Humphrey’s Executor has been executed! . . . Or should I say Slaughtered?
In yesterday’s decision in Trump v. Slaughter, a 6–3 Supreme Court overruled Humphrey’s Executor v. United States, the 1935 decision that placed the Federal Trade Commission—and with it the modern administrative state—beyond the president’s constitutional power to control the executive branch he was elected to run.
The case involved a challenge to President Trump’s termination of FTC commissioner Rebecca Slaughter. Hers was an at-will removal that was not based on any of the statutory grounds required for removal—“inefficiency, neglect of duty, or malfeasance in office.” Slaughter sued, and the district court sided with her under Humphrey’s Executor. The Court granted certiorari before judgment and finished what it had started when it had previously invalidated statutory bars to presidential removal in Free Enterprise Fund v. Public Company Accounting Oversight Board (2010), Seila Law LLC v. Consumer Financial Protection Bureau (2020), and Collins v. Yellen (2021).
Chief Justice Roberts’ opinion for the Court took a careful look at constitutional text, history, and structure, grounded in Article II’s vesting of “[t]he executive Power” in the president so that subordinate officers would answer to him and he, in turn, would answer to the people. Roberts traced that choice back to the First Congress in 1789, when James Madison won the argument that the power to remove executive officers should belong to the president alone—a ruling that has been known as the “Decision of 1789.” Chief Justice Taft’s 1926 opinion in Myers v. United States embraced the same standard. Humphrey’s Executor, decided just nine years later, tried to carve out an exception, holding that the FTC’s commissioners performed only “quasi-legislative” and “quasi-judicial” work and thus weren’t exercising “executive power” at all—a fiction the Court recognizes never matched reality and certainly doesn’t now, given that today’s “FTC enforces and administers some 80 statutes, which cover almost every facet of our Nation’s economy.”
Slaughter marks a huge win for the administration, returning constitutional authority over the executive branch to the president. It’s important to remember that, while this helps Trump right now, it means all future presidents of either party will have the power the Constitution gives them to exercise authority over the executive branch. We’re used to cabinet members changing with each new administration; now other agencies will function the same way. A future Democrat in the White House will get to fire FTC commissioners who won’t enforce his priorities, too. That’s not a bug. That’s Article II.
FDR’s failed 1937 foray into court-packing was actually a result of Humphrey’s Executor—the decision overruled in Slaughter yesterday. I assume Democrats will ironically be using that overruling to call for more court-packing. Their only principle is power, and they want whatever policy gives them more immediate power.
But handing the reins of the administrative state to the president comes with some strings. Justice Gorsuch penned a cautionary concurring opinion warning that giving the “headless fourth branch” of government a head doesn’t cure the fact that it is now a bloated behemoth that includes “vast legislative and judicial powers” in addition to its executive role. He tells the story of how we got here, including a devastating take on Woodrow Wilson’s rejection of our Founders’ view of the separation of powers as well as his disdain for the voters themselves, as “selfish, ignorant, timid, stubborn, or foolish.” The consequences included “the Wilsonian vision of agencies run by neutral experts . . . buckling under the weight of reality early on” even as “[t]hose in charge of these new agencies often became very difficult to dislodge.”
Gorsuch gave a sobering warning: “It may be true that after today there is no more ‘fourth branch’ of government. But the fourth branch’s powers still exist; they have just been reassigned to the President.” His proposed remedy is for the branch who caused that problem to fix it: “this Court has some work to do.” What followed was a catalog of the already-existing doctrines that the Supreme Court must enforce to restore a proper separation of powers, starting with the nondelegation doctrine that insists Congress keep the power of legislation for itself rather than attempting to pass the buck—and the accountability for the necessary legislative compromises—to others. Gorsuch flagged the recent FCC v. Consumers’ Research case (which I have discussed here) in which the Court had a clear opportunity to apply that doctrine but punted. If the liberals who dissented in Slaughter were serious about wanting to limit presidential power, they would join the Court in policing the separation of powers through nondelegation, the major questions doctrine, and the Seventh Amendment right to a jury trial. “We have, then, no shortage of tools. The only real question is whether we will use them.”
Justice Sotomayor’s dissent for the three liberals harped on “the doctrine of stare decisis,” which supposedly “should have made” Slaughter “a profoundly easy case under Humphrey’s.” But the dissenters downplayed the erosion of that precedent and its muddled understanding of the nature of the power being exercised by the FTC. As Roberts put it in his majority opinion, “the dissent’s ode to stare decisis is hard to reconcile with its reinvention of Humphrey’s and shabby treatment of Myers. At least we have accorded Humphrey’s a respectful burial; the dissent would cast Myers aside without a second thought.”
Yesterday the Court also decided another removal case, Trump v. Cook. There the administration took a notably narrower approach than in Slaughter: Rather than challenge the constitutionality of the for-cause removal protection Congress gave to Federal Reserve governors, the government argued only that it had sufficient cause to remove Governor Lisa Cook under the existing statute. The stated cause consisted of allegedly contradictory statements she made on mortgage agreements a short time apart, though prior to her appointment. The district court enjoined the removal, the D.C. Circuit declined to stay that injunction, and the government came to the Supreme Court asking only that the stay be granted while the litigation played out.
A 5–4 majority of the Court refused to grant a stay pending appeal and did so on the “narrow grounds” that—regardless of “the precise definition of cause”—Cook was not given “the procedural protections to which she was entitled by statute” to “properly dispute the charges the President laid against her.” Unfortunately, even though no one had asked it to resolve a constitutional question at this stage, the majority went ahead and blessed the constitutionality of the Fed’s for-cause protection anyway, based on the distinctive history of central banks going back to the founding. (Never mind differences between the Fed and the Bank of the United States early in our history, which Justice Thomas discussed in detail in dissent.)
It was unnecessary to reach either the statutory procedural issue or the constitutional issue, as Justice Barrett warned in her dissent. Ironically the liberal justices most critical of rulings on the emergency docket because they decide issues prematurely and without a fully developed record were in the majority in Cook, and Barrett called them out for reaching to decide significant merits issues that were waived and “entirely outside the scope” of the case with minimal and conclusory reasoning. Even so, the sui generis carveout for the Fed from the general rule that presidents have removal power was at least cabined and will have far less impact than Slaughter’s own resounding constitutional ruling.
In Slaughter, the Roberts Court, to its credit, has again taken a sledgehammer to the regulatory state. The 2020s have already seen a number of memorable overrulings of bad precedents, and the demise of Humphrey’s Executor may be this term’s most significant constitutional ruling.