Humphrey’s Execution? Whether Humphrey’s Executor is Slated for the Supreme Court’s Chopping Block

by Autumn Christafore, Associate Member, University of Cincinnati Law Review Vol. 93

Note: Since this blog was written, the Supreme Court has issued a temporary ruling in Wilcox v. Trump. The Court granted a stay allowing President Trump to remove two independent agency officials without cause, Gwynne Wilcox of the National Labor Relation Board and Cathy Harris of the Merit Systems Protection Board. The Court emphasized the stay was temporary but acknowledged that the Trump Administration was likely to succeed in arguing that the agencies exercise considerable executive power.

I. Introduction

Critics have characterized President Trump’s second term as “an utter disregard for the nation’s foundational principles.”¹ One way the administration has earned this characterization is through the removal of agency and board officials, despite the existence of Humphrey’s Executor—a ninety-year-old legal precedent insulating certain agency officials from removal by the President without cause.² Proponents of a strong, unitary executive argue that Humphrey’s Executor violates the Constitution’s separation of powers and encouraged the next conservative presidential administration to take this position.³ Hence, many believe the purpose of President Trump’s recent removal of agency officials in blatant disregard of Humphrey’s Executor was done intentionally to create test cases for the Supreme Court to reconsider the precedent.⁴

This article will discuss the recent removal of Gwynne Wilcox from the National Labor Relations Board (“NLRB”) and what her case may mean for Humphrey’s Executor if it reaches the Supreme Court. Section II begins with discussing Humphrey’s Executor v. United States. Then, Section II discusses the President’s removal power, including two contrasting visions of executive power, and Wilcox v. Trump. Next, Section III analyzes the current Supreme Court Justices’ views on executive authority and discusses the effect overturning Humphrey’s Executor will have on the administrative state. Finally, Section IV concludes by emphasizing the importance of the precedent.

II. Background

Article II, Section 3 of the U.S. Constitution provides that the president “shall take Care that the Laws be faithfully executed. . .”⁵ This phrase is generally believed to provide the basis for the President’s authority to remove principal officers wielding executive power on his behalf.⁶ The Supreme Court has endorsed this view by consistently holding that the Constitution grants the President the power to remove agency officials from the executive branch.⁷ However, disputes over the scope of the President’s removal power can be traced back centuries to the first Congress, and are still persistent today.⁸

A. Humphrey’s Executor v. United States

The Federal Trade Commission Act of 1914 created a commission consisting of five members appointed by the President with the advice and consent of the Senate.⁹ The Commission’s purpose is to protect consumers by preventing unfair methods of competition in commerce.¹⁰ Congress intended the Commission to be non-partisan and explicitly stated “not more than three of the commissioners shall be members of the same political party.”¹¹ Congress also provided that commissioners may only be removed by the President for “inefficiency, neglect of duty, or malfeasance in office.”¹²

William Humphrey was nominated by President Hoover to the Federal Trade Commission (“FTC”), and confirmed by the Senate, on December 10, 1931, and was expected to serve until September 1938.¹³ In July of 1933, President Roosevelt addressed a letter to Commissioner Humphrey, asking for his resignation because he wanted to appoint a member of his choosing.¹⁴ Humphrey refused to resign, and on October 7, 1933, President Roosevelt formally removed him from office.¹⁵ After his passing, the Executor of Humphrey’s estate brought suit in the Court of Claims against the United States to recover the salary Humphrey was owed from the time he was removed until his death in February of 1934.¹⁶

The Court of Claims certified two questions to the Supreme Court: 1) whether the FTC Act limited the President’s removal power for specific causes, and 2) whether such a limitation on the President’s removal power was constitutional.¹⁷ The Court answered both questions in the affirmative.¹⁸ It concluded that the intent of the FTC Act was to limit the President’s ability to remove Commission members to only inefficiency, neglect of duty, and malfeasance in office—none of which were present in Humphrey’s case.¹⁹ It also held that this restriction on the President’s removal power was constitutional because the duties of the FTC were neither political nor executive, but instead were “predominately quasi-judicial and quasi-legislative.”²⁰ Thus, in this case, the threat of removal by the President would threaten the independence of the Commission, which was created by Congress to exercise legislative and judicial power, and not to be an “arm or an eye of the executive.”²¹

B. Theories of Presidential Power and Removal

There are two generally accepted theories regarding the President’s power to remove executive officers: 1) the unitary executive theory and 2) the idea that the Necessary and Proper Clause provides Congress with significant authority to shape and structure the administrative state.²² The clearest description of both theories exists in the differing opinions written in Seila Law, LLC v. Consumer Financial Protection Bureau.²³

Writing for the majority, Chief Justice Roberts embraced the idea of a unitary executive and expanded presidential removal power by declining to extend existing precedent to Seila Law.²⁴ As a result, the majority held that the structure of the Consumer Financial Protection Board’s single-director configuration was incompatible with the structure of the Constitution, which “scrupulously avoids concentrating power in the hands of any single individual.”²⁵ According to the proponents of the unitary executive, the President is the sole exception to this structure.²⁶ They believe the constitutional strategy was to divide the power everywhere except for the President, who would be directly accountable to the people through regular elections.²⁷ Because the President is the most accountable individual in the government, and because agency officials are not elected, subscribers to the unitary executive theory believe executive officials must be subject to the ongoing supervision and control of the President—including the ability to be removed for any reason.²⁸

In her concurring and dissenting opinion, Justice Kagan argues for an opposing vision of executive authority.²⁹She believes the majority offered the “Schoolhouse Rock” version of the separation of powers and argues that just because the powers are separated does not mean that the branches must be wholly separate.³⁰ Instead, she believes the Necessary and Proper Clause gives Congress broad authority to structure the Executive branch.³¹ Thus, under her logic, because Congress has the power to create administrative agencies, define their power, and limit their duration, Congress should also be entitled to limit the President’s ability to remove agency officials.³²

C. Wilcox v. Trump

Congress established the NLRB as an independent federal agency ninety years ago to remedy the “‘inequality of bargaining power’ between employers and employees.”³³ The Board is responsible for protecting employees from unfair labor practices and has exclusive jurisdiction to adjudicate labor disputes.³⁴ Congress created the Board as an independent, quasi-judicial body that consists of five members appointed by the President—one designated as the chair—for staggered five-year terms.³⁵ To ensure the Board’s status as an “independent and impartial adjudicative body,” Congress explicitly provided that Board members do not serve at the pleasure of the President and can only be removed for “neglect of duty or malfeasance in office.”³⁶

Gwynne Wilcox was confirmed by the U.S. Senate as a member of the NLRB on August 4, 2021.³⁷ On September 6, 2023, the Senate confirmed her for a second term of five years, which was expected to last until August 2028.³⁸ On December 17, 2024, President Biden designated Ms. Wilcox as the Board’s Chair, where she served for roughly a month until President Trump’s inauguration.³⁹ Immediately upon taking office, President Trump appointed Marvin Kaplan to replace Wilcox as the Board’s Chair.⁴⁰ A week later, on January 27, 2025, the President removed Wilcox from her position as a member of the Board.⁴¹

Wilcox received a late-night email from the Deputy Director of the White House Presidential Personnel Office, informing her that she was “hereby removed from the office of Member of the National Labor Relations Board.”⁴²Wilcox found this move “unprecedented and illegal,” and challenged the President’s authority to fire her.⁴³ Despite this, the Board’s Director of Administration began the termination process the next morning, cutting off her email and demanding she clean out her office.⁴⁴

On February 5, 2025, Wilcox filed a lawsuit against Donald Trump in his official capacity as President, and Marvin Kaplan in his official capacity as Chairman of the NLRB.⁴⁵ In her lawsuit, she alleges that her removal by the President is a violation of the National Labor Relations Act because he failed to identify any neglect or malfeasance, and did not provide notice or a hearing, as due process and the Act require.⁴⁶ Five days later, on February 10, 2025, Wilcox filed a motion for expedited summary judgment, asserting not only that her removal was unlawful, but also that it deprived the NLRB of a quorum, leaving it unable to fulfill its role in adjudicating labor disputes.⁴⁷

The Trump administration responded with a cross-motion for summary judgment, arguing that the removal was lawful because NLRB members do not fall within Humphrey’s Executor’s narrow exception.⁴⁸ He believes the Humphrey’s exception only applies to multimember boards that do not exercise any executive power, whereas the NLRB exercises “substantial executive power”⁴⁹ His administration further argued that Humphrey’s Executor “rested on fiction,” and cited Justice Thomas’s concurring opinion in Seila Law to assert that the Court has since repudiated Humphrey’s reasoning.⁵⁰

The district judge did not buy the President’s argument. Noting that the President’s “interpretation of the scope of his constitutional power—or, more aptly, his aspiration—is flat wrong,” the court granted Wilcox’s motion for summary judgment and ordered that she continue to serve as a member of the NLRB until the end of her term.⁵¹ The Trump administration immediately appealed to the United States Court of Appeals for the District of Columbia (“D.C. Circuit”), where the court stayed the district court’s reinstatement of Wilcox, pending appeal.⁵² On April 7, 2025, in a 7-4 vote, the D.C. Circuit reinstated Wilcox to her position, holding that her dismissal by President Trump violated Humphrey’s Executor.⁵³ Shortly after the decision, a White House spokesman stated that the “Trump Administration plans to immediately appeal the decision [to the Supreme Court], and looks forward to ultimate victory on the issue.”⁵⁴

III. Discussion

As the Trump administration pushes to expand executive authority, Humphrey’s Executor is likely heading for the Supreme Court’s chopping block.⁵⁵ While the Roberts Court has typically chipped away at Humphrey’s Executor without officially overruling it, if Wilcox reaches the Court the case will leave it no choice but to address the precedent head-on.⁵⁶ This is because the NLRB was created just after the Supreme Court handed down Humphrey’s, and was modeled after the FTC to ensure its members were insulated from at-will removal by the President.⁵⁷ Thus, many believe this case will provide the Supreme Court the opportunity to put the nail in Humphrey’s coffin.⁵⁸

A. The Roberts Court on Presidential Authority

The lower courts are bound by Humphrey’s Executor’s precedent and will not be able to disturb it. This means the real battle will come after the D.C. Circuit hears Wilcox and it is appealed to the Supreme Court, which will have a few options in handling the dispute. Because Humphrey’s Executor is a binding precedent, the Court could simply choose not to review the case. However, the Court only needs four votes to grant certiorari, and a majority of the current justices favor strong executive authority, so a review of Wilcox v. Trump is not out of the question.⁵⁹

When reading Justice Thomas’s concurring and dissenting opinion in Seila Law, joined by Justice Gorsuch, it is evident that both would vote to grant certiorari on a challenge to Humphrey’s Executor and would push to overturn the precedent.⁶⁰ The opinion applauds the majority for limiting Humphrey’s but argues the case’s “erroneous precedent” poses a direct threat to our constitutional structure and should be repudiated in a future case.⁶¹ While Justice Alito has a more restrained view of executive power, he stands firm in his view that the Constitution confers all executive power to the President and will also likely vote to reconsider the precedent.⁶² Justices Kagan and Sotomayor have voiced their concerns about broad Presidential authority,⁶³ and it is likely that they, along with Justice Jackson, will vote against overturning Humphrey’s Executor, given the stare decisis principles implicated.⁶⁴

This likely leaves Humphrey’s Executor in the hands of Chief Justice Roberts, Justice Barrett, and Justice Kavanaugh, all of whom have supported unlimited Presidential removal power.⁶⁵ Justice Barrett, a former clerk for the late Justice Scalia, has openly voiced that she shares his judicial philosophy.⁶⁶ Because Scalia was well known for his criticism of Humphrey’s Executor, some believe Justice Barrett will adopt this stance and side with the others in voting to overturn the precedent.⁶⁷ However, others believe that the stare decisis value and reliance on nine decades of precedent is too valuable for her to overturn.⁶⁸ While Justice Kavanaugh has also expressed distaste for Humphrey’s Executor, some believe his concurrence in In re Aiken County indicates that the stare decisis value of the precedent is also too much for him to overlook.⁶⁹

The Chief Justice could also go either way. Chief Justice Roberts has continuously embraced the idea of a unitary executive and has authored and joined opinions throughout the last two decades that have chipped away at Humphrey’s holding.⁷⁰ However, this also means that Chief Justice Roberts has had multiple opportunities to repudiate the case and has chosen not to. Additionally, while Roberts is a known proponent of the unitary executive, some scholars believe he will not wholly embrace that theory for President Trump, as he likely would not want to be viewed as surrendering to the President’s “takeover of the federal government.”⁷¹

Of course, this is all theory based on the justice’s previous related opinions and not guaranteed. The Roberts Court, especially in recent years, is unpredictable and may surprise us all. For now, the fate of ninety years of precedent may lie in the hands of justices who have spent their careers finding ways to limit Humphry Executor’s holding.

B. The Effect of Overturning Humphrey’s on Independent Administrative Agencies

The constitutionality of independent agencies is attributed to the Supreme Court’s ruling in Humphrey’s Executor.⁷² These agencies were designed to operate with autonomy from the Executive branch so that their decisions rest on expertise and the national interest rather than political motivation.⁷³ Thus, Congress’s tenure protections on the heads of these agencies allow them to carry out this duty. Because the constitutionality of this provision and the agencies themselves lies with Humphrey’s Executor, overturning the precedent would have far-reaching effects on the current administrative state.

Without Humphrey’s Executor, the President would have increased control and power in areas that Congress specifically imposed limitations.⁷⁴ This will also lead to the loss of expertise—as agencies are considered experts in their particular area—and the centralization of power that Congress intended to keep dispersed.⁷⁵ Further, there will be an increased chance of corruption in the agencies, as the threat of removal by the President could shift their focus from what is best for the country to what is best for the President’s agenda—as these are not necessarily one and the same.⁷⁶

The Federal Reserve is a prime example of why independent agencies are necessary, as it controls the nation’s monetary policy and requires political insulation to keep politicians from running “an expansionary monetary policy” that skyrockets inflation and bankrupts Americans.⁷⁷ In the 1970s, the political safeguards surrounding the Federal Reserve failed when President Nixon pressured the agency to lower rates before the 1972 election, resulting in “stagflation”—stagnant economic growth and rampant inflation.⁷⁸ However, the Federal Reserve is not the only place where the effects of overturning Humphrey’s Executor will be observed. Independent agencies play a massive role in modern American life, as they protect everything from our transportation to the products we use, the water and air needed for our survival, and our hard-earned money, all of which will be exposed to risk if Humphrey’s Executor is overturned in favor of greater executive authority.⁷⁹[79]

IV. Conclusion

The fate of Humphrey’s Executor—and independent agencies as we know them—may rest in the hands of a Supreme Court that generally favors a unitary executive. If the Court chooses to overturn the precedent, the administrative state as we know it will disappear, and the American Presidency will once again be granted seemingly unlimited power by the Supreme Court.⁸⁰ Thus, while some consider Humphrey’s precedent dangerous to individual liberty, the precedent set by overruling Humphrey’s is equally dangerous.⁸¹ Humphrey’s Executor may not involve a controversial right that makes an appreciable difference in the average American’s everyday life like Roe v. Wade, but it is equally important, and Americans will surely feel the effects of eliminating independent agencies.⁸²

Overturning Humphrey’s Executor would not be just a simple embrace of the unitary executive but instead would broaden the scope of the executive’s power—not just for President Trump, but for any President that follows—despite ninety years of precedent that says otherwise. This article hopes the Court will consider the stare decisis value associated with Humphrey’s Executor, considering that the administrative state, the scope of executive power, and life as we know it could all drastically change if it does not. Regardless, Wilcox v. Trump is an ideal case for the Court to reconsider the precedent, as it will force it to address Humphrey’s Executor head-on, and this Article is intrigued, and concerned, by how the Court may rule

[1] Tim Dickinson, A Guide to Trump’s Fascist Presidency—From Ignoring Judge to Erasing History, Rolling Stone (March 19, 2025), https://www.rollingstone.com/politics/politics-features/trump-fascist-actions-president-guide-1235299183/.

[2] Humphrey’s Ex’r. v. United States, 295 U.S. 602 (1935).

[3] Kevin Roberts, Mandate for Leadership: The Conservative Promise 560 (Heritage Found., 2023).

[4] See Hayley Durudogan and Michael Sozan, What Is Humphrey’s Executor and Why Should You Care About It?, Ctr. for Am. Progress (Feb. 27, 2025), https://www.americanprogress.org/article/what-is-humphreys-executor-and-why-should-you-care-about-it/.

[5] U.S. Const. Art. II, § 3.

[6] ArtII.S3.3.4 Removal Power as the President’s Primary Means of Supervision, Const. Annotated, https://constitution.congress.gov/browse/essay/artII-S3-3-4/ALDE_00000098/ (last visited Mar. 27, 2025).

[7] Aditya Bamzai & Saikrishma Bangalore Prakash, The Executive Power of Removal, 136, Harv. L. Rev. 1756, 1759 (2023).

[8] See id. at 1758 (“The assertion that Presidents enjoy a constitutional power to remove executive officers implicates one of the oldest constitutional disputes. From debates in the First Congress, to President Andrew Johnson’s impeachment, to the firing of FBI Director James Comey and the criminal investigation of President Donald Trump, removal has played an outsized role in the separation of powers and in the political disputes of the day”).

[9] Humphrey’s Ex’r. v. United States, 295 U.S. 602, 619-20 (1935).

[10] Id. at 620.

[11] Id.

[12] Id. at 619.

[13] Id.

[14] Id.

[15] Id.

[16] Id. at 618.

[17] Id. at 621, 626.

[18] Id. at 632.

[19] Id. at 626.

[20] Id. at 624.

[21] Id. at 628, 631.

[22] See Seila Law LLC v. Consumer Fin. Prot. Bureau, 591 U.S. 197 (2020) (Thomas, J., concurring in part and dissenting in part) (Kagan, J., concurring in part and dissenting in part).

[23] Id.

[24] Id. at 220.

[25] Id. at 222-23.

[26] Id. at 223.

[27] Id. at 224.

[28] Id.

[29] Seila Law, LLC v. Consumer Fin. Prot. Bureau, 591 U.S. 197 (2020) (Kagan, J., concurring in part and dissenting in part).

[30] Id. at 264-65.

[31] Id. at 266.

[32] Id.

[33] Complaint at 3, Wilcox v. Trump, No. 1:25-cv-00334 (D. D.C. Feb. 5, 2025).

[34] Id.

[35] Id.

[36] Id. at 5.

[37] Id. at 4.

[38] Id.

[39] Id.

[40] Id.

[41] Id.

[42] Id. at 5.

[43] Id.

[44] Id. at 5-6.

[45] Id. at 1.

[46] Id. at 6.

[47] A quorum is the minimum number of group or organization officials that must be present for it to carry out its business. Plaintiff’s Motion for Expedited Summary Judgment, Wilcox v. Trump, No. 1:25-cv-003334-BAH, (D. D.C. Feb. 10, 2025).

[48] Defendant’s Cross-Motion for Summary Judgment, Wilcox v. Trump, No. 1:25-cv-003334-BAH, (D. D.C. Feb. 21, 2025).

[49] Id. at 1.

[50] Id. at 9.

[51] Memorandum Opinion, Wilcox v. Trump, No. 1:25-cv-003334-BAH, Doc. 35 at 5 (D.D.C. Mar. 6, 2025); Order Granting Plaintiff’s Motion for Summary Judgement, Wilcox v. Trump, No. 1:25-cv-003334-BAH, (D.D.C. Mar. 6, 2025).

[52] Order Granting Emergency Motion for Stay, Wilcox v. Trump, No. 25-5057 (D.C. Cir. Mar. 28, 2025).

[53] Jacob Knutson, D.C. Appeal Court Reverses Trump’s Firing 2 Independent Federal Board Members, Democracy Docket (Apr.. 7, 2025), https://www.democracydocket.com/news-alerts/trump-court-reverse-dmissals-labor-relations-merit-board/.

[54] Daniel Wiessner and Jonathan Stempel, US appeals court blocks Trump from removing Democrats from labor boards, Reuters (Apr. 7, 2025, 12:04 PM), https://www.reuters.com/world/us/us-appeals-court-blocks-trump-removing-democrats-labor-boards-2025-04-07/.

[55] Kaelan Deese, Humphrey’s Executor: What is the 90-year-old precedent Trump wants overturned?, Denver Gazette (Mar. 12, 2025), https://denvergazette.com/news/nation-world/humphrey-s-executor-what-is-the-90-year-old-precedent-trump-wants-overturned/article_4fda42e5-78f8-555a-bdfc-9a70e519ee03.html.

[56] Josh Blackman, The Hughes Court Repudiated FDR In Humphrey’s Executor, and the Roberts Court Will Repudiate Trump by Maintaining Humphrey’s Executor, Reason (Feb. 5, 2025, 11:26 PM), https://reason.com/volokh/2025/02/05/the-hughes-court-repudiated-fdr-in-humphreys-executor-and-the-roberts-court-will-repudiate-trump-by-maintaining-humphreys-executor/.

[57] Id.

[58] Deese, supra note 59.

[59] Blackman, supra note 60.

[60] See Seila Law LLC v. Consumer Financial Protection Board, 591 U.S. 197, 251 (2020) (Thomas, J., concurring in part and dissenting in part) (“Today, the Court does enough to resolve this case, but in the future, we should reconsider Humphrey’s Executor in toto. And I hope that we will have the will to do so”).

[61] Id. at 239.

[62] John Harrison, The Unitary Executive and the Scope of Executive Power, 126 Yale L. J. Forum 374, 377-80 (2017).

[63] See Seila Law, 591 U.S. at 261 (Kagan, J., concurring in part and dissenting in part).

[64] See Loper Bright Enters. v. Raimondo, 603 U.S. 369, 470-478 (2024) (Kagan, J., dissenting) (“[Stare Decisis] enables people to order their lives in reliance on judicial decisions. And it ‘contributes to the actual and perceived integrity of the judicial process’ by ensuring that those decisions are founded in the law, and not in the ‘personal preferences’ of judges.”).

[65] See Collins v. Yellen, 594 U.S. 220, 256 (2021) (holding that the Recovery Act’s restriction on the President’s ability to remove agency head violated the separation of powers).

[66] Christopher J. Walker and Aaron L. Nielson, Congress’s Anti-Removal Power, 76 Vanderbilt L. Rev 1, 4 (2023).

[67] Id.

[68] Blackman, supra note 60.

[69] Christopher J. Walker, Would a Justice Kavanaugh Overturn Humphrey’s Executor and Declare Independent Agencies Unconstitutional?, Yale J. on Reg. (July 27, 2018), https://www.yalejreg.com/nc/would-a-justice-kavanaugh-overturn-humphreys-executor-and-declare-independent-agencies-unconstitutional/.

[70] See Free Enter. Fund v. Pub. Co. Acct. Oversight Bd., 561 U.S. 477 (2010); Seila Law, LLC v. Consumer Fin. Prot. Bureau, 591 U.S. 197 (2020); United States v. Arthrex, Inc., 594 U.S. 1 (2021); Collins v. Yellen, 594 U.S. 220 (2021).

[71] Blackman, supra note 60.

[72] What does it mean for an agency to be independent?, Protect Democracy (Feb. 5, 205), https://protectdemocracy.org/work/independent-agencies/.

[73] Id.

[74] Id.

[75] Id.

[76] Id.

[77] Id.

[78] Id.; Kim Gettleson & Joe Miller, The perils of a political Federal Reserve, BBC (Dec. 10, 2017), https://www.bbc.com/news/business-42302771.

[79] Id.

[80] See Trump v. United States, 603 U.S. 593 (2024).

[81] See Seila Law LLC v. Consumer Fin. Prot. Bureau, 591 U.S. 197, 251 (2020) (Thomas, J., concurring in part and dissenting in part).

[82] See Blackman, supra note 60.

Cover Photo by Fine Photographics on UnSplash

Autumn Christafore

References

1
Tim Dickinson, A Guide to Trump’s Fascist Presidency—From Ignoring Judge to Erasing History, Rolling Stone (March 19, 2025), https://www.rollingstone.com/politics/politics-features/trump-fascist-actions-president-guide-1235299183/.
2
Humphrey’s Ex’r. v. United States, 295 U.S. 602 (1935).
3
Kevin Roberts, Mandate for Leadership: The Conservative Promise 560 (Heritage Found., 2023).
4
See Hayley Durudogan and Michael Sozan, What Is Humphrey’s Executor and Why Should You Care About It?, Ctr. for Am. Progress (Feb. 27, 2025), https://www.americanprogress.org/article/what-is-humphreys-executor-and-why-should-you-care-about-it/.
5
U.S. Const. Art. II, § 3.
6
ArtII.S3.3.4 Removal Power as the President’s Primary Means of Supervision, Const. Annotated, https://constitution.congress.gov/browse/essay/artII-S3-3-4/ALDE_00000098/ (last visited Mar. 27, 2025).
7
Aditya Bamzai & Saikrishma Bangalore Prakash, The Executive Power of Removal, 136, Harv. L. Rev. 1756, 1759 (2023).
8
See id. at 1758 (“The assertion that Presidents enjoy a constitutional power to remove executive officers implicates one of the oldest constitutional disputes. From debates in the First Congress, to President Andrew Johnson’s impeachment, to the firing of FBI Director James Comey and the criminal investigation of President Donald Trump, removal has played an outsized role in the separation of powers and in the political disputes of the day”).
9
Humphrey’s Ex’r. v. United States, 295 U.S. 602, 619-20 (1935).
10
Id. at 620.
11
Id.
12
Id. at 619.
13
Id.
14
Id.
15
Id.
16
Id. at 618.
17
Id. at 621, 626.
18
Id. at 632.
19
Id. at 626.
20
Id. at 624.
21
Id. at 628, 631.
22
See Seila Law LLC v. Consumer Fin. Prot. Bureau, 591 U.S. 197 (2020) (Thomas, J., concurring in part and dissenting in part) (Kagan, J., concurring in part and dissenting in part).
23
Id.
24
Id. at 220.
25
Id. at 222-23.
26
Id. at 223.
27
Id. at 224.
28
Id.
29
Seila Law, LLC v. Consumer Fin. Prot. Bureau, 591 U.S. 197 (2020) (Kagan, J., concurring in part and dissenting in part).
30
Id. at 264-65.
31
Id. at 266.
32
Id.
33
Complaint at 3, Wilcox v. Trump, No. 1:25-cv-00334 (D. D.C. Feb. 5, 2025).
34
Id.
35
Id.
36
Id. at 5.
37
Id. at 4.
38
Id.
39
Id.
40
Id.
41
Id.
42
Id. at 5.
43
Id.
44
Id. at 5-6.
45
Id. at 1.
46
Id. at 6.
47
A quorum is the minimum number of group or organization officials that must be present for it to carry out its business. Plaintiff’s Motion for Expedited Summary Judgment, Wilcox v. Trump, No. 1:25-cv-003334-BAH, (D. D.C. Feb. 10, 2025).
48
Defendant’s Cross-Motion for Summary Judgment, Wilcox v. Trump, No. 1:25-cv-003334-BAH, (D. D.C. Feb. 21, 2025).
49
Id. at 1.
50
Id. at 9.
51
Memorandum Opinion, Wilcox v. Trump, No. 1:25-cv-003334-BAH, Doc. 35 at 5 (D.D.C. Mar. 6, 2025); Order Granting Plaintiff’s Motion for Summary Judgement, Wilcox v. Trump, No. 1:25-cv-003334-BAH, (D.D.C. Mar. 6, 2025).
52
Order Granting Emergency Motion for Stay, Wilcox v. Trump, No. 25-5057 (D.C. Cir. Mar. 28, 2025).
53
Jacob Knutson, D.C. Appeal Court Reverses Trump’s Firing 2 Independent Federal Board Members, Democracy Docket (Apr.. 7, 2025), https://www.democracydocket.com/news-alerts/trump-court-reverse-dmissals-labor-relations-merit-board/.
54
Daniel Wiessner and Jonathan Stempel, US appeals court blocks Trump from removing Democrats from labor boards, Reuters (Apr. 7, 2025, 12:04 PM), https://www.reuters.com/world/us/us-appeals-court-blocks-trump-removing-democrats-labor-boards-2025-04-07/.
55
Kaelan Deese, Humphrey’s Executor: What is the 90-year-old precedent Trump wants overturned?, Denver Gazette (Mar. 12, 2025), https://denvergazette.com/news/nation-world/humphrey-s-executor-what-is-the-90-year-old-precedent-trump-wants-overturned/article_4fda42e5-78f8-555a-bdfc-9a70e519ee03.html.
56
Josh Blackman, The Hughes Court Repudiated FDR In Humphrey’s Executor, and the Roberts Court Will Repudiate Trump by Maintaining Humphrey’s Executor, Reason (Feb. 5, 2025, 11:26 PM), https://reason.com/volokh/2025/02/05/the-hughes-court-repudiated-fdr-in-humphreys-executor-and-the-roberts-court-will-repudiate-trump-by-maintaining-humphreys-executor/.
57
Id.
58
Deese, supra note 59.
59
Blackman, supra note 60.
60
See Seila Law LLC v. Consumer Financial Protection Board, 591 U.S. 197, 251 (2020) (Thomas, J., concurring in part and dissenting in part) (“Today, the Court does enough to resolve this case, but in the future, we should reconsider Humphrey’s Executor in toto. And I hope that we will have the will to do so”).
61
Id. at 239.
62
John Harrison, The Unitary Executive and the Scope of Executive Power, 126 Yale L. J. Forum 374, 377-80 (2017).
63
See Seila Law, 591 U.S. at 261 (Kagan, J., concurring in part and dissenting in part).
64
See Loper Bright Enters. v. Raimondo, 603 U.S. 369, 470-478 (2024) (Kagan, J., dissenting) (“[Stare Decisis] enables people to order their lives in reliance on judicial decisions. And it ‘contributes to the actual and perceived integrity of the judicial process’ by ensuring that those decisions are founded in the law, and not in the ‘personal preferences’ of judges.”).
65
See Collins v. Yellen, 594 U.S. 220, 256 (2021) (holding that the Recovery Act’s restriction on the President’s ability to remove agency head violated the separation of powers).
66
Christopher J. Walker and Aaron L. Nielson, Congress’s Anti-Removal Power, 76 Vanderbilt L. Rev 1, 4 (2023).
67
Id.
68
Blackman, supra note 60.
69
Christopher J. Walker, Would a Justice Kavanaugh Overturn Humphrey’s Executor and Declare Independent Agencies Unconstitutional?, Yale J. on Reg. (July 27, 2018), https://www.yalejreg.com/nc/would-a-justice-kavanaugh-overturn-humphreys-executor-and-declare-independent-agencies-unconstitutional/.
70
See Free Enter. Fund v. Pub. Co. Acct. Oversight Bd., 561 U.S. 477 (2010); Seila Law, LLC v. Consumer Fin. Prot. Bureau, 591 U.S. 197 (2020); United States v. Arthrex, Inc., 594 U.S. 1 (2021); Collins v. Yellen, 594 U.S. 220 (2021).
71
Blackman, supra note 60.
72
What does it mean for an agency to be independent?, Protect Democracy (Feb. 5, 205), https://protectdemocracy.org/work/independent-agencies/.
73
Id.
74
Id.
75
Id.
76
Id.
77
Id.
78
Id.; Kim Gettleson & Joe Miller, The perils of a political Federal Reserve, BBC (Dec. 10, 2017), https://www.bbc.com/news/business-42302771.
79
Id.
80
See Trump v. United States, 603 U.S. 593 (2024).
81
See Seila Law LLC v. Consumer Fin. Prot. Bureau, 591 U.S. 197, 251 (2020) (Thomas, J., concurring in part and dissenting in part).
82
See Blackman, supra note 60.