Humphrey's Executor On The Ropes

Can Congress create federal agencies with power to enforce the laws and prosecute crimes, but which agencies are outside the control of the President?  In a 1935 decision called Humphrey’s Executor, the Supreme Court held that it could.  

I first wrote about this subject in a post back in December 2016 titled “Can The Separation Of Powers Of The Federal Government Be Righted?”    December 2016 was immediatey after Donald Trump had first been elected President, but before he had taken office.  The backdrop of the post was the issue of the extent to which the newly-elected President Trump would be able to gain control over a hostile federal bureaucracy.  By 2016, some 80+ years after Humphrey’s Executor, there had come to be some 50 or more commissions and boards in the federal government where the President was restricted by statute from firing the commissioners or members, and thus had limited if any practical ability to direct what the agency would do.  My conclusion in 2016 was that, largely because of Humphrey’s Executor, the situation of the constitutional separation of powers in the federal government was a hopeless mess, and that it would be a long time before it could be righted.  Sure enough, Trump did not take on this issue during his first term.  

But here in the first year of Trump’s second term, he has gone directly after this issue.  In March 2025, just two months after taking office for his second term, Trump sent an email to Democratic FTC Commissioner Rebecca Slaughter, firing her.  Slaughter promptly sued to get her job back, and in July the D.C. Circuit (properly following the Supreme Court precedent of Humphrey’s Executor) ordered her reinstated.  As you have probably seen, yesterday the case of Trump v. Slaughter was argued in the Supreme Court.

The first remarkable thing about status of the separation of powers under the federal constitution, and about Humphrey’s Executor, is the extent to which the 1935 Supreme Court took something very simple and straightforward under the Constitution, namely the separation of powers, and completely screwed it up.  However, based on reports of yesterday’s argument, it appears that the so-called conservatives on the Court, six of the nine justices, are now prepared to right that ship.