The Other Problem with Lisa Cook’s “Property”
The fight over Lisa Cook’s seat on the Board of Governors of the Federal Reserve turns on a deceptively simple question: does a Fed governor have a property right in exercising her power over monetary policy?
The Trump administration petitioned the Supreme Court on Thursday to allow President Trump to boot Cook from the Fed while the lower courts wrestle over the question of his authority to permanently remove her. At the heart of the case is an important principle of American law: a public office is a public trust, not private property.
The United States is a republic, not a monarchy. As our first Republican president said, our founding fathers created a government of the people, by the people, and for the people. Government officials are not the owners of their offices—they are stewards of the public trust, guardians of the commonwealth. As the liberals have recently taken to reminding us: we’re not a country with a king.
My Old Kentucky Home
As with many of the greatest American tales, this one starts in the dark hills and hollers of Kentucky. Back in the 1899 election for governor, Republican candidate William S. Taylor was initially certified as the winner; but the Democratic legislature overturned the certification and seated Democrat William Goebel. This did not work out well for Goebel, who was shot before being sworn in and died days later, leaving his running mate, J. C. W. Beckham, to claim the office. The Supreme Court held in Taylor v Beckham that it would not treat an elective office as “property” under the Fourteenth Amendment’s Due Process Clause and would not sit in review of the state’s resolution of the contest. Holding public office is a political trust, not a private entitlement.
That idea that public office is not private property sits alongside the Court’s removal cases, which mark out who decides who wields executive power. In Myers v. United States, a first-class postmaster in Portland, Oregon, who was removed by President Woodrow Wilson, sought back pay under a statute that required Senate consent to remove him. The Court held the restriction unconstitutional and affirmed the president’s authority to remove purely executive officers so that he can “take Care that the Laws be faithfully executed.”
In Humphrey’s Executor v. United States, President Franklin Roosevelt fired a Federal Trade Commission member despite a statute allowing removal only for “inefficiency, neglect of duty, or malfeasance.” Roosevelt had had enough of Humphrey and decided he didn’t need cause. Humphrey died before the case reached the highest court (untimely death is a weird pattern in this line of cases), hence the case being named for his executor. The Court ruled that the president could not oust the commissioner at will and awarded back pay, reasoning that Congress may require “cause” for officers of genuinely independent bodies—but it did not convert the office itself into private property or require a trial-type hearing.
So, where does the idea that a government official might be entitled to “due process” before being removed come from? From a different strand of cases about jobs that look like entitlements. In Board of Regents v. Roth, a non-tenured state college instructor whose one-year contract was not renewed claimed a hearing as of right. The Court said there was no “legitimate claim of entitlement” and therefore no property interest to trigger due process. But this was a kind of legal jiu-jitsu. Even though the court ruled against the due process claim, it was establishing the idea that one could exist if a government employee had a property right in their job.
In Cleveland Board of Education v. Loudermill, a civil-service employee who could be fired only “for cause” was discharged without a chance to respond. The Court held that when law grants tenure-like protection, the employee has a property interest and is entitled to notice and a pre-termination opportunity to be heard. Importantly, this was an employment case about a civil servant, not principal officers who exercise sovereign power by virtue of appointment and commission.
What Process Is Due?
The government’s line with respect to the current Fed case is straightforward: Cook’s office is a principal, Senate-confirmed post, not a civil-service job. High government offices aren’t property, and importing Loudermill into the law of principal officers would “invite judicial micromanagement” of who wields executive authority. Even if you insisted on some process, due process is “flexible,” and for principal officers it can be satisfied by notice and an opportunity to respond. Maybe even a Truth Social post and the opportunity to post a comment.
The petition also draws a clean line courts can administer without infringing on executive removal power: judges may confirm the existence of a cognizable category of “cause”—integrity, fitness, competence—under a bare for-cause statute, but they should not reweigh the sufficiency of that cause. That distinction preserves a check against pretext while avoiding a merits trial over presidential judgment.
So, does Lisa Cook own her governorship? If the Court stays with the tradition that offices are public trusts rather than personal property, the constitutional answer is no—and due process in this context is thin and flexible, if it applies at all. And it’s very hard to imagine the current court deciding to create a property interest in a Fed board seat.
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