Congress may create quasi-legislative or quasi-judicial agencies that are independent of executive control. The legislative intent of the Federal Trade Commission Act's for-cause removal provision was to limit the President's removal power. Shurtleff distinguished, Myers limited.[1]
Humphrey's Executor received criticism from some justices during the latter part of the 20th century, claiming it limits the powers of the executive branch, and under the John Roberts court in the early 21st century, has been limited through various decisions. The decision has been challenged by the second Donald Trump presidency, with Trump having removed several agency commissioners without cause. The Roberts court has stayed lower court rulings that found these firings illegal under Humphrey's Executor, and has agreed to hear a case directly challenging the decision in December 2025.
Background
President Calvin Coolidge appointed Humphrey to a seven-year term as an FTC commissioner in 1925, and President Herbert Hoover reappointed him to a second term in 1931.[2] Humphrey, who was a conservative Republican,[3] had been an outspoken and controversial FTC commissioner.[2] He stridently opposed most of the Commission's antitrust enforcement actions, and he frequently engaged in personal and political attacks.[2][4][5] In public speeches, Humphrey argued that the FTC's "old policy of litigation" against American companies had made the Commission "an instrument of oppression and disturbance and injury instead of a help to business."[6]
Roosevelt, who became President in 1933, disliked Humphrey and viewed him as inadequately supportive of his New Deal agenda.[7] In his first few months in office, Roosevelt twice wrote letters to Humphrey asking him to resign because his policies did not align with Roosevelt's own.
You will, I know, realize that 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.
—Letter from President Franklin D. Roosevelt to Commissioner William Humphrey (August 31, 1933).[8]
Humphrey pushed back against Roosevelt's requests and refused to resign. In October 1933, Roosevelt wrote Humphrey a third letter that simply fired him.[9] Humphrey's dismissal was based solely on his political and ideological differences with Roosevelt, rather than on poor performance or malfeasance. This contravened Section 1 of the FTC Act, which listed only "inefficiency, neglect of duty, or malfeasance in office" as the reasons a President could remove an FTC commissioner from office.[10]
William Humphrey died before the Supreme Court could rule on whether his dismissal by the President from the Federal Trade Commission was valid.
On February 14, 1934, five months after his firing, Humphrey died of a stroke at age 71. The FTC had stopped paying Humphrey his salary of $10,000 per year (equivalent to $243,000in 2024) upon his dismissal, even though he had continued to come to work at the FTC each day.[7] Samuel Rathbun, the executor of Humphrey's estate, sued the U.S. federal government in the Court of Claims, claiming that Humphrey's firing had been unlawful and that the government therefore owed his estate five months of back pay for the period of time between his firing and his death.[9]
While adjudicating the lawsuit, the Court of Claims issued two certified questions to the U.S. Supreme Court:
"Do the provisions of section 1 of the Federal Trade Commission Act, stating that 'any commissioner may be removed by the President for inefficiency, neglect of duty, or malfeasance in office', restrict or limit the power of the President to remove a commissioner except upon one or more of the causes named?"
"If the foregoing question is answered in the affirmative, then—If the power of the President to remove a commissioner is restricted or limited as shown by the foregoing interrogatory and the answer made thereto, is such a restriction or limitation valid under the Constitution of the United States?"
Answering these certified questions was the basis for the Supreme Court's decision.
Supreme Court
Argument
The government argued that Shurtleff v. United States (1903) was controlling as to the first question: "[I]t is a settled recipe of construction that the mere statutory enumeration of causes for which an appointee may be removed does not confine the exercise of the President's power to removal for one or more of those causes". Citing Myers as precedent, the government further argued that distinguishing Shurtleff would raise serious constitutional questions.[1]
Humphrey's Executor argued that the expressio unius rule of statutory construction confirmed the intent of Congress to limit the power of removal to the causes enumerated in the statute.
Decision
Justice George Sutherland, the author of the Supreme Court's opinion in Humphrey's Executor
On May 27, 1935, the Supreme Court issued a unanimous 9–0 decision in favor of Rathbun and Humphrey's estate.
In an opinion written by Justice George Sutherland, the Court held that it was not unconstitutional for Section 1 of the FTC Act to limit the power of the President to remove FTC commissioners only to situations involving "inefficiency, neglect of duty, or malfeasance in office." The opinion gave four main reasons for the Court's conclusion. First, the Court said that when Congress had created the FTC in 1914, it had intended the Commission to be a federal government agency that was independent and non-partisan.[11] The opinion described the FTC as an agency that was supposed to be free from control by the President and the executive branch, except for the initial appointments of its commissioners by the President.[11]
The commission is to be nonpartisan, and it must, from the very nature of its duties, act with entire impartiality. It is charged with the enforcement of no policy except the policy of the law. ...
...
Thus, the language of the [FTC] act, the legislative reports, and the general purposes of the legislation as reflected by the debates all combine to demonstrate the Congressional intent to create a body of experts who shall gain experience by length of service — a body which shall be independent of executive authority except in its selection, and free to exercise its judgment without the leave or hindrance of any other official or any department of the government.
—Humphrey's Executor, 295 U.S. at 624, 625–26.[12]
Second, the Court said that Congress had intended FTC commissioners to be experts in business and industry who would "exercise the trained judgment of a body of experts" while being insulated from politics.[13] It compared the FTC to the Interstate Commerce Commission, which had been created in 1887 as an independent overseer of practices in the railroad industry.[14]
The Court's third and fourth reasons were that the function and duties of the FTC were "neither political nor executive, but predominantly quasi-judicial and quasi-legislative."[15] The Court said the FTC did not perform the traditional executive-branch function of enforcing the law, but instead was more like a legislative or judicial body.[14] It reasoned that because the FTC did not enforce the law, the President did not need unfettered removal power over FTC commissioners in order to fulfill his duty under Article II of the U.S. Constitution to "take Care that the Laws be faithfully executed."[14]
The Court concluded by ruling that the removal restrictions in Section 1 of the FTC Act were constitutional, meaning that Myers v. United States is not controlling[16]:
We think it plain under the Constitution that illimitable power of removal is not possessed by the President in respect of officers of the character of those just named. The authority of Congress, in creating quasi-legislative or quasi-judicial agencies, to require them to act in discharge of their duties independently of executive control cannot well be doubted, and that authority includes, as an appropriate incident, power to fix the period during which they shall continue in office, and to forbid their removal except for cause in the meantime. For it is quite evident that one who holds his office only during the pleasure of another cannot be depended upon to maintain an attitude of independence against the latter's will.
—Humphrey's Executor, 295 U.S. at 629.
Analysis
Historical context
Humphrey's Executor occurred at a moment in American political history when tensions between the President and the Supreme Court were at an all-time high.[17] The Court issued the decision on the same day it decided A.L.A. Schechter Poultry Corp. v. United States, which struck down a key piece of Roosevelt's New Deal agenda—the National Industrial Recovery Act of 1933—as unconstitutional.[17][18] Legal scholars often view Humphrey's Executor in the context of the Court's "unprecedented but short-lived" effort in the mid-1930s to rein in the power of the President, which eventually resulted in Roosevelt's unsuccessful attempt to pack the Court.[17]
At the time of the decision, moreover, the FTC's powers and authority were limited. The FTC had no formal policymaking powers in the mid-1930s. It could only adjudicate individual disputes and give information and advice to Congress.[17]
Criticism
Although Humphrey's Executor became the legal basis for accepting the existence of independent agencies in the U.S. federal government, legal scholars have criticized the underlying logic and reasoning of the Supreme Court's opinion in the case. In a widely cited Columbia Law Review article published in 1984, the American legal scholar Peter L. Strauss criticized the Court's decision for failing to consider whether it may have created major constitutional problems.
[T]he reasoning of the Humphrey's Executor Court seems open to question. Remarkably, the Court did not pause to examine how a purpose to create a body "subject only to the people of the United States"—that is, apparently, beyond control of the constitutionally defined branches of government—could itself be sustained under the Constitution. Later, the opinion tells us that the agency is in both the legislative and the judicial branches, because of the functions it performs, but not how an agency can at the same moment reside in both the legislative and the judicial branches, consistent with the "fundamental necessity of maintaining each of the three general departments of government entirely free from the control or coercive influence ... of either of the others."[19]
The Supreme Court narrowed Humphrey's Executor in Seila Law v. CFPB. The Chief Justice wrote that the executive power "belongs to the President [and] generally includes the ability to supervise and remove the agents who wield executive power in his stead" and ruled that the agency's structure violated the separation of powers.[23][24]Seila Law left unresolved questions about whether the Humphrey's Executor exception would be overturned.[25]
Overturning Humphrey's Executor was seen as a key point in Project 2025 by the conservative group, the Heritage Foundation, and which was put into motion within the second presidency of Donald Trump in 2025.[26] Several of Trump's early steps as president was to dismiss heads or commissioners of independent agencies, leading to lawsuits challenging these dismissals under Humphrey's Executor. On May 22, 2025, in a 6-3 unsigned order in response to an emergency appeal from Donald Trump, the Supreme Court stayed the reinstatement of two independent regulators, Gwynne Wilcox of the National Labor Relations Board and chair Cathy A. Harris of the Merit Systems Protection Board, pending further review in lower courts. The unsigned order stated that "because the Constitution vests the executive power in the President, he may remove without cause executive officers who exercise that power on his behalf, subject to narrow exceptions recognized by our precedents."[27] However, the Court did not rule on the merits, with the order stating "The stay reflects our judgment that the Government is likely to show that both the NLRB and MSPB exercise considerable executive power. But we do not ultimately decide in this posture whether the NLRB or MSPB falls within such a recognized exception; that question is better left for resolution after full briefing and argument."[28]
The decision was sharply criticized by Justice Elena Kagan in a dissent joined by Justices Sonia Sotomayor and Ketanji Brown Jackson, saying that the ruling had effectively repealed Humphrey's Executor "by fiat", and that "nowhere is short-circuiting our deliberative process less appropriate than when the ruling requested would disrespect—by either overturning or narrowing—one of this Court's longstanding precedents".[27] Kagan also criticized the order's call-out to separate the Federal Reserve Board from other independent agencies, saying that this board's independence "rests on the same constitutional and analytic foundations as that of the NLRB, MSPB, FTC, FCC, and so on — which is to say it rests largely on Humphrey's."[29]
On September 8, 2025, the Supreme Court similarly stayed an injunction that had blocked President Trump's firing of Rebecca Slaughter, an FTC commissioner, while the case was litigated.[30][31] The court accepted the case on September 22, 2025, to hear the case before judgment from lower courts in December 2025, over dissent from justices Sotomayor, Kagan, and Jackson.[32][33]
Shurtleff v. United States (1903) ("In the absence of constitutional or statutory provision, the President can, by virtue of his general power of appointment, remove an officer, even though he were appointed by and with the advice and consent of the Senate.")
Myers v. United States (1926) ("The President is empowered by the Constitution to remove any executive officer appointed by him by and with the advice and consent of the Senate, and this power is not subject in its exercise to the assent of the Senate, nor can it be made so by an act of Congress.")
Bowsher v. Synar (1986) ("In light of these precedents, we conclude that Congress cannot reserve for itself the power of removal of an officer charged with the execution of the laws except by impeachment.")
Morrison v. Olson (1988) ("[T]here was little or no debate on the question whether the Clause empowers Congress to provide for interbranch appointments, and there is nothing to suggest that the Framers intended to prevent Congress from having that power.")
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