Humphrey’s Executor & Executive Appointments [No. 86]
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Humphrey’s Executor & Executive Appointments [No. 86]


When you’re considering the powers of the
President to fire officers of the United States, the seminal case in this area today is probably
the case of Humphrey’s Executor. Uh. William Humphrey was the, uh, appointed
to be the head of the Federal Trade Commission. He was first appointed to that role by Calvin
Coolidge, was then reappointed to it by Hoover. And, when FDR got elected, he had some policy,
uh, disagreements with, uh, Mr. Humphreys. Uh. He asked Humphreys to resign, twice. So, at that point, FDR fired him. Well, there was a little problem with that,
and that was that the Federal Trade Commission Act said that the commissioners of the FTC
could only be fired for inefficiency, neglect, or malfeasance in office. And FDR didn’t cite any inefficiencies, neglect,
or malfeasance in office that had been committed by Humphreys. He fired him purely because of a policy disagreement. And FDR essentially asserted that he thought
he had a constitutional right to do so. Uh, notwithstanding this restriction that Congress
had purported to impose on removing Mr. Humphreys. And in support of that view, uh, FDR cited
to a decision from the 1920s, just about a decade old in the Myers case. Where the president had removed a Postmaster
General from office. And the Supreme Court determined that the
Postmaster was a purely executive function, and there could be no restrictions placed
on the President’s ability to remove him. With respect to a purely executive official,
Myers establishes that the President, to the extent that the President has the power
to appoint them, the President also has the power to remove them. Fast forward to Humphrey’s Executor, the Supreme
Court rejected FDR’s argument that Myers applied under the circumstances. Supreme Court said, “Yes. This is an officer of the United States.” But, unlike Myers, the postmaster, Mr. Humphrey,
as a commissioner on the FTC, is not purely executive in nature. He is quasi-legislative, and quasi-judicial
in the nature of the powers that the FTC is exercising. And for that reason, the Supreme Court held
that is was permissible for Congress to restrict the conditions under which Mr. Humphrey’s could
be fired. So, whether Humphrey’s Executor was correctly
decided is hotly debated amongst constitutional law scholars today. There are significant debates as to whether
the so-called independent administrative agencies really can be viewed as exercising anything
other than executive powers. Clearly, they’re not legislatures. They’re not Congress. Clearly, they’re not courts. They’re not the Judiciary. So what else can they be but the executive? There is, of course, the other side of the
constitutional strain of thought that thinks it’s perfectly fine for Congress to able to
impose all kinds of removal restrictions on officers who are exercising significant government
authority. And, those who adhere to that position tend
to emphasize the importance of the, what they view as the policy goals of independence from
political accountability. They think it’s a bad idea, uh, for those people
to be responsive to political pressures in the people. And generally, they tend to be suspect of,
uh, the kinds of pressures that can be exerted on those officials, uh, to, in wielding their
authority. And so, uh, that camp is very supportive of
Humphrey’s Executor, is supportive of even extending Humphrey’s Executor to a wide range of executive
branch positions. So, if you are a unitary executive advocate,
you believe that Humphrey’s Executor should be overturned, or at least substantially limited
to more narrow kinds of powers that the FTC of the mid-1930s was exercising. If, on the other hand, you are a robust advocate
of independent agencies and the use of, uh, statutory restrictions on the removal of officials
to insulate them from the political process, then you’re a big fan of Humphrey’s Executor
and want to extend it. So, Humphrey’s Executor really stands as the
lynchpin foundation for, uh, how separation of powers applies in the context of the ability
to fire high-ranking government officials.

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