In July, 1933, several months into President Franklin D. Roosevelt’s first term, he wanted a bureaucrat named William E. Humphrey gone. Humphrey, a former Republican House member, had been appointed to the Federal Trade Commission by Roosevelt’s two Republican predecessors, Calvin Coolidge and Herbert Hoover. The agency was then not even two decades into its mission to protect the public from monopoly power, and Humphrey was a thorn in its side, calling the F.T.C. “an instrument of oppression and disturbance and injury instead of a help to business.” Roosevelt requested Humphrey’s resignation. Humphrey refused. The next month, Roosevelt asked again. “I do not feel that your mind and my mind go along together on either the policies or the administering of the Federal Trade Commission, and, frankly, I think it is best for the people of this country that I should have a full confidence,” Roosevelt wrote to him on August 31, 1933.
Five weeks later, F.D.R. fired Humphrey. Four months after that, Humphrey died. The executor of Humphrey’s estate sued on his behalf, claiming that the termination was unlawful and that $3,043.06 in unpaid wages plus interest was owed to the estate. The Supreme Court agreed, in the case known as Humphrey’s Executor v. United States, finding that Congress had the authority to protect commissioners against Presidential dismissal. The decision paved the way for the modern administrative state, with its alphabet soup of independent agencies—the Securities and Exchange Commission, the Consumer Product Safety Commission, the National Labor Relations Board, the National Transportation Safety Board—whose members are insulated from being fired by the President, except for cause, which is to say, as most of the relevant statutes put it, for “inefficiency, neglect of duty, or malfeasance in office.”
Ninety years on, Humphrey’s Executor is on its last legs. Long before Donald Trump arrived on the political scene, the high court’s 1935 ruling has been one of the top targets of the conservative legal movement, which assails the creation of a “headless fourth branch” of government. These agencies are hardly rogue actors. A President has the power, in most cases, to appoint a new chairman and a majority of commissioners from his own party. Still, Humphrey’s continued existence interferes with the conservative movement’s project to reinforce the authority of the “unitary executive”—the view that the entirety of executive power is vested in the President and that intrusions on Presidential authority offend the Constitution. In recent years, the conservative-dominated Court has carved big chunks out of Humphrey’s Executor. In 2020, the Court, voting 5–4, said that the Consumer Financial Protection Bureau, with its single head protected against Presidential termination and its exercise of broad regulatory and enforcement authority, violated the constitutional separation of powers. The Court distinguished its ruling in that case from the Humphrey’s Executor decision on the ground that the F.T.C. has multiple members. But the precedent was clearly in the crosshairs of conservative Justices—and Trump has, as he promised during the campaign, acted to assure its demise, firing Democratic commissioners at agencies including Humphrey’s own F.T.C. (My husband once served on the F.T.C.)
Last week, the Supreme Court signalled its eagerness to go along with this project, in Trump v. Wilcox. With the three liberal Justices dissenting, the Court granted the Administration’s emergency request to block the reinstatement of the Democratic commissioners Gwynne Wilcox at the National Labor Relations Board and Cathy Harris at the Merit Systems Protection Board; both had been fired by Trump and were, per a lower-court order, to return to their jobs. The Court didn’t declare its intention to overrule Humphrey’s Executor, but it left little suspense about the ultimate result: the case will be left on the junk heap of constitutional history, eviscerated, if not formally overruled. That will be a disappointment but not a disaster. A commission stocked with members of both parties is better able to resist political pressure; it is more likely to reach a bipartisan and therefore enduring consensus. But government can function without independent agencies. The late Justice Antonin Scalia, a leading proponent of the unitary-executive theory, observed that Humphrey’s Executor “was considered by many at the time the product of an activist, anti-New Deal Court bent on reducing the power of President Franklin Roosevelt.” Yet F.D.R. managed his New Deal despite it. There are worse things that can be done to good government than junking Humphrey’s Executor, and Trump is busily engaged in many of them.
The far more troubling issue here is the Court’s behavior. By using its emergency docket to leap to the Administration’s defense, the Court acted with unseemly haste and engaged in overt cherry-picking. And it did so by conveniently ignoring a long-established precedent. The Administration has the right to seek to have that precedent overturned; in the interim, it has no entitlement to enjoy the benefit of the doubt that the Court will take that plunge. Justice Elena Kagan, joined by Justices Sonia Sotomayor and Ketanji Brown Jackson, made that point in an acid dissent from the Court’s action. “Our emergency docket, while fit for some things, should not be used to overrule or revise existing law,” Kagan wrote. Sometimes, she noted, the Court is called upon to act without going through the full process of briefing and oral argument. But, she went on, “it is one thing to grant relief in that way when doing so vindicates established legal rights, which somehow the courts below have disregarded. It is a wholly different thing to skip the usual appellate process when issuing an order that itself changes the law. . . . And nowhere is short-circuiting our deliberative process less appropriate than when the ruling requested would disrespect—by either overturning or narrowing—one of this Court’s longstanding precedents, like our nearly century-old Humphrey’s decision.”
Letting Trump fire the commissioners before a final decision, Kagan said, “is nothing short of extraordinary,” giving undue weight to the President’s supposed interest in controlling the executive branch and barely any to the interest of Congress in establishing independent agencies. “Between Humphrey’s and now, 14 different Presidents have lived with Congress’s restrictions on firing members of independent agencies. No doubt many would have preferred it otherwise,” Kagan wrote. “But can it really be said, after all this time, that the President has a crying need to discharge independent agency members right away—before this Court (surely next Term) decides the fate of Humphrey’s on the merits? The impatience to get on with things—to now hand the President the most unitary, meaning also the most subservient, administration since Herbert Hoover (and maybe ever)—must reveal how that eventual decision will go.”
The majority devoted one of its four paragraphs of explanation to assuring the public—or, more precisely, the markets—that there is no need to fear for the independence of the Federal Reserve Board, which operates under for-cause removal protections. No worry, the majority said: “The Federal Reserve is a uniquely structured, quasi-private entity that follows in the distinct historical tradition of the First and Second Banks of the United States.” Kagan gave this “out of the blue” declaration, as she put it, the scathing treatment that it deserves. The Fed’s independence, she pointed out, “rests on the same constitutional and analytic foundations as that of the NLRB, MSPB, FTC, FCC, and so on—which is to say it rests largely on Humphrey’s.” The majority seized on an aside in a footnote to the Consumer Financial Protection Bureau case—“even assuming financial institutions like the Second Bank and the Federal Reserve can claim a special historical status”—to preëmptively carve out protection for the Fed. Thus, “one way of making new law on the emergency docket (the deprecation of Humphrey’s) turns out to require yet another (the creation of a bespoke Federal Reserve exception),” Kagan wrote. “If the idea is to reassure the markets, a simpler—and more judicial—approach would have been to deny the President’s application for a stay on the continued authority of Humphrey’s.” (For what it’s worth, the Trump Administration may well take a dimmer view of the Fed’s power. “It’s very hard to square the Fed’s independence with the Constitution,” Russell Vought, currently the director of the Office of Management and Budget, told the New York Times in 2023, during the planning for Trump’s second term.)
The judicial process requires respecting precedent and process. Dispensing with either risks turning the courts into yet another partisan, outcome-driven actor—one that is so intent on achieving a desired result that it is willing to substitute what Alexander Hamilton termed “arbitrary discretion” for decision-making based on neutral rules. That is precisely what the conservatives did last week; the dissenters were correct to call them out. At a moment when the courts are the sole remaining bulwark against an overstepping executive, and when the incumbent Administration is calling the legitimacy of their judgments into question, it is more essential than ever that their actions be consistent and principled. Humphrey would no doubt be displeased with the outcome in Trump v. Wilcox. Hamilton would be appalled. ♦