YouSaid · the spoken record

Lev Menand

lines on the record: 33
first: 2026-07-17
most recent: 2026-07-17
sittings or episodes: 1
sources: podcast

Every line below is reproduced as it was said and linked to the record it came from. Nothing here is summarised or generated. Directory · Search · Corrections

“Where we have a degradation in rule of law, which is the idea that Congress writes laws and the rest of the government's job is to carry them out, not to come up with their own views about what the law should be.”
2026-07-17 · Odd Lots · Lev Menand and Nathan Tankus on Why Fed Independence Is Now Hanging by a Thread · IDENTIFIED FROM THE TRANSCRIPT · source
“The president is under the law, has to follow the law and the court's job is to make the president and the president's officers do that. And as we get away from that, you can have these hypotheticals where you're thinking, oh, they're just having the IRS not follow the law. Yeah. That is unthinkable to the 19th century. In the 19th century, under Marbury, that's a plain case for Mandamus as Chief Justice Marshall said, having the IRS officers do nothing. What are we going to do? Because, in fact, there are all these agencies not doing their jobs right now. And the courts aren't making them do what Congress said to do. And in that sense, we are sort of approaching a constitutional crisis”
2026-07-17 · Odd Lots · Lev Menand and Nathan Tankus on Why Fed Independence Is Now Hanging by a Thread · IDENTIFIED FROM THE TRANSCRIPT · source
“Decision not to deliver a commission to a man named Marbury to serve as a justice of the peace in the District of Columbia. And it went all the way up to Supreme Court. And Chief Justice Marshall said the president can't not do what he's legally required to do under the law. And the courts can mandamus is the word the president to do what he is required. And it was that decision up until Myers that was understood to underwrite Congress's ability to limit removal power because Marberry President was not authorized to remove him. He had a five-year term. And to tell the executive branch, the courts can tell the executive branch to follow the law. Part of the problem with this unitary theory is it's really troubling Marberry and this foundation that”
2026-07-17 · Odd Lots · Lev Menand and Nathan Tankus on Why Fed Independence Is Now Hanging by a Thread · IDENTIFIED FROM THE TRANSCRIPT · source
“There's a really deep issue here that you guys are raising, which has to do with the rule of law. And you may know a case, Marbury versus Madison, very famous case 1803, which has to do with President Thomas Jefferson's”
2026-07-17 · Odd Lots · Lev Menand and Nathan Tankus on Why Fed Independence Is Now Hanging by a Thread · IDENTIFIED FROM THE TRANSCRIPT · source
“From doing Absolutely. I mean, before the debt ceiling was in place, Congress used to specifically authorize all of the debt issuances when Congress would do a spending program. They would join it with a funding.”
2026-07-17 · Odd Lots · Lev Menand and Nathan Tankus on Why Fed Independence Is Now Hanging by a Thread · IDENTIFIED FROM THE TRANSCRIPT · source
“Maybe they could tell a good law story. But if the outcome causes us to lose a war with a foreign nation or causes the economy to go into recession, then that is delegitimating the decision in a sort of more brute force way. It's not about what is our intellectual understanding of your argument. It's just like, look at those results. That can't be a legitimate outcome. And I do think there is some element here where the court would rather have an incoherent legal explanation for the carve-out than face the legitimacy crisis that might occur. They don't know if it will, but might occur if they had overruled Fed independence. Trump had fired everybody else on the board and the market had gone into a tailspin.”
2026-07-17 · Odd Lots · Lev Menand and Nathan Tankus on Why Fed Independence Is Now Hanging by a Thread · IDENTIFIED FROM THE TRANSCRIPT · source
“Even back two centuries ago. Yeah. I think it's right to say that, you know, what makes a judicial decision legitimate or illegitimate, one factor are shared legal understandings and legal arguments. And that's why the court puts out these opinions to try to persuade the epistemic community of lawyers that what they're doing is within the bounds of their discretion. It is consistent with law. There's some other constraint which just has to do with the outcome.”
2026-07-17 · Odd Lots · Lev Menand and Nathan Tankus on Why Fed Independence Is Now Hanging by a Thread · IDENTIFIED FROM THE TRANSCRIPT · source
“That's very dependent on the current composition of the court. And that, you know, Roberts and Kavanaugh are young-ish by the US government standards, but they will not serve forever. And it is hard to imagine that this equilibrium will outlast them given all of the skepticism on both sides about the carve-out and the way in which now the Federal Reserve Board sticks up like a sore thumb. In the administrative state almost like attracting attention, the presidentialists want to finally win. And it's going to be hard to get the Democrats to accept that the court has just run over all these other agencies but stand back from the Federal Reserve Board.”
2026-07-17 · Odd Lots · Lev Menand and Nathan Tankus on Why Fed Independence Is Now Hanging by a Thread · IDENTIFIED FROM THE TRANSCRIPT · source
“So they don't think the Fed, the Carvet doesn't make sense of them. They just think the Fed is constitutional just like the FTC is constitutional. And so there's only two justices that think that the FTC is not constitutional, but the Fed is, at least who have announced themselves. Thomas has gone out and said, I think the Fed has to go. The other ones have not fully put their cards on the table, but they voted against Lisa Cook. And so even if they ultimately endorse some carve-out, they thought that Trump should be able to remove her during the pendency of the litigation, which means whatever a central bank independence they ultimately potentially endorse, if they were to ultimately join on the carve-out would be not serious independence. So it's only Kavanaugh and Roberts that really buy this equilibrium, which suggests this is an unstable equilibrium.”
2026-07-17 · Odd Lots · Lev Menand and Nathan Tankus on Why Fed Independence Is Now Hanging by a Thread · IDENTIFIED FROM THE TRANSCRIPT · source
“Yeah, so Justice Kagan, Justice Sotomayor, and Justice Jackson join Roberts and Kavanaugh to make the five in favor of Lisa Cook. But they, of course, are dissenting in slaughter. They're the three justices dissenting there. They don't think slaughter makes sense.”
2026-07-17 · Odd Lots · Lev Menand and Nathan Tankus on Why Fed Independence Is Now Hanging by a Thread · IDENTIFIED FROM THE TRANSCRIPT · source
“Fed is not safe. This is not. Good situation that the Fed has found itself in. The Fed is an endangered species now. It might be the only independent agency that's constitutionally permissible. The court has gone out of its way to delegitimize independence and nonpartisan administration and then inexplicably they've said, but it's okay for monetary policy. They're undermining the norms that support actually independent agencies in doing this. And the carve out, the cook decision is 5-4, and there are only two out of nine justices that think the outcome makes sense. So seven justices think differently. There's the three.”
2026-07-17 · Odd Lots · Lev Menand and Nathan Tankus on Why Fed Independence Is Now Hanging by a Thread · IDENTIFIED FROM THE TRANSCRIPT · source
“We're going to have a resurgence of Myers. What we just had in slaughter they thought was going to happen in the 80s. And the court is committed to that. They don't want to give Congress the power of the purse in that way that you're suggesting because it would mean that other functions besides the Federal Reserve Board would need to be protected from presidential plenary power. That I think is really important. Needs to be ham”
2026-07-17 · Odd Lots · Lev Menand and Nathan Tankus on Why Fed Independence Is Now Hanging by a Thread · IDENTIFIED FROM THE TRANSCRIPT · source
“Control them. Well, you know, the board of governors of the Federal Reserve System isn't the only part of the federal bureaucracy that implicates Congress's power of the purse. And so there's a very important Supreme Court case from the 1980s called Bauscher v. Sinar, which was about the emergency deficit reduction act, where Congress was trying to ensure that the government didn't spend over certain spending levels to help bring down the deficit in the 1980s. And as part of that law, it was a bipartisan compromise with the Reagan administration, an officer called the Comptroller General, who the president cannot remove at will, was given the authority to calculate certain caps. And the court struck that down, said the Comptroller General cannot have that power because that's an executive function. And this is an officer the president doesn't have the right to remove it. And during that period, people thought...”
2026-07-17 · Odd Lots · Lev Menand and Nathan Tankus on Why Fed Independence Is Now Hanging by a Thread · IDENTIFIED FROM THE TRANSCRIPT · source
“Actual constitutional scheme to let the president have access to the money printing machine. And Alexander Hamilton was referencing this. And this goes back really to like Magna Carta in the Anglo-American legal tradition. The idea that the way we ensure we don't have a tyrannical executive is that the legislature controls access to supply. And Sir Paul Tucker, the former deputy governor of the Bank of England, has been making this argument for many years now, that that's really the logic. Now, why didn't the court embrace it? Why didn't the court embrace it? Well, one problem is it's really inconsistent with their theory of the constitution separation of powers, which is a formalist theory, because it says things that impede functionally on Congress's power of the purse, well, we can't allow the president to”
2026-07-17 · Odd Lots · Lev Menand and Nathan Tankus on Why Fed Independence Is Now Hanging by a Thread · IDENTIFIED FROM THE TRANSCRIPT · source
“Called the unitary executive and the Federal Reserve. Distinctive about the Federal Reserve Board, and this does tie exactly to what Nathan was saying, is that its independence implicates the ability of the legislature to use the power of the purse to check the executive, which was actually at the heart of the framers' understanding of the separation of powers. Alexander Hamilton said we're going to be safe under this Constitution because the sword is in one hand and the purse is in the other.”
2026-07-17 · Odd Lots · Lev Menand and Nathan Tankus on Why Fed Independence Is Now Hanging by a Thread · IDENTIFIED FROM THE TRANSCRIPT · source
“Yeah, there's a lot of great weird footnotes in these opinions. And footnote six, the Chief Justice Roberts is saying, well, our exception for the Fed is as the Federal Reserve is currently constituted and with its existing enforcement authorities. Just to head off at the pass, the idea that, well, let's go power by power and see whether these are actually, each power the Fed has consistent with Alexander Hamilton's vision. Because if you start doing that, like things start to get really messy and confusing.”
2026-07-17 · Odd Lots · Lev Menand and Nathan Tankus on Why Fed Independence Is Now Hanging by a Thread · IDENTIFIED FROM THE TRANSCRIPT · source
“But they could be. And so currently what the Trump administration is doing is relaxing the equity capital requirements on banks. This is stimulative. This is monetary stimulus. That's not why they're doing it, but it is stimulating the economy right now. And the court has no easy way out of that, which is why you have this weird footnote six in the cook opinion. I love weird.”
2026-07-17 · Odd Lots · Lev Menand and Nathan Tankus on Why Fed Independence Is Now Hanging by a Thread · IDENTIFIED FROM THE TRANSCRIPT · source
“Which is overnight interest rate policy. That's how the Federal Reserve pursues its section to a mandate currently through regulation of the Federal Reserve banks, which are government chartered banks, but they're nominally outside of the government. They're membership cooperatives owned by the investor-owned banks like JPMorgan Chase. So the Federal Reserve Bank of New York, that is a bank. That is outside of the government. The Federal Reserve Board of Governors, that is a government regulator, that is inside of the government. And all the Board of Governors does is regulate stuff. And so it carries out monetary policy through regulations. And it also does bank regulations, but those are all monetary policy in a broader sense. They're not used to adjust monetary conditions for macroeconomic reasons generally.”
2026-07-17 · Odd Lots · Lev Menand and Nathan Tankus on Why Fed Independence Is Now Hanging by a Thread · IDENTIFIED FROM THE TRANSCRIPT · source
“They're already saying it. Yeah. So there are people saying that. Here's the tricky situation. The Federal Reserve Board of Governors, which is the seven-member multi-member commission that Congress created in 1913, which is a government body whose officers are principal officers of the United States who have limits on their removal that the president, the court has now said, has to respect. That body is not a bank. has no balance sheet. It can make no laws. It does not have what we think of as the Fed's balance sheet. It can make no loans. It is a government agency and it regulates banks and it conducts quote unquote monetary policy”
2026-07-17 · Odd Lots · Lev Menand and Nathan Tankus on Why Fed Independence Is Now Hanging by a Thread · IDENTIFIED FROM THE TRANSCRIPT · source
“You're looking for a restriction on gun rights that existed at the founding and trying to have an analog. There was no restriction as reflected in the Bank of the United States on the president's removal power over executive officers. Alexander Hamilton didn't want a government bank in his report on a national bank, he says a government bank is a bad idea. We need an investor-owned bank. And so they're just misreading Hamilton.”
2026-07-17 · Odd Lots · Lev Menand and Nathan Tankus on Why Fed Independence Is Now Hanging by a Thread · IDENTIFIED FROM THE TRANSCRIPT · source
“Let's just go back to it for a second because Alexander Hamilton thought independent monetary policy was important, which is true. But the huge mistake that they're making, just fundamental logical failure here is that the first bank of the United States, which is what Alexander Hamilton was advocating for, was a investor-owned commercial bank. It was not in any way abrogating the president's rights to remove executive officers. Nobody at the First Bank of the United States was an executive officer. It's not a government body. It's not a regulator. It's not part of a government. The government originally subscribed to 20% of the shares, but then sold them. It was a private commercial bank. And so it's just a misapplication of the Second Amendment Rohemia analysis. You know, in the Rahemian analysis,”
2026-07-17 · Odd Lots · Lev Menand and Nathan Tankus on Why Fed Independence Is Now Hanging by a Thread · IDENTIFIED FROM THE TRANSCRIPT · source
“Yeah, the tension is just that if you think that the president is there to check Congress by executing the law as the president sees fit and not as Congress forces the president, then you're going to experience attention from the fact that the president can't make the appointments the president wants to help the president carry out the president's duty. The president is stuck getting the senate to consent, otherwise that person can't serve. And that does reflect a sense that the president is not absolute in law execution. And you might think that it follows naturally that Congress can shape the executive branch through limits on removal. But that is what this court just said. Congress can't do except for the Fed.”
2026-07-17 · Odd Lots · Lev Menand and Nathan Tankus on Why Fed Independence Is Now Hanging by a Thread · IDENTIFIED FROM THE TRANSCRIPT · source
“One real tension in what's known as formalist separation of powers theory is the fact that, and they can't really get around this, the Constitution is blending functions across departments, as they would have called it back then, not branches all over the place. So you're mentioning the fact that the appointment's power by the plain text of the Constitution is shared with the Senate. It's a joint appointment. The vice president of the United States and executive officer serves as the president of the Senate. The president can veto legislation all over the place. Powers are blended. Formal a separation of powers theory basically accommodates this by saying the constitution structure requires that these powers be completely separated except where it explicitly says they can be blended. And they can't really...”
2026-07-17 · Odd Lots · Lev Menand and Nathan Tankus on Why Fed Independence Is Now Hanging by a Thread · IDENTIFIED FROM THE TRANSCRIPT · source
“Everybody, is there a history and tradition of this? Okay, there's so many weird things about this, one of which is nobody looked to see if there was a history and tradition for the FTC in the slaughter case. So they decide that without mentioning this. And then the cook case, they're like, well, you know, let's look to see. And then ra, here brings us back to Alexander Hamilton. Voila, there is a history and tradition because Alexander Hamilton said independent monetary policy, that's very important. I mean, I have a lot of thoughts, but”
2026-07-17 · Odd Lots · Lev Menand and Nathan Tankus on Why Fed Independence Is Now Hanging by a Thread · IDENTIFIED FROM THE TRANSCRIPT · source
“Exactly. And so they say, well, we look to the sorts of regulations that took place in the founding period. And then we understand that that is those exceptions are okay. And so there's now Second Amendment jurisprudence has turned into this wild game with hiring all these early American historians and all these arguments about what type of firearm rules there were in the 1780s to try to decide what analogs Congress is allowed to have or states are allowed to have.”
2026-07-17 · Odd Lots · Lev Menand and Nathan Tankus on Why Fed Independence Is Now Hanging by a Thread · IDENTIFIED FROM THE TRANSCRIPT · source
“And then that gave rise to the cook case as a four-cause removal. They've made some innovations since then. And the big innovation is to bring in Second Amendment doctrine. And the way the Second Amendment doctrine works briefly is that they understand the Second Amendment to be this absolute right to bear arms. And then the question is, well, there must be some abrogations of those rights. It's such open text. We can't possibly enforce it that way. How do we know when it's okay to abrogate that?”
2026-07-17 · Odd Lots · Lev Menand and Nathan Tankus on Why Fed Independence Is Now Hanging by a Thread · IDENTIFIED FROM THE TRANSCRIPT · source
“To the independence of that doctrine that is supporting the carve out. So last year, some listeners might recall some court watchers might recall that there was this decision, Wilcox, where they gave us a single sentence saying, sort of indicating to the president, we're kind of looking the other way as you remove all these other government officials, but the Fed will be different.”
2026-07-17 · Odd Lots · Lev Menand and Nathan Tankus on Why Fed Independence Is Now Hanging by a Thread · IDENTIFIED FROM THE TRANSCRIPT · source
“It's great that Nathan brought up the science because if you were building the government from scratch in light of the experience we're having right now in the second Trump term, you would think that the way we hand out NIH and NSF grants, which is critical to our research university's functioning, should be independent of partisan politics. But when it was set up, it's just, you know, it's part of the executive branch. And so norms were undergirding that. And so no one had looked closely before, you know, at whether that was the right structure. And so the fact that the Fed had this structure that was like the ICC is somewhat historically contingent at the end of the day.”
2026-07-17 · Odd Lots · Lev Menand and Nathan Tankus on Why Fed Independence Is Now Hanging by a Thread · IDENTIFIED FROM THE TRANSCRIPT · source
“Of course, through the 20th century, these agencies evolve. They start to pivot towards rulemaking and they do less and less of their policymaking through adjudication, through case by case. That's an unfair method of competition. Company X, let's have a sort of in-house FTC assessment. They start to write general rules. And, you know, obviously we're very familiar now like capital rules. That's like a big area where the Fed is active. But the stress tests you can think of, actually, as sort of this type of adjudication this body was set up for in 1913. Expert judgment does this large bank have enough capital. And that was a judgment that Congress felt was quasi-judicial. So can't be partisan. There's due process, but sufficiently technical that it wasn't something you wanted the Article 3 judges trying to figure out.”
2026-07-17 · Odd Lots · Lev Menand and Nathan Tankus on Why Fed Independence Is Now Hanging by a Thread · IDENTIFIED FROM THE TRANSCRIPT · source
“And that's sort of the germ of what became the modern American administrative state with the sort of court-like bodies. And so the Federal Reserve Board, which was created in 1913, is an interstate commerce commission style body for banking. They're supposed to be judges of the banking system who have the ability to adapt the banking law to circumstances case by case in a way that wouldn't work very well if we were to use the federal judiciary and prosecution and have statutes cash down in that manner. And that was how Congress actually came to this. And so communications, these are advanced economic sectors that need specialist judgment applied.”
2026-07-17 · Odd Lots · Lev Menand and Nathan Tankus on Why Fed Independence Is Now Hanging by a Thread · IDENTIFIED FROM THE TRANSCRIPT · source
“So, the first one of these independent multi member regulatory commissions was called the Interstate Commerce Commission, and Congress created it in 1887. And Congress envisioned it as like a specialized court. Because up until that point, railroad regulation was enforced through the federal courts. You would have a bunch of statutes, and then you would bring cases against the railroads and federal judges would decide them. And Congress was dissatisfied by the ability of generalist judges to adjudicate these disputes. They came to think, actually, we need specialists who are experts in railroads who have some understanding of these complex modern markets who are going to develop the law that our common law-based system of economic regulation was obsolete.”
2026-07-17 · Odd Lots · Lev Menand and Nathan Tankus on Why Fed Independence Is Now Hanging by a Thread · IDENTIFIED FROM THE TRANSCRIPT · source
“Created a bit of a dissonance that we were about to say actually this thing the United States has been promoting around the world for decades now it's unconstitutional here in the United States this created incredible dissonance it's not to say that nonpartisan communications policy isn't important or that legal stability in our capital markets regulation by having a bipartisan commission structure for the SEC isn't important it's just that there wasn't this enormous amount of academic attention and then sort of proselytizing globally about it nor is there much of a sense here I think that we already have a very political bureaucracy in the United States the Treasury Department layers upon layers of people or political appointments and in a lot of our other advanced economies like it's just taking”
2026-07-17 · Odd Lots · Lev Menand and Nathan Tankus on Why Fed Independence Is Now Hanging by a Thread · IDENTIFIED FROM THE TRANSCRIPT · source
“A central bank in a novel in an economic I think an important part of the context here is the post Volcker shock development in the economics profession of a whole literature that says You need an independent central bank in order to provide monetary stability. And that literature was very influential. And the United States government spent decades. And so did the IMF going around the world and persuading other countries to change their laws to make their central banks independent of their finance ministries. And this is somewhat contingent that this literature”
2026-07-17 · Odd Lots · Lev Menand and Nathan Tankus on Why Fed Independence Is Now Hanging by a Thread · IDENTIFIED FROM THE TRANSCRIPT · source