74 Am. U. L. Rev. 1653 (2025).
Abstract
Recent Supreme Court decisions have taken a broad view of the President’s power to remove executive branch officials. According to the Court, the President’s Article II obligation to “take Care that the Laws be faithfully executed” generally requires that the President have authority to remove officials at will. The Court has thus far declined to overrule Humphrey’s Executor v. United States, a 1935 decision upholding “for-cause” restrictions on removal for multi-member “quasi-judicial” bodies such as the Federal Trade Commission (FTC). Nonetheless, recent Court decisions have eroded the rationale in the earlier case, which has received additional attention because of efforts by the second Trump administration to remove members of agencies such as the National Labor Relations Board (NLRB) and the Merit Systems Protection Board (MSPB). This Article urges replacement of Humphrey’s Executor with an agency- specific test for the scope of the President’s removal power.
Currently, scholarly debates are trapped between the entrenched positions of unitary executive theorists, who usually favor sweeping presidential removal authority, and independence theorists, who take a strong view of Congress’s power to impose removal restrictions. The Supreme Court’s decision in Humphrey’s Executor supplied a convenient label for federal administrative agencies by pronouncing them “quasi-judicial.” However, classifying administrative agencies as quasi-judicial ignores the prosecutorial discretion that many agencies exercise, which is executive in character. Moreover, claims to expertise by agencies prove too much, since government units without removal restrictions, including the Department of Justice, the Food and Drug Administration, and the Environmental Protection Agency, possess substantial expertise.
This Article fills the gap with an agency-specific approach. Under this approach, courts should consider whether structural shortfalls drove establishment of a particular agency and whether the agency’s work shows continuity with custom or state law. Structural shortfalls occur when the branches’ enumerated powers fail to address what Justice Robert Jackson in Youngstown called the “imperatives of events.” In this situation, revised authorities develop through a broad reading of the Constitution’s open-ended provisions, such as the Necessary and Proper Clause. The Federal Reserve’s control of the U.S. money supply is a case in point.
The second criterion in the agency-specific approach—continuity with custom or state law—signals stability and learning from experience. Removal restrictions that echo history, custom, or state law are likely to be tailored to a perennial problem. For example, the independence of an agency such as the Securities and Exchange Commission (SEC), which inter alia can impose discipline such as lifetime bans on securities dealers, relates back to state licensing of professions and occupations.
Applying the agency-specific approach, agencies such as the Federal Reserve, the SEC, the NLRB, and the MSPB meet the standard. Most agencies—including celebrated agencies such as the Federal Communications Commission and FTC—fail. This conclusion may seem disruptive. However, it need not be, if Congress and the executive branch take a proactive approach. In any case, disruption can be productive if it prompts fresh thought on the faltering Humphrey’s Executor paradigm.
* Professor of Law, Roger Williams University School of Law. J.D., Columbia Law School; B.A., Colgate. I thank Assistant Dean for Library and Information Services Raquel Ortiz and reference librarian Jessica Silvia for assistance in tracking down sources and David Froomkin and Jon Schneider for comments on a previous draft.