Humphrey’s Who? The Big SCOTUS Case Few Understand

A decision over who Trump can fire will reshape how our entire government functions

US Supreme Court Associate Justice Brett Kavanaugh (L) and US Supreme Court Chief Justice John Roberts. Photo by CHIP SOMODEVILLA/POOL/AFP via Getty Images.

There are moments in history when the lawyers gulp hard, even if most of the country has no inkling what just went down. Yesterday’s Supreme Court hearing in the aptly named Trump v. Slaughter case provided just such a “gulp” moment.

At first blush, especially to non-lawyers, the stakes seem fairly limited. Should the President be able to fire a member of the Federal Trade Commission (FTC) whenever he wants, even if Congress said she can only be fired for cause?

Proponents, who have been advancing the awkwardly titled “unitary executive” theory for the last five decades, say absolutely yes. They view the President like a CEO. Everyone who serves in the Executive Branch, with the possible exception of the Federal Reserve Board, serves at his pleasure and therefore can be fired at will, no matter what Congress says.

Opponents say no, our system of government requires independent expertise and judgment from such appointees. And those entrusted with regulation should not be subject to the political pressures of at-will employment. That has been the law and the unbroken rule since the 1935 case of Humphrey’s Executor, and there’s no reason for the Supreme Court to change it now.

And yet. During yesterday’s oral argument, the radical Supreme Court majority appeared poised to overturn or sharply limit Humphrey’s Executor. This would hand Trump more power as a president than we’ve ever seen before. And this comes after these same justices granted him immunity from nearly all criminal prosecution.

To understand what this all could mean, it’s helpful to zoom in on the question of the FTC, then zoom out and look at all the problems that logically flow from such a deeply disastrous ruling.

Who cares who’s on the FTC anyway?

The FTC is composed of five commissioners, and four of them are Republicans. Trump wants to fire the fifth—Rebecca Slaughter, the lone Democrat—even though Trump is the one who appointed her during his first term.

Slaughter’s firing won’t create a change in the majority on the FTC. But it would send a clear signal: Vote my way and do my bidding, or you could be out of your job, too.

Why does this matter? Let’s take just one example grabbed from today’s headlines. Both Netflix and Paramount want to purchase Warner Bros. Discovery, and there are competing bids out, each worth tens of billions of dollars.

The drama and stakes are as high as in an episode of Succession, a popular show on HBO Max, which itself is on the sale block as part of the deal. Briefly summarized, last week Netflix entered into an agreement to buy a big part of Warner Bros. Discovery and its streaming services, but not its cable channels, including CNN.

Paramount had wanted these assets, but got pushed aside by the Netflix deal. So it made a hostile bid for the entire company, going directly to the shareholders with an offer. As NBC reported, the deal is “backed in part by funds from Saudi Arabia, Qatar and the United Arab Emirates, as well as Affinity Partners, an investment firm founded by Jared Kushner, President Donald Trump’s son-in-law.”

Jared Kushner? That should be a record scratch moment for anyone watching.

Mergers of this size trigger antitrust review. The FTC normally would assess the merger and, if satisfied that it would not create an anticompetitive environment, provide regulatory sign-off.

But now, that sign-off will include Trump. This weekend, the President indicated that the Netflix purchase could create an antitrust “problem” and said that he will “be involved” in the approval process for the deal.

William Kovacic, the former chair of the FTC, remarked that Trump’s involvement in such a deal would be “unprecedented.” He noted, “The negotiation of any possible solution is going to run through the White House, and that means we’re going to have probably a deep level – an unprecedented level – of presidential control in the resolution of what used to be a technical analysis of a merger.”

The opportunity for corruption here is intolerably high. The FTC, stacked with Trump loyalists, could kill the Netflix deal and steer it toward Paramount, where Trump’s son-in-law stands to benefit immensely. That would, as it happens, also put CNN in the hands of Trump-friendly owners, meaning another big step toward control of our news by the billionaire class. If Trump gets his way with SCOTUS, any member of the FTC who doesn’t play along with what he wants risks being fired at will, despite what are supposed to be congressionally-imposed legal protections.

Alternatively, Trump could dangle regulatory approval before Netflix, demanding that it bow to him in order to get what it wants. We’ve seen that happen again and again with other big companies and institutions.

Having a politicized, captive FTC eliminates the technical expertise and careful review of big mergers that served as guardrails against antitrust abuses. In places of those experts, there will be a board of sycophantic commissioners whose job is to ensure Trump and his family are enriched and that important media assets fall into friendly hands. It’s completely antidemocratic, yet that is the very outcome that the case before SCOTUS yesterday will likely create.

Humphrey’s Executor and the origins of FTC independence

It was never this way before. Back in the 1930s, when the FTC was a much smaller and less influential body, President Franklin D. Roosevelt also sought to have a say over who could remain a commissioner. He probably didn’t know it then, but his efforts to oust a member from the FTC who wasn’t going along with his agenda would spark the beginning of the independent administrative state that has helped govern our country responsibly for the next 90 years.

Joyce Vance wrote back in March about how that case came about and the legacy it left:

Mr. Humphrey, a Federal Trade Commissioner, had passed away, and the executor of his will wanted to recover the salary he was due for his work as a commissioner from October 8, 1933, to the time of his death on February 14, 1934. The problem was that President Franklin Delano Roosevelt had fired Humphrey, who refused to resign, after FDR told him, “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.”

This was a polite way of doing what Donald Trump did to Rebecca Slaughter earlier this year when he told her, “You’re fired.”

The Supreme Court took up the Humphrey’s Executor case to settle an important question: whether FDR had the power to fire Humphrey in the first place. In its 1935 decisison, the Court held, unanimously, that he didn’t. Congress had passed a law establishing the FTC, and the statute set a fixed term for commissioners. Moreover, they could only be fired for cause, meaning “inefficiency, neglect of duty, or malfeasance in office.”

Justice George Sutherland wrote the unanimous opinion for the Court. He concluded,

“When Congress provides for the appointment of officers whose functions, like those of the Federal Trade Commissioners, are of Legislative and judicial quality, rather than executive, and limits the grounds upon which they may be removed from office, the president has no constitutional power to remove them for reasons other than those so specified.”

The President didn’t have the power to override this restriction, the Court reasoned, simply because he disagreed with Humphrey on policy. Congress could create independent, nonpartisan bodies of experts, and if those bodies act like judicial or rule-making ones, then the officials leading those agencies could be protected against executive overreach by limiting the president’s ability to fire them.

That’s been the unbroken rule ever since, at least until the Roberts Court began chipping away at it about 15 years ago. If you applied the same rule to the facts of the case today, this should have been a slam dunk, unanimous opinion in favor of Slaughter. Trump, like FDR, should not be able to remove anyone from the FTC except for cause.

The logic behind the Humphrey’s Executor decision extended well beyond the FTC. Our federal government operates through its federal departments and agencies, which are staffed with career civil servants who have technical expertise in their fields. These experts, and many of their leaders, have enjoyed protection against political interference, allowing them to do their jobs as scientists, researchers, data analysts, inspectors, investigators and regulators without fear that unpopular decisions could cost them their jobs.

This is all at risk if the White House gets its way in Trump v. Slaughter. Agencies that have been in place for a century or more could be stripped of their expertise. As Justice Ketanji Brown Jackson deadpanned during oral arguments yesterday, “So, having a President come in and fire all the scientists and the doctors and the economists and the PhDs and replacing them with loyalists and people who don’t know anything is actually not in the best interest of the citizens of the United States.”

The hard push for a “unitary executive”

So how did we go from a balanced, nonpoliticized and effective administrative state to a wholly dysfunctional one loaded with political appointees, whose first priority is to do the bidding of the President and not the business of the people?

As Mark Sherman noted in his piece in the AP,

Proponents of the unitary executive theory have said the modern administrative state gets the Constitution all wrong: Federal agencies that are part of the executive branch answer to the president, and that includes the ability to fire their leaders at will.

As with many bad ideas, the “unitary executive” theory can be traced back to the late Justice Antonin Scalia. In a dissent in 1988, Scalia wrote that “this does not mean some of the executive power, but all of the executive power.” That dissent “has taken on mythical status among conservatives,” noted Sherman.

Chief Justice Roberts has been on a long mission to impose the unitary executive theory as official Supreme Court doctrine. In 2020, for example, Roberts wrote a majority opinion upholding Trump’s firing of the head of the Consumer Financial Protection Bureau. He noted that “the President’s removal power is the rule, not the exception” (not sure where he got this idea from the case law) and allowed the dismissal despite job protections similar to those in Humphrey’s Executor.

Pushing the idea of the unitary executive from within the Trump administration is Project 2025 architect Russell Vought, now the director of the Office of Management and Budget. As Todd Beeton of The Big Picture warned last year, Vought made his own agenda clear, in the Project 2025 chapter titled “Executive Office of the President of the United States”:

In its opening words, Article II of the U.S. Constitution makes it abundantly clear that “[t]he executive power shall be vested in a President of the United States of America.” That enormous power is not vested in departments or agencies, in staff or administrative bodies, in nongovernmental organizations or other equities and interests close to the government. The President must set and enforce a plan for the executive branch. Sadly, however, a President today assumes office to find a sprawling federal bureaucracy that all too often is carrying out its own policy plans and preferences—or, worse yet, the policy plans and preferences of a radical, supposedly “woke” faction of the country.

Scalia, Vought and Roberts agree with the once radical and fringe theory that the President has sole authority over the entire executive branch and therefore cannot be reined in by the other two branches. Trump himself has advanced this notion, telling a Turning Point USA audience in 2019, “I have an Article II, where I have…the right to do whatever I want as president.”

Farewell Humphrey’s Executor

At oral arguments yesterday, Solicitor General John Sauer found a receptive audience for his chilling argument. He told the justices that the President must have the right to remove officials in agencies under him because “the President must have the power to control and…the one who has the power to remove is the one who… they have to fear and obey.”

As Democracy Docket observed, Sauer was out of the gate gunning for an overruling of Humphrey’s Executor.

Sauer opened the arguments by describing Humphrey’s as “grievously wrong” and an “indefensible outlier” and “decaying husk” that must be overruled. In order to fully exercise their power, Sauer claimed, presidents must be able to dismiss executive branch officials for any reason.

As Mark Sherman of the AP observed,

Sauer said the decision “hasn’t withstood the test of time” and had enabled a “headless fourth branch” of government, the administrative state that conservatives and business interests have been taking aim at for decades.

That Sauer found a receptive audience comes as no surprise. The radical justices on the Court had already strongly signaled their willingness to overturn the 90-year-old precedent. After all, prior to the arguments yesterday, the Court had already permitted Trump to fire members of the National Labor Relations Board, the Merit Systems Protection Board and the Consumer Product Safety Commission.

Specifically, through its “shadow docket,” the Court had allowed the firings to proceed even as the legal challenges continued, meaning the radical justices believed the White House was ultimately likely to prevail on the merits. If Humphrey’s Executor was still good law in their eyes, it’s hard to see how they let the removals go forward.

The three liberal justices were justifiably alarmed but, once again, badly outnumbered. They asked repeatedly whether overturning Humphrey’s Executor would put all manner of government officials at risk, including judges in the Court of Federal Claims and Court of Appeals for the Armed Forces—officials currently facing questions surrounding the Trump White House’s policies and orders. Sauer ultimately agreed that some two dozen federal agencies would be impacted.

As Chris Geidner reported, “The three liberal justices were on a mission: The public needed to know the extreme implications of the Trump administration’s argument that the president should be able to fire anyone he wants for any reason, regardless of what the law says.” Geidner cited Justice Sonia Sotomayor’s pointed questioning of Sauer:

“You’re asking us to destroy the structure of government,” Justice Sonia Sotomayor told Sauer, who was previously President Donald Trump’s personal lawyer, minutes into his argument. “Where else have we so fundamentally altered the structure of government?“

Sauer had no specific response.

It’s theoretically possible that the Court might seek to preserve Humphrey’s Executor while incrementally hollowing it out further. One way the Court could do this would be to narrow the scope of the case to just the FTC and its history, including how it has grown in size and power and now exercises significant executive authority, not just quasi-judicial and legislative authority. As a body with significant executive function, the argument goes, its composition is something Trump should have the right to fully control.

But this Court under Chief Justice Roberts seems impatient to move along with its project and strike a decisive blow to the administrative state that the radical justices so despise. If they do so by overruling Humphrey’s Executor and handing Trump full “unitary” power over the entire executive branch—including the right to fire whomever he pleases for whatever reason he chooses—the damage to our system and the danger it poses to our entire democracy are hard to overstate.

Replace and reform

A decision in this case could come down soon, but the Court likely will wait until it announces its most impactful decisions at the end of the term in late June or early July of 2026. Even before that point, based on yesterday’s oral arguments, officials across the government are effectively on notice that their jobs are at risk if they displease Trump in any way. Those officials are likely to adjust their behavior accordingly, and none of us is better off as a consequence.

Indeed, we should expect the President to grow even more brazen and lawless in response to his implied “unitary executive” powers, just as he did after this same Court granted him near full immunity from criminal prosecution.

When the history of this era is written, the role of the Roberts Court in systematically removing critical guardrails, while letting the White House run wild, must figure prominently. And when Democrats one day take back control of the government, as they will, a top priority must be judicial reform, including expansion of the Supreme Court and term limits for the justices.

And on the to-do list for such a reformed Court, we must add Humphrey’s Executor to the many cases that the Roberts Court will have cavalierly discarded but which ultimately must be restored.