Humphrey’s Executor should be slated for execution

The Trump administration is restructuring agencies, slashing regulations and axing asinine programs, but in its effort to jettison bureaucrats likely to resist the Trump agenda, the President is poised to strike at one of the administrative state’s greatest affronts to the Constitution, so called independent agencies the administrative state, consisting of offices populated with often leftist, unelected and unaccountable bureaucrats that effectively make law and even have their own courts, has over the last century, developed into a fourth branch of government. Independent agencies are perhaps the most dubious manifestation such agencies like the Federal Communications Commission, the FCC Federal Trade Commission, FTC and the National Labor Relations Board, NLRB, often exert massive control through issuing rules and regulations impacting major aspects of American life. They’ve been allowed to advance critical rules and regs without presidential review. What’s more, while the members or commissioners who run these agencies are appointed by Presidents subject to senatorial confirmation and such, they often serve staggered terms, or terms longer than any one presidency. And by law, the president’s power to dismiss agency leaders is often circumscribed, hence their independence in response to the lack of accountability baked into their structure, President Trump has issued an executive order to ensure president just presidential supervision and control of the entire executive branch. It mandates that such agencies run their regulatory policies through the White House, and subjects them to White House Oversight of management, funding and operations, still ultimately, personnel is policy and courts is insulation of independent agency leaders from at will presidential removal has meant that the President lacks full control over personnel and therefore policy. In the wake of the Trump administration’s firings of at least one independent agency leader in recent weeks, this interpretation of presidential power is likely to be challenged. Some history is in order here in a 1926 case, Myers V us, the Supreme Court held that the power to remove appointed officers is vested in the president and the president alone. Absent that power, he could not discharge his constitutional duty of seeing that the laws be faithfully executed. Chief Justice Taft wrote for the majority, but a decade later, as the administrative state rapidly expanded and independent regulatory agencies emerged in the throes of the New Deal. The Supreme Court hemmed in the President’s removal power by upholding congressional restrictions on it. Tenure protections in FTC legislation permitted the president to remove commissioners only for inefficiency, neglect of duty or malfeasance in office, not at will. In that case, known as Humphreys executor, the court distinguished between the President’s illimitable power to remove purely executive officers and the limited power to remove those officers serving in independent agencies exercising purportedly quasi legislative andor quasi judicial powers. In recent years, the Supreme Court has hacked away at administrative state power and refused to extend independent agency protections for officers from removal beyond the 1935 precedent in a 2020 case, Selah V CFPB, the court ruled that on account of differences in the agency’s structure, partisan makeup and functions from the FTC, a president could fire the CFPB is director at will, while we do not revisit Humphreys or any other president today, Chief Justice Roberts wrote for the majority. We declined to elevate it into a free standing invitation for Congress to impose additional restrictions on the President’s Removal Authority. In a concurrence, Justice Thomas, joined by Justice Gorsuch, wrote that the court ought to go further and overturn Humphreys executor. He even went further. Thomas wrote that not only did the decision violate Article two’s vesting clause by extending executive powers to those beyond the reach of the executive, abrogating the President’s removal powers and eroding accountability of officers. But he wrote that, quote, The Constitution does not permit the creation of officers exercising quasi legislative and quasi judicial powers. In quasi legislative and quasi judicial agencies, no such powers or agencies exist. The Constitution sets out three branches of government and provides each with a different form of power, legislative, executive and judicial. Free floating agencies simply do not comport with this constitutional structure. Thomas concluded that continued reliance on Humphreys executor to justify the existence of independent agencies creates a serious ongoing threat to our government’s design. Leaving these unconstitutional agencies in place does not enhance this Court’s legitimacy. It subverts political accountability and threatens individual liberty we simply cannot compromise when it comes to our government structure. Today, the court does enough to resolve this case, but in the future, we should.

Consider Humphreys executor in Toto, and I hope that we will have the will to do so. The Trump Justice Department has said it will not defend the constitutionality of certain four cause removal provisions that apply to members of multi member regulatory commissions, including the FTC, NLRB and Consumer Product Safety Commission, and vowed to urge the Supreme Court to overrule Humphreys executor to the extent it conflicts with the administration’s position in a case before the Supreme Court regarding the challenge firing of the head of the Office of Special Counsel, the administration reiterated its position. Trump has also fired the chair of the NLRB, who has sued the administration over it, that case could well end up putting Humphreys executor to the test at SCOTUS Justice Thomas may well get the chance to play Humphreys executors, executioner, and with it, challenge the concept of independent agencies themselves in.