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Lev Menand and Nathan Tankus on Why Fed Independence Is Now Hanging by a Thread

Odd Lots

Hosted by Joe Weisenthal and Tracy Alloway

1h 5m
Transcript

Original podcast

Summary

Written by a model from the transcript; not yet reviewed.

This episode explores the recent Supreme Court decisions altering presidential removal powers across government agencies, with a specific focus on why the Federal Reserve currently retains a precarious exception. The hosts discuss the legal history, moving from the 1935 Humphrey's Executor ruling to modern Second Amendment jurisprudence and the surprising reliance on Alexander Hamilton's writings regarding the First Bank of the United States. Guests examine the unstable equilibrium at the Supreme Court where only two justices genuinely support the Fed's carve-out while other regulatory bodies like the FTC and SEC remain vulnerable. Listeners get an in-depth breakdown of how monetary policy intersects with fiscal authority, non-recourse lending, and the broader erosion of the administrative state.

  • The Supreme Court's recent decisions use Second Amendment jurisprudence, such as the Rahimi case, to carve out historical exceptions for the Federal Reserve's independence. 22:49
  • The First Bank of the United States advocated by Alexander Hamilton was an investor-owned commercial bank, not a government regulatory body. 32:18
  • The Federal Reserve Board of Governors has complete autonomy from the appropriations process by raising assessments on the Federal Reserve banks. 38:07
  • Only two out of nine Supreme Court justices genuinely support the current legal equilibrium that protects the Federal Reserve while allowing at-will firings at other agencies. 52:03

Chapters

  1. 0:00
    Podcast Introduction and Host Banter

    Joe and Tracy open the episode, joking about Hamilton and segue into the main topic of Fed independence.

  2. 2:11
    Hamilton Musical Debate and Political Context

    Hosts discuss the controversial Hamilton musical and link it to recent Supreme Court decisions affecting presidential powers.

  3. 3:17
    Supreme Court Decisions on Presidential Authority

    Explanation of the Supreme Court rulings that turbocharged the president’s ability to fire agency heads and carved out an exception for the Fed.

  4. 4:56
    Legal and Political Implications for the Fed

    Exploration of how the new carve‑out affects the Fed’s autonomy, congressional oversight, and future presidential influence.

  5. 6:26
    Humphrey's Executor and Agency Removal Limits

    Lev Menand explains the 1935 Humphrey's Executor case and its impact on presidential removal powers for certain agencies.

  6. 51:05
    Future of Federal Reserve Independence

    Speculation on the durability of the Fed’s independence given the current court composition and potential political shifts.

  7. 57:09
    Historical Roots of Federal Monetary Power

    Explores the constitutional debate over state-issued bills of credit and the early role of state-chartered banks.

  8. 58:58
    Supreme Court’s Balancing of Power and Stability

    Discusses how the Court historically avoided destabilizing the monetary system by limiting state bank powers.

  9. 1:00:00
    Necessity vs. Formalism in Judicial Decisions

    Examines the tension between legal formalism and the necessity doctrine in landmark cases.

  10. 1:01:28
    Debt Ceiling as a Fiscal Policy Check

    Considers the debt ceiling’s role in preventing unilateral executive fiscal actions.

  11. 1:03:22
    Removal Protections and Executive Overreach

    Analyzes the implications of removing IRS officials and the limits of executive power.

  12. 1:04:46
    Marbury v. Madison and the Rule of Law

    Revisits the landmark case to discuss its relevance to modern agency enforcement.

Highlights

  • 4:38

    The Hamilton Exceptioninsight

    The Supreme Court cited the history and tradition of central bank independence going back to Alexander Hamilton to protect Federal Reserve officials from at-will termination.

  • 22:49

    Second Amendment Doctrineinsight

    The legal justification for the Fed's carve-out unexpectedly relies on Second Amendment jurisprudence originating from a gun case called United States versus Rahimi.

  • 32:18

    Misreading Hamiltondebate

    The guest explains that the First Bank of the United States was a private commercial bank rather than an executive agency, making the court's use of Hamilton historically flawed.

  • 38:07

    Autonomy From Appropriationsdata

    The Federal Reserve Board maintains total fiscal independence from the White House and OMB by funding its operations through direct assessments on Reserve banks.

  • 54:08

    An Unstable Equilibriuminsight

    Only two justices fully back the legal reasoning for the Fed's carve-out, suggesting the current protection is unlikely to last past the current court composition.

Quotes

  • “The Fed is not safe. This is not a good situation that the Fed has found itself in.”
    Unnamed speaker · 51:17
  • “The court has gone out of its way to delegitimize independence and nonpartisan administration.”
    Unnamed speaker · 51:31
  • “The Fed is an endangered species now. It might be the only independent agency that's constitutionally permissible.”
    Unnamed speaker · 51:22
  • “Very famously, states were banned from issuing bills of credit.”
    Unnamed speaker · 57:21
  • “And that's the idea of like with, you know, giving state charter banks the ability to issue bills of credit, you're delegating a power you have no right to delegate.”
    Unnamed speaker · 58:41
  • “And there's a series of what are called shadow docket decisions where they haven't given their reasoning, where all sorts of injunctions and injunctionary relief and ways of stopping brazenly illegal activity from the president have been sidestepped.”
    Unnamed speaker · 1:03:56

About this episode

Last August, President Trump made the unprecedented choice of moving to fire Fed governor Lisa Cook. The administration claimed she was being terminated with cause, citing an ongoing investigation in alleged mortgage fraud committed by Cook. The legal battle between Cook and the administration has been tangled in the courts for the last year, eventually reaching the Supreme Court. This June, in a 5-4 decision, the court ruled in favor of Cook. However at the same time, in a different case, the court allowed the President to fire individual members of the FTC, undermining its role as quasi-independent body not beholden to the executive branch. So what are the implications here? How can the court change the status of a body like the FTC while allowing the Fed to continue operating as is? And for how long will the Fed maintain some amount of operational autonomy? On this episode we speak with Columbia Law School's Lev Menand who just wrote a piece on these two cases for Just Security called The Federal Reserve Exception to the Slaughter Rule as well as Nathan Tankus (writer and president of Notes on the Crises). The two of them lay out the consequences of these two decisions and they dig into the generations-long legal history, starting with Alexander Hamilton, that explains how we got here. Read more: Can Trump Still Fire Lisa Cook After Her Supreme Court Win? https://www.bloomberg.com/news/articles/2026-07-02/can-trump-still-fire-lisa-cook-after-supreme-court-ruling?utm_medium=referral&utm_source=podcast&utm_campaign=odd_lots&utm_content=article Only Bloomberg.com subscribers can get the Odd Lots newsletter in their inbox now delivered every weekday plus unlimited access to the site and app. bloomberg.com/subscriptions/oddlots https://www.bloomberg.com/subscriptions/oddlots?in_source=oddlotspodcast See omnystudio.com/listener https://omnystudio.com/listener for privacy information.

Transcript

0:00
1:05:48

11,515 words · 9 speakers

Speaker names marked are inferred from speaking time and the show’s known hosts — they are not voice-verified.

Topics

  • District of Columbia

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