At Civitas Outlook, Robert G. Natelson (Independence Institute): Restoring the Constitution’s Presidency: Modifying Myers and Overruling Humphrey’s. From the introduction:
President Donald Trump seeks to assert political control over the administrative state by removing and replacing members of purportedly independent commissions. His supporters claim he is reasserting the constitutional prerogatives of the presidency; his critics claim he is acting like a king or dictator.
At the root of the controversy are two twentieth-century Supreme Court pronouncements—both erroneous. One expanded certain presidential powers beyond the constitutional maximum. The second reduced other presidential powers below the constitutional minimum. Together, they unmoored the scope of presidential authority from the Constitution’s text, creating uncertainty, unrealistic expectations, and a loss of political legitimacy.
The first of the two pronouncements came in Myers v. United States (1926). It was a dictum—that is, a statement not necessary to the court’s actual holding. The second pronouncement came in Humphrey’s Executor v. United States (1935). It was central to the holding of that case.
To understand why each pronouncement was erroneous, one must examine the Constitution’s text within the environment of contemporaneous law and drafting rules. …
And on Humphrey’s Executor:
Academic historians have given Justice George Sutherland an unjustified reputation as a judicial conservative. In fact, Sutherland’s origins were progressive, and during his tenure, he wrote several opinions changing the constitutional structure to conform more closely to progressive ideals. Humphrey’s Executor was one such opinion.
The issue in Humphrey’s Executor was whether the President could remove a member of the Federal Trade Commission (FTC) before the end of the member’s congressionally-fixed seven-year term. Sutherland evaded the holding in Myers by asserting that the FTC was not an executive agency, but a quasi-legislative and quasi-judicial entity “created by Congress as a means of carrying into operation legislative and judicial powers.”
Among the implications from Sutherland’s formulation were: The FTC was only “quasi-legislative,” so it didn’t exercise “the legislative Powers” that the Constitution vested solely in Congress. It was only “quasi-judicial,” so although its members were masters in chancery, they need not have life terms and judges could not appoint or remove them. Since the FTC merely “carried out” policy, therefore(!) it was not an executive agency subject to presidential control. On the contrary, it was “not to be ‘subject to anybody in the government but . . . only to the people of the United States . . . separate and apart from any existing department of the government.”
This was a constitutional revolution indeed. Built on verbal legerdemain.
(Thanks to Andrew Hyman for the pointer.)
Posted at 6:02 AM