Don’t Hand This President Sweeping Removal Power
How a conservative Supreme Court could save Humphrey’s Executor.
In law school I noticed a pattern. A class would make perfect sense at the start, only to grow more confusing with each passing week. The shift mirrored the history of the field. In the beginning, there were rules. Judges believed in these rules. They applied these rules. Over time, though, things fell apart. Politics crept in. Ambition took hold. A healthy pinch of legal realism became by degrees a toxic dose of critical theory. Rules gave way to standards; formalism yielded to functionalism; multi-factor tests bloomed.
The story is oversimplified, of course, and it fit some classes better than others. But it describes administrative law perfectly. In the early fall, everything was in its right place. Congress could not delegate its powers. The President controlled the Executive Branch. Only courts resolved legal disputes. By winter, it had all gone to pot. I looked on helplessly as Justice O’Connor ascertained, in her infinite wisdom, what blend of the three branches’ powers she would allow in each given case.
A key early sign of decay was Humphrey’s Executor v. United States (1935), a slapdash ruling narrowing the president’s removal power. Now, perhaps Congress could, historically speaking, cabin this power. But you’d never know that from Humphrey’s Executor, an opinion wholly incurious about constitutional first principles. And even if, as a matter of first principles, Article II permits such limits, it surely does not tolerate an immense, headless fourth branch of government—a swarm of agencies insulated from presidential control. If you’d ask me a decade ago, I would have blithely denounced this rotten decision.
Like Justice Scalia, however, I’m an originalist, not a nut. Actually, I’m not even that; I believe in judicial restraint before originalism. My mantra, as I’m sure my wife is tired of hearing, is: Judges shouldn’t do things. Burke before Bork. (The First Amendment gets a special dispensation, as Justice Holmes understood. Deal with it.)
By the time I was out in the world writing about Humphrey’s Executor, Trump was in his first term. So I hedged, suggesting it might “be wisest, taking one thing with another,” not to overturn the precedent. Then came Trump’s behavior at the outset of his second term. It’s pushed me fully into the keep-it-on-the-books camp. We’re in a precarious moment, one in which the justices must, even more than usual, apply not only legal acumen, but also (non-partisan) political judgment.
Believe me, I wish I could just say, “Down with Humphrey’s Executor!” Ideological purity can be fun. But reality is often messy. As things stand, the Court should not fix one constitutional derangement (agency independence) only to abet another (an unvirtuous and often lawless president). Hamilton assumed a presidency occupied by “a man of abilities, at least respectable.” We live instead in the world Justice Story foresaw, in which a broad removal power would be “made, in the hands of a bold and designing man, of high ambition, and feeble principles, an instrument of the worst oppression, and most vindictive vengeance.”
What follows is a nuts-and-bolts case for preserving Humphrey’s Executor—a roadmap the conservative justices could, in theory, still use. Lately they’ve signaled, in ways large and small, that they won’t go this route. But here it is anyway, in case they have a change of heart. The piece first ran in The UnPopulist. What you’ll find here is a slightly expanded version: more legal wonkery, a few extra asides. The asides are generally snarky, and they’re back in to reassure my friends. I’m fine! That I’d save Humphrey’s Executor doesn’t mean that I’d have saved Roe v. Wade (1973). I say this not to provoke liberals, but to confirm my steady mental state and strengthen my appeal to conservatives.
The Trump administration’s push to roll back limits on the president’s removal power did not come out of nowhere. Its effort to fire principal officers at the Federal Trade Commission, the National Labor Relations Board, and beyond has a long pedigree in the sane, buttoned-down wing of the conservative legal movement.
But although the argument for handing the president broad removal authority has theoretical merit, the Supreme Court would be unwise to bless Trump’s actions.
A Second-Best World
The conservative campaign to expand the president’s removal power dates to at least 1988. That year, Justice Antonin Scalia—in a solo dissent that has since taken on near-mythic status—opined that, under the Constitution, a statute may not “deprive the President of the United States of exclusive control over the exercise of [executive] Power.” Two decades later (but still long before Trump), Chief Justice John Roberts—this time writing for the majority—declared that the president needs the power to “oversee the faithfulness of the officers who execute” the laws on his behalf.
Given these views, Trump’s firings of principal officers, though rash, do not belong in the same category as Trump’s more deranged excesses, such as his political attacks on law firms or his campaign to imprison detainees abroad without due process—measures that judges across the ideological spectrum have slapped down. The conservative position on the removal power can be understood on its own terms. You may think it’s bad policy, bad history, or bad constitutional law. But it is not Trumpist in origin.
The “removal power” should not be confused with the notion, floated by Trump and his allies, that the president may purge the civil service. We are dealing, rather, with the president’s authority over the high-level political appointees—those referred to, in Article II of the Constitution, as “Officers of the United States”—who lead federal agencies. When it comes to such officials, Scalia, Roberts, and many other conservative judges offer not only a plausible reading of the Constitution’s original meaning, but also a prudent approach (in a world without Trump) to managing our sprawling administrative state.
In a constitutional system working as the Founders intended, the president’s having the power to remove all officers at will would not be a problem. That arrangement would ensure an energetic and accountable executive branch. As Hamilton wrote, “unity” in the executive enables “decision, activity, secrecy, and dispatch,” while supplying “a single object for the jealousy and watchfulness of the people.” He warned that diffusing executive power would be dangerous; the “restraints of public opinion” would “lose their efficacy”; the buck would stop nowhere. A unified executive, by contrast, keeps the bureaucracy responsive to the president’s agenda, giving us a government that, to paraphrase Roberts, benefits from expertise but is not ruled by experts.
But that logic assumes a virtuous republic—the kind of society men like Hamilton, Madison, and Adams believed essential for our Constitution to endure. We do not have an electorate that chooses, for the presidential office, only those capable of exercising vast authority with restraint. Our Congress lacks the spine to impeach when it matters. We reside in a second-best world, in which our Supreme Court is limited to second-best choices.
The Reckoning
In 1935, the Court held that Congress may grant certain officers protection against removal except “for cause.” The case, Humphrey’s Executor v. United States, concerned the FTC, whose commissioners can be removed only for “inefficiency, neglect of duty, or malfeasance in office.” Motivated in part by unease with Roosevelt’s New Deal, the Court upheld the restriction.
The Roberts Court has spent years laying the groundwork to overturn Humphrey’s Executor. In Seila Law v. CFPB (2020), Roberts all but confined Humphrey’s Executor to its facts, announcing, for the Court, that it applies only to “multimember expert agencies that do not wield substantial executive power.” That description covers at most only a sliver of modern independent agencies. Seila Law rejects an attempt to limit the president to for-cause removal for the head of a single-director agency, but its logic and rhetoric point toward a broader reckoning.
As Trump’s firing spree continues, that reckoning may be here. On May 22, the Supreme Court stayed lower-court orders blocking the removal of two officials—Gwynne Wilcox of the NLRB and Cathy A. Harris of the Merit Systems Protection Board. That move must, Justice Elena Kagan warns in dissent, reveal the majority’s intent to overturn, or gut, Humphrey’s Executor at the earliest opportunity.
The Court’s conservative majority has good reason to view Humphrey’s Executor with skepticism. The decision rests on a nonsensical distinction, under which the FTC is a “quasi-judicial” and “quasi-legislative” agency. There are no “quasi” branches in our system of government. In recent years, the Court—with liberal justices signing on—has acknowledged that agencies like the FTC exercise executive power (even if their activities sometimes take legislative and judicial forms). While the liberal justices dissented forcefully in Seila Law, challenging the conservatives’ embrace of a so-called unitary executive, they didn’t defend Humphrey’s Executor on its own terms. (They focused on Congress’s power over government offices; a competing view of the historical record; and the functional benefits of independent agencies.)
The fate of the removal power rests with the Court’s three moderate conservatives: Chief Justice Roberts, Justice Brett Kavanaugh, and Justice Amy Coney Barrett. There is little doubt that the Court’s three arch-conservatives—Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch—will vote to overturn Humphrey’s Executor. Roberts, Kavanaugh, and Barrett must decide whether to join them.
Constitutional Purity in an Impure World
The temptation clearly exists, as the Court’s May 22 order confirms. Here is the chance to achieve an abiding goal. My message to the three middle justices is simple: Don’t.
Do not view Humphrey’s Executor in isolation. Do not view its status as part of some exercise in constitutional purity. Understand that, by overturning it, you’d be handing power to an authoritarian, exacerbating a perilous moment for the country. Do the right thing and defend the checks on an aspiring autocrat that still exist.
Crucially, I am not asking Roberts, Kavanaugh, and Barrett to adopt some novel doctrine or to become judicial activists (eww). They need not even change their views about the removal power’s original meaning (I’m not). Their task is simply to wield their power responsibly, and to uphold the law as it exists. That, indeed, is the conservative thing to do. There is an opinion they could write—modest, measured, respectable—that would affirm Humphrey’s Executor and leave the current limits on the removal power intact.
Here are the three main issues that opinion must address:
1. The Scope of Humphrey’s Executor
The first hurdle, for a majority intent on upholding Humphrey’s Executor, is the claim that upholding Humphrey’s Executor doesn’t mean anything.
The Trump administration contends that Humphrey’s Executor is a “narrow exception”—one that no longer applies even to the FTC itself. The FTC of 1935, the argument runs, is the only agency for which Humphrey’s Executor blesses removal restrictions. “What matters,” Seila Law says, “is the set of powers the Court” in Humphrey’s Executor “considered as the basis for its decision.” As Judge Justin Walker, a conservative on the D.C. Circuit, puts it: “Humphrey’s has few, if any, applications today.”
But the FTC of 1935 already wielded executive power, and the Court considered that power in Humphrey’s Executor. As the decision notes, the FTC could, even then, issue cease-and-desist orders and enforce them in court. Its powers have indeed expanded—it can now, for instance, proceed straight into court and obtain a preliminary injunction—but disputes over the removal power should not devolve into disputes over the precise calibration of agency authority. In such a world, observes Judge Don Willett, a conservative on the Fifth Circuit, it would be “hard to tell how much [executive] power is required before an agency loses protection under the Humphrey’s exception.”
Writing for the Court in Collins v. Yellen (2021), Justice Alito rightly warned that “courts are not well-suited to weigh the relative importance” of disparate agencies’ authority. He rejected the idea that “the constitutionality of removal restrictions hinges on such an inquiry.” In Collins, the Court was clarifying that it would not draw fine-grained lines among single-director agencies; they all lack removal protection. But the same logic applies here. If Humphrey’s Executor lives, courts should not draw fine-grained lines among traditional multi-member commissions; they all ought to enjoy removal protection.
In any event, keeping Humphrey’s Executor while still creating a “unitary executive” would be a bad look. Generations of lawmakers built agency independence on the pedestal Humphrey’s Executor supplied. To declare now that that base never supported this weight would come off as pedantic. A gotcha. A loophole. The move would infuriate many and please none.
To uphold Humphrey’s Executor should be to uphold the independence of the familiar multi-member agencies whose structure was, until recently, broadly accepted.
2. Stare Decisis
“Stare decisis et non quieta movere” means “To stand by things decided and not disturb what is settled.” As Justice Kavanaugh will tell you, the principle reaches back to the Founding. Fidelity to precedent ensures, he writes, quoting the eminent 18th-century jurist William Blackstone, that “the scale of justice” is “even and steady”—that it is not upended by “every new judge’s opinion.”
By definition, stare decisis has teeth only when the justices encounter a precedent with which they disagree. That a decision is wrong, in their eyes, is the start, not the end, of any argument over whether stare decisis applies. As the Court has said many times, there must be some special justification, beyond sheer error, for overturning a precedent.
There is no such justification for overturning Humphrey’s Executor.
To begin with, the decision is not even obviously wrong. True, its reasoning is very poor. (“The mere retreat to the qualifying ‘quasi,’” Justice Robert Jackson mused in 1952, “is implicit with confession that all recognized classifications have broken down.”) But the result is quite possibly correct. The history of the removal power is a subject of spirited judicial and scholarly debate. Justice Kagan’s dissent in Seila Law is excellent. There may be stronger and weaker answers here, but there are no definitive ones. The Framers did not write clarity on this question into the Constitution, as they did with the appointments power.
The Court often asks whether a precedent is “unworkable”—whether it has sowed confusion in the lower courts or distorted other areas of law. Humphrey’s Executor does neither. If anything, the Court could declare that its rule is straightforward: traditional multi-member agencies get removal protections; novel structures do not. That’s already the line taken in Seila Law (no protection for single-director agencies) and Free Enterprise Fund v. PCAOB (2010) (no double-level removal protections).
The rule is not just workable, but sensible. Independent agencies have a venerable history that stretches back to the FTC (1914), if not the Interstate Commerce Commission (1887). Multi-member agencies divide power, enable dissent, and promote compromise. They are bipartisan, (ideally) deliberative, and accountable to both Congress (which sets the agency’s budget) and the president (who typically designates the agency’s chair). They may not reflect a pristine form of the separation of powers, but neither are they pure constitutional heresy. While on the D.C. Circuit, future Justice Kavanaugh went so far as to say that “multi-member bodies reflect the larger values of the Constitution.”
That last point answers perhaps the biggest objection to Humphrey’s Executor. If commissioners aren’t elected, and can’t easily be fired by someone who is, where’s the democratic legitimacy? I get it; I’ve made the point myself. But it goes only so far. These agencies are created by an elected Congress. Their officers are nominated by an elected president and confirmed by an elected Senate. Once appointed, they get summoned to the White House and they’re grilled at congressional oversight hearings. The democratic legitimacy may not be elegant, as a matter of political theory, but it’s very real.
The Court sometimes asks whether a precedent has produced bad consequences. Here, however, the bad consequences would come from overturning the precedent. It is not the Supreme Court’s job to save the public from poor electoral choices. But neither should the Court volunteer to feed the chaos unleashed by this president. (Trump has already fired enough board members to leave some agencies without a quorum.) And looming behind all else is the Federal Reserve. That independent body sets interest rates free from political meddling—a buffer that has served the country well. If the Fed became the plaything of this impetuous president, the result could be a financial crisis. In its May 22 order, the Court insists that the case before it doesn’t necessarily implicate the Fed. But in going out of its way to say so, the Court protests too much. Justice Kagan, in dissent, accuses the majority of cynically setting the stage for “a bespoke Federal Reserve exception.”
The Roberts Court has chucked a string of notable precedents. If you ask me, many of those precedents had it coming, and the conservative majority has nothing to apologize for. But stare decisis exists for a reason: It keeps the law stable, consistent, and predictable. Roberts, Kavanaugh, and Barrett shouldn’t overturn decisions in order to check boxes on an ideological wish list. Holding their noses and preserving Humphrey’s Executor would be a good way to show that they know where to stop.
3. Remedy
What happens when an officer is improperly removed? This is a surprisingly tricky question.
Everyone agrees that one option is back pay. But for the wrongly fired individuals, that is a hollow remedy. They don’t want money; they want to return to work. And back pay does nothing to address the real problem: a reckless president. Trump won’t be deterred from breaking the law by the prospect of cutting some checks with taxpayer money.
So a court must, some way or another, order the president to stop. There are three options: an injunction, a declaratory judgment, and a writ of mandamus.
To issue an injunction, a court would invoke its inherent equitable powers. Those are limited, the Supreme Court has explained, to the powers once wielded by English courts of equity. We abolished the formal distinction between law and equity nearly a century ago, and it’s not clear why so much should still hinge on such arcane categories. (Equity was complicated enough when it was a living doctrine, let alone now that it is long dead.) That said, the Court’s conservatives take this history seriously. When they dig into it, they’ll find 19th-century cases that say courts of equity couldn’t enjoin the removal of executive officers, and 20th-century cases that say, in essence, never mind. At a recent oral argument, D.C. Circuit judge Gregory Katsas—no one’s idea of a liberal—asked why courts should be “fussing over” the arcane distinctions between injunctions and mandamus. Perhaps the Supreme Court’s conservatives will agree. More likely, they’ll adhere to the historical lines. If they do, injunctions are out.
A court can issue a declaratory judgment by statute, so the question of authority is resolved. The real issue is what such a declaration would accomplish. A declaratory judgment merely spells out the legal rights of the parties; it doesn’t compel anyone to act. In a 1992 decision, the Court “assume[d]” that a president would “likely abide” by a district court’s reading of a statute, even if he wasn’t strictly bound by it. That assumption no longer holds. Trump would see a declaratory judgment not as a constraint, but as a challenge.
That leaves mandamus—an order directing Trump to reinstate the fired officials. This was apparently a proper remedy, in the English courts of old, for addressing wrongful removal. So no trouble there. Although mandamus is an extraordinary remedy, reserved for blatant violations of law, Trump’s defiance of the statutory removal restrictions is beyond dispute. Another obstacle cleared. Really, nothing prevents the courts from ordering reinstatement via mandamus except the fear that it might look aggressive. As Judge Neomi Rao, a conservative on the D.C. Circuit, frames things, issuing such a writ “threatens to send” the judiciary “headlong into a clash with the Executive.” But it is Trump who is creating this collision—not the courts.
Yes, Trump could ignore a writ of mandamus. A president can always manufacture a constitutional crisis by defying a court order. Trump could blow off an order enjoining the removal of an officer—or the detention of college students, or a purge of federal employees, or the impoundment of federal funds. “At that point,” Judge Laurence Silberman once wrote, “we would be headed, in accordance with our temperament, either to the basement or the barricades.”
Maybe that’s where we’re going. But it’s no use for courts to preemptively retreat every time they fear the president won’t listen. If that’s the plan, the republic is already lost.