This Term, the Supreme Court seems poised to overturn one of the cornerstones of the administrative state: the Court’s 1935 decision in Humphrey’s Executor v. United States. Many liberals are likely to denounce the Court’s dilution of congressional authority to create bodies independent of the president, while many conservatives are likely to cheer further vindication of unitary executive theory. The mostly forgotten backstory, however, is that in 1935, the political polarities were reversed: Liberals saw Humphrey’s Executor as yet another roadblock to the New Deal, while conservative voices viewed it as a justified and necessary response to unchecked presidential power. Times have changed. Today’s liberals generally place greater stock in (well-founded) fears of a runaway imperial presidency and have greater respect for Congress’s constitutional role in structuring agencies. In contrast, many a conservative, including the conservative supermajority on the Supreme Court, seem determined to enhance presidential powers to the maximum, despite the imbalance among the branches that results. A unanimous Court in 1935 upheld congressional authority to maintain the equilibrium among the branches of government. It is striking that that consensus among the justices has broken down, to be replaced by today’s fractured Court, with a majority anxious to overturn the century-old balance set in Humphrey’s Executor.
Humphrey’s Executor is at the top of the Roberts Court’s agenda
Humphrey’s Executor rejected President Franklin D. Roosevelt’s firing of a member of the Federal Trade Commission, and thereby helped launch the administrative state. The decision empowered Congress to create multimember commissions, composed of bipartisan experts protected against direct presidential control. The mechanism for making these agencies independent of the President is the bar against the President’s removal of members of multimember agencies because of policy disagreements, personality clashes, or unexplained loss of confidence.
Today, the federal government is replete with independent agencies spawned by Humphrey’s Executor. These include the Federal Energy Regulatory Commission, the National Labor Relations Board, the Consumer Products Safety Commission, the Nuclear Regulatory Commission, the Federal Reserve, and many more – agencies with the power to regulate what we consume, how we work, what protects our health, and how the economy runs. Critics of these independent agencies claim that they violate Article II of the Constitution by diminishing the executive power vested in the president to remove his appointees at will. Proponents of these agencies view them as essential means of carrying out Congress’s regulatory programs free from overt partisan control or presidential whim.[1]
In Trump v. Slaughter, the Supreme Court is considering whether to overrule the landmark decision in Humphrey’s Executor. Such an action would come close to completing the Court’s several-year project of dismantling independent agencies. The decision is expected this month, as the end of the Court’s term draws near. It is therefore valuable to revisit Humphrey’s Executor’s meaning to New Deal contemporaries and its significance for views of presidential power today. While liberals now celebrate Humphrey’s Executor for insulating agencies from presidential control and promoting administrative expertise, almost forgotten in the mist of time is the starkly different reaction to Humphrey’s Executor when the Supreme Court decided it.
The Black Monday Decisions
The day of Humphrey’s Executor’s announcement became known to New Dealers as “Black Monday.” The Court handed down three unanimous decisions rebuffing Roosevelt’s agenda. In Louisville Joint Stock Land Bank v. Radford, the Court invalidated the Frazier-Lemke Act, which allowed farmers to scale down mortgages to their current and depressed appraised value while permitting them to stay in possession of their farms; the Court held that forcing banks to absorb the losses violated the Takings Clause of the Fifth Amendment. In A.L.A. Schechter Poultry Corp. v. United States, the Court invalidated a keystone of the early New Deal, the National Industrial Recovery Act (Recovery Act), which had allowed the President to approve “codes of fair competition” for any trade or industry. And in Humphrey’s Executor, the Court rejected President Roosevelt’s removal of a Republican member of the FTC, well known for his antiregulatory proclivities and partisan tilt.
The Black Monday decisions incensed the administration – particularly Humphrey’s Executor. Robert Jackson – Roosevelt’s Solicitor General and then Attorney General – stated that “[o]f all the decisions of the Supreme Court of that era, I think the one that stayed his hand in removing Humphrey was the one that Roosevelt resented most.”[2] Nevertheless, the deepest legal blow to the New Deal came in Schechter Poultry – so much so that Roosevelt attacked it at length in a press conference days after the decision, declaring that the Court had “relegated” the country to “the horse-and-buggy definition of interstate commerce.” The Court’s Black Monday decisions are “often credited with triggering Roosevelt’s confrontation with the Supreme Court” in his Court-packing plan.
In his book defending the Court-packing plan, The Struggle for Judicial Supremacy, Jackson wrote that these cases hit President Roosevelt and his New Deal agenda especially hard because the Court “struck three times” in a single day (p. 106). Humphrey’s Executor came in for particularly scathing criticism as an unanticipated retreat from Myers v. United States, decided only nine years earlier, in which the Court, as Jackson saw it, had green lighted the President’s plenary power to remove “an appointee who was not performing his tasks wisely or intelligently.”[3]
The New Deal perception of Humphrey’s Executor
Jackson thought that Humphrey’s Executor was written “to give the impression that the President had flouted the Constitution, rather than that the Court had simply changed its mind” (p. 109). “Small wonder,” he suggested, “that the decision became a political instrument,” confirming fears that “executive dictatorship [was] just round the corner” and that “the President could be restrained only by the Court” (p. 109). In that vein, the conservative Chicago Tribune published hyperbolic praise of Humphrey’s Executor as “put[ting] a decided crimp in the development of a New Deal dictatorship on the order of fascism.”[4]
Humphrey’s Executor was tailor made to touch a nerve among the New Dealers. William Humphrey was an “intensely partisan” Republican, appointed first by Coolidge and then Hoover (pp. 702, 711). Humphrey was a “boisterous man and a clamorous public official” who for a time “dominated” the FTC “by the force of his personality” (p. 701). He anchored a “pro-business” majority that transformed the FTC “from an overseer to a partner of the corporations it existed to regulate.”[5] Humphrey “reveled in personal and political attacks” and often “led with his fists,” “denounc[ing] [opponents] as ‘pink’ politicians who used the FTC to ‘persecute honest business’” (p. 711). It was no surprise that Roosevelt pressured him to resign, noting that “I do not feel that your mind and my mind go along together on either of the policies or the administering of the Federal Trade Commission, and, frankly, I think it is best for the people of this country that I should have a full confidence.”
Assessing the New Deal Reactions to Humphrey’s Executor
Jackson’s reading of the Black Monday decisions may have made political sense in its time. But the outrage was likely misplaced: All three Black Monday decisions were unanimous. The opinions were joined not only by the four Justices that Jackson believed “were asserting a power and duty in the judiciary to stop any governmental body – state or federal – from interfering with an economy of laisse faire” (p. 82)– the bloc collectively known as the “Four Horseman,” consisting of Willis Van Devanter, George Sutherland, James McReynolds, and Pierce Butler, who consistently shut down progressive policies.[6] The three opinions were also joined by the three liberal Justices, Louis Brandeis, Harlan Fiske Stone, and Benjamin Cardozo, who “would concede to government fairly broad powers to deal with the emergency,”[7] as well as the two swing Justices who held the balance of power, Chief Justice Charles Evans Hughes and Justice Owen Roberts.[8]
The Black Monday Court’s misgivings about unchecked presidential power resonated with larger political concerns at the time. Roosevelt’s dominance of the political landscape and his determination to enact sweeping programs to address the Great Depression led some to wonder whether he was assuming the powers of a dictator.[9] The early and experimental New Deal legislation elicited skepticism from no lesser figures than Louis Brandeis and “the legendary dean of the Senate,’ William Borah.”[10] The legal community also had particular anxiety over Roosevelt’s actions. To corporate lawyers, the early New Deal measures “raised the specter of centralized despotism.”[11] A 1933 American Bar Association committee report “sounded a cautionary note” about lodging “quasi-legislative and quasi-judicial” powers in the Executive, rather than in “independent commissions,” such as the FTC and ICC.[12] The conservative press piled on as well.[13]
The Court therefore seems to have been in sync with the public’s unease with vesting too much power in the President’s hands. Even for a President facing an unprecedented economic challenge on the scale of the Great Depression, the Court had more confidence in the exercise of regulatory power through independent agencies than in the President striking out on his own.
Taking Stock Today
The liberal outrage at Humphrey’s Executor in the early New Deal era has all but been forgotten. And although Humphrey’s Executor was originally seen as a setback to President Roosevelt’s liberal agenda, it is now, nearly a century later, venerated by liberal proponents as an engine of the administrative state.
The irony is that the majority of the Supreme Court today seems to have lost sight of the New Deal Court’s reservations about unchecked presidential power. In overturning Congress’s for-cause removal protection for the single director of the Consumer Finance Protection Bureau the Roberts Court went all in on the constitutional imperative of presidential control of his appointees. One island of concern seems to remain: the Court’s apparent reluctance to endorse virtually plenary presidential power to remove Federal Reserve Board governors. The Court puzzlingly carved out the Federal Reserve in one of its emergency-docket decisions signaling the demise of Humphrey’s Executor; the Court suggested that the Federal Reserve is different and its independence could survive the burial of Humphreys. The government took the hint and, in defending the president’s efforts to fire Federal Reserve governor Lisa Cook, the Solicitor General did not even advance a constitutional argument that the president had the power to dismiss her at will. Assuming the Court continues to treat the Federal Reserve as a unique entity, its recognition of the need for the Fed’s independence seemingly stands alone; the Court otherwise seems oblivious to the dangers of aggrandizing presidential control that were obvious to a unanimous Supreme Court 101 years ago.
With the benefit of hindsight, it seems clear that the Supreme Court’s respect for Congress’s authority to structure the executive branch and concerns about presidential overreach in Humphrey’s Executor reflected wisdom. Independent agencies have provided some consistency across administrations and have allowed the accumulation of agency expertise, while also promoting presidential agendas through new appointments and informal influence. The balance that the Court struck in 1935 enhanced the quality of governance and the power of democratically elected representatives to carry out the legislative agenda. Excessive concentration of power in the president, the Humphrey’s Executor Court knew, poses dangers to democracy and good government. Today’s Court would do well to take a lesson from that insight.
Thanks to Georgetown University Law Center students Jacqueline Sanchez and Own O’Brien-Peters and Faculty Assistant Anya Wilson for research and editorial assistance.
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[1] See notes [22-26] infra.
[2] Robert Jackson, That Man: An Insider’s Portrait of Franklin D. Roosevelt 19 (2003).
[3] The Struggle for Judicial Supremacy 108. Myers invalidated a statute requiring the Senate’s advice and consent to the President’s removal of a postmaster. 272 U.S. at 176. Although the question presented involved only legislative participation in the removal process, the Court ranged far from that topic to rest its decision on the view that “[t]he moment that [the President] loses confidence in the intelligence, ability, judgment or loyalty” of “the heads of departments or bureaus,” he must have “an unrestricted power to remove” them. Id. at 134, 161.
[4] Arthur Sears Henning, 3 Unanimous Decisions Jolt New Deal Pillars (Chicago Daily Tribune May 28, 1935). The Chicago Tribune has been described as a “reactionary” paper, but it was not alone in worrying about New Deal policies. See Laura Kalman, FDR’s Gambit—The Court Packing Fight and the Rise of Legal Liberalism 16-17 (2022).
[5] That Man 189 (biographical sketch added by John Q. Barrett).
[6] During the 1932 campaign, Roosevelt had branded these four Justices as the “Horsemen of Destruction, Delay, Deceit, [and] Despair.” Kalman, supra, at 7.
[7] Kalman, supra, at 83-85.
[8] Id.
[9] Jeff Shesol, Supreme Power, Franklin Roosevelt vs. The Supreme Court 19 (2010).
[10] Kalman, supra, at 15. Senator Borah was a Republican from Idaho who served for 33 years in the United States Senate. “Borah established himself as a prominent progressive with a fiercely independent spirit.” United States Senate, William Borah: A Featured Biography.
[11] Kalman, supra, at 15.
[12] Id. (capitalization omitted).
[13] Id. at 16.
