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83 Geo. Wash. L. Rev. 1835 (2014-2015)
Debunking Humphrey's Executor

handle is hein.journals/gwlr83 and id is 1923 raw text is: Debunking Humphrey's Executor Daniel A. Crane* ABSTRACT The Supreme Court's 1935 Humphrey's Executor decision paved the way for the modern administrative state by holding that Congress could constitu- tionally limit the President's powers to remove heads of regulatory agencies. The Court articulated a quartet of features of the Federal Trade Commission's (FTC) statutory design that ostensibly justified the Commission's constitu- tional independence. It was to be nonpartisan and apolitical, uniquely expert, and performing quasi-legislative and quasi-judicial, rather than executive, functions. In recent years, the staying power of Humphrey's Executor has been called into question as a matter of constitutional design. This Essay re- considers Humphrey's Executor from a different angle. At the end of a one- hundred-year natural experiment, the Commission bears almost no resem- blance to the Progressive-technocratic vision articulated by the Court. The Commission is not politically independent, uniquely expert, or principally leg- islative or adjudicative. Rather, it is essentially a law enforcement agency be- holden to the will of Congress. This finding has potentially important implications for agency design, constitutional doctrine and theory, and under- standing of agency functioning. INTRODUCTION ................................................. 1836 I. HUMPHREY'S EXECUTOR IN CONTEXT .................. 1840 A. Myers, Humphrey's Executor, and the Progressive Vision for Technocratic Independence............... 1840 B. Presidential Control After Humphrey's Executor.... 1846 C. Why Reconsideration? The FTC and Progressivism at One Hundred ............................. 1850 II. HUMPHREY'S EXECUTOR DEBUNKED ................... 1851 A. Nonpartisan and Politically Independent .......... 1852 B. Uniquely Expert ............................. 1856 C. Quasi-Legislative... ...................... 1859 D. Quasi-Judicial... ............... ........ 1863 III. THE COMMISSION'S PREDOMINANTLY EXECUTIVE CHARACTER ................................. ........... 1868 * Associate Dean for Faculty and Research and Frederick Paul Furth, Sr. Professor of Law, University of Michigan. I have benefited greatly in the writing of this Essay from com- ments from Nick Bagley, Bill Kovacic, Joan Larsen, Julian Mortenson, Adam Pritchard, Peter Strauss, and from various participants at a conference on the centennial anniversary of the Fed- eral Trade Commission held at The George Washington University Law School and a faculty workshop at the University of Michigan. Jennifer Fischell provided excellent research assis- tance, including the hand coding of the enforcement decisions reported in Section II. November 2015 Vol. 83 No. 6 1835

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