Amicus Curiae Brief — Donald J. Trump, President of the United States, et al., Petitioners v. Rebecca Kelly Slaughter

Supreme Court briefOct 17, 2025

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No. 25-332

IN THE

Supreme Court of the United States

DONALD J. TRUMP, PRESIDENT OF THE UNITED STATES,

ET AL.

Petitioners,

REBECCA KELLY SLAUGHTER, ET AL.,

Respondents.

ON WRIT OF CERTIORARI BEFORE JUDGMENT

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF OF AMICUS CURIAE

U.S. SENATOR ERIC SCHMITT

CHAIRMAN OF THE SENATE JUDICIARY

SUBCOMMITTEE ON THE CONSTITUTION

IN SUPPORT OF PETITIONERS

Thomas R. McCarthy

Counsel of Record

J. Michael Connolly

Tiffany H. Bates

Zachary P. Grouev

ANTONIN SCALIA LAW SCHOOL

ADMINISTRATIVE LAW CLINIC

CONSOVOY MCCARTHY PLLC

1600 Wilson Boulevard,

Suite 700

Arlington, VA 22209

(703) 243-9423

tom@consovoymccarthy.com

October 17, 2025

Counsel for Amicus Curiae

TABLE OF CONTENTS

Table of Contents ........................................................ i

Table of Authorities.................................................... ii

Interest of Amicus Curiae .......................................... 1

Introduction and Summary of the Argument ........... 2

Argument .................................................................... 8

I. Humphrey’s is anti-constitutional .................. 9

II. Humphrey’s should be overruled .................. 13

A. Humphrey’s error was egregious ............. 13

B. Humphrey’s was poorly reasoned when

it was decided and that reasoning has

not aged well............................................. 15

C. As understood today, Humphrey’s is

unworkable ............................................... 16

D. Humphrey’s has had pernicious effects

on the law ................................................. 17

E. Humphrey’s has not engendered

meaningful reliance interests .................. 20

Conclusion ................................................................ 24

TABLE OF AUTHORITIES

Cases

Abramowitz v. Lake,

2025 WL 2480354 (D.D.C. Aug. 28) ....................... 7

Bowsher v. Synar,

478 U.S. 714 (1986) ......................................... 12, 15

Boyle v. Trump,

2025 WL 1677099 (D. Md. June 13) ....................... 7

CFPB v. Cmty. Fin. Servs. Ass’n of Am., Ltd.,

601 U.S. 416 (2024) ................................................. 8

City of Arlington v. FCC,

569 U.S. 290 (2013) ..................................... 6, 12, 15

Cochran v. SEC,

20 F.4th 194 (5th Cir. 2021) ........................... 14, 22

Collins v. Yellen,

594 U.S. 220 (2021) ............................8, 9, 13, 20, 23

Dellinger v. Bessent,

766 F.Supp.3d 57 (D.D.C. 2025) ............................. 7

Dobbs v. Jackson Women’s Health Org.,

597 U.S. 215 (2022) ........................13, 15, 16, 17, 20

FCC v. Consumers’ Rsch.,

145 S.Ct. 2482 (2025) .......................2, 18, 19, 22, 23

FTC v. Ruberoid Co.,

343 U.S. 470 (1952) ................................... 12, 15, 22

Free Enter. Fund v. PCAOB,

561 U.S. 477 (2010) ....................1, 3, 8, 9, 14, 16, 20

Gamble v. United States,

587 U.S. 678 (2019) ............................................... 13

iii

Grundmann v. Trump,

770 F.Supp.3d 166 (D.D.C. 2025) ........................... 7

Harris v. Bessent,

775 F.Supp.3d 86 (D.D.C. 2025) ............................. 7

Humphrey’s Ex’r v. United States,

295 U.S. 602 (1935) ...................2, 3, 5, 6, 7, 8, 9, 12,

13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24

Lamb’s Chapel v.

Ctr. Moriches Union Free Sch. Dist.,

508 U.S. 384 (1993) .......................................... 23-24

LeBlanc v. PCLOB,

784 F.Supp.3d 1 (D.D.C. 2025) ......................... 7, 18

Loper Bright Enters. v. Raimondo,

603 U.S. 369 (2024) ....................1, 13, 20, 21, 23, 24

Morrison v. Olson,

487 U.S. 654 (1988) ..................................... 6, 12, 15

Myers v. United States,

272 U.S. 52 (1926) ............................3, 5, 8, 9, 13, 21

NYSRPA v. Bruen,

597 U.S. 1 (2022) ..................................................... 8

Parsons v. United States,

167 U.S. 324 (1897) ........................................... 4, 17

Perlmutter v. Blanche,

2025 WL 2627965 (D.C. Cir. Sept. 10) ................... 7

Ramos v. Louisiana,

590 U.S. 83 (2020) ................................................. 13

Seila Law LLC v. CFPB,

591 U.S. 197 (2020) .......................2, 3, 5, 7, 8, 9, 10,

11, 12, 13, 15, 20, 21, 22

Shurtleff v. City of Boston,

596 U.S. 243 (2022) ......................................... 22, 23

Shurtleff v. United States,

189 U.S. 311 (1903) ............................................... 17

Trump v. Slaughter,

2025 WL 2692050 (U.S. Sept. 22) ........................... 8

Trump v. United States,

603 U.S. 593 (2024) ................................. 2, 3, 11, 14

U.S. Inst. of Peace v. Jackson,

783 F.Supp.3d 316 (D.D.C. 2025) ........................... 7

United States v. Arthrex, Inc.,

594 U.S. 1 (2021) ..................................................... 2

United States v. Rahimi,

602 U.S. 680 (2024) ................................................. 8

Wiener v. United States,

357 U.S. 349 (1958) ......................................... 17, 18

Wilcox v. Trump,

775 F.Supp.3d 215 (D.D.C. 2025) ........................... 7

Statutes, Rules and Other Authorities

Sup. Ct. R. 37.6........................................................... 1

1 Annals of Cong. 463 (1789) (J. Madison) .............. 11

1 Annals of Cong. 511 (1789) (J. Vining) ............. 4, 19

Letter from James Madison to Thomas Jefferson

(June 30, 1789), 16 Documentary History of the

First Federal Congress 893 (2004) ......................... 3

J. Marini, Unmasking the Administrative State—

The Crisis of American Politics in the TwentyFirst Century, 27 (2019) ........................................ 14

Nachmany, The Original FTC, 77 Ala. L. Rev.

(forthcoming 2025), perma.cc/LKD4-XYJ4 ...... 6, 23

J.M. Payne, Taken for Granted? SEC Implied ForCause Removal Protection and Its Implications,

Yale J. Reg. Notice & Comment (June 24, 2022),

perma.cc/4BBW-SAUL.......................................... 18

J. Postell, Bureaucracy in America—The Administrative State’s Challenge to Constitutional Government, 86 (2017) .................................... 3, 4, 5, 19

Sen. E. Schmitt, Foreword—The Post-Chevron

Working Group Report in Action: Reclaiming the

Constitution from the Administrative State, Yale

J. Reg. Notice & Comment (Oct. 13, 2025),

perma.cc/672B-3JRW ........................................ 1, 19

Sen. E. Schmitt, Post-Chevron Working Group Report, 13 Harv. J.L. & Pub. Pol’y Per Curiam, 1819 (Summer 2025), perma.cc/8XVT-YYZS .......... 1-2

The Federalist No. 48, 332 (J. Madison) ............. 9, 10

The Federalist No. 51, 351 (J. Cook ed. 1961)

(J. Madison) ....................................................... 9, 10

The Federalist No. 70, 471 (A. Hamilton) ......... 10, 11

L. White, The Federalists: A Study in Administrative History, 1789-1801, 21 n.20 (N.Y.: Free

Press paperback ed., 1965) ..................................... 4

INTEREST OF AMICUS CURIAE1

Amicus curiae is United States Senator Eric

Schmitt. Senator Schmitt represents Missouri in Congress and is Chairman of the Senate Judiciary Committee Subcommittee on the Constitution. The Subcommittee’s jurisdiction includes separation-of-powers issues like the important Article II question presented here. It also has significant oversight responsibilities—a function exercised most effectively when

the entire Executive Branch is accountable to a President with whom “the buck stops.” Free Enter. Fund v.

PCAOB, 561 U.S. 477, 493 (2010).

Senator Schmitt has been a leader in Congress’s

ongoing effort to “rebuild the constitutional order we

were meant to inherit from our Framers.” Sen. E.

Schmitt, Foreword—The Post-Chevron Working

Group Report in Action: Reclaiming the Constitution

from the Administrative State, Yale J. Reg. Notice &

Comment (Oct. 13, 2025), perma.cc/672B-3JRW. After

this Court’s landmark decision in Loper Bright, Senator Schmitt produced a detailed report discussing further reforms to the administrative state. See id. One

such reform was the Take Care Act, which would reaffirm the President’s removal power as a “crucial step

in retrieving the unconstitutional authority wielded

by agencies that are currently protected from the political processes of accountability intended by the Constitution.” Sen. E. Schmitt, Post-Chevron Working

1 Pursuant to this Court’s Rule 37.6, counsel for amicus curiae certify that this brief was not authored in whole or in part by

counsel for any party and that no person or entity other than amicus curiae or its counsel has made a monetary contribution to the

preparation or submission of this brief.

Group Report, 13 Harv. J.L. & Pub. Pol’y Per Curiam,

18-19 (Summer 2025), perma.cc/8XVT-YYZS.

Amicus submits this brief to urge the Court to

overrule whatever is left of Humphrey’s Executor—reaffirming the President’s authority to remove Executive Branch officials who wield power in his name and

restoring a constitutional head to the infamous “headless Fourth branch.” FCC v. Consumers’ Rsch., 145

S.Ct. 2482, 2517 (2025) (Kavanaugh, J., concurring).

INTRODUCTION AND SUMMARY

OF THE ARGUMENT

“Under our Constitution, the ‘executive Power’—

all of it—is ‘vested in a President.’” Seila Law LLC v.

CFPB, 591 U.S. 197, 203 (2020). As the head of the

Executive Branch, “[t]he President’s duties are of ‘unrivaled gravity and breadth.’” Trump v. United States,

603 U.S. 593, 607 (2024). Chief among them, “he must

‘take Care that the Laws be faithfully executed,’ and

he bears responsibility for the actions of the many departments and agencies within the Executive

Branch.” Id.

“The Framers recognized, of course, that ‘no single

person could fulfill [this] responsibility alone, [and] expected that the President would rely on subordinate

officers for assistance.’” United States v. Arthrex, Inc.,

594 U.S. 1, 11 (2021). Thus today, “thousands of officers wield executive power on behalf of the President in

the name of the United States.” Id. This “power acquires its legitimacy and accountability to the public

through ‘a clear and effective chain of command’ down

from the President, on whom all the people vote.” Id.

To ensure that this chain of command remains unbroken, the Constitution “confers on the President ‘the

general administrative control of those executing the

laws.’” Free Enter. Fund, 561 U.S. at 492 (quoting Myers v. United States, 272 U.S. 52, 163-64 (1926)). Put

differently, because “[t]he buck stops with the President,” he “must have some ‘power of removing those

for whom he can not continue to be responsible.’” Id.

(quoting Myers, 272 U.S. at 117). This power flows

from the Constitution, so it is “‘conclusive and preclusive.’” Trump, 603 U.S. at 607; see also Humphrey’s

Ex’r v. United States, 295 U.S. 602, 631 (1935) (explaining that Myers recognized an “illimitable power

of removal” for “executive officers”).

The President’s indefeasible removal power “has

long been confirmed by history and precedent.” Seila

Law, 591 U.S. at 214. After extensive debate in the

First Congress, “[t]he view that ‘prevailed, as most

consonant to the text of the Constitution’ and ‘to the

requisite responsibility and harmony in the Executive

Department,’ was that the executive power included a

power to oversee executive officers through removal.”

Id. (quoting Letter from James Madison to Thomas

Jefferson (June 30, 1789), 16 Documentary History of

the First Federal Congress 893 (2004)). One prescient

point in the debate came from Representative John

Vining of Delaware, who “argued that insulating administrators from the president’s power to fire them

would create a monster with multiple, independent

heads.” J. Postell, Bureaucracy in America—The Administrative State’s Challenge to Constitutional Government, 86 (2017). Vining foresaw that administrative independence would result in “a monster of a peculiar enormity” with “two heads, three heads, or four

heads” or “without any head at all.” Id. (quoting 1 Annals of Cong. 511 (1789) (J. Vining)).

Although the issue continued to be hotly debated,

John Adams eventually cast a tiebreaking vote in the

Senate to adopt language drafted by the pro-presidential-removal faction, thus reaching the “Decision of

1789.” Id. at 88. This outcome “convinced prominent

politicians and jurists in the early republic that the issue was settled.” Id. One such convert was William

Smith, who had been “prominent in opposing the president’s constitutional removal power” but later “wrote

to James McHenry in 1797 that ‘[i]f you look into the

Debates of Congress you will find this subject fully

handled; I was on that occasion on the wrong & Madison [who championed the President’s constitutional

removal power] on the right side.’” Id. (quoting from

citation in L. White, The Federalists: A Study in Administrative History, 1789-1801, 21 n.20 (N.Y.: Free

Press paperback ed., 1965)). Two others were James

Kent and Joseph Story. Id. at 88 & nn.137-38. Thus,

even those who initially opposed interpreting Article

II to give the President a constitutional power of removal later “recognized that the decision of congress

in 1789, and the universal practice of the government

under it, had settled the question beyond any power of

alteration.” Parsons v. United States, 167 U.S. 324,

330 (1897).

The Executive Branch held the same view. “In

practice, early presidents operated as if they possessed

the unconstrained discretion to remove subordinate

officers at will.” Postell, Bureaucracy in America at 88.

These early “practices established a relatively clear

precedent: the president had the constitutional power

to remove officials at will, but this power should be

used hesitatingly and sparingly” as “a matter of policy.” Id. Later, “[e]ach and every President from Andrew Jackson to James Buchanan … operated under

the presumption that the Constitution gives exclusive

removal powers to the president, and that the power

to remove administrative officials could be exercised

at will.” Id. at 107. So did the lawyers who advised

them. Id. at 107 & nn.50-51. “The consensus among

presidents and Attorneys General, whether Whig or

Democrat, was that the First Congress had construed

the Constitution as providing the president with sole

removal power, and that this construction of the Constitution was binding on future situations.” Id. at 107.

In 1926, this Court reaffirmed the President’s

“prerogative to remove executive officials” after “conduct[ing] an exhaustive examination of the First Congress’s determination in 1789, the views of the Framers and their contemporaries, historical practice, and

[judicial] precedents up until that point.” Seila Law,

591 U.S. at 214. “Just as the President’s ‘selection of

administrative officers is essential to the execution of

the laws,’” the Constitution secures the President’s

power to remove Executive Branch officials when they

have lost his confidence. Id. Any other rule “‘would

make it impossible for the President to take care that

the laws be faithfully executed.’” Id. (cleaned up).

In a decision “considered by many at the time [to

be] the product of an activist, anti-New Deal Court

bent on reducing the power of President Franklin Roosevelt,” Humphrey’s Executor “gutt[ed]” Myers’ “carefully researched and reasoned 70–page opinion” in “six

quick pages devoid of textual or historical precedent

for the novel principle it set forth.” Morrison v. Olson,

487 U.S. 654, 724-26 (1988) (Scalia, J., dissenting).

Reasoning that the 1935 Federal Trade Commission

performed “predominantly quasi judicial and quasi

legislative” functions, Humphrey’s held that Congress

could grant removal protections to an FTC Commissioner as an officer “who occupies no place in the executive department and who exercises no part of the executive power vested by the Constitution in the President.” 295 U.S. at 624, 628.

Since May 27, 1935, this Court has gradually repudiated Humphrey’s reasoning and significantly narrowed its holding. Rightly so. Humphrey’s conclusion

that the FTC (or any similarly structured agency) is

not meaningfully a part of the Executive Branch was

wrong the day it was decided. See id. at 628 n.1 (citing

a provision of the 1935 FTC’s organic statute “authoriz[ing] the President to direct an investigation and

report by the commission in relation to alleged violations of the anti-trust acts”). It is even more wrong today. See Nachmany, The Original FTC, 77 Ala. L. Rev.

(forthcoming 2025), perma.cc/LKD4-XYJ4 (arguing

that the modern FTC has outgrown Humphrey’s dubious characterization). And rather than “quasi” legislative and judicial power (which cannot be delegated at

all), regulatory functions like the FTC’s “are exercises

of—indeed, under our constitutional structure … must

be exercises of—the [President’s] ‘executive Power.’”

City of Arlington v. FCC, 569 U.S. 290, 304 n.4 (2013).

Along the way, Humphrey’s defenders have conceded that there is no real distinction between singleheaded agencies like the CFPB, which are subject to

at-will removal, and multi-member commissions like

the FTC, which (arguably) are not. Seila Law, 591 U.S.

at 285 (Kagan, J., dissenting in part) (“The CFPB

wields the same kind of power as the FTC and similar

agencies.”); id. at 293 (“More powerful control mechanisms are needed (if anything) for commissions.”). The

result has been confusion and disarray as lower courts

try to apply whatever remains of Humphrey’s to various Executive Branch officials and regulatory agencies.2

Because this case involves the FTC, (at least nominally) the same agency that was at issue in Humphrey’s, there are fewer grounds to distinguish the removal protections invoked today from the ones

Humphrey’s upheld in 1935. The only arguable distinction left—that the modern FTC has outgrown its

1935 characterization—would so drastically narrow

Humphrey’s as to effectively overrule it for anyone not

an executor to the estate of a former FTC Commissioner named Humphrey. This Court should take the

more direct approach and hold that there is no “head-

2 E.g., Wilcox v. Trump, 775 F.Supp.3d 215 (D.D.C. 2025)

(NLRB); U.S. Inst. of Peace v. Jackson, 783 F.Supp.3d 316

(D.D.C. 2025) (Institute of Peace); Perlmutter v. Blanche, 2025

WL 2627965 (D.C. Cir. Sept. 10) (Register); LeBlanc v. PCLOB,

784 F.Supp.3d 1 (D.D.C. 2025) (Privacy and Civil Liberties Oversight Board); Harris v. Bessent, 775 F.Supp.3d 86 (D.D.C. 2025)

(Merit Systems Protection Board); Grundmann v. Trump, 770

F.Supp.3d 166 (D.D.C. 2025) (Federal Labor Relations Authority); Dellinger v. Bessent, 766 F.Supp.3d 57 (D.D.C. 2025) (Office

of Special Counsel); Boyle v. Trump, 2025 WL 1677099 (D. Md.

June 13) (Consumer Product Safety Commission); Abramowitz v.

Lake, 2025 WL 2480354 (D.D.C. Aug. 28) (Voice of America).

less Fourth Branch” exception to the President’s Article II removal power. Humphrey’s Executor should be

overruled.

ARGUMENT

To answer a question like “[w]hether the statutory

removal protections for members of the Federal Trade

Commission violate the separation of powers,” Trump

v. Slaughter, 2025 WL 2692050 (U.S. Sept. 22), this

Court looks to “the Constitution’s text, the history

against which that text was enacted, and congressional practice immediately following ratification,”

CFPB v. Cmty. Fin. Servs. Ass’n of Am., Ltd., 601 U.S.

416, 426 (2024). Most of the time, these sources resolve

the question. Id. But if there is lingering ambiguity,

the Court can also look to “‘[l]ong settled and established practice,’” sometimes called “tradition,” as confirmatory evidence. Id. at 442 (Kagan, J., concurring);

see also NYSRPA v. Bruen, 597 U.S. 1, 36-37 (2022);

United States v. Rahimi, 602 U.S. 680, 717 (2024) (Kavanaugh, J., concurring) (articulating a similar “historical approach”).

Using this approach, this Court has already held

that Article II gives the President an indefeasible

power to remove most Executive Branch officials. See,

e.g., Myers, 272 U.S. at 163-64; Free Enter. Fund, 561

U.S. at 492-93; Seila Law, 591 U.S. at 213-15; Collins

v. Yellen, 594 U.S. 220, 256 (2021).

Though these decisions effectively confined

Humphrey’s to its facts, they never outright overruled

it because doing so was unnecessary to reach the correct result as a matter of original meaning. That is not

true here. Everyone agrees that FTC Commissioners

are Executive Branch officials who would otherwise be

removable under Myers, Free Enterprise Fund, Seila

Law, and Collins. And this Court’s precedents grounding the President’s removal power in constitutional

text and structure, history, and ratification-era practice speak for themselves on the merits. Humphrey’s

narrow holding is all that is left.

Faced with a question it cannot avoid, this Court

must consider whether Humphrey’s Executor’s exception to the President’s removal power is consistent

with the Constitution. It is not.

Humphrey’s Executor is anti-constitutional.

The Framers of our Constitution “‘recognized that,

in the long term, structural protections against abuse

of power were critical to preserving liberty.’” Seila

Law, 591 U.S. at 223. “Their solution to governmental

power and its perils was simple: divide it.” Id. On one

level, that meant “‘split[ting] the atom of sovereignty’”

between the states and a national government. Id. On

another, separating the “‘powers of the new Federal

Government into three defined categories, Legislative,

Executive, and Judicial.’” Id. Thus, “the power surrendered by the people [was] first divided between two

distinct governments, and then the portion allotted to

each subdivided among distinct and separate departments.” The Federalist No. 51, 351 (J. Cook ed. 1961)

(J. Madison).

The Framers understood from experience that “to

mark, with precision, the boundaries of these departments” would be meaningless if the Constitution provided only “parchment barriers against the encroaching spirit of power.” The Federalist No. 48, 332-33 (J.

Madison). “A dependence on the people” was the “primary controul,” bolstered by “auxiliary precautions”

that made a “policy of supplying, by opposite and rival

interests, the defect of better motives.” Federalist No.

51 at 349. In other words, to protect against the tendency towards a “gradual concentration” of power, the

Framers ensured that each branch would have the

“necessary constitutional means, and personal motives, to resist encroachments of the others.” Id.

For the legislative power, the Framers set ambition against ambition by bifurcating the federal Legislature into multiple chambers each made up of multiple members. Seila Law, 591 U.S. at 223. By dividing

and subdividing power among many officials, each

with different constituencies, the Framers sought to

temper the natural tendency towards encroachment

they observed in the many state governments that had

relied on “a mere demarkation on parchment” to protect the separation of powers. See Federalist No. 48 at

338.

The Executive Branch was a “stark departure

from all this division.” Seila Law, 591 U.S. at 223. “As

the weight of the legislative authority” had required

that it be divided, “the weakness of the executive” required “that it should be fortified.” Federalist No. 51

at 350. The goal was to foster “[e]nergy,” considered “a

leading character in the definition of good government.” The Federalist No. 70, 471 (A. Hamilton). Energy in the executive was thought to be (and remains)

“essential” to “the protection of the community,” “the

steady administration of the laws,” “the protection of

property” and “the security of liberty.” Id.

The Framers knew that “unity” was a key “ingredien[t]” to an energetic executive. Id. at 472. They also

knew that unity could be destroyed, “either by vesting

the [Executive] power in two or more magistrates of

equal dignity and authority; or by vesting it ostensibly

in one man, subject, in whole or in part, to the control

and co-operation of others, in the capacity of counsellors to him.” Id. at 472-73. Thus, to “‘encourage energetic, vigorous, decisive, and speedy execution of the

laws,’” the Framers “‘plac[ed] in the hands of a single,

constitutionally indispensable, individual the ultimate authority that, in respect to the other branches,’”

they had left divided. Trump, 603 U.S. at 610.

In the “‘constitutional scheme’” that all this history ultimately produced, the President “‘occupies a

unique position … as the only person who alone composes a branch of government.’” Id. (cleaned up); see

also id. at 610-11 (explaining that as a singular official, the President was given “‘supervisory and policy

responsibilities of utmost discretion and sensitivity’”).

This unique position comes from Article II’s Vesting

Clause, which grants the President “all of” the “executive Power.” Seila Law, 591 U.S. at 203. Together with

the President’s duty to “take Care that the Laws be

faithfully executed” under Article II, §3, the Court has

explained that the Vesting Clause “generally includes

the ability to remove executive officials, for it is ‘only

the authority that can remove’ such officials that they

‘must fear and, in the performance of [their] functions,

obey.’” Id. at 213-14; see also 1 Annals of Cong. 463

(1789) (J. Madison) (“[I]f any power whatsoever is in

its nature Executive, it is the power of appointing,

overseeing, and controlling those who execute the

laws.”).

Humphrey’s endorsement of statutory removal

protections for “independent” agencies is flatly inconsistent with the President’s power under the Vesting

and Take Care Clauses. Indeed, Humphrey’s itself

conceded that its rule could not apply to a “purely executive office[r]” who exercised any “part of the executive power vested by the Constitution in the President.” 295 U.S. at 628. The 1935 FTC was different,

Humphrey’s said, because it exercised “quasi legislative and quasi judicial” power and thus “occupie[d] no

place in the executive department.” Id. at 624, 628.

But that distinction was always incorrect as a matter

of fact. See id. at 628 n.1 (identifying a subsection in

the FTC’s organic statute that allowed the President

to order an investigation). And it was harshly criticized and eventually rejected in the intervening decades as a matter of constitutional theory. See, e.g.,

FTC v. Ruberoid Co., 343 U.S. 470, 487-88 (1952)

(Jackson, J., dissenting); Bowsher v. Synar, 478 U.S.

714, 761 (1986) (White, J., dissenting); Morrison, 487

U.S. at 689 n.28; City of Arlington, 569 U.S. at 304 n.4;

J.A.132 (Opinion of Rao, J.) (explaining that this

Court has “eviscerated [Humphrey’s] reasoning and

rejected attempts to extend it to ‘new situation[s]’”).

In sum, Article II vests the entire executive power,

including an indefeasible power to remove Executive

Branch officials, in the President alone. Seila Law,

591 U.S. at 213-15. “To hold otherwise would make it

impossible for the President to take care that the laws

be faithfully executed.” Id. at 214 (cleaned up).

Humphrey’s lone justification for departing from this

general rule—that FTC Commissioners are not executive branch officials—was wrong from the start. As an

original matter and by the logic of this Court’s decisions in Myers, Free Enterprise Fund, Seila Law, and

Collins, Humphrey’s was wrongly decided.

II. Humphrey’s should be overruled.

When this Court determines that one of its precedents is wrong, it considers whether the doctrine of

stare decisis nevertheless “counsels continued acceptance” of the erroneous decision. Dobbs v. Jackson

Women’s Health Org., 597 U.S. 215, 263 (2022).

In Dobbs, the Court analyzed this question by reference to five factors. Id. at 268 (identifying “the nature of [the] error, the quality of [the erroneous decision’s] reasoning, the ‘workability’ of the rules [it] imposed on the country, [the decision’s] disruptive effect

on other areas of the law, and the absence of concrete

reliance” as relevant).3 Using those factors (or any others) Humphrey’s unjustified encroachment on the

President’s removal power is ripe for reconsideration.

A. Humphrey’s error was egregious.

“An erroneous interpretation of the Constitution is

always important, but some are more damaging than

others.” Dobbs, 597 U.S. at 268. Humphrey’s has been

one of the worst.

3 Several Justices have explained their individual views on

stare decisis in similar terms. See, e.g., Gamble v. United States,

587 U.S. 678, 717-23 (2019) (Thomas, J., concurring); Ramos v.

Louisiana, 590 U.S. 83, 115-24 (2020) (Kavanaugh, J., concurring

in part); Loper Bright Enters. v. Raimondo, 603 U.S. 369, 416-27

(2024) (Gorsuch, J., concurring). Whatever the precise standard,

the Court should overrule Humphrey’s Executor.

The separation of powers is the “virtue of our Constitution.” Cochran v. SEC, 20 F.4th 194, 214 (5th Cir.

2021) (en banc) (Oldham, J., concurring). And the

President’s pride of place at the top of the Executive

Branch is one of that Constitution’s distinguishing

features. Trump, 603 U.S. at 610. The Framers considered and rejected alternatives that would have led

to a less energetic executive because they knew that

the opposite was necessary to resist encroachment and

ultimately to protect liberty. Cf. Free Enter. Fund, 561

U.S. at 501.

Rather than even try to comply with the Constitution that the Framers drafted and the people ratified,

Humphrey’s based its ruling on a desire to supplant

the Constitution in pursuit of greater efficiency. Cf.

Cochran, 20 F.4th at 218 (Oldham, J., concurring).

Progressive Era thinkers like Woodrow Wilson “fundamentally disagreed with the Founders’ vision.” Id.

at 215. They “thought the accumulation of all powers

into one set of hands was—far from a vice—a virtue.

And they wanted those all-powerful hands connected

to an administrative agency, far away from the three

branches of government the Founders worked so hard

to create, separate, and balance.” Id. “[M]ost of all,

[they] wanted power as far away from democracy and

universal suffrage as possible.” Id. The result was an

administrative state (which Humphrey’s insulates

from democratic accountability) that has “undermined

the capacity of our institutions to pursue the public interest.” J. Marini, Unmasking the Administrative

State—The Crisis of American Politics in the TwentyFirst Century, 27 (2019).

Humphrey’s utter disregard for the Framers put it

on a “collision course with the Constitution from the

day it was decided.” Dobbs, 597 U.S. at 268. And although the Court has construed it narrowly, the decision still “poses a direct threat to our constitutional

structure and, as a result, the liberty of the American

people.” Seila Law, 197 U.S. at 239 (Thomas, J., concurring in part). Such an error “cannot be allowed to

stand.” Dobbs, 597 U.S. at 269.

B. Humphrey’s was poorly reasoned when it

was decided and that reasoning has not

aged well.

The quality of Humphrey’s reasoning has been critiqued as uniquely poor, especially considering that

Myers produced a “carefully researched and reasoned

70–page opinion” from which to start just ten years before. Morrison, 487 U.S. at 724-26 (Scalia, J., dissenting).

Rather than engage with Chief Justice Taft’s exposition of constitutional text and structure, history,

and practice, Humphrey’s “gutt[ed]” Myers in “six

quick pages devoid of textual or historical precedent

for the novel principle it set forth.” Id. The distinction

it attempted to draw between “purely executive officers” and independent agencies based on “quasi legislative” and “quasi judicial” power has been overwhelmingly rejected. See, e.g., Ruberoid Co., 343 U.S.

at 487 (Jackson, J., dissenting); Bowsher, 478 U.S. at

761 (White, J., dissenting); Morrison, 487 U.S. at 689

n.28; City of Arlington, 569 U.S. at 304 n.4; J.A.132

(Opinion of Rao, J.). Without this debunked “philosophy,” Humphrey’s has no reasoning at all other than a

vague sense that independent agencies are a good idea

as a matter of policy. But the “‘fact that a given law or

procedure is efficient, convenient, [or] useful in facilitating functions of government, standing alone, will

not save it if it is contrary to the Constitution, for convenience and efficiency are not the primary objectives—or the hallmarks—of democratic government.’”

Free Enter. Fund, 561 U.S. at 499 (cleaned up).

Humphrey’s “was more than just wrong. It stood

on exceptionally weak grounds.” Dobbs, 597 U.S. at

270.

C. As understood today, Humphrey’s is unworkable.

“[A]nother important consideration in deciding

whether a precedent should be overruled is whether

the rule it imposes is workable—that is, whether it can

be understood and applied in a consistent and predictable manner.” Id. at 280-81. One need only look to the

proliferation of different tests and analyses courts

have deployed in attempts to draw meaning from the

dessicated husk of Humphrey’s “philosophy,” supra

n.2, to see that the decision “has scored poorly on the

workability scale,” Dobbs, 597 U.S. at 281.

There is no principled way for courts to distinguish

one agency from another based on Humphrey’s actual

reasoning, since that has been bad law for decades. So

courts are left to conduct administrative seances—relying on vague indicators of congressional intent and

factual distinctions that have nothing to do with

whether an Executive Branch agency (which is always

conceded and really ought to decide the case) is exercising executive power in the relevant sense. “Plucked

from nowhere,” these vague considerations seem “calculated to perpetuate give-it-a-try litigation” from disgruntled former Executive Branch officials. Dobbs,

597 U.S. at 286 (cleaned up).

As long as Humphrey’s exists, opportunistic litigants will continue to invoke the decision, and courts

will struggle to apply it. “Continued adherence to [this

unworkable precedent] would undermine, not advance, the ‘evenhanded, predictable, and consistent

development of legal principles’” on which stare decisis

is premised. Id.

D. Humphrey’s has had pernicious effects on

the law.

That Humphrey’s has “led to the distortion of

many important but unrelated legal doctrines … provides further support for overruling” it. Id.

1. By permitting encroachment on the President’s

removal power based on the dubious notion of quasilegislative or quasi-judicial agencies capable of operating outside the Executive Branch, Humphrey’s

paved the way for future courts to rely on the same

“philosophy” to imply removal protections even when

“Congress said nothing about it.” Wiener v. United

States, 357 U.S. 349, 356 (1958). Wiener endorsed a

freewheeling functionalist method of statutory interpretation without regard to the text or the significant

body of prior case law inferring at-will removal from

congressional silence. See Parsons, 167 U.S. at 338-39

(construing a statute providing for a term of years to

permit at-will removal); Shurtleff v. United States, 189

U.S. 311, 317 (1903) (“[I]t would be a mistaken view to

hold that the mere specification in the statute of some

causes for removal thereby excluded the right of the

President to remove for any other reason which he,

acting with a due sense of his official responsibility,

should think sufficient.”).

Courts tasked with applying this vague test for

implied good-cause removal have been befuddled ever

since, in no small part because its animating “philosophy of Humphrey’s Executor” was rejected long ago.

See, e.g., Leblanc, 784 F.Supp.3d at 24-30 (inferring

removal protections for members of the United States

Privacy and Civil Liberties Oversight Board); J.M.

Payne, Taken for Granted? SEC Implied For-Cause

Removal Protection and Its Implications, Yale J. Reg.

Notice & Comment (June 24, 2022), perma.cc/4BBWSAUL (critiquing the widespread assumption, based

on Wiener, that SEC Commissioners enjoy removal

protection).

2. Switching gears to the Constitution, Humphrey’s has created more problems than it ever purported

to solve. “[I]ndependent agency heads are not elected

by the people and are not accountable to the people for

their policy decisions.” Consumers’ Rsch., 145 S.Ct. at

2517 (Kavanaugh, J., concurring). These powerful bureaucrats “sit uncomfortably at the outer periphery of

the Executive Branch.” Id. And because “when Congress delegates authority to an independent agency,

no democratically elected official is accountable,”

those harmed by an independent agency’s poor decisions lack anyone to “blame and hold responsible.” Id.

at 2517-18.

In truth (at least under Humphrey’s), independent

agencies can be said to belong to “a monster of a pecu-

liar enormity … without any head at all.” Postell, Bureaucracy in America at 86 (quoting 1 Annals of Cong.

511 (1789) (J. Vining)). And although Humphrey’s

pitched removal protections for such agencies as a tool

for checking the President, the practical result has

been to aid the “gradual abdication of legislative and

judicial powers” by incentivizing Congress to pass the

buck to faceless bureaucrats on difficult or intractable

issues. Schmitt, Post-Chevron Working Group Report

at 25.

The resulting “system of disembodied independent

agencies with enormous power over the American people and American economy” works “in substantial tension with the principle of democratic accountability incorporated into the Constitution’s text and structure,

as well as historical practice and foundational Article

II precedents.” Consumers’ Rsch., 145 S.Ct. at 2518

(Kavanaugh, J., concurring). As a result, some have

suggested “apply[ing] a more stringent version of the

nondelegation doctrine to delegations to independent

agencies.” Id. To be clear, overturning Humphrey’s

would not mitigate the need for this Court and Congress to work together to strengthen and revitalize the

nondelegation doctrine. See Schmitt, Post-Chevron

Working Group Report at 24-26. But it would eliminate one of the most noxious forms of delegation and

move one step closer to restoring the constitutional accountability in government that the Framers demanded.

“When vindicating a doctrinal innovation requires

courts to engineer exceptions to longstanding background rules, the doctrine ‘has failed to deliver the

‘principled and intelligible’ development of the law

that stare decisis purports to secure.’” Dobbs, 597 U.S.

at 287. That maintaining whatever is left of Humphrey’s would require such reverse engineering counsels

in favor of overruling it once and for all.

E. Humphrey’s has not engendered meaningful reliance interests.

Allowing Congress to enact removal protections

for certain Executive Branch officials does not implicate the “[t]raditional reliance interests” that this

Court sometimes considers. Id.

Unlike a decision affecting First or Second Amendment rights, overruling Humphrey’s would individually affect, at most, only the comparatively few Americans who work for the Executive Branch and enjoy

statutory removal protection. Only a fraction of that

fraction falls within the Court’s exceedingly narrow

characterization of Humphrey’s after Free Enterprise

Fund, Seila Law, and Collins. And for those to whom

overruling Humphrey’s would make a legal difference,

there is still no guarantee that doing so will upset existing arrangements. The President has always been

able to remove executive officials “for cause,” a capacious standard properly understood; and the possibility of at-will removal does not automatically imply its

immediate use.

“Nor has [Humphrey’s] been the sort of ‘stable

background rule’ that fosters meaningful reliance.”

Loper Bright, 603 U.S. at 410. This Court rejected

Humphrey’s core premise—the possibility of a quasilegislative or quasi-judicial agency that “occupies no

place in the executive department” and “exercises no

part of the executive power vested by the Constitution

in the President,” 295 U.S. at 628—decades ago. Since

then, the Court has characterized Humphrey’s so narrowly it is unclear if any agency, including the 1935

FTC and its modern equivalent, ever really satisfied

the exception. See Seila Law, 591 U.S. at 216 (cabining

Humphrey’s to entities “perform[ing] legislative and

judicial functions” and not “exercis[ing] any executive

power”); id. at 219 n.4 (questioning whether the 1935

FTC met Humphrey’s own standard). Given the

Court’s “constant tinkering with and eventual turn

away from [Humphrey’s],” it “is hard to see how anyone—Congress included—could reasonably expect a

court to rely on [it] in any particular case.” Loper

Bright, 603 U.S. at 410.

Finally, to the extent Congress may have once relied on Humphrey’s when designing executive agencies’, it can and should amend the organic statutes

that gave life to the formerly headless “Fourth

Branch.” Policy concerns about the accumulation of

authority in the Executive Branch are better addressed by exercising legislative power as the Framers

intended than continuing to encroach on the President’s constitutional power of removal.

* * *

Humphrey’s Executor has belonged in the separation of powers anti-canon from the day it was decided.

Denying the “President’s power to remove—and thus

supervise—those who wield executive power on his behalf” flouts constitutional text and structure and elevates historical revisionism over an understanding of

Article II that “was settled by the First Congress [and]

confirmed [by this Court’s] landmark decision [in] Myers.” Seila Law, 591 U.S. at 204.

Rather than grapple with inconvenient history,

Humphrey’s made a “retreat to the qualifying ‘quasi’”

to justify a radical break from text, history, and ratification-era practice. Ruberoid Co., 343 U.S. at 487-88

(Jackson, J., dissenting). This novel formulation of

“administrative” power was rooted in Progressive Era

ideas of replacing the “Founders’ tripartite system and

their checks and balances [with] a ‘more efficient separation of politics and administration.’” Cochran, 20

F.4th at 218 (Oldham, J., concurring). And so it did,

ushering in a period of administrative governance

dominated by a “headless Fourth Branch” that exercised the President’s power yet was accountable to no

one. Consumers’ Rsch., 145 S.Ct. at 2517 (Kavanaugh,

J., concurring).

This Court “long ago interred” the “abstract and

ahistoric” philosophy of quasi-powers that purported

to justify Humphrey’s deviation from the general rule

of at-will removal. Shurtleff v. City of Boston, 596 U.S.

243, 279, 288 (2022) (Gorsuch, J., concurring in the

judgment). Even Humphrey’s narrow holding—“that

the [1935] FTC did not exercise executive power” and

thus could be legitimately excised from the Article II

chain of command—“has not withstood the test of

time.” E.g., Seila Law, 591 U.S. at 216 n.2.

In light of these developments, this Court has construed Humphrey’s extremely narrowly, establishing

its Article II carve out for (the realistically null set of)

multi-member, partisan-balanced regulatory commissions not exercising executive power as the “‘outermost constitutional limi[t] of permissible congressional restrictions on the President’s removal power.’”

Seila Law, 591 U.S. at 218. Even there, the Court has

steadfastly refused to extend Humphrey’s beyond its

precise characterization of the 1935 FTC. Id. at 219

n.4; Collins, 594 U.S. at 250-51, 256. There is thus a

serious question whether the FTC—of 1935 or today—

satisfies the standard it helped to create. Cf.

Nachmany, The Original FTC at 1 (arguing that “because the statutory scheme evaluated in Humphrey’s

Executor no longer exists as it was” in 1935, Humphrey’s “no longer applies to the modern FTC”).

None of this is a surprise. Maintaining “a system

of disembodied independent agencies with enormous

power over the American people and American economy” has always been fundamentally inconsistent

with the “principle of democratic accountability incorporated into the Constitution’s text and structure, as

well as historical practice and foundational Article II

precedents.” Consumers’ Rsch., 145 S.Ct. at 2518 (Kavanaugh, J., concurring). And the idea of carving out

an exception to the President’s constitutional removal

power for multi-member commissions understood to

be acting as “quasi legislative and quasi judicial bodies,” Humphrey’s, 295 U.S. at 629, has “proved to be

fundamentally misguided,” Loper Bright, 603 U.S. at

407.

Humphrey’s was “[i]ssued during a ‘bygone era’

when this Court took a more freewheeling approach to

interpreting legal texts.” Shurtleff, 596 U.S. at 276

(Gorsuch, J., concurring in the judgment). Yet, “[l]ike

some ghoul in a late-night horror movie,” Humphrey’s

“sits up in its grave and shuffles abroad” whenever an

unelected bureaucrat thinks that he or she can run the

Executive Branch better than the President the people

chose. Lamb’s Chapel v. Ctr. Moriches Union Free Sch.

Dist., 508 U.S. 384, 398 (1993) (Scalia, J., concurring

in the judgment); see supra n.2 (collecting cases).

These attempts to second-guess the President and undermine the democratic process will not stop until this

Court “places a tombstone on [Humphrey’s] no one can

miss.” Loper Bright, 603 U.S. at 417 (2024) (Gorsuch,