Americans for Prosperity Foundation Files Amicus Brief Urging the Supreme Court to End Fourth Branch of Government

Today, Americans for Prosperity Foundation filed a friend-of-the-court brief in the U.S. Supreme Court in Trump et al. v. Slaughter et al. urging the Court to squarely overrule Humphrey’s Executor—a 1935 Supreme Court decision that led to the rise of so-called “independent agencies” that exercise executive power without being any accountable to any elected official. As outlined in a prior post about this case, AFPF has across administrations advocated for jettisoning this erroneous precedent, which undermines our Republic’s system of representative self-government and threatens individual liberty. As AFPF’s brief explains: “The Constitution establishes numerous structural safeguards against Executive Branch (and federal) overreach that . . . must be vigorously enforced; a headless Administrative State is not one of them.”

This is what is at stake:

This case is about whether the Constitution authorizes a de facto Fourth Branch of government comprised of unelected bureaucrats insulated from accountability to the political branches—and thus to the American People—and permitted to make policy choices and enforcement decisions impacting the entire private economy. The answer is easily no.

Here’s why: The U.S. Constitution establishes three branches of government—executive, legislative, and judicial—that each exercise a different form of government power. Not four. 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, the Constitution grants the President plenary power to remove Executive Branch officials at will.

Why Humphrey’s Executor Must Be Overturned

Humphrey’s Executor makes a mockery of the Constitution’s design. In Humphrey’s, the Supreme Court upheld a statute that granted the unelected heads of the Federal Trade Commission tenure-like statutory removal protections based on the fiction that the 1935 FTC (as understood by the Humphrey’s Court) only possessed “quasi-legislative” and “quasi-judicial” powers and didn’t exercise any executive power. That constitutionally and factually dubious conclusion established the concept of a free-floating “independent” agency that operates outside of the system of checks and balances established by the Constitution. And it inspired the creation of a host of similarly structured administrative bodies, including the National Labor Relations Board, the Consumer Product Safety Commission, and many more with wide and varied law enforcement powers.

Because of this New Deal-era precedent, the President cannot remove the heads of these of these extraconstitutional bodies when their policies and enforcement priorities are at odds with his—even when they actively seek to thwart his agenda. For that matter, the President cannot stop these unelected officials from bringing administrative prosecutions and civil enforcement actions he believes to be unjust or abusive—there is not a single democratically elected official targets of these unaccountable agencies can turn to who has the power to rein in the agency. These are not theoretical problems. On top of this, Humphrey’s Executor allows a President to duck accountability for the actions of his subordinates and shift blame for their failed policies and enforcement activities.

The Problem of “Independent Agencies”

Today, the so-called “independent agencies” Humphrey’s Executor spawned wield great power over wide swaths of the economy and impact the lives and liberties of the American People. Many such entities possess vast investigative and prosecutorial powers, including the ability to bring enforcement actions seeking daunting injunctions and civil penalties in federal court. They also have power to bring enforcement actions in their own inhouse courts—where the agency acts as prosecutor and judge of its own cause, makes the rules of the slanted game, and almost invariably finds in favor of itself. On top of that, many have power to enact binding regulations imposing onerous compliance burdens on private parties backed by substantial penalties. Today’s FTC is a perfect example. It has all these powers and more, with “enforcement or administrative responsibilities under more than 80 laws.”

This poorly reasoned decision has not aged well. And over a series of recent cases the Supreme Court has unmasked Humphrey’s Executor’s “quasi-legislative,” “quasi-judicial” fiction as just that and repudiated Humphrey’s reasoning, rejecting the notion that the Constitution authorizes entities that exercise “quasi-executive” and “quasi-judicial” powers outside of the three branches of government established by the Constitution.  As the Supreme Court has since recognized, “[t]he Court’s conclusion that the FTC did not exercise executive power has not withstood the test of time.” In reality these entities are Executive Branch agencies exercising executive powers. Over a series of cases the Supreme Court has repudiated Humphrey’s reasoning, rejecting the notion that the Constitution authorizes entities that exercise “quasi-executive” and “quasi-judicial” powers outside of the three branches of government established by the Constitution. As the Court has explained, “[t]he activities of executive officers may take legislative and judicial forms, but they are exercises of—indeed, under our constitutional structure they must be exercises of—the executive Power, for which the President is ultimately responsible.” And as the Court reiterated earlier this year, the President has the power to remove at will administrative officials who wield executive power subject only to narrow limits created by its case law, ghosting Humphrey’s in the process.

Unsurprisingly, one highly respected jurist recently described Humphrey’s Executor as “nearly, nearly, zombified precedent.” Properly understood and as cabined by the Court’s modern precedent, this constitutional abomination no longer applies to today’s FTC, let alone to the myriad other “independent agencies” wielding executive power today. Yet this zombified precedent continues to haunt our jurisprudence and undermine the Constitution’s system of separated powers. And some lower courts have continued to mistakenly interpret Humphrey’s to authorize Congress to statutorily override the President’s core Article II power to remove at will these executive officials, preventing him from removing the powerful heads of agencies like the FTC, NLRB, and CPSC and causing chaos in the process.

This should not stand. This case provides an ideal opportunity for the Supreme Court to erect a tombstone for this zombified precedent. The sky will not fall. Overruling Humphrey’s will not abolish any federal agencies or undo any of their past work; it will just make their leaders accountable to the President—and, through him, the American People. That is all. Nor will it in any way imperil the Fed’s independence, whatever its merits, or upset markets or anyone’s legitimate reliance interests.  And our constitutional Republic will be healthier for it.

This zombified precedent has been allowed to live for far too long. The time has come to definitively inter whatever remains of it.