President Trump Targets Humphrey's Executor Directly

President Trump acts to remove two Democratic commissioners from the Federal Trade Commission. Litigation is likely.

The New York Times reports that President Trump has acted to remove two Democratic commissioners from the Federal Trade Commission.

President Trump fired the two Democratic members of the Federal Trade Commission on Tuesday, a rejection of the corporate regulator's traditional independence that may clear the way for the administration's agenda.

The White House told the Democrats, Rebecca Kelly Slaughter and Alvaro Bedoya, that the president was terminating their roles, according to statements from the pair. The F.T.C., which enforces consumer protection and antitrust laws, typically has five members, with the president's party holding three seats and the opposing party two. . . .

"I am writing to inform you that you have been removed from the Federal Trade Commission, effective immediately," said a letter sent to one of the commissioners, which was reviewed by The New York Times. "Your continued service on the F.T.C. is inconsistent with my administration's priorities."

This action , even more than the removal of National Labor Relations Board Chair Gwynne Wilcox, targets Humphrey's Executor v. United States as that case concerned the constitutionality of limits on the removal of FTC commissioners. As least one of the removed FTC commissioners has stated his plans to sue.

The removals leave the FTC with two sitting commissioners. Assuming that the President's action is upheld (either by overturning Humphrey's or distinguishing on the grounds that the FTC today exercises more core executive power than it did in the 1930s), this will free up the FTC to act in line with the President's policy priorities.

With four commissioners, the FTC was potentially deadlocked and was unlikely to reverse Biden Administration policies or adopt new initiatives and measures ought by Chair Andrew Ferguson. With only two commissioners of the same party, however, that is no longer a problem. Commissioner Holyoak is likely to agree with Chair Ferguson on most issues.

But can the FTC act with only two commissioners? Is that a quorum? Apparently it is under existing FTC regulations. 16 CFR § 24.14 provides:

(b) A majority of the members of the Commission in office and not recused from participating in a matter (by virtue of 18 U.S.C. 208 or otherwise) constitutes a quorum for the transaction of business in that matter.

 

[Note: As originally posted, I had accidentally cited and quoted the SEC's quorum regulation instead of the FTC's regulation. I regret the error and the post has been corrected.]

Comments

[AmosArch]

I guess we need to go back to the Constitution and use a yellow sharpie marker to highlight the part that says

'The President has absolutely no power to do anything and absolutely no power over anyone unless the Democrat Party permits it...'

that Trump doesn't seem to be seeing. He might as well be a corpse like Biden with the range of control these judges, media, and Dems seem prepared to give him.

[dwb68]

Go back to the Constitution and put your yellow sharpie around this clause: "The executive Power shall be vested in a President of the United States of America," and this one: "All legislative Powers herein granted shall be vested in a Congress."

The Supreme Court will take about 252 pages to reveal what the constitution makes plain in two sentences. I blame the law professors, who probably get paid by the word.

[Riva]

Don't worry, that's all written on the back with the same invisible ink they used to record the "quasi" agency clauses used in Humphrey's Executor.

[Hyronymous]

Humphrey's Executors v USA was a Republican court decision against the Great Satan, Franklin Delano Roosevelt.

The Republican party began the initiative to push back against the spoils system in the 1880s, working to create a government that was professional and free of corruption, as opposed to the existing system where you'd have some know-nothing bootlicker appointed to an important position, without any experience or knowledge to be able to do the work, effectively. Every new government caused extreme whiplash and economic uncertainty, making it difficult for business to plan for the future. Getting anything done required buying off various officials, slowing down development.

Corruption, under the name of populism, is no good for anyone and it's completely antithetical to anyone who understands why we're a republic and not a democracy. As we freed the country of it, we started to become the superpower that topped out the world at the end of the 20th century.

[AmosArch]

Its okay when obama/biden fires whoever they want like inspector generals, ambassadors and generals though.

[Armchair]

Technically speaking we're a democratic republic (Or representative democracy). Ultimately, the government is supposed to be responsive to the people.

The spoils system had one notable advantage. The individuals put in charge largely did what the elected civilian leadership told them to do.

Now, a professional government (like a professional army) has notable advantages in efficiency, and is generally desirable...so long as it continues to do what the elected civilian officials tell it to do. But when the professional government (or professional army) decides that they know what is best, and decide to start ignoring the elected government officials...or undermining the elected government officials...or "resisting" them.

Well, you start to have some really severe issues. Then you get a government (or army) that doesn't actually represent the people, but represents a certain subclass of the people. And history has told us that doesn't really go well. And maybe a spoils system is preferable to that.

[Hyronymous]

An orange dog is a dog, not an orange. So, yes, we're a democratic republic - a republic that has some mild shades of democracy.

The republic's goal is to bring a layer of reasonableness that pushes back on wild agendas, corruption, etc. and instead targets what is written in the first sentence of the Constitution, "establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity".

The concept of a representative - a person who "represents" his electorate - is that this is a person who would work to understand the issues and ensure that a minimally invasive solution is implemented, to resolve any conflicts.

Checks and balances were put into place to ensure that it would be difficult to do anything without building a broad consensus. Supermajorities as a requirement for vote passage were the norm for Congress, again, as a stop to invasive, maximalist government initiatives.

The Republican party, until MAGA, believed in republicanism, limited government, and the free market. Populism, maximalist government, and market distortion to try and push us back to being a country of 3rd world factory workers are all antithetical to anything the Republican party has ever stood for, in any of its incarnations, until 2016.

Let's also consider that Trump had a TV show, for years, all about firing people. He knew how to fire people in 2016 and he knew how to hire people in 2016. He didn't walk the straight and narrow path, back then, because of a failure to grasp that he could remove people who were disobedient. He would say something dumb and his advisors would point out why those things were dumb, and convince him. He stopped himself, given reasonable advice. But **he was the boss**. At any point, he **could have** said, "Do it anyways." And they either needed to do it, or get out of the way.

As said, he consistently chose not to. And subsequently, his administration was largely ineffective because Trump himself wasn't bringing any good ideas to the table, and his advisors didn't have a central figure, choosing an overarching goal. That's where we had things like the case where you had Fauci and Mnuchin giving us opposite advice on the Pandemic, and Trump sitting off in the corner acting smug about his own cleverness to change a map with a Sharpie.

Back then, Trump was convinced to hire **Republicans** as his advisors - people who believed in small government, fiscal responsibility, free markets, etc. - and, not just that, ones who were actually knowledgeable in their fields. His emotional desire to live out his dreams as the new Andrew Jackson or FDR (both Democrats) were suppressed by reason and argument.

In his new administration, he's largely hired people for their ability to create drama on TV, when he's pardoning corrupt politicians, and for their willingness to do things like shutdown anti-money laundering initiatives. He's no longer receiving any feedback on the likely outcomes of his ideas, and that's giving him the space to play FDR, while passing rules that say that you need to grease his and Pam Bondi's palms, if you want regulations to change in your favor.

[Armchair]

I'd argue we have more than "mild shades of democracy"

A republic however, is simply a different form of government. One where the rule lies with a coalition of leaders (legislators, senators, etc), rather than a singular individual.

But the "democratic" part is key. In that the government is responsive to the people, rather than independent from the people. A republic which is independent from the will of the people is in many ways no different from an oligarchy. And oligarchies are notoriously prone to corruption.

The government ultimately must be responsive to the will of the people, otherwise corruption will dominate.

[Rossami]

Yup, it was wrong when Republicans wrote it and it's still wrong when Democrats defend it. It is specifically an example of noble cause corruption. Yes, it was intended to fix a serious problem but the means employed violated other rules and norms and created a system that is (arguably, at least) worse than the original situation.

I say that because despite this attempt, we still have cronyism and corruption. Only now, the cronyism and corruption doesn't even minimal accountability of the spoils system. The 'independent agency' rule for the FTC was supposed to eliminate (or at least reduce) governmental meddling in the economy. That has rather spectacularly backfired. It's time to end the Humphrey's Executor experiment and try something new.

[Hyronymous]

Either I'm not following you or you've misunderstood something about what the current government's goals are.

You seem to say that government meddling in the economy is bad. I would agree with that statement.

The current government's goals are to redefine the economy and shut down the free market. That's not some personal fear, that's the stated position of the current powers that be. They want to restore American manufacturing, block access to foreign products and foreign investments, and support unions against business leaders. The result of 5 decades of a free market is abhorent, and its willingness to sell products abroad, buy products abroad, manage foreign workers, and manage domestic workers, like there's no national borders just free, open, market freedom anywhere the markets think they can operate - that's no good.

To my knowledge, the FTC requires that businesses provide factual information to investors; they block mergers that would allow monopolies to take over and become non-competitive.

Access to good and honest information is a central tenet for most libertarians. People can't make their own decisions, when they're not able to access the information that they would need to know, to be able to make a rational decision.

There's nothing that needs to be partisan, to be an organization that enforces honest disclosures.

Blocking the formation of monopolies has been a core goal of capitalism since John Adams formalized the whole deal. Monopolies are able to ignore and pervert the free market, worsening the economy for everyone involved. There's no good outcome for anyone, when monopolies are prevalent.

With a partisan mission to re-build the economy as a self-supporting, anti-globalist state, the number of potential competitors drops dramatically. Right now, American businesses must compete against British, German, Chinese, Korean, and the businesses of many other countries. After we devalue the currency by manipulation of the Fed rate, through the Mar-a-Lago Accords, and sending out newly minted dollars as subsidies for business lost to tariffs - so that your $10k in savings come to have a purchasing power of about $1k (bringing American factory workers into competitiveness with Chinese) - and then boost tariffs and enact laws to restrict foreign access to our markets, we will suddenly have lots and lots of monopolies, none with any incentive to operate at a competitive price.

At this point, where the current government has achieved its publicly stated and open ambitions, the FTC would need to decide how much monopoly busting is called for. If the two parties are in disagreement, then there's a strong partisan agenda to control the FTC, to target some political agenda of less or more forced divestitures.

Whether Trump would prefer to allows monopolies - as favors to his supporters - or to bust monopolies - as favors to his union backers - I don't know. In general, I'd expect that Trump's primary motivation would be in balancing the value of those personal favors that he'd received to that moment.

Ideally, at all moments, the FTC is making decisions with an eye towards building a healthy economy (balancing between allowing the free market to move smoothly on its own, and the need of ensuring that monopolies are not perverting the free market). And, in general, I'd expect that if they're being told to do two conflicting things by the leadership (when half of the leadership must be Republican and half must be Democratic), that they would opt for the most reasonable and least questionable interventions. That way, you don't risk raising the hackles of either boss.

I'm not seeing the downside of that.

[Rossami]

I don't particularly care about the current government's goals. I'm trying to look three, five, ten administrations down the road. And killing off unaccountable government agencies is a big step toward a stronger economy and freer country at that time scale.

re: "the FTC requires that businesses provide factual information to investors" - No, you are confusing the FTC with the SEC. The FTC does very different things that, I will concede were supposed to help build a healthier economy. The problem is that the FTC was pretty-much immediately subject to regulatory capture and has failed at the positive things it's supposed to achieve while generally stifling innovation, growth and progress.

The structure of the FTC is broken from the start in that it tries to supplant the decisions that we already pay R and D (and Independent) legislators to make.

In other words, Trump may be doing it for the wrong reasons but overturning Humphrey's Executor is still the right thing to do.

[Lee Moore]

Hyronymous :

1. You seem to say that government meddling in the economy is bad. I would agree with that statement.
2. To my knowledge, the FTC …. block mergers that would allow monopolies to take over and become non-competitive.
3. Blocking the formation of monopolies has been a core goal of capitalism since John Adams formalized the whole deal. Monopolies are able to ignore and pervert the free market, worsening the economy for everyone involved. There's no good outcome for anyone, when monopolies are prevalent.

There seems to be a wee bit of cognitive dissonance afoot here. Government “blocking” IS government meddling in the free market. I appreciate that you swiftly changed horses and mentioned “capitalism” in No. 3, but I think I’m going to insist that you stay on the same horse for the whole race. And you’re talking about “worsening the economy” and “no good outcomes.”

With the best will in the world you are directly contradicting No. 1. You like, indeed you enthuse about, the government meddling in the economy by trying to prevent monopolies. As you essentially concede here :

4. Ideally, at all moments, the FTC is making decisions with an eye towards building a healthy economy (balancing between allowing the free market to move smoothly on its own, and the need of ensuring that monopolies are not perverting the free market).

That would be “perverting” in the sense of producing results you disapprove of. “at all moments” is a particularly nice touch. The FTC never sleeps, it flies above us constantly like a hawk in search of prey. The free market is a weak child. Without government hawks to protect it day and night it will sicken and die.

5. To my knowledge, the FTC requires that businesses provide factual information to investors….

Access to good and honest information is a central tenet for most libertarians. People can't make their own decisions, when they're not able to access the information that they would need to know, to be able to make a rational decision.

This is crazy. Libertarians believe in freedom of expression – to speak and to listen. The government compelling some people to speak, and then judging the goodness and honesty of their compelled speech .. with penalties, is the precise opposite of freedom of expression.

I am not insisting that the attempt to interfere in the market by trying to prevent monopolies is necessarily a bad thing. But it has nothing to do with free markets. It’s government “blocking.” (Though I would say that the great majority of monopoly creation and preservation is the result of government intervention – so fewer government interventions that encourage monopoly would be both a good thing and entirely consistent with free markets. )

Nor am I insisting that there may be a case from time to time for the government compelling private persons to speak and to speak honestly. It’s just that such compulsions have diddley squat to do with libertarian enthusiasm for free expression. Or rather they point 180 degrees away from it.

[David Nieporent]

Corruption, under the name of populism, is no good for anyone and it's completely antithetical to anyone who understands why we're a republic and not a democracy.

The U.S. is both a republic and a democracy.

[David Nieporent]

'The President has absolutely no power to do anything and absolutely no power over anyone unless the Democrat Party permits it...'

Or maybe you could instead be accurate (and grammatical, unlike your comment) and say 'The President has absolutely no power to do anything and absolutely no power over anyone unless the law permits it...'

[Armchair]

The executive Power shall be vested in a President of the United States of America.

[David Nieporent]

Did you think that was intelligent when you posted it?

[Armchair]

I thought you needed to be reminded of it. You so often seem to forget it.

[John F. Carr]

"one of the removed FTC commissioners has stated his plans to sue"

Anybody targeted by the FTC could attack the commissioners' removal. Congress placed a condition on the FTC's exercise of power.

Maybe Trump would be happy with a ruling that the FTC is now powerless.

[dwb68]

Roberts: Yay! we get to put the final nail in Humphrey's Executor v. United States

Also Roberts: but, Trump

[Bob from Ohio]

Great. Humphrey's Executor is a top 10 worst SCOTUS decision.

[Hyronymous]

I'm sure that's what FDR thought, at the time.

[Bored Lawyer]

"Litigation is likely."

Understatement of the century. Litigation is as certain as the sun rising in the east tomorrow morning.

[Doug Heffernan]

Bet your bottom dollar...

[dwb68]

Maybe, maybe not. Depends on what they are going for. If they challenge it, the Supreme Court is very likely to uphold the firing and strike Humphrey. So its not smart from a lawfare perspective.

On the other hand, if they are putting up a fight purely for campaign donations, they sure, its worth it.

[David Nieporent]

So its not smart from a lawfare perspective.

That doesn't make sense. First, it will obviously be enjoined since lower courts are bound by Humphrey's Executor. So they will at least prevail for a period of time.

Second, while the smart bet is that the Court will overturn Humphrey's Executor, there are never any guarantees; there's a slim chance it won't.

Third, what do they have to lose, anyway? If they don't challenge it, then that's the functional equivalent of it being overturned. Why go down without a fight?

[dwb68]

There is a difference between "pick your battles" and losing a battle.

The Supreme Court has all but telegraphed they want to overrule Humphrey and have pared it back. Humphrey probably isn't good law anymore.

If they don't challenge it, they live to fight later, preserving it for a time when the court is more favorable.

If they do challenge it (99.9% chance they lose), its irreversible. Locked in for a generation, at least. Hard to see how they take this back.

[David Nieporent]

If they don't challenge it, they live to fight later, preserving it for a time when the court is more favorable.

If they do challenge it (99.9% chance they lose), its irreversible. Locked in for a generation, at least. Hard to see how they take this back.

Um, these two things don't mesh. "A time when the court is more favorable" is not any time in the foreseeable future. The Democrats would have to pick up two net seats, with the earliest they can appoint even one justice being 2029.

[Ridgeway]

I think one has to look at all this with a view toward the Fed Board of Governors.

If the President were able to replace them (particularly the Chairman) on a whim, I'd expect that to be viewed very negatively by financial markets.

So is there a way to square Myers, Humphrey's Executor and Seila Law in such a way as to protect the Fed? I'd expect the SCT would be wrestling with that, although I expect the ultimate answer will be no, and the Fed will viewed as just another Executive Agency, consequences be damned.

[MaddogEngineer]

Disagree with this action by the president.

I realize there are some (many?) unitary executive advocate who would say the granting of quasi powers to agencies in commission (as the English might say) does itself run afoul of the Constitution (separation of powers and delegation). I disagree, while supporting prior decisions about the CFPB...AKA if you want to give such powers and protections from removal, put the delegated authority in commission. Having bipartisan representations on such multi-member commissions is a useful protection for minority perspectives when setting such public policy. Even when the minority loses. What goes around comes around.

Upending longstanding precedent is problematic. The CFPB (and special counsel) structures/authority were not in conformance with the long-standing precedent.

Maybe SCOTUS will end up tweaking Humphrey's by explicitly requiring that such agencies must always have a majority nominated by the current president (no overlapping terms where he has to wait).

[Lee Moore]

Who cares where quasi powers are put ? Only actual powers are important.

Why would Trump be interested in getting control of agencies with nothing but “quasi powers” ?

The DJ in the Special Counsel case tried the “ not very much power” thing, but that got shot down by the DC Appeals Court.

[MaddogEngineer]

By "quasi" I mean legislative and judicial. Not executive.

That's why I never understood why CFPB was given a single director. Not super familiar with the entirety of the bureau's authority, but I assume it did not do much quasi-judicial. Perhaps too great an assumption. Better answer might be Democrats got greedy, thinking they could create a self-perpetuating authority responsible to no one: self-funding, with its director choosing his own successor beyond presidential nominating authority. Stupid hubris.

Of course, some of the commission agencies have had some of their quasi-judicial wings clipped with the SEC v Jarkesy holding that the Seventh Amendment right to a jury trial applied to some enforcement actions, narrowing the "public rights" exception to Article III jurisdiction for such actions. To me, this seems a better constitutional argument against quasi authority grants than those to overturn Humphrey's. Admittedly the constitutionality arguments and precedents of administrative law is opaque to me.

An argument for quasi powers is that they need to be in commission because they can not rightly be delegated to the (unitary) executive alone, needing to mirror representation in Congress or a jury. Of course, that is ultimately an argument that any quasi agency is unconstitutional, and only the individual branches should exercise discrete authority. Overturning those precedents might be as disruptive as revisiting Lochner or abolishing substantive due process in favor of a privileges and immunities grounding of individual constitutional rights. Which I realize for many is a feature, not a bug.

[Lee Moore]

I wouldn't say that any "quasi agency" in the sense that you describe was unconstitutional. The constitution only recognises three types of federal power, and it places them separately, with the Congress (legislative), President (executive), and Judiciary (judicial.)

It is true - as Mr Nieporent will be along to remind us - that there are very small exceptons to the exclusivity of these actors and these powers. The Constitution permits Congress to vest the power to appoint some inferior officers in the courts of law - which is an exception (the only one) to the exclusivity of the vesting of the executive power in the Presedent. Conversely, the Constitution gives the President some legislative power - he can make treaties which become the law of the land if ratified by the Senate (not the Congress.) But these exceptions are permitted, because the Constittuion expressly provides them.

So if the Congress attempted to place legislative power in a quasi agency that would run into the delegation problem, which we are currently working through with the slow but satisfying evisceration of Chevron. Which is not to say that the Congress cannot create a quasi agency to advise the Congress on legislative matters. That's not delegating the legislative power, and it isn't infringing the executive or judicial power.

And Article 1 permits the Congress to establish Tribunals inferior to the Supreme Court. It can do so with single judges, or hydra headed courts. The Appeal Courts are a species of the latter, which are entirely constitutional. So a judicial hydra is fine.

I suspect that our main point of difference is that I do not think that agencies like the FTC lack executive power. The FTC can and does mount investigations and drag corporations into court, or settles with them for consent decrees and penalties and so on. This is executive branch work.

Of course this sort of thing could, in principle, be done by concerned private citizens - if they could somehow establish standing - but the FTC does it with legal authority, government cash, and I assume automatically conferred standing. There are many things done with the executive power that could be done by private persons, but if those things are in fact done using the executive power, they fall within the (almost) exclusive preserve of the President.

Maybe that's a bad thing and we should change the constitution so that it is otherwise. But unti then, we should not be encouraging the judiciary to pretend that it is already otherwise.

[dwb68]

Not when the precedent was dead wrong. Elections have consequences, ergo policy changes. THATS WHY WE HAVE ELECTIONS. Don't like the new policy? Vote for the other person.

The President does not have "quasi-power." He has THE executive power.

[MaddogEngineer]

Agencies that have quasi powers have more than THE executive power. That's why they are structured the way they are, with (now disputed) limits on presidential removal power.

If you can't limit the president's removal power, then maybe they can't have those non-executive delegations. Or rather, Congress will not agree to let them continue having them if under the complete authority of the president.

Again, that might be a feature, not a bug for many.

[dwb68]

"If you can't limit the president's removal power, then maybe they can't have those non-executive delegations."

I think you are catching on: There are only three branches of government, and none of them have comingled powers.

If the FTC is an executive branch agency, it cant have legislative powers. The constitution is clear on that.

[MaddogEngineer]

I didn't just catch on. That's exactly what I was saying was the actual controversy here. Humphrey's presumes the constitutionality of such cross branch delegations.

That is not what was at stake in the CFPB director and special counsel cases. As I indicated above. (If the grant of authority to the CFPB director had exceeded prior precedent, I assume the Court would have found the agency unconstitutional with a single head, given the prior constitutional bargain of only allowing quasi-delegated authority to multi-member agencies.)

It's entirely possible SCOTUS might maintain such restrictions with new legal reasoning TBD. It's not clear why everyone presumes the chief is gunning for a complete overrule of Humphrey's, when to date the Court has only faced single head executive agencies/offices. Of course, I have not read closely his entire opinions on the matter. Something I assume I have in common with most people here.

[MaddogEngineer]

Or perhaps I should have said more clearly, the dispute is about whether the FTC is an executive branch agency. Contra your apparent assumption, it may not be.

What Roberts might decide to do about that, if there's some inherent executive branch authority there is an unknown. Maybe he strikes it out from the agency, leaving the other powers. After of course he defines and delineates them. That might be all the "enforcement" powers, leaving another executive branch agency (TBD or maybe the Justice Department) to bring such cases before the agency for it to adjudicate. Subject to any restrictions in SEC v Jarksey of course.

[dwb68]

"The Federal Trade Commission (FTC) is a civil law enforcement agency that prosecutes cases involving consumer protection and antitrust violations, including fraud, scams, identity theft, false advertising, privacy violations, and anti-competitive behavior"

It is an executive agency. 100%

The keywords being "a civil law enforcement agency that prosecutes..."

[Doug Heffernan]

Humphrey is all but dead already. Some think Roberts will save it. Not likely. With the CFPB, FTC, EPA, FBI, NSA and DOJ all just vassals for direct Presidential power, all that is left to strip of any independent authority is the Fed, so Trump can directly control interest rates and fiscal policy. Should turn out swell.

[Lee Moore]

There’s no logical reason to distinguish between single headed agencies and multi headed ones (hydras.) Both types exercise executive power and to comply with Article 2 Sentence 1, they have to be answerable to the President.

But as I mentioned previously, Kagan will be doing her stare decisis faux fainting fit and Roberts and will desperately want to pretend to believe it.

So Trump should throw them a bone. The only conceivable argument you can make that one of the heads of a hydra does not exercise executive power is that the power is exercised by all of the heads collectively. So if Trump chops off ALL the heads of an agency not just one or two, he creates a reason for Roberts and Barrett to go along. Because those are different facts from Humphrey.

[Lee Moore]

“Should turn out swell” or not, is not the constitutional test. It would be so nice if judges could try to remember that.

[Doug Heffernan]

The Justices, even the most ideological like Thomas, will say that it is not their job to consider consequences, but they are also human (ostensibly at least), so they sometimes do.

But whether or not they consider potential consequences, that doesn't remove the consequences (or their quality) from reality. So, the swellness of the consequences will still effect our lived experience, whether or not the judicial branch gives it any thought whatsoever.

In the immunity decision, Kavanaugh said the decision was for the ages, not just the instant case. That is something like considering potential consequences, so it can be subtle.

[Lee Moore]

If you are trying to persuade me that judges, like all mortals, are weak, you are pushing against an open door.

My point is that their weakness should not be encouraged. Whenever they appear to be taking consequences into account, in preference to the actual law, we are entitled to throw (metaphorical) rotten tomatoes, and to fulminate about impeachment (for placing consequences ahead of the law is ipso facto a departure from "good behavior.")

And we should definitely not cheer them when they do this, even if we agree with their dire assessment of the consequences. Of course we mere cowardly mortals are not responsible for the consequences of judicial decisions, so it is easy for us to jeer. But that doesn't mean that we should refrain from doing so. There's a simple solution for a judge faced with rendering a judgement according to law that he thinks will have terrible consequences. Resign and justly reap the applause for your honesty. Even if it's only your Mom who applauds.

[MaddogEngineer]

Perhaps people should not get too exercised about that, without first reading up on the early history of the Federal Reserve. Granted I'm about to recount the era before authority was centralized in the board (away from the regional banks), but the board was not at all independent from the Treasury, with secretaries of the Treasury also serving as board chairmen.

Up until the 1950's, the Fed was subservient to the current administration's policy, especially during WW2.

This is not an argument in favor of abolishing the Fed's independence. Only against recency bias and the myth around the roots of its independence.

[dwb68]

Fun fact: it is not "The Fed" that prevents the President (Through the Treasury secretary) from controlling rates. In fact, during WWII the Treasury de facto dictated rates to keep interest on war bonds low (a time of high inflation).

It is a memorandum of understanding between the Treasury and the Fed, codified later as the Federal Reserve Reform Act of 1977, which set the FOMC objectives.

Theoretically, "The Fed" could be an executive agency, with goals set by congress to maximize employment and minimize inflation (goals set in the FOMC act).
There is no problem here. The Presidents duty to take care that the laws are faithfully executed would require him to follow a duly enacted law.

*AND* the unitary executive theory carve out does not apply here: Congress, not the president is in charge of "coining money" e.g. monetary policy.

[MaddogEngineer]

Agree with this. Thanks for sharing that more recent history. I've only recently read up on the early Fed history. I was less clear on the circumstances of its "independence" from the Treasury.

Along with the constitutional grant of power to Congress, given the structure of the Federal Reserve System, and the composition of the FOMC (populated by rotating regional bank presidents plus NY Fed president, all not necessarily chosen by the president but by regional banks), it would be entirely possible to reconstitute the FOMC by law to make the presidential appointees a smaller minority.

Because of precedent and convention, other FOMC members rarely disagree with the Fed chairman's overall policy setting direction. If the chairman became an overly political position, that could certainly change. Or be changed by Congress to obstruct a willful chairman. Obviously not right away, given the incumbent president. And maybe just like tariff legal authority, maybe not ever. A future Democrat might decide he wants to keep it for himself too.

And just like with tariffs, there almost certainly would be a negative economic/financial reaction.

[dwb68]

Not quite what I was saying: Congress sets monetary policy. Period. "coin Money and regulate the Value thereof"

The founders were deeply concerned about inflation (read about the history of inflation in the states before the constitution, some had poor fiscal discipline and their money was subject to deep depreciation). Benjamin Franklin observed (in a tract called “Of the Paper Money of America.”) the depreciation of the Continental dollar operated as an inflation tax or a tax on money itself. As such, this tax fell more equally across the citizenry than most other taxes. In effect, every man paid his share of the tax according to how long he retained a Continental dollar between the time he received it in payment and when he spent it again, the intervening depreciation of the money (inflation in prices) being the tax paid. (See Benjamin Franklin And the Birth of a Paper Money Economy, Philadelphia Federal Reserve)

Congress has broad latitude to regulate the value of money.

When interest rates were free-floating (before the Fed), Paper money was generally related to gold reserves or the national debt. Deficit spending and discovery of gold deposits were the largest sources of inflation pre-Fed.

So, in a post-Fed world, Congress could simply cease deficit spending.

It could do other things, like fixing the value of the dollar to gold (unwise).

Now: if Trump "seized" control of the fed, Congress still has the power to regulate the money supply. Ergo, even with a board entirely made of Trump people, they would be required to follow the law congress set. Trump cant claim a mandate for policy here, because congress alone sets monetary policy.

And if there is too much inflation because Trump wants to keep rates low...Congress can always stop the deficit spending!

People seem to forget in all the hyperventilating. Congress has the stronger power than Trump: the power of the purse. They can defund him at any time.

[JoeFromtheBronx]

The betting line is that the Roberts Court will continue its fabulist interpretation of Art. I and Art. II & uphold Trump in the end.

[Dan Schiavetta]

Unfettered power to weaponize, against anyone he wants to, any agency of the Executive Branch, including the DOJ, the FBI and the Armed Forces + "absolute immunity" from criminal prosecution =

[Martinned2]

I’m sure this will make merger clearances a lot easier. Just buy some Trumpcoins and you’re good to go!

[Armchair]

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[ReaderY]

In the 1930s, the executive began to do a series of tasks not much done previously, quasi-legislative tasks, making rules and regulations, and quasi-judicial tasks, adjudicating cases. It seems to me that to give the President absolute control over these tasks itself creates separation of powers problems. What can be done?

One path, the path of Humphrey’s Executor, is to allow Executive Branch officials to engage in quasi-legislative or quasi-judicial tasks, but then say that when they do, they are no longer engaging in purely executive functions and hence cannot be completely under the control of the President.

Another path would be to prohibit Executive Branch officials from engaging in these tasks at all, and to empower agencies only to recommend regulations to Congress which Congress would then pass in a (possibly expedited) standard way before they became effective, and similarly to require the various administrative adjudicative tribunals to become specialized Article III courts with streamlined procedures and limited subject-matter jurisdiction, but Article III judges.

But allowing executive branch officials to issue binding regulations and adjudicate cases while submitting them to the complete control of the President strikes me as a recipe for injustice and corruption.

[Martinned2]

If only there was decades of experience in the US and in dozens of other countries, so that you could see whether "injustice and corruption" really does ensue!

[Rossami]

Agreed. My opinion is that the Humphrey's Executor experiment has failed. And that's before considering that it should have been carried out via a constitutional amendment, not merely via statute. That means, yes, congress needs to revoke its century-long history of over-delegation and figure out how to do their damn jobs.

Congress is supposed to be the source of all (federal) legislation. If the people who do this as their full-time jobs can't keep up with the load of new regulations, how the hell do they expect normal people with real jobs to do so? I have no sympathy for congresscritters who whine about the size of their job.

Sorry, you seem to have hit a nerve...

[F.D. Wolf]

As illustrated by the comments, the leftist view of the extent of Presidential executive powers depends entirely on how much they like the current President. If a Democrat is elected President in 2028, we can be 100% certain there will be no caterwauling when he (or she) starts purging the executive branch of Trump appointees. They will, of course, explain how it is (D)ifferent.

Humphrey's Executor is the foundation of the modern administrative state, permanent power in the hands of bureaucrats that no one elected and that no one can fire. When Humphrey's Executor was decided, many Democrats decried it as a decision by an activist conservative Court meant to hamstring President Roosevelt in his bold agenda, and, no doubt, at least in part, it was.

It's time to consign it to the ash heap of history and return to the strict separation of powers of the original Constitution.

[Martinned2]

Exactly, let's return to strict separation of powers. Congress makes the laws and the President makes sure they are "faithfully executed". None of this "inherent powers of the President under the constitution" BS.

[F.D. Wolf]

Your understanding of "separation of powers" is literally the precise opposite of what the phrase means. You are advocating for a legislature that can usurp the executive as it pleases. Do you believe the legislature should also be able to usurp the judiciary?

Imagine a presidential election in which one candidate advocates more environmental regulations, and one candidate advocates fewer regulations. One of them wins. But an EPA Director, to whom Congress has delegated the power and has said cannot be fired, disagrees with the elected President. Should the American people get the policy they voted for, or be stuck with the policy preference of the unelected, unremovable bureaucrat, whatever that preference may be?

The classic expression of separation of powers is contained in Article 30 of the Massachusetts Constitution of 1780:

In the government of this Commonwealth, the legislative department shall never exercise the executive and judicial powers, or either of them: The executive shall never exercise the legislative and judicial powers, or either of them: The judicial shall never exercise the legislative and executive powers, or either of them: to the end it may be a government of laws and not of men.

[Martinned2]

There is nothing to "usurp". The King hath no power but what the common law allows.

[JoeFromtheBronx]

George Sutherland, a conservative justice, wrote the unanimous Humphreys Executor opinion.

The dissents in Myers were written by Brandeis, Holmes, and another conservative, McReynolds. Brandeis and McReynolds provided an extended analysis of how constitutional values were upheld, citing text, history, and so on.

Kagan today leads the way to provide the text, history, and so to challenge the conservative majority.

I firmly agree that we have a "government of laws and not of men," including if Congress, which can pass new laws changing the rules, establishes offices with a term of years, perhaps split by party (no more than two of one party, etc.), only removable for cause.

A "bureaucrat" is not some inherently bad thing. They are public servants and not having a Jacksonian spoils system where they are simply removable when each new president comes in was a major advancement.

The election of one "man" would not change the laws. Anyway, I leave people not to rely on my comments, but those of the multiple justices who provided the receipts.