Trump: The Fifth Horseman of the Bureaucracies’ Apocalypse

American  Thinker 

If you’re a Court watcher, a political junkie, a constitutional scholar—or, in fact, just have a pulse—10 am Monday, December 8th will be the judicial equivalent of the Superbowl. Although even that might be underselling it a little because they play the Super Bowl every year, and we’ve been waiting for this game for almost a century—the overturning of Humphrey’s Executor, a 1935 Supreme Court decision.

Yes, the stakes are that high: Who does the Constitution grant the power to govern the executive branch—our elected president, or an unelected deep-state bureaucratic tyranny?

Let me explain. Humphrey’s was a direct assault on the very foundation of the Constitution, specifically, Article II, Section 1, first sentence:

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

As the great Antonin Scalia would write over 50 years later about that sentence in his solo dissent in Morrison v. Olsen, a case on the constitutionality of the Independent Counsel, “That does not mean some of the executive power, but all of the executive power.” As we might expect from one of the Court’s most influential Originalists, his criticism echoed the voice of the Founders canonized in the Federalist Papers (emphasis mine):

Energy in the Executive is a leading character in the definition of good government. A feeble Executive implies a feeble execution of the government … feeble execution is bad execution … a government ill executed, must be, in practice, a bad government.

[The unitary executive] may be destroyed in two ways: either by vesting the 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. 

To understand the full scope of the Sophoclean tragedy of Humphrey’s, let’s turn back the clock to the Great Depression.

One in four Americans was out of work. In desperation, FDR had assembled a “Braintrust” that, policy-wise, largely resembled a coalition of Bernie Sanders, Elizabeth Warren, and AOC, and, with it, his New Deal was trampling the Constitution with brazen acts of hubris—making it illegal to own gold, abolishing the gold standard, and abrogating gold contracts, to name a few things it did. Worse still, while Europe and the rest of the world were largely recovering, FDR’s policies were not just ineffective; they only deepened and lengthened the Depression.

There were a few holdouts. One of the five FTC Commissioners, William Humphrey, was an unabashed anti-New Dealer who refused to implement FDR’s egregious policies. FDR asked for his resignation. When he refused, FDR fired him. As if the gods themselves had intervened to protect the Constitution, before Humphrey himself could file suit, he was struck dead by a heart attack.

His estate, however, in a nakedly opportunistic money grab, filed suit for his salary that would have been paid if he had not been fired and not died. That status gave the case its name: Humphrey’s “Executor.”

The suit was laughable on its face. Not even 10 years earlier, SCOTUS ruled on essentially the same case. Myers v. US addressed the fact that Coolidge had fired the Postmaster General. The corpulent William Howard Taft, our only president to sit on the Court, or get stuck in a bathtub for that matter, delivered the opinion:

Removal…is an executive function…like the power to appoint,” [denying removal would] “infringe on the separation of powers,” [Article II gave] “the President the sole power of removal in his responsibility for the conduct of the executive branch,” [and that] “the President is required to take care that the laws be faithfully executed; he cannot do this unless he may remove at will all officers whom he appoints.”

Yet, shockingly, despite a still largely conservative Court, Humphrey’s won. Why did the Court flip so soon after the Myers decision?

By 1935, the Court was literally at war with FDR’s New Deal. In 1935, it had declared four of FDR’s programs unconstitutional, and had three more queued up to overturn in the next session. The New Dealers had branded the core conservative bloc the Four Horsemen of the Apocalypse. How prophetic “apocalypse” would prove, but ironically, not for their resistance to the New Deal.

These justices despised FDR and thought they alone were the last line of defense in guarding the Constitution they had sworn an oath to uphold. When Humphrey’s came before them, they were faced with a Hobson’s choice: rule in favor of FDR, and, without administrative resistance, his New Deal would be a fait accompli; rule against, and the Constitution would be irrevocably gutted. For the pyrrhic victory of reining in FDR, they had sold their souls to the devil.

The opinion itself was authored by one of the Horsemen, George Sutherland, who shamelessly commits the freshman debating sin of begging the question. Asked to determine if Congress has the authority to set rules encumbering the President, he simply asserts the answer he’s supposed to be arguing, “the authority of Congress...cannot well be doubted”:

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 cannot well be doubted, and that authority includes, as an appropriate incident, power to fix the period during which they shall continue in office, and to forbid their removal except for cause in the meantime.

With this opinion, the Horsemen had unleashed a Trojan Horse, opened a Pandora’s Box, and committed an original sin—take your pick—that has given rise to the unconstitutional leviathan that is our administrative state. No more would there be three branches of government; now there would be quasi-legislative and quasi-judicial agencies—a fourth branch—a bureaucratic empire anathema to the founding.

An exasperated Scalia would write that sometimes assaults on the Constitution “come clad, so to speak, in sheep’s clothing,” but in Humphrey’s“this wolf came as a wolf.” But aside from Scalia’s lone dissent, Humphrey’swould go almost entirely unchallenged until Seila Law v. CFPB (2020) landed in front of Trump’s newly conservative Court.

Asked if the Consumer Financial Protection Bureau, a Dem monstrosity conjured up in the wake of the 2008 financial debacle, could have its Director unaccountable to the President, Roberts would equivocate. Always reluctant to use constitutional principle when a clever nuance will do—remember, “it’s a tax”—he wrote the opinion invalidating the Director’s protection, but leaving Humphrey’s intact by differentiating the FTC commissioners from the CFPB Director—there were five commissioners, but only one director.

Thomas, conversely, never reluctant to assert constitutional principle where a clever nuance would suffice, wrote in his concurrence:

The decision in Humphrey’s Executor poses a direct threat to our constitutional structure and, as a result, the liberty of the American people.The problem is that the Court’s premise was entirely wrong. The Constitution does not permit the creation of officers exercising “quasi-legislative” and “quasi-judicial powers” in “quasi-legislative” and “quasi-judicial agencies.” No such powers or agencies exist.

The stars have finally aligned in Slaughter v Trump. Trump fired FTC commissioners just as FDR had. There can be no nuanced decision here—this is the exact same case as Humphrey’s, resurrected and in the crosshairs.

Thomas wrote in Seila, joined by Gorsuch, “Today, the Court does enough to resolve this case, but in the future, we should reconsider Humphrey’s Executor in toto. And I hope that we will have the will to do so.”

Mark your calendar, that chance, and the chance to reclaim our Constitution, is December 8th.