President Trump Made History Last Week on the Supreme Court's Shadow Docket

The Supreme Court very strongly hinted that it will overrule, or greatly narrow, Humphrey's Executor v. United States (1935).

President Donald Trump began his second term with a sweeping and much needed "firing spree" in which he went after the notorious independent agencies in the so-called Headless Fourth Branch of the Government. A National Labor Relations Board Commissioner and a Merit Systems Protection Board Commissioner, both of whom were protected by statutory clauses providing that they could only be fired for cause, were instead fired at will. The Commissioners whom Trump fired had secured an order from the U.S. Court of Appeals for the D.C. Circuit reinstating them in their jobs.

In an unsigned 6 to 3 order on May 22, the Supreme Court stayed the D.C. Circuit's reinstatement order, saying the plaintiffs were unlikely to prevail on the merits because they were exercising "executive power" in violation of Seila Law LLC v. Consumer Financial Protection Bureau, 591 U.S. 197 (2020). Justice Kagan's dissent quite accurately accused the six Republican appointed justices who were in the majority of implicitly overruling an infamous 90-year-old precedent, Humphrey's Executor v. United States, 295 U.S. 602 (1935).

Former Attorney General Ed Meese, in an address that he gave on February 27, 1986, swung for the fences and called for the overruling of Humphrey's Executor 39 years ago and an end to the headless Fourth Branch. Meese argued that independent agencies exercising "executive power" are unconstitutional since the Vesting Clause of Article II of the Constitution provides that "The executive Power shall be vested in a President of the United States of America" and not also in a headless Fourth Branch. A generation of Federalist Society scholars, including me and especially, Professor Saikrishna Prakash of the University of Virginia School of Law, have followed Ed Meese's call and have urged the overruling of Humphrey's Executor. See, e.g., Steven G. Calabresi & Christopher S. Yoo, The Unitary Executive: Presidential Power from Washington to Bush (2012); Steven G. Calabresi & Saikrishna B. Prakash, The President's Power to Execute the Laws, 104 Yale Law Journal 541 (1994).

Three people deserve great credit for this enormous victory in a campaign to get Humphrey's Executor overturned that has lasted for 39 years. First, and most obviously, credit goes to President Donald Trump for having the resolve to fire independent agency commissioners, which no recent other President—including even Ronald Reagan—had done. Second, credit goes to Reagan's former Attorney General Ed Meese for boldly pointing out what needed to be done 39 years ago, for which he was thrashed then by the press and even by Supreme Court Justice Sandra Day O'Connor and his own Solicitor General, Charles Fried. Third, a huge amount of credit goes to President Trump's first-term White House Counsel, Don McGahn, who helped President Trump in appointing Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. Like Ed Meese 40 years ago, Don McGahn made it a top priority to appoint Supreme Court justices and lower federal court judges who believed in the theory of "The Unitary Executive" and who would work to get rid of President Franklin D. Roosevelt's oppressive, undemocratic, and unconstitutional Administrative State.

All three of President Trump's first-term appointees joined this ruling together with Justice Clarence Thomas, a George H.W. Bush-appointed justice, and George W. Bush's two appointees, Chief Justice John Roberts and Justice Samuel Alito. Chief Justice Roberts has paved the way for last week's victory in opinion after opinion over the last fifteen years, and he also deserves a lot of credit for this great victory.

Don McGahn is the brilliant lawyer who planted the seeds so that this 1937-like constitutional moment in presidential power law would happen. President Trump in turn deserves a huge amount of credit for making McGahn his first term White House Counsel. As Trump promised legal conservatives, you will win so many times you will almost get tired of winning! Libertarians as well should thank McGahn and President Trump for this as well.

Incidentally, I had the personal experience of getting a huge amount of help behind the scenes from McGahn in writing my amicus brief with Attorneys General Ed Meese and Michael Mukasey and Professor Gary Lawson in Trump v. United States. That amicus brief helped persuade District Judge Aileen Cannon to toss out former special counsel Jack Smith's unconstitutional indictment of Donald Trump in the classified documents case brought against him by the former Biden Administration. Don McGahn is one of the most talented libertarian lawyers of all time.

[UPDATE 5/28/2025 10:28 am: Eugene writes: I inadvertently scheduled this umder my own name, but it was from Steven Calabresi; I've corrected the byline.]

Comments

[Sarcastr0]

Unless Prof. Volokh has really turned over a new leaf, this is a Calabresi joint.

[Stupid Government Tricks]

I had to check the byline a couple of times. It doesn't read like anything I can remember Prof. Volokh writing.

[David Post]

Same here. Very strange . . .

[Bubba Jones]

I chuckled at describing Trump as having the RESOLVE to fire someone.

It would seem relevant to me that Congress didn't create these things in a vacuum. A President signed off on their creation.

If the structure is unconstitutional, then the agency should be voided entirely, and then congress and POTUS can renegotiate what the agency should look like.

Having the President exercise power that wasn't part of the initial agreement seems to have its own constitutional problems.

[Lee Moore]

Which of these agencies headed by officials with statutory protection from instant dismissal by the Orange One might I want to keep in existence ? I’m assuming that voiding would void everything they’ve ever done including all their regulations ?

I’m trying to think how your proposal could fail to be anything short of absolutely wonderful.

[Sarcastr0]

Housecat.

[Riva]

At first I was going to dismiss your comment as simple ignorance regarding the operation of statutory schemes and constitutional interpretation. But actually I'm good with eliminating whole agencies of bureaucratic slugs, so I'll say OK .

[Bwaaah]

Pretty unmistakably not an EV post.

[James Alp]

The link to the Trump v. United States amicus brief leads to the Calabresi/Lawson brief

[David Nieporent]

Yes; I got as far as the second line — "much needed 'firing spree'" — before saying, "This doesn't sound anything like Prof. Volokh." My first thought was Blackman, but I quickly ruled that out because the word "I" didn't appear until the very end of the post. So that left Calabresi. Which is confirmed because he wrote, "Incidentally, I had the personal experience of getting a huge amount of help behind the scenes from McGahn in writing my amicus brief," and that was — if you click on the link he helpfully provided — Calabresi.

[Eugene Volokh]

Yes, sorry -- because of a tech glitch, Steve asked me to post this for him, but I at first forgot to change the author name; fixed now.

[Mr. Bumble]

You need to be more careful EV. The exploding heads would have made a real mess.

[wvattorney13]

I would have agreed that the Court was ready to overrule Humphrey's Executor if not for their throwaway ipse dixit about the Fed.

I just don't see how that exception stands. The only answer anyone can give is to describe what the Fed does. But that doesn't answer the question.

[Sarcastr0]

That janky bit makes me think they're even more eager.

It's transparently illogical (but see Baude's take), but needed for the Justices to protect what's important to them if they do want to pull that trigger.

I'm no legal realist, but I also know humans will human, and sometimes you want two mutually exclusive things bad enough, you're gonna have that cake and eat it, even if it means being hypocritical.

IMO that's what we're seeing here.

[wvattorney13]

Thanks for the link. Interesting I wonder how far a litigant could ride that "historical exception like the Bank of the United States" line.

Could a state argue that blasphemy laws, although inconsistent with modern 1A jurisprudence, nonetheless fall within a well grounded historical exception to the 1A?

Just pick out something you particularly like that occurred in history and use this SCOTUS reasoning to justify it?

[Lee Moore]

As we speak, Johnny is crafting a Sandra O’Connor inspired opinion that the Fed is constitutional now, but probably won’t be in 25 years.

[thenotoriousrbg]

Justices shouldn't be "wanting" results. Reaching contradictory conclusions is a telltale sign of flawed (and motivated) legal reasoning. Laws can contradict, because Congress can err, but it's the Court's *job* to regain consistency and resolve ambiguity by striking down unsupportable laws, reversing unworkable precedent and halting illegal orders.

Caveats are a damning admission that the Court's Opinions don't entail the conclusions they wanted to reach. I've seen more consistent retconning in the Star Wars Expanded Universe.

[Sarcastr0]

Yeah - this is IMO the Court laying the way for a hypocritical opinion that does some unitary executive nonsense.

The Justices aren't perfect, but one can realize that and believe that when they do stuff worthy of criticism they should be criticized.

[Riva]

yeah, uh huh, unitary executive nonsense. Unlike the invisible "quasi" vesting clauses, there actually is a constitutional provision vesting all executive authority in the president.

[Sarcastr0]

1. You had to add the 'all' which not in the text. That's a tell.

2. You go against originalist scholarship:
https://repository.law.umich.edu/articles/2258/ &c.

3. You, with no support given, assume that when Congress exercises it's Legislative power under Article I, it doesn't have complete control of the delegation.

4. As a prudential matter, the power to fire is the power to dictate an outcome; concentrating power in one individual has more danger of authoritarianism than distributing it.
4a. as a specific matter, the Supreme Court reserving the protection of the Fed shows they know the risks

5. As a practical matter, there are reasons why Congress might wish to insulate an agency from the sudden changes a new administration brings. They, of course, retain the authority to countermand themselves.

[wvattorney13]

Agreed. As someone who came of age supporting Bork, Scalia, et al. I was told that originalism did not suffer from this flaw. Look to original public meaning and let the chips fall where they may. With this line of cases (and Bruen/Heller) we see that originalists can cheat when they want to as well.

Just considering the issue should expose it. The Constitution was written in 1787. Even if we assume perfect knowledge of the founders there are surely things written in 1787 that simply are bad policy in 2025. There should be some opinions that in interpreting the Constitution have rather wonky and somewhat disastrous results in modern life. You can't just make it fit what you want, or better stated, you can't make it fit what you need.

I can't imagine we couldn't get an Amendment passed allowing for an independent Fed. And that's what the Court needs to do instead of fudging and cheating. They are no better than Marshall and Brennan.

[Martinned]

Well, the Federal Reserve System as a whole is very, very weird, in the context of US (administrative) law, so I'd imagine that one could distinguish the Fed from all other regulators on that basis, if one were concerned about the value of one's stock portfolio.

[wvattorney13]

I agree that they are going to find a way to do it. I just don't see how they do it and simultaneously overrule Humphrey's Executor and do so in any principled way.

If they hold that the Fed is "different," can Congress just use that as a drafting guide to create the alphabet soup of agencies but structure them like the Fed? For example create a NLRB that is a quasi-public corporation that is responsible for "labor policy" and needs independence from the political branches. Rinse and repeat with every other issue.

Surely the term "monetary policy" has no independent constitutional significance.

[Bob from Ohio]

"any principled way"

What does that have to do with anything?

[DJK]

IIRC, the majority says that the Fed is close enough to the 1st and 2nd Banks of the US, which provides enough history and tradition to be okay with it. Congress would thus need to shoehorn protections for members of other regulatory agencies into such history and tradition. That seems extremely unlikely.

[wvattorney13]

What is the relevant historical tradition? Just banks? That's unreasonably narrow. That's what early Congresses did, but power is more general. Absent a specific power to establish independent banks this source of power to do so should almost certainly apply in other areas of Sec 8 enumerated powers.

That's straight from Hamilton's argument on the First Bank. He didn't say "banks only."

[David Nieporent]

I would have agreed that the Court was ready to overrule Humphrey's Executor if not for their throwaway ipse dixit about the Fed.

I wrote to someone on Twitter that it seems like they're not going to overrule Humphrey's Executor; they're just going to Bivens it, ruling that it only applies to people actually named "William E. Humphrey" who work for the FTC.

[Riva]

Kinda suspected you were part of the former Twitter trash mob. The smell lingers, crazy Dave.

[David Nieporent]

Can anyone translate from bot into English?

[Stephen Lathrop]

What we are seeing is EV throwing caution to the winds, in an all-out bid to attract attention to get high judicial office. He hopes his moment has come. Before seeing this, I might have shared that hope.

This commentary is so partisan that it ought to be disqualifying. I had to double-check to see if it was really EV, and not some guest doing the OP.

Did not see this coming. Well, maybe a little bit. EVs morbid fascination with slippery slopes, and how to construct them, might have been a clue.

[Bwaaah]

Ye of so little faith.

[hobie]

In the end, we all do the Federalist's bidding

[Bwaaah]

"We" don't, EV doesn't, and your cynicism is shallow and pathological.

[Noscitur a sociis]

L, as they say, OL

[William of Brooklyn]

Speaking as a banking and securities industry regulatory expert, I can affirm what those in the industry already know: that the Fed is the *principal* regulator of the banking industry, and has thousands of staff whose job it is to EXECUTE and ENFORCE the laws. And if that's not an Executive branch function, I don't know what is. (And Tim Geithner's "I am not a regulator" line shows just how clueless he was...)

[Stephen Lathrop]

William of Brooklyn — Like a great many people in law and government, you may habitually overlook that under American constitutionalism government is subordinate to a joint popular sovereign, which continuously wields power superior to government's. The Supreme Court itself is part of that subordinated government. Its members have sworn an oath to the Constitution, which is the sovereign's decree which subordinated the Court.

During any consideration of Humphrey's Executor, the Justices will owe the People a searching look at the history of U.S. national banking, with an eye to discover dispassionately whether history suggests a sovereign interest to separate banking policy from partisan executive branch prerogative.

Alas, I do not expect this Court to honor that debt to history, or to American Constitutionalism, any more than some of the Court's more-corrupt members honor the oaths they swore. So however it comes out, if the nation gets a Court-ordered adjustment to Humphrey's Executor, it will probably arrive under a cloud of illegitimate Supreme Court recklessness. This nation is fast accumulating experience to show how damaging that kind of recklessness can be.

It would be easier to avoid such self-inflicted harm if folks who ought to be well versed in American government theory knew better. They ought to stop side-stepping part of it, with spurious reasoning to suppose the 3 subordinate branches instead embody all the government power there is.

[William of Brooklyn]

Well, history would show that the first federal banking regulator was the OCC, beginning in 1863 when national banks were first chartered, and that agency reports up through Treasury. And I completely agree that some functions are "independent" of the federal government; those would be the functions under State governments. But any true historical analysis, as well as plain reading of the Constitution, would conclude that ANY federal government function MUST be part of branch 1, 2, or 3. And that is the inexorable and inevitable result, thankfully, of our current jurisprudence.

Even in Humphrey's Executor, the Court offered this: "This construction of the Act is confirmed by a consideration of the character of the Commission -- an independent, nonpartisan body of experts, charged with duties neither political nor executive"

[Stephen Lathrop]

William of Brooklyn — Your final sentence relies on an inescapable inference. If the duties are not political, then they are outside the scope of Article 1. If the duties are not executive, they are outside the scope of Article 2. The duties are self-evidently not judicial. Within the entire scope of American Constitutionalism, that leaves only sovereign duties to legitimize such an, "independent, nonpartisan body of experts." Which, of course, is exactly what the Board of the Federal Reserve is intended to be.

[William of Brooklyn]

SL - I completely agree that a panel of experts, merely offering advice, and without any executive functions, does not need to be under the Executive, and could be -- like people that submit amicus briefs to the Court, or assist in external research activities of the Congress, or informal advisors to the president, not part of any branch of government. That, of course is NOT the case with the FTC, nor is it the case with the FRB.

"The Federal Trade Commission (FTC) is an independent agency of the United States government whose principal mission is the enforcement of civil (non-criminal) antitrust law and the promotion of consumer protection. It shares jurisdiction over federal civil antitrust law enforcement with the Department of Justice Antitrust Division."

[decline to state]

Did Eugene Volokh leave a computer logged in and someone else forgetting to log out first?

[Stephen Lathrop]

As for, "No fourth branch." Beg your pardon, but that does not mean all U.S. power properly resides exclusively in government. Not only in addition to the three branches, but actually over them, there is in fact a 4th entity, the jointly sovereign People.

Whether a part of a popular sovereign's continuing power can properly be embodied in a non-governmental entity such as the Federal Reserve is a question that rightly needs extensive consideration if the Supreme Court wants to claim legitimacy for any decision it can make in Humphrey's Executor v. United States. A case which, by the way, is in no way infamous within any meaning which must apply alike to Dredd Scott, or Trump v. United States.

This is EV going right over the top, and running out of the trench stark naked.

[Bwaaah]

This is you speaking as the last standing visionary, throwing EV under the bus because you can't tell the difference between an enduring (and unusually consistent) personality and a data entry error.

[William of Brooklyn]

The Federal Reserve is NOT a "non-governmental entity"!!! It describes ITSELF as a government agency. Sigh.

https://www.federalreserve.gov/aboutthefed/centennial/about.htm

[William of Brooklyn]

The Sovereign People enacted the Constitution, through ratification by their State legislatures and conventions, wherein they placed ALL *federal* legislative, judicial, and executive powers in three branches of government. 27 Amendments later, and that model has not been changed. The Federal Reserve Act was passed under this very same Constitution, with Congress passing an Act and the president signing into law. It was not erected by some mysterious, separate, hitherto unknown process magically evincing the will of the Sovereign People.

[Don Nico]

William,
It is Stephen's fetish. Just let him enjoy it.

[Stephen Lathrop]

Nico, please consider my two comments below a rejoinder to you, as well as to William. Feel free to reply with anything substantive which occurs to you.

[Stephen Lathrop]

William of Brooklyn—What do you make of this? It is from founder James Wilson:

There necessarily exists, in every government, a power from which there is no appeal, and which, for that reason, may be termed supreme, absolute, and uncontrollable . . . Perhaps some politician, who has not considered with sufficient accuracy our political systems, would answer that, in our governments, the supreme power was vested in the constitutions . . . This opinion approaches a step nearer to the truth, but does not reach it. The truth is, that in our governments, the supreme, absolute, and uncontrollable power remains in the people. As our constitutions are superior to our legislatures, so the people are superior to our constitutions. Indeed the superiority, in this last instance, is much greater; for the people possess over our constitution, control in act, as well as right. The consequence is, the people may change constitutions whenever and however they please. This is a right of which no positive institution can ever deprive them.

If you have any confusion about what Wilson meant, note that his usage, "no positive institution," was meant to count the Constitution itself within that compass. It is a positive institution.

Wilson is telling you that at all times, the People have power to act at pleasure, by any means they can manage. The Constitution is indeed meant to constrain all 3 branches of government.

But neither the Government, nor the Constitution, is meant to constrain the People themselves. If by some process they or their representatives create some entity which by its statutory definition is not part of any of the 3 branches, then that is what the People did. It is not something any branch of government has power to set aside.

The People themselves can change it, or abolish it, by Constitutional amendment, or by any other means the People control. A government which disapproves such an entity is empowered to follow Constitutional procedure, which empowers government to initiate an amendment, which the People would then ratify or not, at their pleasure.

[Stephen Lathrop]

William of Brooklyn — It was not erected by some mysterious, separate, hitherto unknown process magically evincing the will of the Sovereign People.

Would you describe a federal grand jury as a, "hitherto unknown process magically evincing the will of the Sovereign People." In which branch of this nation's government do you locate a federal grand jury? A federal grand jury is in fact a tribune of the sovereign People themselves, and neither part of any government branch, nor properly governed by any of them.

Note also, like every other VC commenter whom I have challenged with that Wilson quote, you have disappeared without offering any substantive rejoinder. I do not blame any of you.

To encounter a historically irrefutable statement of this nation's actual founding ideology is a jarring experience. It seems inexplicable to a modern inquiry premised on a different, and more-recently-evolved, set of expectations.

Behind that quote from the Constitutional Convention's most esteemed—and arguably most influential—legal expert, lies a mass of similar founding-era evidence. Commenters on this legally-minded blog—especially including so-called originalists—studiously avoid engaging with that evidence.

What lawyers and judges across the nation overlook is that as a matter of academic history, the nation—during its post-founding-era decades prior to the Civil War—began to evolve a jurisprudence notably different than the model the founders had in mind at the outset.
Alexis de Tocqueville noticed that in process, and commented on it. That happened mostly without relevant change in the Constitution itself—no amendments were used to justify most of the changes. They were accomplished by the labors of lawyers and judges.

The upshot was decapitation of the founders' original vision of a government headed by, empowered by, and constrained by, a separate sovereign. In its place was step-by-step substituted a government tacitly presumed to be sovereign in itself, and thus unconstrained by anything.

Only political happenstance was left, to goad contests among politicians for government power, which has since seemed to them—and to a community which funds and supports the politicians—to be limitless. Trumpism is but a confirming manifestation, to show vividly where that process has been heading for nearly two centuries.

Thus, the nation now struggles with a Constitution rationally designed for one kind of jurisprudence and politics, while irrationally trying to fit into that abiding framework another kind of jurisprudence and politics altogether.

It does not help that most lawyers, judges, and politicians remain blissfully unaware that any such evolution occurred. But to a historically-minded bystander, it does seem strange that constantly recurring vexations and turbulence centered on fundamental questions of governance go unaddressed. Why have those not goaded more curiosity to suspect a systematic cause?

[William of Brooklyn]

SL - First, you must forgive me for having other activities in my life than reading and replying here. Therefore, it is not reasonable to impute that some argument you have made is irrefutable if I have not replied to it within whatever time constraints you have conceived as reasonable.

I accept that there are two legitimate avenues, within the construct of the Constitution, to amend it in any fashion whatsoever, with some very small exceptions (which are noted in its text.) And then, there is also the process outside the Constitution, simply to overthrow it, which is what I think you are referencing. And when such plans succeed, new structures are arrived at. And when they fail, many are hanged. But to Jefferson's point about watering with the blood of tyrants -- yes, I concede that ultimate authority. It's a Hobbesian perspective, but across history occasionally a necessary choice.

You also ask an interesting question about juries. Juries neither write laws, nor adjudicate their meaning, nor enforce them. They, as Grand Juries, determine whether assertions by the government are likely, and in the second instance of a petit jury, what the facts are. And they serve the Judiciary branch, which controls their empanelment, location/sequester, behavior, what information they receive, and instructions on how to deliberate. And judges have the ability to set aside their judgments, punishments, suggested awards, etc. And of course, they are not "hitherto unknown," starting with the Oresteia, and more recently in the Anglo law consciously and expressly incorporated into the Constitution in multiple places.

[Kleppe]

Who wrote this, and why did Eugene post it?

To be clear I agree with 100% of what is in the post, but this is transparently not Volokh writing this.

[Bwaaah]

I am quite confident that Steve Calabresi is the author, and the difference is a data entry error.

[F.D. Wolf]

One hardly has to be a great detective to figure it out. The author mentions "my amicus brief with Attorneys General Ed Meese and Michael Mukasey and Professor Gary Lawson" and even provides a link to said brief. The only other name on it is Steven Calabresi.

[JoeFromtheBronx]

As Trump promised legal conservatives, you will win so many times you will almost get tired of winning! Libertarians as well

Mixed in with a decent amount of losing.

"Libertarians" come in various flavors though someone distrustful of the government as that term seems to suggest should not be too happy about something that gives so much more power to one person, who is using it in far from libertarian ways.

As another contributor says, you can be a libertarian and be upset even when libertarian ends occur in illegal and unconstitutional ways. Or just generally bad and reckless as this firing spree some are so gleeful about or the thinly written SCOTUS order.

Thanks all around for helping to do this! The current pissing on our republic is not just the job of one person. And, quite rightly, let us have the correct names on top of celebratory posts.

[John F. Carr]

We apologise for the fault in the subtitles. Those responsible have been sacked.

[wvattorney13]

Those responsible for sacking the people who have just been sacked have now....retained their jobs subject to for cause dismissal.

[David Nieporent]

As Trump promised legal conservatives, you will win so many times you will almost get tired of winning! Libertarians as well

It is not clear why it is a libertarian victory to let the president unilaterally act. Even if the legal theory is correct, it can work for or against libertarian goals; an authoritarian president can fire agency officials who have not done anything wrong but who in his judgment are not acting aggressively enough against citizens. If the president orders an agency to harass his enemies, and the agency says no, this would empower the president to say, "Do it or else."

[jb]

Yeah, I'm not even sure that the ideology here is even "conservative" except that the current President is Republican and many of the specific agencies under attack were created on left-leaning principles.

But if you believed in institutions, though that change to society should be limited and deliberate, and were generally skeptical of the government, wouldn't you prefer a system in which government agencies were likely to have a mix of bipartisan voices installed over time, or for their to be some durability to leadership? The whole unitary executive thing does not feel obviously conservative to me, but maybe that's just because I don't understand the ideology well.

[Jett's Pop]

I don't think we know whether the vote was 6 to 3 or 5 to 4.
Dissenters aren't obligated to announce their dissent on the emergency docket.

[loki13]

There was an old joke my father used to tell me. He was an engineer, and he used to say that a team of physicists and engineers were tasked with building a bridge. The physicists said it was impossible, while the engineers built it. The physicists looked at it with disdain, and only remarked archly, "Yes, it might work in practice, but it will never work in theory!"

I am reminded of how Judge Posner evolved over time, realizing that being a judge- being a conservative- was not just about applying theory, but about understanding how things work in reality. Realizing that things were built up for a reason, and that before you destroy something in service of your perfect theory, it is best to understand why it was put there in practice.

Surely, it is not possible that the Framers ever feared executive power? It's not like they had experience with executive overreach! I am quite positive that this supposed libertarian desire for a unitary executive - a daddy to solve all our problems - is quite in keeping with the idea of a limited government that would not overreach and will ensure our liberties. After all, the only way to protect us is not to divide power, but to concentrate all power in the hands of one person who we will trust to never abuse it. It is a story that, historically, has always ended well.

[DJK]

The NLRB is likely the first executive agency where Congress put "for cause" termination protections in place. It was devised in 1935, nearly 150 years after the ratification of the Constitution. Somehow we survived nearly 150 years of executive power without such structures. Methinks we'll be just fine in the future. Moreover, the structure of the NLRB puts significant executive power into the hands of unelected, unaccountable bureaucrats. It is anathema to a constitutional republic.

[Krayt]

The purpose was to put it beyond the reach of the opposing faction, when the presidency eventually changes hands, so they can continue exercising executive power when not in power.

There is nothing noble about it as political philosophy. It is pure power grab.

[Krayt]

I think I did hear a reason proffered a few days back around here on this very subject, a weak facade argument, but one nevertheless.

It gave business a feeling of stability.

This from the party that quadrenially threatens tax increases, and continued gung ho regulatory burden increases. Business stability 'R Us.

[Bwaaah]

Your first theory makes more sense to me. I experienced that "reliability" of the NLRB over many years in different companies, and wish the board had been more just than just reliable in its positions. Being arbitrarily treated like it was 1937 with Henry Ford at the helm was unhelpful, even if predictable (and thoroughly detached from reality and decades of change in the culture of American business, of people, of ethics, of civil rights, ...).

[JoeFromtheBronx]

Civil service reforms in the 19th Century protected "bureaucrats."

Also, for cause firing is not "unaccountable." It is established and funded by Congress, which can provide oversight and modify it as needed. Again, not very "unaccountable" on a basic level.

The members are appointed by the President by and with the advice and consent of the Senate. That is, people we elect.

https://www.nlrb.gov/guidance/key-reference-materials/national-labor-relations-act

The Interstate Commerce Act (1887) held: "Any Commissioner may be removed by the President for inefficiency, neglect of duty, or malfeasance in office."

https://www.archives.gov/milestone-documents/interstate-commerce-act

[Noscitur a sociis]

I am reminded of how Judge Posner evolved over time, realizing that being a judge- being a conservative- was not just about applying theory, but about understanding how things work in reality. Realizing that things were built up for a reason, and that before you destroy something in service of your perfect theory, it is best to understand why it was put there in practice.

I don’t necessarily disagree with the sentiment, but I’m not sure it accurately captures Posner’s views. As he explained towards the end of his career,

My approach in judging a case is therefore not to worry initially about doctrine, precedent, and the other conventional materials of legal analysis, but instead to try to figure out the sensible solution to the problem or problems presented by the case. Once having found what I think is the sensible solution I ask whether it’s blocked by an authoritative precedent of the Supreme Court or by some other ukase that judges must obey. If it’s not blocked (usually it’s not—usually it can be got around by hook or by crook), I say fine—let’s go with the commonsense solution.

And in general, his focus on common sense (as it appeared to him), pragmatism, and economic reasoning didn’t leave a lot of room for the “antiquated crap” (as he put it) of precedent and history.

[Lee Moore]

The difference seems to be slender - a difference of emphasis. What you quoted is fairly blunt - essentially Judge Posner admitting that he has become tired of being a judge, and finds it more congenial to be a satrap. To rule arbitrarily, albeit subject to the King.

loki's rather more unctuous version - "understanding how things work in reality" - is more deniable, but amounts to the same thing.

It's the judge saying - actually I'm not a judge, I'm an engineer. It's my job to build this bridge, and I intend to make it a good one even if that means some pretty serious tweaks to the plans I've been given.

That's a good plan for actual engineers, but not for judges. Judging is not engineering. The judge is more like a welder. If the engineer says I want this kind of weld there, there and there, and the welder does as he's told, competently, and the bridge falls down, that's on the engineer, not the welder. And thusly for judges. If the law is an ass, it's an ass. And it's the judge's job to reveal it as such.

[thesafesurfer]

How is all power concentrated in the hands of one person by the overturn of Humphries? The restraint remains what it always is, elections, that happen every two years. A President is rendered impotent the moment the political winds of a midterm election shift way from his party. Heck, you don't even need a midterm election loss for that. FDR's court packing was stopped by his own veto proof majority in Congress.

What is the real "daddy to solve all problems" nonsense is the blind belief that an institution, once created, solves the problem it was created to solve without creating any others that endanger the democrat system. In reality it rarely solves the original problem, and creates a multitude of new ones. See the rate of inflation before and after 1913 for proof.

[Purple Martin]

One thing is going to give us all a much better idea of how committed the Supreme Court is to the full overrule-Humphery's-without-mentioning-Humphrey's reasoning of the Wilkins decision: The appeal of the Summary Judgement awarded to the plaintiffs in United States Institute of Peace v. DOGE May 19th:

https://www.courtlistener.com/docket/69754533/united-states-institute-of-peace-v-jackson/

The primary fig leaf SCOTUS used to cover their junk...reasoning... carving out the Federal Reserve, was a determination that the Federal Reserve, uniquely, does not wield Article 2 Executive power.

Others have noted the Occam's Razor explanation for that: A deep, career-long commitment by the Chief Justice and others to Unitary Executive theory, combined with the pragmatic non-legal-reasoning goal of not blowing up the world economy and their own retirement accounts.

DC District Court Judge Beryl Howell leaned heavily into the Wilkins reasoning, noting USIP's connection to Executive power was far more tenuous than the Federal Reserve's and thus, the justification for a similar USIP carveout was accordingly far greater.

So, appeal to the DC Circuit and motion to stay judgement was submitted May 21, stay denied May 23, nothing since. Appeals Court is not likely to overturn the judgement. When and if it's appealed to SCOTUS, will be interesting if they leave the Fed Reserve-doesn't-wield-Executive-power Humphries crack open by either denying cert or bolstering the Fed exception with an affirmation of a second instance for USIP.

[thesafesurfer]

False premise. A reversal of Humphries does not disband the Fed. It would simply give the President the power to disband the Fed just like USIP if the democratic political reality called for it. The only restraint would be political, which is exactly the only proper restraint for both the Fed and USIP in a democracy. The political reality certainly supported the demise of USIP. No institution in the executive should have immunity from political action in a democracy.

[bernard11]

It would simply give the President the power to disband the Fed just like USIP if the democratic political reality called for it.

Or if his reelection chances were improved.

All this business about history, etc. is bunk. The Fed stands out in importance because it wields such huge influence on the economy, and it is, bluntly, too dangerous to let the President - Trump or anyone else - have too much control. This is also true because much of its function is based on technical considerations.

Fine-grained Constitutional arguments, here and elsewhere, often strike me as a way to achieve a political end while dancing around substance and pretending that they are not politically motivated.

Look, lots of people want to reduce the power of the independent agencies. But the fact is that's not because of a sudden onset of Constitutional righteousness. It's because they don't like what the agencies do.

[bernard11]

President Franklin D. Roosevelt's oppressive, undemocratic, and unconstitutional Administrative State.

This is silly. An agency solely controlled by the President has just as much potential - more, actually - to be oppressive, and is certainly less democratic.

Besides, it's obvious from the court's discussion of the Fed that there is wide agreement that a degree of agency independence is valuable, but their argument from history is a joke. They know giving the President control is a recipe for disaster, so they invent a bizarre rule to keep Fed independence while trying to pretend it's all in accord with bizarre Constitutional creationism.

[Sarcastr0]

The right wing rhetoric that we've all been oppressed since the New Deal is laughable nuttery.

It's housecat politics - comfortable, willfully ignorant of the institutions that keep you comfortable, and down to wreck those same institutions based on bad vibes.

And, as most know, housecats never learn.

[Don Nico]

"And, as most know, housecats never learn."
But as Yann LeCun has told us, house cats are far smarter than Artificial Intelligence.

[DJK]

Lol. Unelected, unaccountable bureaucracies are democratic. Gotcha. Where's the evidence that this puts such bureaucracies solely controlled by the President? Superior officers still have to be confirmed by the Senate. Way to smash that strawman.

[bernard11]

Unelected, unaccountable bureaucracies are democratic. Gotcha.

The boards of the agencies are appointed by the President and subject to Senate confirmation, so just as "unelected" as they would be otherwise. The agencies were created by acts of Congress signed by the President, so hardly undemocratic.

And where there actions require the approval of the board I'd say they are obviously less authoritarian than if the President can install his own flunkies at will - either via a compliant Senate or "acting" appointments, or simply block actions by firing board members he doesn't like.

The fact is the current structure is more sensible than the alternative, legal pettifoggery aside.

Besides, who drew the "historical" line? The Fed was founded in 1913. The so-called link with the First and Second Banks of the US is tenuous at best. So 1913 grants historical validity and the 1930's don't?

They might as well admit the whole case is purely political and has zip to do with "subtle" Constitutional arguments, no matter how much they amuse law professors.

[ReaderY]

Agree with Humphrey’s Executor or not, as a general principle the Court should only entertain overruling its precedents after full briefing and argumejt, never on the shadow docket. The shadow docket should be governed strictly by existing law.

[ReaderY]

The constitution gives the president the power to demand written reports on any subject he wishes. Why grant this power? If the Vesting Clause means what Professor Calebrisi says it means, the grant would be completely superfluous because the President would already have this power, and much more besides.

It seems to me that only if the power the President derives from the Vesting Clause is considerably less than total could this grant of power be anything other than an inexplicable superfluity.

[William of Brooklyn]

Many agencies, at their apogee, contained effectively unappealable legislative, executive, and judiciary power. With the death of Chevron, the judicial power returned to the Judiciary, but the combination of legislative and executive functions remains, with the executive insulated from the Executive. If this case results in at least as much of a return to constitutional principles with respect to the Executive, then that would be a wonderful result. But a full restoration would require a process where Congress votes on a slate of regulatory proposals before they become effective, subject to the president's signature the same as anything else that has the force of law. Such a structure would retain the benefits of a locus of expertise in varying fields, but also afford legislative legitimacy to rule-making that has the force of law. So yes, let's finish the work of restoring the unitary Executive of the original design, and let the next legal campaign focus on the illegitimacy of delegating law-making to Executive agencies.

[Krayt]

One goes into government to get in the way, to get paid to get back out of the way.

What an odd evolutionary product, this unassailable, untouchable, unreviewable finger in everyobdy's pie, where literally congressmen have stated it's ok, because they can just pick up the phone and exercise oversight.

Nothing to see here, folks, move along.

[JoeFromtheBronx]

A "conservative" arguably would be wary of overturning something around for almost a 100 years (for cause firing rules were around longer), including by the slipshod approach used by SCOTUS.

[JasonT20]

President Donald Trump began his second term with a sweeping and much needed "firing spree" in which he went after the notorious independent agencies in the so-called Headless Fourth Branch of the Government. A National Labor Relations Board Commissioner and a Merit Systems Protection Board Commissioner, both of whom were protected by statutory clauses providing that they could only be fired for cause, were instead fired at will.

The third branch of government is also "headless," where the appointees can't be fired. They can't even be fired "for cause".
They have to be impeached and convicted by 2/3 of the Senate for "high crimes and misdemeanors".

The third branch is set up that way deliberately and explicitly within the text of the Constitution, whereas these independent agencies definitely are not. My point is not about what is in the Constitution. I am addressing how it is inherent in his and his fellow travelers' view as to how these agencies should work. He gives away what he thinks about that with every adjective he uses. It was a "much needed" firing spree that Trump engaged in, the agencies are "notorious" because they are independent, etc.

If an agency would function better if its leadership wasn't subject to the momentary whims of politics, then maybe Congress should be able to provide some insulation from that in the law creating the agency. Then, it would have some ability to act without the immediate consequences of a decision in the public interest that was contrary to the President's short-term, personal political interests or goals. That could also be important for agencies that need to enforce financial regulations if the executive branch is going to include many political appointees with financial stakes in the businesses being investigated.

Agencies that are independent in that way don't have to be entirely insulated or unaccountable. It could be a requirement that they be governed by commissioners with fixed terms, be appointed by the President and require Senate confirmation, etc. The President and Senate would just need to do their jobs competently in that process.

But that is a "should" debate, not a legal debate over what is or isn't allowed by the Constitution.

[thesafesurfer]

How absurd to imply that the functioning of "agencies" is more important than the expression of the will of the sovereign people of the United States which is expressed directly through politics.

Agency effectiveness be damned in a contest with the political expressed will of the people.

[JasonT20]

If it is the will of the people to have an agency that functions better because it doesn't get completely upended and pushed in the opposite direction when a new President is elected, then that is what Congress should pass and the President should sign into law. If it isn't the will of the people to create that kind of agency, then Congress should not pass a law to create one. And, it can pass new laws to undo ones created under previous Congresses, if that is the will of the people.

[bernard11]

How absurd to imply that just because the President is elected - sort of - by the people that everything he wants to do reflects that will.

Why can't it be the will of the people that agencies do what they are supposed to do in a reasonably consistent fashion, and not act on every Presidential whim.

We've seen the consequences of that in our experience with Trump's tariffs, and if you think that's the people's will you're nuts.

[David Nieporent]

How absurd to imply that the functioning of "agencies" is more important than the expression of the will of the sovereign people of the United States which is expressed directly through politics.

Who wrote the laws limiting the firing of these people to for cause situations, llamas?

[JasonT20]

Three people deserve great credit for this enormous victory in a campaign to get Humphrey's Executor overturned that has lasted for 39 years. First, and most obviously, credit goes to President Donald Trump for having the resolve to fire independent agency commissioners, which no recent other President—including even Ronald Reagan—had done. Second, credit goes to Reagan's former Attorney General Ed Meese for boldly pointing out what needed to be done 39 years ago, for which he was thrashed then by the press and even by Supreme Court Justice Sandra Day O'Connor and his own Solicitor General, Charles Fried. Third, a huge amount of credit goes to President Trump's first-term White House Counsel, Don McGahn, who helped President Trump in appointing Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. Like Ed Meese 40 years ago, Don McGahn made it a top priority to appoint Supreme Court justices and lower federal court judges who believed in the theory of "The Unitary Executive" and who would work to get rid of President Franklin D. Roosevelt's oppressive, undemocratic, and unconstitutional Administrative State.

That the federal judiciary as a whole, and the Supreme Court in particular, have been stacked with people that share a single, narrow, ideological view of the Constitution seems like an odd thing to celebrate. But I guess it does make sense to cheer this if your goal was to make sure that your ideology prevails through brute force.

Mostly, though, I am continually dumbfounded by how thoroughly these advocates of the "unitary executive" manage to suppress the cognitive dissonance that this theory must be creating in them. He just said the the Unitary Executive was needed to undo the "oppressive, undemocratic, and unconstitutional Administrative State," created by...a single powerful President.

[thesafesurfer]

The phrase "stacked with people that share a single, narrow, ideological view" perfectly describes 90% of publicly funded education establishment from K-12 all the way through higher education in the United States of America.

What hypocrisy to attack the SCOTUS with that charge.

[Hyronymous]

Mr. Calabrasi should take note that Humfrey's Executor was decided by a Republican court *against* FDR and his attempt to create a Unitary Executive State, given that the Republican party was the one which shot down the Spoils System and championed the growth of a professional government, as opposed to one staffed by partisan hacks, donors, and activists. Instead, you needed to hit high hurdles to appoint people to positions of immense responsibility, and then be willing to live in the same country as them. We, in our wisdom, spared the country from having the government completely upend itself every four to eight years and, instead, achieve a state of rational and directed adjustment. The Republican party's willingness to put the country over itself is, likely, a large reason for America's rise to greatness during the 20th Century.

The Constitution was built to create a stable government that ensured the rights of the people and ruled with wisdom and care. Moreover, it was actively written in opposition to the idea that we would suffer the tyranny of the majority, with each President that comes in given some magical mandate to run rough-shod over the losing team.

Fighting the welfare state is a Republican agenda and so is protecting states rights. Ensuring that we don't have excessive, politicized, nor unreviewable organizations within the government is certainly a thing that could fall under either or both of those agendas. Restoring the Spoils System is not, though, and any judgement should take all of that into account.

To the extent that you might read a Unitary Executive description into the Constitution, all interpretation still needs to abide by the very first sentence of the document. You can also read it to describe a government that is largely lead by Congress, with the Executive as the guy who swears on the Bible to Faithfully Execute the Law. If there's two possible interpretations and one of them rejects the first sentence, then that interpretation is wrong. And, in general, there's more historical evidence for the Congressional Priority reading. The nation started to opt against that interpretation as partisan chicanery caused Congress to become gridlocked out of the ability to actually do its job in any functional sense, not because it wasn't the more evidence-based interpretation.

We currently have a President who - outside of McKinley - only seems to know Democratic presidents, champions the unions and the proletariat, upholds himself as the leader of the Workers Party, pardoned several dozen Liberal politicians, staffed his cabinet with Democrats, has had two dozen or more of his personal acquaintances investigated and tried in court by Donald Trump's own Republican-verified appointees for various crimes of corruption and fraud, and who wants to stretch the rights of the Executive in all of the same ways that FDR did, to push back against Checks and Balances.

To the extent that you might give the Executive a temporary grant of heightened powers, to enact reforms that bring things back into line, it merits taking a cold hard look and asking whether that's actually what you will get.

If you want the guy who will "starve the beast", but he's looking a government budget that's 1/3rd medical aid, 1/3rd social security, and 1/3rd military and says, "Don't touch medical and social security but do cut a trillion from the budget and let me expand border control to East German levels with so many government hires that we will still increase the debt by another 3-4 trillion". You should really take off the rose-tinted glasses and give the analysis a much harder and colder look.

We're still waiting for the little boy to come out that says the Emperor is naked and, suddenly, everyone will snap out of it. How many more kids do we need to send in to find that one magic tyke that breaks the spell?

[thesafesurfer]

What a monumentally important phrase, "the oppressive, undemocratic, and unconstitutional Administrative State."

Hear! Hear!

[David Post]

Maybe it's just me, but I have to say that a more powerful "unitary" executive is most definitely not something that the country needs at the moment.
And libertarians are tired of all this winning?! I don't think so . Why a self-professed libertarian would exult in giving one man more power than he has already grabbed is beyond my powers of comprehension. I'm with JoeFromtheBronx: ""Libertarians" come in various flavors though someone distrustful of the government as that term seems to suggest should not be too happy about something that gives so much more power to one person, who is using it in far from libertarian ways.

[F.D. Wolf]

The President is empowered by the Constitution to remove any executive officer appointed by him by and with the advice and consent of the Senate, and this power is not subject in its exercise to the assent of the Senate, nor can it be made so by an act of Congress.

Myers v. United States, 272 U.S. 52, 53 (1926)

One of the foundational documents of the administrative state (and of Progressivism in general) is Woodrow Wilson's "The Study of Administration", first published in Political Science Quarterly in June 1887. It is available freely at various locations on the internet, and I highly recommend reading it, but, it might be summarized as, "Government has become much too complex to be left in the hands of the great unwashed masses and the rubes they may elect to represent them, so, it must include a cadre of 'experts' who are 'above politics' (i.e., unaccountable to the democratic process.)" It is perhaps ironic then that it was President Wilson's firing of Postmaster Frank Myers, in violation of a statute that required the consent of the Senate to do so, that led to Myers v. United States, in which the Supreme Court stated the (axiomatic, in my opinion) principle that anyone appointed by the President can be fired by the President. To hold otherwise would violate the Constitution's mandate that, "The executive Power shall be vested in a President of the United States of America."

Myers was a 6-3 decision, with the majority opinion written by Chief Justice Taft, who, as President had moved the GOP to the right, and, as Chief Justice, moved the Court to the right for a generation. The three dissenters were both of President Wilson's appointees, Justices McReynolds and Brandeis, and Justice Holmes. Holmes and Brandeis, to this day, are considered the two great pillars of Progressive jurisprudence.

I hope the Court would jettison Humphrey's Executor completely and return to the rule of Myers, but, knowing Chief Justice Roberts, who would certainly not entrust the opinion to anyone else, he will craft some "compromise" gobbledygook that further chips away at Humphrey's, but doesn't overrule it completely.