Drawing the Line: The Place of Humphrey’s Executor in the Modern Administrative State

Few doctrines in American constitutional law have structured the modern administrative state as deeply as the Supreme Court’s decision in Humphrey’s Executor v. United States (1935) [1]. The case arose when President Franklin D. Roosevelt sought to remove a commissioner of the Federal Trade Commission (FTC), an independent regulatory agency established by Congress in the Federal Trade Commission Act of 1914, whose purpose was to combat unfair business practices and protect consumers [2]. Unlike traditional executive agencies, the FTC was deliberately designed to operate with a measure of independence from the President; its commissioners could not be fired at will, but only for “inefficiency, neglect of duty, or malfeasance in office” [3]. When Roosevelt’s attempt to dismiss an FTC commissioner for policy reasons was challenged, the Supreme Court ruled that Congress could constitutionally insulate certain agency officers from at-will removal, so long as their functions were “quasi-legislative” or “quasi-judicial” rather than purely executive [4].

This doctrine established the “independent agency,” with the FTC as its archetype. Yet almost a century later, a growing debate surrounds these protections. Many conservative legal scholars have questioned whether Humphrey’s Executor rightly limits presidential authority or wrongly enables unaccountable bureaucracy. That question has come to center stage in the 2025 case of Trump v. Slaughter, where President Trump seeks to remove FTC commissioner Rebecca Slaughter [5]. On September 22, 2025, the Supreme Court formally agreed to review the case, potentially challenging the legal insulation that has long shielded commissioners from at-will presidential dismissal [6]. The case confronts the Court with fundamental questions: does the Constitution endorse presidential power warranting control over independent agencies? Does the Court’s previous analysis under Humphrey’s Executor still hold up?

I write to argue that the Court’s original analysis in Humphrey’s Executor is still correct, and the Court need not—and should not—overrule the long-standing precedent. Instead, the court should reinforce Humphrey’s doctrinal boundaries. By adhering strictly to its original category—limiting protection to agencies genuinely exercising quasi-legislative or quasi-judicial functions—the Court can permit the President to remove FTC officials, whose modern regulatory activity has evolved to be executive in nature, while still preserving meaningful independence for entities like the Federal Reserve that clearly fit within Humphrey’s Executor’s intended ambit.

Defining “Quasi-Legislative” vs “Quasi-Judicial” and “Executive” Functions

The Constitution vests the executive power in the President and obligates the President to “take Care that the Laws be faithfully executed” [7]. Early jurisprudence on this clause, particularly in Myers v. United States (1926), articulated the principle that Congress could not unduly prevent the President from carrying out their responsibility under the clause by preventing them from removing officials whose roles were purely executive in nature [8]. However, the Supreme Court in Humphrey’s Executor v. United States, refined this rule by introducing a distinction: “The authority of Congress, in creating quasi-legislative or quasi-judicial agencies, to require them to act in discharge of their duties independently of executive control . . . includes, as an incident, power to fix the period during which they shall serve and to forbid their removal except for cause” [9]. Thus, reconciling these two cases, we can conclude that Congress may restrict the removal of officers only when they serve in agencies exercising genuinely quasi-legislative or quasi-judicial functions—those which are “not . . . an arm or an eye of the executive” [10].

But how do we define “quasi-legislative” and “quasi-judicial” functions? Though the Supreme Court did not provide formalized definitions in Humphrey’s Executor, it described these agency powers by reference to their statutory functions and contrasted them with traditional executive authority. Quasi-legislative powers refer to the ability of administrative agencies to make rules and regulations—actions akin to legislating, but carried out under authority delegated by Congress [11]. This includes promulgating regulations, establishing standards, or interpreting statutory mandates in a way that binds the public, similar to a legislative enactment. For instance, when the Federal Reserve sets binding interest rates or the FTC adopts rules regarding unfair competition, they are acting in a quasi-legislative capacity. Similarly, quasi-judicial authority refers to agency actions that resemble the adjudication of disputes—and are specifically delegated by courts—such as acting as a master in chancery [12].

By contrast, “executive” functions are those inherently tied to the enforcement, administration, or execution of the law—the central responsibility of the President under Article II of the Constitution. In other words, if an agency is simply carrying out the actions of the Executive, rather than creating rules via delegated power from Congress or settling disputes, it would be categorized as an executive function. The Court in Humphrey’s uses a postmaster, the office at issue in the aforementioned Myers, as an example of an office that is neither quasi-legislative nor quasi-judicial, and thus purely executive. A postmaster simply oversees the mailing process of the Postal Service and manages members of staff, neither of which is rule-making in a quasi-legislative nature or dispute settling in a quasi-judicial nature [13].

The Evolution of the Federal Trade Commission

While the Federal Trade Commission was initially conceived as a body with investigatory and quasi-adjudicatory functions—“to carry into effect legislative policies embodied in the statute . . . and to perform other specified duties as a legislative or as a judicial aid”—its authority and operations have evolved significantly [14]. The FTC Act of 1914 limited its focus to reporting and advisory powers, but subsequent amendments to the FTC expanded the agency’s scope. For example, the Wheeler-Lea Amendments of 1938 granted the FTC new powers to act as a party-litigant in federal district court [15]. This litigation power is quintessentially executive in nature, not judicial, because when the FTC sues in court, it is acting to enforce federal statutory law—chiefly the Federal Trade Commission Act and related consumer protection and antitrust statutes—rather than adjudicating disputes as a neutral tribunal. The FTC’s function in these cases is to identify violations, initiate enforcement actions, and seek remedies such as injunctions or civil penalties, activities that exemplify the executive power to “take Care that the Laws be faithfully executed.” Furthermore, in 1975, Congress granted the FTC additional powers to seek monetary relief, primarily for consumer protection violations [16]. Once again, this power seems to stray from Humphrey’s original analysis of the FTC and fits squarely into an executive capacity. Indeed, the Supreme Court in Seila Law LLC v. CFPB (2020) observed that the FTC “exercises quintessential executive power,” underscoring the shift toward executive rather than quasi-legislative or quasi-judicial activity [17]. Thus, in light of both statutory development and current practice, the FTC’s powers and structure have departed from those that would constitutionally justify insulation from presidential removal. As a result, unless an FTC officer’s specific role is limited to genuinely quasi-legislative or quasi-judicial functions, that officer’s position properly falls under the scope of the President’s removal power, consistent with the principles described in Myers v. United States.

Given the doctrinal rule established by Humphrey’s Executor and the fact that the FTC no longer performs such functions as the core of its operation, our logic compels the conclusion that the President may constitutionally remove FTC officials. Just as the Supreme Court in Seila Law struck down removal protections for the single-headed Consumer Financial Protection Bureau, reasoning that “Congress cannot shelter the Director from removal by the President simply because it wishes to insulate the agency from political accountability,” so too must the current structure of the FTC be subjected to constitutional scrutiny [18]. The application of this principle here means that, although Congress may design agencies for a degree of independence, that independence must remain tethered to the Constitution’s separation of powers as interpreted in Humphrey’s Executor. However, by affirming a strict reading of Humphrey’s Executor, the Supreme Court would not only uphold constitutional doctrine but also safeguard the independence of agencies whose powers and structure conform to the quasi-legislative or quasi-judicial paradigm. The Federal Reserve Board offers the clearest example: its responsibilities—setting monetary policy, regulating banks, conducting formal rulemaking—fit within the quasi-legislative and quasi-judicial paradigms [19]. Insulating its officers through for-cause removal protection follows directly from Humphrey’s Executor’s rationale.

The importance of this distinction has become especially clear in the wake of Trump v. Cook (2025), a controversial case in which President Trump attempted to remove Lisa Cook, a member of the Federal Reserve’s Board of Governors [20]. The litigation, now pending on the Supreme Court’s docket, confronts the question of whether the President’s removal power of executive officers extends to members of the Federal Reserve Board. Theoretically, an officer like Cook would enjoy greater protection from Humphrey’s Executor than the Federal Trade Commission, considering its quasi-legislative function in setting nationwide monetary policy. Thus, this case of Trump v. Cook will prove to be a critical test for this legal argument.

Some argue that limiting removal protections only to the rare cases of purely quasi-legislative or quasi-judicial bodies would undermine precisely the regulatory stability and public trust that led Congress to create independent agencies in the first place. However, this concern overlooks the most important check to executive power that our Constitution provides—the people themselves. As Chief Justice Roberts notes in Free Enterprise Fund v. Public Company Accounting Oversight Board (2010), “[o]ur Constitution was adopted to enable the people to govern themselves through their elected leaders. The growth of the executive Branch . . . heightens the concern that it may slip from the Executive’s control, and thus from that of the people” [21]. By maintaining removal protections only for agencies genuinely exercising quasi-legislative or quasi-judicial functions, the Court preserves not just regulatory independence where it is truly warranted, but also the core principle of democratic accountability at the heart of Article II. Furthermore, a strict adherence to Humphrey’s doctrine reinforces the principles of separation of powers by ensuring that Congress does not unduly entangle itself with issues regarding executive power, while still maintaining the necessary power to insulate key agencies such as the Federal Reserve from Executive overstep.

Conclusion:

Rather than discarding Humphrey’s Executor, the Supreme Court should reaffirm its doctrinal heart: only those agencies that perform genuinely quasi-legislative or quasi-judicial functions merit insulation from at-will removal. The Federal Trade Commission, whose core activities now center on enforcement and policy execution, clearly wanders into the executive side of this divide. In contrast, agencies like the Federal Reserve Board—currently at the center of Trump v. Cook—remain classic examples of bodies whose independence is justified by their role in setting monetary policy and adjudicating complex regulatory issues.

The present political climate underscores the urgency and significance of these distinctions. President Trump’s recent initiatives to assert sweeping executive control—through high-profile efforts not only at the FTC and Federal Reserve but also at bodies such as the National Labor Relations Board and Merit Systems Protection Board in Trump v. Wilcox (2025)—present challenges to the balance of independence and accountability that underlies the administrative state. The Court’s treatment of Humphrey’s Executor moving forward will be integral to understanding how this fight between Trump and independent agencies will play out.

References

[1] Humphrey’s Executor v. United States, 295 U.S. 602 (1935).

[2] Federal Trade Commission Act of 1914, Pub. L. No. 63-203, 38 Stat. 717 (1914).

[3] Federal Trade Commission Act of 1914, Pub. L. No. 63-203, § 1, 38 Stat. 717 (1914).

[4] Humphrey’s Executor v. United States, 295 U.S. 602 (1935), 602.

[5] Amy Howe, “Supreme Court Allows Trump to Fire FTC Commissioner,” SCOTUSblog, September 22, 2025, https://www.scotusblog.com/2025/09/supreme-court-allows-trump-to-fire-ftc-commissioner/.

[6] Trump v. Slaughter, 606 U. S. ____ (2025).

[7] U.S. Const. art. II, § 3, cl. 5.

[8] Myers v. United States, 272 U.S. 52 (1926), 119.

[9] Humphrey’s Executor v. United States, 295 U.S. 602 (1935), 630.

[10] Ibid., 628.

[11] Ibid., 603.

[12] Ibid., 628.

[13] Ibid., 627.

[14] Ibid., 628.

[15] 15 U.S.C. § 53(a) (2022).

[16] 15 U.S.C. § 57(b) (2022).

[17] Seila Law LLC v. CFPB, 591 U.S. ___, slip op. at 22 (2020).

[18] Seila Law LLC v. CFPB, 591 U.S. ___, slip op. at 30 (2020).

[19] Federal Reserve Act of 1913. Pub. L. No. 63-43, 38 Stat. 251 (1913).

[20] Amy Howe, “Supreme Court declines to take action on Trump’s request to fire Fed governor for now,” SCOTUSblog, October 1, 2025, https://www.scotusblog.com/2025/10/supreme-court-declines-to-take-action-on-trumps-request-to-fire-fed-governor-for-now.

[21] Free Enterprise Fund v. Public Company Accounting Oversight Board, 561 U.S. 477, 499 (2010).