Is the Federal Reserve Constitutional? An Originalist Argument for Independent Agencies

44 Pages Posted: 2 Oct 2019 Last revised: 24 Jun 2020

Date Written: September 22, 2019

Abstract

Originalists have written off the Federal Reserve’s independent monetary policy decisions as an unconstitutional novelty. This Article demonstrates that the independent structure of the Federal Reserve dates back to a founding-era agency known as the Sinking Fund Commission. Like the Federal Reserve, the Commission conducted open-market purchases of U.S. securities with substantial independence from the President. The Commission’s independent structure was proposed by Alexander Hamilton, passed by the First Congress, and signed into law by President George Washington. Their decisions to create an independent Commission with multiple members to check the President and one another — and to include the Vice President and Chief Justice as Commissioners who could not be replaced or removed by the President — belie the notion that such independence violated the newly minted Constitution. The Sinking Fund Commission establishes that the Federal Reserve’s independent structure has an impeccable originalist provenance and does not violate the Constitution.

Keywords: Federal Reserve, unitary executive, removal power, independent agencies, appointments, Alexander Hamilton, originalism, First Congress, Sinking Fund Commission

JEL Classification: G18, G28, H11

Suggested Citation

Chabot, Christine Kexel, Is the Federal Reserve Constitutional? An Originalist Argument for Independent Agencies (September 22, 2019). Notre Dame Law Review, Forthcoming , Available at SSRN: https://ssrn.com/abstract=3458182 or http://dx.doi.org/10.2139/ssrn.3458182

Christine Kexel Chabot (Contact Author)

Loyola University Chicago School of Law ( email )

25 E. Pearson
Chicago, IL 60611
United States
8477804832 (Phone)

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