Humphrey’s Executor v. United States (1935) Should Be Overturned

By Jason Cao ’29

Introduction

If there is one principle that defines the American Constitution, it must be separation of powers. The Framers envisioned a simple structure to our government—the legislature writes the law, the judiciary interprets it, and the executive enforces it. This clear division of power between three coordinate branches constrains the ambitions of politicians and provides democratic accountability. Atop the structure of the executive branch sits the president, an elected position that controls the subordinates whom he appoints. Since he is chosen by the people (via the electoral college), he is the most accountable to the people, and if the laws were not enforced adequately, the people know on whose shoulders the responsibility lies. 

This simple picture of the separation of powers envisioned by the Framers has steadily eroded over the past century, as the president’s role to execute the laws of the land have been abrogated in favor of independent agencies unaccountable to the people. The most notable Supreme Court decision that facilitated this transition is Humphrey’s Executor v. United States (1935). A New Deal era precedent, Humphrey’s Executor allowed Congress to create independent agencies headed by commissioners whom the president can only remove with cause. By allowing Congress to create independent executive offices, the Supreme Court disregarded the Constitution’s clear mandate that it is the president’s role to “take care that the laws be faithfully executed.” (1) This decision created a structure of administrative agencies that sits outside of the three branches of government and exists unrestricted by the Constitution’s separation of powers, removing democratic accountability. The Roberts Court must overturn the decision made in Humphrey’s Executor and restore the Constitution’s separation of powers. 

The Case

Ironically, the Humphrey’s Executor decision, now widely seen as justifying the modern liberal idea of an expansive administrative state, was born out of conservative opposition to President Franklin Delano Roosevelt’s New Deal policies. After Roosevelt became president in 1933, he faced significant opposition within the government from officials skeptical of his approach. One such individual was commissioner William E. Humphrey of the Federal Trade Commission (FTC). Tasked with overseeing economic regulation, Humphrey believed that Roosevelt’s antitrust policies were stifling the innovative spirit of private businesses. Since the FTC is a vital organ for the president to execute his policies, his disagreement with Roosevelt led to his dismissal. (2) 

While Humphrey died shortly afterwards, the executor of his estate, Samuel Rathbun, sued the federal government, arguing that the firing was unlawful. (3) The executor cited a provision of the Federal Trade Commission Act listing only “inefficiency, neglect of duty, and malfeasance” as reasons for which the president could fire an FTC commissioner, none of which applied to Humphrey. (4) Thus, he argued that the government owed his estate back pay for the time in which Humphrey was out of office. The Roosevelt Administration, in contrast, contended that the Court’s precedent in Myers v. United States (1925) meant that FTC commissioners could be fired at will, and that such a restriction is unconstitutional.

The text of the Constitution supports the government’s contention. The Executive Vesting Clause states that “the executive Power shall be vested in a President of the United States of America,” granting executive power to one individual. (5) Moreover, the Take Care Clause of the Constitution requires that the president “take care that the laws be faithfully executed,” implying direct control over executive agencies. (6) The FTC, enforcing anti-monopolist trade laws, is undoubtedly an executive agency and thus part of the executive branch. Therefore, the Constitution places it under the president, whom the people elected to enforce the law, not under unelected bureaucrats.

This position is supported by the precedent in Myers v. United States (1926), a case involving the firing of a postmaster, which held that the president had the power to remove administrative officers at will, a power which Congress cannot restrict. Chief Justice William Howard Taft’s opinion in Myers cites the legislative history and original meaning of the Executive Vesting Clause extensively, arguing that James Madison wrote a strict separation of the executive and legislative branches into the Constitution. He cites extensive records of the legislative debates in the first Congress to show that most representatives commonly understood the Executive Vesting and Take Care Clauses to grant full power over the executive branch to the president, including the power to remove all officers. “Finding such officers to be negligent and inefficient, the President should have the power to remove them,” he writes, “otherwise he does not discharge his own constitutional duty of seeing that the laws be faithfully executed.” (7) Chief Justice Taft’s opinion, which excels in avoiding personal policy judgments, places its emphasis on the attitudes of the Framers and of Founding Era society, which to him suggest support for a vigorous executive. 

In contrast, Humphrey’s Executor v. United States (1935), a case decided less than ten years later, abandons the formalist logic of Myers in an attempt to stop President Roosevelt’s agenda from the bench. Because “the Federal Trade Commission is an administrative body created by Congress to carry into effect legislative policies,” Justice Sutherland writes, “such a body cannot in any proper sense be characterized as an arm or an eye of the executive” and thus “must be free from executive control.” (8) Instead, he argued that the FTC should be classified as a quasi-judicial and quasi-legislative agency, or potentially an arm of the legislature or the judiciary. This claim rests on dubious constitutional reasoning. Since the responsibility of the executive branch is to execute the laws, its entire purpose is to enact the will of the legislature. In this case, the FTC is no different from other executive departments which also execute the law. More importantly, following the logic of Justice Sutherland requires us to imagine essentially a fourth branch of government not part of the legislature, executive, or judiciary. This structure is nowhere to be found in the Constitution, and antithetical to the principle of the separation of powers and checks and balances.  

Subsequent Developments

For conservatives on the Supreme Court, Humphrey’s Executor backfired spectacularly. In the following decades, Congress justified a plethora of new independent regulatory committees, agencies, and commissions on the same reasoning as that of Humphrey’s Executor. Today, the unelected heads of these agencies create and enforce many of the regulations we encounter on a daily basis, eroding the democratic nature of our government.

Fortunately, the Roberts Court has shown a willingness to reconsider precedents that weakened the executive power of the president. In Seila Law LLC v. Consumer Financial Protection Bureau (2020), which declared the for-cause removal provision of the CFPB unconstitutional, the Court stated that since the CFPB had broader executive powers than that of the FTC in 1935, Humphrey’s Executor did not apply. (9) This decision greatly abrogated the scope and impact of the Humphrey’s Executor decision.

More recently, the Supreme Court granted certiorari in Trump v. Slaughter, a case to be argued in front of the Court in the next term. The case deals with the exact same issue as Humphrey’s Executor, whether the president can fire an FTC commissioner without cause. (10) This case presents the perfect opportunity for the Court to overrule Humphrey’s Executor, end the 90-year constitutional dilemma that has plagued the executive branch, and restore the proper separation of powers to the federal government.

Endnotes

(1) U.S. Const. art. II, § 3, cl. 3

(2) Daniel A. Crane, “Debunking Humphrey’s Executor,” The George Washington Law Review 83 (November 2015), 1841-2.

(3) Crane, “Debunking Humphrey’s Executor,” 1842.

(4) Oyez, “Humphrey’s Executor v. United States.” Accessed December 5, 2025.

(5) U.S. Const. art. II, § 1, cl. 1

(6) U.S. Const. art. II, § 3, cl. 3

(7) Myers v. United States, 272 U.S. 52 (Supreme Court 1926), 135.

(8) Humphrey’s Executor v. United States, 295 U.S. 602 (Supreme Court 1935), 628.

(9) Adam J. White, “Is Humphrey’s Executor Headed for Slaughter?” American Enterprise Institute - AEI, October 2, 2025. 

(10) White, “Is Humphrey’s Executor Headed for Slaughter?” 

Bibliography 

Cleveland, Margot. “7 Reasons SCOTUS Needs to Declare Humphrey’s Executor All Dead.” New Civil Liberties Alliance, October 24, 2025. https://nclalegal.org/7-reasons-scotus-needs-to-declare-humphreys-executor-all-dead/.

Cook, Brian J. “Subordination or Independence for Administrators? The Decision of 1789 Reexamined.” Public Administration Review 52, no. 5 (1992): 497–503. https://doi.org/10.2307/976810.

Crane, Daniel A. “Debunking Humphrey’s Executor.” The George Washington Law Review 83 (November 2015). https://www.gwlr.org/wp-content/uploads/2016/01/83-Geo-Wash-L-Rev-1835.pdf.

Humphrey’s Executor v. United States, 295 U.S. 602 (Supreme Court 1935). https://tile.loc.gov/storage-services/service/ll/usrep/usrep295/usrep295602/usrep295602.pdf.

Myers v. United States, 272 U.S. 52 (Supreme Court 1926). https://tile.loc.gov/storage-services/service/ll/usrep/usrep272/usrep272052/usrep272052.pdf.

“Overview of Executive Vesting Clause | Constitution Annotated | Congress.Gov | Library of Congress.” Accessed December 5, 2025. https://constitution.congress.gov/browse/essay/artII-S1-C1-1/ALDE_00013790/.

“Overview of Take Care Clause | Constitution Annotated | Congress.Gov | Library of Congress.” Accessed December 5, 2025. https://constitution.congress.gov/browse/essay/artII-S3-3-1/ALDE_00001160/.

Oyez. “Humphrey’s Executor v. United States.” Accessed December 5, 2025. https://www.oyez.org/cases/1900-1940/295us602.

White, Adam J. “Is Humphrey’s Executor Headed for Slaughter?” American Enterprise Institute - AEI, October 2, 2025.https://www.aei.org/op-eds/is-humphreys-executor-headed-for-slaughter/.