Humphrey's Executor Created a Fourth Branch the Constitution Never Mentions

Count the branches of the federal government. Go ahead. The Constitution says three, and it names them in its first three articles. Now ask a federal agency lawyer how many branches there are in practice, and listen to the pause before the answer.

There is a fourth. It has no article, no clause, no vote of ratification and no name in the text. It is made up of boards and commissions that write rules, enforce them and judge the disputes, and that the President of the United States may not remove at will. The case that licensed it was decided on a single Monday in 1935, and its name belongs to a man who was already dead when the Supreme Court said his firing was unlawful. This is the story of Humphrey's Executor v. United States, and of the long argument over whether it should survive.

Article II in four sentences

The way to read the case is to start with the text it had to get around. Article II, Section 1 begins:

The executive Power shall be vested in a President of the United States of America.

Section 3 says the President "shall take Care that the Laws be faithfully executed." Section 2 gives him the power to nominate, with the Senate's advice and consent, "Officers of the United States," and permits Congress to vest the appointment of inferior officers in the President alone, the courts or the heads of departments.

Notice what is not there. The Constitution does not say who may remove an officer once he is appointed. It says the Senate must consent to the appointment, and it says nothing of consent for removal. The first Congress argued about that silence in 1789, when it created the Department of Foreign Affairs. In what history calls the Decision of 1789, Congress went along with the view, pressed by James Madison, that the executive power includes the power to remove the officers who help exercise it. The statute they passed assumed the Secretary was removable by the President. That is the baseline: the person who must see that the laws are faithfully executed must be able to dismiss the people who are executing them badly.

Myers: the baseline restated

Nine years before Humphrey's Executor, the Court took up the question directly. In Myers v. United States (1926), President Woodrow Wilson had removed a first-class postmaster, Frank Myers, before the end of his term, though a statute from 1876 said such postmasters could be removed only with the Senate's consent. Chief Justice William Howard Taft, himself a former President, wrote the opinion for the Court. He held the statute unconstitutional. The power to remove executive officers, he said, belongs to the President, and Congress may not condition it on Senate approval.

Taft's opinion reasoned from the vesting clause and the Take Care Clause, and he relied on the Decision of 1789. The dissenters in Myers warned that removal at will might be inappropriate for officers with adjudicatory duties, such as commissioners of the Interstate Commerce Commission and the Federal Trade Commission. Whether such officers were different was a question the Court would answer nine years later.

The facts of William Humphrey's removal

William E. Humphrey was a Republican from Washington State who had served in Congress and then on the Federal Trade Commission, which was created in 1914 to police unfair methods of competition. He had joined the commission in 1925, and President Herbert Hoover reappointed him in 1931 to a seven-year term. The FTC Act said that a commissioner might be removed by the President "for inefficiency, neglect of duty, or malfeasance in office."

Franklin Roosevelt took office in 1933, and he did not care for Humphrey's views about business. On July 25 of that year he wrote to Humphrey asking him to resign. The letter said, in substance, that the President did not feel their minds went along together on either the policies or the administration of the Federal Trade Commission, and that Humphrey should step aside so that the President could place someone with his own views. Humphrey refused. In October, Roosevelt removed him, with a plain note and no charge of inefficiency, neglect or malfeasance.

Humphrey went to court to claim the salary he was owed for the rest of his term. He died in February 1934, and the case was carried on by the executor of his estate, which is why the case bears the name it does. The question reached the Supreme Court from the Court of Claims.

The decision of May 27, 1935

Humphrey's Executor v. United States was decided on May 27, 1935, the same day as Schechter Poultry, a day the press dubbed "Black Monday" for the administration. The story of the other case is in A Brooklyn Poultry Firm Beat the New Deal Nine to Nothing in 1935. The vote in Humphrey's case was unanimous, and the opinion was written by Justice George Sutherland, a conservative who had joined the majority in Myers.

Sutherland took a surprising path. Instead of saying that Congress could not limit the President's power, he drew a line between kinds of agency. The FTC, he reasoned, was not a mere part of the executive department. It was an independent body created by Congress to carry out legislative policies by acting as a "quasi-legislative" body, writing reports and recommendations, and as a "quasi-judicial" body, holding hearings and deciding cases. Such a body, he said, could not "in any proper sense" be characterized as an arm or an eye of the executive. Congress could therefore limit the President's power to remove its members to the grounds the statute named. And Myers? Sutherland limited it to the case before the Court, a purely executive officer, a postmaster, and set aside the broader language as unnecessary to the result.

That is how a fourth branch was born. Not by amendment, and not by any debate over the Constitution's structure, but by a pair of adjectives. If a body is "quasi" legislative and "quasi" judicial, the reasoning went, it is not entirely executive, and so the President's removal power does not reach it.

What is wrong with the reasoning

Start with the text. The Constitution does not contain the word "quasi." It does not create a category of officers who are partly legislative and partly judicial and beyond the President's control. It recognizes three powers. If an agency exercises power over the lives and property of citizens, by making binding rules and prosecuting violators, then it is exercising a power the Constitution calls executive. The only question is who controls the person who exercises it.

Here are the premises of the argument, stated in order.

One: The executive power belongs to the President. That is Article II, Section 1.

Two: The President must see that the laws are faithfully executed. That is the Take Care Clause, and it makes him answerable, to the voters and to Congress through impeachment, for how the laws are carried out. Hamilton's argument for a single executive in Federalist 70 rested on this: unity makes accountability possible. The post on Federalist 70 Read Closely, Hamilton's Case for Energy in One Executive reads it closely.

Three: A person charged with executing the law who cannot be removed by the one who must answer for his work is not under that person's control. Responsibility without authority is a fiction.

Four: Therefore, an agency that executes the law and is insulated from presidential removal is a piece of the executive power that has been taken out of the President's hands, and put in the hands of no one the voters can reach.

The claim that the FTC was merely "legislative" or "judicial" collapses when you look at what it does. Today, the FTC investigates companies, issues complaints, brings enforcement actions in federal court, and enforces consumer-protection statutes. That is what executive officers do. Even in 1935, the commissioners held investigations and decided who would be charged. And if Congress had wanted the commission to be part of the legislative branch, it would have had to follow Article I's rules, including appointments by Congress's own officers. It cannot have it both ways.

The steelman: the best case for Humphrey's

Here is the argument for keeping the case, stated so its defenders would accept it.

One: Congress has the power under the Necessary and Proper Clause to structure the government it creates, and some functions are better done by officials insulated from daily politics. Two: Hamilton himself, in Federalist 77, wrote that the consent of the Senate would be necessary to displace as well as to appoint officers, which suggests the Founders' generation did not agree that the President holds removal power alone. Three: multi-member, bipartisan commissions bring balance and expertise, and a President who can fire them at will can make them tools of his party. Four: the system has operated for ninety years, and many arrangements rest on it, so overruling it would disrupt settled expectations. Five: adjudicators, such as those who decide disputes between private parties, should be free from political pressure if their decisions are to be trusted.

Every point deserves a fair answer.

On the Necessary and Proper Clause. It lets Congress choose the means of carrying powers into execution. It does not let Congress rearrange the powers themselves. The clause is a grant of means, not a license to change Article II. And the Court has long held that Congress may not use it to circumvent a structural command.

On Federalist 77. It is a real piece of evidence, and it cuts against the doctrine's critics. But Hamilton's argument there was a prediction about a state of affairs in which the Senate would act on the appointment, and the Decision of 1789 rejected it by a vote of the first Congress, with Madison leading, only a year after Hamilton wrote. Many of the Constitution's drafters sat in that Congress. When the people who wrote the document disagree about its meaning, the practice that followed immediately carries weight. Federalist 70 and the Decision of 1789 point one way and Federalist 77 the other, and the textual argument from the vesting clause breaks the tie.

On balance and expertise. These are reasons to consult experts and to make agencies bipartisan in their advisory staff. They are not reasons to remove the people's elected executive from control of executive power. A President who abuses the power to fire is answerable to the voters, to Congress and to the press. An independent commission is answerable to no one.

On reliance. Reliance is a reason to be careful about how a ruling is overturned, not a reason to keep a constitutional error forever. The Court has been willing to reverse precedents it judged badly reasoned when the harm to the structure was serious, as the discussion in From Plessy to Chevron, a Timeline of Precedents the Court Was Right to Overrule explains.

On adjudicators. There is a real distinction between officers who decide disputes between private parties and officers who make policy. The Court has treated that difference seriously, and a narrowing of Humphrey's could leave room for judge-like bodies, which is exactly what the Court has been doing.

How the Court has narrowed it

The Court never overruled Humphrey's, but over the decades it fenced the case in.

• Wiener v. United States (1958) applied it to a commission that decided claims for war damage, reasoning that the body was an adjudicator whose independence Congress could protect.
• Morrison v. Olson (1988) upheld the independent counsel statute over the lone dissent of Justice Scalia, who wrote that the Court was upholding a law that took prosecutorial power away from the President. He argued that criminal prosecution is a purely executive power and that the statute took it out of the President's exclusive control.
• Free Enterprise Fund v. PCAOB (2010) held that two layers of for-cause protection, as for members of an accounting oversight board who could be removed only by commissioners who could be removed only for cause, unconstitutionally limited the President's control.
• Seila Law LLC v. Consumer Financial Protection Bureau (2020) held, by a 5-4 vote with Chief Justice Roberts writing, that Congress could not make the single director of the CFPB removable only for cause. The opinion read Humphrey's narrowly. It said the case covers multi-member bodies of experts that do not wield substantial executive power, and that the FTC of 1935, as the Court saw it, was such a body. Justice Thomas, joined by Justice Gorsuch, wrote separately that the reasoning of Humphrey's should be repudiated.

The Court has therefore been narrowing the exception, one case at a time, while declining to say in so many words that the 1935 decision was wrong. Whether it will go further is a question for the Court's own docket, and anyone following the matter should check the current opinions on the courts page and at the Court's website, because the answer may have changed since this was written. The CFPB's separate structural problem, its funding, is taken up in The CFPB Is Funded Without an Annual Vote of Congress, and That Should Worry Us.

The fourth branch in real life

It is easy to treat this as an academic puzzle. It is not. Picture a family, labelled as a hypothetical, whose small business receives a notice from a commission that sits in Washington. The commission's rules apply to it. The commission's lawyers enforce them. The commission's judges decide the dispute. The commissioners serve fixed terms and cannot be removed for disagreeing with the President's policies. The family writes to the President, who says he has no control over the commission. The family writes to Congress, which says the commission is independent. Who answers for the decision? The question has no good answer, and that is the point.

Hamilton saw this clearly in Federalist 70, when he warned that the plurality and insulation of executive power destroyed responsibility, because blame could always be shifted. A government that cannot be held responsible is a government the Declaration of Independence would recognize. The deeper background is in Madison Called It the Very Definition of Tyranny, and Agencies Hold All Three, and the long dispute over who runs the executive branch is surveyed in Eleven Questions About Presidential Power, Answered From Article II and The Executive Power Shall Be Vested in a President, and Every Word Counts.

Who answers to the voters

Here is the principle that should survive whichever party holds the White House. Conservatives should hold this principle for Presidents of both parties, and not only for the ones they voted for. The principle is that the elected head of the executive should control the executive. If the people dislike how the laws are carried out, they know whom to blame at the next election. That is the whole machinery of accountability, and a fourth branch is a hole in it.

The case in brief

1. Humphrey's Executor v. United States (May 27, 1935) held that FDR could not remove FTC commissioner William Humphrey at will, creating a category of "quasi-legislative" and "quasi-judicial" agencies insulated from the President.
2. That category has no basis in the text of Article II, which vests "the executive Power" in the President and requires him to take care that the laws are faithfully executed.
3. The ruling sits in tension with Myers v. United States (1926) and the Decision of 1789, and with Hamilton's case for a single, accountable executive in Federalist 70.
4. The Court narrowed the case in Free Enterprise Fund (2010) and Seila Law (2020), leaving it covering multi-member expert bodies without substantial executive power.
5. The principle at stake is accountability: whoever executes the law must answer to someone the voters can remove.

What you can do: read Article II, Sections 1 through 3 on the Constitution page, then look up one commission whose rules affect your trade or town and find out how its members are appointed and whether the President may remove them.