There are only three branches of government, despite what the bureaucracy believes, and that’s a problem. In the 1935 decision in Humphrey’s Executor, the Supreme Court carved out an exception to the president’s power to remove executive branch officials where the congressionally created position was intended to be independent of the president because it exercised quasi-judicial and quasi-legislative authority. Sure, it was listed under the executive branch of government as the catchall for commissions and agencies that didn’t fit in elsewhere, but they were hybrids such that the president could not fire officials at will.
Head of the Office of Special Counsel, Hampton Dellinger, son of renowned former solicitor general and SJ reader, Walter Dellinger, is putting the vitality of Humphrey’s Executor to the test.
The administration’s emergency application asked the court to vacate a federal trial judge’s order temporarily reinstating Hampton Dellinger, the head of the Office of Special Counsel. Mr. Dellinger leads an independent agency charged with safeguarding government whistle-blowers and enforcing certain ethics laws. The position is unrelated to special counsels appointed by the Justice Department.
“This court should not allow lower courts to seize executive power by dictating to the president how long he must continue employing an agency head against his will,” the administration’s filing said.
Forget that this case involves Trump, as Humphrey’s Executor (because Humphrey died during the pendency of the case) was against FDR, who wanted to get rid of Hoover’s Federal Trade Commission member. Humphrey wasn’t going quietly, as he argued that the FTC was created as an independent agency, under the umbrella of the executive branch, but not subject to the whims of the president. The Supreme Court agreed.
We think it plain under the Constitution that illimitable power of removal is not possessed by the President in respect of officers of the character of those just named. The authority of Congress, in creating quasi legislative or quasi judicial agencies, to require them to act in discharge of their duties independently of executive control cannot well be doubted; and that authority includes, as an appropriate incident, power to fix the period during which they shall continue, and to forbid their removal except for cause in the meantime. For it is quite evident that one who holds his office only during the pleasure of another cannot be depended upon to maintain an attitude of independence against the latter’s will.
So far so good, and indeed, Congress made good use of its putative authority to create commissions and agencies that had quasi-judicial and quasi-legislative with fixed terms of office that would span a president’s term of office such that the officials who were charged with acting independent of the executive could do so without fear of termination.
Consider being named to the National Labor Relations Board, with a love note from the White House that said, “Remember, the Teamsters always win and the UAS always loses. Have fun!” Not much point to its adjudication of Section 7 rights when the outcome is fixed because the president says so.
There are many such independent positions in government, all under the auspices of the President, which were created to be fair and honest, independent from political influence, and upon which a great many of our laws rely. Indeed, it’s often a prerequisite to suit that a litigant has to exhaust administrative remedies before bringing suit. The point is that the parties will get a full and fair administrative hearing for the purpose of resolving issues before the courts get involved.
But on the other hand, this carve-out exists by judicial fiat as held in Humphrey’s Executor. In 2020, the Supreme Court in Seila v. CFPB distinguished “traditional independent agencies headed by multimember boards or commissions” from the CFPB, which had a single person head and was funded by the Federal Reserve.
The law that created the bureau, using language identical to that at issue in Humphrey’s Executor and in Mr. Dellinger’s case, said the president could remove its director only for “inefficiency, neglect of duty or malfeasance in office.”
In a 5-to-4 decision, the court struck down that provision, saying it violated the separation of powers and that the president could remove the bureau’s director for any reason.
In Seila, the Court held that there was nothing in Article II of the Constitution limiting the president’s authority to fire anyone in the executive branch, and even though Congress’ intent that the CFPB be independent of the president, it did not trump the Constitution.
The President’s power to remove—and thus supervise—those who wield executive power on his behalf follows from the text of Article II, was settled by the First Congress, and was confirmed in the landmark decision Myers v. United States, 272 U. S. 52 (1926). Our precedents have recognized only two exceptions to the President’s unrestricted removal power. In Humphrey’s Executor v. United States, 295 U. S. 602 (1935), we held that Congress could create expert agencies led by a group of principal officers removable by the President only for good cause. And in United States v. Perkins, 116 U. S. 483 (1886), and Morrison v. Olson, 487 U. S. 654 (1988), we held that Congress could provide tenure protections to certain inferior officers with narrowly defined duties.
The Court declined to extend this carve-out to a board with a single head, despite Congress’ intent that the FCPB be independent. The issue of whether the carve-out for multimember board was not part of the case. Nor was the issue of independent counsel, whether special counsel or inspectors general. The problem is that the same constitutional authority possessed by the president would apply but for the Humphrey’s Executor carve-out, and there is nothing in the Constitution that supports the existence of such a carve-out.
Basically, the Court just made it up because it seemed reasonable and good policy. It remains reasonable and good policy, not to mention a significant portion of government relies on boards and agencies to be independent in the performance of their quasi-judicial and quasi-administrative duties. Should the Court overturn the carveout, it would wreak havoc with the government and undermine more than a century of administrative law. If independent agencies are no longer independent, then they have no reason to exist and no legitimacy in anything they do. But then, who administers the laws enacted over the past century upon which our nation relies?
Constitutionally, the question of who wields the “quasi-legislative” and “quasi-judicial” power is quite easy. Legislative power is vested in Congress. Judicial power is vested in the Courts. Admittedly, the late-nineteenth and early twentieth-century Progressive movement disliked the separation of powers, but it is there in the constitution.
Anything is quite easy if you remove all nuance and context. 1 equals 1. Legislative is legislative, judicial judicial. It’s almost, almost as though the post is examining the boundaries between the branches rather than the functioning of each branch in isolation. Tsk.
My point is that the “independent agencies” whose independence is based on their exercise of “quasi-judicial” or “quasi-legislative” power should be constitutionally suspect. There is no provision in the constitution for the executive to exercise legislative or judicial power. Madison was quite insistent on that in his writings.
But then, if the courts are no longer going to afford deference to regulatory interpretations of the agencies, perhaps it doesn’t matter that they are all being conducted by pen-and-phone. The agencies simply revert to extensions of the executive policies that are being challenged in the courts. The only function of agency “hearings” becomes reaching an outcome directed by policy, then the courts review to see if it is consistent with law and due process. So, every agency will become similar to the Title IX campus star chambers, and the neutral, objective decisions will be left to the courts.
Humphrey’s Executor was the spearhead of a legal movement that sought to replace formalistic legal thinking with a new approach focused on what they called “reasoned elaboration.” This revolt against the rigidly conservative Supreme Court of that era was led by the elite legal thinkers of its time (i.e., Harvard, Yale and other Ivy Law School academics like Henry Hart, Albert Saks, Herbert Wechsler, and Lon Fuller). They were convinced the “Legal Process” needed to be rethought in the wake of growing complexities in the law that required deference to “reasoned elaborators” who could execute the laws enacted by Congress with the benefit of enlightened “independent” and “expert” specialties. They developed a whole theory of how this could be done within constitutional constraints, and argued that in the modern world, we had no other rational choice.
The key would be that this could be done by means of governmental entities that would act under a strict set of administrative laws to permit them to apply their expertise only in a manner permitted by Congress. Congress could by statute create so-called “independent agencies” to “apply” legal frameworks enacted by Congress under a set of general “administrative” standards also set by statute. What followed was the creation of agencies like the SEC, FTC, and FCC, to govern a wide range of interstate commerce. These brilliant legal minds honestly believed that an administrative legal process could be created that would be both expert and non-political.
Over the years we have learned they were wrong. The governance of huge swaths of commerce cannot be divorced from politics (or money), and the work of huge government entities needed to administer this cannot be done be “experts.” It is now obvious that these agencies are not “independent,” not “apolitical,” and not operated by “experts.” In recent years it has also become clear that undue deference to purported “expertise” does not make for good policy because “experts” are humans who have foibles as well. And our knowledge of how bureaucracies actually function shows they are often not worthy of deference accorded to “experts.”
The Supreme Court has for many decades now been narrowing the Humphrey’s Executor precedent because it has recognized that the legal foundation and concepts on which that decision was built were fundamentally flawed. Where we go from here is far from clear, but returning to a failed model espoused by Dellinger is not the way.
Don’t forget that there are other agencies/boards that involve real expertise and have remained apolitical. Think NTSB, for example. The trick is to distinguish which is which, not making a sweeping generalization. Do you really want a Trump loyalist with neither knowledge nor experience with airplane crashes running the NTSB?
I agree that the NTSB, which has a highly limited scope of authority, which is mostly technical, is a good example of a government function that may best be run by technocrats. But I think it is a rare beast. Even highly technical agencies, however, can lose their mojo when they start to serve a larger purpose (and become large and expensive organizations) and succumb to politics. NASA is one example. Once that happens, I tend to think the best option is to hold the leaders of those entities politically accountable, and the constitutional way we do that is as part of the Executive Branch, whether run by Trump or anyone else.
I don’t disagree, but I worry about painting everybody with the same brush. The MAGA faithful are absolutely certain that it’s all corrupt. I prefer to figure out what is and what isn’t before doing permanent damage.
Worried about painting everybody in with the same brush, proceeds to paint everybody with the same brush.
According to doge.gov/regulations the NTSB has contributed 276 sections of regulation comprised of 55.65 thousand words. The website does not provide the ‘Unconstitutional Index’ on an agency basis, that is only broken down on an annual basis with no way to attribute it to particular laws or agencies.
The website links to a Forbes article, which I suppose represents DOGE’s view on the issue.
I hope this is preserved for future generations, just as the Kafka Museum in Prague has preserved another age’s view of regulation and regulations.
An excellent concise summary of a long and complicated story. Thanks.
My agency started out being headed by people who had created (literally) new elements in the periodically table.
It now consists of former Congressional staffers who know how to spell the word “physics”, but not much more. With the occasiona academic, or former executive of a company i used to regulate, maybe.
One of them famously hollowed out the senior executive service ranks when they tried to convince her that she wanted to do something that was unwise. She was lucky, but the managers learned to obey their masters.
Right now, these independent agencies are often ruled by a legislature that has a love-hate relationship with them. Half of the Congress wants to terminate the industry being regulated, while the other half wants to terminate the regulators, and the power shifts every 2 years or so. It is not good for business or the public.
I don’t know what would be a better way to do the stuff they do.
And that’s why eliminating Chevron deference was a good thing.