In July, 1933, several months into President Franklin D. Roosevelt’s first term, he wanted a bureaucrat named William E. Humphrey gone. Humphrey, a former Republican House member, had been appointed to the Federal Trade Commission by Roosevelt’s two Republican predecessors, Calvin Coolidge and Herbert Hoover. The agency was then not even two decades into its mission to protect the public from monopoly power, and Humphrey was a thorn in its side, calling the F.T.C. “an instrument of oppression and disturbance and injury instead of a help to business.” Roosevelt requested Humphrey’s resignation. Humphrey refused. The next month, Roosevelt asked again. “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, and, frankly, I think it is best for the people of this country that I should have a full confidence,” Roosevelt wrote to him on August 31, 1933.
Five weeks later, F.D.R. fired Humphrey. Four months after that, Humphrey died. The executor of Humphrey’s estate sued on his behalf, claiming that the termination was unlawful and that $3,043.06 in unpaid wages plus interest was owed to the estate. The Supreme Court agreed, in the case known as Humphrey’s Executor v. United States, finding that Congress had the authority to protect commissioners against Presidential dismissal. The decision paved the way for the modern administrative state, with its alphabet soup of independent agencies—the Securities and Exchange Commission, the Consumer Product Safety Commission, the National Labor Relations Board, the National Transportation Safety Board—whose members are insulated from being fired by the President, except for cause, which is to say, as most of the relevant statutes put it, for “inefficiency, neglect of duty, or malfeasance in office.”
Ninety years on, Humphrey’s Executor is on its last legs. Long before Donald Trump arrived on the political scene, the high court’s 1935 ruling has been one of the top targets of the conservative legal movement, which assails the creation of a “headless fourth branch” of government. These agencies are hardly rogue actors. A President has the power, in most cases, to appoint a new chairman and a majority of commissioners from his own party. Still, Humphrey’s continued existence interferes with the conservative movement’s project to reinforce the authority of the “unitary executive”—the view that the entirety of executive power is vested in the President and that intrusions on Presidential authority offend the Constitution. In recent years, the conservative-dominated Court has carved big chunks out of Humphrey’s Executor. In 2020, the Court, voting 5–4, said that the Consumer Financial Protection Bureau, with its single head protected against Presidential termination and its exercise of broad regulatory and enforcement authority, violated the constitutional separation of powers. The Court distinguished its ruling in that case from the Humphrey’s Executor decision on the ground that the F.T.C. has multiple members. But the precedent was clearly in the crosshairs of conservative Justices—and Trump has, as he promised during the campaign, acted to assure its demise, firing Democratic commissioners at agencies including Humphrey’s own F.T.C. (My husband once served on the F.T.C.)