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96 Notre Dame L. Rev. 1 (2020-2021)

handle is hein.journals/tndl96 and id is 1 raw text is: ARTICLES

IS THE FEDERAL RESERVE CONSTITUTIONAL?
AN ORIGINALIST ARGUMENT FOR
INDEPENDENT AGENCIES
Christine Kexel Chabot*
Originalists have written off the Federal Reserve's independent monetay policy decisions as
an unconstitutional novelty. This Article demonstrates that the inderpedent structure of the
Federal Reserve dates back to a Founding-era agency known as thr Siniing 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 ide>rpendent 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 mem-
bers 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 Siniing Fund Commission
establishes that the Federal Reserve s independent structure has an impeccable originalist prove-
nance and does not violate the Constitution.
©   2020 Christine Kexel Chabot. Individuals and nonprofit institutions may
reproduce and distribute copies of this Article in any format at or below cost, for
educational purposes, so long as each copy identifies the author, provides a citation to the
Notre Dame Law Review, and includes this provision in the copyright notice.
*  Associate Director for Regulation, Institute for Consumer Antitrust Studies, and
Distinguished Scholar in Residence, Loyola University Chicago School of Law. Thanks to
Emily Berman, Jason Kilborn, Heidi Kuehl, Matthew Sag, Lawrence Solum, Barry Sullivan,
and Spencer Waller for helpful comments on earlier drafts, and thanks to Anna Kenneally
for outstanding research assistance. I am also grateful to the Loyola Law School Faculty
Research Support Fund for financial assistance. All errors are my own.

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