Throughout this week, the Washington Examiner’s Restoring America project will feature its latest series, “Reforming the Deep State: Reining in the Federal Bureaucracy.” We invited some of the best policy minds in the conservative movement to speak to the issues of what waste, fraud, abuse, and unaccountability exist throughout the federal government and what still needs to be done. To learn more about the series, click here.

If the Supreme Court wants to correct one of the worst decisions of the progressive era, one that violated basic separation of powers principles and vitiated the constitutional authority of the president as head of the executive branch, it will finally overturn Humphrey’s Executor v. U.S. after 90 years of poisoning the government well.

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If you’ve never heard of the case, don’t be embarrassed. Most people, aside from government wonks and constitutional nerds, haven’t. However, it’s finally being brought to the fore because of President Donald Trump’s firing of government officials at so-called independent agencies, and it’s about time.

The Supreme Court just issued a temporary stay of lower court orders in Trump v. Slaughter that told Trump he couldn’t fire Rebecca Slaughter, a commissioner on the Federal Trade Commission. This followed other recent cases in which the justices stayed lower court decisions banning Trump from firing officials such as Gwynne Wilcox and Cathy Harris from the National Labor Relations Board and the Merit Systems Protection Board, respectively.

All of these government officials sued, claiming Trump lacked the authority to fire them. They relied on Humphrey’s Executor, which appears to be on life support. So, what was that case all about and why is it still important today?

We have such a huge administrative state today because Congress started creating “independent” federal agencies to carry out the functions of the executive branch, including the Federal Trade Commission, the Federal Communications Commission, the National Labor Relations Board, and the Federal Election Commission, where I once served as a commissioner.

YES, TRUMP CAN FIRE BUREAUCRATS WHO BLOCK HIS AGENDA

This began with former President Woodrow Wilson and accelerated with former President Franklin D. Roosevelt. They, like other progressives, thought federal bureaucrats, or so-called “experts,” should be free of the political process and political interference to implement public policy, no matter who is in the White House.

As a result, when Congress created these agencies, it limited the president’s ability. Presidents can nominate the commissioners who head such agencies with the advice and consent of the Senate, but the statutes setting them up usually limit the president’s ability to remove them once they’ve been confirmed, except for cause.

It is particularly apt that the latest Supreme Court order on Trump’s firing of a commissioner involved the FTC, the same agency that generated the Humphrey’s Executor decision in 1935.

William Humphrey was nominated as a commissioner by former President Herbert Hoover in 1931 and confirmed by the Senate for a seven-year term. Federal law provides that FTC commissioners may only be fired by the president for “inefficiency, neglect of duty, or malfeasance in office.” When Roosevelt became president, he asked Humphrey, a conservative, to resign. Humphrey refused, and Roosevelt fired him. When Humphrey died shortly after Roosevelt fired him, the executor of his estate sued to recover his salary, which he claimed was due.

Unfortunately, the court ruled against Roosevelt, holding that the limitation Congress placed on a president’s ability to remove an FTC commissioner was constitutional. The court reasoned that because the FTC did not carry out executive branch duties but only quasilegislative and judicial functions, it did not interfere with the president’s authority to run the executive branch.

Of course, this decision was pure poppycock, particularly in view of the FTC’s power and authority. It directly contradicted a 1926 decision, Myers v. U.S., in which the court correctly held that under Article II, the removal of federal officers is an inherently executive function that cannot be limited by Congress.

In any event, 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. It is the president who is designated in Section 3 of Article II with the responsibility to “take Care that the Laws be faithfully executed.”

It should be obvious that the FTC is exercising considerable executive power and is not just a “quasilegislative” or “quasijudicial” body. Yet, it is outside the control and supervision of the president. The same is true for numerous other federal agencies created by Congress.

After paying lip service to the Humprey’s Executor decision for decades, the Supreme Court has finally started questioning the premises of its holding. In 2010, the court narrowed the scope of Humphrey’s Executor and expanded the president’s removal powers in Free Enterprise Fund v. Public Company Accounting Oversight Board, and in 2020, in Seila Law LLC v. Consumer Financial Protection Bureau.

CLICK HERE TO READ MORE FROM THE “REFORMING THE DEEP STATE” SERIES

Will the court take the final step and overturn Humphrey’s Executor? It should, and hopefully it will when these cases finally get to the Supreme Court, giving justices the opportunity to correct the mistake the court made almost a century ago.

Otherwise, the behemoth administrative state, unanswerable and unaccountable to voters, and the political process will continue to plague us and hamper the future of our nation.

Hans von Spakovsky is a senior legal fellow at the Edwin Meese III Center for Legal and Judicial Studies at the Heritage Foundation.