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Is the Humphrey’s Executor exception still applicable? Fifth Circuit says yes, for now.

Posted on: Feb 21, 2024
News: Committees
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In Consumers’ Research v. Consumer Product Safety Commission, the Fifth Circuit examined “one of the fiercest (and oldest) fights in administrative law: the Humphrey’s Executor1[1] ‘exception’ to the general ‘rule’ that lets a president remove subordinates at will.”  91 F.4th 342, 345 (5th Cir. 2024) (citation omitted).  The Humphrey’s Executor exception “permit[s] Congress to give for-cause removal protections to a multimember body of experts, balanced along partisan lines, that performed legislative and judicial functions and was said not to exercise any executive power.”  Id. at 352 (quotation omitted).  Recognizing that the removal doctrine lacks clarity, that the Supreme Court has not yet overruled Humphrey’s Executor, and that Humphrey’s Executor’s reasoning “has not withstood the test of time,” the Court, reversing the district court, held that the Consumer Product Safety Commission (the “Commission”) was an independent agency whose members the president may remove only for cause.  Id. at 346, 352 (quoting Seila L. LLC v. Consumer Fin. Prot. Bureau, 140 S. Ct. 2183, 2198 n.2 (2020)).

The Commission’s structure was constitutional, said the Court.  Id. at 346.  The Commission had five members, each of whom the president must appoint and the Senate must confirm.  Id.  Those members served staggered, seven-year terms.  Id.  And no more than three of them could be affiliated with the same political party.  Id.  Despite the Commission wielding “substantial executive power,” the Court concluded that it was, in every other respect, “structurally identical” to the agency that the Supreme Court deemed constitutional in Humphrey’s Executor, i.e., the Federal Trade Commission.  Id.  It further bolstered its holding by observing that the Commission’s structure did not require the Court to confront “a historically unprecedented situation,” its board was multimembered, and its structure was “not novel.”  Id. at 354-55.

Importantly, the Court acknowledged that Seila Law “cast[ ] doubt” on the constitutionality of agencies like the Commission.  Id. at 355 (alteration in original).  But, reasoned the Court, the Supreme Court’s “decisions remain binding precedent until [it] see[s] fit to reconsider them, regardless of whether subsequent cases have raised doubts about their continuing vitality.”  Id. (alterations in original) (quotation omitted).  Accordingly, the Court concluded that Humphrey’s Executor still protected the Commission.  Id. at 356.

About the Author...

Ellie D. George
Liskow & Lewis, APLC

Written on behalf of the Appellate Practice Committee. 

 

[1] Humphrey’s Ex’r v. United States, 295 U.S. 602 (1935).