The bedrock of the United States Constitution’s remarkable longevity is the separation of powers. Many other systems of government make room for a vigorous executive, a representative legislature, or an independent judiciary. None have been nearly as effective at preserving all three simultaneously. The more strictly those powers are separated, as John Adams observed, the more one can say that we have “a government of laws, not of men” — and the less effectively any branch can invade the liberties of the people or the prerogatives of state and local government.
Constitutional mischief, however, has long watered down the Founding Fathers’ original concept. Much of the trouble dates back to Woodrow Wilson’s competing vision of an administrative state operating under a “living constitution” never submitted to the voters, and to the New Deal. The Supreme Court has recently struck major blows for the original design, such as when it ruled that administrative agencies cannot oust the courts from their role as interpreters of the law or deny citizens their right to jury trials by assigning cases to administrative tribunals. It has rigorously policed efforts by agencies to decide major legislative questions without a clear mandate from Congress.
Next on the chopping block is the concept of “independent” agencies that exercise executive power but are outside of executive control and accountability. How can the president exercise “the executive power of the United States,” vested in him by Article II, if he cannot fire people who exercise executive power in ways opposed to his policies? How can he carry out his duty to “take Care that the Laws be faithfully executed” if others are free to disregard those laws he aims to enforce? To whom can the people complain if the executive job is not done, or done badly, if not the executive?
These were the questions before the Court as it heard arguments Monday morning in Trump v. Slaughter. The case comes to the Court from Donald Trump’s effort to fire a member of the Federal Trade Commission. The FTC was created under a Wilson-era statute that restricted presidents to firing its commissioners for cause, precisely for the purpose of insulating them from political pressure — code for making them independent of the voters and impervious to elections. The removal protections were upheld by the Court in Humphrey’s Executor v. United States (1935).
Humphrey’s Executor theorized that the FTC was not a purely executive agency, but instead exercises elements of both legislative and judicial power. As Justice Elena Kagan observed, “They do a lot of legislating, and they do a lot of judging. . . . They’re doing a lot of rulemaking, and they’re doing a lot of adjudications, leading to enforcement.” But that only underlines why the agency’s constitutional problems run deeper than who can fire its heads. We agree with Justice Neil Gorsuch, who asked, “Is the answer perhaps to . . . recognize that Congress cannot delegate its legislative authority?”
Humphrey’s Executor has been under fire from defenders of a unitary executive since Justice Antonin Scalia’s brilliant lone dissent in Morrison v. Olson (1988), and was eroded in cases such as Free Enterprise Fund v. Public Company Accounting Oversight Board (2010) and Seila Law LLC v. Consumer Financial Protection Bureau (2020), both of them written by Chief Justice John Roberts. Now, Trump is rightly asking the Court to overrule Humphrey’s Executor outright.
The justices appear ready to do so. The signs of Humphrey’s Executor’s imminent demise were clear enough over the summer, when a 6–3 majority stayed lower-court orders that had tried to restrain Trump from firing members of the Consumer Product Safety Commission, the National Labor Relations Board, and the Merit Systems Protection Board. Roberts told Amit Agarwal, arguing for the fired FTC commissioner, that “the one thing Seila Law made pretty clear, I think, is that Humphrey’s Executor is just a dried husk of whatever people used to think it was . . . putting Humphrey’s Executor aside, what’s your next good case?” That’s as clear a signal as one could hope that Humphrey’s Executor is circling the drain.
Not a moment too soon. The power of the FTC is back in the news this week with the need for its regulatory approval hanging over a potential Netflix acquisition of Warner Brothers. That’s precisely the sort of decision for which someone in the government should be politically accountable.
Monday’s arguments laid bare the implications of Humphrey’s Executor. Agarwal didn’t help matters by insisting that Congress could convert more cabinet-level agencies into independent commissions, taking broad civil enforcement powers out of the president’s hands. When Gorsuch asked him, “Does [the president] have a duty to faithfully execute all the laws?” Agarwal replied, “I would say no.” Justice Brett Kavanaugh observed that, under Agarwal’s theory, removal restrictions can be manipulated by giving tenure to current political appointees “to thwart future presidents of the opposite party.”
Justice Ketanji Brown Jackson argued that Congress could assign major questions of enforcement power to “nonpartisan experts working on certain issues for the good of the American people.” It’s hard to find anyone in America who still believes in this fairy-tale vision of Washington bureaucracy. The solicitor general’s argument would “open the door for the president to come in, each new president, and clean house in terms of all of the individuals who are running that agency,” Jackson complained. That’s how elections work.
Justice Sonia Sotomayor hysterically warned, “You’re asking us to destroy the structure of government.” Yet, Jackson’s only cure for misbehaving agencies is more drastic than just replacing their management: “Congress established them and can eliminate them. Congress funds them and can stop.” What Congress can do if it simply aims to hamstring the presidency was unstated.
The six conservatives were focused less on whether to salvage Humphrey’s Executor than on what should replace it. Justice Amy Coney Barrett asked whether a more modest power of removal would flow either from the president’s duty to take care of enforcement of the laws by controlling policymaking jobs, or from his ability to fire those officials senior enough to be presidentially appointed. The summer’s emergency orders suggested that the justices prefer to find a way to preserve the independence of Federal Reserve governors.
The Court need not cross that bridge just yet. But in overruling Humphrey’s Executor, it would strike an important blow for having one president at a time, while encouraging Congress and the courts not to let their own powers fall into his hands. To borrow Harry Truman’s phrase, as Roberts has been fond of doing in prior cases, the buck has to stop somewhere — and the people should know where.