The U.S. Supreme Court is signaling that it may be finally ready to put the kibosh on longstanding precedent used by left-wing progressives to cripple America’s separation of powers.
On Monday, the high court granted a request from the Trump administration to temporarily pause a lower court injunction by a Biden-appointed district judge. That edict attempted to block President Trump from firing Rebecca Slaughter, a Democrat member of the Federal Trade Commission (FTC).
What was particularly notable about the Supreme Court’s order is the revelation that the justices will be considering the merits of the case, with oral arguments tentatively scheduled for December. The high court specifically instructed both parties to file briefs addressing two key questions: 1) “Whether the statutory removal protections for members of the Federal Trade Commission violate the separation of powers and, if so, whether [Humphrey’s Executor v. United States] … should be overruled,” and 2) “Whether a federal court may prevent a person’s removal from public office, either through relief at equity or at law.”
While likely not as well-known as other past SCOTUS decisions, Humphrey’s Executor has had major negative implications for America’s separation of powers and the ability of presidents to fully exercise their Article II authority.
The case first came to fruition in the early 1930s after Republican President Herbert Hoover appointed William Humphrey to serve as a member of the FTC for a full seven-year term. Upon taking office, President Franklin D. Roosevelt, a Democrat, sought Humphrey’s resignation due to the fact that the latter was a conservative.
When Humphrey declined to do so, Roosevelt fired him. According to Oyez, the FTC Act, which was passed by Congress, “only allowed a president to remove a commissioner for ‘inefficiency, neglect of duty, or malfeasance in office.'”
While Humphrey passed away shortly after his firing, his executor filed suit to challenge Humphrey’s dismissal and recover his salary. The case ultimately made its way to the Supreme Court, which aimed to address the question of whether provisions of the FTC Act unconstitutionally encroached upon the president’s Article II powers.
In its 1935 decision, the Supreme Court unanimously ruled against Roosevelt, arguing that Humphrey’s termination lacked justification and that the FTC Act was constitutional. As summarized by Oyez, the high court “reasoned that the Constitution had never given ‘illimitable power of removal’ to the president,” and established the precedent that so-called “independent agencies” like the FTC were different than other federal departments because Congress created them “to perform quasi-legislative and judicial functions.”
As The Heritage Foundation’s Hans van Spakovsky recently observed, the decision “was pure poppycock” given that “the FTC, with its authority to promulgate regulations that have the authority of law and its power to pursue individuals it believes have engaged in unfair or deceptive practices, is engaging in the very essence of an executive function.” Furthermore, “[i]t is the president,” he added, “who is designated in Section 3 of Article II with the responsibility to ‘take Care that the Laws be faithfully executed.'”
In addition to stripping the president of key Article II powers, the Supreme Court’s Humphrey’s Executor ruling also helped birth what has now become known as the administrative state. Comprised in large part of these so-called “independent agencies,” this de facto fourth branch of government has effectively been allowed to operate outside of the confines of the Constitution for decades.
As lawyer Mark Pinkert previously noted in these pages, one of the biggest flaws in Humphrey’s Executor was the justices’ underlying assumption that “agency officials will act as ‘nonpartisan’ experts, impervious to politics,” and that “the longer that these officials served in Washington, D.C., the more expertise they would garner and, in turn, the less political they would become.”
“This idea of completely apolitical, objective actors in government is plainly wrong. From Plato to Aaron Sorkin’s ‘The West Wing,’ thinkers have fantasized about benevolent tyrants and philosopher kings ruling over the masses in their best interests,” Pinkert wrote. “But has it ever worked in practice? The Supreme Court offered no empirical, sociological, psychological, or historical support for its assertions in Humphrey’s Executor. It simply told the people to believe that powerful bureaucrats could remain entirely impartial, and that they would act only for the common good.”
While the Supreme Court has slowly chipped away at the power of the administrative state since Humphrey’s Executor, it has never fully revoked the precedent it established in the case. That is, until maybe now.
By agreeing to take up the dispute between Slaughter and the Trump administration and asking both parties to address Humphrey’s constitutionality, it appears there are enough justices open to righting the court’s previous wrong. For the sake of America’s constitutional order, let’s hope that they do.