On Wednesday, Acting Solicitor General Sarah Harris wrote Senator Richard Durbin, the ranking member of the Senate Judiciary Committee, that the Justice Department intends to urge the Supreme Court to overrule Humphrey’s Executor v. United States. That was the 1935 decision involving the Federal Trade Commission (FTC) that upheld restrictions on the president’s ability to remove commissioners of independent agencies. The president could remove them for cause, but not at will. At least that was the case for multimember bodies which, taken on the terms by which the Court dubiously characterized the FTC nine decades ago, exercised legislative and judicial rather than executive power.
Humphrey’s Executor was an exception to the broad holding of the Court in Myers v. United States (1926) that the president has the “unrestricted” power of “removing executive officers who had been appointed by him by and with the advice and consent of the Senate.” Nearly a century later, Myers has stood as a venerable landmark precedent on the president’s Article II power, albeit one that has been subject to exceptions. As an early exception, Humphrey’s Executor has provided an excuse for the vast expansion of the administrative state, but the Roberts Court has more fittingly viewed it as a constitutional aberration, even if it has narrowed rather than overruled it.
In Free Enterprise Fund v. Public Company Accounting Oversight Board (2010), the Court struck down two layers of tenure protection for members of the Public Company Accounting Oversight Board; they were removable by the Securities and Exchange Commission for cause rather than at will, and SEC commissioners were similarly removable by the president only for cause. In Seila Law LLC v. Consumer Financial Protection Bureau (2020), the justices struck down the Consumer Financial Protection Bureau’s structure for allowing a single director with vast executive power to be removable by the president only for cause. The director of the Federal Housing Finance Agency was similarly removable only for cause, and the Court accordingly struck down that arrangement as a violation of the separation of powers in Collins v. Yellen (2021).
The dilemma confronted by Harris’ letter is that Humphrey’s Executor still provides the basis for “[s]tatutory tenure protections for the members of a variety of independent agencies, including the FTC, the NLRB, and the CPSC.” Harris then asserted, “The [Justice] Department has concluded that those tenure protections are unconstitutional.” As Seila Law made clear, “the holding of Humphrey’s Executor embodies a narrow ‘exception’ to the ‘unrestricted removal power’ that the President generally has over principal executive officers and that the exception represents ‘“the outermost constitutional limit[] of permissible congressional restrictions”’ on the President’s authority to remove such officers.” That recent case had recognized that “the holding of Humphrey’s Executor applies only to administrative bodies that do not exercise ‘substantial executive power.’” On top of that, the Court “explained that Humphrey’s Executor appears to have misapprehended the powers of the ‘New Deal-era FTC’ and misclassified those powers as primarily legislative and judicial.”
Harris’ analysis concludes:
The exception recognized in Humphrey’s Executor thus does not fit the principal officers who head the regulatory commissions noted above. As presently constituted, those commissions exercise substantial executive power, including through “promulgat[ing] binding rules” and “unilaterally issu[ing] final decisions * * * in administrative adjudications.” Seila Law, 591 U.S. at 218-219. An independent agency of that kind has “no basis in history and no place in our constitutional structure.” Id. at 220; see id. at 222 & n.8.
To the extent that Humphrey’s Executor requires otherwise, the Department intends to urge the Supreme Court to overrule that decision, which prevents the President from adequately supervising principal officers in the Executive Branch who execute the laws on the President’s behalf, and which has already been severely eroded by recent Supreme Court decisions.
I previously wrote about the muddle that Humphrey’s Executor presented in the Fifth Circuit, and that muddle should come as no surprise the next time the Court is asked to overrule that precedent. My husband Roger Severino was also involved in a similar lawsuit after President Biden removed him from the Administrative Conference of the United States before his statutory term expired. The D.C. Circuit found that Biden had presumptive removal authority, and Judge Justin Walker wrote a concurrence suggesting that Humphrey’s Executor has been significantly undermined in recent years, as the legislative and judicial powers that decision assumed the FTC was exercising would now be recognized as outside the proper constitutional bounds of an executive agency: “[I]f Congress may not vest any nonexecutive power in an executive agency, 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.”
An opportunity to put a nail in the coffin of Humphrey’s Executor may well arrive in the near future, given the pending flurry of litigation involving the NLRB and other agencies. When it does, the justices who have repeatedly recognized why that precedent has been eroding should recognize why it needs to be explicitly overruled. It is a welcome development that the Justice Department will be pulling no punches in its request to end this lingering affront to the separation of powers.