Humphrey’s Executor and the Future of Presidential Power

Here is a preview of what will be breaking news, probably in June 2026.

The U.S. Supreme Court is almost certain to hold, likely in a 6-3 decision, that President Trump lawfully fired Rebecca Slaughter from her role as a Commissioner of the Federal Trade Commission. The majority opinion (probably) will be written by Chief Justice Roberts, and Justice Kagan (probably) will write the dissent. The Court will explain that under the Vesting and Take Care Clauses of Article II, the President has unrestricted authority to fire agency heads, no matter whether Congress has enacted legislation to limit the President’s ability, and whether or not the agency is headed by a single person (like the Consumer Financial Protection Bureau or Federal Housing Finance Agency) or a multi-member body (like the FTC). The Court will also include language to the effect that empowering the President to fire anyone leading an Executive Branch agency helps protect liberty by safeguarding against a “headless fourth branch of government.”

How can I be so confident about what will happen almost a year from now? Because Justice Kagan telegraphed that outcome in May of this year after the Court stayed a decision of the District Court for the District of Columbia preventing President Trump from removing a member of the Merit Systems Protection Board and National Labor Relations Board. In that order, the Court explained that “the Government is likely to show that both the NLRB and MSPB exercise considerable executive power,” and that “the Constitution vests the executive power in the President, he may remove without cause executive officers who exercise that power on his behalf, subject to narrow exceptions recognized by our precedents.” That analysis prompted Kagan to observe in dissent that the Court “has foretold a massive change in the law” that will “depriv[e] members of the NLRB, MSPB, and many other independent agencies of tenure protections.”

Few lawyers who closely follow the Supreme Court believe that the Justices will ultimately say that Congress can prevent the President from firing agency heads.

What I don’t know, however, is whether the Court’s decision saying so will go further and declare that Humphrey’s Executor v. United States, 295 U.S. 602 (1935), is overruled. For decades, judges and scholars have cited Humphrey’s Executor for the proposition that Congress can limit the President’s ability to fire agency heads. In that case, Congress provided that the President could only fire FTC commissioners “for inefficiency, neglect of duty, or malfeasance in office.” Relying on Myers v. United States, 272 U.S. 52 (1926)—which included very broad language favoring an Article II power to fire Executive Branch officials notwithstanding statutory restrictions—President Franklin Roosevelt fired an FTC Commissioner, William E. Humphrey, because the two disagreed about the priorities the FTC should pursue. In a surprising decision for the President’s lawyers, the Supreme Court rejected the White House’s constitutional argument. That decision was the beginning of the Humphrey’s Executor doctrine.     

I don’t know whether the Supreme Court will say that Humphrey’s Executor is overruled, however, because it is unclear what Humphrey’s Executor actually holds. One of the most critical (but elusive) distinctions in law is between holdings and dicta. A “holding” is “[a] court’s determination of a matter of law pivotal to its decision.” “Dicta,” by contrast, is nonbinding commentary. This difference is often clear. If a judge says, “there isn’t jurisdiction to decide this case, but I want to take a moment and preview my view of the merits,” such a merits discussion is not a holding. But it becomes trickier when a court uses broad language when narrower language could resolve the case just as well, or when a judge decides in a case with certain facts but later tries to say that the rule controls cases with different facts. It is easy to say, for example, that an earlier decision should control a later one when the only difference between the two is what day of the week the facts arose. But it is harder when the first case was decided in the context, say, of a technology that no longer is the same by the time the second case comes along.     

With that background in mind, it is safe to say that Justice Kagan reads the holding from Humphrey’s Executor very broadly. In her view, so long as Humphrey’s Executor is good law, Congress can protect agency heads whether the agency maps closely onto how the Supreme Court described the FTC in Humphrey’s Executor. That’s why, in her view, a 90-year-old decision about the 1935 version of the FTC can still apply to agencies like the NLRB or MSPB today. And a panel of the Court of Appeals for the District of Columbia Circuit shares Kagan’s view. In a decision issued last week affirming a district court decision rejecting President Trump’s dismissal of Commissioner Slaughter, the panel explained that “Humphrey’s Executor controls this case and binds this court.”

But that is not the only way that Humphrey’s Executor can be read—and a majority of the Supreme Court has already indicated it shouldn’t be read that way. In Seila Law LLC v. CFPB, 591 U.S. 197 (2020), the Court’s majority—in an opinion written by Chief Justice Roberts, with a dissent by Justice Kagan—held that the President has the constitutional power to fire the heads of single-headed agencies, like the CFPB, notwithstanding any statutory restriction. As part of its decision, the Court’s majority said this about Humphrey’s Executor: “[T]he contours of the Humphrey’s Executor exception depend upon the characteristics of the agency before the Court. Rightly or wrongly, the Court viewed the FTC (as it existed in 1935) as exercising ‘no part of the executive power.’” The Court also stated that “[t]he Court's conclusion” in Humphrey’s Executor “that the FTC did not exercise executive power has not withstood the test of time,”  and—in response to Kagan’s criticism that the Court should not suggest that “1935 FTC may have had lesser responsibilities than the present FTC”—explained that it does not matter whether “the FTC possessed broader rulemaking, enforcement, and adjudicatory powers than the Humphrey’s Court appreciated” because “what matters” for understanding its precedential scope “is the set of powers the Court considered as the basis for its decision, not any latent powers that the agency may have had not alluded to by the Court.”

To be sure, the Court in Seila Law also suggested that Congress could make the CFPB into a multi-member body. But the Court’s emphasis on how Humphrey’s Executor understood the FTC’s powers in 1935 is hard to brush aside.     

A distinction between the 1935 FTC (especially as understood and described by the Court in Humphrey’s Executor) and the FTC today may be quite significant. After all, no one disputes that the FTC today exercises powers that the Court has squarely stated are executive, including prosecutorial powers. Thus, if the Court reads Humphrey’s Executor as only applying to agencies that do not wield executive power, then a Supreme Court decision upholding President Trump’s dismissal of Commissioner Slaughter would not require overruling Humphrey’s Executor.

In her dissent from the D.C. Circuit’s decision last week, Judge Neomi Rao invoked this argument by citing an important forthcoming article by Eli Nachmany entitled The Original FTC. Nachmany argues that “[i]n the years since Humphrey’s Executor, Congress has expanded the FTC’s powers dramatically,” and “because the statutory scheme evaluated in Humphrey’s Executor no longer exists as it was when the Court decided the case, the Court’s holding no longer applies to the modern FTC.” Almost a decade ago, Daniel Crane also argued that the FTC today “bears almost no resemblance to the Progressive-technocratic vision articulated by the Court” in Humphrey’s Executor, but instead “is essentially a law enforcement agency.” Under this view of Humphrey’s Executor, it would make little sense to talk about Humphrey’s Executor in the context of almost any modern agency because essentially all of them are unlike the FTC in 1935.  

At this point, you may be wondering why the scope of the holding in Humphrey’s Executor matters in the real world. Given its order from earlier this year, there is little chance that the Supreme Court will ultimately rule in favor of Commissioner Slaughter. And when it issues its opinion—again, likely in June 2026—most observers will focus on who wins, not whether the Court says “Humphrey’s Executor does not apply” as opposed to “Humphrey’s Executor is overruled.”

But the language does matter. For one, if the Court’s description of Humphrey’s Executor in Seila Law captures Humphrey’s Executor’s actual holding, then a lot of the criticism of the Court’s use of the so-called “shadow docket” (aka, the emergency docket) should fall away. Justice Kagan, for example, faulted the Court in her dissent from earlier this year for effectively overruling Humphrey’s Executor “on the emergency docket, with little time, scant briefing, and no argument.” But that accusation is misplaced if Seila Law means what the Court’s majority there at least suggests—that the scope of Humphrey’s Executor’s holding is limited by the 1935 Court’s understanding and description of the FTC. For similar reasons, the D.C. Circuit’s decision would be wrong—perhaps warranting immediate correction. Indeed, the U.S. Department of Justice has now sought immediate relief from the U.S. Supreme Court, reiterating that “Humphrey’s Executor does not mean that Article II permits tenure protections for any agency named the ‘Federal Trade Commission,’ no matter how much more executive power the FTC accumulates.”

In short, the writing is on the wall; the Supreme Court is quite unlikely to let judges prevent presidents from firing agency heads. But does the Court have to overrule Humphrey’s Executor to do so? We’ll probably find out next June.

Aaron L. Nielson holds the Charles I. Francis Professorship in Law at the University of Texas at Austin School of Law. Before joining the faculty, Professor Nielson served as Solicitor General of Texas where he argued five cases in the U.S. Supreme Court and oversaw all appellate litigation for the State of Texas.