Trump, the NLRB, and Humphrey’s Executor

Does the Supreme Court believe in ‘independent’ federal agencies? Watch Gwynne Wilcox’s suit

WSJ editorial. Excerpts:

"Independent agencies are constitutional chimeras, yet the High Court blessed them, sort of, in Humphrey’s. “The Federal Trade Commission is an administrative body created by Congress to carry into effect legislative policies,” the Court said. “Its duties are performed without executive leave, and, in the contemplation of the statute, must be free from executive control.” Now these bodies regulate much of the U.S. economy, and they’re democratically answerable to—well, who, exactly?

The precedent sits uneasily with Article II of the Constitution, which begins: “The executive power shall be vested in a President of the United States.” Consider that policing antitrust laws is now done by both the FTC (which the President doesn’t directly control) and the Justice Department (which he does). “When the agencies can’t decide who should deal with a merger, they literally flip a coin,” former FTC Commissioner Noah Phillips recently said. Meaning that whether a case reflects the President’s policies depends on chance?"

"In a 2020 case, Seila Law, the Court refused to extend Humphrey’s to the Consumer Financial Protection Bureau. “The CFPB is led by a single Director who cannot be described as a ‘body of experts’ and cannot be considered ‘non-partisan,’ in the same sense,” Chief Justice John Roberts wrote. 

"In a revealing footnote on Humphrey’s, the Chief added: “The Court’s conclusion that the FTC did not exercise executive power has not withstood the test of time.”

Justice Clarence Thomas was bolder. “The decision in Humphrey’s Executor poses a direct threat to our constitutional structure and, as a result, the liberty of the American people,” he wrote, joined by Justice Neil Gorsuch. “In a future case, I would repudiate what is left of this erroneous precedent.”"