At Volokh Conspiracy, Jonathan Adler: Is Humphrey's Executor in the Crosshairs? From the introduction:
President Trump's decision to fire over a dozen agency inspectors general may be legal, but he has made other moves that are almost certainly unlawful under existing Supreme Court precedent, Humphrey's Executor in particular.
On Monday, Trump purported to fire two Democratic members of the Equal Employment Opportunity Commission and the Chair and General Counsel of the National Labor Relations Board. Any one of these dismissals could result in litigation, and one in particular could set up a direct challenge to the Humphrey's Executor precedent.
Under Humphrey's Executor, decided in 1935, Congress may prevent the President from removing members of multi-member independent agencies (such as the Federal Trade Commission) without cause. A more recent decision, Seila Law (which I unpacked here) held that this does not apply to agencies exercising substantial authority headed by a single individual (such as the Consumer Financial Protection Bureau). While Seila Law did not purport to modify Humphrey's Executor, the two decisions are clearly in tension.
That brings us to President Trump's latest moves. …
And from later on:
The decision to remove NLRB Chair Gwynne Wilcox, on the other hand, would seem to put Humphrey's Executor in the crosshairs. The relevant statutory provisions provide that members of the NLRB are appointed for set terms and (as is particularly relevant here) can be removed "upon notice and hearing, for neglect of duty or malfeasance in office, but for no other cause." Thus a President cannot remove a member merely because of anticipated policy differences or because the President wants the ability to make his own appointment.
There may be a clever way to try and distinguish the removal of an NLRB member from the removal of a Federal Trade Commission member (which is what was at issue in Humphrey's), but no serious argument for such an outcome comes to mind. This would suggest that if Wilcox contests her removal, the Administration will argue that Humphrey's Executor should be overruled, and courts will be forced to confront the question. Chief Justice Roberts may be a pro at manipulating statutory text to prevent disruptive outcomes, but this would seem to be beyond even his expertise.
In my view Humphrey's Executor may limited to its facts, or what the Court claimed were its facts. Distinguishing its prior decision in Myers, the Court said:
The actual decision in the Myers case finds support in the theory that such an officer is merely one of the units in the executive department, and, hence, inherently subject to the exclusive and illimitable power of removal by the Chief Executive, whose subordinate and aid he is. Putting aside dicta, which may be followed if sufficiently persuasive but which are not controlling, the necessary reach of the decision goes far enough to include all purely executive officers. It goes no farther; much less does it include an officer who occupies no place in the executive department, and who exercises no part of the executive power vested by the Constitution in the President.
The Federal Trade Commission is an administrative body created by Congress to carry into effect legislative policies embodied in the statute in accordance with the legislative standard therein prescribed, and to perform other specified duties as a legislative or as a judicial aid. Such a body cannot in any proper sense be characterized as an arm or an eye of the executive. (emphasis added).
I have serious doubts about the Court's description of the agency at issue in Humphrey's, but taking the Court at its word, Humphrey's appears to be limited to agencies that "exercise[ ] no part of the executive power vested by the Constitution in the President." That seems worth exploring as a way to distinguish modern agencies, which I would think often do exercise such power.
The Court went on to say:
In administering the provisions of the statute in respect of "unfair methods of competition" — that is to say, in filling in and administering the details embodied by that general standard — the commission acts in part quasi-legislatively and in part quasi-judicially. In making investigations and reports thereon for the information of Congress under 6, in aid of the legislative power, it acts as a legislative agency. Under ยง 7, which authorizes the commission to act as a master in chancery under rules prescribed by the court, it acts as an agency of the judiciary. To the extent that it exercises any executive function — as distinguished from executive power in the constitutional sense — it does so in the discharge and effectuation of its quasi-legislative or quasi-judicial powers, or as an agency of the legislative or judicial departments of the government.
I have further serious doubts that the concepts of "quasi-legislative" and "quasi-judicial" have any basis in the Constitution or any meaningful content today. But again, to the extent the Court was saying that the agency in Humphrey's didn't really exercise executive power, that seems a potential basis to distinguish modern agencies (whether or not it was actually a fair characterization of the agency in Humphrey's).
Posted at 6:24 AM