The death of Humphrey's Executor

Humphrey’s Executor v. U.S. (Supreme Court 1935) is the main case cited by individuals who dispute the President's authority to remove members of the NLRB and MSPB without cause.

Here's the thing: That case is just plain wrong. (And not because it’s 90 years old.)

It's wrong for three basic reasons.

In 1935 the Supreme Court had already held that the President could remove the heads of administrative agencies without cause.

So what made the Court think Humphrey's case was special?

One: A Multi-Member Board. Humphrey sat on a multi-member board instead of running an agency solo. Big deal, right? Why would the number of people on a board matter for a constitutional question? It doesn't.

Two: The Experience Factor. These appointees had relevant experience and would get even more by serving. My response? Who cares? Since when do experienced people get extra constitutional protection? That's nonsense.

Three: The "Quasi" Magic. This is the big one. The Court said these folks were doing "quasi-judicial" and "quasi-legislative" work—not executive functions. Notice that word "quasi"? It means "It looks like a duck but it ain’t actually a duck."

Sure, they hold hearings that look judicial—but they're not Article III judicial. It's just a smart way for executives to make good decisions.

And yes, they make rules that look legislative—but they're not Article I legislative. It's just how you create consistency and let people know what to expect.

Bottom line: NLRB and MSPB members are doing executive work under Article II, period.

And the Supreme Court stated it this way when they granted a stay in Trump v. Wilcox (05/22/2025): "The stay reflects our judgment that the Government is likely to show that both the NLRB and MSPB exercise considerable executive power." Maybe not exclusively, but definitely "considerable."

When Trump v. Wilcox winds it’s way back to the Supreme Court, we'll finally get to watch Humphrey's Executor's funeral.

Amuse yourself. Go read the Humphrey's Executor case [HERE].: