Humphrey’s Executor’s Days Are Likely Numbered as Cases Regarding the President’s Power to Remove Rev Up

I previously commented on the mounting debates over the increasingly discredited Humphrey’s Executor v. United States (1935), which the Justice Department fortunately seeks to overrule, and much of which the Supreme Court has already undermined in recent cases including Seila Law LLC v. Consumer Financial Protection Bureau (2020) and Collins v. Yellen (2021).

The justices may in the near future find themselves in a position to overrule. Last Friday, the D.C. Circuit stayed the district court’s reinstatements of National Labor Relations Board (NLRB) commissioner Gwynne Wilcox and Merit Systems Protection Board (MSPB) member Cathy Harris. They had both been removed from their respective positions by President Trump prior to their terms’ statutory expiration in 2028, and without basing the moves on the statutory grounds permitting their “for cause” removal.

The D.C. Circuit indicated that the emergency motions for stay were granted but did not issue a majority opinion. The panel in Harris v. Bessent (consolidated with Wilcox v. Trump) split 2–1, with Judges Justin Walker and Karen Henderson each issuing a concurring opinion and Judge Patricia Millett issuing a dissent. Walker recognized that independent agencies like the NLRB and MSPB exercise executive power under recent precedent, a characterization that Humphrey’s Executor had confusingly failed to make as it misclassified the powers of the 1935 Federal Trade Commission (FTC) as primarily legislative and judicial. So it was no surprise “that Humphrey’s has been mostly ignored in recent years by Supreme Court majorities.” The Court’s recent precedents dictate that “Humphrey’s controls only if an agency is materially indistinguishable from the 1935 FTC.” The NLRB and MSPB do not fall into that narrow category, so the restrictions on removal are likely unconstitutional. Walker had sounded a similar theme in Severino v. Biden (2023), where the D.C. Circuit found that President Biden had presumptive authority to remove my husband Roger from the Administrative Conference of the United States. Walker had noted that “it might be that little to nothing is left of the Humphrey’s exception to the general rule that the President may freely remove his subordinates.”

Judge Henderson’s concurrence also acknowledged that the “continuing vitality” of Humphrey’s Executor is open to question. While she considered “the government’s likelihood of success on the merits . . . a slightly closer call” than Walker did, she agreed that “the government has easily carried its burden of showing irreparable harm.” Judge Millett in dissent accused the majority of ignoring precedent and reaching “a hurried and preliminary first-look ruling . . . to announce a revolution in the law that the Supreme Court has expressly avoided.” She considered the NLRB’s and MSPB’s functions adjudicative rather than executive and Humphrey’s Executor applicable. Walker’s framing of the independent agencies’ functions is closer to the type of analysis employed by the Supreme Court in Seila Law and Collins, but even if the justices were to agree with Millett on this point, it would tee up the question of whether to overrule Humphrey’s Executor.

Whether or not Harris will ultimately be the vehicle for the Court to directly confront Humphrey’s Executor is guesswork that I would rather avoid. It is not the only prospect out there for doing so. Just one day before the D.C. Circuit issued its judgment, two commissioners of the FTC removed by President Trump filed a challenge in the D.C. district court in Slaughter v. Trump. It would be hard to challenge the 1935 precedent more directly than with firings involving the same agency. One way or another, the days of Humphrey’s Executor are likely numbered.