It would probably be entire -- if -- if the Court were to conclude that, it would be -- have to be entirely dependent on the executive to decide, and that's what the case law indicates. Certainly -- and I think the question points out a great weakness in their argument, which is that the word "cause" does not include notice and a hearing by -- on its face. Congress knows how to provide notice and a hearing. It did so in the NLRA one month before it -- it reenacted the for-cause restriction here in 1935. And because it's not there, the Court has nothing to provide guidance on that point. And if the Court were to conclude that, it would be up to the executive's discretion.

All Loudermill says is that you have to be told of what the basis is of the allegations against you and give a chance to tell your side --

-- of the story. We believe that was provided in the five-day window --

-- between the Truth Social post and -- and the removal letter.

So the contention in the amicus briefs is that you can rely on Delgado to sort of bypass the holding of Sawyer and say that mandamus can provide the essence -- essentially, the same relief as a preliminary injunction. I guess the argument would be you'd have to mandamus everybody, so all the members of the -- other members of the Board, to treat her as she's still -- as if she's still a governor, all the staff to treat them as -- as -- as if they were still a governor, because Delgado held, where there was the city clerk who can't decide who was validly elected city commissioner, the Court held you could mandamus that clerk to recognize the de facto officer in the interim. And that doesn't work for a couple reasons. First of all, this is a preliminary injunction. Mandamus would have to be a final judgment. And that's what Judge Friendly said. There is no preliminary mandamus. That's the starkest of solecisms.

Absolutely, yes.

It's not stated explicitly in the statute, and Congress knows how to provide that because --

-- it did so a month earlier in a similar statute and has done so in many, many statutes.

Yeah. Two reasons. In both Shurtleff and Reagan, this Court expressly recognized that that phrase, "INM," would or specified causes would bring with it notice and a hearing. And that's part of the Court's holding in Shurtleff, as -- as I read it, because, there, it was an INM standard.

And there was a removal with no notice or hearing. And the Court held, well, clearly, this wasn't for INM --

-- because it was notice and a hearing.

Not exactly because the old soil argument that we reject as to just simply cause is, we admit, much stronger when it comes to specified causes. So we don't think the Court necessarily got it wrong in Reagan when it said specified causes mean that notice and a hearing are provided because the case law, it's the one point on which the sort of background case law does seem to be unanimous. On the other issues where they contended the case law all goes in one direction, you have their own sources saying they're all over the map. They're directly contradictory, for example, in the Tuttle Law Review article.

He has to provide a cause. We contend that there has to be a cause, something that relates to conduct, fitness, sufficiency, or competence. We concede it cannot be for policy disagreement or -- or for no reason at all or at will.

We agree. That's an alternative basis. As we say in our brief, that's reason enough to rule in our favor, and we have a holding of the Court, Sawyer. We also have this tradition I was referring to earlier of recognition that runs from the Decision of 1789 to all the opinions in Myers. It's alluded to in Wiener and so forth, recognizing the president's power of interim or suspensory removals. So we agree that's an alternative. That's an independent basis for us to prevail.

There is a traditional remedy to reinstate wrong -- we don't dispute there's a traditional remedy to reinstate wrongfully removed officers, which is mandamus. But they don't argue mandamus here, and the reason they don't argue mandamus is they face a number of insuperable obstacles to prevailing in mandamus. One is, of course, going all the way back to Marbury against Madison. You can't mandamus the president in his discretionary acts. In addition to that, there is no preliminary writ of mandamus, as Judge Friendly pointed out and the Seventh Circuit has held. In other words -- and keep in mind that the standard in mandamus would be clear and indisputable right to relief. And, in fact, this is an ultra vires challenge, where the standard is exactly the opposite and you can't decide.

But the -- there is a -- a traditional remedy, mandamus. Here, obviously, it would be quo warranto if there were two competing claimants, but where there's just the one, that would be mandamus. And they have not argued mandamus. They're trying to find their way around mandamus because the standards to prevail under mandamus are insuperable and they clearly cannot meet them.

I know that the text of the social media post that screenshots the mortgage applications is in the record. But I don't recall if the -- the paperwork itself is in the record, in the district court's record.

Not exactly. The -- the D.C. Circuit stay panel relied only on the property interest, did not rely on the pre-office misconduct, and that's insupportable. We --

My recollection is that the D.C. Circuit -- the Garcia opinion in the D.C. Circuit relied solely on Loudermill and the due process property interest, which is baseless for the reasons we say. And now the district -- the district court relied on the -- the twin grounds, both that Loudermill rationale and also the --

Yeah, yeah.

That's correct.

I disagree with that. We read Reagan differently. If you have that -- those two key paragraphs in Reagan --

-- Your Honor, they don't talk about fixed term at that point.

What was addressed below is I think exactly what I had in the exchange with Justice Alito.

If I could say two things about that. First, on the -- the -- the narrow point about whether or not a letter of counsel can create a factual dispute in this context, that's the holding of this Court in Codd against Velger, where the Court said that suggestions of counsel are not enough. It's the party who has to -- to do it. So there were representations of counsel there, and the Court held that that wasn't enough to bring it back --

Yeah. The point was there had never been any representation by -- by the party in any context, formal or informal. And we -- that's exactly what we have here. That's the one point. I can't remember the second point I was going to make in response to that.

Well, Congress adopted a policy choice to impose on the president a cause requirement and not an INM requirement. As Justice Alito pointed out in the CFPB funding case, this was a hard-fought compromise between two influential camps.

It is a -- if it is non-effectual, which we dispute, we think it's very effectual. And it's proven to be effectual in history because it provides the governors with the most important protection, which is that Congress apparently wanted to give them, which is removal for -- protection against removal for policy disagreements. And governors have not been removed for policy disagreements. That has been the perspective.

And there's no question for all the reasons we discussed in our briefing that that confers broad discretion on the president. Now there's an outer perimeter that is subject to policing by judicial review, policy disagreement, no cause at all and so forth, but that is -- confers broad discretion on the president. But, even if it was de novo review here, gross negligence in a very important financial transaction that has this close nexus with what a governor does --

-- would satisfy it.

So we have, I think, conceded in the briefing that that sort of determination would be subject to judicial review because he hasn't specified the cause. Now the case law, that's a -- that's a borderline case. The case law goes in different directions on that. Garland, one of the cases that we cite in our brief, kind of goes the other way, in a way that would be stronger for us, but we haven't disputed that in this case, that if it was -- there was no cause provided at all, then that would be subject to judicial review and likely an invalid removal.

I think we would. Now that might be a closer case because the mandamus statement -- standard is clear and indisputable right when we have conceded that policy disagreement would not be available. Actually, that might be a case where mandamus might be available with the caveat that how would Marbury apply to that. Marbury says you cannot mandamus the president in a discretionary decision. And so baked into our jurisprudence from the dawn of -- of this Court --

-- is the notion there's going to be some things the president does that you can't dispute.

Essentially. The -- the argument would have to be that would be ministerial within the --

-- within the meaning of Marbury. And then I think that -- that -- that standard in Marbury kind of gets ported into the standard in Cheney, clear and indisputable right.

Hypothetically. I'd to have do a lot more study before taking a firm position on that.

It protects the govern -- exactly reflecting the plain text of the statute, it protects the governors from removal for policy disagreement or for no reason at all.

To preserve the independence of the Federal Reserve.

Well, there is a number of reasons that are discussed by their amici and I think not disputed by us, which is that there is a -- you know, a long tradition of having this exercise of monetary policy be exercised independent of, you know, executive -- executive influence. And we don't dispute that that's what Congress was doing in that statute. And, again, we have not disputed the validity of the for-cause removal restriction here.

For -- I -- I don't -- we don't dispute the importance of that for many of the reasons that their amici say, but we emphasize that there's a balance struck here. This is not a ironclad "you can never be removed." There is a cause removal authorized in --

We disagree with that. And I would point to the point that -- the point you made that this is a low bar for cause. In a sense, it's a very high bar. It's a very strong protection because it does protect them from the one thing that Congress was apparently most worried about, which is a removal for policy disagreement.

One of the strongest traditions in this Court's jurisprudence is the -- the sort of presumption of regularity to the president's action. That has applied to this provision, I think, effectively for 112 years and it continues to do so.

Yeah.

I cannot predict what future presidents may or may not do, but the argument strikes me as a policy argument --

Two points there. I dispute the characterization that these tools have been unleashed. The president has always had this tool to remove governors for -- for -- for financial improprieties. Now the history is, including twice in the last four years, governors who have been credibly accused of financial improprieties have resigned. They haven't forced the president to remove them. And I think the more sort of fundamental point is that cause is a standard that is quite deferential to the president. Congress consciously adopted that instead of a more restrictive standard like INM that was for, by all appearances, a legislative compromise between two camps, one of which wanted to give the president complete control and one of which --

This Court has since Martin against Mott, running all the way through Trump against United States, Trump against Hawaii, a whole host of decisions, accorded, consistently afforded the president the presumption of regularity in his action and consistently declined to probe a president's actions for, you know, their -- for their subjective motivations. And so, in the hypothetical question that you pose, that hypothetical future president should also be afforded the very same sort of deference and -- and --

And, again, I disagree with that. I think that the -- that argument, that presumption, when applied to the president, contradicts a very, very -- two very strong strains in this Court's jurisprudence that go back to the founding.

I don't think we think that process is necessarily bad. In this case, there's two reasons why, you know, process is not the right answer, among others. One is, in Vermont Yankee, this Court said we're not going to dictate procedures to executive agencies. A fortiori you should dictate procedures to the president. Our contention is that there already has been a process. There was a social media post that said, look, these two documents contradict each other. And the response was defiance. So there was a chance to tell -- in the words of Loudermill, to tell her side of the story. It just wasn't -- it wasn't adopted.

And, in fact, there hasn't been for months since then any clear explanation other than it was an inadvertent notation. It's just the kind of inadvertent notation that ordinary people can be indicted for.

I don't think it's a question of resource allocation. It's our position that adequate process was already provided. So, if it's a question if the district court's order has to go further and then go further and go further again, all without any legal or constitutional authority in our view, we think that imposes irreparable injury on the executive branch.

Again, it's an intrusion on the executive branch to dictate what procedures it ought to provide --

-- certainly to the president. And our position is he has provided process. He's provided adequate process. And if the district court said, well, that wasn't quite good enough, try again, and then we try again, and the district court says, no, that wasn't quite good enough, try again, we have gone -- left Vermont Yankee way in -- in the rearview mirror.

Notice and hearing, yes.

We don't dispute that.

Because the case law, presumably Shurtleff, when it said that as to INM, notice -- you get notice and a hearing, was relying on what we don't dispute is a -- as far as I can tell, a pretty consistent strain in the case law that that's what that means. It gives you specified causes, like that INM, give you notice and a hearing. The case law on cause is the opposite. I mean, look at the lower court opinion in Reagan, at the court of claims opinion, where they say cause does not mean you get a notice and a hearing. And we cite a strong line in the -- in the background case law as well. Now they dispute and they say there's some cases going the other way. However, the notion that they -- they are making an old soil argument. They're saying, oh, this -- in order to -- to prevail on that, it has to be so well-settled and clearly established that there really wasn't a dispute about it. I mean, look, I can't emphasize enough, you know, what, for example, the Tuttle Michigan Law Review article from 1905 that's heavily relied on, for example, in the Manners amicus brief that they rely heavily on in their supplemental brief, it says the case law is all over the map on all of these issues. That -- that treatise says the courts differ on almost every conceivable part of this question. The only point of consistency is that specified cause is INM, which also, as we can see, is a holding of the Court in Shurtleff, whereas "cause" just doesn't mean that. We cite all these cases that they dispute, and there's this battle about what did the 19th century case law mean. Keep in mind, in the context of that battle, they bear the burden of making the old soil argument.

Respectfully to her, that contention is plainly incorrect. So, if you go to our supplemental brief, page 9, Footnote 4, in the accompanying text, we cite Ulrich and then more cases in that footnote for the proposition that "for cause" does not require notice and a hearing. Her argument is gerrymandered --

Yes. Yes, the combination. Right.

Of those four --

By our count, in seven --

-- of those cases, it's a combination. There's also a fixed term. So that argument just -- again, that brief, you know, read the Tuttle article that it relies so heavily on and you'll see this argument. They're nowhere near meeting the burden of an old soil argument.

And that's what they need to change the plain text of the statute.

It directly furthers the -- furthers the aim of protecting them from removal for policy disagreement, which would be the key protection that --

It was designed to limit the president's discretion just as far as the plain text of the statute goes. The statute was a hard-fought compromise between two influential and insistent camps, as Justice Alito recently wrote. One of them thought there should be complete presidential control of the Federal Reserve. The other thought it should essentially be a private entity. They met in the middle with a removal standard that protects governors from removal for a policy disagreement.

It also provides a legislative determination that governors could be and perhaps should be removed if they engage in financial improprieties that undercut the Federal Reserve's credibility in the eyes of ordinary Americans.

It is -- the preliminary injunction is an equitable determination, and it's one that the district court plainly, under Sawyer, plainly lacked jurisdiction to -- to enter. And, again, I also -- in addition to the holding of this Court in Sawyer that a temporary restraining order purporting to restore a public officer --

-- with serious equitable powers --

Sawyer, in addition to that, as I alluded to before, there's this strong tradition of recognizing the president's authority to engage in suspensory removals pending the -- the final determination. And that alone would -- is enough to point out that there's no -- no power to do the preliminary injunction that was entered here.

Mr. Chief Justice, and may it please the Court: The Federal Reserve is a uniquely structured entity with a distinct historical tradition. Part of that historical tradition is an unbroken history going back to its founding in 1913 in which no president, from Woodrow Wilson to Joseph Biden, has ever even tried to remove a governor for cause, despite the ever-present temptation for lower rates and easier money. Even in this case, the president recognizes the unique status of the Fed by neither arguing that the removal restriction is unconstitutional, nor asserting the ability to remove a Fed governor without cause. But despite that recognition, the sum total of the Solicitor General's arguments would reduce the removal restriction in this unique institution to something that could only be recognized as at-will employment. No procedural due process before removal. No judicial review after removal. No preliminary injunction to preserve the status quo. And a conception of cause so capacious that apparent misconduct or gross negligence suffices. That makes no sense. There's no rational reason to go through all the trouble of creating this unique quasi-private entity that is exempt from everything from the appropriations process to the civil service laws just to give it a removal restriction that is as toothless as the president imagines. But, if that removal restriction has real substantive and procedural bite, then this emergency application should be denied. There is simply no reason to abandon over a hundred years of central bank independence on an emergency application on a preliminary record. I welcome the Court's questions.

So it could have been, Justice Thomas. You know, in the realm of interpreting statutes, could have, should have, would have, right? But I think that you have to give faithful interpretation to what Congress actually did. And I think, if you understand the original public meaning of "for cause" in either 1913 or 1935, I do not think it was as capacious as my friend suggests. I think it probably meant INM plus ineligibility, and in the context of the Fed in particular, it probably picked up Section 244, which prevents a federal governor from also serving as a director and an officer of a bank. So, if they're a Fed governor that insisted on being a director of Chase Manhattan, I think that would be removal for cause. And then, on the context of the hearing, and I think Justice Kagan already alluded to this, but there are all these statutes about INM that don't mention a hearing, and there are many statutes that talk about cause and don't mention a hearing. Now it's true that the NLRA, which was passed a month before, did specify a hearing. But I think it would be a mistaken statutory interpretation to make that one express reference to a hearing sort of disable all the other old soil arguments with respect to all the other institutions where I think there's a very strong old soil argument that, whether it's INM or for cause, that means that you get notice and an opportunity --

So I agree with General Sauer that the president would have a fair amount of discretion in how he or she wanted to fashion that hearing. I mean, one example we have historically is President Taft, and he sort of gave the removed officials the full Taft, and it was notice, opportunity for a hearing before an impartial tribunal that, you know, serendipitously included future-Justice Frankfurter, and then he -- I mean, so that's kind of the maximum that the president could give. But we're not suggesting that you need to give the full Taft. The president would have a lot of flexibility on that. I think -- you asked what the review would look like, and I think that actually sort of gets to the heart of where the president's incentives would be. I think the more process that the president provides, the less room there's going to be for judicial review and judicial second-guessing of factual determinations. So, if a president wants to give the full Taft, I think the scope for review of factual determinations by that kind of tribunal would be very narrow, but I do think there would be legal review.

Well, I mean, Mr. Chief Justice, I think, in a case where the president's going to say that it's -- an inadvertent mistake is enough and the potentially removed official's going to come in and say it was an inadvertent mistake, then, you're right, I think the hearing's not going to matter that much. Now, in the -- in -- in the real world, where you have no precedent for this kind of removal, I think, if there were notice and opportunity for a hearing, there might be an opportunity to not just present the factual evidence but to also make the case, and given these particular facts about this particular inadvertent mistake, that isn't a basis for removal.

I -- I think that's right, Mr. Chief Justice, and I do think those could be made in a preliminary way in the process that was provided by the executive branch. But, as I alluded to, I do think, on the substantive question of what's for cause, there needs to be judicial review. And I think there needs to be judicial review of that question for all the reasons that were alluded to in the various colloquies because, if there's no judicial review, then this is all kind of a joke. I mean, we can -- we can sit here and posit that, well, this would be for cause and that would be for cause, but none of it would matter because there would be no judicial review.

We -- we do defend the district court's holding on that. And I would understand that is the rule for all the statutes that have INM.

That is my front-line response. I happen to have a backup argument, which is, if you pick up the common law, then you would pick up the --

So what I would say, Justice Alito, is I don't think that would be INM. And so, if I'm going to stick to my front-line position, then that would not be for cause. It would certainly be a basis for impeachment. And I think, in understanding why we've had INM for at least 90 years, probably --

I can only imagine --

-- where these hypos are going to eventually go, Your Honor, but --

I'm going to stick with my position.

Of course, I'm going to stick with my position and I'm going to say that's an official that would be impeached in a heartbeat, and the fact that they would be impeached in a heartbeat is going to cause them to resign in half a heartbeat. And this has not proven a problem. I mean, for better or for worse, whatever you think of Humphrey's Executor, we've had 90 years of --

My -- my backup -- my backup argument is the common law standard, Justice Sotomayor alluded to it, which would be that it is -- that there's a removal basis for an infamous crime of the kind that is disabling for public office and, you know -- and at common law, it would -- it also required a conviction. So it's -- it's an exception. It helps me with a couple of these hypotheticals.

But it's not going to help me with the Justice Alito --

You know what I'm saying? There's no conviction for the Hitler video.

Impeachment. It's the ultimate backup here. This is not a situation where you're being asked -- you're -- you know, have to tie yourself to the --

Well, I certainly -- see, but this actually kind of makes the point about judicial review, right? I mean --

Right. But -- but -- but -- but what I -- what I absolutely agree with is the Walter Nixon case says that there's no judicial review of the impeachment determination in the end. So whatever the House and the Senate ultimately determine, I mean, they can make constitutional law too and they can determine whether private conduct is or is not out. And if they say -- and -- and with these hypos, I mean, you know, and we can -- we can go down the road of the hypos and they'll get worse. I -- I am -- I am confident --

Right. No, absolutely. And, of course --

Correct. But the reason I want to spend at least a moment answering some of the hard hypos is not because I'm a masochist. It's just because those are -- have got to be the answers under INM.

That's right. And that's -- that's the way --

-- INM has worked for 150 years. And I think it would continue to work. It hasn't proven a problem in practice. But I'm not resisting very hard the backup to the backup on that because I don't think we're close. And, of course, look, all of these are hard questions, which is all of the reasons why it's kind of crazy to decide this on an emergency application.

So I think there's a perfectly reasonable argument for that, but I also think that there's a better argument that's a constitutional avoidance argument. And what the D.C. Circuit did in a per curium opinion is sort of an example of what happens when you're trying to rush all of this, which is you jump right to a constitutional holding when there may be a perfectly good constitutional avoidance statutory holding there. And I think we've now had a couple of months and a bunch of amicus briefs to ventilate some of these things, and I think you get -- with that ventilation, you get an understanding that there is a very good statutory argument --

-- and I do want to talk about us treating Shurtleff --

I'm sorry.

So it should go back. It should just not go back with an emergency stay being granted, which is extraordinary relief that depends on my friends on the other side showing extraordinary burden of irreparable harm and showing that they have a likelihood of success on the merits. And I think likelihood of success on the merits in this context doesn't mean just a likelihood of showing that the two grounds that were seized on in the quick briefing below are wrong but that they're actually right. And I think the briefing here has done two things. I think it showed that we're right. I -- I'm not abandoning my front-line arguments, but I love my backup arguments. I think they are very strong. And I think it shows the sort of -- you know, the -- the problems that happen when you try to decide some of the most important issues of constitutional law in this kind of rushed way.

It is an appropriate avenue at the end of the case. Even at the end of the case, though, I think -- and this is consistent with Professor -- what Professor Bryce says in his article. Even at the end of the case, I don't think you have to leap to mandamus. I think you can have a declaratory judgment first.

So a couple of things. I mean, I -- I don't like hearing preliminary mandamus any more than Judge Friendly did.

I don't think it's the right way to think about it. I think it's preliminary relief to preserve the status quo or, if you want to be more specific, preliminary relief to preserve a de facto officer in their office while the case proceeds. And that is a relief --

What I'm describing is -- is a preliminary injunction.

I'm just saying it's not a preliminary mandamus. It's a prelim --

Well, perhaps. I mean, two things about that. One is I'm not sure in this kind of mandamus posture, I don't think I agree with General Sauer that the standard is the standard you would have in, like, a Cheney situation. I do think this kind of original mandamus as the remedy in this particular situation, I would resist the idea that that's sort of the standard more appellate mandamus standard. That's a debate -- even with all the briefing we've had, we haven't had a good chance to really duke it out on that. But I would say that's part of the reason I resisted the idea that you have to go to mandamus, because I do think you would have declaratory judgment. I do think declaratory judgment --

No, no, I -- and I tried to as long as I could. (Laughter.)

But -- but then, to answer your --

Then, to answer your question, I really had to get to declaratory judgment. I would like to say this is an issue the -- the D.C. Circuit has thought a lot about. And there's a particular case worth reading, the Swan against Clinton case. And that's a case where they kind of wrestled with this question about can you -- you know, would you have mandamus against the president. At the end of the day, can you direct the president, and there's a great concurring opinion by Judge Silberman where he basically says, look, the judiciary is creative and clever enough to figure out a way to fashion injunctive relief against the lower federal officials and that solves the problem about having the relief run against the president. And the reason that the D.C. Circuit has wrestled with that in a couple of contexts, and I think the Chief Justice alluded to this, if they don't really write about that, then you'd have to wrestle with this at the beginning of the case as to whether there's any redressability at the end of the case. And in the Swan case and even in the Severino case, the D.C. Circuit has said there's not a redressability problem. We can figure out a way to direct the relief at the lower government officials and that will be sufficient unto the day.

I mean, I -- I think that's right. But it's specifically about whether you can get some sort of preliminary injunctive relief to preserve the status quo and keep the de facto officer in place. And I do take Justice Gorsuch's question, which is, at the end of the rainbow, all there is is mandamus and you can't have mandamus against the president, then, at this point, you'd say what's your likelihood of success at the merits and you would say there's no likelihood of success on the merits. But I think, as I alluded to, even before that, you'd say is there any redressability here.

Well, I mean, you could draw the distinction that way. I think, if you have no remedy at the end, you probably have the redressability problem at the front end, which is why the D.C. Circuit has this -- addressed this on a number of bases. These are not emergency application decisions. These are decisions in the D.C. Circuit. They obviously don't bind this Court. But they are the considered judge -- judgment of a court that's dealt with, you know, like, about, with all the removals there have been, and there haven't been a lot of them, but with respect to other officers. So, you know, I think that's --

-- pretty good authority.

Sure. So I would divide between sort of factual questions and legal questions. As to the factual questions, I would say that there's going to be a degree of deference, and the degree of deference depends on the degree of process that's provided. So, if the president wants to go full Taft, I don't think the courts are going to be in a position to second-guess the factual determinations. If the president wants to do something more informal, that's -- he's entitled to do that, but then I would think there'd be more of a scope for, you know, having more hearing, more process in the judicial forum. On the question, the legal question, I would say, in a post-Loper world, there's no deference to the legal questions, and the courts are going to have to decide ultimately what are the boundaries, the metes and bounds of for cause. And the only other thing I would add is I think that you're going to want to erect meaningful standards of cause because, you know, there's kind of two options here. You can either have judicial review that spends a lot of time looking into pretext of the president, and that just doesn't seem like a good thing for the courts, for the president, or anybody, or you could erect relatively demanding standards of cause, and that's going to, I think, obviate the need for that kind of pretext inquiry.

Well, because it would kind of destroy the whole point of having an independent central bank in the Fed. And it just seems to me like at some point -- I mean, we're all here on the assumption for this case that the Fed is a uniquely structured institution with a distinct historical tradition. And so, if that's true and then you tick through the statute and you see all the things that Congress did, I mean, including, you know, Congress wasn't just trying to take the Fed and keep it from sort of being unduly influenced by the president when it came to rates right before an election. It did the same thing to itself by limiting the power of the purse over this institution. And then you go through and, you know, just every provision of the statute is trying to treat this unique institution differently. And then, at the end, you have for cause, which, I mean, could mean what General Sauer says, but if it means what General Sauer says, then the whole enterprise was in a lot of trouble for nothing.

I would say it depends on what kind of process was provided by the executive. And, look, I -- I -- I agree with General Sauer. This Court's not going to dictate, like, you know, here's Robert's Rules, you know, have at it. But I think this Court can do something useful, which is essentially to create an incentive for the executive to provide something that's a little bit more protective, a little bit closer to Taft than something incredibly informal by at least --

So the minimum hearing I think would have three components. One is notice, and that's really not much of an issue here. I agree with that. The second is an opportunity to provide evidence to the decisionmaker, and we don't think that happened here. And then the third thing is some effort to keep the final decisionmaker from prejudging the issue. And part of the problem you have in this particular case is -- is that I think the president was proceeding on the understanding of the statute that's faithfully represented here by the Solicitor General, which is he wasn't acting like a removing authority that was subject to any due process because, if I think he were -- if he were sort of subject to that, he wouldn't have said in his opening tweet, you must resign, and he wouldn't have said two days later, resign or be fired. I mean --

No.

No.

It -- it -- it -- it requires just what I said, notice, an opportunity to provide evidence, and a decisionmaker who hasn't prejudged the issue. That decisionmaker can be the president. I mean, I'm not sure I'd, you know, necessarily recommend it as my choice A, but what --

Well, look, I mean, you know, if you believe in the unitary executive theory, then anybody that makes the removal decision is acting on the president's power. I think it would -- it would work -- you know, I think the way it worked for Taft is the tribunal made a recommendation and then Taft executed it.

So it was the president --

-- making the decision.

Yes.

Yes. Yes.

At will.

Right, absolutely.

I mean, so -- so -- and the president can be the final decisionmaker, but if he's going to be the final decisionmaker and there's a due process right, and I mean -- I mean that's statutory or constitutional, then, you know, he needs to be a little bit careful and say these are the allegations. He can't start by prejudging the issue by saying resign.

So I don't think those would be removable offenses under INM.

And so I don't think they would removable offenses under for cause properly construed.

So, I mean, you know, some of the things we're talking about, you know, seem like better grounds for, like, an intervention than for removal. And so --

Of -- I mean, absolutely.

Absolutely. I'm --

You know, I'm -- I'm going to fall back on my answer, which is that's my understanding, and I think it's actually everybody's understanding, of how INM works. I mean --

So a couple of things. One is, you know, I'd -- I'd resist -- I mean, you know, gerrymandering is generally not a compliment. So I -- I would sort of say that what we do is we bring in the common law, and that's what we do. And I really didn't try to gerrymander it beyond that. But -- and -- and -- but let me make the argument, which I really --

It -- it did, and -- and that would be our -- our sort of front-line backup position, if you will.

I mean, but -- but the -- but the happy thing for me, I think, is, at this stage of the case, we win under all these variations. And, ultimately, you know, some court, and it may be this Court, is going to ultimately say these are the metes and bounds of for cause. Now I think I have some pretty good arguments that it really is just INM plus ineligibility as kind of informed by Section 244. And let me just give you, like, my best shot at it, which is this is the very unusual situation where, you know, we -- we know that Congress was literally waiting for this Court's Humphrey's Executor decision. And then it gets Humphrey's Executor's decision, and this Court in Humphrey's Executor at least three times uses "for cause" and "INM" interchangeably. And then the senators themselves in the debate -- now you got to look at the debate, but I think even Justice Scalia looks at debates for original public meaning -- the senators in the debate used the terms absolutely interchangeably. And so you have two of the three branches of government, original public meaning saying for cause, different words, but what it means is INM. But I don't -- I do think it -- it must -- you know, you got to make sense of Section 244 of the statute, which does provide a very specific eligibility requirement. And as I said before, I think, if some Fed governor was insisting that they also wanted to be a director at Chase National, they could be removed for cause for that.

Is there a way to deal with it at this stage without having to ultimately say that? I mean, sure, there'd be a lot of different ways to do that. You could say that for cause -- I mean, you know, one way to come at it would be to say, at a minimum, "for cause" doesn't mean apparent misconduct or gross negligence, and I think that would be sufficient to decide the case at least at this juncture. And I think you could say something more. I mean, you know, obviously, if you took my position and said it means INM plus ineligibility as informed by Section 244, I don't -- I think we'd be done here because I don't think there's an argument at least that I've heard at this juncture that the conduct that's at issue here is either INM or ineligibility.

Sure. I mean, you know, look, it's an emergency application. You could deny it without opinion. I mean, that would be a little strange at this juncture. (Laughter.)

But there -- you know, it is -- it is an extraordinary application made on a preliminary record, and so, you know, you sort of have a lot of optionality at this point. But -- but I will say this. I mean, you know, I do think the briefing in this -- in this -- in this Court, which was, you know, sort of unusual, you had the application briefing, then you had amici, then you had this supplemental briefing, I think it's been incredibly helpful in excavating some of these difficult questions. I mean, you know, I've looked at almost all of these common law cases. I have a different view than General Suter on -- Sauer, sorry -- on -- on some of these questions. And, you know, in particular, I think it's very important, and, you know, I want to get this out, that if you look at Shurtleff, one of the things in Shurtleff -- there's a -- there's a -- there's a line there that says that where -- where Justice Peckham is invoking the common law, and he says that as long as there's certain causes, statutory restriction for certain causes, that's the term he uses, then there's notice and a hearing. He cites seven common law cases. Now, if you look at those common law cases, three of the seven just say "for cause" and two of them say "good behavior," which is even less, and then two of them have a more specific cause. So that's, to me, the best contemporaneous evidence that we're actually right about the issue, that if it just says "for cause" and it doesn't say for a particular kind of cause, you get notice and an opportunity for hearing. But that's the kind of thing you can excavate on full briefing on the merits that I don't think you can in a -- in an application.

Well, I'm not going to resist too hard you deciding this on a more substantive ground that gives my client sort of, you know, relief that's more enduring at this stage. But I will say that, you know -- you know, another one of these, like, great common law cases is the Street Commissioners of Hagerstown, which happens to be the case that Black's Law uses for its definition of "cause." And one of the things it specifically says there is, like, even if you don't think the due process, the notice and a hearing is going to amount to much, it's still an error not to give it, and we're still going to essentially not allow this removal to happen because there wasn't notice and an opportunity for a hearing.

Again, I -- there's only so much I can say to resist the idea that -- I mean, you know, we -- we think this was at most an inadvertent mistake. We would have liked a more -- you know, sort of opportunity to do that and present our actual evidence which would have substantiated that. But we also think, at the end of the day, inadvertent mistake isn't, like, very close to for cause, particularly when you understand the unique nature of this institution.

I -- I think the fact that there's an attachment to one of the applications that describes it as a vacation home. And that's not --

No, I -- I understand. But the president didn't. And it seems to me that, you know -- you know, usually, when there's a procedural omission, one doesn't say, well, you know, at this point, we got everything we need, so forget the procedural omission. I mean, again, I'm not really going to resist that, especially if you're going to, you know, say you're with me on the substance. But, you know, it does seem to me if, you know, if -- if you want to reserve judgment on the substance or you want more briefing on the substance, you could say -- and this is, you know, the -- whether it was constitutional due process or statutory due process, I think this is the gist of the D.C. Circuit's decision, is, like, at a minimum, you didn't get the process you were supposed to, so the government doesn't get this extraordinary emergency stay.

No, I don't think so, Justice Thomas. I think you could really take any definition of "cause" that we've been sort of batting about, with the exception of General Sauer's definition, and -- and we would prevail. I think the only -- and -- and -- and I do think the definition that's presented to you by the president is a pretty extraordinary one because, you know, General Sauer is a very careful lawyer. So, in his briefs, he doesn't talk about mortgage fraud. He talks about apparent mortgage fraud. And when you're talking about apparent misconduct as opposed to actually found misconduct, that, A, doesn't get for cause, and, B, it sort of is a advertisement that you have a process failure. And so the fallback then is "or gross negligence." So one way to think about this is, if the standard of for cause is more demanding than gross negligence, then we certainly win. And we didn't even get a chance to sort of argue about gross negligence.

So I think the single best reading of the statute is INM plus ineligibility as informed by Section 244 of the statute. I think then my fallback would be then you pick up the common law. And if the common law makes you uncomfortable because of Justice Alito's hypos, you could tweak the common law. But you would then be tweaking the common law. And I -- you know, that's why, honestly, at the end of the day, although it's uncomfortable for a few moments to answer some of those hypos, you always have impeachment as the backstop. And we had, what was it, 90 years, plus if you go back to the Interstate Commerce Commission in 1887, almost 150 years with INM, and this didn't really pose a problem in practice.

I'll stand by that answer. (Laughter.)

That's my answer. I think it would be a little irregular, but this whole case is irregular. And if -- if that seems to be the path of least resistance, to decide this case in a way that is going to essentially obviate the need for this Court to decide it again in a couple of years, that seems like a perfectly reasonable way to decide the case.

Correct.

So I would think that ultimately that's a mixed question of law and fact that would be ultimately decided by the court on judicial review, assuming you're with me that there is judicial review. I do think there would be an -- logically anterior purely legal question of whether gross negligence is sufficient for cause. And I -- just as I think I have a pretty good argument that negligence pre-office is not a sufficient basis for cause, I think I have a pretty good argument that gross negligence pre-office is not a sufficient basis for cause. And, you know, in some respects, I think, in the long run, it will be better to make clear that in the context of this unique institution, with its distinct history, that for cause is several steps north of gross negligence even because that's going to make it really something that the courts aren't going to have to get dragged into on a routine basis, where I think the lower the standard is, the -- the more likely you are to have removals in the future. And the lower the standard, I think the greater is going to be the judicial temptation to think about pretext. And I'm not going to say that there's no role for a pretext inquiry, but it's not a happy sort of scenario for the courts to be considering pretext in the context of presidential decision-making. And it seems to me the way to solve that is to say the real procedural and substantive kind of bite to this term, sort of for cause. You do have to do some kind of notice and opportunity for a hearing. I mean, even if it's an hour in the Oval, that's a big imposition on the president's time, and that's going to keep some presidents from removing somebody. And if they know that it's going to be judicially reviewed, then that's going to deter most presidents most of the time. And so I think kind of, you know, it's like -- what is it -- you know, high walls make for good neighbors. I mean, I -- I -- I think this is a situation where you do want to have those kind of meaningful legal requirements.

This. I mean, you know, I don't really know. I don't think they've offered sort of a theory of gross negligence, and that's why I don't think it --

Sure. And if, heaven forfend, we end up with a whole common law of Fed governor removal, then we might eventually be able to sort of piece it together. But it seems to me that, you know, you can -- you could label an awful lot of things gross negligence, and that seems to be inconsistent with not just the for-cause provision but the whole structure of this statute. And, I mean, Justice Kavanaugh alluded to the Morrison dissent and, you know, Justice Scalia creating this beautiful picture of some independent counsel with nothing to do but to find a crime on somebody. But, if all the independent counsel has to do is find gross negligence, then I don't think the independent counsel would need more than a couple of hours with most of us. I mean, that's such an elastic standard. And I just can't imagine that's consistent with all the trouble Congress went to to make this unique entity insulated from kind of the political pressures of the day.

Sure. I think the best thing that I haven't said already that I could add is I think, in the unique context of this particular agency, you want to strike the balance more in favor of keeping an official who maybe in a perfect world would be removed because, you know, this is the opposite of the situation in essentially all of the other situations, with the possible exception of, like, the Tax Court and the Court of Claims and the Court of Military Appeals. Here, I think, you know, there -- it's less important that the president have full faith in every single governor, and it's more important that the markets and the public have faith in the independence of the Fed from the president and from Congress. And in this regard, I think it's -- you know, this is not a situation where the -- unlike Myers, which is the ultimate example, where the president's trying to arrogate some power away from the executive. This is a situation where Congress, political animals one and all, knew better than anyone that the short-term temptations to lower interest rates and have easy money was a disaster in the long term but was going to be irresistible. And so they tied their own hands by taking the Fed out of the appropriations process. And they tied the president's hand. And I think they tied the president's hand in a pretty significant way. And I understand the concerns about the balance, but I would say, in this one context, it probably makes more sense to, you know -- and maybe you want to, you know, bring in a little bit of common law, and that's fine with me -- but I do think you want to strike the balance so that the ultimate imperative is that the markets don't think that rates are being lowered for political pressure. When rates are lowered, the markets are going to understand that that's actually prudent financial management of our monetary policy.

Correct. And, obviously, the nature of the hearing is going to inform the scope for that. If it's, you know, just half an hour with the president, I don't know how much you're going to get into sort of legal briefing. But, if you did do anything like Taft or you just said, well, we've got a couple of ALJs lying around, we'll have one of them just sort of hear the evidence on this, I mean, then I would expect there to be presentation on both evidence and law.

I think that would be a very simple way to decide the -- this case. I think perhaps the defect that was alluded to in the colloquy with the Chief Justice is that probably is also, you know, the -- the way that probably maximizes the chances that it gets back here on the merits, whereas, if you decided to go a little further and say something substantive, it might bring all of this to an end. And there's probably some virtue to that. Certainly, there's some virtue to that from my client's perspective.

Well, I think my best argument that he's not suffering irreparable harm in those circumstances is that he's -- he's not suffering the unique indignity of having sort of pure executive power exercised by people that are removable at will in -- outside of his control. And maybe that's a little circular in the end, but -- but I think it's -- like, it's -- it's kind of why this case is, I think, problematic for the government because, you know, they -- they could have come in here and said, you know, Fed schmed, it's not that different. This is just like the FTC, and so we're suffering the same irreparable injury as in those other cases. But, when they come in and say, no, we're going to accept that the Fed is different at least for purposes of this case and that we can't remove somebody just for policy disagreements, then having somebody continuing in office just because you have a different conception of "for cause" than they do or than you've been able to persuade a court so far about doesn't strike me as irreparable harm. And then, on the other side of the ledger, I think there are enormous irreparable harms here that really don't have an analog in most of these other situations. I don't mean to denigrate any other agency, but, you know, there's a reason that monetary policy has been treated differently for, you know, lo these many years, and there's a reason that the markets watch the Fed a little more closely than they watch really any other agency of government.

I -- I think it would be. And maybe, though, to try to defend my, you know, heads I win, tails you lose answer to Justice Alito, I mean, you know, you -- you could think about this by analogy. I mean, there are certain circumstances where you essentially grant a motion to dismiss for one side. You basically say, look, we didn't have a hearing here, that was a mistake. But, even on sort of the best reading of the evidence, this is at most an inadvertent mistake, and so there is no for-cause removal, in which case my client would win. On the other hand, if, you know, normally, you have that kind of evidentiary hearing and that is to establish sort of the facts, and then you then apply the law to those facts that have been established.

But there are circumstances --

-- where you sort of don't need any more facts.

Absolutely. And what I -- another way of putting it is, look, the denial of the hearing to my client, if she does indeed have a right to a hearing, can -- cannot be harmless error, like it just can't, no matter what you think of the facts. On the other hand, if you agree with us on the law, you could still resolve this case in her favor on the grounds that, you know, there were two mistakes here. One, she didn't get a hearing, but we don't have to, like, remand for a hearing --

-- or any of the -- the rest because even on the facts kind of most -- you know, in the light most favorable to the government, this isn't a removable offense and then we would be done.

Absolutely. And, you know, I love that Hagerstown case because not only is it a very helpful common law case, but it's actually the basis for the definition in Black's Law that the government and Judge Katsas below relied on. I mean, you know, Black's Law is an unusual dictionary. It just doesn't sort of, you know, pop out the meaning from, like, Noah Webster's mind. It, like, cites cases for particular concepts. And the concept -- the case it cites for "for cause" is that Hagerstown case.

Absolutely. And -- and if I could just elaborate in -- in -- in one respect, I mean, you know, if you think about pre-office conduct, there's only two kinds. One, there is pre-office conduct that was disclosed to the Senate in the confirmation process. And as to that, even the government sort of says, well, you probably shouldn't let the next president sort of relitigate all of that. And then the second kind is stuff that was undisclosed. And if it's as serious as we're talking about, that's essentially the nominee, you know, defrauding the -- the Senate. And so I actually think, in that respect, impeachment is probably a more fit remedy than it might be in some other circumstance because you're going to have whatever the conduct is, plus you're going to have the Senate being pretty darn vexed that that was withheld from them in the confirmation process.

So what -- what I would say is, you know, I -- I think --

Well --

-- I mean, put it this way. Like, I -- I don't sort of resist the idea that the Truth Social post is notice because I think it's also fundamentally defective notice because it's also indisputable evidence that the president prejudged the matter.

And so it's not the kind of -- it's not the kind of notice that --

Look, I -- I -- I might -- I might make that argument, but that doesn't seem -- you know, I mean, if he -- if he said on Truth Social that, look, here I have this allegation and I'm going to convene a hearing at, you know, the Roosevelt Room at 9 p.m. tomorrow, please bring all your evidence --

You know, I -- I think, under those circumstances, probably not, but I think, as a practical matter, in most circumstances, the president puts it on Truth Social, most people most of the time are going to consider that to be notice. Again, the -- part of the reason I'm not resisting is -- or I'm, you know, sort of moderating this is because, you know, this notice isn't the kind of notice the common law envisioned because the common law would envision notice that didn't prejudge the matter.

Thank you, Mr. Chief Justice. Turning to the question of whether or not in-office or pre-office misconduct can constitute cause, I want to make a statutory point, which is that the INM standard is by -- on its terms limited to in-office misconduct, and Congress did not adopt that here. They adopted the more capacious standard, as this Court recognized in Collins against Yellen, cause gives the president more discretion and provides less protection to the -- to the officer than the INM standard does. And even if we were in a situation where you're looking at the -- the -- the 19th century case law and so forth, they disregard a series of cases that hold that pre-office misconduct is sufficient cause. For example, In re Guden, which, you know, from New York in 1902, which involved an officer who had engaged in a kind of shenanigan in order to get the office in the first place. There was a -- a corrupt agreement to appoint somebody to a position if they supported that person politically. Iowa against Walsh, which was pre-office embezzlement. Gill against Watertown, a case they rely heavily on, it was said in dicta at least that gross frauds committed before office would constitute cause to remove. So there really isn't support anywhere for this notion that pre-office misconduct can't be considered when it comes to a cause standard. And -- and related to that, I thought it was very telling that Mr. Clement was saying that if it does come to pre-office misconduct, impeachment would be the only remedy that would provide it, which, if taken to its full extent, would make governors of the Federal Reserve have the kind of tenure protections that the Constitution affords to Article III judges. That is not what this statute says. That is directly in the face of the statutory language, which says cause with no further restrictions. Clearly, Congress envisioned that they could be removed for a good enough reason. And on that point, I just want to emphasize there was this colloquy about whether it should be sent back or decided now on the merits. Whichever way the Court comes out on that, the Court should not -- should send it back with an emergency stay, and I want to emphasize two reasons there. This Court -- no court should hold that the misconduct that's alleged here, which is at least gross negligence, at least an inadvertent notation that is a grave misrepresentation on a mortgage document that's designed to determine the governor's interest rates, is not cause to remove a principal officer of the United States who sets interest rates for the entire country. So all the discussion of what are the outer bounds of cause, where is judicial review, on that fundamental court, neither this Court nor any other court should look at this and say this is likely not cause. That sends the wrong message to the markets. It sends the wrong message to the American people, who have to make correct representations to their banks when they're getting their mortgage interest rates. And the second point I would make is the remedy granted here, a preliminary injunction that runs against the president reinstating a principal officer of the United States, is something that has never been granted before 2025 in this Court or in -- in the nation's history and, in fact, contradicts a clear holding of this Court in Sawyer that a preliminary injunction is not available in equity. Those two reasons alone clearly suffice to send it -- if -- if there is going to be a decision to send it back, to send it back with the emergency stay that we've asked for. And then, if the Court -- if -- if -- if the Court decides to sort of send the case back to have many more of these issues that we've discussed today to be aired, we would urge the Court, and I think Mr. Clement wouldn't disagree, to direct the lower courts to proceed very expeditiously. Here, this is -- we are in an emergency stay posture. The executive has been suffering irreparable harm since early September, and the sooner that these issues are resolved, the better. Thank you.