Humphrey’s Executor

Who is Humphrey’s Executor and why should you care?

Humphrey’s Executor was the plaintiff in a 1930s court case. Mr. Humphrey, a Federal Trade Commissioner, had passed away, and the executor of his will wanted to recover the salary he was due for his work as a commissioner from October 8, 1933, to the time of his death on February 14, 1934. The problem was that President Franklin Delano Roosevelt had fired Humphrey, who refused to resign, after FDR told him, “I do not feel that your mind and my mind go along together on either the policies or the administering of the Federal Trade Commission, and, frankly, I think it is best for the people of this country that I should have a full confidence.”

The issue on appeal was whether the president had the power to fire Humphrey. The Supreme Court ruled that he didn’t. They reasoned that the law passed by Congress that established and regulates the Federal Trade Commission (FTC) set a fixed term of office for commissioners and provided that they could only be removed by the president for inefficiency, neglect of duty, or malfeasance in office. The Court held that Congress intended to restrict the power of removal to those situations and that presidents are not free to fire appointees like Humphrey just because they are of different minds on policy.

The Supreme Court’s decision implies that their ruling applies beyond the FTC. The Court focused on “the character of the Commission,” which they noted is “an independent, nonpartisan body of experts, charged with duties neither political nor executive, but predominantly quasi-judicial and quasi-legislative.” That means their decision should apply to all congressionally created commissions of similar nature. The Court wrote that “When Congress provides for the appointment of officers whose functions, like those of the Federal Trade Commissioners, are of Legislative and judicial quality, rather than executive, and limits the grounds upon which they may be removed from office, the President has no constitutional power to remove them for reasons other than those so specified.”

That clearly doesn’t make Trump happy. The Trump administration is in the process of trying to upend the division of power under the Constitution. It is trying to assume congressional power for the executive branch and undercut the legitimacy of the judiciary while exposing individual judges to threats. That’s why Humphrey’s Executor, long considered firmly established precedent, is under attack by the administration, which views its ability to fire those it views as disloyal, or perhaps merely as inconveniently occupying seats they would prefer to see others in, is newly relevant. The concern is that the Trump administration will take a case to the Supreme Court that will lead the Court to reverse or rein in that precedent, expanding Trump’s power further at the expense of Congress.

The administration will presumably argue Humphrey’s Executor is inconsistent with Article II, Section I of the Constitution, which provides that “The executive Power shall be vested in a President of the United States of America.” While Article II powers are vested in a single person, the president, the nature and extent of his power is less clear. On one end of the spectrum are those who view it as creating a benevolent administrator. On the other end of the spectrum is Trump who, along with his Project 2025 buddies, has adopted what’s called the unitary executive approach, which assigns all power to the president, eroding long held norms that support a balance of power, for instance, the post-Watergate separation between the White House and the Oval Office on considerations of who gets prosecuted and who doesn’t.

Currently, the unitary executive theory is being used as an attack on the rule of Humphrey’s Executor. There are a number of cases pending involving appointees whom Trump has fired. Like the case involving Gwynne Wilcox, a Black woman and coincidentally (or perhaps not) the first member of the National Labor Relations Board to be removed since the board was established in 1935. By law, members of the Board can only be removed for negligence or misconduct, but Trump fired her without either of those. And there are consequences even before a replacement is announced. Her removal leaves the Board with just two members so that it lacks the three-person quorum necessary to make a decision about cases before it. The NLRB’s assigned role is protecting employees’ freedom of association, including the right to organize, seek improved working conditions, and choose whether to have a representative negotiate on their behalf, or refrain from doing any of the above. Now, they can’t do that.

District Judge Beryl Howell, in the District of Columbia, ruled on Thursday that Trump lacked the ability to fire Wilcox and that she should be immediately reinstated. The administration has appealed. The framers of the Constitution “made clear that no one in our system of government was meant to be king – the President included – and not just in name only,” Judge Howell wrote. She ruled that Trump’s effort to fire Wilcox was a “blatant violation” of the law, concluding that “A president who touts an image of himself as a ‘king’ or a ‘dictator,’ perhaps as his vision of effective leadership, fundamentally misapprehends the role under Article II of the US Constitution.”

Now, the D.C. Circuit and perhaps, ultimately, the Supreme Court will have a chance to review her decision. Judge Howell defined the role of a president in a manner that is inconsistent with the all-powerful role assigned by the unitary executive theory. She says the Constitution creates a president as “conscientious custodian of the law, albeit an energetic one, to take care of effectuating his enumerated duties, including the laws enacted by the Congress and as interpreted by the Judiciary,” but not as a person entitled to assume Congressional power for himself. The Trump administration says her firing, along with others it has made, were justified because “these were far-left appointees with radical records of upending longstanding labor law, and they have no place as senior appointees in the Trump administration.” That sort of political rationale falls squarely within the type of excuse the Supreme Court said in Humphrey’s Executor is impermissible.

But Trump has continued to assert aggressive control over hiring and firing, as well as the work done in quasi-independent bipartisan offices established by Congress. Trump issued an executive order on February 18 entitled “Ensuring Accountability for All Agencies,”

In that order, Trump goes beyond the power to hire and fire, assuming the power to direct every agency in every detail, including, most dangerously, in Section 7, to decide what laws mean if there is any dispute.

The open question is whether the Supreme Court will reverse its own precedent and sign on to Trump’s view. The unitary executive theory, previously a fringe view, has gained traction with mainstream conservatives during Trump’s tenure. Former attorney general Bill Barr was one of the first to sign on, but support has continued to grow. As Marc Elias has noted, “In more recent opinions [than Humphrey’s Executor], justices have maintained precedent set by previous rulings while at the same time expanding the president’s authority to remove other types of federal officials and giving him increased control over the executive branch.

My former U.S. Attorney colleague Harry Litman explained the importance of this development to me like this, “So much of the administrative state as we know it is guided by so-called independent agencies, to whom Congress has given a measure of insulation so that they can apply specialized or technical expertise free from raw political control. If the Administration’s position prevails, all of that would be out the window if a new President felt like cleaning house.” If Trump has his way, all of those agencies will work for him, not for the American people.

Whether it is probationary federal employees or key appointees to Congressionally created board, there is little doubt Trump is committed to firing federal employees who he thinks could be in his way. He fired Inspectors Generally illegally, without the 30-days notice he is required to give Congress, when he could, with just a little delay, have done it lawfully. It’s part of the power grab we’re watching him make throughout government.

What will the Supreme Court do? Ominous signs came from the notorious ruling last summer granting ex-presidents wide immunity from accountability to criminal law. That case did not rely on the unitary executive theory, but Chief Justice John Roberts could not help but sing the tune. The president is “the only person who alone composes a branch of government,” he wrote.

In her dissent in Trump v. United States, following Chief Justice Roberts’ capitulation to Trump’s demands for immunity from criminal prosecution, Justice Sonia Sotomayor wrote, “In every use of official power the President is now a king above the law.” That is certainly his goal. And, at least in this respect, it’s up to the courts to hold the line. The question is whether precedent will trump politics, or whether a conservative majority on the Supreme Court will continue to turn over the keys to the kingdom to the president.

We’re in this together,

Joyce