As the Supreme Court’s latest term drew to a close, the expert consensus knew where the Court would land in Trump v. Slaughter and Trump v. Cook. Humphrey’s Executor—and with it the constitutionality of independent agencies—would be ritually slaughtered, yet Federal Reserve independence would remain alive and well. Why was this judicial miracle so utterly predictable?

Part of the answer is that the tea leaves of precedent and oral argument were easy to read. The holding in Slaughter had been telegraphed ahead of time by a sequence of cases, notably Seila Law (2020) and Trump v. Wilcox (2025), that strengthened the unitary executive. At the Slaughter oral argument, a majority to overturn Humphrey’s was readily apparent. In that same oral argument, however, Justice Kavanaugh admitted to harboring “concerns” about the independence of the Federal Reserve System (“the Fed”) and asked Solicitor General Sauer for a path forward. Sauer adroitly pointed to the Court’s unsigned order in Wilcox, which distinguished the Fed as “a uniquely structured, quasi-private entity that follows in the distinct historical tradition of the First and Second Banks of the United States.” This suited Kavanaugh, who later in the oral argument projected the creation of an exception for the Fed based on “history and tradition and function.”

Then, in the context of Cook, the Government strategically chose not to argue that the President should have unrestricted removal power over the Fed. Key Justices still seemed skittish at oral argument. Justice Barrett observed that the Court had received “amicus briefs from economists who tell us that . . . if we grant you your stay, that it could trigger a recession.” And Kavanaugh pushed Sauer on the purpose of Fed independence, worried aloud about “the real-world downstream effects,” and referred to a brief by former Federal Reserve Governors that he evidently had read. Paul Clement, Cook’s lawyer, ably hammered home the overriding “importan[ce] that the markets and the public have faith in the independence of the Fed from the president and from Congress.” Clement warned the Court of “enormous irreparable harms here that really don’t have an analog” when it comes to removing the top officers of other agencies. The Cook majority agreed.

But the obviousness of the Slaughter–Cook result is about more than elementary Kremlinology. There was a pervasive sense that the Court would protect the Fed because the Court had to do so. It seemed inevitable: how could the Court possibly allow the nation’s monetary policy, and its economic welfare, to be thrown to the vagaries of short-term political expediency? The expected consequences of eviscerating the Fed’s independence were calamitous. Fed independence appeared necessary. It remained only to translate that necessity into the conventions of constitutional argument.

This Chief Justice Roberts did with flair. Clement had told the Court at oral argument: “you want to strike the balance so that the ultimate imperative is that the markets don’t think that rates are being lowered for political pressure.” Roberts’s majority opinion covertly struck that balance by arguing that “the Federal Reserve maintains the balance struck by the founding generation under modern circumstances” (internal quotation marks removed). On its face, Roberts’s argument for Fed independence notwithstanding the unitary executive was all about this “distinct historical tradition” traced to the Founding.

Remarkably, however, the argument from necessity still snuck into the Chief’s opinion. Roberts skillfully laundered the argument through the voices of three Founders: Thomas Paine, Alexander Hamilton, and John Marshall.

First, Roberts quoted Paine as stating that the Bank of North America was a “necessity . . . for what with the depreciation of the currency, the slow operation of taxes, and the petitions to be exempt therefrom, the treasury was moneyless, and the government creditless.” Roberts cited Paine’s 1786 Dissertations on Government, the Affairs of the Bank, and Paper Money. The quoted words are all there, but Roberts manipulated the source. In that passage Paine was talking about the creation of the Bank of Pennsylvania, which predated the Bank of North America.

Second, Roberts asserted that Hamilton “said the same” as Paine. Roberts then quoted Hamilton: “The aid afforded to the United States, by this institution, during the remaining period of the war was of essential consequence.” This quotation, from Hamilton’s 1790 Report on a National Bank, shows only that Hamilton thought the Bank was a necessity during the war. But Roberts used the quotation to argue that the Bank was a necessity, full stop.

Third, Roberts cited the historical account offered by Chief Justice John Marshall in McCulloch v. Maryland. There Marshall stated that “a short experience of the embarrassments to which the refusal to revive [the First Bank] exposed the government convinced those who were most prejudiced against the measure of its necessity.” To intensify Marshall’s point, Roberts glossed these “embarrassments” as “severe financial instability following the War of 1812.”

At this point Roberts stopped speaking through others. The “necessity” identified by John Marshall, wrote John Roberts, “led to the Second Bank of the United States . . . .” Although Andrew Jackson slew the Second Bank, “an era of ruinous financial panics”—in Roberts’s words—eventually clarified the pressing need for “an independent central bank.” Thus from necessity the Fed was born.

According to Roberts, Fed independence was consistent with the Founders’ awareness “of the calamities that could arise from even the suspicion of political manipulation of monetary policy” (italics added; internal quotation marks removed). Ultimately, Roberts wrote an opinion that was avowedly designed to avoid “sow[ing] doubt as to the status of one of our Nation’s (and the world’s) most important financial institutions.” Roberts’s Cook opinion does not mention Slaughter even once. Starkly put: Cook may stand for the proposition that the Vesting Clause, as interpreted in Slaughter, is not a suicide pact.

The Cook concurrences relied on necessity in all but name. Justice Kavanaugh fretted, as at oral argument, that any holding other than the majority’s could “jeopardize the efficacy of U.S. monetary policy” and “spark political upheaval . . . as well as turmoil in the U.S. and world economies.” Aligning himself with both the majority and the Solicitor General, Kavanaugh reiterated that the Fed “maintains critical responsibility for the stability and success of the U. S. and world economies.” His words make it quite clear that these concerns underpinned his constitutional decision. Yet Kavanaugh quickly sought to cover the tracks of what he would normally disparage as policy reasoning. “Most importantly for constitutional purposes,” he added, as if suddenly remembering his jurisprudential scruples, “the Federal Reserve follows in a distinct historical tradition of central bank independence that has long coexisted with Article II.” So, “history and tradition” conspired to conveniently coincide with the necessity of preserving Fed independence.

In her own concurrence, Justice Jackson called attention to the procedural posture of the case: it was an application for a stay, which meant that the Court’s determination was fundamentally an equitable one. One of the traditional equitable factors is “the public interest”—and it is here that Jackson’s analysis is most revealing. She cited amply from an amicus brief by former Treasury Secretaries, who argued that “the Fed’s independence is critical to fostering the long-term health and stability of the national economy.” Jackson emphasized that politicizing the Fed risked “disastrous consequences,” even “financial panic.” So, she indicated, giving the President unbridled authority to remove Fed officials would threaten “the continued viability of our Nation’s economy . . . .” In Jackson’s judgment, the public interest here in restraining the President was practically at its zenith. Equity would tolerate no other outcome.

Even a dissenting Justice Alito, joined by Justice Gorsuch, did not dismiss the argument from necessity out of hand. Alito was clearly sensitive to the fears of the majority and the concurrences. In an important footnote, he actively contested the premise that failing to resolve the constitutional question of the Fed’s independence would have catastrophic results. Alito argued that granting a stay on narrower grounds “would have had no such effect.” Instead, he said, a stay on such grounds “would have simply returned the case to the courts below so that the ligation could continue in the normal course.” Implicitly, Alito was allowing that if “such [an] effect” were in fact likely to result then he might have agreed with the Court. This is consistent with Alito’s typical receptiveness to prudential argument. For Alito, then, real necessity would have justified the majority’s result. The problem was that, as Alito saw things, the majority had mistaken merely apparent necessity for real necessity.

Justice Thomas, by contrast, wrote a solo dissent that refused to abide the argument from necessity. On the constitutional question, Thomas essentially said Slaughter and Cook are irreconcilable. He attacked as ahistorical the majority’s attempt to ground Fed independence in tradition. As he saw it, the majority’s constitutional interpretation illicitly rested on “policy arguments.”

The perplexity at the heart of Cook—released as a bundle with Slaughter, after all—was perhaps best expressed by Justice Barrett. In her Cook dissent, she sharply raised the question du jour: “How can history support both a categorical rule and a carveout?” In fact, history cannot—unless history sanctions necessity-based carveouts to the Constitution. This I believe history does.

Necessity has a long and venerable history in our constitutional tradition. The Founding generation avidly read the works of influential jurists, like Hugo Grotius and William Blackstone, for whom necessity was a hard fact built into the law’s crevices. The text of the Constitution, read closely, displays a keen attentiveness to the force of necessity. In the ratification debates, necessity was repeatedly invoked to justify the new Constitution and various provisions therein. Famous judges of the period wrote opinions that explicitly deployed necessity to defend certain legal interpretations. Most dramatically, in McCulloch, John Marshall read the law of necessity into the Constitution.

The necessity exception delivered to us in Cook is nothing new. Like McCulloch, Cook is a strongly nationalist decision by a strongly nationalist Chief Justice. Like McCulloch, Cook is a marvel of judicial artistry. Like McCulloch, Cook is a hymn to necessity.

My relatively sanguine view of necessity’s place in constitutional interpretation is not universally shared. The most prominent opponent of such an approach is probably Professor Philip Hamburger, who has repeatedly attacked the principle of necessity in constitutional law as a despotic device eagerly imported from the European continent by American Progressives. Not coincidentally, Justice Thomas often favorably cites Hamburger. Most pertinent here, Hamburger’s book Is Administrative Law Unlawful? featured in Thomas’s 2015 concurrence in Department of Transportation v. Association of American Railroads and in his 2023 concurrence in Axon Enterprise v. FTC.

Indeed, Thomas’s skepticism of Fed independence has much to do with his hostility to the Progressives and to their comfort with bending the Constitution to accommodate perceived necessity. This hostility was manifest in Thomas’s widely covered April 2026 speech at UT Austin. It also bubbles forth in his Monsanto concurrence, his Slaughter concurrence, and of course his Cook dissent.

Thomas associates necessity with the Progressives. And he tends to see making space in the Constitution for necessity as undemocratic (unless, perhaps, the President is invoking necessity). At the end of his lengthy Cook dissent, Thomas declares that “the Framers . . . chose government by the people. As a court, our duty is not to second-guess that decision, but to uphold it.”

But Thomas errs in missing the deep link between government by necessity and government by the people. Necessity certainly can be, in John Milton’s immortal phrase, “the tyrant’s plea.” The danger that the plea of necessity will be abused demands acute vigilance. But at the same time necessity—real necessity—is “the patriot’s defense,” to quote James Wilson. The popular sovereign always wishes to preserve itself. The duty of the popular sovereign’s trustees, judges included, is to honor that wish.

How, then, can history support both a categorical rule and a carveout? Here is an answer: our constitutional history teaches that all “categorical” rules have carveouts. The law of necessity is part of our Constitution.

Avi Siegal is a 2026 graduate of Yale Law School and an Incoming Litigation Associate at Paul, Weiss, Rifkind, Wharton & Garrison LLP.