Supreme Court Rules Fed Stays Independent as Trump Fires FTC Board

最高法院裁定美联储保持独立 特朗普解职FTC委员 最高法院以5比4的裁决保护了美联储理事Lisa Cook，但这建立在仅由两位大法官达成的脆弱共识之上，使央行独立性在未来的法律挑战面前格外脆弱。 本期节目深入探讨了最高法院在行政权力方面不断演变的法理，对比了其允许总统随意解职FTC委员的决定与维持美联储运作独立性的5比4裁决。嘉宾Lev Menand与Nathan Tankus详细阐释了独立监管机构从Humphrey's Executor案到Bowsher v. Synar案的法律起源，并强调法院如何依靠历史“传统”框架专门为美联储创设例外。他们认为，这一5比4的例外裁决建立在不稳固的法律基础之上，仅获得了两位大法官的充分支持，令央行独立性显得格外脆弱。最终讨论表明，是对市场动荡的务实担忧，而非连贯一致的宪法文本，在继续庇护美联储免受拆解“行政国家”等更广泛举措的冲击。 美国最高法院在两项重大裁决中允许总统随意解雇 FTC 等机构官员（Slaughter 案），但以 5-4 的微弱优势创设历史例外，阻止了政府免职美联储理事 Lisa Cook。 (0:00) 与长期依赖 1935 年 Humphrey's Executor 先例保护的独立监管机构不同，美联储历史上的独立性主要维系于非正式政治惯例（如 1951 年《财政部-美联储协议》），其法定免职保护历来最为薄弱。 (10:00) 最高法院将源自第二修正案（Rahimi 案）的“历史与传统”检验标准引入行政法，借由汉密尔顿的历史先例保护美联储独立性，但该逻辑混淆了 18 世纪私有商业银行与 20 世纪现代政府监管机构的本质区别。 (20:00) 调整银行资本充足率等监管措施本身即具备直接的货币刺激效应，导致货币政策与全面监管职能难以分割；美联储理事会则通过向地区联储征摊营运经费，彻底避开了国会拨款与白宫的预算约束。 (35:00) 支持 Lisa Cook 留任的 5-4 判决实质上是极不稳定的法律平衡，全院仅有罗伯茨（Roberts）与卡瓦诺（Kavanaugh）两位大法官完全认同这一折中折中方案，使美联储的独立地位悬于一线。 (50:00)

Legal scholars Lev Menand and Nathan Tankus argue that Federal Reserve independence rests on an unstable, intellectually strained legal carve-out rather than solid constitutional doctrine. Following recent Supreme Court rulings that dismantled removal protections for other administrative agencies, the central bank's operational autonomy now hangs by a fragile 5-4 judicial split. The Collapse of Agency Removal Protections (5:00) For nearly a century, administrative agency independence was anchored in the Supreme Court's 1935 decision in Humphrey's Executor v. United States. That ruling limited the expansive presidential removal power established in Myers v. United States (1926), permitting Congress to shield multi-member, bipartisan commissions performing quasi-legislative or quasi-judicial duties from at-will dismissal. However, modern unitary executive theory has dismantled this New Deal legal consensus. In recent litigation, including the Slaughter case involving the Federal Trade Commission, the Court expanded executive power to permit the at-will firing of regulatory heads. Menand observes that the conservative legal movement, aligned with industry critics of regulators like Lina Khan and Gary Gensler, has systematically delegitimized the insulated administrative framework established under the Administrative Procedure Act of 1946. A Second Amendment Analogy for Monetary Autonomy (20:00) To preserve Federal Reserve autonomy while stripping protections from bodies like the FTC, the Supreme Court turned to the 'history and tradition' test established in Second Amendment cases such as United States v. Rahimi. The Court justified shielding Fed Governor Lisa Cook by pointing to Alexander Hamilton's founding-era vision of monetary policy. Menand and Tankus critique this rationale as a fundamental misinterpretation of early American finance. Hamilton's First Bank of the United States was a private, investor-owned commercial bank whose officers were not federal executive officials, rather than a modern regulatory government agency. General bank incorporation and state regulatory frameworks did not emerge until the late 1830s, meaning the Court applied an 18th-century private banking precedent to justify a 20th-century administrative board. The Inseparable Nature of Regulation and Monetary Stimulus (35:00) The legal effort to isolate pure monetary policy from general regulatory governance ignores how the Federal Reserve operates. The seven-member Board of Governors holds no balance sheet and makes no loans directly; it implements monetary policy primarily through regulatory oversight of regional Federal Reserve Banks and commercial banking standards. Adjusting bank capital requirements immediately injects monetary stimulus into the economy, blurring any functional line between financial regulation and monetary policy. Furthermore, monetary actions frequently perform quasi-fiscal allocations, as seen during the 2008 financial crisis, the COVID-19 response, and the Silicon Valley Bank rescue. Tankus warns that if an unchecked executive commanded the Fed to issue non-recourse loans against worthless collateral, a president could bypass Congress's constitutional power of the purse. While Chief Justice Roberts attempted to protect these blended powers in footnote 6 of the Cook opinion, isolating monetary mechanics from administrative law remains practically impossible. A Fragile 5-4 Equilibrium Driven by Market Pragmatism The Supreme Court's 5-4 decision protecting Lisa Cook from removal represents an unstable compromise supported fundamentally by only two justices: Chief Justice John Roberts and Justice Brett Kavanaugh. Three liberal justices (Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson) joined because they support agency independence across the board, while four conservative justices (Clarence Thomas, Samuel Alito, Neil Gorsuch, and Amy Coney Barrett) opposed protecting the Fed, with Justice Thomas arguing central bank independence should be abolished entirely. Menand and Tankus conclude that Fed independence survives largely because judges fear triggering real-world market collapses. Throughout American legal history, from antebellum disputes over state bank notes to modern crises, courts have crafted flimsy legal workarounds to avert immediate financial panic. The Fed now functions as an isolated legal anomaly, leaving its statutory independence exceptionally vulnerable to future personnel shifts on the Court. While pragmatic concerns over financial panic currently protect the Federal Reserve, the underlying legal consensus has evaporated. If unitary executive theorists continue dismantling statutory removal protections, the central bank's status as an isolated exception will face ongoing legal challenges.

法律学者 Lev Menand 与经济学者 Nathan Tankus 指出，美国最高法院近期虽然阻止了总统随意解雇美联储理事 Lisa Cook，但该裁决依赖脆弱且在法理上存在矛盾的“历史传统”豁免，使美联储的独立性实际上命悬一线。 从汉弗莱判例到行政权扩张 (5:00) 美国独立监管机构的法律根基长期依赖 1935 年的 Humphrey's Executor v. United States 判例。该判例限制了 1926 年 Myers 案中确立的总统对行政官员的绝对解雇权，明确国会有权对履行“准司法”与“准立法”职能的多人两党制委员会设定“因故解雇”门槛。Menand 认为，Humphrey 案通过隔离四年一度的政治周期维护了法治稳定，而其后构建的行政程序法（APA）与专家官僚体系共同支撑了新政以来的法律秩序。 然而，近年最高法院的保守派多数派与单一行政权力论者（unitary executive theorists）重新强化了总统对行政部门的控制权。在涉及 FTC 的 Slaughter 案等裁决中，法院加速拆除了对 FTC 与 SEC 等监管机构负责人的法定职务保障，使总统可依个人意志随意解雇官员。这直接打破了长期以来保护第四权力分支免受白宫干预的制度妥协。 借用枪支判例与对汉密尔顿的误读 (20:00) 在剥夺其他独立机构职务保障的同时，最高法院在涉及美联储理事 Lisa Cook 的裁决中，借用源自第二修正案枪支案 United States v. Rahimi 的“历史与传统”分析框架，为美联储创造了一个专属豁免。多数派意见以建国时期 Alexander Hamilton 对货币政策独立性的构想为由，将美联储包装为具备深厚历史渊源的特例，裁定总统不能随意解雇美联储理事。 Tankus 和 Menand 指出，这种法理逻辑存在严重的历史错位。Hamilton 在 18 世纪主导建立的第一合众国银行本质上是一家投资者所有的商业银行，联邦政府持股仅 20% 且最终全部售出，其官员并非行政机关公职人员，更无现代金融监管职权。Hamilton 当年在报告中恰恰反对设立由政府直接控制的银行。法院援引 18 世纪私人商业银行的运作，来为 20 世纪建立的现代监管委员会提供免遭解雇的辩护，混淆了私营商业实体与现代行政规制国家。 货币政策与规制职能的交织 (35:00) 法学与经济学界试图将“纯粹货币政策”与一般行政监管清晰割裂，但在美联储的日常运作中两者高度交错。美联储理事会自身没有资产负债表，也不持有银行资产或直接发放贷款，其宏观货币职能很大程度上是通过向 12 家区域联邦储备银行发布监管指令以及制定商业银行资本充足率等规制工具来实现的。降低商业银行的股权资本要求在法律上属于行政监管，但在宏观层面会直接释放流动性，产生强烈的货币刺激效果。 此外，在应对 2008 年金融危机、新冠疫情以及硅谷银行倒闭事件中，美联储的非追索权贷款等救助机制发挥了准财政（quasi-fiscal）分配职能。Tankus 指出，若总统对美联储拥有绝对支配权，理论上可通过指令央行接纳低劣抵押品发放非追索贷款，绕过国会的钱袋权（power of the purse）推行实质性财政刺激。尽管首席大法官 Roberts 在脚注中试图将保护范围限定于美联储“现有构成及执法权”，但这种职能交织使单设豁免在法理上极为脆弱。 脆弱的五比四分裂与实用主义妥协 保护 Lisa Cook 免遭解雇的 5-4 裁决实际上建立在极其不稳定的司法联盟之上。Menand 分析，在 5 位投下支持票的法官中，仅有 Roberts 与 Kavanaugh 两人真正认同“FTC 可被随意解雇但美联储享有豁免”的折中标准；自由派法官 Kagan、Sotomayor 和 Jackson 支持 Cook 是基于所有独立机构均应享有职务保障的全面观点；而 Thomas、Alito、Gorsuch 和 Barrett 4 位保守派法官完全反对该豁免，Thomas 法官更公开主张彻底废除美联储的独立性。 与会学者指出，司法合法性不仅取决于法理自洽，还取决于现实后果。正如美国建国初期法院在州立银行纸币合宪性争议中采取实用主义妥协一样，当前多数派法官接受这一法理不连贯的豁免，主要是为了避免解雇理事引发金融市场剧烈动荡。然而，这种依赖个别法官平衡与市场恐慌维系的隔离带，使美联储沦为行政法体系中孤立的“濒危物种”。 美联储现有的独立地位并非建立在严密的宪法文本或稳固的法学逻辑之上，而是取决于最高法院中极其狭窄的司法妥协与对市场波动的现实担忧。随着单一行政理论持续侵蚀 Marbury v. Madison 确立的法律执行约束，这一缺乏连贯法理支持的特殊豁免未来依然面临被司法裁决打破的巨大风险。

## Background 本期节目由彭博社（Bloomberg）旗下的《Odd Lots》播客于 2026 年 7 月 17 日发布。内容源于特朗普政府试图以“有因”（for-cause）为由解职美联储理事莉萨·库克（Lisa Cook）所引发的宪政诉讼，最高法院最终以 5 比 4 裁定阻止解职，却在另案中允许总统随意撤换联邦贸易委员会（FTC）委员；节目邀请了哥伦比亚大学法学院教授列夫·梅南德（Lev Menand）与《危机笔记》主理人内森·坦库斯（Nathan Tankus），深度剖析裁决背后的法理矛盾及美联储独立性的未来。 ## TL;DR 最高法院近期在强化总统对行政机构首长任意解雇权的同时，破例援引汉密尔顿的历史论述为美联储量身定做了一条免受政治干预的豁免通道。嘉宾指出，将第二修正案的“历史与传统”审查生搬硬套到行政解职权在法理上极为荒谬，且 5 比 4 的裁决中仅有罗伯茨和卡瓦诺两名大法官真正认可这种双标逻辑。美联储理事会虽无自身资产负债表，但依靠向各联储银行强制征收评估费而规避了国会拨款控制；如今它已沦为行政体系中唯一的濒危孤岛，最高法院看似在维护货币稳定，实则是出于对金融市场崩盘的现实恐惧而做出的脆弱制度妥协。 ## Atmosphere & style 对话在关于百老汇音乐剧《汉密尔顿》与开国元勋历史功过的轻松互怼中开场，随后迅速切入硬核、高密度的宪法学与央行制度史辨析。主持人与嘉宾展现出极高的学术默契与机锋，时常在严肃的法理逻辑剖析与荒诞的现实推演（如总统发行“特朗普币”或命令国税局带薪休假）之间自如切换。整场讨论既有对司法形式主义自相矛盾的尖锐嘲讽，也流露出对现代法治基石与非党派技术官僚体系正在被系统性拆解的深切忧虑。 ## Bulletin - `02:28` 最高法院在莉萨·库克（Lisa Cook）案中以 5:4 裁决阻止总统随意解雇美联储理事，却在《斯劳特》案中允许总统免职 FTC 等独立机构官员，为美联储量身创设了免职保护豁免。 - `52:50` 表面胜诉背后潜藏制度危机：全院 9 位大法官中仅罗伯茨与卡瓦诺 2 人真正支持这种“美联储独享豁免”的双标逻辑，美联储已沦为行政体系中被孤立的“濒危物种”。 - `22:15` 最高法院将第二修正案涉及枪支权利的“历史与传统”审查法则跨界移植至行政法，错误借用汉密尔顿关于私人合资“第一合众国银行”的历史论述来为现代美联储定做免职豁免。 - `35:00` 美联储的财务独立性依赖自主向 12 家联邦储备银行征收评估费（Assessments），实质上具备绕过国会拨款与白宫预算办公室的“隐性印钞权”，若行政首脑全面接管美联储，将实质剥夺国会掌管钱袋的宪制权力。 ## Key takeaways - `02:28` 美联储法理特殊性的确立与自相矛盾：最高法院阻止特朗普解职库克，首次成文确立央行特殊地位，但美联储兼具货币与金融监管职能，与 FTC 等行政机构的法律界限高度模糊。 - `05:45` 汉弗莱判例与单一行政官理论的长久拉锯：1935 年汉弗莱案为准立法/准司法机构确立正当事由解雇保护，阻击了 1926 年迈尔斯案描绘的全能总统图景，成为保守派长期试图攻破的法理堡垒。 - `10:00` 经济学独立性迷思与薄弱的法定保护：经济学界将央行独立性奉为神圣教条，但法理上美联储此前享有的法定免职保护在独立机构中最脆弱，长期仅靠 1951 年《美联储-财政部协议》等非正式政治惯例维系。 - `22:15` 枪支判例审查标准的荒诞移植：最高法院将枪支案（Rahimi）中的“建国期历史与传统”测试法硬套至行政官员解职权审查，通过考据 1780 年代汉密尔顿文献，选择性地仅为美联储大开绿灯。 - `30:00` 误读汉密尔顿第一银行的历史错位：汉密尔顿所建第一银行本质是私人持股商业银行，职员并非合众国行政官员；法院以此作为限制总统解雇行政官员的先例在法理与历史上存在根本性硬伤。 - `35:00` 罗伯茨“第6条脚注”与美联储双层架构困境：罗伯茨以判决脚注宣布豁免整体覆盖美联储所有现行职权以切断后续诉讼，掩盖了华盛顿理事会（纯政府机构）与 12 家储备银行（私营法人）职能分离的法律难题。 - `40:00` 绕开国会拨款的评估费机制与钱袋子制衡：美联储理事会通过向储备银行下达强制性缴费指令自我筹资，若总统完全接管此特权，行政分支将突破国会拨款限制，直接执行定向财政救助。 - `47:15` 硅谷科技右翼与联邦党人协会的政治合流：科技创投圈因不满 FTC（莉娜·汗）和 SEC 的反垄断与强监管，与原教旨单一行政官论者结盟，形成合力拆解第四分支官僚国家的狂热势头。 - `52:50` 极度脆弱的“5比4”妥协阵营：支持库克的 5 票中，3 名自由派大法官全盘否定削弱监管独立的《斯劳特》案，4 名保守派主张总统拥有无限制解雇权，实际仅罗伯茨和卡瓦诺维持着不稳定的折中平衡。 - `01:00:00` “必要性压倒法律”的实用主义传统：从南北战争前司法界默认各州特许银行发行违宪纸币，到如今特赦美联储，最高法院为避免金融系统雪崩和司法合法性毁灭，反复用站不住脚的法理做出实用妥协。 - `01:04:45` 马伯里案基石松动与法治衰退风险：单一行政官论解构了国会立法的最高地位，若总统可通过消极怠工或随意撤换彻底架空机构法定作为义务，司法强制执行力（mandamus）将形同虚设。 ## Detailed walkthrough ### `02:28` 汉密尔顿争议与最高法院对美联储的“豁免特权” 节目开场，主持人特蕾西·阿洛韦（Tracy Alloway）向搭档乔·维森塔尔（Joe Weisenthal）抛出了一个看似宏大而私人化的问题：“亚历山大·汉密尔顿（Alexander Hamilton）总是对的吗？”乔坦言自己并未读过汉密尔顿的全集，他对汉密尔顿的主要认知来自克里斯蒂安·帕伦蒂（Christian Parenti）的著作《激进的汉密尔顿》（*Radical Hamilton*），另外就是通过那部风靡全美的百老汇音乐剧《汉密尔顿》。乔随即发表了自称是本期节目中最具争议性的观点：尽管该剧刚推出时备受追捧，几年后又被不少人贬斥为“左派矫情”（lib and cringe），但他坚信在音乐剧这一艺术领域内，《汉密尔顿》绝对属于排名前五分之一乃至前十分之一的杰作。 抛开艺术偏好，特蕾西点出了提及汉密尔顿的核心现实原因：美国政府体制近期经历了重大的司法地震。联邦最高法院在一项裁决中极大强化了总统随意解雇独立机构负责人的权力，然而在另一项裁决中，法院却援引了中央银行独立性的历史与传统以及汉密尔顿的建国理论，为美联储量身定制了一条“豁免条款”。长期以来，许多人在直觉上总觉得“美联储之所以特殊，就是因为它不同于普通机构”，但在法律层面，美联储白纸黑字的设立条款与联邦贸易委员会（FTC）或联邦通信委员会（FCC）等并无本质不同。最高法院在此次阻止特朗普免职美联储理事莉萨·库克（Lisa Cook）的裁决中，终于将美联储的特殊性成文确立，并将法理依据直接追溯到汉密尔顿。然而这种划分引发了新的法理矛盾：虽然美联储主管货币政策，但它同时承担着大量与其他行政监管机构极为相似的金融监管职能。 ```mermaid flowchart TD accTitle: 独立机构与美联储在最高法院裁决下的地位分化 accDescr: 展示最高法院在强化总统解职权力的同时，为美联储确立历史豁免特权的对比路径 subgraph SCOTUS["最高法院最新裁决动向"] Ruling1["强化总统对行政机构的控制权<br/>削弱传统准独立监管机构地位"] Ruling2["确立美联储特例<br/>阻挡总统随意解雇美联储理事"] end subgraph Agencies["普通独立监管机构（如 FTC / SEC）"] FTC["准司法/准立法职能机构"] Fire["总统获得直接解雇权<br/>（机构独立性遭受重大侵蚀）"] end subgraph FedSystem["美联储（Federal Reserve）"] Fed["货币政策制定 + 银行金融监管"] Exemption["援引汉密尔顿传统与央行特殊历史<br/>维持运营与人事免职限制"] end Ruling1 --> FTC --> Fire Ruling2 --> Fed --> Exemption ``` --- ### `04:45` 嘉宾登场与《汉密尔顿》音乐剧的轻松互怼 为了深入剖析该案背后的法理渊源与现实影响，两位常客嘉宾重返节目：哥伦比亚大学法学院教授列夫·梅南德（Lev Menand），他刚刚为《公正安全》（*Just Security*）撰写了题为《斯劳特规则的美联储例外》（*The Federal Reserve Exception to the Slaughter Rule*）的专论；另一位则是《危机笔记》（*Notes on the Crises*）主理人、长期深耕美联储与政府监管架构的内森·坦库斯（Nathan Tankus）。 在切入正题前，内森立即划清界限，打趣表示自己绝不赞同乔对《汉密尔顿》音乐剧的高度评价，批评该剧严重歪曲了真实历史，即便抛开内容不谈他也无法认可其艺术价值。列夫则中立地坦白：“我去看过，而且我挺享受那场演出的，不过要是再看一遍，我保不准会不会改主意。”在一番关于开国元勋与百老汇的轻松打趣后，对话正式转向这一系列宪法与行政法争端的核心历史源头。 --- ### `05:45` 历史根基：从 1926 年迈尔斯案到 1935 年汉弗莱遗嘱执行人案 列夫将讨论拉回到理解现代独立监管机构合法性的基石判例——1935年的“汉弗莱遗嘱执行人诉合众国案”（*Humphrey's Executor v. United States*）。当时，富兰克林·罗斯福（FDR）总统试图在无正当理由（without cause）的情况下直接罢免联邦贸易委员会（FTC）委员威廉·汉弗莱（William Humphrey）。最高法院九位大法官一致判定罗斯福败诉。裁决指出，国会在制定立法时已明确写明，总统只有在官员存在“效率低下、玩忽职守或渎职行为”时方可解职；宪法并未赋予总统凌驾或无视这一法定限制的固有特权。 罗斯福之所以认为自己有权任意免职，是因为最高法院在1926年的“迈尔斯诉合众国案”（*Myers v. United States*）中做出了分歧裁决。在该案中，曾任总统的大法官威廉·霍华德·塔夫脱（William Howard Taft）撰写了极长的多数意见，裁定总统有权无需参议院同意解雇一名邮政局长，并大肆阐述了行政长官所享有的固有免职权力。当时舆论与政界普遍解读该意见意味着总统同样能随意免职 FTC 等委员会成员。然而到了1935年，最高法院紧急“划定界限”（cabin），澄清迈尔斯案的裁定仅适用于纯粹的行政官员（purely executive officer）。如果一个机构行使的是“准司法”（quasi-judicial）或“准立法”（quasi-legislative）职能，国会设立保护性免职门槛完全合宪。自此之后，信奉“单一行政分支理论”（unitary executive theory）的总统集权派便对汉弗莱案耿耿于怀，数十年来始终致力于推翻它，渴望重塑1926年塔夫脱勾勒的全能总统愿景。 --- ### `08:15` 跨党派独立委员会的制度初衷与激进的总统集权论 针对特蕾西提出的疑问——限制总统解职权是否是为了维护技术官僚的专业连贯性，避免政权交替时总统“在离任前夜把所有人开除”的混乱局面，以及当时法院是否考量了公共利益，列夫给出了严厉的法理剖析： - **迈尔斯案的激进本质**：列夫强调，1926年的迈尔斯案本身是一次司法激进化产物，是法院对国会立法权和法治原则发起的狂暴冲击；而1935年的汉弗莱案不过是对这一错误路线的理性纠偏与回撤。 - **独立多员委员会的“小写保守主义”本质**：长期被现代法律界忽视的是，类似 FTC 这类跨党派、多成员委员会从制度设计上是典型的审慎保守（lowercase c conservative）机构。 - **稳定市场预期与法治连续性**：国会建立这些机构的初衷，是为了稳定法律环境、缓和政治极化，让商业实体与投资者敢于做出跨周期的长期资本投资，这直接关系到美国资本市场的吸引力。 - **大开倒车的制度代价**：如果彻底推翻这一防线，意味着每隔四年随着白宫易主，国家监管政策与执法口径都会遭遇颠覆性的大震荡，而保守派多数大法官在近年来的判决中对这种体制成本完全视若无睹。 ### `10:00` 政策理由与法律框架的错位：从判例法妥协到经济学家的“独立性”迷思 对话开篇聚焦于前最高法院首席大法官威廉·霍华德·塔夫脱（William Howard Taft）在 1926 年 Myers 案判决中的逻辑，以及其后判例如何影响行政官员的免职保护。内森·坦库斯（Nathan Tankus）指出，必须严格区分“隔离官员免遭总统直接免职的政策正当性理由”与“实际构建该体系的法律框架”。二者虽然紧密交织，但本质不同。在法律底层，核心问题在于宪法赋予了国会何种权力来构建行政分支机构，使其不单纯受总统的直接指挥。在 1935 年的 Humphrey's Executor 案中，最高法院引入了“准司法”（quasi-judicial）与“准立法”（quasi-legislative）的概念，这在很大程度上是一次“穿针引线”式的司法妥协：既不想全盘推翻 Myers 案确立的总统免职权，又想为特定的政策目标保留例外，使其在表面上与 Myers 案保持一致。正是这种当年的法律折中，将今日的法学界与监管机构拖入了极为棘手的两难境地。 随后，主持人提出了一个发人深省的现象：美联储、联邦通信委员会（FCC）等诸多机构在法律地位上介于立法与行政之间。然而在学术经济学界，经济学家对“货币政策独立性”赋予了极高的溢价，视其为神圣不可侵犯的原则；相比之下，法律地位相似的 FCC，却鲜有人从制度功能上高呼“通信监管必须绝对独立于政治”。美联储这种恰好契合经济学理论预设的监管沙盒地位，究竟是一种巧合，还是另有深意？坦库斯直言，这绝非巧合，但与法律本身没有太大关系，而更像是一种“意识形态的产物”。 坦库斯与莱夫·梅南（Lev Menand）均对当下法律界盲目援引“历史与传统”的做法持强烈保留态度。坦库斯分析称，经济学家在构建模型时，习惯性追溯北美银行（Bank of North America）、第一与第二合众国银行等历史机构，因为这些机构在建立时确实享有某种免受总统或国会直接干预的隔离保护，被现代人追认为“早期央行”（proto-central banks）。但当詹姆斯·布坎南（James Buchanan）等 20 世纪五六十年代的知名经济学家构建宏观理论时，他们几乎从不阅读行政法学家的著作。在经济学模型里被称为“中央银行”的东西，与现实法律世界中的中央银行完全是两码事。坦库斯进一步指出一个长期被忽视的法律事实：在最高法院近期作出重磅裁决之前，**从纯粹的法律层面来看，美联储所享有的免职保护在所有独立机构中实际上是最薄弱的**。如果经济学家真的在乎行政法和法定权利，理应去呼吁赋予美联储最坚固的法定防免职盾牌，但数十年来无人问津。大家满足于 1951 年 3 月财政部与美联储达成的《美联储-财政部协议》（Fed-Treasury Accord）——那仅仅是两个人达成的一纸握手协议与联合新闻稿。对于经济学家而言，只要有这种模糊的“信誉”（credibility）背书便已足够，他们根本不在意底层的法律制度究竟有多脆弱。 ```mermaid flowchart TD accTitle: 经济学理论与法律实务对央行独立性的认知分歧 accDescr: 对比经济学界基于信誉与历史传统的观念模型，与公法行政法基于法律框架与免职条款的制度现实。 subgraph EconPerspective["经济学界视角 (理论与声誉)"] E1["追溯早期央行历史传统<br/>(第一/第二合众国银行)"] --> E2["构建央行独立性理论模型<br/>(强调通胀稳定与信誉)"] E2 --> E3["依赖政治惯例与非正式契约<br/>(如 1951 年《美联储-财政部协议》)"] end subgraph LegalPerspective["公法与行政法视角 (法律制度现实)"] L1["国会立法规制权力范围<br/>(Myers 案与 Humphrey 案妥协)"] --> L2["准立法 / 准司法功能界定"] L2 --> L3["法定免职保护条款<br/>(现实中美联储法定免职保护相对脆弱)"] end EconPerspective -.->|"脱节：忽视行政法条文"| LegalPerspective ``` ### `15:00` 沃尔克冲击后的全球传教与独立监管机构的制度起源 莱夫·梅南接着补充了关键的历史背景：20 世纪 70 年代末至 80 年代初的“沃尔克冲击”（Volcker shock）之后，西方经济学界涌现出汗牛充栋的学术文献，几乎一致论证“唯有中央银行独立于政治，才能保障货币稳定”。这一理论不仅重塑了学界，更成为美国政府与国际货币基金组织（IMF）在过去数十年里向全球推销的教条，四处游说并迫使其他国家修改法律、促成央行从财政部剥离独立。然而这种全球“布道”在当下造成了一种惊人的历史反讽与制度认知失调（cognitive dissonance）：美国在全世界推销了几十年的这套独立原则，如今在自己的最高法院内部，却面临被裁定为“违反美国宪法”的危机。 梅南指出，这并不意味着 SEC（证券交易委员会）依靠跨党派委员会维持资本市场监管的法律稳定性不重要，也不意味着 FCC 的跨党派通信政策无关紧要；关键在于，其他领域从未享受过经济学界赋予央行独立性的那种排他性学术光环与全球政治布道。此外，美国体制本身具有极高程度的政治化官僚色彩——以财政部为例，层层叠叠的职位全属于政治任命；而在许多其他发达经济体中，通信政策或金融监管大体上由职业文官（civil servants）按部就班执行，政治干预反而较少。 面对主持人的追问——如果国会当年预见到总统能够随意开除这些机构的官员，是否就不会以这种形式设立跨党派委员会？为什么偏偏是这些领域被赋予了这种“准独立/准司法”的特殊地位？——梅南从历史根源上给出了剖析： - **州际商务委员会（ICC）的原型示范（1887 年）**：这是美国第一个独立的跨党派监管委员会。在此之前，铁路监管主要通过联邦法院系统依据一系列法规审理案件来进行。但国会很快发现，通才型（generalist）联邦法官根本无法妥善裁决现代复杂的铁路与市场争端。国会意识到以普通法诉讼为基础的传统经济监管已经过时，必须建立由懂铁路、懂现代复杂市场的“专门专家”构成的类法院机构。 - **1913 年美联储委员会（Federal Reserve Board）的诞生逻辑**：美联储委员会在设立之初，本质上就是“银行领域的州际商务委员会”。当时的构想是将其打造为银行业的裁决法官，有能力在个案中根据具体环境灵活适用银行法律，这远非普通司法系统和联邦检察官提起公诉所能胜任。 - **20 世纪监管模式的演变与压力测试**：进入 20 世纪后，这些独立机构的功能发生了结构性位移——它们逐渐减少了个案式的行政裁决（例如 FTC 在机构内部判定某家公司构成不正当竞争），转向面向全行业制定普遍约束力规则（rulemaking），比如当今美联储制定的银行资本充足率规则。但梅南特别强调，现代美联储对大型银行进行的“全面压力测试”（stress test），在本质上正是 1913 年立章之初所设想的那种“基于专家专业判断的个案裁决”机制的现代延续。 ### `20:00` 独立委员会的逻辑漏洞：为什么是美联储，而不是科学机构？ 国会设立多成员独立委员会（如美联储）的初衷，在于处理诸如“一家大型银行是否拥有充足资本”这类准司法（quasi-judicial）且高度技术性的专业判断。国会既希望这类决策不受党派政治左右、保障正当法律程序，又清醒地认识到这些问题过于复杂晦涩，不适合交由第三条法院（Article III judges）的普通法官去裁决。然而，内森·坦库斯（Nathan Tankus）指出，这种制度设计的核心驱动力本质上源于经济考量，即人们坚信货币与宏观金融属于必须与政治隔离的“高深经济命题”；但从制度全局来看，这恰恰暴露了一种结构性缺陷——人们过度迷信金融体系的技术独立，却漠视了科学领域同样需要独立于政治干预。 坦库斯回顾自己在 2020 年至 2021 年间撰写的文章直言，若审视当时疫情肆虐的现实，美联储独立性的迫切程度绝不见得高于疾病控制与预防中心（CDC）。在货币政策中常被奉为圭臬的“可信承诺”（credible commitments）与“前瞻性指引”（forward guidance），当时若能应用于疾控体系，让福奇（Anthony Fauci）等人完全不受总统政治干预地发布最新科学结论，直接决定的将是成千上万乃至数百万人的生死。列夫·梅南德（Lev Menand）对此表示赞同并补充道，如果今天人们依照第二届特朗普任期的经历白手起家设计政府，诸如美国国立卫生研究院（NIH）和国家科学基金会（NSF）等关乎科研命脉的基金评审与分配机制，理应像美联储一样免受党派党争干扰。但历史的偶然在于，这些科学机构在创立时被直接归入行政分支，过去全靠不成文的“行政惯例”在维系其学术客观性。相比之下，美联储之所以拥有类似州际商业委员会（ICC）的多人委员会独立架构，纯粹是历史机缘巧合的产物。特朗普对现有官僚体系的猛烈冲击，无意中成了检验美国宪法体制承受力的一场“极端压力测试”。 - **准司法与专业门槛**：银行资本充足率等技术性判定既要求中立无偏，又超出了普通联邦法官的知识储备，因而催生了独立监管机构。 - **健康科学 vs. 货币金融**：在危机时刻，CDC 对疫情的前瞻指引与公开透明度直接牵动数百万人的生命安全，其独立价值绝不亚于央行利率决策。 - **历史惯性与制度漏洞**：NIH 和 NSF 等科研拨款机构直接挂钩学术界运转，因循历史惯性被置于行政长官直辖之下，在缺乏法定防火墙保护时极易受政治左右。 --- ### `22:15` 枪支法案 doctrine 跨界：以“历史与传统”为美联储量身定做豁免 当最高法院在判决中为美联储开辟免遭总统随意解职的专属“豁免通道”（carve-out）时，其法律推理路径展现出令人错愕的荒诞性。在去年的 *Wilcox* 案中，最高法院仅用轻描淡写的一句话向总统发出暗示：“在开除其他政府官员的事情上我们可以睁一只眼闭一只眼，但美联储绝不一样。”正是这句话点燃了后续关于丽莎·库克（Lisa Cook）因故解职案（for-cause removal）的诉讼风暴。而在库克案中，保守派法官们拿出的法理新工具，竟然是来自涉及第二修正案的枪支权利判例——*美国诉拉希米案（United States v. Rahimi）*。 ```mermaid flowchart TD accTitle: 枪支判例移植至行政解职权的法理路径 accDescr: 展示最高法院如何将第二修正案的历史与传统测试法套用到《斯劳特》案总统解职权的豁免审查中 subgraph GunDoctrine["第二修正案审查模型 (Rahimi 案)"] A["第二修正案赋予持枪权"] --> B["权利不能漫无边际（如核武器管控）"] B --> C["回溯 1780 年代建国期历史与传统"] C --> D["寻找当代法规的历史类比物 (Analog)"] end subgraph RemovalDoctrine["行政官员解职权审查模型 (Slaughter 案)"] E["总统享有撤换行政官员的绝对权力"] --> F["是否对特定机构设立豁免例外？"] F --> G["套用'历史与传统'审查标准"] end D -.->|"理论跨界移植"| G G --> H["回溯亚历山大·汉密尔顿的历史论述"] H --> I["确认货币政策独立性，判决美联储独享豁免"] ``` 第二修正案原本规定了持有武器的权利，但法理上显然必须允许一定限制（比如公民不能合法拥有核武器）；为了给限权划定界限，法院创立了“回溯建国时期历史法规以寻找类比（analog）”的审查标准。如今，法院将这套标准强行移植到了行政分支解职权上：在 *Slaughter* 案中，法院确立了“总统可以开除任何行政官员，且政府内几乎所有人都是行政官员”的绝对原则；而为了给美联储破例，法院要求必须在建国史中找到“历史与传统”的先例支持。 这引发了一系列滑稽的法理矛盾： 1. **厚此薄彼的选择性审查**：在剥夺联邦贸易委员会（FTC）委员独立性的 *Slaughter* 案中，法官们压根没去翻阅图书馆，也未考察 FTC 是否具备历史传统； 2. **“全员涌入图书馆”的考据闹剧**：到了库克案，法庭却煞有介事地让所有人埋首 1780 年代的建国文献，聘请历史学家考据当时的枪支法案与行政机制； 3. **搬出汉密尔顿当护身符**：最终法官们宣称找到了依据——建国先贤亚历山大·汉密尔顿（Alexander Hamilton）当年曾明确论述过独立货币政策的重要性，于是法院便以“必须听从汉密尔顿”为由，名正言顺地为美联储颁发了免死金牌。 --- ### `27:30` 行政权最大化主义的悖论与宪法分权的内在张力 针对这一连串判决所折射出的“行政权最大化主义”（executive branch maximalism）或“单一行政分支理论”（unitary executive theory），对谈转向了一个更为根本的宪政哲学追问：如果总统对所有行政人员享有绝对的雇佣与解雇权、整个官僚体系在法理上不过是总统的“个人雇员”，那么参议院的“建议与同意权”（advice and consent）究竟立足于何处？如果行政权最大化理论走向极致，参议院凭什么可以否决总统提名的国防部长或能源部长人选？ 梅南德指出，这暴露出“形式主义三权分立理论”（formalist separation of powers theory）内部无法调和的深刻张力。形式主义者试图为行政、立法和司法划分出黑白分明的绝对边界，但美国宪法文本的客观事实却是：政府权能从一开始就在各部门之间交错杂糅（blending functions across departments）。宪法文本明确将关键职位的任命权划归为总统与参议院的“联合权力”（joint appointment），这一白纸黑字的条文构成了形式主义理论无法绕过的硬伤——在宪法原初设计中，纯粹、不受牵制的单一行政权威从来就未曾真正存在过。 ### `30:00` 单一行政官理论的裂痕与汉密尔顿“第一银行”的历史错位 权力分立在理论上似乎非黑即白，但美国宪法现实中充斥着权力的交织与混合——美国副总统作为行政官员却兼任参议院议长，总统对国会立法拥有广泛的否决权。面对这种现实，形式主义权力分立理论坚称：宪法结构要求各部门权力完全独立，除非宪法条文明确允许交融。针对这一理论，拥护“单一行政官理论”（Unitary Executive Theory）的人提出了自己的辩护逻辑：他们承认宪法确实要求参议院对主要官员的人选提供“咨询与同意”（Advice and Consent），但这种立法监督仅仅把关官员进入行政部门的“准入门槛”。在这套说辞中，一旦官员宣誓就职、成为总统管辖下的行政雇员，若国会还试图阻止总统将其免职解雇，将是极度荒谬的；既然宪法并未规定参议院有权过问阁员被解雇的程序，开国先贤显然就是将参议院的角色严格限制在了任命环节。 然而，这种逻辑内部存在着深刻的张力。如果单一行政官理论认为总统执行法律必须完全依照自身意志，不受国会的强制牵制，那么总统无法随心所欲任命自己中意的心腹来推行政务本身就构成了巨大制约；总统必须受制于参议院的同意，这一事实恰恰证明了总统在执行法律方面绝非拥有绝对权力。顺理成章的推论本该是：国会同样有权通过对官员免职权的限制来规范行政部门架构。然而，在最高法院对莉萨·库克（Lisa Cook）案的判决中，法官们一方面剥夺了国会对其他独立机构（如联邦贸易委员会 FTC）设置解职保护的权力，另一方面却单单为美联储开了一道豁免口子。法院给出的理由是：亚历山大·汉密尔顿（Alexander Hamilton）在建国初期就认为“独立的货币政策”至关重要。 这在法理和历史上被专家痛批为灾难性的“根本逻辑溃败”。汉密尔顿当年极力争取的美国第一银行（First Bank of the United States），本质上是一家由私人投资者拥有的商业银行，联邦政府最初认购了其20%的股份，随后还将其全数抛售套现。第一银行根本不是政府机构，不是监管实体，里面没有一个人算得上是合众国行政官员，因此它的存在完全没有侵犯或削弱宪法赋予总统对行政官员的解雇权。法院在这里生硬套用了类似第二修正案《拉希米案》（Rahimi）式的“历史与传统”类比法，试图在建国初期寻找限制总统解雇权的先例，却找了一个驴唇不对马嘴的商业银行当标杆。事实上，汉密尔顿在著名的《关于国家银行的报告》中明确警示过：成立一家“政府银行”是极度危险的坏主意，国家需要的是一家由私人投资者所有的银行。此外，在18世纪80年代，美国根本不存在现代意义上的独立银行监管机构——彼时甚至连商业银行都极度罕见，最初的北美银行（Bank of North America）还是在宪法颁布前通过拼凑各州特许状建立的，直到1830年代末各州才普遍出台常规的银行设立法规。最高法院强行将现代中央银行的监管豁免权挂钩到汉密尔顿身上，彻底脱离了当时的历史语境。 ### `35:00` 美联储理事会的本质、罗伯茨的“第6条脚注”与脱离国会拨款的印钞权 最高法院既然将美联储的免职豁免权严格锚定在汉密尔顿所言的“货币政策”上，随即引发了一个极其棘手的法律困境：是否有人会借此起诉美联储，主张美联储仅在制定货币政策时享有独立性，而在行使银行监管权力时则违宪侵害了总统的行政控制权？事实上，法律界已经出现了这种强烈的质疑声浪。更吊诡的是，被国会于1913年设立并由最高法院裁定受免职保护的美联储理事会（Federal Reserve Board of Governors），其自身根本不是一家银行。这个由7名合众国主要官员组成的政府机构，既没有公众所熟知的“美联储资产负债表”，也无法直接对外发放任何一笔贷款。它本质上就是一个彻头彻尾的政府监管机构，其所谓的“货币政策”（如隔夜利率政策），完全是依靠监管名义上处于政府体制之外、由摩根大通等私立商业银行作为会员所有的12家联邦储备银行（如纽约联储）来落地的。 在实践中，宏观货币政策与微观银行监管之间的界限其实是完全虚妄的。例如，特朗普政府试图放松对商业银行的股权资本充足率要求，这一举措从功能上看就是在向金融体系释放流动性，产生强烈的宏观“货币刺激”（monetary stimulus）效果。面对这种盘根错节的权力交织，首席大法官约翰·罗伯茨（John Roberts）在库克案判决中祭出了颇具戏剧色彩的“第6条脚注”（footnote six）。罗伯茨在脚注中一笔带过地宣布：法院赋予美联储的例外豁免，是“基于美联储当前既有架构及其现行全部执法权力”的整体豁免。罗伯茨之所以这么写，纯粹是为了在源头切断后续诉讼——因为一旦法官像克拉伦斯·托马斯（Clarence Thomas）那样，逐一审查美联储手头的每一项权力是否符合汉密尔顿当年的构想，整个法理体系就会彻底陷入混乱与自相矛盾的泥潭。 ```mermaid flowchart TD accTitle: Federal Reserve Dual Structure and Funding Mechanism accDescr: Diagram showing the operational and funding separation between the Board of Governors and the Federal Reserve Banks. subgraph Gov["政府体制内部（受解职保护的监管机关）"] BOG["美联储理事会 (Board of Governors)<br/>• 7名合众国主要官员<br/>• 纯政府行政监管机构<br/>• 无放贷功能、无商业资产负债表"] ACCT["理事会在联储银行开立的独立账户<br/>(用于发放薪资与行政开支)"] end subgraph Quasi["名义上在政府体制之外（私营会员制法人）"] FRB["12家联邦储备银行 (如纽约联储)<br/>• 会员商业银行入股持有<br/>• 拥有真正资产负债表与货币创造权"] end FRB -.->|"执行隔夜利率等政策"| MKT["金融市场与商业银行"] BOG -->|"监管与政策命令"| FRB BOG ==>|"完全自主决定：下发征费指令 (Assessments)"| FRB FRB ==>|"凭空创造货币并贷记账户"| ACCT ACCT -.->|"彻底切断白宫预算办公室 (OMB) 与国会拨款审查"| BOG ``` 在资金运作机制上，美联储理事会的财务独立性更是隐蔽而精妙。虽然理事会自身并不持有货币政策资产负债表，但为了彻底摆脱国会年度拨款程序（Appropriations Process）以及白宫行政管理和预算局（OMB）的政治钳制，国会赋予了理事会全权自主向各大联邦储备银行征收“评估费”（Assessments）的法定权力。这表面上类似于联邦存款保险公司（FDIC）向商业银行收取保险费，但其底层运作逻辑却有着本质不同：联邦储备银行作为中央银行具有凭空创造法币的权力。这意味着，每当美联储理事会需要营运资金时，只需自主开出一份评估缴费单，实际上就是在命令联邦储备银行凭空“印钱”，直接打入理事会在联邦储备银行开设的专属银行账户中。理事会正是通过这种支配印钞权的闭环，自行发放薪酬并维持庞大的运作开支，从而筑起了一道完全免受白宫和国会财政勒索的终极制度防火墙。 - **单一行政官理论的核心辩解**：支持者辩称宪法规定参议院的“咨询与同意”权仅仅限于监督官员入职（Entry），而一旦其成为总统下属，宪法并未提供任何参议院插手总统解雇内阁阁员的正式程序。 - **对汉密尔顿历史先例的误用**：最高法院试图在汉密尔顿建立的美国第一银行中寻找限制解雇权的传统，但第一银行是私人商业银行，联邦政府持股仅占20%且后来抛售殆尽，其职员并非合众国行政官员。 - **双层分离的联储结构**：位于华盛顿的美联储理事会是7人组成的纯政府监管机构，没有放贷资产负债表；具体持有万亿美元资产负债表并承担借贷职能的12家联邦储备银行，名义上属于私营商业银行入股的会员制合作社。 - **罗伯茨法官的第6条脚注**：裁定免职保护直接涵盖美联储“现行构架与全部现有执法权力”，以防止司法系统对美联储的每一项监管权限进行历史合法性拆解。 - **规避国会拨款控制的法门**：美联储理事会完全不依赖国会财政拨款，而是通过向联邦储备银行下达强制性评估费指令（Assessments）筹资，迫使联储银行创造法定货币以维持理事会自身运转。 ### `40:00` 货币政策即财政政策：以“钱袋子权力”抗衡行政独裁 讨论首先围绕美联储运作资金的特殊性展开。美联储之所以享有不受国会拨款法案（Appropriations）限制的无限自由，最初的务实考量甚至包括“防止处理支票时预算耗尽”；而这项无需向国会要钱、由联邦储备委员会自行向各联储银行收取摊派评估费（Assessments）并自由支出的机制，前提必须是美联储独立于总统。一旦总统拥有对美联储委员会的直接控制权，行政部门便实际上掌握了一张无需经过国会审批的无限信用卡。 主持人提问：既然宪法明确规定国会掌管“钱袋子”（Power of the Purse），能否直接构建一套更具说服力的法理豁免逻辑，即“监管政策即货币政策，货币政策即准财政政策”？在 2008 年次贷危机、新冠疫情以及硅谷银行（Silicon Valley Bank）倒闭救助中，美联储的定向救助与非常规贷款已经展现了其深刻的财政再分配功能。货币与财政之间本就没有非黑即白的界限。 莱夫·梅南德（Lev Menand）指出，他此前在一篇名为《单一行政官理论与联邦储备系统》（*The Unitary Executive and the Federal Reserve*）的法学评论中就提出过这一论点。美联储独立性最根本的宪政基石，在于保障立法机关利用“钱袋子权力”去制衡行政机关，这正是建国先贤构想三权分立的核心所在。亚历山大·汉密尔顿（Alexander Hamilton）曾名言：一手执剑（行政权与军事），一手执钱袋（立法权），国家才不会走向专制。 ```mermaid flowchart TD accTitle: 汉密尔顿权力分立与美联储失衡风险 accDescr: 展示立法机关的钱袋子权与行政机关的执剑权如何因美联储独立性缺失而面临失衡 subgraph Framers["先贤建国理想：分权制衡"] Congress["国会<br/>掌管钱袋 (Purse)"] President["总统 / 行政部门<br/>执掌利剑 (Sword)"] Balance["防止行政专制与暴政"] Congress <--> Balance President <--> Balance end subgraph UnitaryFed["单一行政官接管美联储之后"] TrumpFed["总统直接操控的<br/>美联储理事会"] MoneyPrint["掌控无限印钞机<br/>与无追索权借贷"] FiscalErosion["绕过国会拨款预算<br/>实质执行定向财政救助"] TrumpFed --> MoneyPrint MoneyPrint --> FiscalErosion end President -.->|"若直接罢免/接管"| TrumpFed ``` 内森·坦库斯（Nathan Tankus）进一步从技术实操层面揭示了其凶险之处： - **无追索权贷款的实质等同于资产直接采购**：若美联储向某一实体发放一笔远高于当前抵押品市场公允价值的无追索权贷款（Non-recourse Loan），只要对方违约不再赎回，这项操作在经济实质上就是由央行买单的直接财政采购。 - **极端滥用场景（如“特朗普币”收购）**：在单一行政官全面接管的体系下，现行法律没有任何硬性条文能阻拦央行将某种由总统发行的“特朗普币”（Trump coins）列为借贷抵押品，进而通过非追索借贷完成对特定资产的变相印钞承接。 - **英美法系的历史传承**：将行政长官排除在货币供给之外的思想，最早可追溯至《大宪章》（Magna Carta）时期国会对国王物资与征税权的限制；前英格兰银行副行长保罗·塔克（Sir Paul Tucker）爵士多年来也一直论证这一逻辑：剥夺总统对印钞机的直接访问权，是避免暴政的宪政前提。 --- ### `45:00` 最高法院的形式主义死局：鲍舍尔案与拒绝功能主义例外 然而，当前的最高法院并未采纳这一论点。梅南德解释，保守派多数派在分权原则上坚持的是严格的“形式主义”（Formalism），而非“功能主义”（Functionalism）。如果法院承认“凡是实质干预国会钱袋子权力的机构都应独立于总统”，那么这种例外将像滚雪球一样蔓延至行政官僚系统的各个角落，彻底打乱保守派法官极力推动的单一行政官框架。 梅南德提到了 1980 年代里程碑式的**鲍舍尔诉西纳案（*Bowsher v. Synar*）**： - **案件背景**：国会通过《紧急赤字削减法案》，两党与里根政府达成妥协，设立了一套自动减赤触发机制，授权总审计长（Comptroller General）计算支出上限。总审计长是一名总统不能任意撤职（At-will removal）的官员。 - **判决结果**：最高法院最终推翻了该条款，理由是计算减赤额度属于行政职能，不能交给一个免受总统无条件罢免的官员行使。 - 当年法界就曾惊呼 1920 年代的迈尔斯案（*Myers*）幽灵复活；如今最高法院不仅没有后退，反而在当前裁决中变本加厉，绝不愿意为了保护国会的钱袋子而对总统的全权罢免权（Plenary power）网开一面。 --- ### `47:15` 终结“第四分支”：硅谷极右化与联邦党人文官反叛联盟 随后，坦库斯深入剖析了这场旨在瓦解“第四分支”（即行政官僚国家）背后的政治思潮与深层社会联盟。 二十世纪中叶形成的战后宪政妥协——尤其是源自新政时代与 1946 年《行政程序法》（Administrative Procedure Act, APA）的核心共识——建立在一个双重平衡之上：国会有权根据专业技术需求构建免受总统政治干预的专家型监管机构，而司法系统则通过广泛的司法审查（Judicial Review）对其行为进行合规纠偏。然而，总统集权论者（Presidentialists）与“单一行政官理论”信徒对这一秩序深恶痛绝，将伍德罗·威尔逊引入的现代官僚体系视为国家沉疴，誓言消灭所谓的“第四分支”。 令人瞩目的是，这套源自联邦党人协会（Federalist Society）的法学原教旨主义，在第二次特朗普任期前后与硅谷科技圈的右翼转向完成了剧烈合流： - **科技精英的极端应激反应**：以反垄断为先锋的联邦贸易委员会（FTC）主席莉娜·汗（Lina Khan）以及铁腕整顿加密货币的证券交易委员会（SEC）主席加里·根斯勒（Gary Gensler），让习惯了自由放任的风险投资家与科技领袖大惊失色、极度愤怒。 - **信息茧房与政治狂热**：许多科技圈大佬整日沉浸在 X（前 Twitter）以及由风险投资人组成的 Signal 加密群聊中自我催眠，将所有监管合规视为深层政府（Deep State）蓄意绞杀创新的官僚阴谋。 - **新教徒式的清算狂热**：传统极右翼智库学者与这批骤然转向极右翼的科技新贵相互结盟，后者带着“新皈依者的狂热”，全力支持撕碎限制总统权力的行政法网，为拆解现代独立监管体系注入了前所未有的政治与资本动能。 ### `51:30` 美联储并非安然无恙：成为行政机构中的“濒危物种” 在结束对建国初期历史的回顾后，讨论转向了面向未来的现实隐忧。针对主持人提出的疑问——最高法院既然为美联储及其执法权破例保留了独立性，这是否意味着美联储和货币政策的独立性从此高枕无忧？莱夫·梅南（Lev Menand）给出了极其严厉且明确的否定回答：“美联储并不安全，它现在的处境非常糟糕。”在梅南看来，美联储如今已经沦为行政体系中的“濒危物种”（endangered species），甚至可能是目前唯一在宪法层面上仍被允许保持独立的机构。 梅南尖锐地批评了最高法院的逻辑断层：法院在此前的一系列裁决中竭尽全力去否定独立机构和无党派行政管理的合法性，践踏长期维系独立机构运作的制度规范，却又匪夷所思地声称唯独货币政策可以享有特例。这种自相矛盾的操作不仅没有为美联储提供坚固的法律盾牌，反而从根本上破坏了支撑机构独立的制度土壤，将美联储推向了更加脆弱和孤立的境地。 - 美联储目前的独立地位并不是制度健全的体现，而是司法割裂下仅存的宪法特例。 - 司法层面对独立机构合法性的普遍贬抑，正在动摇保障“非党派行政”的底层政治与法律共识。 ### `52:50` 脆弱的“5比4”裁决：仅有两名大法官真正认可的妥协 梅南深入剖析了最高法院在丽莎·库克（Lisa Cook）案中以 5 比 4 作出的判决结构，揭示出一个令人震惊的司法现实：在全院九名大法官中，实际上只有两个人真心认可当前这种“FTC 不具独立性，但美联储拥有豁免”的判决逻辑，其余七位大法官的宪法立场均与此背道而驰。在支持库克的五票中，埃莱娜·卡根（Elena Kagan）、索尼娅·索托马约尔（Sonia Sotomayor）和凯坦吉·布朗·杰克逊（Ketanji Brown Jackson）三位自由派大法官之所以投赞成票，是因为她们在联邦贸易委员会（FTC）相关的《斯劳特》（*Slaughter*）案中就是坚定的异议者，她们坚信 FTC 和美联储一样完全符合宪法，所谓给美联储搞“特殊豁免”在法理上根本站不住脚。 而在保守派阵营中，克拉伦斯·托马斯（Clarence Thomas）大法官已经公开亮牌，直言美联储的独立性必须被彻底废除；另外三位保守派法官虽未完全摊牌，但他们在库克案中投票反对库克，认为总统在诉讼审理期间就应当有权将其解职——这种逻辑意味着他们即便未来承认某种微弱的央行独立性，也绝非实质意义上的独立。因此，整个裁决格局纯粹维系在首席大法官约翰·罗伯茨（John Roberts）和布雷特·卡瓦诺（Brett Kavanaugh）两人的妥协之上。梅南指出，这是一种极度脆弱的不稳定均衡，两位法官虽然以美国政界标准算相对年轻，但不可能永久任职。如今美联储理事会在整个行政体制中“像一根肿胀的大拇指一样刺眼”（sticks up like a sore thumb），极度引人注目；主张总统集权的“行政一体论者”誓要彻底攻陷这块阵地，而民主党人也绝不会甘心接受法院在碾碎其他所有监管机构后唯独放过美联储的荒谬现实。 ```mermaid flowchart TD accTitle: 最高法院在美联储与独立机构管辖权上的撕裂阵营 accDescr: 展示九名大法官对美联储与FTC独立性裁决的三方阵营分歧。 subgraph Lib["自由派阵营（3人）"] L["卡根、索托马约尔、杰克逊<br/>认为FTC与美联储均合宪<br/>反对Slaughter裁决，支持库克留任"] end subgraph Center["中间妥协派（2人）"] C["罗伯茨、卡瓦诺<br/>仅支持美联储享有豁免特权<br/>支持Slaughter裁决，支持库克留任"] end subgraph Cons["保守强硬派（4人）"] R["托马斯及其他3位保守派<br/>主张总统解雇权无限制<br/>支持Slaughter裁决，主张解雇库克"] end L -. "以5:4微弱多数阻止解雇库克".-> C C -. "以6:3多数削弱FTC独立性".-> R ``` ### `55:00` 汉弗莱判例的残余与“解雇事由”的界定困境 内森·坦库斯（Nathan Tankus）接着探讨了美联储官员所享有的职位保障的实质成色。他提到自己两周前发表的一篇文章，标题正是《单一机构中的机构独立性》，其核心意象便是“汉弗莱执行人判例正蜷缩在埃克尔斯大楼的地下室里瑟瑟发抖”（Humphrey's executor is cowering in the basement of the Eccles building）。坦库斯直言，在这个问题上他甚至赞同托马斯大法官的判断——眼前的宪法逻辑确实荒谬绝伦、毫无道理可言，尽管他对这一事实的价值评判与托马斯完全相反。 坦库斯提醒大家关注“解雇保护”的核心法律机制：历来争议的焦点从来不是总统“能否解雇机构首长”，而是总统能否“无正当理由随意解雇”（fire without cause）。推翻《汉弗莱执行人案》（*Humphrey's Executor*）确立的先例，实质上是剥夺了“必须具备正当事由”（for-cause）的法定限制。然而，即便法律规定必须存在事由，司法系统如何界定“何为合法事由”依然是一个巨大的黑洞。历史最具有讽刺意味的地方在于，1935年通过《银行法》时，国会并未在法案中详细定义何为解雇事由，原因恰恰在于《汉弗莱执行人案》在法案通过前几个月刚刚出炉，当时的议员理所当然地认为该判例已经确立了通用的法律传统，无需赘述。结果，美联储从原本法定解雇保护条文最薄弱的机构，变成了在最高法院“推平”其他所有监管机构后，唯一侥幸留在战壕里、名义保护最坚挺的独立机构。 - 《汉弗莱执行人案》原先为准司法、准立法的独立监管机构提供了抵御总统政治干预的屏障。 - 1935年美联储立法时正值该判例确立，立法者误以为普遍的“因故解雇”标准已坚不可摧，因而未做细化规定。 - 美联储并未获得更牢固的明文保护，它只是在其他监管机构被系统性解除武装后，被动剩下来的最后阵地。 ### `57:25` 金融稳定论调与美国货币史：从“信用券”到州立银行的违宪争议 主持人指出，保守派法官在解释保留美联储豁免权时，给出的一个核心理由是“美联储对金融稳定至关重要，一旦动摇美联储将引发灾难性的市场动荡”。但主持人质疑，这种“市场会崩溃”的说辞听起来像是实操层面的妥协借口，根本不像严肃的宪法教义——宪法第二条绝不可能写着“只要金融市场可能陷入危险，三权分立就可以打折”。 面对这一质疑，坦库斯指出这种实用主义妥协在美国宪政史上其实源远流长。在建国初期，纸币被称为“信用券”（bills of credit）。联邦宪法明确禁止各州发行信用券，而对于联邦政府是否具有发行权则进行了激烈辩论，最终宪法文本既未明文授予也未明确禁止。但现实问题是独立之初整个国家极度缺乏流通货币，甚至难以找到纳税的支付媒介。为了解决通货短缺，各州开始转而特许设立私营银行，以此绕道发行事实上的银行券。 当时的法律精英敏锐地捕捉到了其中的违宪悖论：既然宪法禁止各州直接发行信用券，州政府又怎能通过特许银行来行使这一权力？坦库斯援引了1812年战争时期的财政部长威廉·H·克劳福德（William H. Crawford，曾任佐治亚州参议员）的名言——“借他人之手所为，即是自身所为”（what someone does by another, they do by their own hand）；如果州政府自身不具备某项宪法权力，就绝无可能将该权力委托给代理机构。面对主持人半开玩笑地质疑他是否想论证“州立银行自始违宪”，坦库斯澄清，他并不是要推翻州立银行的合法性，而是要借约瑟夫·斯托里大法官（Justice Joseph Story）时代的宪政抗辩说明：为了维持金融体系运转而牺牲字面宪法纯洁性、在法理矛盾中强行构建妥协，是美国货币宪制历史中反复出现的常态。 ### `01:00:00` “必要性压倒法律”：最高法院为避免经济崩溃的制度妥协 内森·坦库斯（Nathan Tankus）回顾了南北战争前美国货币史上的经典困境：当时各州特许银行发行的纸币按字面理解完全属于宪法禁止各州发行的“信用账单”（bills of credit），但最高法院的大法官们深知，如果机械地宣布这些州立银行违宪，就会直接凭空摧毁整个国家赖以运转的核心货币媒介。因此，丹尼尔·韦伯斯特（Daniel Webster）等人在私下通信与宪政著述中对此心知肚明，但在法庭判决中却只能寻找站不住脚的借口来维持其合法性。这种“我们私底下都明白违宪，但绝不能大声公开讲出来”的默契，揭示了一个残酷的法律现实：在特定极端情况下，“必要性不仅能压倒法律，甚至会倒逼转化为实体法本身”。 莱夫·梅南德（Lev Menand）对此表示赞同，并深入剖析了司法裁决合法性的双重来源。他指出，裁决的合法性一方面来自职业律师群体共享的法理逻辑与说理共识，法院出具详尽判决书正是为了说服这个认知共同体；但另一方面，裁决受制于现实后果的硬约束——无论法律故事编织得多么无懈可击，如果判决导致国家打输对外战争或引发全面经济危机，判决的合法性就会遭到暴力粉碎。最高法院在美联储独立性问题上面临着同样的权衡：法官们宁愿给出一个在法理上难以自洽、甚至互相矛盾的“美联储例外条款”，也不愿承受推翻美联储独立性所带来的系统性信任崩溃。一旦法院判决美联储成员可以被总统随意解职，导致特朗普开除整个美联储理事会并引发金融市场自由落体式暴跌，最高法院自身的合法性将荡然无存。 ```mermaid flowchart TD accTitle: 司法裁决合法性约束模型 accDescr: 展示法理逻辑与现实政治经济后果对最高法院裁决的双重制约 subgraph LegalityConstraint["司法合法性的双重约束"] Law["法理与逻辑说服力<br/>（法律共同体共识）"] Outcome["现实后果硬约束<br/>（避免战争失败/金融崩溃）"] end subgraph FedRuling["美联储案现实抉择"] Formalism["形式主义统一行政理论<br/>（允许全员免职，法理一致）"] Compromise["法理自相矛盾的例外豁免<br/>（保全美联储独立地位）"] end Outcome -->|"后果灾难性（市场暴跌）"| Formalism Formalism -.->|"导致合法性危机"| Crisis["最高法院权威受损"] Compromise -->|"维持市场稳定"| FedRuling ``` - 历史渊源：战前最高法院明知州立银行券违宪，却为避免摧毁货币体系而曲意维持其合法性。 - 司法认知约束：法院既要面对法律专家的法理审视，更要承担实体经济后果的裁决反噬。 - 核心权衡：宁要自相矛盾的例外豁免逻辑，也不冒引发市场雪崩和司法危机的大险。 --- ### `01:02:15` 行政权扩张的极端假想：架空国税局与债务上限防线 主持人乔·韦森塔尔（Joe Weisenthal）提出了一个堪称“终极抬杠”的假想推演：既然法律试图限制行政部门绕过国会单方面推行财政政策的能力，那么如果总统命令国税局（IRS）全员“带薪休假51周”、全面停止征税，岂不是直接实现了一场史无前例的单边财政刺激？在传统精英普遍诟病的债务上限制度中，是否恰恰蕴含着防范此类单边财政僭越的宪制防线？针对这一提问，坦库斯指出，在债务上限设立前，国会每批准一项支出都会直接绑定具体的发债授权，如今即便国税局停摆导致赤字飙升，在联邦政府真正撞上债务上限之前，社会体系早已彻底崩溃，债务上限根本无法充当有效的防线。 梅南德与坦库斯进一步厘清了更深层的行政法危机。在法律层面上，国税局员工属于职业文官，总统直接开除全体人员属于明确的违法行为，但如果行政首脑改用消极怠工的指令（例如命令官员整天刷推特），现行司法救济便陷入了瘫痪。近年来最高法院通过“影子案卷”（shadow docket）频频取消下级法院对行政违法行为签发的禁制令；同时，当行政越权行为涉及资金往来时，法院往往拒绝依据《行政程序法》（Administrative Procedure Act, APA）签发阻止令，而是强行要求原告转道联邦索赔法院（Court of Federal Claims）进行金钱追偿。然而，金钱索赔只能在事后要回法定款项，根本无法在事前制止总统肆意违宪、架空行政机构法定职能的专断行为。 - 债务上限的历史沿革：在建立总额债务上限前，国会必须对每一笔国债发行进行针对性立法授权。 - 行政诉讼的程序陷阱：司法系统将救济渠道从《行政程序法》的禁制令收窄为联邦索赔法院的金钱索赔，削弱了司法对违宪行政政策的纠偏力。 - 权力失衡现象：若缺乏阻断行政首脑随意解职下属的防护墙，法院即使判定行政违法，总统也能通过频繁撤换合规官员让法律沦为空文。 --- ### `01:04:45` 《马伯里诉麦迪逊案》的阴影：行政一体化理论对法治根基的侵蚀 梅南德直言，当前的行政法争端正在触及法治秩序的终极基石，必须重审1803年奠定美国宪政基础的里程碑案件——《马伯里诉麦迪逊案》（Marbury v. Madison）。当年托马斯·杰斐逊总统扣留了前任政府任命马伯里担任华盛顿特区治安法官的委任状，首席大法官约翰·马歇尔（John Marshall）在判决中确立了核心原则：总统及其行政官员必须受法律管辖，无权拒绝履行法律明确规定的法定职责；在官员拥有法定任期且法律未赋予总统免职权的情况下，法院有权签发“执行令”（mandamus），强制行政官员履行法定作为义务。从《马伯里案》直至1926年的《迈尔斯诉合众国案》（Myers v. United States），这一先例始终支撑着国会对总统免职权进行限制的宪政根基。 极端的“单一行政理论”（Unitary Executive Theory）正在动摇这一传承了两百余年的法治大厦。在19世纪的法律人看来，总统下令让国税局等行政机关公然违背国会立法、放弃法定职责是不可想象的，因为法院随时可以签发执行令予以纠正；而在当下，大量行政机构停摆或拒绝履职，法院却对国会立法的强制执行一再退让。梅南德警告称，当国会立法的崇高地位被解构，当行政机构开始依据自身政治意志肆意解释法律，美国正不可避免地滑向深层次的宪政危机。当主持人开玩笑追问“《马伯里案》是不是亚历山大·汉密尔顿写的”时，现场在戏谑中结束了这场厚重的宪政辨析。 ```mermaid flowchart TD accTitle: 马伯里案与单一行政理论的宪制冲突 accDescr: 展现马伯里案确立的法治原则与现代单一行政理论之间的根本矛盾 subgraph MarburyPrinciple["《马伯里诉麦迪逊案》（1803）法治传统"] CongressLaw["国会制定法律明确职责"] --> Bound["总统与官员均在法律之下"] Bound --> Mandamus["法院签发执行令（Mandamus）<br/>强制行政机构依法履职"] Bound --> RemovalLimits["承认国会对官员免职权的限制保护"] end subgraph UnitaryTheory["极端单一行政理论对法治的解构"] AbsoluteRemoval["总统拥有无限任意解职权"] --> AgencyInaction["行政机构奉命消极履职/违背立法"] AgencyInaction --> JudicialReluctance["法院拒绝签发禁制令纠偏"] JudicialReluctance --> RuleOfLawCrisis["法治退化与宪政危机"] end Mandamus -.->|"遭受侵蚀"| AbsoluteRemoval ``` - 《马伯里诉麦迪逊案》（1803）：确立总统不得凌驾于法律之上，司法机关有权强制行政官员履行法定职责。 - 司法救济工具：执行令（mandamus）历史上是阻止行政机关拒绝作为的核心宪制武器。 - 宪政危机根源：单一行政理论将行政官员完全降格为总统个人意志的执行者，颠覆了国会立法的终局权威。 --- ### `01:08:18` 播后复盘：脆弱的5比4裁决与“琥珀中”的美联储 在访谈结束后的复盘环节，主持人乔·韦森塔尔与特蕾西·阿洛威（Tracy Alloway）感叹，法官们竟然能够顺理成章地将宪法第二修正案（涉枪支权利的布鲁恩案，Bruen）中以“历史传统”界定权利范围的说理逻辑，直接横移并缝合到美联储的独立性保护之上。这种依据历史传统拼凑出来的解释，突显了最高法院在维护体系运转时的权宜心态。更具戏剧性的是，虽然保住莉萨·库克（Lisa Cook）职位的判决结果是5比4，但在全部9位大法官中，真正打心底里认可“总统可以随意撤换FTC委员、却绝不能随意撤换美联储理事”这种双标法律逻辑的人，实际上仅仅只有2位。这意味着当前的法律妥协只是一个极不稳定的脆弱平衡。 这种判决无异于在美联储背上画了一个巨大的靶子。整个行政体系中的其他机构官员都沦为总统可以随意开除的“随意聘用制员工”（at-will employees），唯独美联储像一件“珍贵的古董被封存在琥珀之中”，显得格外格格不入且引人注目。回顾美国金融法制史，最高法院面对现实经济运行的后果往往不得不低头，放弃机械的法条主义，以防止金融市场出轨来保全司法自身的信誉与合法性。特蕾西以幽默的口吻打断了乔关于“万亿美元硬币”的延伸联想，结束了本期探讨。 - 判决结构分析：最高法院以5比4裁定支持莉萨·库克留任，但9名法官中仅有2人真正认为“FTC与美联储待遇分化”在法理上具有逻辑自洽性。 - 美联储的脆弱处境：例外豁免使其成为联邦行政序列中唯一的异类孤岛，未来势必面临更猛烈的行政权侵蚀挑战。 - 司法现实主义结语：最高法院表面维持教条，实则始终对现实金融市场后果心存敬畏，不惜通过法理补丁避免经济崩盘。 ## Notable quotes > `02:28` 亚历山大·汉密尔顿（Alexander Hamilton）总是对的吗？ — 特蕾西·阿洛韦（Tracy Alloway） > `02:28` 美联储之所以特殊，就是因为它不同于普通机构 — 特蕾西·阿洛韦（Tracy Alloway） > `04:45` 我去看过，而且我挺享受那场演出的，不过要是再看一遍，我保不准会不会改主意。 — 列夫·梅南德（Lev Menand） > `10:00` 从纯粹的法律层面来看，美联储所享有的免职保护在所有独立机构中实际上是最薄弱的 — 内森·坦库斯（Nathan Tankus） > `15:00` 唯有中央银行独立于政治，才能保障货币稳定 — 列夫·梅南德（Lev Menand） > `22:15` 在开除其他政府官员的事情上我们可以睁一只眼闭一只眼，但美联储绝不一样。 > `40:00` 一手执剑（行政权与军事），一手执钱袋（立法权），国家才不会走向专制。 — 亚历山大·汉密尔顿（Alexander Hamilton） > `51:30` 美联储并不安全，它现在的处境非常糟糕。 — 列夫·梅南德（Lev Menand） > `52:50` 像一根肿胀的大拇指一样刺眼 — 列夫·梅南德（Lev Menand） > `55:00` 汉弗莱执行人判例正蜷缩在埃克尔斯大楼的地下室里瑟瑟发抖 — 内森·坦库斯（Nathan Tankus） > `57:25` 借他人之手所为，即是自身所为 — 威廉·H·克劳福德（William H. Crawford） > `01:00:00` 必要性不仅能压倒法律，甚至会倒逼转化为实体法本身 — 内森·坦库斯（Nathan Tankus） ## Mentioned 美联储（Federal Reserve）, 联邦贸易委员会（FTC）, 联邦通信委员会（FCC）, 证券交易委员会（SEC）, 疾病控制与预防中心（CDC）, 美国国立卫生研究院（NIH）, 国家科学基金会（NSF）, 美国国税局（IRS）, 国际货币基金组织（IMF）, 纽约联储, 州际商务委员会（ICC）, 北美银行（Bank of North America）, 美国第一银行（First Bank of the United States）, 特蕾西·阿洛韦（Tracy Alloway）, 乔·维森塔尔（Joe Weisenthal）, 列夫·梅南德（Lev Menand）, 内森·坦库斯（Nathan Tankus）, 亚历山大·汉密尔顿（Alexander Hamilton）, 唐纳德·特朗普（Donald Trump）, 莉萨·库克（Lisa Cook）, 富兰克林·罗斯福（Franklin D. Roosevelt）, 威廉·霍华德·塔夫脱（William Howard Taft）, 威廉·汉弗莱（William Humphrey）, 约翰·罗伯茨（John Roberts）, 布雷特·卡瓦诺（Brett Kavanaugh）, 克拉伦斯·托马斯（Clarence Thomas）, 埃莱娜·卡根（Elena Kagan）, 索尼娅·索托马约尔（Sonia Sotomayor）, 凯坦吉·布朗·杰克逊（Ketanji Brown Jackson）, 约翰·马歇尔（John Marshall）, 托马斯·杰斐逊（Thomas Jefferson）, 丹尼尔·韦伯斯特（Daniel Webster）, 威廉·H·克劳福德（William H. Crawford）, 约瑟夫·斯托里（Joseph Story）, 莉娜·汗（Lina Khan）, 加里·根斯勒（Gary Gensler）, 保罗·沃尔克（Paul Volcker）, 保罗·塔克（Paul Tucker）, 汉密尔顿（音乐剧）, 《激进的汉密尔顿》（Radical Hamilton）, 《斯劳特规则的美联储例外》（The Federal Reserve Exception to the Slaughter Rule）, 《危机笔记》（Notes on the Crises）, 汉弗莱遗嘱执行人诉合众国案（Humphrey's Executor v. United States）, 迈尔斯诉合众国案（Myers v. United States）, 美国诉拉希米案（United States v. Rahimi）, 鲍舍尔诉西纳案（Bowsher v. Synar）, 马伯里诉麦迪逊案（Marbury v. Madison）, 美联储-财政部协议（Fed-Treasury Accord）, 行政程序法（Administrative Procedure Act）, 埃克尔斯大楼（Eccles Building）, 联邦党人协会（Federalist Society） ## Video description <p>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&nbsp;<em>Slaughter</em> 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.<br><br>Read more: <a href="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">Can Trump Still Fire Lisa Cook After Her Supreme Court Win?</a><br><br></p> <p>Only Bloomberg.com subscribers can get the <em>Odd Lots</em> newsletter in their inbox now delivered every weekday plus unlimited access to the site and app.&nbsp;<a href="https://www.bloomberg.com/subscriptions/oddlots?in_source=oddlotspodcast"><strong>bloomberg.com/subscriptions/oddlots</strong></a></p><p>See <a href="https://omnystudio.com/listener">omnystudio.com/listener</a> for privacy information.</p> [Source](https://podtrac.com/pts/redirect.mp3/tracking.swap.fm/track/UVBrz8bN8aM2Xe47PEPu/traffic.omny.fm/d/clips/e73c998e-6e60-432f-8610-ae210140c5b1/8a94442e-5a74-4fa2-8b8d-ae27003a8d6b/4e48ebd0-0b41-4721-8e45-b489014fc1c7/audio.mp3?in_playlist=982f5071-765c-403d-969d-ae27003a8d83)

[2:28] 特蕾西·阿洛韦（Tracy Alloway）: 亚历山大·汉密尔顿（Alexander Hamilton）总是对的吗？ [2:28] 特蕾西·阿洛韦（Tracy Alloway）: 美联储之所以特殊，就是因为它不同于普通机构 [4:45] 列夫·梅南德（Lev Menand）: 我去看过，而且我挺享受那场演出的，不过要是再看一遍，我保不准会不会改主意。 [10:00] 内森·坦库斯（Nathan Tankus）: 从纯粹的法律层面来看，美联储所享有的免职保护在所有独立机构中实际上是最薄弱的 [15:00] 列夫·梅南德（Lev Menand）: 唯有中央银行独立于政治，才能保障货币稳定 [22:15] 在开除其他政府官员的事情上我们可以睁一只眼闭一只眼，但美联储绝不一样。 [40:00] 亚历山大·汉密尔顿（Alexander Hamilton）: 一手执剑（行政权与军事），一手执钱袋（立法权），国家才不会走向专制。 [51:30] 列夫·梅南德（Lev Menand）: 美联储并不安全，它现在的处境非常糟糕。 [52:50] 列夫·梅南德（Lev Menand）: 像一根肿胀的大拇指一样刺眼 [55:00] 内森·坦库斯（Nathan Tankus）: 汉弗莱执行人判例正蜷缩在埃克尔斯大楼的地下室里瑟瑟发抖 [57:25] 威廉·H·克劳福德（William H. Crawford）: 借他人之手所为，即是自身所为 [60:00] 内森·坦库斯（Nathan Tankus）: 必要性不仅能压倒法律，甚至会倒逼转化为实体法本身

[5:00] The Federal Reserve Exception to the Slaughter Rule [5:00] inefficiency, neglect of duty, or malfeasance in office [35:00] Chief Justice Roberts: as currently constituted and with its existing enforcement authorities [40:00] Lev Menand: The Unitary Executive and the Federal Reserve [50:00] Lev Menand: endangered species [50:00] Lev Menand: Humphrey's executor cowering in the basement of the Eccles Building [55:00] qui facit per alium, facit per se [65:00] Part of the problem with this unitary theory is it's really troubling Marbury and this foundation that suggests the president is under the law, has to follow the law, and the court's job is to make the president and the president's officers do that. [67:30] precious antique preserved in amber

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When you're running a business, the best days are the ones where priorities stay on track. For midsize and large companies, risk can affect multiple parts of the organization at once, from property and liability to cyber and regulatory challenges. At that level managing risk becomes an ongoing discipline At the Hartford the focus is on helping businesses manage risk before it turns into something more disruptive And when losses do happen, that work is paired with insurance coverage shaped by years of underwriting, risk engineering, and claims experience. Learn more at thehartford.com slash risk mitigation. Policies provided by Hartford Fire Insurance Company and its property and casualty affiliates, Hartford, Connecticut. Bloomberg Audio Studios. Podcasts. Radio. News. Hello and welcome to another episode of the Odd Thoughts Podcast. I'm Tracy Alloway. And I'm Joe Wasenthal. Joe, let me ask you a personal question. Go on. Is Alexander Hamilton always right? I doubt it. I have not read the complete works of Alexander Hamilton. My main knowledge of Hamilton. Is it the musical? No I was going to say my main knowledge of Alexander Hamilton is Christian Parente book Radical Hamilton But I also watched the musical And let me state at the outset my most controversial opinion So when that musical came out it was a lot of people really liked it And then a few years later, everyone's like, oh, this is lib and cringe. It's a good musical. And it's time for people set aside everything else. It's time for people to accept that in the category of musical theater, which I get is not to everyone's tastes. And I have some strong opinions on how much of it is bad. It is an upper decile or upper, what's the five one, quintile musical. Hamilton being a great musical is going to be the most controversial in this entire episode. Okay. That's right. But the reason I bring it up is because a couple of things have happened recently with the U.S. government. So we had a Supreme Court decision that basically like turbocharged the president's ability to fire heads of agencies, right? And then we had another Supreme Court decision that basically carved out an exception for the Fed. This is where Hamilton comes in, while citing the history and tradition of the independence of the central bank, Hamiltonian theory, and all of that Right I think a lot of people even before this decision and we did some discussions about this have this view It like the Fed is different because the Fed is different Right That it like yes legally or sort of like on a formal written status like why should it be different than the FCC or the FTC et cetera looks the same But a lot of people have this intuition that the Fed is different because it's different. But when you're like making laws, right, you sort of have to write something down in theory to establish that. And one of the things that was stated in the essentially decision so that Trump couldn't easily remove Lisa Cook, which is really all it said, there was they sort of wrote down the thing that makes the Fed different. And one of the things they say is like it has a tradition going back to Alexander Hamilton. Right. The Hamilton exception. Right. And I mean, you know, on the one hand, I think you're right that a lot of people would argue that the Fed is different because the Fed does monetary policy and ostensibly you want an independent central bank. But on the other hand, the Fed does a lot of regulatory things that look a little bit more like an agency. So anyway, we're going to get into all the details of the case and what makes the Fed special, I guess, and why the president's. [5:00] can now fire people at the FTC or the SEC, but not at the central bank. We have the perfect guest. We're going to be speaking with Lev Menand. He is, of course, a Columbia law professor who's been on a number of times before. He also just wrote a paper called The Federal Reserve Exception to the Slaughter Rule. There we go. Yep. And we're also going to be speaking with Nathan Tankus. He is the president of Notes on the Crises and has been writing a lot about the Fed and also government agencies more broadly. And also a repeat guest. Also a repeat guest. Friend of the pod. All right. So thank you very much for coming back on All Thoughts. Thank you for having me. And I want to make it very clear at the jump that I am in no way associated with Joe's opinions about the Hamilton musical. It's horrible history. And by association, I'm not going to subscribe to the musical itself is good absent the content. I respect that. Chuck it all out. Lev, do you want to disclose your Hamilton musical opinions up front? I went and I enjoyed it. Okay. That's all you – okay. That's it. That's it. All right. No more. That's all. That's it. Hey, count me a second and I might change my mind. All right. Why don we just begin like we need a bit of context and background on this So let start with something called Humphrey executor which seems to come up quite a bit in these cases What is it exactly? Humphrey's executor is a Supreme Court decision from 1935, unanimous Supreme Court decision rejecting President Roosevelt's attempt to remove a member of the Federal Trade Commission without cause. And the court said Congress passed a law, said you can only remove members of the Federal Trade Commission for inefficiency, neglect of duty, or malfeasance in office, and you don't have some inherent constitutional authority to override or ignore that law. Now, Roosevelt had reason to think he did. The Supreme Court had decided in 1926, split decision, that the president was allowed to fire a postmaster without the consent of the Senate, which the statute required. And Chief Justice Taft wrote this long opinion saying, the president has these inherent powers. And everybody interpreted that opinion to mean, Federal Trade Commission, you could fire those people. And so Roosevelt was just like, I doing what Taft said presidents could do And the court was like no no no no no That okay for a purely executive officer but we going to cabin that Myers decision And if the agency or the government official has functions that are quasi-judicial or quasi-legislative, like the Federal Trade Commission and like a whole bunch of other agencies, then it's totally appropriate for Congress to put limits on the president's power to remove these officers, and the president doesn't have any inherent constitutional authority. Ever since that decision, the presidentialists have been aggrieved. Humphrey's executor, it unfairly limited Myers and this conception of this sort of president who can oversee the whole executive branch. And in a way, what we're experiencing is the great victory of the anti-Humfrey's executive crowd who have been fighting to get back their version of Myers from 1926 all this time. Can I just ask really quickly, so the court decision back then, one of the things you hear is the reason you don't want the president to be able to fire heads of agencies is because you want some continuity with technical staff who are working at these things And you don want a president who for instance I don know on the night that he leaving office just decides to like fire everyone for the incoming president Did they cite public good or anything in their decision? I can't emphasize this enough. The Myers decision was radicalism. And it was the court striking a sort of wild blow at Congress and at the rule of law to say that the president can just override these statutes. And Humphrey's executor was walking back something that the court really should have never done. And what's gotten sort of overlooked, I think, in recent years is the extent to which these bipartisan multi-member commissions, the Federal Trade Commission, these are lowercase c conservative institutions. They're meant to stabilize the law, to moderate the law, to prevent polarization, to allow people to make long-term investments. This is about our capital markets being attractive. And what we do here is we now mean that every four years you get a major shift in policy. You don't see that anywhere discussed by the majority in the recent cases or. [10:00] Or by Taft in 1926. I do want to tackle the specific thing in your question. Basically, what you're referring to is a kind of policy justification for insulating officers from direct presidential removal. But that's not necessarily the legal framework in which this is structured. Now, obviously, it's inextricable, but there are policy justifications for various things. But at root, it was the question of what legal powers does Congress have to structure things in the executive branch without just sort of the direct command of the executive branch? And to bring up that point about Myers and Humphreys Executor, this quasi-judicial language and quasi-legislative language was an attempt to kind of thread the needle between not fully overturning Myers but getting the substantive policy thing that you would want to carve out and make that more limited. And in a lot of ways that attempt to make a decision where what they wanted where the removal protections were quote unquote consistent with Myers are in some ways why we in the situation we are in today And of course, we can talk more about that. You know, one of the funny things about this conversation to me is like, OK, so we have these various governmental entities that sit somewhere between the legislative branch and the executive branch. And one of them is the Fed. Now, it just so happens that in the world of economics, in the world of academic economics, there is a particular premium that academic economists play on so-called independent monetary policy. Is that just sort of a coincidence? I imagine academics like the idea of all kinds of independent bodies that are outside the realm of, quote, politics. But it's sort of funny to me that the Fed does on some level sit in the same realm as like the Federal Communications Commission legally. I don think that there is the same degree of like it is very important that from a functioning standpoint communications regulation is independent You don hear that same sort of talk the way you hear from academic economists Is it just sort of a fluke arrangement that the Fed sits in this sort of regulatory sandbox that happens to align with how many purely econ folks think the Fed should be set up? I don't think it's a fluke, but I don't think it is has actually much to do with law. Yeah, I think it's an I think it's an ideological thing. I think, you know, as we'll get into in more conversations about, quote unquote, history and tradition, there's this indication of this longer legacy. And we both live and I have huge problems with this invocation. But nevertheless, it is true that there's these institutions, the first and second bank of the United States, the Bank of North America that were founded, that had various things that insulated them from presidential or even at times congressional control. And there's, of course, a huge history of these kinds of institutions, which people now look back on and call central banks, even though that wasn't the conception at the time in Europe. And, you know, economists are very familiar with those histories because they're proto-central banks. So that's what's important in their minds. And economists you know if you theorizing in the 1950s or 1960s if you Buchanan or any of these big economists it doesn occur to them to like maybe I should read administrative lawyers in terms of thinking about how these things are structured Economists always have this weird thing where they're talking about things that we refer to, but it's different. It's like a different thing in their models and they're just named the same. Like a central bank in an economics model is very different than a central bank in actual legal reality. One of the things that I've really emphasized for a number of years about this point, up until these recent Supreme Court decisions, as a legal matter, the Federal Reserve had the weakest protections against removal of any of the independent agencies. And if you thought like that economists cared at all about administrative law, economists actually thought that these legal protections mattered, you would think that they would advocate for the strongest removal protections being at the Fed. But no one ever cared because it was all this norm thing. In March 1951, two people handshake. They released a press release called the Fed Treasury Accord. And that's good enough for economists because for economists, it's all this sort of vague. [15:00] credibility stuff rather than legal institutions. I think an important part of a context here is the post-Volker shock development in the economics profession of a whole literature that says you need an independent central bank in order to provide monetary stability. And that literature was very influential and the United States government spent decades and so did the IMF going around the world and persuading other countries to change their laws to make their central banks independent of their finance ministries. and this is somewhat contingent that this literature created a bit of a dissonance that we were about to say, actually, this thing the United States has been promoting around the world for decades now, it's unconstitutional here in the United States. This created incredible dissonance. It's not to say that nonpartisan communications policy isn't important or that legal stability in our capital markets regulation by having a bipartisan commission structure for the SEC isn important It just that there wasn this enormous amount of academic attention and then sort of proselytizing globally about it Nor is there much of a sense here, I think, that we already have a very political bureaucracy in the United States. you know, the Treasury Department, layers upon layers of people are political appointments. And in a lot of our other advanced economies, like it's just taken for granted that communications policy is done by civil servants by and large. If I could just ask a quick follow up to that. One of the things that we've heard in the wake of the decision is that if Congress had known that the president would have been able to remove people at will or just automatically fire people from, say, the FCC or the FTC, they wouldn't have arranged these entities as they did. What was it about these particular realms? Because other agencies have regulatory responsibilities too. What was it about these particular realms where they thought it particularly important that we have sort of co ownership almost of them So the first one of these independent multi regulatory commissions was called the Interstate Commerce Commission and Congress created it in 1887 And Congress envisioned it as like a specialized court, because up until that point, railroad regulation was enforced through the federal courts. You would have a bunch of statutes, and then you would bring cases against the railroads, and federal judges would decide them. And Congress was dissatisfied by the ability of generalist judges to adjudicate these disputes. They came to think, actually, we need specialists who are experts in railroads, who have some understanding of these complex modern markets, who are going to develop the law that our common law-based system of economic regulation was obsolete. And that's sort of the germ of what became the modern American administrative state with these sort of court-like bodies. And so the Federal Reserve Board which was created in 1913 is an interstate commerce commission style body for banking They supposed to be judges of the banking system who have the ability to adapt the banking law to circumstances case by case in a way that wouldn work very well if we were to use the federal judiciary and prosecution and have statutes cashed down in that manner. And that was how Congress actually came to this. And so communications, These are advanced economic sectors that need specialist judgment applied. Of course, through the 20th century, these agencies evolve. They start to pivot towards rulemaking. And, you know, they do less and less of their policymaking through adjudication, through case by case. You know, that's an unfair method of competition. Company X, let's have sort of in-house FTC assessment. They start to write general rules. And obviously, we're very familiar now, like capital rules. That's like a big area where the Fed is active. But the stress test you can think of, actually, as sort of this type of adjudication this body was set up for in 1913. Expert judgment. [20:00] Does this large bank have enough capital? And that was a judgment that Congress felt was quasi-judicial. So it can't be partisan. There's due process, but sufficiently technical that it wasn't something you wanted the Article III judges trying to figure out. I think what Lev brings up really highlights that like economic motivations and a belief that you're dealing with very advanced economic issues has primarily been the driver for these multi-member independent commissions. And if anything, I would say that that was a weakness, that people were especially motivated in that case and less motivated by, say, science having an independent framework. You know, I wrote about this in a piece that only published last year, but I wrote for Lev in another publication in 2021, where if you look at 2020 or 2021, it's not at all clear that the independence of the Federal Reserve was more important than the independence of the CDC. If we're talking about credible commitments, about forward guidance, those ideas would have been much more helpful and much more important at the CDC than at the Federal Reserve at that time And furthermore as of our experience at that time highlighted the ability of say Fauci or whoever to speak fully independently of the president in articulating what the latest best science of I mean we talking in a very literal sense hundreds of thousands potentially millions of lives is the difference It's great that Nathan brought up the science because if you were building the government from scratch, in light of the experience we're having right now in the second Trump term, you would think that the way we hand out NIH and NSF grants, which is critical to our research universities functioning, should be independent of partisan politics. But when it was set up, it's just, you know, it's part of the executive branch. And so norms were undergirding that. And so no one had looked closely before, you know, at whether that was the right structure. And so the fact that the Fed had this structure that was like the ICC is somewhat historically contingent at the end of the day. Trevor Burrus Trump's a great stress test. David Pérez Yeah, stress test for the constitutional system. Jennifer L Before we go any further let just talk about the court reasoning behind the carve out OK so I going to put you on the spot and just ask you to summarize And then we can ask you a bunch of questions about why why they went that way But what history and tradition, what did they mean exactly? So they have this case called United States versus Rahimi, which is a Second Amendment case. And this is the crazy thing. There's like a gun case connected to the independence of the Federal Reserve. That is now the doctrine that is supporting the carve out. So last year, some listeners might recall, some court watchers might recall that there was this decision, Wilcox, where they gave us a single sentence saying, sort of indicating to the president, you know, we're kind of looking the other way as you remove all these other government officials, but the Fed will be different. And then that gave rise to the Cook case as a as a four cause removal. They've made some innovations since then. And the big innovation is to bring in Second Amendment doctrine. And the way the Second Amendment doctrine works, briefly, is that they understand the Second Amendment to be this absolute right to bear arms And then the question is well there must be some abrogations of those rights It such open text We can possibly enforce it that way How do we know when it okay to abrogate that? It's like you're not allowed to own nuclear weapons. Exactly. And so they say, well, we look to the sorts of regulations that took place in the founding period. And then we understand that those exceptions are okay. And so there's now Second Amendment jurisprudence has turned into this wild game with hiring all these early American historians and all these arguments about what type of firearm rules there were in the 1780s to try to decide what analogs Congress is allowed to have or states are allowed to have today. Never mind that this is not how the Second Amendment was understood in the 1780s or any of that. This is all recent development in Second Amendment world, too, and has created all sorts of weird dynamics. Now the court's saying that's how we're going to understand an exception to our new categorical rule in Slaughter that says the president can fire any executive. [25:00] officer and basically everybody in the government is an executive officer. So they need an exception and they say, oh, we're going to look for, is there an analog just like in our Second Amendment? Is there a history and tradition? That's where the language comes from. Everyone to the library. Everyone to the library. Is there a history and tradition of this? Okay. There's so many weird things about this. One of which is nobody looked to see if there was a history and tradition for the FTC in the slaughter case. So they decide that without mentioning this. And then the Cook case, they're like, well, you know, let's look to see. And then voila, here it brings us back to Alexander Hamilton. Voila, there is a history and tradition because Alexander Hamilton said independent monetary policy. That's very important. I mean, I have a lot of thoughts, but we must do what Hamilton says. We must do what Hamilton says. Thank you Right promotional products makes all the difference 4imprint offers thousands of options from on apparel and premium drinkware to tech totes and giveaways so you can find the right fit for any audience, purpose, or budget. 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Let's create smarter business, IBM. I have a sort of philosophical question So and maybe I going to ask you to put yourselves in the minds of these sort of like executive branch maximalists and we should probably have one on we will have one on at some point. But I understand what the letter of the law says, and following the Constitution, advice and consent of the Senate, and so forth. For all these positions, whether we're talking about just normal cabinet level members or not, if you sort of take the sort of maximalist executive branchism, what is even the defense of the Senate getting to say, no, you can't have that person be your defense secretary. You can't have your person be your Department of Energy secretary. What is even the logic there at that point? If these are going to be true employees of the president? One real tension in what's known as formalist separation of powers theory is the fact that and they can't they can't really get around this the constitution is blending functions across departments as they would have called it back then not branches all over the place so you're mentioning the fact that the appointments power by the plain text of the constitution is shared with the senate um it's a joint appointment yeah [30:00] The vice president of the United States and executive officer serves as the president of the Senate. The president can veto legislation all over the place. Powers are blended. Formal separation of powers theory basically accommodates this by saying the constitution structure requires that these powers be completely separated except where it explicitly says they can be blended. And they can't really tell us. I feel like I could make a defense of this. What's their defense? So, you know, unitary executive theory, voice, mind, everything. So, yeah, the Constitution says that. We can't quite get around that. But all they're saying is the appointment, is the appointment. So there is a entry, you know, of course, proper legislative supervision. And what they are supervising is the entry. It would be absurd to say that like that once he's they've entered the executive branch and have become employees of the president that the president can't remove them and fire them. There is no removal There is no Well there is removal protection but there is no principle where like there a formal process for the Senate to look over oversight of firing firing a cabinet head So this is the only process we have. And, you know, the founders in their infinite wisdom decided that this was the proper role of the Senate in this process. Yeah, the tension is just that if you think that the president is there to check Congress by executing the law as the president sees fit and not as Congress forces the president, then you're going to experience a tension from the fact that the president can't make the appointments the president wants to help the president carry out the president's duty. The president is stuck getting the Senate to consent. Otherwise, that person can't serve. And that does reflect a sense that the president is not absolute in law execution. And you might think that it follows naturally that Congress can shape the executive branch through limits on removal. but that is what this court just said Congress can do except for the Fed because let just go back to it for a second because Alexander Hamilton thought independent monetary policy was important which is true But the huge mistake that they're making, just fundamental logical failure here is that the first bank of the United States, which is what Alexander Hamilton was advocating for, was a investor owned commercial bank. It was not in any way abrogating the president's rights to remove executive officers. Nobody at the First Bank of the United States was an executive officer. It's not a government body. It's not a regulator. It's not part of the government. The government originally subscribed to 20% of the shares but then sold them. It was a private commercial bank. And so it's just a misapplication of the Second Amendment Rahimi analysis. You know, in the Rahimi analysis, you're looking for a restriction on gun rights that existed at the founding and trying to have an analog. There was no restriction as reflected in the Bank of the United States on the president's removal power over executive officers. Alexander Hamilton didn want a government bank And that in his report on a national bank he says a government bank is a bad idea We need an investor owned bank And so they just they misreading Hamilton. Well, on a related note, so Hamilton says that we need independent monetary policy, right? But I don't think he says we need independent banking regulation at any point in time, because I don't think we really had a banking regulator back then. didn't have banks. Yeah, exactly. That's a really important point. Yeah. The first bank really is the Bank of North America, which is a state chartered institution that it gets like actually multiple state charters and sort of like stitches together a monetary power out of that very articles of confederation. That's another point. It was founded before the constitution and you only start getting banks of New York and all this stuff in the 1890s. And like you don't you don't get, you know, general incorporation for state chartered banks until the late 1830s. And so it's a total misunderstanding. And as you're pointing out, all sorts of things, security regulation, financial regulation is cut out of history and tradition by virtue of just like that was the developmental point of the 1780s. [35:00] What I was getting at is, okay, you have this decision citing Hamilton on monetary policy. You don't have anything to back up the sort of like regulatory aspect of it. So could we end up in a situation where someone ends up saying that actually the Fed has improper authority over regulation and not monetary policy? They're already saying it. Yeah. So there are people saying that. Here's the tricky situation. the Federal Reserve Board of Governors, which is the seven-member, multi-member commission that Congress created in 1913, which is a government body whose officers are principal officers of the United States who have limits on their removal that the president, the court has now said has to respect. That body is not a bank. It has no balance sheet. It can make no loans. It does not have what we think of as the Fed's balance sheet. It can make no loans. It is a government agency, and it regulates banks and it conducts quote monetary policy which is overnight interest rate policy That how the Federal Reserve pursues its section to a mandate currently through regulation of the Federal Reserve banks which are government chartered banks but they nominally outside of the government They're membership cooperatives owned by the investor owned banks like JPMorgan Chase. So the Federal Reserve Bank of New York, that is a bank that is outside of the government. The Federal Reserve Board of Governors, that is a government regulator. That is inside of the government. And all the Board of Governors does is regulate stuff. And so it carries out monetary policy through regulations. And it also does bank regulations. But those are all monetary policy in a broader sense. They're not used to adjust monetary conditions for macroeconomic reasons generally, but they could be. And so currently what the Trump administration is doing is relaxing the equity capital requirements on banks. This is stimulative. This is monetary stimulus. That not why they doing it but it is stimulating the economy right now And the court has no easy way out of that which is why you have this weird footnote six in the Cook opinion I love weird footnotes Yeah there a lot of great weird footnotes in these opinions In footnote six, Chief Justice Roberts is saying, well, our exception for the Fed is as the Federal Reserve is currently constituted and with its existing enforcement authorities. It's just to head off at the pass. The idea that, well, let's go power by power and see whether these are actually – each power the Fed has is like consistent with Alexander Hamilton's vision. Because if you start doing that, like things start to get really messy and confusing. And Clarence Thomas does that. I do want to pick up – since you said the no balance sheet thing and before we started, Tracy asked for like really getting into the weeds. Excruciating detail. And this is like a big hobby horse of mine, as you know, to really like emphasize the point that Lev is making. So, you know, I cut in. Well, they do have a balance sheet. And what I meant by that was is technically speaking the Federal Reserve Board is and subsequently also the FOMC is funded by assessments on the Federal Reserve banks So you can kind of think of it as similar to the assessments for the FDIC fund but instead of it being on commercial banks it is on the Federal Reserve banks themselves And so they have these assessments, and they can determine the assessments at wherever they want. And this is really actually really important because one of the most unique thing about the Federal Reserve board is its complete autonomy from the appropriations process. And the basis of that complete autonomy is when they want more funds, they have complete autonomy to raise the assessments on the Federal Reserve Banks. Now, formally, this is an assessment. You kind of think, oh, we're just taking some money from here, taking some money there. But if you think about it, the Federal Reserve Banks are creating money. And so whenever they hit an assessment and order up some more assessment payments, they're essentially directing the Federal Reserve Banks to create money and credit the Federal Reserve Board's bank account. The Federal Reserve Board has a bank account with the Federal Reserve Bank and runs its spending, pays its payroll out of that, and that's what keeps it complete separation, keeps the OMB out, keeps the White House out. And this has been a recurring argument where literally it was like, well, if you don't do this, they won't be able to – [40:00] They might run out of the budget to process checks, and we want them to process checks, so we've got to give them unlimited freedom from appropriations. And that unlimited freedom of appropriations was obviously founded on being independent of the president, because if you have unlimited freedom from appropriations and you have direct control of the Federal Reserve Board, it's not the Federal Reserve Bank. It's literally the board part where you can just raise assessments as you want and spend, spend, spend. So there's been a big hobby for us that they kind of have total freedom of fiscal policy notionally over their operational expenses. But that can be, of course, defined in all sorts of ways. This sort of is a nice – brings me to the question that I had on my mind. So can a random person file a friend of the court brief? Or do you have to be like a lawyer or something like that? Could I could one of us like file an amicus? You need a lawyer to represent you. So let's say this comes up again. Here's it. Here's an argument. Let's say I want to find a carve out and I want to find something more compelling than this weird Second Amendment thing. What is wrong with the argument that says look regulatory policy is monetary policy so there no separating those because I read the Fed Unbound Central Banking in a Time of Crisis by Liv Menand And monetary policy can be recast as a quasi-fiscal policy. We see it in various ways in which loans get directed to specific sectors. We certainly saw that during COVID. We saw the rescue of Silicon Valley Bank, etc. Monetary policy alone, and there are ways to structure loans that are essentially fiscal allocations. There's not a bright line between monetary and fiscal policy. We've clearly established that the power of the purse rests in Congress. This is a known thing. Why not make an argument that no, monetary policy is fiscal policy, fiscal policy is Congress, and therefore it's just not like these other things? So I suggested that the court do this in a Law Review article that I guess was published about May 1st called the Unitary Executive in the Federal Reserve. What is distinctive about the Federal Reserve Board and this does tie exactly to what Nathan was saying is that its independence implicates the ability of the legislature to use the power of the purse to check the executive which was actually at the heart of the framers understanding of the separation of powers. Alexander Hamilton said, we're going to be safe under this constitution because the sword is in one hand and the purse is in the other. We could clearly like, if it were entirely under the president completely. We know from COVID, we know from the GFC, we know from SDB, we know from other things that there would be all kinds of ways to structure things under the form of lending and loans and nominal monetary policy that could have fiscal functions. Yeah, I mean, I've been getting to this a lot the last few years and trying to get memos and justifications from this from the Fed and specifically from the Federal Reserve Bank of New York and specifically around like it's very under talked about, but they made a lot made use of a lot of non recourse loans and a non recourse loan is just, you know, if you're if you're making a lot of recourse loan and it's much above the current asset value, it's essentially a purchase. And that power is extraordinary high Like there nothing on the books that can prevent a unitary executive fed from making non loans where they putatively accepting it as collateral for Trump coins and just buy Trump coins out deeply threatens the actual constitutional scheme to let the president have access to the money printing machine. And Alexander Hamilton was referencing this. And this goes back really to like Magna Carta in the Anglo-American legal tradition. The idea that the way we ensure we don't have a tyrannical executive is that the legislature controls access to supply. And Sir Paul Tucker, the former deputy governor of the Bank of England, has been making this argument for many years now that that's really the logic. Now, why didn't the court embrace it? Why didn't the court embrace it? Well, one problem is it's really inconsistent with their theory of the Constitution separation of powers, which is a formalist theory, because it says things that impede functionally on Congress's power of the purse. Well, we can't allow the president to control them. Well, you know, the board of governors of the Federal Reserve System isn't the only part of the federal bureaucracy that implicates Congress. [45:00] power of the purse. And so there's a very important Supreme Court case from the 1980s called Bousher v. Sinar, which was about the Emergency Deficit Reduction Act, where Congress was trying to ensure that the government didn't spend over certain spending levels to help bring down the deficit in the 1980s. And as part of that law, it was a bipartisan compromise with the Reagan administration, an officer called the Comptroller General, who the president cannot remove at will, was given the authority to calculate certain caps. And the court struck that down, said the comptroller general cannot have that power because that's an executive function. And this is an officer the president doesn't have the right to remove. And during that period, people thought we were going to have a resurgence of Myers. What we just had in slaughter, they thought was going to happen in the 80s. And the court is committed to that. They don't want to give Congress the power of the purse in that way that you're suggesting because it would mean that other functions besides the Federal Reserve Board would need to be protected from presidential plenary power. That I think is really a point that really needs to be hammered which is coming out of the New Deal certainly partly the progressive era but especially the New Deal We kind of had a compact in the 20th century in the United States where we were going to have this expert administrative state that was insulated from the president with various removal powers. Congress would have great power to structure how the federal government worked, how the administrative agencies worked, but this would be balanced by broad scope for judicial review. So there'd be a lot of judicial review for actions. This comes out the Administrative Procedure Act, which I believe is 1946. And so there was, and there are other acts that are around that, but these are kind of the central thing. So we created this system and at the basic political level, you have to see that this compact, this New Deal legal order was something that the presidentialists, that the burgeoning proto-unitary executive theorists hate. You know, if you listen to people around like the Trump administration, brouhaha, they talk explicitly about how they want to kill the fourth branch of government, by which they mean the administrative state that they see this is the big albatross Wilson is like the biggest evil for having introduced this like that You really can underestimate that drive And then on the political level in terms of tech and tech swing to the right, the people who are bringing this presidentialist stuff are finding a very receptive audience in the newly radicalized right-wing tech world because they were shocked and bewildered by Gary Gensler and Lena Kahn. And as a result, and they're also all on X, the Everything app, and cooking themselves in signal group chats. And they're looking at this, and they can't possibly see the kind of common sense reasons that, say, Lev and I might think that what Gary Gensler was doing on crypto, which we both think of as insufficient, I think it's fair to say, and what Lena was doing as nothing but a bureaucratic deep state conspiracy against the leading lights developing. And so this is I think a big part of the political story of the second Trump administration has been the merging of these longtime federal society far right think tanks with new converts who act with the zeal of the converted to just rip apart the you know quote fourth estate the fourth administration the fourth branch of government Whether you're planning a big tech event, launching a new campaign, or just stocking up on team gear, finding the right promotional products makes all the difference. 4imprint offers thousands of options, from on-trend apparel and premium drinkware to tech, totes, and giveaways, so you can find the right fit for any audience, purpose, or budget. You can customize it all, your logo, your message, your look, and many items come with no setup charge to help you save. And if you're really watching the bottom line, you'll find standout choices at every price point so you can make a real impact while staying on budget. Plus, you'll get expert help, fast turnaround times, and their 360-degree guarantee. So you can be 4imprint certain your order will arrive on time and look exactly right. Whatever your goal, 4imprint makes it easy to find your product. [50:00] Perfect promo match. Explore the possibilities today at 4imprint.com. 4imprint. 4certain. Support for the show comes from public.com. If you're actively involved in your portfolio, you probably catch yourself repeating the same actions. Buying the dip. Manually sweeping idle cash. Putting on a hedge. On public, you can now create AI agents that handle all these tasks on your behalf. Just describe what you want to do in plain English. Like, if the VIX hits 25, buy a put option on the S&P 500. Or if my cash balance goes above $20,000, move the excess into my direct index. You approve the workflow and your agent handles the rest. Monitoring the market, watching for your conditions, and executing your strategies exactly as defined. 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Okay, so we've been doing a lot of looking back, which is fair because apparently history and tradition is now relevant in ways we perhaps didn't expect. But I want to make sure we address the looking forward. All right, so we have this carve out for the Fed, including its enforcement abilities, apparently. Is it safe? Everyone's safe? The Fed's safe? Independence is preserved now? The Fed is not safe This is not a good situation that the Fed has found itself in The Fed is an endangered species now It might be the only independent agency that constitutionally permissible The court has gone out of its way to delegitimize independence and nonpartisan administration And then inexplicably they said but it OK for monetary policy They're undermining the norms that support actually independent agencies in doing this. And the carve out, the Cook decision is 5-4. And there are only two out of nine justices that think the outcome makes sense. So seven justices think differently. There's the three. Explain that discrepancy. Yeah. So Justice Kagan, Justice Sotomayor and Justice Jackson join Roberts and Kavanaugh to make the five in favor of Lisa Cook. But they, of course, are dissenting in slaughter. They're the three justices dissenting there. They don't think slaughter makes sense. So they don't think the Fed, they don't, the car that doesn't make sense of them. They just think the Fed is constitutional, just like the FTC is constitutional. And so there's only two justices that think that the FTC is not constitutional, but the Fed is, at least who have announced themselves. Thomas has gone out and said, I think the Fed has to go. The other ones have not fully put their cards on the table but they voted against Lisa Cook And so even if they ultimately endorse some carve out they thought that Trump should be able to remove her during the pendency of the litigation which means whatever central bank independence they ultimately potentially endorse, if they were to ultimately join on the carve out, would be like not serious independence. So it's only Kavanaugh and Roberts that really buy this equilibrium, which suggests this is an unstable equilibrium that's very dependent on the current composition of the court. And that, you know, Roberts and Kavanaugh are youngish by the U.S. government standards, but they will not serve forever. And it is hard to imagine that this equilibrium will outlast them, given all of the skepticism on both sides about the carve out and the way in which now the Federal Reserve Board sticks up like a sore thumb in the administrative state, almost like attracting attention. The presidentialists want to finally win. And it's going to be hard to get the Democrats to accept that the court has just run over all these other agencies. [55:00] back from the Federal Reserve Board. In my piece two weeks ago, my piece's title is just agency independence in one agency. Humphrey's executor is cowering in the basement of the Eccles building. And that like basically communicates my perspective on this is that like, this is it's, you know, five, four. It's so close. It doesn't make sense. I mean, I got to give it to Clarence. Like, he's right. It doesn't make any sense. Like, I'm on the other side of where he's going to take the conclusion that it doesn't make any sense, but it doesn't make any sense. And I wanted to pick up that point about protections. You know, this case also deals with the question of like how much protection there actually is at the Federal Reserve, you know, obviously specifically for Lisa Kick, but for everyone, because it's important to keep in mind, this whole thing that we've been talking about has not been about the president's ability to fire an agency head. It has been about the presidency's ability to fire an agency head without cause. What killing Humphrey's executor removes is that you don't need cause to fire an agency head But just because there is cause doesn mean that it hunky because we have to define what cause is and this is one of the biggest ironies is is the fed went from the agency with the least uh with the least removal protections because they didn't define cause in the act um although i think that's because humphrey's executor came out just a few months before and they literally waited on passing the bill to see the act. So I think they thought it was kind of obvious that they meant this general tradition. And of course, unfortunately, it's not obvious. But anyway, now they've gone from the independent agency with the least removal protections to the most just by mowing down everyone else. And they're like in the trench. You know, speaking of the Fed sort of hanging on the thinnest of reeds here, which is, okay, I on setting again, Second Amendment, Hamilton, you find some story. It's not even really, you know, there's only two people who even buy this story at this point, given what's changed at the FTC. One of the comments was, well, the Fed is very important for financial stability. That if you like that you mess that if you mess with the Fed there can have big repercussions which I think most people would probably agree with but that doesn sound anything like a doctrine that is like could be embedded in law oh it would really be it would really be destabilizing yeah right like that doesn't strike me as like the type of language that it's like there's like a real you know there's nothing in the constitution i don't think that specifically says like oh when it gets a little dicey fine for the financial markets than some of these things are the irony is that this what you're talking about actually has a very rich history and tradition in u.s constitutional law this is something i've been like focused on for for a long while which is you know okay in the constitution in the constitutional times the term bill of credit is what they refused for money today okay very famously states were banned from issuing bills of credit. There was a whole debate about whether the federal government should or should not. The power wasn't included, but wasn't explicitly barred. But then there was the question of like, well, we have no money. And the solution that came about was to start chartering banks That how we started state chartering banks In the first place a lot of the first petitions are like we need a medium to pay taxes So give us a medium to pay taxes and issue bills of credit But a lot of people a lot of smart people at the time looked at this and went, well, wait, we're banning the states from issuing bills of credit, but they're allowed to charter banks that looks like they issue bills of credit. And this was a huge Supreme Court concept because there are people who are arguing um you know uh a treasury secretary crawford who's a treasury secretary during the world for 1812 would say when he was a georgia uh georgia senator i believe it's senator maybe congressman um that you know what what someone does they do by you know what someone does by another they do by their own hand so they don't have the power essentially if they don't have the if they don't have the power themselves they can't delegate the power okay 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 i feel like you're trying to work in here a claim that the state banks are unconstitutional uh i'm not making that claim what i'm saying is that there's a lot of historical evidence that uh uh chief chief justice joseph story or justice story [60:00] believe that was the case, but thought it would be too destabilizing to do it because you would just by fiat eliminate the main monetary medium for the country by knocking down as unconstitutional all the state chartered banks. And instead, they find some flimsy justification for why these things aren't bills of credit. And there's evidence that seems to be that he would say this stuff in correspondence with Daniel Webster, who would write it in his constitutional writings. But it was a kind of like surreptitious, we all think this, but we can't really say it explicitly out loud so much because it would destroy the antebellum American monetary system. What you just mean is that necessity trumps law in certain circumstances. Or necessity becomes substantive law no matter how much people think they're formalist, even back two centuries ago. Yeah, I think it's right to say that, you know, what makes a judicial decision legitimate or illegitimate? One factor are shared legal understandings and legal arguments. And that's why the court puts out these opinions to try to persuade the epistemic community of lawyers that what they doing is within the bounds of their discretion It is consistent with law But there some other constraint which just has to do with the outcome Maybe they could tell a good law story, but if the outcome causes us to lose a war with a foreign nation or causes the economy to go into recession, then that is delegitimating the decision in a sort of more brute force way. It's not about what is our intellectual understanding of your argument. It's just like, look at those results. That can't be a legitimate outcome. And I do think there is some element here where the court would rather have an incoherent legal explanation for the carve out than face the legitimacy crisis that might occur. They don't know if it will, but might occur if they had overruled Fed independence. Trump had fired everybody else on the board and the market had gone into a tailspin. I have one very last tiny question. I going to open up a huge can of worms but we only have a few seconds I going to do the most trolling question in a short time Okay there was this position that you said that tried to limit the executive ability to do independent fiscal policy outside of Congress Isn't a good solution to that. One way the executive could do fiscal policy without Congress is fire everyone at the IRS. You don't collect any taxes. Suddenly, that's very stimulative. Isn't a good solution to that, the debt ceiling? Well, he's already pursuing it. The debt ceiling. That's what I'm saying. Isn't this the defense of the debt ceiling, which we – all of us wise people hate, that it's a way to prevent the executive from doing unilateral fiscal policy? Absolutely. I mean before the debt ceiling was in place, Congress used to specifically authorize all of the debt issuances. When Congress would do a spending program, they would join it with a funding. saying the government the executive could fire the irs and say oh just take 51 weeks of vacation you don't collect any taxes suddenly you've done stimulus and the one thing that may be in law that could prevent that is the dead telling anyway i don't want to i i'm not actually i i think that you know just to take it as a straight matter of law i don think that would be a limiting principle because I mean this is actually a very interesting thing because for it to work the way you describing there would have to be some mechanism to create removal protections for officials at the IRS. And because otherwise, if it's just like, though, the debt ceiling, well, the president can fire all the people from the IRS and just wait until it hits the debt ceiling. Society's going to collapse well before you actually hit the debt ceiling. Let's just be clear here. It's illegal to fire everybody at the IRS. They're civil servants. They tell them to go on vacation and to scroll Twitter all day. Yeah, right. But this is a big – but I do want to actually – because this does bring up a point that I really talk about in my piece is that if you're limiting removal protections from Congress, it also implies you can't – that the courts can't reach in and create removal protections among agencies. Okay. And that's important because it means like, OK, if some court says that what the federal government is doing is illegal and Trump just keeps on firing the guys who try to follow what the courts say, then the law is what Trump says. And there's a series of what are called shadow docket decisions where they haven't given their reasoning where all sorts of injunctions. [65:00] and injunctory relief and ways of stopping brazenly legal activity from the president have been sidesteped. And when there's some money involved and just going, no, no, no, you can't go through the Administrative Procedure Act and say, hey, they didn't do the proper procedure, so we get to stop this activity. You have to go to the federal court of claims and get a claim for money. But a claim for money is not injunction. It's not getting into government policy. All you can do is get the money that you're supposed to have, not stop wildly unconstitutional activities. There's a really deep issue here that you guys are raising, which has to do with the rule of law. And you may know a case, Marbury versus Madison, very famous case, 1803, which has to do with President Thomas Jefferson's decision not to deliver a commission to a man named Marbury to serve as a justice of the peace in the District of Columbia. And it went all the way up to Supreme Court And Chief Justice Marshall said the president can not do what he legally required to do under the law And the courts can mandamus is the word the president to do what he is required And it was that decision up until Myers that was understood to underwrite Congress ability to limit removal power because Marbury, president was not authorized to remove him. He had a five-year term and to tell the executive branch, the courts can tell the executive branch to follow the law. Part of the problem with this unitary theory is it's really troubling Marbury and this foundation that suggests the president is under the law, has to follow the law, and the court's job is to make the president and the president's officers do that. And as we get away from that, you can have these hypotheticals where you're thinking, oh, they're just having the IRS not follow the law. That is unthinkable to the 19th century. In the 19th century, under Marbury, That's a plain case for mandamus, as Chief Justice Marshall said, having the IRS officers do nothing. But now we actually think that maybe that's what are we going to do? Because in fact, there are all these agencies not doing their jobs right now, and the courts aren making them do what Congress said to do And in that sense we are sort of approaching a constitutional crisis where we have a degradation in rule of law which is the idea that Congress writes laws and the rest of the government's job is to carry them out, not to come up with their own views about what the law should be. Lev, did Hamilton write Marbury? Did Hamilton write the decision in Marbury? No, no, no. Well, I don't see how this is relevant. All right. That's a great place to leave it. Lev and Nathan, thank you so much for coming back. Thanks for having us. That was great. Joe, always good to end on a constitutional crisis note. I love talking to Nathan and Lev. As you know, I love people who are just like, know a lot of facts and details, etc. And I think definitely when you're talking about deep constitutional history, you really want to, you know, we can all say, yeah, in principle, blah, blah, blah, independent monetary policy. When we at this level we really want to talk to people and we did who actually like know a lot of case law and know everything that brings to bear on this question Yeah I do think it just wild to me that like a Second Amendment case Yeah, I would have. I did not influence that together. But that is like it's a wild stream. It's like, OK, here's an amendment and we found a way to modify it based on tradition. Therefore, here is another thing in the Constitution that because there's precedent for using tradition in another constitutional case, we can revert to tradition here. I also thought it was very interesting, Lev's point, and that, okay, the decision to, for now, keep Lisa Cook in her job was a 5-4 decision, but really only two people on the nine-member Supreme Court actually think that this arrangement is tenable, where you can fire someone from the FTC but not the Fed that easily. That is a good reason to think that this is not a very stable equilibrium. Yeah, and also just the idea that basically put another target on the Fed's back. Yeah, right. This is the only one. Everyone else is subject to... [70:00] of the president, I guess, and can be treated like an at-will employee. But the Fed has to be, I guess, preserved in amber because it's a precious antique. So you do like – That's right. It stands out. It stands out. It is interesting. Nathan's point sort of near the end about – I guess it's not surprising in America, probably in any country. I guess it's not surprising in America that like there is a history of what it would be bad for financial markets or it would be bad for the economy setting aside the law as, you know, and look, I think it's good that I think thinking about outcomes are probably good. And as a way of like to Lev's point of maintaining the legitimacy of the judicial system, that they don't pretend to be completely ignorant of like, if we make this decision, will things start to go off the rails? I'm going to end this conversation before you bring up the trillion dollar coin. No, I have nothing. All right. Shall we leave it there? Let's leave it there. This has been another episode of the All Thoughts podcast. I'm Tracy Allaway. You can follow me at Tracy Allaway. And I'm Joe Weisenthal. You can follow me at The Stalwart. Follow our producers, Carmen Rodriguez at CarmenArmand, Dashiell Bennett at Dashbot, Kale Brooks at Kale Brooks, and Kevin Lozano at Kevin Lloyd Lozano. 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