Overdue for an Overruling
The Supreme Court has the chance to restore executive power by overturning Humphrey’s Executor.
By Chad Squitieri, Assistant Professor of Law at the Catholic University of America.
In Federalist No. 70, Alexander Hamilton highlighted the need for “an energetic Executive.” President Trump is certainly that. In the first few weeks of his second term, he has directed a flurry of executive actions at breakneck speed, covering a multitude of topics. But of particular note are the President’s decisions to fire both one of the Commissioners and the General Counsel of the National Labor Relations Board (NLRB).
The NLRB is one of the tools that modern presidents have to shape federal labor policy. And because the president cannot be everywhere at once, the success of the president’s regulatory agenda depends in large part on his ability to replace key administrative officials, at the NLRB and elsewhere, who might otherwise hinder the implementation of the president’s policy objectives. This explains the importance of a recent lawsuit filed by former NLRB Commissioner Wilcox, who contends that President Trump did not have the legal authority to remove her from office.
Front and center in Ms. Wilcox’s lawsuit is a statute that purports to prevent the President from removing NLRB commissioners who do not engage in “neglect of duty or malfeasance.” But recently, amidst lawsuits such as Ms. Wilcox’s, the Trump administration has taken the correct position that those types of statutory tenure protections are unconstitutional. Ms. Wilcox’s lawsuit, or one like it, therefore seems destined to give the Supreme Court a chance to determine the constitutionality of statutes that purport to limit the president’s constitutional authority to remove officials from office.
Should the Supreme Court get the chance, it should make clear that Congress cannot interfere with the President’s constitutional authority to remove executive officials from office. Such a ruling would be consistent with views shared by some of the Constitution’s framers.
To wit, in 1789, several framers served as legislators in the First Congress. And in that capacity, they made several important decisions concerning the establishment of the new national government—including a key decision concerning the power to remove federal officials from office.
Thanks to notes from James Madison, we know that “[f]our opinions were advanced” in debates concerning the power of removal. Some legislators sought to empower the Senate to play a role in removing an official from office. But “[a]fter very long debates,” that idea was rejected. The opinion that “prevailed” as the opinion “most consonant to the text of the Constitution, to the policy of mixing the Legislative and Executive Departments as little as possible, and to the requisite responsibility and harmony in the Executive Department,” was that “the Executive power being generally vested in the President, and the Executive function of removal not expressly taken away, it remained with the President.”
Nearly a century and a half after that “Decision of 1789,” the Supreme Court reaffirmed the president’s constitutional removal authority in Myers v. United States (1926). In that case, the Court considered the constitutionality of a statute that purported to require the president to seek Senate approval before firing certain postmasters. After “conduct[ing] an exhaustive examination of the First Congress’s determination in 1789, the views of the framers and their contemporaries, historical practice, and our precedents up until that point,” the Myers Court concluded that the Constitution “‘grants to the President’ the ‘general administrative control of those executing the laws, including the power of appointment and removal of executive officers.’”
The president’s constitutional removal authority, which was recognized by Congress in the Decision of 1789 and the Supreme Court in Myers, flows naturally from the Constitution. Of particular note are the Constitution’s three vesting clauses, which vest power in three different ways.
The Article I vesting clause vests certain “legislative powers” in a two-chambered Congress. And the Article III vesting clause vests “the judicial power of the United States” in “one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” But Article II’s vesting of “the executive power” takes a third approach. Rather than vest executive power in a two-person executive branch (like the vesting of legislative powers in a two-chambered Congress), or vest executive power in a chief executive and a to-be-determined number of inferior executive officials (like the vesting of judicial power in a Supreme Court and a to-be-determined number of inferior federal courts), Article II vests “the executive power” in a single person: “a President of the United States of America.”
To be sure, the framers recognized that the president would not be able to wield federal executive power without any help. Quite naturally, the president must rely on a collection of executive officials to exercise executive power on the president’s behalf. Nonetheless, the Constitution imposes a duty on the president alone to “take Care that the Laws be faithfully executed.” And for some time, the president’s constitutional removal authority has been understood as an important means through which the president can ensure that the laws be faithfully executed.
As Madison explained, “[i]f the duty to see the laws faithfully executed be required at the hands of the” president, “it would seem that it was generally intended he should have that species of power which is necessary to accomplish that end.” What’s more, Madison could “not see how the president can take care that the laws be faithfully executed” if an official was “not to depend upon the president for his official existence, but upon” both the president and a second “body,” such as a Senate empowered to play a role in the removal process.
Why then, despite Madison and Myers, do statutes still purport to limit the president’s constitutional removal power? The reasons are no doubt varied. But much of the blame can be traced to the Supreme Court’s mistaken decision in Humphrey’s Executor v. U.S. (1935).
In Humphrey’s, the Court ruled that Congress could limit the president’s ability to remove federal trade commissioners from office because those commissioners were said to exercise “quasi” legislative and judicial powers, rather than purely executive power. The decision was almost comically wrongheaded, as the Constitution does not speak of “quasi” powers. Instead, the Constitution’s vesting clauses speak of three forms of power: legislative, executive, and judicial. And as the Humphrey’s Court conceded, exercises of executive power were “inherently subject to the exclusive and illimitable power of removal by the Chief Executive.”
The decision in Humphrey’s, which has given rise to modern conceptions of so-called “independent” agencies, therefore turns on nonsensical wordplay that undermines our constitutional structure. Thus, it is with good reason that the Supreme Court has, for several decades, steadily chipped away at the Humphrey’s decision.
In Morrison v. Olson (1988), the Court explained that although Humphrey’s “did rely” on an effort to distinguish exercises of executive power from exercises of “quasi” powers, the Court’s “present considered view” no longer called for such distinctions. A few decades later, in Free Enterprise v. PCAOB (2010), the Court announced a bright line rule that further curtailed Humphrey’s damage. Pursuant to that rule, “Congress cannot limit the President’s” removal authority by imposing “two layers of protection from removal.” Most recently, in Seila Law v. CFPB (2020) and Collins v. Yellen (2021), it made clear that, if an agency is led by a single official, that official must be subject to at-will removal by the president.
Given that steady stream of rulings, only one aspect of Humphrey’s arguably remains standing: removal protections for multimember agencies (rather than single-headed agencies). And, Humphrey’s is still cited for the proposition that agencies led by multimember commissions can be structured so that those commissioners are insulated from the president’s removal authority. Ms. Wilcox’s lawsuit, which concerns an NLRB led by multiple commissioners, therefore tees up an opportunity for the Supreme Court to formally overrule whatever shell of Humphrey’s remains. And if given the chance, the Supreme Court should make clear that Humphrey’s was wrongly decided.
The modern president exercises influence through a myriad of administrative agents who exercise executive power on the president’s behalf. In the labor context, those agents include officials at the NLRB. To properly ensure that the president retains supervisory control over the officials who act in his stead, the Supreme Court should make clear that Congress cannot interfere with the president’s constitutional removal power. To the extent that requires a formal overruling of Humphrey’s—or more specifically, a formal overruling of whatever is left of that erroneous precedent—then the Court should do just that.