Next Up: Humphrey’s Executor
Manhattan Contrarian | 31 Jan. 2025 | Francis Menton

Humphrey’s Executor is the key Supreme Court case addressing the following question: Can the President fire anybody and everybody in the federal bureaucracy whom he wants to fire, effective immediately, no questions asked? This is a rather important question. During his first term, Trump faced constant resistance to his policies from the people who supposedly worked for him. Indeed, they rallied under a hashtag #Resistance, like it was a badge of honor. Meanwhile, the Constitution (Article II, Section 1) states in seemingly unambiguous terms that “The Executive Power” is “vested” in the “President.” So can’t the President just fire people who won’t do his bidding? After all, he was elected, and they weren’t, and the voters should be entitled to get the policies they voted for. Shouldn’t they?

But of course, over the years, there have grown up all kinds of statutory restrictions on the ability of the President to fire people. Some of these restrictions apply to lower-level employees (the “civil service”), and others to relatively high-level people like Commissioners of “independent” agencies, Inspectors General, and so forth. Given that the Constitution vests all of the “Executive Power” in the President, aren’t such restrictions on his power unconstitutional?

This is where Humphrey’s Executor comes into the mix. The facts of the case arose in 1933 — early in Franklin Roosevelt’s first term as President — and the case was decided by the Supreme Court in 1935. Humphrey was a Commissioner of the FTC, appointed by prior President Herbert Hoover to a seven-year term, that would then continue throughout Roosevelt’s first administration. Roosevelt wanted to get rid of Humphrey, but the FTC statute at the time provided (as it still provides today) that Commissioners could only be removed for “inefficiency, neglect off duty, or malfeasance in office.” So Roosevelt just ignored the statutory restriction and fired the guy. Humphrey sued. (He died while the case was pending, and the case for his pay was then continued by his executor, which is why the case goes by the name of Humphrey’s Executor.)

The Supreme Court held, in one of its most bizarre opinions ever, that Humphrey was improperly fired and that his estate was entitled to its back pay. I wrote a post about this bizarre case back in December 2016. The Court’s logic turns on the idea that the power of an FTC Commissioner is not “executive” in nature, even though the Commissioners have the authority to execute and enforce the laws. The opinion makes no sense whatsoever. However, it has never been overruled, and stands today as Supreme Court precedent. I’ll be surprised if even the crazy liberals on today’s Supreme Court are ready to uphold this case.