A MARTÍNEZ, HOST:
For more about the Supreme Court hearing, we turn to Amy Howe. She's co-founder and primary reporter for SCOTUSblog. All right, Amy. Let's hear a little bit more of the oral arguments. Here's Justice Brett Kavanaugh questioning the Trump administration's lawyer about its position - that it's trying to fire Fed Governor Lisa Cook for cause, but that courts cannot look into whether that cause is legitimate.
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BRETT KAVANAUGH: But on that - your position that there's no judicial review, no process required, no remedy available, very low bar for cause that the president alone determines - I mean, that would weaken, if not shatter, the independence of the Federal Reserve that we just discussed.
MARTÍNEZ: Now, Justice Kavanaugh is a Trump appointee. Amy, are you surprised by that scrutiny from Kavanaugh?
AMY HOWE: Not necessarily. I mean, the independence of the Fed was very much at the forefront of yesterday's argument. And in particular, you know, the Trump administration has stressed that it wasn't challenging whether or not - the constitutionality of this for-cause removal provision. It was arguing that it has cause to fire Lisa Cook. But I think what Kavanaugh was suggesting is that if Trump is arguing that he has cause to fire Lisa Cook but the courts can't look to see whether he actually has cause, then it would essentially drive a loophole the size of a Mack truck into the argument that they're not really challenging the constitutionality of this for-cause removal provision - that it would be toothless, as I think Paul Clement said in his argument on behalf of Lisa Cook yesterday.
MARTÍNEZ: You mentioned that the independence of the Fed was prominent so far. The court has let President Trump fire leaders of other independent agencies while their court cases play out, but not here. So I'm wondering - did you learn more, maybe, about why the justices say that the Fed is different?
HOWE: No, we didn't. I mean - so the court, as you said, has allowed the president to fire leaders of other independent agencies. And in doing so, it rejected an argument that some of those leaders made that said, if you allow the president to fire us, you will open the door because the Fed also has this for-cause removal provision. And in an order allowing the president to fire those officials, it said, essentially, the Fed is different, but we haven't really gotten any hint as to why exactly the Fed is different. Everyone just seems to agree that it is.
MARTÍNEZ: Let's hear now from Justice Samuel Alito about whether it's too early for them to even hear this case.
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SAMUEL ALITO: Is there any reason why this whole matter had to be handled by everybody - by the executive branch, by the District Court, by the D.C. Circuit - in such a hurried manner? You began by laying out what you claim to be the factual basis for the for-cause removal, but no court has ever explored those facts.
MARTÍNEZ: Now, does that suggest, Amy, that the court may just kick it back to a lower court or that - what? - they might rule that Trump has no good reason for firing Cook?
HOWE: I mean, I think that's really the big question coming out of yesterday's argument. It certainly didn't seem like there was a majority of justices who were ready to let Trump fire Cook. The question is, do they just kick it back to the lower courts and let this play out more fully or do they go ahead, as Chief Justice John Roberts seemed to suggest, and say, you know, OK, this is fully baked enough or sufficiently baked enough that we can go ahead and rule? And several of the justices - and, you know, both Justice Samuel Alito on one end of the ideological spectrum and then Justice Sonia Sotomayor on the other end seemed to say, like, what's the hurry? Why do we have to get into this right now, when there are a lot of thorny questions that the lower courts didn't decide? Let's just kick it back, kick the can down the road, and perhaps we can weigh in later on.
MARTÍNEZ: Which do you think is weighing most on the justices' minds on this - that this is a case about presidential power or that this is just about a president frustrated with the Federal Reserve?
HOWE: I think it's probably primarily the former, but a little bit of the latter as well. I certainly don't think it was helpful to the Trump administration's case that the, you know, disclosure of the criminal investigation against Jerome Powell came out. But I do think that they are worried about the Fed's independence, and they, you know, worry that if they open the door for him to fire Lisa Cook, they could be opening the door for him to fire other members of the Fed as well.
MARTÍNEZ: That's Amy Howe, co-founder of SCOTUSblog. Amy, thank you.
HOWE: Thank you. Transcript provided by NPR, Copyright NPR.
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