Given a choice between the rule of law and the law of rulers, I’d choose the former every time. That’s even true if I happen to agree with the ideology of the people who are currently in change. Thus I’ve consistently opposed “court packing”, regardless of which party is in power at the time.
One little known aspect of Fed rules is that the interest rate on bank reserves is technically set by the seven member Federal Reserve Board (not the 12 member FOMC). The president appoints the members of the Reserve Board, but not the 5 reserve bank presidents that also serve on the FOMC.
In practice, the FOMC has a sort of “gentleman’s agreement” to allow all 12 members to vote on where to set the IOR, as it has become the key tool of policymakers, but technically only the Reserve Board members have a vote. Benn Steil has an article in Barron’s discussing how President Trump might use that loophole to reshape the Federal Reserve:
Section 505 of former Sen. Richard Shelby’s (R., Ala.) draft 2015 Financial Regulatory Improvement Act would have transferred the authority to set the interest rate on reserves to the FOMC, and would therefore have restored the full committee’s ability to control short-term rates generally. Ironically, it was Democrats who objected to the Act, on the grounds that the Reserve Bank presidents serving on the FOMC were quasi-private appointments. But unless and until such an act is passed, the Board, and not the FOMC, will have the effective power to control rates.
Here is where President Trump comes in.
The most important way for him to control both the Board and the FOMC remains replacing Chair Powell—if that is possible. But it is not the only way. Two appointees from Trump’s first term remain on the board: Christopher Waller and Michelle Bowman. Incoming Vice President JD Vance recently cited Bowman favorably. She has been widely mentioned as a successor to Democratic appointee Michael Barr as vice chair for supervision when his term (as vice chair, but not governor) expires in July 2026. Democratic appointee Adriana Kugler’s term expires in January 2026, after which Trump can replace her with a loyalist. Should Waller and Democratic appointees Barr, Philip Jefferson, and Lisa Cook decide to pursue other opportunities before their Board terms expire, Trump would have yet more room to control the Board and its power over rates.
The Democrats were reluctant to give the regional bank presidents more power, as that group has occasionally tended to be a bit more hawkish than the Reserve Board members. But be careful what you wish for. If you give more power to a subgroup that is more directly controlled by the executive branch, the results may not be to your liking when that branch of government is controlled by the opposition party.
One more example is worth thinking about. Congress gave the president wide discretion over setting tariff rates at a time when the president (in both parties) tended to be more supportive of free trade than was Congress. They probably never envisioned that a future president might use that power to enact a dramatic increase in tariff rates. Here’s the Yeutter Institute:
While the U.S. Constitution grants to Congress the power to levy tariffs on goods, Congress has delegated some of that power to the Executive Branch over time. The U.S. Constitution states in Article I, Section 8 that “The Congress shall have the Power to lay and collect Taxes, Duties, Imposts and Excises.” Congress passed general tariff legislation until the early 1930s. However, in a move to grant more flexibility to the President to revitalize global trade in the midst of the Great Depression, Congress gave the Executive Branch the power to negotiate tariff reductions within levels pre-approved by Congress through the Reciprocal Trade Agreement Act of 1934. President Franklin D. Roosevelt became the first President to have the authority to levy tariffs and negotiate bilateral trade agreements without the approval of Congress.
There’s a reason why the framers gave Congress the power to set tax rates and tariffs.
READER COMMENTS
Garrett
Nov 17 2024 at 9:22pm
I wonder how much of the current political polarization can be explained by our current presidents being de facto elected kings
Scott Sumner
Nov 17 2024 at 11:26pm
Yes, that’s part of the problem. They are supposed to be “public servants.” We should treat them as we’d treat a servant, not as we’d treat a king.
steve
Nov 18 2024 at 9:21am
Completely agree. Part of the issue is that Congress has abdicated its reponsibilities, surrendering them to the executive branch. Along with this SCOTUS has become too powerful and partisan. The recent immunity ruling by SCOTUS added to the sense of royalty for POTUS.
Steve
Scott H.
Nov 18 2024 at 10:51am
Almost as much of a throw away sentiment as when folks tell you they’d make teachers the highest paid profession.
Scott Sumner
Nov 18 2024 at 11:59am
Not at all. One’s a good idea and one’s a horrible idea.
robc
Nov 18 2024 at 1:05pm
The one good thing about the first Trump term was his disrespect for the office. I hoped it would lead to a de-kinging of the presidency. But I was wrong.
TMC
Nov 19 2024 at 11:48am
It may have though, indirectly. Trump’s Supreme Court picks have been decisive in making Congress do its job rather than fluffing it off to the administrative state. There’s been good movement in this regard.
MarkW
Nov 18 2024 at 7:44am
A fair amount. One of the things that the framers didn’t anticipate is that Congress would ultimately be quite willing to cede authority to the executive branch because it is easier to get re-elected if you can avoid voting for and taking responsibility for and having to defend potentially controversial government policies and acts. If the regulatory agencies do all the dirty work, then representatives’ hands can remain clean. But that means that winning the Presidency takes on ever more importance. I have some hope that the end of the Chevron Doctrine will start to roll back this nonsense.
Craig
Nov 18 2024 at 10:47am
Dateline 1860, Lincoln calls up the federal army and southern sympathizers on the road to DC threaten the path. Congress is not in session, Lincoln suspends habeas corpus on the lime between, I think Philadelphia, Baltimore and DC. The Constitution is unequivocally clear that suspending habeas corpus is a congressional power. Judge Taney, indeed the very Taney who authored Dred Scott, RIDING Circuit, rules in Ex Parte Merryman that Merryman’s habeas corpus petition should be granted because he was illegally detained. When Congress returns Congress ratifies Lincoln’s actions.
Fast forward to Great Depression and in FDR’s inaugural he speaks of meeting the ’emergency’ with ‘broad executive authority.
Fast forward to today and it seems the US is in a perpetual state of emergency. There’s any number of emergencies right now, you’ll have to forgive me but I can’t count that high.
There is a concept the ‘nondelegation’ principle and it seems to have been lost to some quaint notion of separation of powers that seems long dead.
Craig
Nov 18 2024 at 10:53am
“Thus I’ve consistently opposed “court packing”, regardless of which party is in power at the time.”
I agree but there is a schtick there which is that its not actually unconstitutional to enlarge the court and historically the number of justices matched the number of circuits. This harkens back to the day when a supreme court justice would actually ride circuit. They don’t do that anymore of course but that’ll be the argument under which it will be attempted.
Scott Sumner
Nov 18 2024 at 11:59am
But that misses the point. If a court enlargement proposal was analogous to the amendment that term limited presidents at two terms, I’d have no problem with it. That amendment was delayed until the next administration. That’s fine. But that’s not what court packers are advocating, they wish to have the current president add all of the new justices. Thus your comment completely misses the point.
robc
Nov 18 2024 at 1:10pm
If I can make an amendment to adjust the SCOTUS, I would make it a single 18 year term, with a new justice appointed each odd year. Any president would get to appoint 2 per term. If someone dies, the replacement finishes their term and cannot be rechosen (or use the Presidential rule, if they serve more than 1/2, it counts as their one term, less than half and they could be appointed again).
steve
Nov 18 2024 at 4:45pm
I would make it every 12 years and 3 new judges for each POTUS. We need to get away from appointing judges in their 40s or close to it.
Steve
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