Humphrey's Executor On The Ropes

Can Congress create federal agencies with power to enforce the laws and prosecute crimes, but which agencies are outside the control of the President? In a 1935 decision called Humphrey’s Executor, the Supreme Court held that it could.

I first wrote about this subject in a post back in December 2016 titled “Can The Separation Of Powers Of The Federal Government Be Righted?” December 2016 was immediatey after Donald Trump had first been elected President, but before he had taken office. The backdrop of the post was the issue of the extent to which the newly-elected President Trump would be able to gain control over a hostile federal bureaucracy. By 2016, some 80+ years after Humphrey’s Executor, there had come to be some 50 or more commissions and boards in the federal government where the President was restricted by statute from firing the commissioners or members, and thus had limited if any practical ability to direct what the agency would do. My conclusion in 2016 was that, largely because of Humphrey’s Executor, the situation of the constitutional separation of powers in the federal government was a hopeless mess, and that it would be a long time before it could be righted. Sure enough, Trump did not take on this issue during his first term.

But here in the first year of Trump’s second term, he has gone directly after this issue. In March 2025, just two months after taking office for his second term, Trump sent an email to Democratic FTC Commissioner Rebecca Slaughter, firing her. Slaughter promptly sued to get her job back, and in July the D.C. Circuit (properly following the Supreme Court precedent of Humphrey’s Executor) ordered her reinstated. As you have probably seen, yesterday the case of Trump v. Slaughter was argued in the Supreme Court.

The first remarkable thing about status of the separation of powers under the federal constitution, and about Humphrey’s Executor, is the extent to which the 1935 Supreme Court took something very simple and straightforward under the Constitution, namely the separation of powers, and completely screwed it up. However, based on reports of yesterday’s argument, it appears that the so-called conservatives on the Court, six of the nine justices, are now prepared to right that ship.

But then there’s the second remarkable thing about this situation, which is that even though Humphrey’s Executor is clearly wrong, the three justices constituting the liberal bloc on today’s Supreme Court have signaled that they want this rogue precedent to continue in effect. We’ll have to await the liberals’ dissents to see the details of what their logic is, if any. However, a reasonable inference would be that the liberals are happy to have an unaccountable fourth branch of government conjured into existence without constitutional basis, because they think such agencies will be a reliable force for advancement of the agenda of their (Democratic) team. The theory would be that when a Democrat is in office the bureaucrats will do what the Democrat wants because that will advance the common cause, and when a Republican is in office the bureaucrats will resist and obstruct. It appears that the liberal justices are fine with having large parts of the government resisting and obstructing the President when he is a Republican.

For more detailed background on the very simple language and structure of the separation of powers in the Constitution, you can look to my December 2016 post. This paragraph from that post lays out the Constitution’s language on the subject, all of it contained in three sentences:

The Constitution provides for exclusive grants of the three types of power to the three branches of the government, and to no one outside that structure. (Article I: "All legislative Powers" are "vested" in the "Congress"; Article II: "The executive Power" is "vested" in the "President"; and Article III: "The judicial Power" is "vested" in the federal courts.)

There are no other grants of power in the Constitution. So, from whence come the vast areas of the federal government that are not the Congress or the courts, and yet are outside the control of the President?

[I]f you study the U.S. government today, you quickly learn about vast areas of the government that have somehow broken free of the separation of powers. I'm talking about the so-called "independent" agencies, like the FTC, FCC, SEC, CFPB, CFTC, CPSC, PCAOB and others. These agencies are not explicitly part of any of the three branches, yet they promulgate thousands of pages of regulations (legislative power?), and then prosecute people and companies for violating the regulations (executive power?) before administrative judges (judicial power?) who are part of the agency rather than part of the court system. Where is this provided for in the Constitution?

And yet the liberal justices seem to think this is OK. But on what basis? Do they cite some language in the Constitution, and if so, what? There are numerous reports available as to yesterday’s Supreme Court argument. A particularly detailed one appeared in the New York Times here. The Times’s piece contains a couple of revealing quotes from two of the three liberal justices, Kagan and Sotomayor. From Justice Kagan:

Justice Elena Kagan said such a ruling would “put massive, uncontrolled, unchecked power in the hands of the president.”

Justice Sonia Sotomayor told the administration’s lawyer that “you’re asking us to destroy the structure of government” and to “take away from Congress its ability to protect its idea that a — the government is better structured with some agencies that are independent.”

You have to wonder if these people have even read the Constitution. Justice Kagan asserts that ruling for the President would put “massive, uncontrolled, unchecked power” in his hands. But this is power currently in the hands of the FTC. Where does the Constitution grant any power at all to the FTC? It only grants Executive power to one entity, indeed one person, and that is the President. If the power is “massive, uncontrolled, and unchecked,” then that might arguably be a problem with the Constitution. But the Supreme Court justices have sworn an oath to uphold the Constitution, so they are stuck with having these powers — whether or not “massive, uncontrolled, and unchecked” — in the hands of the President.

And Justice Sotomayor’s remark is even more detached from the Constitution. She says it would “destroy the structure of our government” to “take away from Congress” its ability to create a government that is “better structured” with agencies that are “independent.” Where is that in the Constitution? Answer: it’s not there. So if Congress thinks that there is a “better structure,” than what the Constitution created, it can just go ahead and implement the “better structure” in defiance of the constitutional language?

I think that Justice Sotomayor has no idea how absurd and ignorant she sounds here. Suppose Congress gets the idea that it would be a “better structure” for our government to do away with the office of President. Can they just do that? I would say it’s obvious that they can’t, but I’m not so sure what Justice Sotomayor would say.

And in what sense is it a “better structure” for the government to have “independent” agencies, that is, agencies where the bureaucrats cannot be voted out in elections? Perhaps the biggest virtue of the structure of the actual Constitution is that the President is accountable to the people via elections. Approving the existence of agencies outside of any voter control is a huge undermining of the democratic aspects of our republic. But I wonder if Justice Sotomayor even perceives that, over her desire to see her teammates continue in power even when the opposition party gets elected by the voters.

I have to think that when they get around to writing their dissents in this case the liberal justices will come up with something more persuasive that the points they made during this oral argument. On the other hand, I have no idea what the real argument supporting Humphrey’s Executor might be. It is one of the worst opinions ever issued by the Supreme Court, and it cannot be done away with soon enough. Yes, the immediate result will be more power for Trump; and the slightly less immediate result will be more power for the Presidents who succeed Trump. But that is what the Constitution provides. If you don’t like it, the simple answer is that the Congress needs to shrink the size and scope of the federal government. That’s something I don’t see happening any time soon. But then, nine years ago, I didn’t see Humphrey’s Executor going away any time soon.

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Liberals view the Constitution as meaning what they say it means, as confirmed by prior (liberal) Supreme Court precedents. Defending the Constitution in this view means defending those prior Supreme Court precedents. As time passes, they think that the Supreme Court can only get more progressive. This is the one way liberal ratchet. Why? Because they think that the long arc of history bends their way.

You have to wonder if these people have even read the Constitution.

No need to read it. The Liberal justices know what outcome they want. The Constitution doesn't enter into it.

Like all leftists, their “country” is the deep state and the Constitution is a “living document” whose meaning is to be twisted into the situational ethics which would advance the interests of their country.

This could be the most significant decision of the last 30 years. I’ve been saying for years we need to take away power from the vast, unelected, unaccountable bureaucratic deep state.

Ending Roosevelt’s New Deal Administrative (i.e., Communist) State will be one of the most important things Trump can do to return the country to it’s citizens.

The idea that there are a class of people who are “experts” that are above the Congress and the Presidency is absurd. The regulations they promulgate are de facto laws which the populace are literally helpless to stop or change. The agencies and their heads should have no such power.

Somehow vowing to uphold the Constitution means something different to the leftist justices.

A fundamental thesis of Progressive ideology is the Constitution restricts government power too much. Therefore, ways have to be found to “work around” the limitations imposed by the Constitution.

So, to leftist judges, a major part of their job is to figure out ways to “get around” the limitations of the Constitution.

The answer to Justice Gorsuch’s question is that POTUS as chief executive does not need to apply laws he deems unconstitutional. Nothing in the constitution gives the judiciary the sole panel to determine that a law is unconstitutional, not can the judiciary actually compel POTUS to enforce its rulings on a statute’s constitutionality. Great president’s like Andrew Jackson and Abraham Lincoln didn’t give a chit about the opinions of SCOTUS on certain matters.

A fundamental thesis of Progressive ideology is the Constitution restricts government power too much. Therefore, ways have to be found to “work around” the limitations imposed by the Constitution.

We see this very clearly in 2nd and 4th Amendment matters. The courts have pretty much gutted the 4th; they refuse to decisively strike down the legislature's violations of the 2nd.

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