The Volokh Conspiracy
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The Hughes Court Repudiated FDR In Humphrey's Executor, and the Roberts Court Will Repudiate Trump by Maintaining Humphrey's Executor
The separation of politics, not the separation of powers, will decide Wilcox v. Trump.
Students always have difficulty reconciling Myers v. United States (1926) with Humphrey's Executor v. United States (1935). In Myers, Chief Justice Taft forcefully held that the President has an absolute removal power of a postmaster. But Humphrey's Executor held that the President could not remove a member of the Federal Trade Commission without showing cause. Superficially, at least, there are ways to line up the precedents. The postmaster only exercised executive power, while the FTC member exercised "quasi-judicial" and "quasi-legislative" powers, whatever those are. But there is another explanation I usually tell students.
Humphrey's Executor was argued on May 1, 1935, and decided on May 27, 1935. Schechter Poultry v. United States was argued on May 2 and 3, 1935, and decided on May 27, 1935. Coincidence? I think not. Both of these cases were repudiations of President Roosevelt's powers. Humphrey's Executor unanimously upheld the so-called independent regulatory agencies, and Schechter Poultry unanimously halted the National Industrial Recovery Act. This was not a good day for President Roosevelt. Both cases were largely seen as repudiations of FDR's overreaching powers.
Of course, if Roosevelt lost the battle on May 27, 1935, he would win the war in 1937. Even though there was no actual "Switch in Time that Saved Nine," West Coast Hotel v. Parrish (1937) signaled that the Supreme Court would no longer stand in Roosevelt's way. And, over time, Roosevelt would make nine appointments to the Supreme Court. The rest is history. In a fairly short period, Roosevelt radically altered the Constitution, the Supreme Court, and our republic.
Over the decades, Humphrey's Executor became a conservative bête noire. But when the opportunity arose in Morrison v. Olson to scale back Humphrey's Executor, Chief Justice Rehnquist more-or-less reaffirmed the precedent. Only Justice Scalia, in dissent, was willing to highlight the problems with Humphrey's Executor. Over the ensuing decades, Scalia's Morrison dissent became gospel, and Rehnquist's Morrison majority aged quite poorly.
Fast forward to the Roberts Court. In a series of cases, stretching from Free Enterprise Fund (2010) to Seila Law v. CFPB (2020), the Court chipped away at Humphrey's Executor, but did not overrule the precedent. In the wake of Seila Law, the Court has not ventured further, finding various ways to avoid the issue. But that avoidance is no longer possible.
President Trump fired a member of the National Labor Relations Board without showing cause. Trump argued that the removal protections in the National Labor Relations Act are "inconsistent with the vesting of the executive Power in the President." The fired member, Gwynne Wilcox, has challenged her removal. This case allows Trump to directly challenge Humphrey's Executor. The District Court (Judge Howell) and the inevitable D.C. Circuit panel will be bound by that precedent, so there will be no surprises below.
What happens at First Street? The Supreme Court could simply deny review, given that there is a binding, on-point precedent. I am reasonably confident that Justices Thomas, Alito, and Gorsuch will vote to grant cert. For reasons I'll explain below, Chief Justice Roberts and Justice Barrett will want nothing to do with this case. Who will be the fourth vote for cert? Justice Kavanaugh.
This vote would be the most consequential cert vote Justice Kavanaugh will ever cast. Way back in 2008, then-Judge Kavanaugh wrote in Free Enterprise Fund v. PCAOB (2008) that the D.C. Circuit should "hold the line and not allow encroachments on the President's removal power beyond what Humphrey's Executor and Morrison already permit." He repeated that same line in PHH Corporation v. CFPB (2018).
I have to imagine that overruling Humphrey's Executor is something Justice Kavanaugh has thought about for some time. In 2018, the WSJ wrote, "Judge Brett Kavanaugh, now President Trump's nominee to the Supreme Court, has signaled he would like to overturn the precedent set in the case, Humphrey's Executor v. U.S." By contrast, Chris Walker thought Kavanaugh would not overrule the precedent. Then again, Walker suggested that Kavanaugh would be solicitous to Chevron, and we all know how that turned out in Loper Bright. Kavanaugh's chance to overrule Humphrey's Executor will come soon enough.
But Justice Kavanaugh only gets us to four votes. What about Chief Justice Roberts and Justice Barrett? Let's start with the Chief.
Roberts, like Kavanaugh, came of age after Morrison v. Olson. Humphrey's Executor, much like Roe v. Wade, was the sort of precedent that Reagan wunderkinds dreamed about overruling. Roberts did not need to overrule Humphrey's Executor in Seila Law, so he didn't. But what happened with Dobbs? Roberts blinked. He made up this bizarre fifteen-week test that made a hash out of precedent. It was such a weak opinion that we won't even bother including it in the next edition of the casebook. Roberts thought he was avoiding controversy, but in the process put out a totally forgettable concurrence. Certainly not a ruling for the ages.
I suspect Roberts would do much the same in Wilcox v. Trump. When presented with the opportunity to catch his white whale, he won't. If there was any other Republican president, Roberts would not hesitate to overrule Humphrey's Executor. While overruling Roe created something of a backlash, most Americans don't know the NLRB from the YMCA. Gutting the for-cause protections would make no appreciable difference in people's lives. It would be a freebie! But not with Trump. Roberts will not be seen as surrendering to Donald Trump's hostile takeover of the federal government. The Chief Justice will not save DOGE as a tax. My prediction is that Roberts will vote to reaffirm Humphrey's Executor, and in the process say some meaningless things about the separation of powers.
What about Justice Barrett? I think she will see the stare decisis value of Humphrey's Executor as too strong. She will say that as a matter of first impression, she might decide the case differently (with a cf. footnote citing all of the anti-removal scholarship), but given nine decades of precedent, the reliance interests are too weighty. And by a 5-4 vote, the Roberts Court will save independent agencies.
The Hughes Court repudiated FDR in Humphrey's Executor, and the Roberts Court will repudiate Trump by maintaining Humphrey's Executor. This case will not be based on the separation of powers, but an attempt to separate the Court from politics.
FDR did not have a good day in 1935, but he prevailed in 1937. Every action has a equal and opposite reaction. Let's see what happens in 2027.
