Save Humphrey’s Executor. Save the Supreme Court (Sort Of)
With a fervor nearly resembling its antagonism toward Roe v. Wade, the conservative legal movement has yearned since the 1980s for the Supreme Court to overturn a far less prominent decision, Humphrey’s Executor v. United States, the 1935 case that upheld congressional power to create independent regulatory agencies. Independent agencies are administrative bodies whose principal officers may be fired by the president only for good cause. These include the Federal Trade Commission (FTC), the National Labor Relations Board (NLRB), the Merit Systems Protection Board (MSPB), and the Board of Governors of the Federal Reserve System, among many others. Conservatives have long held that government administrators are inherently biased in favor of progressivism; that supposed bias was a theme, for example, of Project 2025. Unless presidents can remove key executive branch decision makers at will, it becomes harder for a conservative president like Ronald Reagan, the Bushes, or now Donald Trump to bend the bureaucracy towards a right-wing agenda.
Trump v. Slaughter, the case arising from Trump’s dismissal without cause of two Democratic FTC commissioners, looks to be the occasion for movement conservatives’ wish fulfillment. The Supreme Court, led by a chief justice who is a veteran of the Reagan White House and an early champion of unitary executive theory, appears ready to deep-six Humphrey’s Executor or apply it to only a few agencies with limited regulatory impact. At the Court’s December 8 oral argument, Chief Justice John Roberts echoed Trump’s Solicitor General, D. John Sauer, in referring to Humphrey’s Executor as “a dried husk.” That’s not a good sign for Humphrey’s Executor fans, of whom I am one.
Thus, I do appreciate that it is likely a fool’s errand to argue the Roberts Court should uphold Humphrey’s Executor in full and on grounds of stare decisis. Stare decisis, which is Latin for “standing by that which has already been decided,” is the principle that judges should not lightly overrule precedent simply on the belief that their judicial predecessors got something wrong. Unfortunately, the Court’s paeans to stare decisis appear most often as a preface to a majority’s explanation why they are departing from it. Consider this passage:
Stare decisis plays an important role in our case law, and . . . serves many valuable ends. It protects the interests of those who have taken action in reliance on a past decision. It “reduces incentives for challenging settled precedents, saving parties and courts the expense of endless relitigation. It fosters “evenhanded” decisionmaking by requiring that like cases be decided in a like manner. It “contributes to the actual and perceived integrity of the judicial process.” And it restrains judicial hubris and reminds us to respect the judgment of those who have grappled with important questions in the past.
This explanation for stare decisis appears in Dobbs v. Jackson Women’s Health Organization, the 2022 opinion that overturned Roe v. Wade. Indeed, before dispatching Roe, Justice Samuel Alito even quotes from a book authored by Justice Neal Gorsuch: “Precedent is a way of accumulating and passing down the learning of past generations, a font of established wisdom richer than what can be found in any single judge or panel of judges.” Given the December oral argument, similar sentiments will likely appear in the majority’s Slaughter opinion just before an explanation of why precedent does not govern this case. After all, the Roberts Court has consistently adhered to a theory of unilateral presidential authority at odds with constitutional text and history. None of its tenets is more fundamental than the proposition that the Constitution gives presidents the power to fire at will the heads of all executive branch agencies.
But overturning or limiting Humphrey’s Executor would be a missed opportunity, not only for sound constitutionalism, but also for the Court itself. As of August, the public’sview of the Court remains at an all-time low. Public opinion of the Court has become highly polarized, a bad sign for its legitimacy. In a recent Pew Research Center poll, just 26 percent of Democrats and Democratic-leaning independents view the Supreme Court favorably. Before the Court overturned Roe v. Wade, nearly two-thirds of Democratic respondents had a favorable impression of the court. An important new paper by the constitutional scholar Bruce Ackerman argues that the quality of the Court’s reasoning in Slaughter will be crucial to restoring the Court’s public reputation. Over the last 11 months, the Court has repeatedly enabled Trump’s worst power grabs by issuing emergency orders without careful argument and most often without detailed (or any) majority analysis. Now that the justices must face a central issue of presidential power, judicial reasoning that meets the moment would buttress the prestige of an institution that, in Alexander Hamilton’s words, can rely on “neither FORCE nor WILL, but merely judgment.” An opinion upholding Humphrey’s Executor would help to counteract the impression that the current Court is handmaiden to a frequently lawless Trump administration.
The opinion the Court should write would have two major parts. The first would assess the arguments for applying stare decisis, employing the Court’s usual criteria. The second would explain how, despite some theoretical tension between them, Humphrey’s Executor can live comfortably with the Roberts Court’s earlier cases on presidential removal. The most significant of these is Seila Law v. Consumer Financial Protection Bureau, a 2020 case that concluded that presidents have unlimited constitutional authority to fire the principal officers of single-headed agencies, such as the Environmental Protection Agency and the cabinet departments. Seila Law rests on a theory of democratic accountability that multimember independent agencies do not undermine. Moreover, a rule that gives Congress a choice between creating single-headed agencies over which presidents must have removal power and multimember commissions that may be insulated from at-will firing echoes earlier case law. I do not mean to be coy—I think Seila Law was very, very wrong. My point is, however, that in the real world of public administration, Seila Law and Humphrey’s Executor can coexist.
Although the Court’s opinions vary in their articulation of standards for applying stare decisis, they include, to quote from a 2020 Roberts opinion, the prior doctrine’s “administrability, its fit with subsequent factual and legal developments, and the reliance interests that the precedent has engendered.” Arguably, the most important factor is the quality of the reasoning when the precedent was written. However, as Roberts said at his 2005 confirmation hearing: “It is not enough to vote to overrule a case that you may think the prior decision was wrongly decided.” Or as Roberts put it in 2020: “For precedent to mean anything, the doctrine must give way only to a rationale that goes beyond whether the case was decided correctly.”
Of the foregoing factors, a couple incontrovertibly favor upholding Humphrey’s Executor. Before the Roberts appointment, the Court had had no difficulty deciding removal cases in the precedent’s wake. A unanimous 1958 decision in Wiener v. United States upheld the independence of a post-World War II War Crimes Commission. Thirty years later, with a new bench other than Justice William Brennan, who was still serving, the Court voted 7-1 (with Justice Anthony Kennedy recused) in Morrison v. Olson to uphold the post-Watergate independent counsel statute. Going forward, a line dividing the tenure rules applicable to single-headed agencies from those applicable to multiheaded agencies would likewise be easy to administer.
Nor is there any doubt that Congress has repeatedly relied on Humphrey’s Executor since 1935 to create roughly two dozen new independent multimember boards and commissions. At oral argument, Solicitor General Sauer asserted that, because Humphrey’s Executor was wrong, Congress’s reliance on it shouldn’t count. “The relevant reliance interest,” he urged, “is the reliance of the American people in separation of powers in protect defending our liberties.” Sauer’s position, however, is mere wordplay. It is doubtful you can find any American who believes they are less free because presidents can fire the heads of some government agencies only for good cause. On the other hand, as Commissioner Slaughter’s counsel argued, there is no way of knowing if Congress would have ever created the agencies—or given them the powers they hold—had it not had confidence that it could vest those particular functions in administrators protected from arbitrary removal.
Likewise, factual and legal developments since the New Deal have not eroded the vitality of Humphrey’s Executor. Acolytes of unitary executive theory are wont to point out that the Federal Trade Commission of 2025 regulates more extensively and relies more often on rulemaking, rather than trial-like adjudication, to implement policy than in 1935. It therefore supposedly follows that Congress’s intrusion into executive authority 90 years ago has somehow metastasized into something more threatening to the separation of powers. What this argument ignores is the simultaneous evolution of American administrative law generally, under which the FTC and its sister agencies in 2025 have far greater legal and democratic accountability than they did in the 1930s. The most pertinent development was Congress’s enactment in 1946 of the Administrative Procedure Act (APA), which regularized the procedures for agency rulemaking and adjudication. With few exceptions, agencies issuing significant rules must publish their proposals and provide the public with meaningful opportunities to comment. Federal courts for the last half century have reviewed agency policymaking with a degree of rigor hardly anticipated before World War II. Not only must agencies consider public input, but, when final rules are published, they must satisfy courts that their decisions took significant public concerns into account. To pass muster in court, an agency must logically explain the analytic connections between its policy choices and the statutory mission it is pursuing. Indeed, to help ensure the soundness of FTC rulemaking regarding unfair or deceptive trade practices, Congress in 1980 imposed additional requirements to promote greater transparency and thoroughness in the FTC’s cost-benefit analysis of proposed initiatives.
The legal developments after Humphrey’s Executor that are allegedly a poor fit with that precedent are the Roberts Court’s decisions. The tension arises not only from the current majority’s reading of the Constitution, but more profoundly because the conservative justices approach constitutional interpretation in separation-of-powers cases with a methodology unlike that of the Court’s modern predecessors. The majority treats the Constitution’s references to legislative, executive, and judicial power—and the Framers’ alleged understanding of those powers—as well-defined formal categories that establish uncrossable formal legal boundaries between the branches. Such a view draws sustenance from the Court’s 1926 decision in Myers v. United States, in which Chief Justice (and former President) William Howard Taft took a similarly formalist approach in explaining why it was constitutionally impermissible for Congress to require the Senate’s consent for the presidential removal of a postmaster, who had been appointed with Senate consent.
The Humphrey’s Executor Court took a different approach. Speaking of Myers, the Court’s unanimous opinion explained that Taft’s theorizing about the separation of powers went beyond the holding of that earlier case and did not govern whether Congress could protect agency administrators from at-will presidential dismissal. As cogently explained in a Slaughter amicus brief filed by two legal historians, Noah Rosenbloom and Nathaniel Donahue, the Humphrey’s Court drew on a well-established framework for “distinguishing between duties and powers afforded to administrative agencies by statute that fell within the executive’s sole discretion, and those that did not—and therefore could reasonably be subject to limits imposed by the other branches.”
Among the powers the Constitution did not categorically assign to the executive was the administrative version of prospective lawmaking through agency rulemaking commonly labeled, “quasi-legislative.” To the extent agencies engage in administrative adjudication—deciding, for example, what constitutes “unfair methods of competition” or “unfair and deceptive trade practices—they would be exercising powers long considered “quasi-judicial” because they bear close resemblance to the work of courts. (One way of seeing that the FTC’s functions are not “purely executive” in the constitutional sense is that the agency’s adjudication function could have been left to the courts, just as Congress could have reserved to itself the rulemaking delegated to the FTC.) Congress, in protecting officials who exercise such powers from at-will removal, is not preventing the president from controlling any function that the Constitution vests directly in the chief executive. The postmaster who prevailed in Myers, the Court wrote, was “charged with no duty at all related to either the legislative or judicial power.” As for the FTC: “To the extent that it exercises any executive function, as distinguished from executive power in the constitutional sense,” the Court continued, “it does so in the discharge and effectuation of its quasi legislative or quasi judicial powers, or as an agency of the legislative or judicial departments of the government.” This pragmatic way of characterizing the functions of government agencies was “echoed in the federal courts long before Humphrey’s Executor,” as documented by Rosenbloom and Donahue.
For these reasons, Humphrey’s Executor cannot be dismissed, as the Dobbs Court dismissed Roe v. Wade as “egregiously wrong from the start.” On the contrary, it provided a coherent and secure understanding of the relationship between the president and administrative agencies that the Roberts Court destabilized.
The weightiness of the Court’s 1935 opinion is underscored by its rare unanimity. The nine Justices covered a philosophical spectrum from the regulatory state’s most ardent opponents—the so-called “Four Horsemen”—to the leading progressive Justices of the early 20th century. One of the conservative four, Justice George Sutherland wrote the Court’s opinion, even though he sided with the majority in Myers. He was joined by his three fellow “Horsemen,” Pierce Butler, James Clark McReynolds, and Willis Van Devanter, two of whom were also in the Myers majority, as were their liberal colleague Justice Benjamin Cardozo and Columbia’s former law dean and fellow progressive,Justice Harlan Fiske Stone. Justice Owen Roberts, the swing justice of his day, had been appointed too late for the Myers decision, as had Chief Justice Charles Evans Hughes, who had been the Republican presidential candidate in 1916. Rounding out the nine was Justice Louis Brandeis, one of the three Myers dissenters. When Justice Sonia Sotomayor pointed out this bench’s strength during the Slaughter oral argument, Justice Brett Kavanaugh quipped to the solicitor general: “You have Taft and Scalia, right? That’s not—not too shabby.” This retort misses the point. Not only were Taft and Scalia not colleagues, but neither ever commanded a unanimous Court on presidential removal or separation-of-powers questions.
For all the conceptual tension between the Court’s separation of powers jurisprudence in 1935 and its doctrinal impulses today, Humphrey’s Executor—in the real world of public administration—can live easily with the Roberts Court decisions affecting single-headed agencies. Indeed, the Court’s upholding of Humphrey’s Executor would be broadly consistent with the philosophical commitments that, according to the current majority justices, most fundamentally undergird the Roberts Court’s separation-of-powers jurisprudence—history-based constitutional adjudication and political accountability through presidential elections. This would be the second half of a sound Slaughter majority opinion.
First, history. A significant part of the Slaughter argument was the significance for constitutional originalists of the Sinking Fund Commission, an administrative body created by the First Congress. Its members included the Chief Justice of the United States and the Vice President, neither of whom could be dismissed from their respective offices. Research by Victoria Nourse of Georgetown Law also shows that multimember commissions that Congress sometimes calls “independent” have a long historical pedigree. As she explains: “From 1789-1840, Congress created dozens of multimember commissions on everything from planning the ‘seat of government,’ to the mint, to patents, to canals, turnpikes, the District of Columbia, bankruptcy commissions, the military, and a whole host of treaty commissions including those related to Indian affairs.” None of these statutes had explicit clauses limiting removability to good cause, which started in 1887 with the Interstate Commerce Commission. But “in some cases, the Founders called these early commissions ‘independent,’ deferred to their judgments as ‘final,’ and demanded that the members be ‘impartial.’” Upholding tenure protection for modern-day multimember bodies respects Congress’s judgment on the value of a historically rooted agency structure that promotes independence and impartiality, qualities seen as essential to fulfilling certain government functions since the founding.
Likewise, the Court should acknowledge that possessing a formal power of at-will removal has not been necessary to give presidents influence over independent agency policymaking. Congress typically authorizes the president to designate each agency’s chair, and early vacancies often give presidents opportunities to create majorities. Thus, we see the Federal Communications Commission’s stance on so-called “net neutrality” has swung like a pendulum from less to more regulatory and back with every party change from George W. Bush forward. Moreover, presidents of both parties assert their constitutional authority to require reports from independent agencies as to even anticipated rulemaking, thus giving them early notice of any proceeding on which to offer their views. (The legality has yet to be tested of a Trump executive order purporting to require independent agencies to submit proposed rules to the Office of Management and Budget for approval and to follow interpretations of law pronounced by the president and attorney general.) Even if one accepts the contestable proposition that elections give the incumbent a mandate to swing all federal policymaking in a specific partisan direction, independent regulatory agencies have shown they respond to voters’ decisions.
Indeed, the critical feature of tenure protection for agency administrators is not that such provisions render agencies politically unresponsive. It is that they prevent presidents from undermining these agencies’ intended bipartisan character, kneecapping their missions by depriving them of a quorum, or removing administrators unwilling to reward a president’s friends or punish his enemies. No one should overlook that, in his treatment of both single- and multiheaded agencies, Trump has moved such abuses from the realm of mere hypotheticals into reality. Ironically, despite his current antagonism towards Humphrey’s Executor, it was Kavanaugh, who, as a judge on the D.C. Circuit, outlined the strongest arguments in any judicial opinion for treating multimember agencies differently from single-headed agencies. The modern independent agency design is intended to foster deliberation, he noted, to provide each party with a monitoring system through the capacity for dissent, to reduce the prospects for agency “capture” by special interests, and to promote impartiality in the administration of statutes. It is these virtues that agency independence protects.
The Court could note that, by allowing Congress to create independent multimember agencies, it would echo Chief Justice Taft’s analysis in Myers. While Taft was working on his majority opinion, Justice Stone was urging him to avoid any suggestion that tenure protections for so-called inferior officers—that is, lower levels in the civil service—might be constitutional. Yet Taft’s Myers opinion rejects Harlan’s advice. According to Taft, when either the Constitution or Congress designates the president to appoint an officer, the chief executive must also have the power to remove that official. But the Constitution, Taft noted, gives Congress discretion to vest the appointment of inferior officers in heads of departments, instead of the president. In such cases, the removal power lies with department heads, and removability may be limited to good cause. Taft gave Congress a choice: Put administrative functions in the hands of someone the president appoints and live with providing the president with removal power, too. Or put those functions in an inferior officer appointed by an agency head and impose whatever removal conditions you think appropriate. The Roberts Court could do likewise, linking Congress’s control over removability to its preference for any proposed agency’s single-headed or multi-member model. Such balancing respects Congress’s primacy in structuring the executive branch while insisting on robust presidential control over the administrative state.
Doing this would save the Court from further challenges in which it might repeatedly appear that the justices were voting their policy preferences rather than their legal conclusions. At oral argument, the conservative justices did not seem to accept the proposition that overturning Humphrey’s Executor would doom independent agencies. Indeed, in an opinion last spring accompanying an order that blocked a lower court from temporarily keeping dismissed agency commissioners in place, the majority tried to suggest a principle as to why the Board of Governors of the Federal Reserve System could remain independent even if Humphrey’s were overruled. The Federal Reserve, the Court wrote, “is a uniquely structured, quasi-private entity that follows in the distinct historical tradition of the First and Second Banks of the United States.” The problem with this “principle” is that there is no resemblance between early banks and the Fed. As Columbia law professor Lev Menand points out, the Board of Governors of the Federal Reserve System is a regulatory agency, and the First and Second Banks of the United States were banks: “The Federal Reserve Board is not like the First or Second Bank at all. It follows in a completely different—one might even say competing—historical tradition. That tradition is the tradition of expert, multimember commissioner regulation of economic sectors.” If the Court overturns Humphrey’s Executor, it will find itself pressed to create bespoke exceptions. Instead of Congress designing the regulatory state, that job would shift to the judiciary, where it does not belong.
Affirming the vitality of Humphrey’s Executor would not undo the Court’s self-inflicted damage from deciding too many cavalier separation-of-powers rulings and enabling the Trump Administration’s constitutional workarounds. However, by deciding an important issue in a manner at odds with today’s conservative legal movement, the Court would provide a counterweight to its frequent judicial overreach, extended too often in the service of Trump and his willful administration. In Ackerman’s words, such an opinion would honor the “ideal of reasoned constitutionalism” advanced as early as Marbury v. Madison and mark a “first step in restoring the Court’s standing as a serious defender of principled adjudication.” It would underscore Justice Gorsuch’s off-the-bench acknowledgement that precedent may offer “a font of established wisdom richer than what can be found in any single judge or panel of judges,” including the Roberts Court. I wish only that the oral argument in Slaughter gave me more reason—or really any reason—to expect so constructive a development.
The post Save Humphrey’s Executor. Save the Supreme Court (Sort Of) appeared first on Washington Monthly.