Presidential Removal Power and the Future of Humphrey's Executor
Michael Ramsey
At SCOTUSBlog, a Q&A with Stephen Vladeck on the future of Humphrey's Executor. From the introduction:
In the two-and-a-half months since Donald Trump’s inauguration, a rush of challenges to executive orders and directives have made their way through the courts and have now started to reach the justices in earnest. Alongside those orders, Trump fired the heads of several independent government agencies, experts who oversee technical matters of government including the enforcement of antitrust laws and review of federal workers’ challenges to their dismissals. Although the president can remove most government officials for any reason, those positions are protected by Congress from firing without good cause, such as “malfeasance in office,” and by a 1935 Supreme Court case that upheld such for-cause limits.
But some conservative legal scholars, and the president, have embraced a much broader view of executive power, one in which the president has complete authority to fire agency heads. The administration has indicated that it will ask the Supreme Court to overturn a 1935 decision, Humphrey’s Executor v. United States, which would allow the president to do just that. In that decision, the court barred Franklin Delano Roosevelt from firing a Republican member of the Federal Trade Commission. The decision protects the heads of independent, multimember agencies from unjustified removal to allow the agencies to function without the threat of political retaliation.
And from a key part of the discussion:
So back to where Humphrey’s Executor sits today, how narrow are those protections?
One of the tricky things about Humphrey’s Executor is that, even though the Supreme Court hasn’t overruled it, it has to at least some degree reconceptualized it. Humphrey’s Executor itself, if you read Justice Sutherland’s opinion, spends a lot of time talking about how what the FTC does is not purely executive power. Instead, he talks about the quasi-judicial role that the FTC plays and even in some respects, the quasi-legislative role that the FTC plays.
Even though the modern court has not overruled Humphrey’s Executor, it has really, I think, heavily watered down that understanding. Indeed, it has increasingly come to treat Humphrey’s Executor as this extreme outlier — as one of two Supreme Court precedents that are at least superficially inconsistent with the broad view of the unitary executive toward which the court has otherwise gravitated, Morrison v. Olson being the other.
So the Supreme Court today basically takes the view that there’s Morrison, there’s Humphrey’s Executor and there’s nothing else. And that was the basis for the court’s 2020 ruling in Seila Law that Congress could not insulate the head of the Consumer Financial Protection Bureau from presidential removal because, unlike the head of these multi-member commissions, the head of the CFPB is a single person.
In a world in which we were being faithful to the analysis of Humphrey’s Executor and not just the result, it shouldn’t make a difference whether the head was a single person or a multimember board; all that would matter is the type of power that the agency was wielding. But in a world in which Humphrey’s Executor and Morrison are nothing more than exceptions to the rule, then all of the litigation tends to reduce to whether the agency structure at issue is just like the exceptions or not.
You mentioned the Fed before, where does the Fed stand?
Part of why I believe that even this court has been reluctant to overrule Humphrey’s Executor, and it’s had chances, is because I think there is an unspoken but widely shared view that the independence of the Fed (and no other agency) is really important. I don’t think the court has yet been provided with a coherent rationale for a way in which it could overrule Humphrey’s Executor without also undermining the independence of the Fed, and thereby risking yet further harm to the stability of our economic system.
Of course, these cases are not just about the FTC and the Fed — there are a bunch of multimember-headed agencies, the SEC, the FCC, the Merit Systems Protection Board, etc., that are implicated by Humphrey’s Executor. But I think the real 800-pound gorilla is the Fed. Maybe it’s enough to just assert that the Fed is different, but at least to this point, there’s been no persuasive explanation for why, legally, that’s so.
Agreed. The Court is not going to put the Fed under presidential control and trim another couple of trillion dollars off the stock market. Here's my prediction, which I have suggested before but am becoming more confident about: The claimants will lose. And the Court will not overrule Humphrey's Executor.
Humphrey's Executor, in modern legal culture, has come to stand for the proposition that Congress can limit presidential removal power of heads of agencies that exercise executive power (limited to agencies run by multimember boards in Seila). But as Professor Vladeck says, that's not what Humphrey's Executor says. Humphrey's Executor says Congress can limit presidential removal power of boards of agencies that do not principally exercise executive power. So I think the Court will (and should) limit Humphrey's Executor to its actual holding.
The claimants in the Harris and Wilcox cases exercised executive power. So they are not protected by Humphrey's Executor. There's no need to overrule the case, if it is limited to its actual holding. (True, Mr. Humphrey probably also exercised executive power, but the Court in Humphrey's Executor said he didn't, and that was the basis of the decision.)
What agency has statutory protection from presidential removal and arguably doesn't principally exercise executive power? The Fed. True, the Fed has some ancillary investigative and enforcement powers, and those may be unconstitutional under a narrow reading of Humphrey's Executor. But the main part of what the Fed does is hard to characterize. The Court could say, or imply, that it isn't principally executive. And so the protections from presidential removal would be constitutional even under a narrow reading of Humphrey's Executor.
I think this outcome, in addition to being prudent, is also very plausibly consistent with the Constitution's original meaning. Presidential removal power, in my view, comes from the Constitution's vesting the executive power in the President. As a result of that vesting, the President must have full control over officers exercising executive power -- or else the executive power is in part vested in someone other than the President. But an officer or agency that does not materially exercise executive power is not covered by this constitutional command. That's what Humphrey's Executor actually said, and it's right -- if read to say mean only what it said.