STEVE INSKEEP, HOST:
Today, a Federal Reserve committee decides on interest rates. The whole economy may depend on this decision, which the Fed has made independently for generations. That historic independence is hanging by a thread - or rather, by a footnote. An appeals court this week blocked President Trump from firing a Fed governor. And the Supreme Court, in a footnote to a case this year, said the Fed enjoys a special status. Critics of that finding include the conservative legal scholar John Yoo.
JOHN YOO: The footnotes distinguishing the Federal Reserve Bank and these Supreme Court decisions this year, everyone, you know, says these make no sense.
INSKEEP: In other cases, the court has let Trump fire the heads of independent agencies regardless of current law, chipping away at a precedent that once protected those agencies. So what's going on?
YOO: We are living through a period of what we call judicial supremacy.
INSKEEP: John Yoo believes Chief Justice John Roberts has gradually been changing the rules and expanding presidential power.
YOO: Even on these issues like the firing, you know, the removal power, where it's really the courts been leading this, not the presidents. I mean, the presidents have always wanted to have their removal power, but they started doing it 15 years ago in these minor agencies you never heard of, like the Accounting Board. I didn't even know there was a Federal Accounting Board. Well, there's a Federal Accounting Board, and they started there.
INSKEEP: How do you account for that?
YOO: (Laughter).
INSKEEP: That was a joke. Please, go on.
YOO: I asked for that.
INSKEEP: But anyway, you're saying...
YOO: Yeah.
INSKEEP: ...So they ruled against that board.
YOO: Yeah. And nobody complained. And then they struck down a slightly more important agency. And that's the way Roberts works. He kind of - if he's going to introduce these changes, he does it in small steps first and sees what the reaction of the political and legal system is.
INSKEEP: When I think of Roberts operating this way, though, as incremental, as careful as it may be, this makes me think of him as a political player rather than someone who's just judging you.
YOO: Yeah. I've always disliked this about him. I mean, I'm just objectively describing what he does. I - normatively, I don't like it. He thinks that's the role of the chief justice. And maybe it is. Maybe that's why there's a chief justice who has to worry about this, and then the other justices, they can be, you know, as firebrand as they want. So for example, voting rights is just an issue that has the left really upset. You know, the court has steadily cut back the Voting Rights Act of 1965.
INSKEEP: Yeah.
YOO: But before they did that - there were three decisions before that, where they did it in tiny ways...
INSKEEP: Yeah.
YOO: ...Here and there. You can see it's almost like that Roberts is sort of testing whether Congress or the president will really be upset if they go too far. And when he doesn't see anything happen, then he give vent to his conservative instincts.
INSKEEP: The court has signaled that they don't like independent agencies, that they're going to chip away more and more at precedent regarding independent agencies, and yet they've also signaled that they think the Federal Reserve is different and that the president can't fire the chairman of the Federal Reserve. I, as an outsider, don't see the distinction there, except that the Federal Reserve chairman being fired might affect their stock portfolios. What's going on there?
YOO: (Laughter) You share the befuddlement of the entire legal profession. If there are no independent agencies, every agency has to be responsible to the president. Then that would include the Federal Reserve Bank, too. But on the other hand, it's almost a universally agreed-on principle that you don't want to have politicians in charge of interest rates 'cause they're going to goose the interest rates right before the election. I don't think this Supreme Court is going to be the one that strikes down the Federal Reserve Act of 1914.
INSKEEP: Doesn't that imply that they don't really believe any of this?
YOO: I think that they believe it, but there's a realistic stopping point.
INSKEEP: John Yoo is a legal scholar at the University of California, Berkeley, and at the University of Texas.
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