The Temple Exception: Trump v. Cook and the Sacral Constitution of Money

by Tim Rosenberger

Money is essentially the property of the community, not of the prince.
—Nicole Oresme, De Moneta, c. 1360

In a single hour on the last Monday of June, the Supreme Court buried and half-resurrected nearly a century of bad New Deal–era precedent. In Trump v. Slaughter, the chief justice interred Humphrey’s Executor, restoring the constitutional rule that officers who wield the executive power answer to the president, who answers to the people. Minutes later, in Trump v. Cook, the same chief justice exempted a single institution from the rule he had just restored. The Federal Reserve, five justices held, stands apart. Its governors may not be removed except for a “cause” that courts will scrutinize. Justices Thomas, Alito, Gorsuch, and Barrett dissented in various registers. The lineup alone should give pause; the reasoning gives more.

What is remarkable about Cook is not its bottom line, which resolved only an application for a stay and left the merits for another day, but the material out of which the exemption was built. The Court did not rest on constitutional text; there is none. It did not rest on structure; the structural argument had just prevailed, in the other case, for the other side. It rested on a genealogy. The United States, the Court declared, has a “long tradition of independent central banking,” descending from the Bank of North America, which “predates even our Constitution,” through the First and Second Banks of the United States, to the Eccles Building. The Fed, we are assured, “maintains the balance struck by the founding generation under modern circumstances”; the Court would not unsettle what it called, borrowing Justice Alito’s phrase, a “special arrangement sanctioned by history.”

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