SCOTUS OCTOBER TERM CONTINUING COVERAGE—IN NOVEMBER A PRESIDENT’S ARTICLE II AUTHORITY TO REMOVE SUPERIOR OFFICERS WILL BE VINDICATED—ANOTHER DISMANTLING OF THE FOURTH BRANCH OF GOVERNMENT
INTRODUCTION
Humphrey’s Executor v. United States, 295 U.S. 602 (1935), decided by the Supreme Court during FDR’s New Deal Era, upheld Congress’ creation and protection of the Federal Trade Commission by limiting the President’s ability to remove a commissioner only “for inefficiency, neglect of duty, or malfeasance in office.” See 15 U.S.C. § 41. Recognizing the Article II authority of the Executive to control and manage the Executive Branch, the Court nonetheless held that at that time in our history, the Federal Trade Commission (FTC) exercised only “quasi-legislative and quasi-judicial” functions, not executive ones, and that, therefore, the President could not remove an FTC Commissioner, and further holding that Congress’s check on the Article II authority of the President was constitutional. For decades lip service to this decision led to mission creep, and Congress and their unconstitutional delegation to a fourth branch—the “administrative state”—gradually built up big horsepower engines of executive, legislative, and judicial power in these agencies. These agencies are wielding power over the lives of American individuals and businesses that has threatened liberty and eroded the separation of powers that shaped the Framers’ vision of true liberty. Unelected administrators unaccountable to the people changed our lives indisputably. Enter President Trump in 2016 and his appointment to the Supreme Court of originalists and separation of powers champions who, in large part, have gradually, in a series of cases, diminished the powers of the unelected fourth branch by neutering Chevron deference and chipping away at the reach of Humphrey’s Executor in the modern era. One such ruling was treated in an earlier edition of this blog. The Constitution vests “the executive Power” solely in the President, who must “take Care that the Laws be faithfully executed.” U.S. CONST. art. II, §§ 1, 3. From that vesting flows the President’s authority to remove those who exercise executive power on his behalf. In Seila Law LLC v. Consumer Fin. Prot. Bureau, 591 U.S. 197, 218 (2020), discussed earlier in this blog, the Court whittled away at Humphreys Executor by only recognizing two exceptions to this robust Article II authority—for multimember expert agencies that do not wield substantial executive power and for inferior officers with limited duties and no policymaking or administrative authority. President Trump notified FTC Commissioner Rebecca Slaughter in March 2025 that he was removing her and did not cite any cause. Rejecting Congress’ arguably unconstitutional limitation upon his authority, he simply exercised that authority. Slaughter sued for declaratory and injunctive relief, and, relying on Humphrey’s Executor, the district court ordered her reinstated. The D.C. Circuit denied the government’s request for a stay, holding that Humphrey’s Executor directly controls and remains binding precedent. The Supreme Court granted a stay and certiorari in due course. The Supreme Court ultimately granted certiorari to decide whether the FTC’s removal protections violate Article II and whether Humphrey’s Executor should be overturned. The matter is set for argument in November. It is time that the unelected fourth branch and Congress’s creation of “independent agencies” that deprive a nationally elected President of his well-settled Article II authority to mold policy through the management of executive personnel be curtailed for the ages.
THE NATION’S FOREMOST ARTICLE II SCHOLARS HAVE WEIGHED INTO THE ARGUMENTS WITH AMICUS, OR “FRIEND OF THE COURT” BRIEFS, AND THEY MAY WELL GET THE OVERRULING OF HUMPHREY’S EXECUTOR ACROSS THE FINISH LINE
Professors John Yoo and Steven Calabresi have long championed the Article II “Unitary Executive” vesting of significant authority in the elected President. The President is elected nationally, and in matters involving the management and control of the Executive Branch, his vested Constitutional authority should not be diminished by Congress. The pertinent portions of the amicus filed by these gentlemen are reproduced herein and frame the issues for your better understanding of this critical issue in reeling in the fourth branch, exercising outsized steroid-fueled power in the decades since Humphrey’s Executor:
“This case raises constitutional questions of surpassing importance. Can the President, in whom the Constitution vests all executive power, remove agency heads who exercise the executive power on his behalf? Or may Congress insulate those agency heads from presidential control by barring the President from removing them at will—and may courts grant relief to prevent their removal, so that they continue to wield executive power against the President’s will? The answer to these questions is clear. ‘Under our Constitution, the “executive Power”—all of it—is “vested in a President,” who must “take Care that the Laws be faithfully executed.”’ Seila Law LLC v. CFPB, 591 U.S. 197, 203 (2020) (quoting U.S. Const. Art. II, § 1, Cl. 1). Removal is the President’s indispensable tool of control. ‘Without such power, the President could not be held fully accountable for discharging his own responsibilities.’ Ibid. Thus, the President’s ‘exclusive power of removal in executive agencies’ ranks among his ‘conclusive and preclusive’ powers. Trump v. United States, 603 U.S. 593, 609 (2024). And when the President removes executive officers, courts cannot reinstate them and authorize them to wield executive power against the President’s will. Here, these questions arise because President Trump removed respondent Rebecca Slaughter as a Commissioner of the Federal Trade Commission (FTC), only for lower courts to reinstate her after determining that Congress permissibly restricted the President to removing Commissioners for ‘inefficiency, neglect of duty, or malfeasance in office.’ 15 U.S.C. 41. The same cycle of presidential removal and judicial reinstatement had already unfolded for members of the National Labor Relations Board, Merit Systems Protection Board, and Consumer Product Safety Commission, prompting this Court to grant interim relief so that removed agency heads would remain removed.”
THE ANALYSIS CONTINUES FROM PROFESSORS YOO AND CALABRESI
“The Constitution creates only three general types of power: legislative, executive, and judicial. Federal Trade Commissioner Slaughter does not exercise legislative power, which may be done only with bicameralism and presentment. See Immigr. & Naturalization Serv. v. Chadha, 462 U.S. 919, 946 (1983). She also does not exercise judicial power, since she does not hold office during good behavior, and her powers are not among those listed in the first paragraph of Article III, Section 2. It follows a fortiori that the power Slaughter does exercise, as a Federal Trade Commissioner, must be executive power, which renders her subject to removal at will by the President. Plainly, the President on his own cannot execute all the laws himself. He needs help in doing that. As a result, it has always been understood that the President can implicitly delegate ‘[t]he executive Power’ to principal and superior officers who exercise executive power. And the Federal Trade Commission, when it brings law enforcement actions, exercises such power. See 3 Annals of Cong. 712 (1792) (statement of Rep. Findley) (‘It is of the nature of Executive power to be transferable to subordinate officers.’). But the Constitution’s text on its face presupposes that the President must in some way be able to control what those principal and superior officers are doing in his name. The traditional answer that has been given for 236 years, in one form or another, to how the President may control the principal and superior officers in the executive branch is the one James Madison put forward in 1789:
‘The question now resolves itself into this, Is the power of displacing an executive power? I conceive that if any power whatsoever is in its nature executive, it is the power of appointing, overseeing, and controlling those who execute the laws.’ 1 Annals of Cong. 481-82 (1789). Humphrey’s Executor should be overruled. There is now a vast headless fourth branch of the federal government that comprises undemocratic administrative agencies, many of which, like the Federal Trade Commission, are rendered by statute effectively unaccountable. These independent agencies have rulemaking personnel, prosecutorial officers who clearly exercise executive power, and administrative law judges all working in one building together sharing lunch in the cafeteria. They are a flagrant violation of the separation of powers, which is the central feature of our Constitution of 1787. The independent regulatory agencies are run by superior officers who are irremovable as a practical matter and who work for the congressional oversight and appropriations committees from which they get their budgets, to the extent they work for anyone who is democratically accountable at all. The President and Vice President are the only officers of the national government who are elected by all the people of the United States. House and Senate committees are led by Chairs who represent only a fraction of the total population, which skews national policy execution of the laws to favor small and unrepresentative House districts and States. It is critical that the President, our only nationally elected officer—not congressional committee chairs from small and unrepresentative House districts and States—exercise control over the headless fourth branch.”
CONCLUSION
The die is cast that this Court will return true Article II authority to the politically accountable unitary Executive as envisioned by the Framers. Congress has created so-called “independent” agencies that have evolved into vehicles wielding significant executive and regulatory authority that has led to enforcement and the levying of fines and penalties that negate the separation of powers design and strain even the Seventh Amendment due process and jury guarantees. In Seila Law they put Humphrey’s in its place, and they may either overrule it or isolate it as a creature of its time, as the years have caused the FTC to evolve into wielding significant executive authority, and therefore in 2025 the President should have the ability to mold policy through his choice of personnel. Other removals in his term have been challenged, and the issue will be resolved once and for all.
Mike Imprevento
October 20th, 2025
