Halfway through oral argument in Trump v. Cook, Justice Amy Coney Barrett asked Solicitor General John Sauer when a statute authorizing an officer’s removal should be read to require process. “Why shouldn’t we do the same thing that the Shurtleff court did,” Barrett asked, “and say that, well, as we said in Shurtleff, when a statute specifies the grounds for removal, there must be notice and a hearing given?”

In response, Sauer distinguished between statutes authorizing removal for inefficiency, neglect of duty, or malfeasance in office (INM)—which he conceded require process—and statutes using the more general phrase “for cause.” Nineteenth century precedent on the latter type, he insisted, was “all over the map,” citing in support a 1905 Michigan Law Review article by Alonzo Tuttle and “background case law,” thirteen examples of which he said were cited in the government’s brief. According to Sauer, the rule articulated in Shurtleff applies only to officers whose removal is statutorily limited to INM—a conclusion that conveniently excludes Lisa Cook, who per the Federal Reserve Act holds her office for a fourteen-year fixed term, removable sooner “for cause.”

Sauer is wrong. Shurtleff did not limit pre-removal process to statutes with specified causes. Instead, it articulated what the government itself had called “the American rule”: “where causes for removal of an officer are specified in a constitution or by statute, or the term of office is for a fixed period, the officer can not be removed unless notice be given him and he be afforded a hearing” (emphasis added). Shurtleff thus clearly covers Lisa Cook by virtue of her fourteen-year term. This rule was well established by the time the Federal Reserve Act was enacted in 1913. See, e.g., Montgomery H. Throop, A Treatise on the Law Relating to Public Officers § 364, at 360 (1892) (noting it is “settled law in this country” that where an officer’s tenure was “for a definite term, subject to be removed for cause,” the officer could be removed “only upon notice, and after a hearing,” or the removal would be considered “erroneous and void”); id. § 364, at 359 (“So where he is appointed for a fixed term, and removable only for cause, he can be removed only upon charges, notice, and an opportunity to be heard.”).[1]

What’s more, state case law was not “all over the map.”[2] The key distinction in the nineteenth century was whether an office was a fixed-term position (not whether removal was “for cause” or for specified causes, as Sauer suggested). If it was, the overwhelming majority of states recognized the “American rule.” True, some statutes attached qualifying language to an officer’s fixed-term tenure, as where the Colorado legislature authorized a board of county commissioners to appoint a general road overseer “who, before the expiration of his term, may be removed by the board for reasons satisfactory to them.”[3] In such instances, courts read the additional language as modifying the term’s fixity. See, e.g., People v. Carver, 38 P.R. 332 (“[T]he law invests the board with the power of removal for any reason satisfactory to them. Such reason may be an entirely insufficient one, or amount, practically, to no reason at all. It may be mere caprice, but, whatever the reason may be, it cannot be inquired into.”).[4] But absent such language—say, when a statute simply provides that an officer “shall hold office for a term of fourteen years from the expiration of the term of his predecessor, unless sooner removed for cause by the President”—courts held that removal required process.

Our review of the case law has turned up only two states that consistently deviated from this rule: Illinois and New Mexico. And even these states acknowledged that they were in the minority, as the New Mexico court did in Ulrick, a case that Sauer cited at argument.[5] Tellingly, of the thirteen cases cited by the government in footnote 4 of their brief, five are from Illinois and New Mexico.[6] And the rest are distinguishable, generally either because they involved offices without fixed terms or statutes with qualifying language:

• Patton v. Vaughan, 39 Ark. 211, 215 (1882) (where a statute established “no definite term of office,” a judge could remove an inspector for “misconduct, negligence or incompetency” without “notice” or “trial,” thus serving as “sole judge of the existence of the cause”);
• In re Carter, 74 P. 997, 998 (Cal. 1903) (concluding that charter language authorizing a mayor to “remove for cause,” provided that “in case of such removal [the mayor] shall give written notice thereof, stating the cause, to the person removed, and shall immediately notify the common council of his action and the reasons therefor,” does not contemplate prior notice and an opportunity to be heard but instead “strongly implies that removal shall be summary, and without any antecedent proceeding”);
• Trimble v. People, 34 P. 981, 985-86 (Colo. 1893) (holding that, where removal is authorized “at any time for cause, to be stated in writing, but not for political reasons,” the modifying language “to be stated in writing” establishes the extent of the required process and the clause “but not for political reasons” gives the governor discretion to otherwise determine cause);[7]
• City of Hoboken v. Gear, 3 Dutch. 265, 287 (N.J. 1859) (concluding that a statute authorizing the council to remove a police officer for cause did not require notice because, inter alia, another section of the same act gave the mayor power to suspend any policeman “for cause, to be assigned to the council in writing”; as the legislature could not have intended to require notice and a hearing before such a suspension, “for cause” in the instant section should likewise not be read to require notice);
• O’Dowd v. City of Boston, 21 N.E. 949, 950 (Mass. 1889) (upholding a board’s removal of a subordinate without notice or opportunity to be heard because the statute expressly provided that the “board may remove subordinates for such cause as they may deem sufficient”);
• People ex rel. Fonda v. Morton, 42 N.E. 538, 539 (N.Y. 1896) (upholding dismissal of an orderly serving without a fixed term);
• People ex rel. Gere v. Whitlock, 47 Sickels 191, 197-98 (N.Y. 1883) (explaining that statutory language “authoriz[ing] the mayor to remove commissioners ‘for any cause deemed sufficient to himself’” should be read to modify the common-law default rule requiring notice and a hearing and judicial review of the sufficiency of the cause);
• State ex rel. Kennedy v. McGarry, 21 Wis. 496, 499 (1867) (expressly distinguishing case law holding that “’due cause’ is a question of law for the courts” because the statute in question provides that the decision of the board of supervisors in the case at bar is “final” as it authorizes removal for any “cause satisfactory to said board”).

In disputing Cook’s characterization of the common law of removal, Sauer emphasized that she bears the burden in making an “old soil argument.” The phrase comes from a 1947 Felix Frankfurter talk on statutory interpretation, in which the Justice explained that “[w]hen a word is obviously transplanted from another legal source, whether the common law or other legislation, it brings the old soil with it.” Cook has carried this burden. To nineteenth and early twentieth century lawyers, law professors, treatise writers, judges, and legislators, the “American rule” was clear: an office held for a fixed term and removable only “for cause” (without qualification) was an office from which the incumbent could not be removed without notice and a hearing.

Finally, it’s worth highlighting the inescapable implausibility of Sauer’s argument. In multiple other purported removals, many of which involve officers serving fixed-year terms removable only for INM, the Trump Administration has maintained that any restraint on the President’s removal authority is unconstitutional. (See, for example, Trump v. Slaughter.) In Cook, by contrast, the government does not contest the constitutionality of the Federal Reserve Act’s restraints. And yet Sauer’s reading of those restraints asks the Court to accept that the only federal agency whose independence is constitutional just so happens to also be the rare federal agency whose officers can be removed without process, because they, unlike most independent agency officers, are removable not for specified causes but simply “for cause.” The Court should not embrace an interpretation of the Federal Reserve Act that would effectively render its removal limits illusory.

Jane Manners is an Associate Professor of Law at Fordham Law School. Lev Menand is an Associate Professor of Law at Columbia Law School.

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[1] See also Floyd R. Mechem, A Treatise on the Law of Public Offices and Officers § 454, at 287 (1890) (“[W]here the appointment or election [was] made for a definite term or during good behavior, and the removal [was] to be for cause, it [was] clearly established by the great weight of authority that the power of removal can not, except by clear statutory authority, be exercised without notice and hearing”); 1 John F. Dillon, Commentaries on the Law of Municipal Corporations § 250, at 333 & n.3 (4th ed. 1890); Field v. Commonwealth, 32 Pa. 478, 481, 484-85 (1859); Dullam v. Willson, 19 N.W. 112, 112, 119 (Mich. 1884); Townsend v. Kurtz, 34 A. 1123, 1124 (Md. 1896); Biggs v. McBride, 21 P. 878, 879, 881 (Or. 1889); New Jersey ex rel. Haight v. Love, 39 N.J.L. 14, 21-22 (N.J. 1876).

[2] Not even the law review article that Sauer cited supports this characterization: Prof. Tuttle concludes that “the great burden of authority in this country and England” has held that “removal for cause as well as for cause specified requires notice, charges and a hearing.” Alonzo H. Tuttle, Removal of Public Officers from Office for Cause, 3 Mich. L. Rev. 290, 297 (1905).

[3] People ex rel. Jones v. Carver, 38 P. 332, 332 (Colo. Ct. App. 1894).

[4] Id. at 333.

[5] See State ex rel. Ulrick v. Sanchez, 255 Pac. Rep. 1077, 1082-84 (NM 1926) (“It cannot be denied that there are a large number of cases holding that a public officer who has, under the law, a fixed term of office, and who is removable only for definite and specified causes, cannot be removed without notice and an opportunity to make defense to the charge or charges preferred against him. . . . But our court had in Conklin v. Cunningham . . . aligned us with the jurisdictions holding to the so-called minority view.”). Illinois courts also acknowledged the state’s outlier status. See People ex rel. Shipley v. Mays, 7 N.E. 660, 662 (Ill. 1886) (“No matter what other courts may have decided, it is now the settled practice in this state, where the statute is silent upon the subject, no notice will be required to be given to an incumbent before he can be removed from office for a palpable violation of law or omission of duty.”). Note that in Ulrick the court is construing a state constitutional provision authorizing executive removal—provisions that existed in only a handful of states. Note also that in both New Mexico and Illinois, the courts interpret provisions specifying causes as also requiring no process—meaning that these jurisdictions conflict with the federal practice General Sauer already conceded at argument (that where the causes are specified, federal law requires notice and an opportunity to be heard prior to removal).

[6] Hertel v. Boismenue, 82 N.E. 298, 298 (Ill. 1907); People ex rel. Shipley v. Mays, 7 N.E. 660, 662 (Ill. 1886); Wilcox v. People ex rel. Lipe, 90 Ill. 186, 204-05 (1878); People ex rel. Stevenson v. Higgins, 15 Ill. 110, 114-15 (1853); Conklin v. Cunningham, 38 P. 170, 174 (N.M. 1894).

[7] Prof. Tuttle singled out Trimble in his 1905 article, explaining that it arose out of a “disgraceful and dangerous conflict of authority” between Colorado’s governor and its fire and police board, and concluding that “it may well be questioned,” as it “differs from the other [‘for cause’] cases discussed … in that there is no clear expression of the legislature’s intention that charges, notice and a hearing shall not be had.” He goes on to state the American rule and the “old soil” principle—“‘For cause’ had a well settled meaning when [the Colorado] statute was adopted and the legislature must be presumed to have known its meaning”—before noting that a subsequent Colorado decision, Benson v. People, substantially disavowed the Trimble holding.