Humphrey’s Executor and Presidential Removal Power

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In one of its most significant separation of powers opinions, the U.S. Supreme Court decided Humphrey’s Executor v. United States 87 years ago, in which it held that President Roosevelt’s authority to remove a commissioner that his predecessor nominated and the Senate confirmed to the Federal Trade Commission was not “illimitable” under the Constitution.  The Court held that the President’s discretion to remove the commissioner based on his differing policy views was bounded by the Federal Trade Commission Act’s limitation on removal only for "inefficiency, neglect of duty, or malfeasance in office." 

Humphrey’s continues to have significant implications today, in cases like FTC v. Walmart (N.D. Ill.) where Walmart has argued that by virtue of Humphrey’s, the “quintessentially executive law-enforcement power” that the FTC has under its authorizing statute is unconstitutional because its commissioners are not removable at will by the President. 

This teleforum will analyze the contemporary implications of Humphrey’s and its continuing vitality in U.S. Supreme Court’s administrative law jurisprudence.



  • Gregory Dolin, Senior Litigation Counsel, New Civil Liberties Alliance
  • Daniel Epstein, Director, Trust Ventures
  • Roger Severino, Vice President, Domestic Policy and The Joseph C. and Elizabeth A. Anderlik Fellow, The Heritage Foundation
  • Kimberly Wehle, Professor of Law, University of Baltimore Law School; Visiting Professor, Washington College of Law, American University
  • [Moderator] Aram A. Gavoor, Associate Dean for Academic Affairs and Professorial Lecturer in Law, the George Washington University Law School


As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.

Event Transcript



Dean Reuter:  Welcome to Teleforum, a podcast of The Federalist Society's practice groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of practice group Teleforum calls, become a Federalist Society member today at



Chayila Kleist:  Hello, and welcome to The Federalist Society's webinar call. Today, November 15, 2022, we discuss "Humphrey's Executor and Presidential Removal Power." My name is Chayila Kleist, and I'm an Assistant Director of the Practice Groups here at The Federalist Society. As always, please note that all expressions of opinion are those of the experts on today's call, as The Federalist Society takes no position on particular legal or public policy issues.


      In the interest of time, introductions will be brief. But if you'd like to know more about any of our speakers, you can access their full bios on I'll introduce our moderator, and I'll leave it to him to introduce us to our panel. Today we are fortunate to have with us as our moderator Professor Aram Gavoor, who is an Associate Dean for Academic Affairs and Professorial Lecturer of Law at George Washington University Law School.


He is a nationally recognized scholar and author in the fields of administrative law, federal courts, and national security law, and has been published in law journals, including the Florida Law Review, Indiana Law Journal, Ohio State Law Journal and Administrative Law Review.


Throughout this panel, if you have any questions, please submit them through the question-and-answer feature so the speakers will have access to them for when we get to that portion of the webinar. With that, thank you all for being with us today. Professor Gavoor, the floor is yours.


Aram A. Gavoor:  Thank you so much, Chayila. And thank you to The Federalist Society for sponsoring this event. This particular Teleforum is brought to you by the Federalist Society's Administrative Law and Practice Group. So today you'll learn about how a little-known 1935 Supreme Court separation of powers case, Humphrey's Executor v. The United States, is coming up a lot at high levels in litigations throughout the country.


      For example, last Monday, in Axon Enterprises v. The Federal Trade Commission, Humphrey's came up in the cert petition, but also argued by Paul Clement in oral argument. On that same day, in Securities and Exchange Commission v. Cochran, which was also argued last Monday, Humphrey's did not arise in oral argument, but the solicitor general discussed that case with great significance in the cert petition that the government filed.


So the case backdrop for today is Federal Trade Commission v. Walmart, a case that the Federal Trade Commission initiated on June 28 of this year in the Northern District of Illinois, over the objection of two of its commissioners and a declination by the U.S. Department of Justice to initiate enforcement. That case alleged that Walmart unlawfully allowed its money transfer services to be used by fraudsters, in violation of the agency's Telemarketing Sales Rule, otherwise known as TSR, if you're looking at the briefing. And that is a rule that it enacted under the Telemarketing and Consumer Fraud and Abuse Act — otherwise known as the Telemarketing Act — and other FTC authorities.


      So mid-August, Walmart filed a motion to dismiss the suit, arguing that it should not be held liable for criminal actions of unrelated third-party fraudsters. The primary argument, though, that Walmart brought in favor of dismissal was that the Federal Trade Commission lacks constitutionally valid authority to initiate litigation seeking monetary damages or injunctive relief.


Now, the fulcrum jurisprudence of this argument really rests on Humphrey's Executor, in which the Court held that the Federal Trade Commissioner can act independently of the president, upholding the statute that allowed for only for-cause removal, as opposed to at-will removal by the president. And, consequently, the FTC's Commissioner's independence from the president also comes — as Walmart and many others argue — with a cost: that it cannot exercise certain Article II powers, which include seeking monetary damages and injunctive relief.


      So, constitutionally speaking, what are we talking about? This is the Appointments Clause of the Constitution, Article II, Section II, Clause II, which established procedures for the president, for the appointment of officers of the United States. The text, in relevant parts, states the president "shall nominate, and, by and with the advice and consent of the Senate, shall employ ambassadors, other public ministers and counsels, judges of the Supreme Court, and all other "— key text — "officers of the United States."


But, unlike the power to appoint officers of the United States, the Constitution is silent with regard to the power to remove officers at will, which the Supreme Court and the president have construed as necessary incidental authorities for the ability of the president to oversee the executive branch, as is its charge under Article II. Now there's a lot more to it, but let's leave that for the discussants to engage in.


So with us we have a really fantastic panel that have assembled today. I'm very grateful to be part of this group. Professor Greg Dolin, who's a Senior Litigation Counsel at the New Civil Liberties Alliance, and also a professor at the University of Baltimore Law School; Dan Z. Epstein, who's Director at Trust Ventures; Roger Severino, who's the Vice President for Domestic Policy, and the Joseph C. and Elizabeth A. Anderlik Fellow at the Heritage Foundation; and Professor Kimberly Wehle, Professor of Law at the University of Baltimore Law School, and also a visiting professor at the Washington College of Law.


      Let me just tell you a little bit more about their backgrounds, and then we'll have a period of time where each of them will speak, in alphabetical order. We'll have some moderated discussion, and then we'll get to questions from the audience.


So, as I mentioned, Greg's a professor at the University of Baltimore Law School. His scholarship focuses on the intersection of patent, administrative, and constitutional law. So, in addition to a number of articles, he's also authored a number of amicus briefs, one of which he endeavored to file in the FTC v. Walmart case. That was rejected by the Court, in, I think, an observation of the FTC's opposition. He also received, in terms of his educational background, his bachelor's degree with honors from Johns Hopkins, and a juris doctor from Georgetown University.


He also holds an MD with recognition in humanities from the state University of New York at Stony Brook, and a master's degree in Philosophy. So he's pretty well educated. And, prior to coming to a secondary role that he has at the New Civil Liberties Alliance, where he's a Senior Counsel, he also spent two years as an Associate Justice of the Supreme Court of the Republic of Palau -- remarkable.


      Dan Epstein, our second discussant, is a lawyer and political economist who runs regulatory and legal diligence and operations for nearly 40 portfolio companies for a venture capital law firm. I've known Dan for years, and the type of work he does at Trust Ventures is typical of his body of work. So, for example, he's helped the general-wellness device, telemedicine, and dietary supplement entrepreneurs evade and comply with FDA strictures, evading enforcement. Prior to this role, he was at the White House Counsel's Office, where he worked on a number of important issues, including two executive actions signed by President Trump.


      He was the founder of the Cause of Action Institute and was its executive director, where he developed clients and cases behind the following bet-the-company regulatory challenges: in re, LabMD, involving FTC's failed attempt to prosecute a cancer lab under its Section V authority, Buckyballs v. the Consumer Product Safety Commission, Rhea Lana v. the Department of Labor, Drakes Bay v. Salazar, Goethel v. Commerce. The list goes on and on.


      He's also testified twice before Congress on regulatory oversight issues. And he's written extensively on the relationship between administrative procedure and legislative oversight. He also worked on Capitol Hill, where he oversaw the investigation of exposed tax fraud by the nation's largest community organizer, leading President Obama to sign legislation permanently blocking the organization from receiving federal funds. Now, if we ask him nicely, he might tell us about how he needed to dive into dumpsters to get that information. He's very rigorous.


      Roger Severino, our next discussant -- he's the Vice President of the Heritage Foundation, where he oversees domestic policy and is Senior Fellow at the Ethics and Public Policy Center, where he works on the EPPC's Health and Human Services Agency Accountability Project. So he's a national authority on civil rights, conscience and religious freedom, the administrative state, and information privacy, particularly as applied to the sector of healthcare law and policy.


      So, before joining the EPPC and Heritage, he was the Director of the Office of Civil Rights, OCR, at the U.S. Department of Health and Human Services, where he led a team of over 250 staff enforcing the nation's civil rights, conscience and religious freedom, and health information privacy laws. You should look up the prior office-holders of OCR. It's a pretty significant list of folks. So he's a graduate of USC, received a master's in public policy from Carnegie Mellon University, and he earned his law degree at Harvard Law.


      And last, but certainly not least, is Kimberly Wehle, who's a visiting professor right now at American University's Washington College of Law, and a tenured law professor at the University of Baltimore School of Law, where she teaches civil procedure, administrative law, and federal courts. She's also a legal contributor — you've probably seen her on the news a whole bunch for ABC news — and regularly writes for Politico, the Atlantic, the Bulwark, the Guardian, and the Hill.


Her scholarship focuses on the separation of powers, with particular emphasis on presidential power at administrative agencies. She's a former Assistant United States Attorney, Associate Independent Counsel in the Whitewater investigation, and the author of a number of books. I want to mention some of them: What You Need to Know About Voting and Why, How to Read the Constitution and Why, and How to Think Like a Lawyer-- and Why.


      She has a very active Twitter and Instagram account, where she also hosts an IGTV series called Simple Politics. So thanks again for our discussants, and we'll give the floor to Greg to talk for about six to eight minutes about Humphrey's.


Gregory Dolin:  Thank you, Aram, for that wonderful introduction. Thank you to The Federalist Society for having me. It's always a pleasure to be part of these seminars and Teleforums. So, as Aram mentioned, one of the hats that I wear is as Senior Litigation Counsel for the Municipal Liberties Alliance. And, as he also mentioned, we did try to put an amicus brief in FTC v. Walmart, which was rejected by the court.


In our defense, I'll say that this was not for any necessarily substantive deficiency in the brief. We were in good company. The court also rejected a brief by a professor at George Mason University, as well as, I believe, by the Chamber of Commerce. So they basically rejected all amicus briefs on the theory that the court said, "Look, I'm just an inferior court. We're just doing facts here. You want an amicus brief, wait until it gets on appeal or to the Supreme Court."


But, since we wrote this brief, I might as well have somebody listen to it, if not the trial judge. And so I'm going to try to kind of recapitulate what we said in kind of our critique of Humphrey's. And the basic premise of Humphrey's, as I understand it -- maybe Kim will put a different spin on it, but the basic premise of Humphrey's, as I understand it, is that, at least as it was decided, when it was decided, was this notion that this is a kind of quasi-legislative, potentially quasi-judicial agency. They don't really access executive power, as such. And, therefore, this is okay.


But, in our view, there's two separate reasons why Humphrey's is wrong. And let me begin with the broader one. And the broader one is that the conception of the executive power adopted by the Supreme Court all the way back in the 1930's is just too cramped. They just used executive power as merely the power to execute the law. So Congress passes a law prohibiting, I don't know, cocaine, and the president, through his subordinates, goes around arresting people and putting them on trial for cocaine possession.


But the power is actually broader. As we explain in our brief, it actually includes, not just executive power, not just the power to execute the laws, but kind of the whole force and vitality of the nation. So there's a quote that says, "The nation's actions, strength, and force." And one way they chose to show that the power includes more than mere execution of laws is you just have to look at presidents' foreign power.


Congress doesn't actually pass lots of laws about defining foreign power. Congress doesn't actually, itself, recognize it or derecognize it. It's foreign governments. That's all done by the executive branch. And so not actually executing any laws, they're exercising a nation's strength and a nation's force in dealing with our foreign counterparts. And so, if that is true, of course, the president, and everybody, I think, understands, and pretty much everyone else agrees, the president cannot act alone in a country of 300 million people. He probably couldn't act alone, even at the time of George Washington. He had to have advisors. He had to have people carrying things out. They have to have the ambassadors who actually would be representatives of our country abroad. They have to have counselors, etc.


But if the executive power, including the entirety of the nation's force is vested in the president, then it follows that the president should be able to remove people who undermine that force and undermine the nation's strength and vitality. Of course, we might all disagree as to what exactly makes our nations more or less vital. But that is why, after all, we have elections. And that is why, when a new president comes in, he, or she — if she chooses to change the direction of the nation, change the application of our strength, vitality and force — should be able to remove all those officials who undermine that president's vision.


And so, on that broad view of what executive power is -- after all our Constitution does say, "executive power," it doesn't say, "power to execute laws." And that, I think, is an important distinction. On that broad view of executive power, even the 1930's reading of the FTC statute at the time, where the court said, "Well, it's not really executing any laws. It's just doing kind of reports for Congress, and maybe some quasi-judicial functions," is, in our view, wrong. Why? Because by having this effect on the nation's economy, the FTC does, ultimately, bring the force of the nation to bear on the party's economic activity.


     But, even if you don't buy that argument, there's a narrower argument against the present-day FTC. Because back in the 1930's, FTC actually did not have executive power to execute the laws, kind of the narrow view of executive power. It did not have the power to prosecute and bring cases in federal courts. That was added much later, in the 1970's. And yet, no one — I don't want to say no one — and yet, FTC's ability to proceed with this newly acquired power, basically went almost kind of unnoticed on the strength of Humphrey's Executor, decided 40 years prior.


But the problem is that the very nature of the FTC has changed. What the Supreme Court has blessed in the 1930's is very different from what FTC is now. And the FTC now exercises a real executive power. FTC has separate litigation authority. FTC can hail people into court. FTC can actually oppose the Justice Department. A number of years ago, there was a case where — I think, I believe, under George W. Bush administration — where FTC and the DOJ Antitrust Division took a different view of whether or not certain settlements between patentees and generic drug manufacturers are appropriate. And they filed briefs on different sides of an issue in the Supreme Court. And that seems to be just wrong.


So even if you take the view that presidential executive power is just a power to execute laws, it cannot be that the president's Justice Department thinks the law should be executed in one way, and FTC should execute it another way, and the president cannot put, basically, a stop to that dispute.


Aram has told me that I have only about a minute left, so let me just close by this. I don't think there's going to be much dispute in saying, look, if Congress wants to create some sort of advisory body, like, for example, the Congressional Research Service, where, you know, you might even ask the president to appoint  people, maybe through advisory reports, "Tell us how things work. Tell us what is a good idea, what is a bad idea. Tell us kind of how our economy does or does not work." That would be kind of this quasi-advisory, quasi-legislative power. And that, probably, is fine.


But once you give an agency ability to adjudicate, take [inaudible 00:18:22] in federal courts, or ability to execute, whether in a broad or narrow sense, that creates a problem that undermines the fundamental liberty and protection of our Constitution, which is — as Justice Scalia said many times — all the worst countries, all the regimes had the best constitutions. And I know. I grew up in one.


The Soviet Union had an amazing constitution with all sorts of civil rights protections written in. And yet, none of them were enforced. Why? Because liberty protection stems not so much from the Bill of Rights, which is, of course, important, but from the fact that three branches of government fight for their power, thus making sure no one of them becomes too powerful. And having these independent agencies that are both judge and executioner fundamentally undermines that setup. I'll stop here.


Aram A. Gavoor:  Thanks so much, Greg. Dan, you're up next.


Daniel Z. Epstein:  All right. I'll try to be quick. And maybe the best way for me to share my thoughts is almost in response to Greg. As Aram mentioned, I'm kind of naturally an Article I guy. And what I think is important, obviously underlying any discussion of Humphrey's Executor, when it comes to the question of can the president hire and fire, you get into the kind of load of the fun issues, which is, is the FTC or the FCC a law enforcement agency, or is it simply a kind of investigative commission?


And I think I want to start with some history that I think is responsive to some of the things Greg said. And maybe you can view this as a tepid defense of Humphrey's. The idea that the president is supposed to have this very big role over the economy is certainly a notion that does not comport with, I think, the original understanding of the Constitution, and certainly with history. The first is that, just look at what is the kind of law of the soil of British America. It was the Hudson's Bay Corporation Charter.


And that charter was a corporate charter that very much -- throughout the history of this county, corporate charters, corporations, which included most city infrastructure, most regulations done at the county level, or the city level, historically -- these were all called corporations. That is very much something that our courts, throughout the 19th century, have viewed as kind of legislative in character.


And that is something that goes all the way back before we even had a constitution. So the idea that it is the executive that is supposed to have a major role when it comes to regulating people's lives is just kind of historically not true. In fact, the Hudson's Bay Company is still alive today. Many of you have been there. It's called Sax Fifth Avenue.


And I think that relates to the second historical point, which is, when we talk about investigations, which is literally what FTC and its predecessor, the Interstate Commerce Commission, most of what they did — in fact, we have this myth that we call these regulatory agencies. But agencies didn't regulate until 1906. What did they do for the first part of their livelihood, their life? They investigated. And there's no question that that kind of investigative role is clearly legislative.


That's why, when Congress used to actually conduct investigations in the 19th century, that's what Congress did. And it's not hard to imagine, I think, the real debate. The real kind of point of discussion is we see the history of the abdication from Congress. So Congress used to investigate. It also -- Greg made the point that adjudication is somehow not a legislative role. Well, then, what was the Court of Claims throughout the 19th century? What was Congress's private bill authority where Congress adjudicated at the founding? Clearly adjudication is a legislative power, and certainly not an executive power.


And so, I think what we see is that Congress has continually abdicated its authority. It used to investigate. It used to adjudicate. Congress then says, "Oh, that's a lot of work. Let's create the Interstate Commerce Commission." By the way, the Interstate Commerce Commission of 1887, created at the same time as the Pacific Railway Commission of 1887. These were clearly legislative commissions. No one would have said that they were executive. But then, after Congress decided, well, "Let's abdicate our investigative authorities," they also decided, "Let's abdicate our rulemaking authorities."


So the whole idea, the whole history of the Interstate Commerce Commission or the Pacific Railway Commission is that they conducted inquiries. But then Congress reserved the ability to kind of legislate and rule-make. And this is important, because it shows that investigations -- if we really want to understand what's the law of investigations, we could argue that it's rulemaking. But then, after it abdicates its investigative authority, it abdicates its rulemaking authority, I think what we've now seen is that, to Greg's point, starting with around 1975, we started giving these agencies not just injunctive authority, but penalty authority.


By the way, Greg's wrong. The FTC had injunctive authority back in the '30s, so it didn't just get that in 1975. The big change you see in 1975 — and it's a change after Nixon — is Congress started just saying, "Well, we're just going to create an enforcement state." And so I think that's an important set of weight points for understanding what's really going on. Humphrey's Executor was right, in the sense that the FTC in 1935 was really just an investigative commission for the purpose of informing legislative policy.


The problem now is we've imbued these formerly legislative agencies with penalty authority. And I think that's the death knell. The problem, and I think what the really interesting question is, okay, so let's assume that all these agencies are executive now. What does it mean that Congressional oversight can effectively intervene with what these agencies do? You say that they're Article II, but should they be immune from Congressional oversight? Should that mean if we say that the real fix is just "Oh, the president can fire SEC commissioners," does that fix the problem that the SEC can go into court without the Justice Department, or the FTC can do that?


Does it fix the problem that they have a potential penalty authority that doesn't have to go through Fifth Amendment due process checks? I don't know if it does. And so I think some of this is the implication of what we might mean, as a practical matter, by saying, "Well, the president should be able to fire these people."  That's my spiel. Thank you.


Aram A. Gavoor:  Thanks so much, Dan. Next up is Roger Severino.


Roger Severino:  Great. So I'm in a unique position in that these issues are very much personal. I was appointed by President Trump to a three-year term to the Administrative Conference of the United States, which describes itself as an independent agency. And President Biden fired me. Within 27 hours, I sued President Biden. Now, a bit of background on this. Historically, presidents had free reign to appoint ACUS members, and no subsequent president, regardless of party, would actually ask for their dismissal. Now, why is that? Well, because ACUS is effectively an advisory body with no real executive power, no quasi-legislative power either, no quasi-judicial power.


So why did President Biden go after me and a couple of other members?  You'd have to ask him, because he did not actually state any reason whatsoever for asking for my dismissal from this agency. This agency was created by Congress, and it provided for a three-year statutory term. Now, our argument, argued by Christopher Mills, a fantastic lawyer, says that, based on statutory interpretation, three years must mean something. And we argue it means three years.


So we have the three-year term, there's no for-cause removal requirement in the actual text of the statute that created my position, and the president provided no reason whatsoever for my dismissal. You combine that, plus Humphrey's Executor, and the Wiener decision in the U.S. Supreme Court, and I win. Right? So why me? Being a good Federalist, why am I bringing this sort of case? Well, I wanted to make sure that the rules are clear.


All parties have been playing by one set of rules that this position was respected. Now that that precedent was broken, the notion that Biden was going to bring unity was proven false, because he went out of his way to go after even advisory committees to get rid of people that were appointed by his predecessor. So, what are the rules? Does a president have this actual power to remove people like me, or not?


Now, as a good Federalist, I have issues with Humphrey's Executor. If I were a Supreme Court justice and ruling on the court case of "Is there such a thing as independent agencies with such broad powers, quasi-legislative, etc.?" I would vote no. l would vote no. However, that case has not been reconsidered. The precedents are still there, and I want to make sure that those precedents are followed, so that it's not just one side that gets the benefit from a rule and the other does not.


So, in one sense, I could win either way. Either I get to be reappointed — that is in keeping with the previous standards, — or not. And, to a degree, Humphrey's Executor might be chipped away, which I think is ultimately where the Constitution lands on this issue. So, interestingly enough, Marbury v. Madison is part of my case as well, which dealt with a presidential commission and the Appointment Clause power, and those constitutional issues Judge Walker asked to be briefed. So there's going to be supplemental briefing on my case on the constitutional questions involved.


Interestingly enough, there's a distinction that could be made with Humphrey's Executor, in that there is no quasi-judicial or legislative power. In Humphrey's Executor, the question is, "What is the FTC?" came up. And I don't think they satisfactorily answered that question. Under what branch of government is the FTC answerable to? Is it judicial?  Is it Article I, II, or III? You only have three options. It had created some new thing, a new Article in the Constitution for these new types of organizations that aren't really answerable to any of them directly.


In my position, I have a three-year term, subject to the appointment by the president. It's not even under advice and consent by the Senate. So what am I? What is my position? That question was raised by the judges, because it is somewhat unique. What is somebody on an advisory board, under a statutory term, appointed by the president? Who is that person answerable to? I am dying to find out the ultimate answer to that question, because it does touch on these issues of fundamental importance.


Is all executive power vested in the executive? Or is there something else? Is there something new? Is there something outside of it? Again, if I were the Supreme Court, if I were a justice, I would vote one way. But, hopefully, we're going to find out what those rules are, and it will be answered one way or another. And maybe, who knows, this question, itself, will be -- my positional question will be answered by the Supreme Court and we'll see exactly how far Humphrey's goes.


Aram A. Gavoor:  Thanks so much, Roger. And just for the audience, I did a little looking up while Roger was speaking. It's 22-5047 D.C. Circuit. Oral argument took place on Tuesday November 1. So Humphrey's Executor is very popular in the month of November 2022. Next up, Kim Wehle to round out our discussants.


Kim Wehle:  Thank you so much. So many things to unpack here. I just want to start by saying I completely agree with Greg's point on terms of the protection of individual liberties really being about the structure of the Constitution, not so much about what's articulated in the Bill of Rights. And so much of this is being not just litigated in the courts right now, but also, tearing from the headlines, administrative law in federal courts has become sexy in the last five years. Who knew?


But I should say, as a threshold matter as well, Greg's point that the president does all kinds of other stuff besides just enforcement and executive power, that raises another issue that we're not covering here, but is also, I think, on the radar of the United States Supreme Court, and that is the nondelegation doctrine. All of this discussion really comes down to the vesting clauses. Are they exclusive? Or is there a checks and balances, and shared separation of powers? And, of course, even in Seila Law, Justice Kagan, in her dissent, made the argument that, "Listen, separated powers do not mean formal separation." So those are some of the big pictures.


I want to just walk through the various stages of how this doctrine developed. My view of it -- and I've written on this, several pieces, primarily around the concept of outsourcing of government power, government contracting. And there's several Law Review articles I've done over the years. Because one thing I think that's missing in the discussion of the scope of the power of administrative agencies is how outsourcing, contracting, grant-making has increased over the years. And when private parties exercise governmental power, pursuant to a contract, there's no Administrative Procedure Act oversight, the Freedom of Information Act doesn't apply, and the Constitution doesn't apply.


So, if people are concerned — I think, for a good reason — about constraining the scope of unaccountable government power, in my mind it's important to include government contracting in the overall discussion. Because, for sure, government agencies, however they're fashioned, have less power, in terms of unaccountable political authority, than private contractors that are outside the scope of the Constitution and the regulatory statutory framework.


I also can't help but mention Dobbs, right? Dobbs, I think, has reformulated how we're going to approach constitutional questions to begin with. And the elephant in the room, in my mind, is the fact — as you mentioned, Aram, in the beginning — that removal power is not expressed in the United States Constitution. Appointment is in there, but it's implied. So the entire concept of removal is an implied power.


Under Dobbs, step one, the question is, should it even be recognized if it's not articulated in the Constitution? And if the answer to that is, "No, it's not there," then step two would be Dan's argument, that is, we go back to historical precedent and look to see if it's consistent with history as something that we recognize. And that's outside the scope of my expertise.


Of course, the first case to recognize the removal power, as implied in the Constitution, was Meyers v. United States, involving the dismissal of the postmaster general. In that case, really what the court was worried about was Congress intruding in the removal power. And the court's been really clear that when it comes to Congress aggregating and grabbing some of this appointment and removal power: that's a no-no. That's been pretty well established. And that's really, I think, what Meyers established, is Congress can't invade the province of the executive branch, and then, in the context of that, articulated that removal power was implied.


Then we get Humphrey's. And I really think, in looking at this, Congress has done these things, these new wonky agencies, and the court looks at it as says, "Are we okay with this?" It's almost kind of chasing the tail of what Congress has done. And I think Seila Law is just another example of that, where, essentially, the majority said, "Listen, we just don't like this new designer agency. The same thing with Free Enterprise Fund v. PCAOB. We just don't like it. This one is a little too wonky for us," without really articulating a clear theory of how to approach this.


So in Humphrey's, that involved a for-cause removal, not Congress stepping in and trying to grab power, but constraining this implied removal power. And there, the court did come up with this quasi test: okay, well, it's not pure executive power, it's quasi-judicial, quasi-legislative. We're okay with that. And then, that's come to sort of define this idea of independent agencies. Of course, there's about 66 of them that have this multi-member board, the way the FTC does, where there's limited for-cause removal provisions, etc. But as a practical matter, any executive agency — or not any, but many, even including cabinet-level agencies with a single secretary — exercises quasi-power.


So, there's regulatory authority. That comes in. The nondelegation doctrine pops in there. There's adjudicative authority. So the quasi test isn't really a test. I think the court just said, "All right, we're okay with for-cause limitations on removal, because removal is implied. And, by the way, this isn't a purely executive agency. They do other stuff. So we're less concerned about constraining the president's removal power.


The big problem, I think, with the sort of Walmart challenge is Morrison v. Olson. And I would say, I think, in looking at the briefs, I disagree with the court that Greg's brief didn't add something, and that Greg actually grapples with Morrison v. Olson, which the motion to dismiss does not. And in Morrison v. Olson, of course, this involved, as Justice Scalia said in his, I think, very prescient and important dissent, "Listen, you're talking purely executive power here. You're talking a prosecutor who can look at the United States president. That gets as close to pure Article II power as there is."


And the Court upheld constraints on appointment and removal there, and did it in a way that I think actually helps the FTC here. It said that "Oh, well, there's limitations on the removal, for good cause." Almost like the existence of the removal provisions makes this an inferior officer. So it's okay, has constrained duties, doesn't have pure prosecutorial power constraint. So does the FTC here. So it's okay, it's an inferior officer.


I'm not suggesting that the FTC is an inferior officer, the commissioners. That's a whole other concept. But, again, I feel like the Court kind of justified the structure here, kind of moved away from the quasi test and said, "Well, here, it's not core executive power, because this independent counsel doesn't have unlimited prosecutorial authority," but made really clear to say that the question of removal and the propriety of limits on removal is not a purely executive power test.


And I really see the challenge to WalmartWalmart's challenge here — is somehow that agencies cannot exercise -- the argument is agencies can't exercise enforcement authority, pure enforcement authority or executive authority with the ability to get penalties, without full removal power. And the Court just never held that or even came close to that. And, as I said, in Seila Law, it seems like the problem was, okay, too much concentration of power, outside appropriations. There were other details of the CFPB's creation, statutorily, that the Court's like, "We're just not comfortable expanding Humphrey's."


But, in terms of a core theory, I just don't see -- unless the Court does what it did in Dobbs, and what it looks like it's doing with the major questions doctrine and other aspects of the Constitution, I don't see that, with Morrison v. Olson still standing, I don't see a strong argument for challenging the existence of the current structure of the FTC in this moment.


Aram A. Gavoor:  Thanks so much, Kim. So there is so much to unpack here. I think I'll be the first to concede that this could have been a full-day event, or a multi-day event. What I will try to do is I will try to distill some of the big points of the discussants, and then just give each of you about three minutes to react to each other, because there's a fair amount of cross discussion.


      So Greg offered the traditionalist formal separation of powers position. And I also want to add, it does strike me as odd that the FTC actually opposed amicus briefs. Usually, at least the DOJ usually accedes to that. And then, also, Dan provided a contrary view, with regard to -- sort of viewed in the Article I valence, and part of sort of an instrumental acceptance of some of the advantages about Humphrey's, given the shift in the authorities of the administrative state.


And he essentially mentioned that in 1935 the FTC was just an investigative commission. So I also wanted to note, I think, the quintessence of his view of the power of Congress's investigative authorities: that which we each possess, the Freedom of Information Act. You essentially have delegated investigative authority by Congress right now, during this Teleforum. You can exercise it.


      Roger, leading a pressing challenge that could set the stage for the broader domain of Humphrey's and presidential removal power, depending on how the circuit opines, and then, Kim, tying in very nicely with Meyers and also other separation of powers jurisprudence. So, note, Meyers was authored in 1926 by then-chief Judge Taft, President Taft. So he had a viewpoint on the power of the executive. And keep in mind that Humphrey's was the very, very same Court that decided Panama Refining and A.L.A Schechter Poultry, overturning a section, and then the entire National Industrial Recovery Act, which is non-delegation doctrine. So I think it's quite prescient that she's identifying that.


      But next, Greg, three minutes to respond.


Gregory Dolin:  Yeah, I may have muted myself. Actually, let me take it in reverse order. And so, first, I actually want to specifically thank Kim. Kim is my colleague, as you mentioned, at the University of Baltimore. Kim and I had some disagreements, especially over the last year, as to proper scope of both executive authority and judicial authority. Personally, I wanted to thank her because I'm the one who extended the invitation to her to come on this panel. She agreed within 15 minutes.


And it's always nice to have -- perhaps like walking into a lion's den, and I really sort of do appreciate both as a colleague, that you be -- as somebody who may have different views and somebody who appreciates engaging with those views at a very deep level. So let me just kind of -- I think I agree with a lot of what Kim said. I think that there are a number of other sub-issues. But let me focus kind of on one thing that Kim mentioned about this idea that the Court has previously blessed for-cause removal.


And there's two ways you can skin that cat. One, is to basically say, "Look, this simply cannot be, because the president, if he's to carry out his duties, he needs to make sure that his subordinates actually follow his directions. But there's a slightly narrower way to look at it, and that's -- I'm basically cribbing from former Judge Griffith of the D.C. Circuit, who said, "Look, we can leave the for-cause removal, but cause must include this kind of refusal to follow a president's directions, or refusal to take the nation in the direction the president wants to."


      So I think either way you do it, I think, ultimately, the presidential authority runs [inaudible 00:43:30]. I think my biggest, not really disagreement — I think, ultimately, we came up to a very similar point — is with Daniel. So I just wanted to respond to a couple of things. Look, I agree that investigation, done right, and even in, sometimes, adjudication, maybe within Congressional authority, Congress investigates all the time. In fact, I would want Congress to investigate before they start passing legislation. I want them to know what they're doing and not just randomly throwing darts at a page and hoping something good comes out of it.


      But I think once -- so if FTC was just doing reports, much like CRS, much like perhaps, even Administrative Conference of the United States, they'll be wanting. But the FTC and SEC are doing other things. Furthermore, leaving aside non-delegation doctrine — which, I think, is due to be revitalized, I think, as a general conceptual matter — it is less — somewhat, not much, but somewhat less problematic, when I delegate my own power, as opposed to when I delegate your power.


It's one thing to say, "Look, we're congressmen, we're too busy, we can't do all the investigation in our hearings with our 40 members on the days when everybody has only five minutes to speak, and needs to get on Twitter, as opposed to, "Let's delegate it to somebody else." It's quite a different story to say, "We're going to take presidential power in a different branch and disperse that. So I think, to the extent these agents are doing something beyond mere investigation, I think that brings additional concerns above and beyond the nondelegation doctrine.


Aram A. Gavoor:  Thanks so much, Greg. Dan?


Daniel Z. Epstein:  Thank you. So, I kind of want to make two, again, historical points. Because I think we're all scratching on the surface. But I think we actually all agree that there's some type of power that is clearly executive, and some type of power that is clearly legislative. And I think we just have to talk about the practical implications of that.


So I think there's some interesting points. One is, we talk about Meyers, we talk about Humphrey's Executor. Who knows what court those two cases originated in? It was not Article III. It was a Court of Federal Claims. So, Kim, this is actually perfectly relevant to your whole discussion of government contractors, which have existed since the founding, and who were given all sorts of powers, private bill powers, without presidential oversight.


      So I think that's interesting, because -- just take Roger's case. Roger did not file his case in the Court of Federal Claims, but both Humphrey's and Meyers came out of the Court of Federal Claims and that's telling. That's telling, because the presumption was that these are Article I agencies. The presumption now is that all these commissions are Article II agencies. There's only one reason why we have that presumption. And that is because the passage of the Administrative Procedure Act effectively puts rulemaking and enforcement powers within a single agency. So I think that's something to consider.


      The second thing is that I think we have to deal with the fact that — Greg, you make this point — while if it was just investigations, that would be legislative. But once you go beyond that subpoena power, injunctive power, all of that, it becomes executive. Well, under that theory, GAO is executive, because GAO has the ability to issue not just requests for information to the executive branch, not just requests for information to government contractors, not just adjudicative powers in the bid protest process, but GAO now has, signed by President Trump -- it was the first executive action signed by President Trump, was to give GAO independent authority to enforce its subpoenas in court. Is that executive?


      As a matter of history, if you're an originalist, your argument is that's not -- you can't say that's an executive power, because, throughout the founding, the idea of enforcing subpoenas was clearly something that was legislative, particularly over corporations, particularly over corporations. So, food for thought. Those are my only points.


CRS, by the way, also has investigative authority over the executive, has used it. Is it executive? I don't know. The librarian of Congress, to whom CRS reports, is appointed by the president. Does the president have the authority to fire the librarian of Congress? Does the president have the authority to fire the comptroller general, who is, again, presidentially appointed and Senate-confirmed? I think those are the questions that, I think, if we can answer them, we can actually develop a clear bright-line principle to resolve these issues. Thank you.


Aram A. Gavoor:  Thanks Dan. Next up is Roger.


Roger Severino:  Dan, you make some excellent points. I was thinking that GAO is the model of Congress asserting its authority to create something like an agency that assists Congress. So when I was a regulator, I would get requests from GAO, and we complied, because we knew if we didn't we would get Congress mad at us. And Congress has the power of the purse. And that's the ultimate check. So you can have an agency that has all this power, that has somebody appointed by the president, like GAO, but do it in a constitutional manner.


So there, you really see that, Congressional Research Services -- those are much more arms of Congress. And them having subpoena power, I don't think changes that too much. If you're in civil litigation, private individuals have subpoena power. They can request documents, etc., and so that doesn't trouble me that much. But what gets into trouble is with Humphrey's when it said, very specifically, adopting the Wasonian view of rule by experts, it was dripping with this notion that if we get politics out of it and leave it to the experts, we're all going to be better off.


And it specifically said that if you have a length of terms and you get the independence and they're insulated, they will build that expertise, and that's good for the country. It was a suspicion of political power and control from anybody, from Congress or the president. They wanted it to be an absolutely independent agency. They said that specifically, as independent as possible. And they created this notion of quasi-judicial, quasi-legislative, to get around the constitutional structures.


      And this is, I think, the most troubling sentence from Humphrey's. When it's talking about the nature of the duties of the FTC, it says, "It is charged with the enforcement of no policy except the policy of the law." What is that? You have this non-accountable entity with the power of the policy of the law? That seems like a combined executive, judicial, and legislative, all in one. What is the policy of the law? And I think that is quite dangerous, when we don't have accountability from the people, most clearly from the executive.


Aram A. Gavoor:  Thanks Roger. And to close it out, Kim. Anyone who is an attendee, please feel welcome to ask questions in the chat. And, if we have time, we will get to them.


Kim Wehle:  I don't have a whole lot more to add, except that, from the broader separation of powers perspective, there are two other actors that are part of this discussion, and that is the United States Congress, and the Supreme Court. So, if the removal power is unlimited, I don't know what the limiting principle of "unlimitedness" is. So we then would have a situation — implied removal power — where the president could remove at-will pretty much everyone within the executive branch that's exercising quasi-executive power. And we're in a timeframe where we're seeing presidential abuses of power come to the forefront in ways that are historically unprecedented.


And the other two branches are in place. The United States Congress creates these designer agencies. And we're seeing, in other areas dealing with major questions doctrine — Voting Rights Act, etc., — congressional authority constraint. And then, the third actor in the room, of course, is the U.S. Supreme Court. And where I am on this, in the question of the separation of powers, is transferring too much power to unelected justices to construe ambiguities based on policy outcomes makes me uncomfortable.


And, given that we are talking about a legislative pronouncement about how to manage unlimited executive power, I'm more comfortable with deference to the United States Congress than to unelected justices and/or an unlimited executive. And that's, I think, what is potentially on the table, if something like Humphrey's were rewound. Now, I want to add, I agree with Roger, in that — or the implication of what Roger said — the research definitely doesn't show that independent agencies somehow are more independent or apolitical, or less expert, or more expert, all of that.


I'm not sure the experiment, the notion behind having independence from the presidency has produced better policy outcomes than executive branch agencies that have a cabinet-level official at the top. But, again, to me that's a policy judgment for Congress. And, given, from an originalist, textualist standpoint, the ambiguity in the Constitution around these constraints, I don't like the idea of red lines being drawn by the Court in a way that would upend decades, if not a century of administrative jurisprudence.


Aram A. Gavoor:  Thank you, Kim. We have a little bit of time for questions. One question coming in from a member of the audience that I personally don't have the acumen to answer. "If there are infirmities in the ability of the FTC to enforce rules such as the Telemarketing Sales Rule, the TSR, are those concerns mooted if any enforcement action is brought by the Department of Justice?" Any takers among the panelists?


Gregory Dolin:  I'll take a shot at it. I think, again, it depends on what all FTC is doing. But, sure, again, in that sense you can think about lots of people can come to the DOJ with a complaint saying, "So-and-so is doing something bad," and, ultimately, the DOJ decides on executive discretion and how the resources are getting spent, whether or not to bring a complaint. If the president doesn’t like it, they can fire people. So I think that would be at least a step in the right direction.


Kim Wehle:  I can also weigh in on that. I actually worked at the FTC, early in my career.


Aram A. Gavoor:  Oh, that's great. That will help you answer this.


Kim Wehle:  And I know, on the antitrust arm — I was in the consumer protection arm — in my recollection, and it might not be entirely accurate, in terms of how they carve up the work, but there was some jockeying for cases between the DOJ and the FTC. That is, in theory, the DOJ could enforce the same, or much of the same law that the FTC has the authority to do.


So, setting aside removal, as a pragmatic matter, if we want enforcement of federal law by executive branch officials, I'm not so sure, as a policy matter, it has to be vested in the FTC. I'm also not so sure, as a legal matter, that the 1970 amendments were unconstitutional. But if the question is pragmatic, in my experience, I don't know that there's a really important dividing line between DOJ and FTC lawyers, in that regard.


Aram A. Gavoor:  Thanks so much. I think our last question for the day is a theoretical one: "Essentially, what is the legitimacy of the modern FTC? Should it even exist?" It's a little bit far afield from the constitutional question that we have, but I'm happy to ask it. If anyone wants to respond, they're welcome to do so.


Roger Severino:  Well, looking from the opinion of Humphrey's itself, it says it's about regulating corporations, except banks, from using unfair methods of composition in commerce. That is extremely broad. And to have that sort of broad mandate would suggest you need to have a politically accountable head, able to have the power to remove and appoint.


Daniel Z. Epstein:  Yeah, I would just jump on. And this is why I made the historical argument about, if you talk to someone at the FTC or the SEC or you talk to someone at the Civil Fraud Division of DOJ, they'll say they're prosecutors. And what they're prosecutors of, and really what they say is, they're market enforcers. And I think this is actually dangerous. And the best way of articulating this is Justice Murphy's dissent in Oklahoma Press Publishing v. Walling, which articulates -- actually if you're concerned about liberty, the worst thing you want is the idea of the president as market enforcer.


And part of the reason for that is because, if you're truly an originalist, and you're about the us gentium, and the [inaudible 00:56:43] whatever you want to say about law of the soil and all this stuff, if you're truly someone who's a constitutional conservative, you don't want the president regulating corporations, because corporations are creatures of the state, are creatures of municipality. That's a big separation of powers issue. That's why it has always been subject to the legislative sphere.


And I think what we haven't really said is like, let's just be honest. Congress isn't equipped anymore to regulate corporations. Congress has abdicated that authority. And that's really the starting problem with all of this. And I think we're at this point now where it's like, "Yeah, the solution is not legislative, so let's just look to the courts to fix the problem." And I think it's just an underlying problem that is in search of a solution.


Gregory Dolin:  Well, let me use the last fifteen seconds, and if I could very briefly respond. I agree with Daniel that we should not have the president pick market winners and losers and regulate corporations. However, I think it's even worse when it’s somebody who is not at all politically responsible, who is there for an undetermined period of time, is doing that. It's bad when a president does it, but it's even worse when it's unaccountable administrative agency does it.


Aram A. Gavoor:  Well, thank you so much. We were able to fit it all in within one hour. Thanks again to The Federalist Society for hosting this Teleforum. It should be available and posted online in a couple of days.


Chayila Kleist:  Absolutely. On behalf of The Federalist Society, I want to thank our experts for the benefit of their valuable time and expertise today. And I want to thank our audience for joining and participating. We welcome listener feedback by email at [email protected]. And as always, please keep an eye on our website and your emails for announcements about upcoming virtual events. Thank you all for joining us today. We are adjourned.




Dean Reuter:  Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s practice groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at