The Death of Humphrey’s Executor

Over ninety years ago, Franklin D. Roosevelt assumed the office of the Presidency and served during one of the most consequential eras in U.S. history. He was a radical president in radical times, leading the nation through the Great Depression, then World War II ^[1]. During his tenure, the powers of the federal government were greatly expanded, resulting in a number of controversial programs, such as the New Deal and Japanese-American internment camps (which even First Lady Eleanor Roosevelt opposed at the time) ^[1][2]. It came as no surprise that President Roosevelt held certain disagreements with many of the holdovers from his predecessor’s administration, filled with the people who, in his view, had brought the nation to crisis. One such was then-FTC Commissioner William Humphrey, whom Roosevelt twice asked to resign before outright firing him from his position ^[3].

Roosevelt cited no cause for his dismissal; only that he disagreed with him politically.

“I do not feel that your mind and my mind go along together on either the policies or the administering of the Federal Trade Commission,” Roosevelt wrote, citing no “inefficiency, neglect of duty, or malfeasance in office” in doing so, in violation of Section 1 of the Federal Trade Commission Act (FTCA) ^[3].

In defiance, Humphrey continued to show up each day, despite receiving no pay. He died five months later, and his executor sued for his missing wages ^[3].

In that landmark case, Humphrey's Executor v. United States, the Supreme Court ruled in two important ways:

1. Section 1 of the FTCA limited the President’s power to remove FTC Commissioners to cases of “inefficiency, neglect of duty, or malfeasance.”
2. The Constitution did not prevent Congress from creating quasi-legislative or quasi-judicial agencies outside Presidential control ^[3].

In other words, the President did not have the power to fire FTC Commissioners at will. The ruling was considered a win for critics of Roosevelt’s expansion of executive power. But the Humphrey’s Court served a broader purpose than to limit one instance of Presidential overreach; it also affirmed the Constitutionality of Congress’s ability to create independent agencies. So-called “alphabet agencies,” such as the FTC, FEC, the Federal Reserve, and over a dozen others, flourished under Humphrey’s regime, which provided them nearly a century of shelter from the momentary exigencies of politics ^[4].

To the Slaughter

Last month, the Court returned to the holding in Humphrey’s in Trump v. Slaughter, a case involving President Trump’s 2025 firing of FTC Commissioner Rebecca Slaughter. Much like Humphrey’s case, the President did not assert any cause, as Section 1 of the FTCA required. Trump asserted only his “authority under Article II of the Constitution.” Slaughter sued.

After oral arguments last fall, many legal observers doubted that the Court would overrule Humphrey’s Executor. Upholding Slaughter’s dismissal under essentially the same circumstances as Humphrey’s would disturb the assumptions that the administrative state of the last century was built upon. Even legal critics conceded that Humphrey’s rule “remain[ed] a bedrock precedent” ^[5] and predicted that the Court would opt for a “‘mend it, don’t end it’ approach” ^[6].

Somewhat unsurprisingly, the Slaughter Court ruled against Slaughter. But the Court did not rule on narrow grounds as expected.

“If anything more is left of Humphrey’s, we overrule it,” Chief Justice Roberts wrote ^[7].

The Court’s reasoning in the Slaughter opinion was purportedly one blessed by history and tradition ^[7]. The Framers, Roberts said, envisioned executive power in “one President” who had to “take Care that the Laws be faithfully executed” (U.S. Const. art. II, § 3). Congress, apparently, has no say in exactly how the President decides to execute the laws ^[7]. If Trump (in the course of his Constitutionally-sanctioned duties) wanted to fire officials duly appointed and confirmed by the Senate, for seemingly no cause at all, he had carte blanche to do so. Instead of checking Trump’s Presidential power, as the Court did for Roosevelt, today’s Court expanded it.

In practical effect, the holding in Slaughter rendered most independent agencies independent in name only.

So, how did the Court grapple with its prior reasoning? Well, Roberts explained, “Humphrey’s has been difficult to make sense of from the start” ^[7]. The precedent set by the Humphrey’s Court shielded independent agencies that performed “quasi-legislative” or “quasi-judicial” functions ^[3]. But Roberts contended that “[w]hen an agency [like the FTC] ‘executes’ a congressional mandate against private parties, it exercises executive power—no ifs, ands, or quasis about it” ^[7].

Under the Court’s theory, executive power is vested in one person—the President. Since Congress cannot place limits on the President’s Constitutional authority, it cannot place conditions on the dismissal of Commissioners like Slaughter.

Humphrey’s Executor was dead.

Long Live Humphrey’s Executor?

After the watershed ruling, court was not done for the day. Related litigation involving Trump’s firing of Federal Reserve Governor Lisa Cook had also made its way to the Supreme Court. In an act of judicial whiplash, the Court released another opinion, ruling pre-emptively that Governors of the Federal Reserve could not be fired by Trump ^[8].

Why subject the FTC to total Presidential control, but not the Federal Reserve? After all, the FTC and the Federal Reserve have much in common: Both investigate businesses, engage in substantive rulemaking, and enforce relevant laws ^[7][9]. Prima facie, both perform “executive functions” and, by the same logic, should be under the President’s plenary control.

The Court attempted the arduous task of squaring Trump v. Slaughter with Trump v. Cook. Roberts argued that history gave the Federal Reserve a special place in the Executive because monetary policy was “traditionally handled outside the Executive Branch” ^[8]. (One could say the same for commerce, the FTC’s domain, but I digress.)

However, basing the ruling in Cook on the “Federal Reserve’s unique historical status and role” does not jibe well with Slaughter’s unequivocal language ^[8]. (Remember, “no ifs, ands, or quasis about it” ^[7].)

In her dissent, Justice Barrett put it plainly: “How can history support both a categorical rule and a carveout?”^[8]

The simple answer is that it can’t.

Perhaps Roberts found that the Federal Reserve was too important to leave in the hands of a dangerous and vindictive President. The FTC was one thing; to lose the independence of the Federal Reserve would spell disaster, since it would make their decisions appear more partisan and less predictable ^[10]. But to accept this line of consequentialist reasoning runs contrary to a Court that prides itself on history, textualism, and tradition.