Lev Menand (Columbia University – Law School) has posted The Federal Reserve Exception to the Slaughter Rule on SSRN. Here is the abstract:
On June 29, 2026, Chief Justice John Roberts delivered two opinions that read like they had been written by two different people. In Trump v. Slaughter, Roberts overruled bedrock precedent and held unconstitutional the structure of much of the federal government. In Trump v. Cook, Roberts carved out an exception for the Federal Reserve System—“as currently structured and with its existing enforcement authorities.” With one hand, Roberts cuts down the Humphrey’s Executor “exception” to the categorical rule of Myers (grounded in functionalism) and declares: “Humphrey’s Executor is dead!” With the other hand, Roberts manufactures a new exception to this same rule (now grounded in “history and tradition”), proclaiming in effect: “Long Live Trump v. Cook!” The dissonance is jarring—and the history, faulty. This essay argues that the Court’s carveout for the Federal Reserve is a judicial brick without straw.
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