HUMPHREY's EXECUTOR v. UNITED STATES 295 U.S. 602 (1935)

This decision probably more than any other contributed to President franklin d. roosevelt's animus against the Supreme Court. As Attorney General robert h. jackson wrote, the opinion of the unanimous Court by Justice george sutherland gave the impression "that the President had flouted the Constitution, rather than that the Court had simply changed its mind within the past ten years." In myers v. united states (1926) a 6–3 Court had sustained the removal power of the President in a case involving a postmaster. Sutherland had joined the opinion of the Court, including its obiter dictum that the removal power extended even to members of independent regulatory commissions. Roosevelt, relying on Myers, removed from the Federal Trade Commission (FTC) William Humphrey, who had been reappointed for a six-year term in 1931. The federal trade commission act provided for removal for cause, including inefficiency or malfeasance.

Humphrey was a blatantly probusiness, antiadministration official who thwarted the objectives of the FTC. After he died, his executor sued for Humphrey's back pay, raising the question whether a member of an administrative tribunal created by Congress to implement legislative policies can be removed as if he were a member of the executive department. Ruling against the removal power, Sutherland distinguished Myers, overruled the dictum, and failed to mention that Roosevelt had acted in good faith when he relied on Myers. Liberal Justices joined Sutherland for the reason given privately by Justice louis d. brandeis : if a Huey Long were President and the administration's argument prevailed, the commissions would become compliant agents of the executive.

Despite the Court's unanimity, its strict reliance on a simplistic separation of powers theory ignored the fact that the administrative agencies, however mixed their powers, were executive agencies and Congress acknowledged that fact. Moreover, had Roosevelt chosen to remove Humphrey for cause, the Court would not likely have challenged his judgment. The Court followed Humphrey in Wiener v. United States (1958), ruling that President dwight d. eisenhower could not remove a member of a quasi-judicial agency without cause.

Leonard W. Levy
(1986)