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St. Thomas Law Review

First Page

130

Document Type

Article

Abstract

The vestiges of the Humphrey’s Executor1 exception for independent agencies are crumbling. Just as with Chevron, the Roberts Court—particularly in the turbulent wake of Free Enterprise, Lucia, and Seila Law—has seemed to suggest that Humphrey’s days are numbered. When Consumers’ Research v. Consumer Product Safety Commission finally arrived at the doorstep of the high Court, the inevitable had seemingly arrived—Humphrey’s was finally to fall. Yet there were not four votes to hear the case. The Fifth Circuit was so hotly divided amongst itself as to Humphrey’s continued meaning and applicability to modern administrative agencies that a bare-thin majority (9-8) concluded that—since the “cert petition writes itself”—the Supreme Court should clean the Humphrey’s skeleton from the precedential closet, not the lower courts. Indeed, in declining to intern Humphrey’s, the majority seemed to agree with the dissenters that the case’s outcome was no longer justifiable in the face of the leviathan that constitutes the vast swath of the modern executive agencies. Yet, here, I argue quite the contrary. Far from overturning the holding of Humphrey’s Executor, I argue that the Roberts Court must return judicial application of Humphrey’s to its core and central holding—the Executive may be restricted in removing only those officers of the United States whose “duties are neither political nor executive” and “cannot in any proper sense be characterized as an arm or an eye of the executive.” Here lies the irony of Humphrey’s—what was originally (by its own text) a case to preserve the separation of powers, Humphrey’s now serves the opposite: to derogate responsibility and impermissibly allow Congress to devoid the American people of accountability in those who undertake to execute the nation’s laws. This paper begins by examining the separation of powers doctrine in light of the holding in Humphrey’s, as well as corollary cases that give rise to such. With this foundation, I examine a vast departure from the clear text of Humphrey’s Executor, to which I argue reached an absurd outer inflection point in Morrison v. Olson. While the Roberts Court declined to certify Consumers’ Research, the trajectory of Humphrey’s demands correction.

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