SCOTUS Is Now Poised To Overrule Humphrey's Executor, a 1935 Precedent Limiting Presidential Power

The Supreme Court will soon review the president’s authority to fire “independent” agency heads.

In 1935, the U.S. Supreme Court unanimously held that President Franklin Roosevelt acted illegally when he tried to fire an anti-New Deal commissioner from the Federal Trade Commission (FTC). The FTC "cannot in any proper sense be characterized as an arm or an eye of the executive," declared the Court in Humphrey's Executor v. United States. "We think it plain under the Constitution that illimitable power of removal is not possessed by the President in respect of officers of the character of those just named."

But that was then. More recently, the Supreme Court has all but announced that Humphrey's Executor faces imminent judicial execution, an outcome that would allow President Donald Trump (and every president who succeeds him) to fire "independent" agency heads at will.

This week, the Supreme Court basically penciled in the date of execution when it announced that it will hear arguments in December in Trump v. Slaughter, the case arising from Trump's efforts to fire FTC commissioner Rebecca Slaughter, a Democratic appointee. The key question before the justices in the Slaughter case is this: "Whether the statutory removal protections for members of the Federal Trade Commission violate the separation of powers and, if so, whether Humphrey's Executor v. United States, should be overruled."

In the meantime, the Supreme Court has voted 6–3 to allow Trump's ouster of Slaughter to go into effect while the case moves forward, a strong indication that a majority of the Court plans to rule in favor of Trump on the merits later in the coming term.

This kind of final showdown over Humphrey's Executor basically became inevitable as soon as Trump tried to fire an FTC commissioner, since it was that very same act by Roosevelt that led to the 1935 precedent.

For Roosevelt, the inability to remove "independent" agency heads who dissented from his New Deal agenda was an outrage that he never got over. According to Robert H. Jackson, who served as both solicitor general and attorney general under FDR (and was later appointed by Roosevelt to a seat on the Supreme Court), "I really think the decision that made Roosevelt madder at the Court than any other decision was that damn little case of Humphrey's Executor v. United States. The President thought they went out of their way to spite him personally."

In fact, according to the great New Deal historian William E. Leuchtenburg, Humphrey's Executor was such a stinging defeat for FDR that it helped to inspire his notorious court-packing plan. "The Humphrey ruling," Leuchtenburg wrote, "went far to persuade the President that, sooner or later, he would have to take bold action against a Court that, from personal animus, was determined to embarrass him and to destroy his program."

FDR and Trump are not typically seen as ideological compatriots. But their shared vision of broad executive power is certainly evident here. What is more, Trump is now poised to exact the kind of bloody vengeance on Humphrey's Executor that Roosevelt could only dream about.

Comments

[Vernon Depner]

There is no provision in the Constitution for an "independent agency".

[Gaear Grimsrud]

Yes that's the problem. FDR was a horrible president but that doesn't mean he was wrong about this.

[SRG2]

Likewise there is no provision in the Constitution for the Executive to have the power to overturn Congressional legislation.

And fwiw the idea of an independent agency is by no means a terrible one.

[Stupid Government Tricks]

So Congress can pass any legislation it wants, no matter how unconstitutional?

You are also arguing that because your preferred end is preferable, the unconstitutional legislation should be accepted by the courts. So much for rule of law.

[SRG2]

So Congress can pass any legislation it wants, no matter how unconstitutional?

No. But the overturning of legislation lies with the courts not the executive.

So much for rule of law.

Hahaha!

[JesseAz (RIP CK)]

What is the oath of president retard? Does he have a constitutional duty?

[Vernon Depner]

Congress always has the final word. If a law they pass is thrown out by the courts, they can overturn the courts' decision by passing new legislation or amending the Constitution. If a President refuses to enforce a law, they can impeach and remove him. That they decline to use those powers doesn't mean they're powerless.

[DesigNate]

The President is duty bound to not enforce unconstitutional laws.

Then it’s up to Congress to impeach/remove or make a case to the SC that the law is not in fact Unconstitutional.

[BadLib]

And that's exactly what is happening here - the court may overturn the law as unconstitutional.

Trump got this to the Court by firing Rebecca Slaughter.

This is one of the most common paths to get a law reviewed for constitutionality by the Supreme Court - violate the law and then someone challenges the act that allegedly violated the law.

This in fact is how Humphrey's got to the Supreme Court - FDR broke the law and Humphrey's heirs sued.

[Quicktown Brix]

Hey SGT, I'm interested in seeing you flesh out this idea that this is unconstitutional. If you meant the whole idea of a FTC or the notion that congress can delegate it's authority is unconstitutional, I'm on board and you can ignore the rest of my comment, but my understanding is that's not at question here.

I'm admittedly naive to this Humphrey's Executor decision, but it seems to me that this is the common case of congress giving away it's authority to the executive. If they do so with a stipulation: that the president could appoint commissioners, but only fire for "efficiency, neglect of duty, or malfeasance in office" then that's their prerogative.

Having said that, I acknowledge the question does remain whether or not the law does limit the president to firing for "efficiency, neglect of duty, or malfeasance in office."

[Stupid Government Tricks]

I don't claim to have any solution with the current setup. I only claim the current setup is a confused mess, and shows the hypocrisy of pretending the rule of law provides clarity and objectivity. That ought to be clear just from having split decisions by appeals courts and the Supreme Court, circuit splits, and reversing precedents. But people still pretend we have rule of law, when it all comes down to rule of men interpreting the written and unwritten laws willy-nilly. Lawyers will never admit rule of law is a fraud.

[Quicktown Brix]

Got it. Thanks!

[DesigNate]

Personally, I don’t think Congress can or should set up bureaucratic agencies that are neither Legislative nor Executive.

[Muzzled Woodchipper]

There is no provision under the constitution that allows for a 4th branch. If government creates a body, it is default a part of the executive branch because the legislative nor judicial branches have the authority to execute law. Only the executive branch can do that as per Article 2.

[Roberta]

No, it's not a terrible idea...but it's not laid out legally. Arms of government not legally specified as to lines of authority and bases of operation...terrible idea.

[JesseAz (RIP CK)]

The oath to the constitution retard.

If Congress passes a law to kill all retards loke you, the executive would not be required to enforce it until courts stepped in.

I love how you morons dont realize congress is also bound by the constitution. They can and have passed unconstitutional legislation. Yet you demand the executive execute it.

[Fu Manchu]

There's no provision in the Constitution for SCOTUS to be the final say in interpreting the law.

[SRG2]

Well, that was understood then and now to be part of judicial power. There was ample precedent. Humprey's Executor made clear that executive power did not extend that far.

[JesseAz (RIP CK)]

This remains false as Humphreys actually overrode parts of Marbury v Madison where the courts recognized the separation of powers dumdum. Humphrey impedes on that separation dummy.

[Stupid Government Tricks]

Humphrey's Executor made nothing clear, as should be clear from the disputes continuing ever after. You once again pretend the rule of law is clear, when your example shows the opposite.

[InsaneTrollLogic (smarter than The Average Dude)]

Exactly. If an agency isn’t Legislative or Judicial, then it’s under the purview of the Executive, as most agencies are. They execute the laws passed by Congress, and the head of the Executive is the only elected official in the Executive Branch. Therefore, they answer the said head of the Executive Branch, the President.

[JFree]

Here you go:

Art1 Sec10 - No State shall, without the Consent of Congress,... enter into any Agreement or Compact with another State, or with a foreign Power That sort of interstate compact/agreement has ZERO control/direction by the Executive branch. Congress structures that so that states cannot impinge/nullify federal authority - unilaterally, in agreement with others, or in concert with the Prez. IOW - we are a federal republic - not a confederation or a monarchy.

For any honest libertarian, this SHOULD be how most independent agencies are structured (directly or implicitly) if the enumerated authority of the Constitution is not directly encompassed by that legislation. But Diogenes never found an honest libertarian.

The other significant restraint on the Prez arise from their explicit oath of office - Article 2 Sec 1. The circumstances of that oath are not explicitly stated - but every Prez from Washington to and including Trump takes their oath - at Congress - administered by a judge. Based on a very long history of the opposite being done by the King/etc. Not to 'the people'. Not to God or a Pope. Not self-administered. That means that the oath itself defines and limits the scope of Article 2.

Congress cannot redefine the enumerated parts of Article 1. That would require constitutional amendments. Even more so - Prez cannot expand his enumerated authorities in Art 2. That is constrained by both the Constitution AND his oath of office. His only explicit relevant authority here in Art2 is he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices. He does NOT have the authority to hire/fire them. Merely to insist that they be transparent to him so that those departments are not deemed part of the legislative branch. HE cannot go beyond that though 'defiance of Prez' is certainly grounds for a shit-throwing contest of wills. No matter how much the monarch-worshippers of the R's and SC wish that to be.

Below Cabinet level, he may hire/fire but only to the explicit limit that Congress allows - but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

[InsaneTrollLogic (smarter than The Average Dude)]

That doesn’t say what you think it says, J(ew)free.

[DesigNate]

That’s not saying they can set up an independent agency. At best it’s saying that Congress gets the final say when a State (or several States) “enter into any Agreement or Compact with another State, or with a foreign Power”.

Independent doesn’t just mean the President isn’t involved. Jesus H Science.

[JFree]

What do YOU think 'independent agency' means? It precisely means the President does NOT have the authority over it that Cabinet executive departments have. Derived from the specific provision within the Appointments clause of the Constitution (Art2, Sec2):

but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

EVERYTHING created by that provision is, constitutionally, an 'independent agency'. Even if Congress explicitly authorizes the President alone to appoint the inferior officers of that agency. The Prez himself is very limited in his authority outside the Executive Office of the Presidency (which is a PERSONAL office not a real executive office) and the role of CinC.

And even your interpretation of the interstate compact form is wrong. Congress doesn't get 'the final say' over an interstate compact. It entirely STRUCTURES such a thing and creates the authority to cooperate. Absent that structuring, states have zero authority whatsoever to 'cooperate' among themselves. This is not an issue of common law where states are allowed to cooperate assuming they aren't specifically prohibited from doing so. They are prohibited from doing so. That said of course - we don't do interstate compacts much even though that form could handle everything from cabinet depts like Education - to programs like Social Security - to elements of 'defense'/'emergency' like public health or FEMA.

[JFree]

BTW - if we were a parliamentary system, then the appointments clause provision might read something like

but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, within a Congressional committee or committee-of-the-whole, or in the Heads of Departments.. That would basically render all agencies dependent - on Congress.

[DesigNate]

“What do YOU think 'independent agency' means?”

In their current form, they are neither Legislative or Executive. That is patently obvious as Congress lacks the authority to execute the laws (hence creating “independent executive agencies”) while simultaneously saying that the executive can’t fire employees or heads of such agencies.

No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.

So your contention is that consent means control? In a federalist system where each state is a separate sovereign that have come together to form a Union.

[JFree]

In their current form, they are neither Legislative or Executive.

They are executive but NOT Presidential. That authority is specifically Constitutional under Art2Sec2 but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments. You can't just eliminate every non-Prez element of that clause. The language here is plain and obvious.

Congress lacks the authority to execute the laws

I agree.

simultaneously saying that the executive can’t fire employees or heads of such agencies.

'The President' is not 'the executive'. Draw a fucking Venn diagram if you can't understand that.

So your contention is that consent means control?

I never said that. I said what I said and the Constitution says what it says. Try to respond to the specifics of what the Constitution says.

[Vernon Depner]

in the President alone

You're ignoring the word "alone".

[JFree]

Well I suppose the Constitution could have been written "The President holding hands with his BFF Epstein". But it wasn't.

[DesigNate]

“They are executive but NOT Presidential. That authority is specifically Constitutional under Art2Sec2 but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments. You can't just eliminate every non-Prez element of that clause. The language here is plain and obvious.”

I agree, it is plain and obvious. They can allow the President, the Courts, or The Heads of Departments to appoint inferior officers. Hmm, nothing in there about Independent Agencies. Maybe I’ll find it elsewhere. But definitely not in the other section I quoted as it quite literally is saying certain things States have to get consent from Congress to do.

“I never said that. I said what I said and the Constitution says what it says. Try to respond to the specifics of what the Constitution says.”

I quoted the exact words of the clause you mentioned in your first paragraph. It says “Consent of Congress”. That means permission.

You said “Congress doesn't get 'the final say' over an interstate compact. It entirely STRUCTURES such a thing and creates the authority to cooperate.” Which is you saying they control all aspects of interstate compacts, is it not?

Edit: fixed bold tag.

[JFree]

Oh and stop with this neoconfederate bullshit - In a federalist system where each state is a separate sovereign that have come together to form a Union. That ended in 1788.

[DesigNate]

I’d argue it ended in 1865, but tomatoe tomahtoh.

[damikesc]

I'd love to see an explanation about how the LEGISLATURE can make an EXECUTIVE branch agency that the executive has zero power over it.

Congress could make it a LEGISLATIVE agency, but it would lack the access to the executive branch.

[JFree]

Please explain how the legislature can create an executive agency that the legislature has zero power over.

I've already explained above how, constitutionally, the legislature is authorized to create what it has created - literally an agency that is independent of presidential control. Let me separate those clauses by line:

but the Congress may by Law vest the Appointment of such inferior Officers,
as they think proper,
in the President alone,
in the Courts of Law,
or in the Heads of Departments.

It is Congress and only Congress that authorizes that appointment authority. And that is a power of Congress that is explained within Article 2 and specifically (see the word 'but') as a limitation on the President's appointments clause powers.

[Chuck P. (Now with less Sarc more snark)]

I am by no means a constitutional scholar, but the plain language "in the President alone" implies the President must be involved. Unlike the Legislature or Courts, the president IS the Executive. If it doesn't involve the President, it is not part of the Executive.

[Vernon Depner]

Right. I should have scrolled further before I posted above.

[damikesc]

As Chuck P already said, the executive has to be involved with anything in the executive branch.

Trump could not relocate a DoJ office in the Capitol with full access to all files.

[JFree]

Why do you people continually conflate 'the President' with 'the executive'? The sentence you wrote - the executive has to be involved with anything in the executive branch is transparently FALSE - contradictory to the actual Constitution as written - if that first use of 'the executive' is supposed to mean 'the President'.

[Vernon Depner]

Why do you people continually conflate 'the President' with 'the executive'?

Because the President is the Executive. Duh.

[JFree]

No. The President is the President. The executive is the particular function that executes or enforces the law. If the two were the same thing, then the Presidential oath of office would NOT be I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States. It would instead be I do promise that I will be me

[damikesc]

The President is in the office for a specifically limited time. Donald Trump, citizen, is not the executive. Donald Trump as the duly elected President is the executive. Ergo, he will execute the office because the office is what provides the power.

I'm not sure where the confusion for you comes from.

[Vernon Depner]

It's obviously some sort of mental illness.

[Vernon Depner]

What part of "The executive Power shall be vested in a President of the United States of America" do you not understand?

[JFree]

That merely says the executive is neither part of the legislative (a parliamentary system) or a king (who owns the entire country including a constitution). That we have a separation of powers.

Those executive powers are enumerated - read limited - in the next section of Article 2 - starting The President shall be Commander in Chief....He shall have Power, by and with the Advice and Consent of the Senate,...but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

The President does not have any authority to assume ANY unenumerated powers. For example - it is not constitutional for him to unilaterally declare a state of emergency and suspend rights. He is limited by the constitution. That is why there is a specific oath of office he must take. And in the case of those 'inferior officers' that limitation is where Congress (not merely the Senate) can choose to exclude the Prez (though it can't assume those executive powers itself).

This isn't difficult. The language is plain.

[Vernon Depner]

The language is plain.

To everyone here but you.

[damikesc]

"Why do you people continually conflate 'the President' with 'the executive'?"

Who else could it possibly be? Feel free to name names.

[NM Dave]

Nor is there a prohibition.

[Sylvie1]

You do not touch on the argument that functionality of the role has changed, including more executive power, and thereby changing the President's standing to fire.

[DaveM]

I have no idea what you mean. "Functionality" is a quality of a thing, an attribute that makes it "function" better. What attribute of the Presidency has changed that makes it function better?

[Chumby]

A federal employee should be under the judicial, legislative, or executive branch with most falling under the latter. Any position considered “independent” should be eliminated yesterday.

[NM Dave]

Just remember, all the power you bestow on your Orange Dictator passes to an eventual Democrat successor, and yes, there will be one.

[Number 2]

Be fair, Damon. Well, before Trump, many conservative and libertarian critics wanted Humphrey’s Executor overturned because they wanted to weaken the power of administrative agencies and make them more responsive to the political process. There are legitimate arguments to be man on both sides, and points to the underlying dilemma. One cannot limit presidential power without strengthening administrative agency power, and vice versa.

[Wizzle Bizzle]

This is the argument (or arguments) Root should be making. The endless expansion of executive power is terrible, and he's right to point it out. But you can at least say mose people are voting for it. Nobody voted for the administrative hacks, and their unchecked power has been growing for decades.

[JesseAz (RIP CK)]

Humphrey executor expands the unelected bureaucracy, not the executive. This brings them back under the executive.

[Zeb]

And fans of democracy should favor presidential power here. The President being the only elected person in the executive branch.

[JFree]

Disagree. There is a concept in Swedish law/governance called ministerstyre that is illegal. It means that while the ministers/executives/legislature set policy they are prohibited from interfering in actual decisions of the agency. A more comprehensive approach - that essentially creates agencies as a fourth branch of government - is what in German law is called rechtsstat. Hayek wrote about this and imo it is the correct approach. Agencies are their own thing. Their decisions re individuals should be checked by COURTS not a Prez - and not courts solely in DC arguing in front of lobbyists. They are not merely a way for a Prez to increase their own power unchecked. The US system is not able to deal with this because our constitution is too old to really deal effectively with changes post-1789 - and is now seemingly impossible to amend or reform.

[Vernon Depner]

You realize we're in the USA and not Sweden or Germany, right?

[JFree]

In both cases, they are freer than we are esp re the issues at hand:

do the freely elected head of govt and the legislature effectively control the policies of govt

are the safeguards against corruption strong and effective

does the government operate with openness and transparency

could also add (though its peripheral) - are the electoral laws and framework fair and are they implemented impartially by election mgmt bodies

That's not just my opinion. Those are questions from Freedom House used to rank countries by different components of freedom. Where Sweden ranks 4th, Germany ranks 21st, and we rank 53rd

Course we can - and will - ignore all possibilities to improve our freedom in order to simply marvel at what we think we used to be.

[Stupid Government Tricks]

What this really shows is how confused the government hiring process is. The President nominates, the Senate interviews and hires. Who can fire, nobody? or does Congress have to impeach? Why does Congress haul these employees in for questioning if it is not their boss? If Congress is their boss, why can they only hire who the President has nominated?

[damikesc]

Valid point. Totally valid.

[Fu Manchu]

Good, this nation was founded on the principle that we have a king with unchecked power. Our dear Trump will start a dynasty that will lead us to greatness.

[JesseAz (RIP CK)]

More retarded boomer dem rhetoric.

[Rick James]

That's why we needed a precedent in 1935, to create a group of petty kings that were untouchable.

[DesigNate]

It’s like you’re not even trying.

Sad.

[Minadin]

"a 1935 Precedent Limiting Presidential Power"

a 1935 precedent empowering unelected bureaucrats. . .

[Chumby]

Hank recalls when that bill became a law.

[Jim Conley]

Abolish the career civil service and return to a spoils system.

[Azathoth!!]

THIS

[damikesc]

100% this. I know of all of the evils of the old spoils system --- but at least SOMEBODY was responsible. With "civil service", nobody is ever responsible for anything.

[Vernon Depner]

The first rule of being a bureaucrat is, "Never take responsibility for making a decision." Even lowly officials like school teachers and librarians live by this.

[Set Us Up The Chipper]

There are as many members in the set of Independent Federal Agencies as there are in the set of Two Horned Unicorns.

[Rossami]

Alternatively, "SCOTUS Is Now Poised To Overrule Humphrey's Executor, a 1935 Precedent That Endorsed Unprecedented Legislative Power"

More likely, however, is "SCOTUS Is Now Poised To Cabin The Humphrey's Executor Precedent To Its Actual Findings - That The Wrongfully Fired Are Entitled To Back Pay But Not To Reinstatement"

[Kemuel]

If the FTC has the power to enforce laws it is an executive agency, and therefore under the purview of the President. Only the executive has the power to enforce the law. They can call it "independent" all they want, but Congress, not having the power to enforce law, cannot reasonably delegate that authority to a third party.

[DaveM]

For better or for worse, we HAVE to get the courts and the "fourth estate" out of the executive office. Elections have to mean something. Executive decisions have to be decisive. We can't have this bureaucratic miasma dragging everything to a complete stand-still.

Yes, that means when a Democrat President is back in charge, he will be able to fire all the agency heads and replace them with legions of theater kids who will spend their time waging social media warfare instead of getting things done.

So be it. By their fruits shall ye know them, and we can trust the American voters to have the good sense to send them packing.

[Rossami]

Sorry, no. Gridlock is a feature, not a bug in our system. Separation of powers is an intentional system that keeps the government busybodies tangled up in their own machinations and out of the hair of the rest of us.

That said, I agree that we need to remember that our system was set up with three separate branches, not four. The administrative state needs to be exterminated, root and branch, and their functions split back into the proper three branches.

Or, if you are going to add a fourth branch, do so properly via a constitutional amendment, not via mere legislation.

[DaveM]

Interesting. I wouldn't say gridlock per se is a feature, though. Gridlock can potentially happen, but when it does, it is always an unsettled, temporary state. What is a feature is a balance of powers, and that is why the fourth estate is so wrong as you correctly point out: it has no counter-balance.

[JesseAz (RIP CK)]

Gridlock on the legislative branch is built in, not the executive.

Humphrey allowed congress and prior presidents to expand their powers beyond their elected term. It removed the power of the people to change direction through elections.

Look at how hard it has been this year to fire someone, stop waste and abuse, undo prior executive expansion.

Defending this is Defending the one way ratchet that dems rely on.

[DaveM]

An important distinction. The entire rationale for an executive power is to, well, EXECUTE.

[Rick James]

Sorry, no. Gridlock is a feature, not a bug in our system

No, Gridlock is a feature within the legislative branches. Once you have 'roving independent agencies' with vague and ill-defined mandates that seem to grow and morph based on the whims of the agency heads-- agencies which have either quasi, or no-shit legislative powers of their own and based on a crude definition of 'wetland' can penalize a homeowner to the tune of $30,000 a day, we don't want "gridlock" keeping us from firing that agency head.

An independent agency full of life-long careerist lizard people who can literally magick rules and regulations out of thin air should not be subject to 'gridlock' when the people demand accountability.

Otherwise you end up with a one-way ratchet of increasingly byzantine and tyrannical regulations that always seems to quite easily get bigger, but never manages to get smaller.

So in my humble opinion, "gridlock" doesn't apply when you're trying to fire someone who stands outside the checks and balances of the the three branches.

[Wizzle Bizzle]

Good point.

[Rick James]

Yes, that means when a Democrat President is back in charge, he will be able to fire all the agency heads and replace them with legions of theater kids who will spend their time waging social media warfare instead of getting things done.

Exactly. Otherwise we're essentially enshrining "the deep state" which some libertarians repeatedly claim "doesn't exist".

I hate to do it, but I'm going to again list the infamous list of questions that Tony Benn proposed for a healthy democracy:

what power do you have
where did you get it
in whose interests do you exercise it
to whom are you accountable
how can we get rid of you

And yes, for you pedants who are going to say, "*lol snort* buuuuh we don't live in a democracy! We live in a Republic!11!"

Those rules apply in a Republic as well.

[Keldonric]

These questions, when applied to certain matters, really do give pause.

Take immigration: Where did you get it? The Court says Congress holds it as an “incident of national sovereignty.” Never mind that the government is not the nation.

And the same question could be asked of a host of other powers the federal government now exercises — with answers resting more on judicial doctrine than constitutional text.

[Rick James]

The Supreme Court will soon review the president’s authority to fire “independent” agency heads.

I found the problem with the precedent...

For those not keeping up at home, "independent agencies" are unconstitutional, so now that we've agreed to disagree and we have them, they need to be directly accountable to the executive. If they're not, then we have a 4th branch of government that is unelected and unaccountable to the people.

So just like when it's proven that illegal immigration is not a zero-cost proposition, and libertarians always then demur and say, "well, then... what we should be doing is eliminating the welfare state..." I say, "allow the president to fire independent agency heads" and for those what don't like it, I say unto thee, "Well, what we really should be doing is eliminating independent agencies..."

[Kemuel]

My guess is, like the Obama insurance mandate was declared a tax, the FTC will be declared an executive agency. If it isn't, like Obama's insurance mandate, it can't exist.

[Michael Ejercito]

This kind of final showdown over Humphrey's Executor basically became inevitable as soon as Trump tried to fire an FTC commissioner, since it was that very same act by Roosevelt that led to the 1935 precedent.
So the idea of independent agencies did not even predate the American Civil War, let alone Washington's presidency.

[Rick James]

The last I'll say on this is, if we try to look at this from a purely libertarian perspective, the question you might first ask yourself is "whose freedom are we protecting if the President can't fire the head of an 'independent' agency?"

[Wizzle Bizzle]

Jimmy Kimmel's? I'm told that is the most important issue of our time.

[Keldonric]

I can’t help wondering — if these tenure restrictions are struck down, what happens to the delegation itself?

Congress didn’t delegate authority to “anyone the president likes.” It created a body of officers with insulation, and only under that condition did it trust them with quasi-legislative and quasi-judicial functions. Remove the insulation, and you’re no longer talking about the same animal.

Doesn’t that mean the underlying delegation should be revisited too? If the powers were granted to an insulated commission, but we now say the commissioners are just ordinary executive officers, then the structure Congress actually enacted has been altered. That seems like more than just a removal clause problem — it’s a delegation problem.

So the question becomes: do we keep the powers with the new, fully dependent officers, or does that authority evaporate because it was premised on a different constitutional arrangement?

[Zeb]

I've always thought that if the supreme court finds a part of a law unconstitutional, they should invalidate the whole law and congress can try again if they want. So the proper outcome here would be to invalidate the law that created the FTC in the first place if it's unconstitutional to have independent agencies like this (which I think it is).

[Lester75]

This expansion of executive power doesn't bother me as much as the Tariff abdication of legislative power.

The main problem with Trump, is he doesn't believe in appointing people with any sort of expertise. His criteria is how much bootlicking they will do, and whether they were ever on Fox TV. I'm sure other presidents have appointed bootlickers, but maybe it was just less obvious in the past.

[Keldonric]

I’ve done some reading — IEEPA, the tariff actions, and the trade acts. From a layman’s perspective, tariffs are still legislated pretty tightly under the Tariff Act of 1930 and the Trade Act of 1974.

The real problem is the executive leaning on IEEPA to stretch emergency regulatory authority into revenue authority. That’s not legislative abdication so much as outright executive overreach into a power Congress never delegated.

[Vernon Depner]

And that's why that overreach will be overturned by the Supreme Court.

[SRG2]

Kagan's dissent from the order makes the reasonable point that if you're going to overturn a very well-established precedent, doing so without giving any reasons, via the Shadow (or as I prefer to call it, Fermat) docket. is not the way to go.

https://www.supremecourt.gov/opinions/24pdf/25a264_o759.pdf

[mulched]

They're not overturning the precedent on the shadow/fermat docket. The only thing that got overturned is the interim remedy.

There is no precedent that the remedy (interim or permanent) is to be reinstalled to the office. (Humphrey was dead after all, and his estate only got back pay.)

[Iwanna Newname]

Why do we have commissions? We don't have state department commissions, or defense department commissions or Treasury department commissions. We have Secretaries that head them.

[BadLib]

The absurdity of the notion of an "independent agency such as the FTC " is that it subverts the voters' ability to meaningfully weigh in at the ballot box on a regular basis.

Another bizarreness of the FTC is that not more than three of the five commissioners can be "of the same political party". Yet the notion of a "political party" appears nowhere in the Constitution. Suppose the country unites around sensible policies and 99% of the voters and politicians are Libertarians. However, Libertarians could only constitute 60% of the power in the FTC and the other 40% would be yielded by a mere 1% of the population. This requirement also limits a President of party X to appoint a member of her own party if there are already three commissioners who are members of party X in spite of voters having elected the President to do just that. Of course, from a practical matter... (1) we will never have such unity, (2) nominees will just change their party affiliation when nominated and until the end of their term, and (3) the Libertarian dominated Congress would just remove this bizarreness.

Since FTC terms are 7 years, a President in two terms gets to replace all of them (with perhaps two of the five having to change their party affiliation to "Undeclared" just before being nominated).

Suppose this commission screws up the world of commerce and that results in the economy tanking but does so by implementing misguided policies and regulations rather than malfeasance or some other "cause" for a President to dismiss them. In response, voters vote overwhelmingly for a President with radically different policy preferences regarding commerce. However, the FTC could continue to tank the economy for all or most of the first term of the new President because the FTC couldn't be reined in until the new President could replace three of the five commissioners. That sort of isolation from the voters is non-democratic. (Of course, in that extreme case Congress might disband the FTC or "pack it" to address the problem - but such radical acts should not be required for the overwhelming majority of voters to have their will take effect).

[Iwanna Newname]

If a commission is advisory, it can be a legislative subsidiary. If it is promulgating rules and enforcing them, it seems to be part of the executive branch. Otherwise, it's a renegade, unanswerable star chamber.