“The Originalist Case Against Overturning Humphrey’s Executor,” by Lorianne Updike Schulzke
I was talking to Prof. Lorianne Updike Schulzke (who teaches at Northern Illinois and is visiting this semester at Yale), and she brought up some interesting thoughts on the President’s supposed inherent constitutional power to dismiss independent agency officials. She was kind enough to pass along this quick summary; I’m not an expert on the field myself, but I thought it was worth passing along in turn:
Serious Originalists should pause before solidifying President Trump’s control over independent agencies by overturning Humphrey’s Executor. Yesterday the DC Circuit stayed the reinstatement of Gwynne A. Wilcox of the National Labor Relations Board (NLRB), potentially under the theory that Seila Law throws Humphrey’s Executor into doubt.
Yet as I demonstrate in a paper just out in the Connecticut Law Review, Un-fathering the Constitution, the historical grounding of Seila Law in Madison’s vision of executive removal is tenuous at best. In fact, more careful historical analysis demonstrates that Madison’s vision should not dominate executive removal.
Further, this history shows that the original Congress anticipated a role for itself in limiting the president’s removal power. If this history is to have any sway (and Originalism dictates that it should), Humphrey’s Executor should be kept intact and greater power over independent agencies should not be granted to the Trump administration.
Congress began creating independent agencies in the 1880s, when they established the Interstate Commerce Commission to regulate railroads. Since then, the President has made top appointments for such agencies, and Congress lower appointments according to Article II, Sec. 2 of the Constitution. Under Humphrey’s Executor, the appointees who run these agencies have a quasi-legislative role (being set up by Congress), and therefore the president’s ability to control and fire them is limited.
Humphrey’s Executor stands in the way of Trump firing heads, especially multi-member heads, of independent agencies. The idea of Humphrey’s Executor is that executive removal should be limited, or the president should be limited in his ability to remove heads of such agencies and wield control over them because they were established by Congress to be independent and create something of a check on executive power. The argument on the other side—called the theory of a unitary executive—is that independent agencies are not politically accountable and sweeping them under the executive (and overturning Humphrey’s Executor) would make them so. Recently, this theory has gained support from liberal theorists.
Seila Law, decided by the Supreme Court in June of 2020, according to DC Circuit Judge Walker’s concurrence filed in the Wilcox case yesterday, casts doubt on Humphrey’s Executor. According to Walker, although Seila Law did not “revisit prior decisions” (Slip Opinion at 2), it did decide that independent agencies headed by a single head were removable by the President. By the same reasoning, multi-headed agencies like the NLRB would also be
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