The Supreme Court’s reaction against the perceived threat to the Constitution posed by the New Deal: Humphrey’s Excutor v. United States.
The previous post examined the holding in Myers v. United States, which was a resounding victory for the unitary executive. But the matter was not closed. As already discussed, just nine years after Myers, the Supreme Court in Humphreys Executor allowed Congress to restrict the President’s power to remove heads of so-called independent administrative agencies performing quasi-legislative and quasi-judicial functions by limiting such removals during their terms to specified causes. That case must be seen as one piece of a broader attack by the Supreme Court on the New Deal, a program viewed with suspicion by most justices on that tribunal.
On the same day as the unanimous decision in Humphrey’s Executor, the Court unanimously declared unconstitutional the National Industrial Recovery Act of 1933, which was one of the signature early pieces of legislation of Franklin Roosevelt’s New Deal. That law had granted vast power to the President and his appointees to “rationalize” (i.e., to cartelize) American industry. The Court derided the law as “delegation run riot,” an unconstitutionally broad surrender of legislative power to the President which violated the Constitution’s separation of powers. These cases, along with another decided unanimously that day, were attempts by the Supreme Court to “clip the wings” of an increasingly powerful and uncontrolled executive and to give spine to a supine Congress. Congress could not transfer its core policy-making powers to the President unless it set clear boundaries to the President’s exercise. If such power were given to another entity, however, it should be to one independent of the President’s political control. To preserve that entity’s political independence, Congress must limit the President’s power to remove agency officers.
The Court’s attempt to prevent the flow of legislative power to the executive branch and to unelected bureaucracies through broad delegations by Congress proved ephemeral. However, the Court continued to support laws which blunted the President’s control over the personnel in charge of agencies established by Congress. In Wiener v. United States (1958), the Supreme Court unanimously extended Humphrey’s Executor and held that the President had no power to remove quasi-judicial officials, unless Congress expressly so provided. President Eisenhower fired Myron Wiener from the War Claims Commission, and Wiener sued for back pay. The Court again emphasized that the crux of the inquiry was the nature of the function the official performed. Here, Wiener had no executive function at all.
Limiting the President’s removal power in the short-lived Ethics in Government Act: Morrison v. Olson challenges the unitary executive beyond the Humphrey’s Executor framework.
Thirty years later, the Supreme Court created another “exception” to the removal power, in Morrison v. Olson. That case involved the Ethics in Government Act passed in 1978 in response to the Watergate affair and President Richard Nixon’s resignation. The Act created an office of independent counsel (or special prosecutor) appointed by a judicial panel acting outside the usual prosecutorial channels of the Department of Justice. Theodore Olson and two others had been referred by such a panel for investigation by a special prosecutor. Alexia Morrison eventually undertook the task.
While Olson raised several constitutional challenges to the Act, the key point for this discussion is that the special prosecutor could not be removed by the President. She could be removed by the Attorney General but only for specified cause. In an opinion written by Chief Justice William Rehnquist, the Court ruled 7-1 that the special prosecutor was an inferior officer. The Court conceded that Morrison exercised executive power but stressed that Congress wanted to provide independence for the special prosecutor from the President and his subordinates in light of the task for which the office was created, that is, to investigate corruption of the President and other high-level executive officials. Therefore, Congress could limit the removal to specified conditions.
Although the Court related the situation to Humphrey’s Executor and Wiener, the opinion purported to use a functional analysis different than in those cases. Indeed, the Court discounted the significance of those cases which had relied on the distinction between officers exercising executive power and those exercising only quasi-legislative or quasi-judicial functions. Rather, Rehnquist’s functional focus was on the extent to which the restriction on the President’s removal power interfered with his ability to control the executive branch and exercise his constitutional powers, including those which clearly were executive. He concluded that the limited tenure and scope of her tasks did not unduly interfere with the President’s constitutional powers and independence.
Justice Antonin Scalia wrote the dissent. On the removal issue, he pointed out that, unlike the officials in Humphrey’s Executor and Wiener, the special prosecutor was clearly an executive officer. In those cases, the Supreme Court had focused on the litigants’ quasi-legislative and quasi-judicial functions. Unlike the Chief Justice’s sudden diminution of that functional analysis in Morrison v. Olson, the distinction between exercise of executive versus non-executive functions was at the heart of those earlier holdings. Prosecutors perform a purely executive function. Based on that, Scalia reasoned, the Act violated Article II of the Constitution and the unitary executive structure.
As to Rehnquist’s assertion that this was only a minor incursion on the President’s Article II powers and, therefore, of no consequence, Scalia ridiculed this by pointing out how jealously the Court guarded against even minor incursions by Congress on the Court’s functions and powers protected in Article III of the Constitution. Worse, the Act was not a minor intrusion. Scalia argued that the Act struck at the heart of executive power. Moreover, it violated general principles of separation of powers in having the judiciary and legislative branches combining to interfere in the control of the core executive function of enforcing the law, a power expressly assigned to the President in the clause which imposes on him the duty to “take care that the laws be faithfully executed.” This was not an obscure or trivial intrusion, as he observed in yet another memorable quote, “Frequently an issue of this sort will come before the Court, so to speak, in sheep’s clothing… But this wolf comes as a wolf.”
The Ethics in Government Act fades away, but Morrison v. Olson remains, another lesson that “hard cases make bad law.”
Morrison presents a strong challenge to the unitary executive structure. The Act was allowed to die in 1999, after Democrats began to use Scalia’s arguments as authoritative. Until then, Republicans had sided with Scalia’s dissent, and Democrats had praised the Rehnquist majority. The cause for the Democrats’ about-face was the investigation by special prosecutor Kenneth Starr of the land deals and extramarital liaisons of President Bill Clinton, which controversy culminated in Clinton’s impeachment and subsequent Senate acquittal on charges of perjury and obstruction of justice. On a somewhat humorous personal note, I witnessed that same conversion experience in one of my very learned and delightful colleagues. We had been part of a formal debate about the Morrison case in 1988. He had supported the majority’s position and I the dissent’s. A decade later, he sidled up to me one day to let me know that he now believed I had been right on the constitutional argument all along.
As a matter of constitutional law, Morrison was a clearly incorrect result. It was flagrantly inconsistent with Myers. It conflicted even with the reasoning in Humphrey’s Executor and Wiener. Justice Scalia later declared that he viewed the case as the most disappointing of his time on the Court. The Court’s constitutional holding was unnecessarily broad and caused raised eyebrows for its loose reasoning, which was quite unusual for a Rehnquist opinion. Some of the more conspiratorially inclined observers suggested that Rehnquist had deliberately written an opinion whose constitutional holding was intended to be reversed in the future. Strictly speaking, that has not happened, but the bipartisan failure to renew the Ethics in Government Act is the dog that has stopped barking. Or, in reference to Scalia’s quip, it is the wolf that stopped howling.
The 21st century erosion of Humphrey’s Executor and Morrison v. Olson
Moreover, in Seila Law, LLC v. Consumer Financial Protection Bureau in 2020, the Court, by 5-4, effectively limited Morrison to its facts, calling it and Humphrey’s Executor very narrow exceptions to the general constitutional law of executive power in Myers. Seila concerned the structure of the Consumer Financial Protection Bureau, established in 2010. The law provided that the CFPB would be run by a single director who would be appointed by the President with consent of the Senate for a five-year term. The director could be removed only for specified causes. Lower courts upheld the constitutionality of the removal-for-cause limitation, relying on Humphrey’s Executor and Morrison.
As expected, the challenge before the Supreme Court was that the law violated the separation of powers and the unitary executive. Chief Justice Roberts wrote that the CFPB, unlike the FTC in Humphrey’s Executor was run by a single administrator, not a multi-member body. Moreover, the director of the CFPB had significant executive powers. He also invoked the action of the First Congress in 1789 to support the doctrine of unitary executive and declared that, other than with the Presidency, the Constitution avoids concentrating power in single individuals. Morrison did not apply because the director of the CFPB wielded considerable executive authority and, therefore, was not an inferior officer.
Justices Clarence Thomas and Neil Gorsuch concurred but urged that Humphrey’s Executor simply be overruled. Justice Elena Kagan, writing for the dissenters, essentially relied on Madison’s crabbed view of executive powers in his Helvidius essays. She declared that the President’s removal power is subject to Congress’s control and discretion to design the operation of governmental agencies. She reimagined the long-accepted understanding of the Decision of 1789, claiming that the Congress there really decided nothing of constitutional significance. Moreover, in her view, Humphrey’s Executor had settled the matter. She urged that there was no constitutional significance whether the agency was headed by a multi-member board as in Humphrey’s Executor or a single commissioner as in Seila. That argument would soon come back to haunt her.
The blade falls: Leading Humphrey’s Executor to Slaughter
The writing was on the wall for Humphrey’s Executor. A year after Seila, the Supreme Court in Collins v. Yellenaffirmed a federal appeals court’s ruling that the same structure of a single director, not removable except for specified cause, was unconstitutional as to the Federal Housing Finance Agency.
As Justice Kagan’s Seila dissent had foreseen, the obvious question becomes why it functionally, logically, or historically matters whether the agency is headed by a multi-member body or a single administrator. If the official administers a governmental agency and has the power to enforce federal policy, that official performs an executive function, whether as a single executive or part of a multiple executive. In 2025, the Court stayed orders by lower courts which had prevented President Trump from firing commissioners of the National Labor Relations Board and the Merit Systems Protection Board in Trump v. Wilcox and of the Consumer Product Safety Commission in Trump v. Boyle. These were agencies with multi-member boards, so the Court’s actions strongly signaled that the number of commissioners is irrelevant to the constitutional analysis.
This led to Slaughter. Chief Justice Roberts’s scholarly opinion reviews the lengthy history of the unitary executive structure as specifically applied in the context of the President’s removal power, including the adoption of the Constitution, the actions of Congress and the President since then, and the important cases decided by the Supreme Court over the past hundred years, in particular Myers and Humphrey’s Executor.
As to Myers, Roberts approves of Chief Justice Taft’s opinion as “perhaps our best word on the subject” and the decision as recognizing the constitutional pedigree of the President’s broad power to remove executive officials. Myers is the benchmark by which statutory restrictions on the President’s removal power must be measured.
Regarding Humphrey’s Executor, Roberts challenges the assertion by Justice George Sutherland in that case that the FTC had some executive function but did not exercise executive power. Sutherland had described the FTC’s role as more like an advisory body, which Roberts terms a “highly circumscribed and almost fictional view of the FTC’s role.” The Chief Justice quotes approvingly from a dissenting opinion by Justice Robert Jackson in a 1952 case, “Humphrey’s[sic] ‘retreat to the qualifying “quasi” is implicit with confession that all recognized classifications have broken down, and “quasi” is a smooth cover which we draw over our confusion as we might use a counterpane to conceal a disordered bed.’” Further, as a 1984 law review article asserted, “’[O]nly by blind feats of definition’ could the Court transform powers that are quintessentially executive—investigative and prosecutorial alike—into nonexecutive ‘quasi-legislative’ and ‘quasi-judicial’ functions.”
Moreover, at the very least, the FTC’s role has changed since 1935. Roberts cites several Supreme Court decisions after Humphrey’s Executor, especially Morrison v. Olson, which recognized the FTC’s expanded role. Therefore, the FTC today clearly exercises executive power. Roberts’s opinion restricts Humphrey’s Executor to cases where the designated entity performs no executive function whatsoever: “If Congress wishes to establish independent agencies to assist it with its functions, it may do so….But it may not foist those agencies upon the President, and thus deprive him of ‘the executive power vested [in him] by the Constitution’—something Humphrey’s itself never purported to permit.” Branding that case as having “for decades been a result in search of a rationale,” the opinion concludes that, “If anything more is left of Humphrey’s, we overrule it.”
As to the dissent by Justice Sonya Sotomayor, Roberts spends only a few short pages refuting the reasoning. He charges the dissent with seeking to undo over two centuries of practice: “The dissent…sweeps the chess pieces off the board.” The dissenting’s claims that “there is no evidence that those who shaped or ratified the Constitution adopted the general rule…of at-will removal.” The readers of this series of posts might well marvel at the brazenness of the dissent’s assertion, given the magnitude of the contrary evidence presented. The Chief Justice likewise seemed incredulous, evaluating the dissent’s position “no matter the view expressed by Washington, Jefferson, Madison, and Hamilton in the first years of the Republic; no matter the practice of the First Congress and all our early Presidents; and no matter the Convention’s insistence upon ‘[u]nity in the Executive,’” citing to remarks by James Wilson in the Convention’s Records. It does not get better with the dissent’s subsequent historical “analysis.” At the same time, one has a certain discomfort with the Chief Justice’s charge, in light of the fact that his opinion, too, sweeps aside a case nearly a century old, although there is clear merit to his point that the Court is correcting a fundamental constitutional error by the Humphrey’s Executor court.
Unresolved issues after Slaughter
The majority in Slaughter specifically reserves for another day whether the President’s executive power includes the unrestricted power to remove persons who are not performing executive functions, such as governors of the Federal Reserve or non-Article III federal judges, such as Tax Court and Bankruptcy Court judges. Indeed, on June 29, 2026, the same day that the Slaughter opinion was released, the Court in a 5-4 opinion, also authored by Chief Justice Roberts, rejected the administration’s application for a stay of a lower court order which had reversed President Trump’s firing of Lisa Cook, one of the governors of the Federal Reserve. The opinion relied on the unique structure of this quasi-private/quasi-public entity rooted in the First Bank of the United States chartered by Congress in 1791 and its successor, which operated from 1816 until 1836.
Administrative law judges and similar minor judicial figures also long have been appointed for fixed terms without being subject to removal at will by the President. There is certainly room in Roberts’s Slaughter opinion to allow officers performing purely judicial functions to be insulated from Presidential removal—if the Court views these officers as independent judges, rather than as part of the agency’s enforcement mechanism. It must be remembered that these agencies are not organized on the basis of a separation of functions as explicit as the three branches of the government under the Constitution.
Slaughter’s strong endorsement of the presidential removal power and the unitary executive is a non-partisan result. Those who cheer the decision might soon change their tune, as my colleague did a few years after he supported the decision in Morrison v. Olson, when the political shoe was on the other foot. A Democrat in the White House could take the same action and assert the same arguments against political opponents as President Trump made in these cases. After all, the previous major constitutional disputes over the removal power all involved attempts by Democrats to fire officials, from Andrew Jackson to Andrew Johnson to Woodrow Wilson to Franklin Roosevelt.
It remains to consider what effect, if any, this case will have on the operation of the administrative state and governance by an unelected, politically unresponsive bureaucracy of supposed experts ruling under broad delegations of power from Congress. The concurring opinion by Justice Neil Gorsuch in Slaughter begins to explore that issue. I will consider that opinion in another post.
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