WASHINGTON – A month into President Donald Trump 's second term, lawyers for the Republican administration seem intent on provoking a legal fight to overturn a 90-year-old Supreme Court decision known as Humphrey’s Executor that has been critical to the development of the modern U.S. government.
Humphrey's Executor ushered in an era of powerful independent federal agencies charged with regulating labor relations, employment discrimination, the airwaves and much else.
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The unanimous 1935 Supreme Court ruling established that presidents cannot fire the appointed leaders of the alphabet soup of federal agencies without cause.
But that decision has long rankled conservative legal theorists who argue that the Constitution vests immense power in the president and they reject limits imposed by Congress and upheld by the courts.
They say the modern administrative state gets the Constitution all wrong and that all federal agencies that are part of the executive branch answer to the president. That includes his ability to fire their leaders at will.
The current Supreme Court, with a conservative majority that includes three justices nominated by Trump, has at times agreed.
Who was Humphrey and what's an executor?
Born during the Civil War, William Humphrey became a Republican member of Congress from Washington state. He was appointed to the Federal Trade Commission by President Calvin Coolidge and reappointed by President Herbert Hoover, both Republicans. A few months after taking office in 1933, Democratic President Franklin D. Roosevelt sought Humphrey’s resignation, preferring his own choice at an agency that would have a lot to say about the New Deal.
When Humphrey refused, Roosevelt fired him, despite the provision of law allowing the president to remove a commissioner only for “inefficiency, neglect of duty, or malfeasance in office.”
After Humphrey died the next year, the person charged with administering his estate, Humphrey’s executor, sued for back pay. The justices ruled unanimously that the law establishing the FTC was constitutional and that FDR’s action was improper.
“For it is quite evident that one who holds his office only during the pleasure of another cannot be depended upon to maintain an attitude of independence against the latter’s will,” their opinion read.
The debate over the independence of federal agencies
Can agencies inside the government act with independence or is the entire government an extension of the personality of the chief executive? That was the essential question in Humphrey's Executor, said New York University law professor Noah Rosenblum.
“The entire court came down decisively in favor of the former,” Rosenblum said, noting the decision was delivered at a time when authoritarian governments held sway in Germany, Italy and the Soviet Union.
But supporters of the president's broad ability to fire officials say the independence is illusory and not supported by the Constitution. They point to the structure of Article 2, which gives the president executive power and commands that he “take care that the laws be faithfully executed.”
The Supreme Court in 1935 was simply wrong, said Chad Squitieri, a Catholic University law professor. “It’s here we start to see the constitutionally mistaken idea of so-called independent agencies begin to take root,” he said.
More recent decisions
Since 2010, the Supreme Court under Chief Justice John Roberts has cast a more skeptical eye on federal laws that limit the president's removal power. Roberts' early legal career was spent in the Reagan administration, which advocated an expansive view of presidential power that opposed limits Congress imposed in the wake of the Watergate scandal and the Vietnam War.
In 2020, Roberts wrote for the court that “the President’s removal power is the rule, not the exception” in a decision upholding Trump's firing of the head of the Consumer Financial Protection Bureau despite job protections similar to those upheld in Humphrey's case.
The 5-4 decision, with conservatives in the majority, did not address multimember commissions like the FTC, where commissioners have staggered seven-year terms, and left Humphrey's Executor in place, though narrowed. Justices Clarence Thomas and Neil Gorsuch said then that they would have entirely overturned Humphrey's Executor.
The court is weighing the administration's emergency appeal of a lower-court judge's order temporarily preventing Trump from firing Hampton Dellinger, the head of the Office of Special Counsel.
What does Trump want?
Gwynne Wilcox, the first Black woman to serve on the National Labor Relations Board, was fired by Trump in late January. She was the first NLRB member to be fired since the board's creation in 1935, shortly after the Humphrey's Executor decision.
Wilcox is suing for her job back, arguing that her dismissal is illegal. Her case could be become a test of the ongoing viability of Humphrey's Executor.
Sarah Harris, a top Justice Department official, said in a letter to Sen. Dick Durbin, D-Ill., that the department now believes that federal laws that protect members of multimember commissions are unconstitutional. She referred specifically to the FTC, the National Labor Relations Board and the Consumer Product Safety Commission.
“As presently constituted, those commissions exercise substantial executive power,” Harris wrote, citing the court's 2020 decision. “An independent agency of that kind has ‘no basis in history and no place in our constitutional structure.’ To the extent that Humphrey’s Executor requires otherwise, the Department intends to urge the Supreme Court to overrule that decision.”
Dozens of agencies could fall if the court agrees, said Brianne Gorod, chief counsel at the progressive Constitutional Accountability Center, “including ones that protect America’s workers, help ensure the safety of our consumer products and regulate the civilian use of nuclear energy.”
Without the mix of appointees of different presidents, agencies such as the Federal Election Commission and the Federal Communications Commission could be transformed into the “attack dogs” of whoever is in the White House, and used to go after the president's opponents.
What about the Federal Reserve?
The administration has been careful so far to avoid saying anything that would threaten the independence of the Federal Reserve to set interest rates and make decisions about the country's monetary policy.
Yet there's widespread acknowledgement that the logic of a decision overturning Humphrey's Executor probably would apply to the Fed, unless the court devises a way to spare it.
“It's not as scary as it might sound,” Squitieri said. “If the Fed is politically accountable to the president, well, we trust the president with the nuclear codes. We can also trust the president with managing the Fed.”
The Federal Reserve has been understood to be apolitical, said George Washington University law professor Alan Morrison.
“If Trump can put in his own people, they will presumably what he wants to do, which is lower interest rates,” Morrison said.