On Monday, the Supreme Court will hear oral argument in Trump v. Slaughter, the case that presents the justices with the opportunity to overturn a precedent that enabled much of the growth of an unaccountable administrative state, Humphrey’s Executor v. United States (1935). I reviewed the case when the Court granted certiorari before judgment in September, and it could turn out to be the most jurisprudentially consequential case of this term. In short, this involves a challenge by Rebecca Slaughter, an FTC commissioner fired by President Trump, to her removal. The constitutional argument supporting the president’s power to remove her is straightforward: Article II of the Constitution vests the executive power in the president, and statutory restrictions on the president’s power to remove members of agencies like the FTC violate the separation of powers. As it denied presidential authority to remove another FTC commissioner 90 years ago, Humphrey’s Executor helped confuse the analysis by misclassifying the agency’s powers as primarily legislative and judicial.
For years before the Slaughter case arose, the Court has been critical of the reasoning of the 1935 precedent, including the remark in Seila Law LLC v. Consumer Financial Protection Bureau (2020) that its reasoning “has not withstood the test of time.” But in the absence of an explicit overruling, lower courts have struggled with Humphrey’s Executor, as I explored in a review of a Fifth Circuit decision early last year. In further commentary, I noted in February of this year that the Justice Department was taking a welcome stand in favor of overruling, and by the spring, it appeared likely that the precedent’s days are numbered. Hopefully the Court will seize this moment to restore accountability and presidential authority in accordance with the text and the original understanding of the Constitution.