Via Eugene Volokh at Volokh Conspiracy, the Justice Department has informed Congress that "the Department of Justice has determined that certain for-cause removal provisions that apply to members of multi-member regulatory commissions are unconstitutional and that the Department will no longer defend their constitutionality." From the Department's letter:
In Myers v. United States, 272 U.S. 52 (1926), the Supreme Court recognized that Article II of the Constitution gives the President an "unrestricted" power of "removing executive officers who had been appointed by him by and with the advice and consent of the Senate." Id. at 176. In Humphrey's Executor v. United States, 295 U.S. 602 (1935), the Supreme Court created an exception to that rule. The Court held that Congress may "forbid the[] removal except for cause" of members of the FTC, on the ground that the FTC exercised merely "quasi-legislative or quasi-judicial powers" and thus could be required to "act in discharge of their duties independently of executive control." Id. at 628-629. Statutory tenure protections for the members of a variety of independent agencies, including the FTC, the NLRB, and the CPSC, rely on that exception.
The Department has concluded that those tenure protections are unconstitutional. The Supreme Court has made clear that the holding of Humphrey's Executor embodies a narrow "exception" to the "unrestricted removal power" that the President generally has over principal executive officers and that the exception represents "'the outermost constitutional limit[] of permissible congressional restrictions'" on the President's authority to remove such officers. Seila Law LLC v. Consumer Fin. Protection Bureau, 591 U.S. 197, 215, 218 (2020) (citation omitted). Further, the Supreme Court has held, the holding of Humphrey's Executor applies only to administrative bodies that do not exercise "substantial executive power." Id. at 218-219. The Supreme Court has also explained that Humphrey's Executor appears to have misapprehended the powers of the "New Deal-era FTC" and misclassified those powers as primarily legislative and judicial. Id. at 218.
The exception recognized in Humphrey's Executor thus does not fit the principal officers who head the regulatory commissions noted above. As presently constituted, those commissions exercise substantial executive power, including through "promulgat[ing] binding rules" and "unilaterally issu[ing] final decisions * * * in administrative adjudications." Seila Law, 591 U.S. at 218-219. An independent agency of that kind has "no basis in history and no place in our constitutional structure." Id. at 220; see id. at 222 & n.8.
To the extent that Humphrey's Executor requires otherwise, the Department intends to urge the Supreme Court to overrule that decision, which prevents the President from adequately supervising principal officers in the Executive Branch who execute the laws on the President's behalf, and which has already been severely eroded by recent Supreme Court decisions. See, e.g., Selia Law, 591 U.S. at 223-229; Free Enter. Fund v. Public Co. Accounting Oversight Bd., 561 U.S. 477, 492-494 (2010).
Agreed. Especially agreed as to the first three paragraphs. There's been a lot of speculation as to whether Humphrey's Executor might be overruled, but I don't think overruling is necessary if the case is read narrowly (and correctly). As the DOJ says, and as emphasized in this earlier post, the central factual premise of Humphrey's Executor was that the relevant official did not exercise executive power. There were various ways the Justices might have distinguished Myers, but this is how they actually did it. Thus the holding of Humphrey's Executor is — and is only — that Congress may limit the President's power to remove officers who do not exercise executive power.
That holding is correct. The President does not have a free-standing removal power. The President's power of removal arises from the Constitution's vesting of executive power in the President. As Justice Scalia argued in his dissent in Morrison v. Olson, the President does not have all of the executive power, as the Constitution requires, if some official exercising executive power is beyond the President's control. Thus, to the extent an officer does not exercise executive power, this constitutional limit is simply not implicated.
It's true that the Court in Humphrey's Executor may have been mistaken or disingenuous about the nature of the power exercised by the agency. That is irrelevant to the Court's holding. What the Court said was that Congress could limit the removal of non-executive officers. If the Court then misapplied that rule in the case itself, that does not change the rule.
It's also true that Humphrey's Executor has been understood (or assumed) to have a broader application in subsequent years. I agree with the DOJ letter that if the case is given a broader application to protect executive officers, it would be unconstitutional and should be reconsidered. But that isn't necessary. All that's needed is to read it narrowly and correctly.
This approach is consistent with the approach I've suggested more generally for non-originalist precedents. Often, all that it necessary to move the law in the direction of originalism is to not extend non-originalist precedents. That's not to say that non-originalist precedents should never be overruled, but my inclination would be not to overrule them unnecessarily.
Further, there's good practical reason to emphasize that even under the Constitution's original meaning Congress may well have power to limit the removal of non-executive officers. There may be important officers and agencies that do not exercise executive power. And the Federal Reserve — at least as to its core powers — might be one.
Posted at 6:15 AM