Supreme Court Grants Cert in Trump v. Slaughter Teeing Up Whether Humphrey’s Executor Should Be Overruled 

On September 22nd, the U.S. Supreme Court granted cert in Trump v. Slaughter, signaling it will address an important question of administrative law going to the heart of our system of separated powers and checks and balances: in essence, does the U.S. Constitution authorize the existence of a headless fourth branch of government comprised of unelected administrators who are unaccountable to the People’s elected representatives? Americans for Prosperity Foundation believes the answer to that question is a resounding “no.”   

Here’s the back story. The U.S. Constitution establishes three branches of government—executive, legislative, and judicial—that each exercise a different form of government power. The Constitution vests all executive power in the President who is tasked with faithfully executing and enforcing federal law and managing the Executive Branch.  The President may, of course, enlist the aid of subordinates in carrying out his constitutional responsibilities. But the President must be able to effectively supervise those subordinates. To do so, as well as to protect individual liberty and ensure democratic accountability, the Constitution grants the President plenary power to remove Executive Branch officials at will. At least that is how it is supposed to work. 

But today, there are many powerful administrative bodies within the Executive Branch—so-called “independent agencies”—that Congress has tried to shield from presidential control through statutory restrictions on the President’s constitutional removal power, even for agency heads who are principal Officers who must be confirmed by the Senate. These independent agencies wield substantial executive power to, among other things, launch investigations, bring enforcement actions against businesses and individuals, and seek crushing civil penalties. For that matter, in many cases these free-floating administrative bodies have the power to issue burdensome regulations that bind the public and even to bring in-house enforcement actions—where the agency acts as prosecutor and judge of its own cause, makes the rules of the game, and almost invariably finds in favor of itself.  

The Federal Trade Commission is a prime example. Over the years, Congress has granted the FTC sweeping law enforcement powers over wide swaths of the economy, and it frequently investigates and prosecutes companies for alleged violations of the dozens of laws it enforces. But a provision of the FTC Act prevents the President from overseeing that agency by removing its heads except for limited causes. In 1935, in a case called Humphrey’s Executor, the Supreme Court found that this removal restriction was constitutional because FTC was much less powerful then than it is today and was said to only exercise “quasi-legislative” and “quasi-judicial” power—a dubious proposition. Humphrey’s Executor has become a cornerstone of the Administrative State, leading Congress to create dozens of similarly structured agencies with broad and varied powers, such as the CPSC and NLRB.  

In a series of recent cases, the Supreme Court has narrowed the scope of Humphrey’s Executor and repudiated its reasoning. Although it does remain on the books, Humphrey’s story appears to be in its last chapter. Consistent with these recent Supreme Court decisions, in March President Trump exercised his constitutional at-will removal power to remove two then-FTC Commissioners, who sued. A district court judge ordered their reinstatement, and the D.C. Circuit declined to block that decision as the government appealed. Then, in Trump v. Slaughter, the Supreme Court stayed the district court’s ruling and agreed to take the case on the merits. One of the issues before the Court is “[w]hether the statutory removal protections for members of the Federal Trade Commission violate the separation of powers and, if so, whether Humphrey’s Executor . . . should be overruled.” There is reason to hope that the Court will take this opportunity to do so. 

Across administrations, AFPF has advocated for restoration of presidential control over the unelected bureaucracy and argued that Humphrey’s Executor is inconsistent with the Constitution. For example, AFPF has urged the Supreme Court to jettison Humphrey’s Executor in amicus briefs supporting cert petitions in Axon v. FTC, Consumers’ Research v. CPSC, and Leachco v. CPSC. AFPF has also argued in amicus briefs filed in U.S. Courts of Appeals that Humphrey’s Executor is inconsistent with the separation of powers and a threat to liberty, including before the Fifth Circuit in Illumina v. FTC and, most recently, in support of the President’s authority to remove at will an NLRB Member in Wilcox v. Trump. 

AFPF looks forward to once again advocating as amicus curiae in Trump v. Slaughter that the Court should restore presidential control over the unelected bureaucracy by overruling Humphrey’s Executor and making clear that the Constitution establishes three branches of government, not four. This potential blockbuster case will be argued in December and is one to watch.