Supreme Court - 90 Year Decision - Humphrey’s Executor
- The Chairman
- Sep 23
- 3 min read
The Supreme Court’s Shift: Rewriting 90 Years of Agency Independence
In a momentous turn, the Supreme Court has signaled its intention to overturn or sharply narrow the landmark 1935 decision Humphrey’s Executor v. United States, which long protected leaders of independent federal agencies from being fired by the President without cause. What once was a nearly unassailable precedent—ensuring that agencies like the FTC, NLRB, SEC, and others could maintain nonpartisan or less-politicized leadership—now stands at risk.
What
Humphrey’s Executor
Did
Establishment of “for-cause” removal protections: Under Humphrey’s Executor, Congress could create independent agencies whose commissioners or heads could only be removed for specific reasons—“inefficiency, neglect of duty, or malfeasance.” This ensured that agency heads were not subject to whimsical political removal or purely partisan firing.
Separation of powers and agency independence: The ruling drew a distinction between “executive” roles (fully under the President’s oversight) and quasi-legislative or quasi-judicial roles (which could enjoy safeguards). Independent regulatory commissions were meant to be more insulated, to ensure expertise, continuity, and protection from political swings.
What’s New: What the Court Just Did
The Supreme Court in recent rulings has allowed President Trump to proceed with dismissals of Democratic appointees from independent agencies without alleging misconduct or cause, temporarily overriding lower court injunctions.
In Trump v. Slaughter (FTC Commissioners), the Court granted certiorari before judgment, setting December 2025 arguments, to decide whether statutory protections that derive from Humphrey’s Executor are constitutional.
Similar moves have occurred in Trump v. Wilcox (NLRB) and Merit Systems Protection Board cases, where emergency stays have permitted removals despite existing laws that restrict dismissal except for cause. These decisions indicate that the Court’s conservative majority views these protections as increasingly vulnerable under a strong unitary executive theory.
Implications of Overturning
Humphrey’s Executor
If Humphrey’s Executor is overturned—or even narrowly limited, as recent trends suggest—the effects could be broad and deep:
Area
Possible Consequence
Executive Power
Presidents (including future ones) would have far greater freedom to remove agency heads, even without statutory cause, increasing control over regulatory agendas.
Agency Independence
Independent bodies like the FTC, SEC, NLRB could become more politicized; decisions might change more rapidly with each administration.
Legal & Constitutional Norms
Shift toward stronger unitary executive theory, weakening checks provided by long-standing precedents. Might erode norms of protection for administrative expertise.
Stability & Predictability
Agencies might see more turnover, fluctuations in policy, less continuity—businesses, regulated entities, and the public may face a more volatile regulatory landscape.
Congressional Authority
Congress’s ability to design agencies with independent removal provisions could be substantially curtailed.
Counterarguments & Concerns
Checks and balances: Critics say removal protections serve as a check on executive overreach, ensuring agencies can do their expert work without undue political pressure.
Rule of law & fairness: Removing for cause creates accountability, but prevents arbitrary firings purely based on political disagreement.
Expertise & regulatory effectiveness: Independent agencies are designed to rely on technical, scientific, or economic expertise; politicizing removals may degrade performance.
Legal precedent and legitimacy: Overturning a precedent that’s held for nearly a century could raise concerns about the stability of law, especially via the “shadow docket” (emergency orders) rather than full merits briefings.
Where Things Stand Now
The Supreme Court has not yet fully overturned Humphrey’s Executor as of this writing. It has, however, in emergency orders allowed for removals while litigation is underway, and has agreed to hear Trump v. Slaughter, likely in December 2025.
The Court’s majority seems increasingly persuaded that many independent agencies actually perform executive functions, which might undercut the “quasi-legislative/quasi-judicial” distinction that supported Humphrey’s Executor.
What To Watch
The oral arguments in Trump v. Slaughter: How the Court frames the constitutional question—will it hold that “cause removal” provisions violate Article II, for many independent agencies?
Doctrinal limits or carve-outs: Might the Court preserve certain exceptions (e.g. Federal Reserve Board or particular agencies) while applying broader removal power elsewhere?
Congressional action: Will Congress try to write more robust removal protections into law, if possible, or adjust agency structures in anticipation?
Practical fallout: Which agency heads get removed, replaced; shifts in regulatory behavior; how regulated industries respond.
Final Take
This development could mark one of the biggest shifts in the balance of power between the executive branch and regulatory-independent institutions in decades. Overturning Humphrey’s Executor would empower Presidents like Trump to reshape agencies more rapidly—and potentially transform how regulation, oversight, and independence function in the U.S. government. Whether that’s viewed as necessary restoration of executive control or a dangerous erosion of checks depends largely on one’s view of what independent agencies are for—and how much political accountability they should have.
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