The Supreme Court issued two seemingly irreconcilable decisions on Monday: one that authorized the president to fire heads of otherwise independent agencies created by Congress, and another that seemingly halted President Donald Trump’s efforts to remove Lisa Cook as a member of the Board of Governors of the Federal Reserve, also a body created by Congress.  

But Cook’s narrow win still hands this president and future presidents a clear path forward to take action that could intimidate members of the Fed in ways that threaten its independence. Instead of strengthening the Federal Reserve’s ability to protect its independence, the Court has handed the administration yet another tool for applying pressure on its members: the punishment of procedure. 

The differing outcomes of the cases — one involving Rebecca Slaughter, a member of the Federal Trade Commission, and the other involving Cook — cannot really turn on the differences in the statutes that created those entities and specify the grounds on which the president may remove their members.

Cook’s narrow win still hands this president and future presidents a clear path forward to take action that could intimidate members of the Fed in ways that threaten its independence.

In the case of Slaughter at the FTC, the relevant statute provides that she could not be removed except for “inefficiency, neglect of duty, or malfeasance in office.” In contrast (but not really in contrast), the statute that identifies the terms of office of members of the Federal Reserve and their grounds for removal provides that such officers may only be removed for “cause.” It is hard to draw a distinction between the words of these two authorizing statutes.

Instead of looking at the distinctions between the statutes, the Supreme Court’s majority in Slaughter’s case overturns a roughly 91-year-old precedent in Humphrey’s Executor v. United States, which held that Congress can create limits on the power of the president to terminate the officers of congressionally created agencies, on what the majority in the Slaughter decision describes as separation-of-powers concerns. Once Congress creates an agency and it carries out executive branch functions, the president can terminate any officer of that agency because the president holds plenary power over such functions and Congress is not allowed to hamper those powers in any way.

With respect to Cook’s termination, which the Court found to have been improper, the Court did not look at the language of the two statutes at issue in these two cases. Instead, it turned to the history of federal banking entities, like the existence of the First and Second Banks of the United States in the early days of the republic, to claim that monetary policy has been treated differently from other functions of the government over the years. Despite the similar language of the two statutes — laws that were passed just one year apart in the early 20th century — the Court discerned a difference outside those texts by looking at the nation’s history, given the importance of Fed independence in context of setting monetary policy for the nation.

For even casual Court watchers, this should come as a surprise. The Court’s current conservative supermajority often says that the role of the judiciary is to adhere to  the text of a statute when interpreting it. In addition, these justices also claim that it is not the proper role of the Court to look for policy reasons for reaching a conclusion on a statute’s meaning.

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While the Court’s majority opinion in Cook’s case did technically reject the Trump administration’s efforts to terminate her from her position, it laid out a clear path for the administration to do so in the future. It must provide her notice of the ground or grounds upon which she is being terminated and she must be given an opportunity to challenge those allegations. Once a final decision is made by the executive branch, she can go to court to challenge that determination. But there is nothing stopping the administration from commencing such a process, on any basis it wants, or no basis at all, just to harass and intimidate Cook or any other member of the Federal Reserve.

And that is exactly what we can expect. Soon after the ruling, the president issued a statement on social media about the decision. Trump would note, quite correctly I feel compelled to point out, that the loss was on “a strictly procedural basis.” Because of that, he would add, “we will take appropriate action immediately to make sure that someone who has committed wrongdoing will not be making vital decisions concerning the Welfare of the United States of America!” 

In other words, Cook and her colleagues are not out of the woods yet. She can expect the effort to oust her to continue and the administration will likely seek to put her through the procedures laid out by the Court for seeking her termination. Moreover, the administration can use the same sort of processes — or even the threat of invoking those processes — to harass and intimidate Cook and other members of the Federal Reserve whose actions do not align with the president’s wishes when it comes to monetary policy and other critical economic matters the Federal Reserve addresses.

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While the president may have narrowly lost this battle to unseat Cook, it should surprise no one if the administration begins to apply the punishment of the procedures laid out by the Court on her and possibly other members of the Federal Reserve to try to bend them to the president’s will, even if there are no actual grounds to do so.  

In other words, now members of the Federal Reserve disfavored by the president may find themselves receiving the same treatment that other targets of the administration have faced, like former FBI Director James Comey and New York State Attorney General Letitia James. They might become targets of phantom attacks that have no basis in law and that are seemingly designed solely for the purpose of harassing and intimidating the president’s political enemies.  

In the end, the narrow, procedural defeat for the administration should be seen by no one as any sort of reprieve for Cook in particular or the independence of the Federal Reserve in general. In fact, this decision likely signifies the beginning of a new round of recrimination and harassment, for not just Cook, but any other member of the Federal Reserve who might find themselves at odds with the president.