ArtII.S2.C2.3.15.5 Removal in the 1930s

Article II, Section 2, Clause 2:

He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

Nine years after its decision in Myers v. United States, in which the Court invalidated a statute that prohibited the President from removing an executive official absent Senate approval,1 the Supreme Court applied a much more functionalist approach in its analysis in another case addressing Congress’s authority to restrict the President’s removal authority.2 In the 1935 case of Humphrey’s Executor v. United States, the Court upheld a statute that limited the President’s power to remove a Commissioner of the Federal Trade Commission (FTC).3 The statute in question provided that a Commissioner could be removed for “inefficiency, neglect of duty, or malfeasance in office.” 4 The Commissioner’s estate brought suit seeking backpay after President Franklin Roosevelt dismissed him.5 In an opinion by Justice George Sutherland, the Court ruled that the President violated the statute because the law’s specification of reasons for removal was meant to be exclusive and he did not base his removal of the Commissioner on any of the grounds listed in the statute.6 The Court distinguished its prior decision in Shurtleff v. United States, which interpreted a statutory list of grounds for removal not to be exclusive,7 noting that while FTC Commissioners in Humphrey’s Executor were appointed to a specific term of office, the officer in Shurtleff had no such restriction on his tenure.8 In addition, the Court observed that Congress intended the commission to be nonpartisan and not subject to the direction of the President.9

Turning to the constitutionality of limiting the President’s power of removal, the Court read its recent decision in Myers narrowly to establish only that Congress could not condition the President’s power to remove an executive branch officer on Senate approval.10 Because the statute before it did not do that, it did not run afoul of Myers. The Court determined that the officer in that case, a postmaster, was charged solely with executive functions, whereas the office of an FTC Commissioner was tasked with “quasi-legislative” and “quasi-judicial” functions. The Commission was not “an arm or an eye of the executive” and it “must be free from executive control” “in the exercise of its duties.” 11 The Court ruled that the Constitution permitted Congress, with respect to officers charged with quasi-legislative and quasi-judicial functions, to “fix the period during which they shall continue in office, and to forbid their removal except for cause . . . .” ; and that the President’s removal of a FTC Commissioner for reasons not listed in the statute thus violated the law.12

The Court’s approval in Humphrey’s Executor of restrictions on the President’s power of removal over the heads of certain federal agencies has influenced the structure of the modern administrative state.13 Congress has established a number of “independent” agencies that are headed by multi-member bodies whose officers may only be removed by the President for cause.14 These independent agencies stand in contrast to what may be considered traditional executive branch agencies, with a single head who is removable at will by the President.15 Because Congress has created a variety of agencies with various structural features,16 certain functions of a particular agency may (at least for constitutional purposes) be considered “executive” while others in the same agency may not.17

In the years following Humphrey’s Executor, scholars have debated the constitutionality of independent agencies whose heads are insulated from presidential control, as well as what limits the Constitution may place on Congress’s power to shield executive branch officers from removal.18 As discussed infra, Congress in the twentieth century has also enacted legislation insulating agency officials other than the heads of multimember boards from removal.19 However, Supreme Court decisions in the twenty-first century appear to reflect an increasing skepticism of such congressional limits on the President’s power to remove agency officials.20

272 U.S. 52 (1926). back
John F. Manning, Separation of Powers As Ordinary Interpretation, 124 Harv. L. Rev. 1939, 1952 (2011) (describing the Court in Humphrey’s Executor as “using functionalist reasoning to sustain independent regulatory agencies” ). back
295 U.S. 602 (1935). It appears that the only instances of a President expressly removing an officer with for-cause protection after notice, a hearing, and finding that the statutory reasons for removal were met occurred in late 1912 and early 1913 when President Taft removed two members of the Board of General Appraisers. See Aditya Bamzai, Taft, Frankfurter, and the First Presidential For-Cause Removal, 52 U. Rich. L. Rev. 691, 691–737 (2018). President Richard Nixon removed Raymond Lapin from his position as President of the Federal National Mortgage Association for “good cause,” but without conducting a hearing for articulating what behavior constituted that cause. Id. at 746–47. Lapin brought suit challenging the action but eventually dropped his challenge. Id. Following the Supreme Court’s 2021 decision in Collins v. Yellen, in which the Court ruled that a statutory removal protection for an agency with a single director was unconstitutional, President Biden removed the heads of two other agencies that had similar structural features and protection. See Matthew Goldstein et al., Biden Removes Chief of Housing Agency After Supreme Court Ruling, N.Y. Times (June 23, 2021),; Andrew Ackerman & Brent Kendall, Biden Administration Removes Fannie, Freddie Overseer After Court Ruling, Wall St. J. (June 23, 2021), Jim Tankersley, Biden Fires Trump Appointee as Head of Social Security Administration, N.Y. Times (July 9, 2021),; Andrew Restuccia & Richard Rubin, Biden Ousts Social Security Chief, Wall St. J. (July 9, 2021), back
See 15 U.S.C. § 41. back
Humphrey’s Ex’r, 295 U.S. at 618–19. back
Id. at 625–26. back
See 189 U.S. 311 (1903). back
Humphrey’s Ex’r, 295 U.S. at 622–24. The Court indicated that for the Shurtleff Court to interpret the removal provision as ensuring the life tenure of the appraiser “was so extreme as to forbid, in the opinion of the court, any ruling which would produce that result if it reasonably could be avoided.” Id. at 23. back
Id. at 624–25. back
Id. at 626. back
Id. at 628. back
Id. at 629–32. back
The Court’s view in Humphrey’s Executor that the FTC did not wield executive power is no longer shared by the modern Court. Seila Law LLC v. Consumer Fin. Prot. Bureau, No. 19-7, slip op. at 14 n.2 (U.S. June 29, 2020) ( “The Court’s conclusion that the FTC did not exercise executive power has not withstood the test of time.” ); City of Arlington v. FCC, No. 11-1545, slip op. at 13 n.4 (U.S. May 20, 2013) (noting that agency “activities take ‘legislative’ and ‘judicial’ forms, but they are exercises of—indeed, under our constitutional structure they must be exercises of—the ‘executive Power’” ); id. at 4 (Roberts, C. J. dissenting, joined by Kennedy & Alito, JJ.) ( “What the Court says in footnote 4 of its opinion is good, and true . . . The Framers did divide governmental power in the manner the Court describes, for the purpose of safeguarding liberty.” ). back
There are other indicia of independence for federal agencies, although for cause removal protection is likely the most prominent indicator. See Elena Kagan, Presidential Administration, 114 Harv. L. Rev. 2245, 2376 (2001) (describing the “core legal difference” between independent and executive branch agencies as “the strength of the President’s removal power” ); Kirti Datla & Richard L. Revesz, Deconstructing Independent Agencies (and Executive Agencies), 98 Cornell L. Rev. 769, 775–76 (2013) ( “[T]he conventional wisdom is that there are two types of agencies: executive and independent. Each type of agency comes with a set of rules that govern how the President can interact with them. The consensus view is that the dividing line is the presence of a for-cause removal protection clause.” ). But see Adrian Vermeule, Conventions of Agency Independence, 113 Colum. L. Rev. 1163, 1166 (2011) ( “Legally enforceable for-cause tenure protection is neither necessary nor sufficient for operational independence.” ). back
Kagan, supra note 14, at 2376–77. back
Anne Joseph O’Connell, Bureaucracy at the Boundary, 162 U. Pa. L. Rev. 841, 846 (2014) ( “And there are organizations entirely within the federal government that do not fit squarely within the Executive Branch, including but encompassing far more than independent regulatory commissions and boards.” ). back
See, e.g., Intercollegiate Broad. Sys., Inc. v. Copyright Royalty Bd., 684 F.3d 1332, 1341–42 (D.C. Cir. 2012) (concluding that “the powers in the Library [of Congress] and the [Copyright Royalty] Board to promulgate copyright regulations, to apply the statute to affected parties, and to set rates and terms case by case are ones generally associated in modern times with executive agencies rather than legislators. In this role the Library is undoubtedly a ‘component of the Executive Branch’” ) (quoting Free Enter. Fund v. Pub. Co. Acct. Oversight Bd., 561 U.S. 477, 511 (2010)). back
Compare Lawrence Lessig & Cass R. Sunstein, The President and the Administration, 94 Colum. L. Rev. 1, 2–4 (1994) (asserting that the Framers did not envision a unitary executive), with Steven G. Calabresi & Saikrishna B. Prakash, The President’s Power to Execute the Laws, 104 Yale L.J. 541, 547–50 (1994) (arguing that the theory of a unitary executive flows from an originalist interpretation of the Constitution’s meaning). See also Neomi Rao, Removal: Necessary and Sufficient for Presidential Control, 65 Ala. L. Rev. 1205, 1276 (2014). back
See infra ArtII.S2.C2.3.15.6 Later Twentieth Century Cases on Removal. back
See infra ArtII.S2.C2.3.15.6 Later Twentieth Century Cases on Removal. back