Americans for Prosperity Foundation Urges Supreme Court to Overrule Humphrey’s Executor and Restore Constitutional Accountability

Today, the U.S. Supreme Court heard oral arguments in Trump v. Slaughter, an important separation-of-powers case about democratic accountability, individual liberty, and representative self-government.

In October, Americans for Prosperity Foundation (AFPF) filed an amicus brief urging the Court to overturn Humphrey’s Executor v. United States, a New Deal-era decision that helped create the Administrative State and the rise of a Fourth Branch of government unaccountable to the American people.

In its brief, AFPF explained that the Constitution establishes three branches of government, which exercise different powers; not four. And it vests all executive power in a President—not in unelected commissioners insulated by for-cause removal protections, as Humphrey’s Executor allows. The brief argued Humphrey’s was wrongly decided, has been overtaken by subsequent separation-of-powers rulings, and is now a “zombified” outlier. AFPF’s brief highlights how so-called “independent agencies”—from the FTC to the NLRB—exercise vast executive authority that the Framers expected would remain under presidential control.

“Overruling Humphrey’s Executor won’t solve all of our separation-of-powers problems,” said Michael Pepson, AFPF Regulatory Counsel. “But it would ensure that administrative officials who wield significant executive power are subject to democratic accountability, as the Constitution requires.  We still need Congress to reassert its lawmaking authority and the Judiciary to hear all cases involving private rights.”

Overturning Humphrey’s Executor would not in itself restore a proper understanding of the Constitution’s distribution of government powerbetween the three branches (and between the states and the federal government). AFPF’s brief elaborates:

[T]he scope of federal power has been expanded well beyond what the Constitution’s grant of limited, enumerated powers allows. . . Congress may not unconstitutionally transfer Article I legislative power or Article III judicial power to the executive. AFPF opposes executive overreach and supports a proper understanding of the scope of federal power.

AFPF urged the Court to reaffirm that Article II vests the President with plenary at-will removal authority over all principal officers exercising executive power—and that Congress cannot insulate these officials from accountability through removal restrictions. Congress should reassert control over lawmaking—a task the Constitution assigns to it—and be mindful of the dangers in unconstitutional delegations of legislative and judicial power to the executive branch. Congress must make policy decisions through the deliberately difficult legislative process instead of punting to agencies. Adjudications of private rights must only take place in neutral, independent federal courts—not in administrative tribunals lacking procedural protections.

Read the amicus brief here.

Read a blog summary here.

Michael Pepson is regulatory counsel at Americans for Prosperity Foundation and the author of the amicus brief.  He can be contacted at mpepson@afphq.org.

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