At Law & Liberty, Christopher James Wolfe (St. Thomas – Houston, Political Science): Dispatching Humphrey’s Executor. From the introduction:
For most court watchers, the blockbuster case of 2026 was the birthright citizenship case, Trump v. Barbara. But for teachers of National Powers cases like myself, the blockbuster was Trump v. Slaughter on the president’s power to remove a member of the Federal Trade Commission. Law professor Steven Calabresi went so far as to call Slaughter “the most consequential and important majority opinion of [Roberts’] tenure as Chief Justice.”
Slaughter overturned the landmark 1935 precedent of Humphrey’s Executor v. US, which had insulated FTC commissioners from presidential control. Chief Justice John Roberts’ opinion rejected the old argument that this independent agency’s functions were not “purely executive,” only quasi-executive. In the course of his argument, Chief Justice Roberts marshals a compelling range of evidence from the text, structure, and history of Article II that the executive must be able to fire members of the agency to keep it accountable.
Roberts should have laid out even more evidence from the history, in order to better answer the dissent by Justice Sonia Sotomayor and better set the course for future cases on the separation of powers. An excellent historical resource which none of the opinions cite, unfortunately, is Charles Thach Jr.’s Creation of the Presidency, 1775-1789: A Study in Constitutional History. This book has been discussed several times in the pages of Law & Liberty, and it deserves to be. It began as Thach’s dissertation from Johns Hopkins University in 1922, and has been reprinted by Liberty Fund in 2007. Let us compare Chief Justice Roberts’s account with Charles Thach’s account of the creation of the presidency as a unitary and accountable executive…
Agreed. Thach’s magnificent short work was a huge influence on my thinking when first confronting the core issues of executive power.
Note: this essay is part of a Law & Liberty symposium on the Slaughter and Cook cases. The other essays are here and here.
Posted at 6:17 AM