An ‘Originalist’ Court Overturns an Originalist Decision

Yesterday, Chief Justice John Roberts delivered what conservative originalists have long been rooting for: overturning Humphrey’s Executor v. United States. That 90-year-old decision, which the Roberts Court has gradually been chipping away at, held that Congress could create independent commissions—such as the Federal Trade Commission—whose members are appointed by the president but protected from no-cause presidential removal. According to Roberts’s opinion in Trump v. Slaughter, this limitation on the president’s power is unconstitutional.It is worth revisiting Humphrey’s, which didn’t deserve the burial Roberts gave it. Imperfect in ways, it offered a better understanding of the separation of powers—one consistent with constitutional history, originalist understandings, and earlier Court precedent—than what Roberts offers in Slaughter.[Duncan Hosie: A false pretense of judicial modesty]Humphrey’s was a unanimous opinion written by Justice George Sutherland, no progressive squish. Sutherland was one of the so-called four horsemen of the Supreme Court, justices who often found New Deal legislation unconstitutional. Sutherland tended to couch his judicial opinions in historical and originalist terms: “The whole aim of construction, as applied to a provision of the Constitution, is to discover the meaning, to ascertain and give effect to the intent of its framers and the people who adopted it.” In Humphrey’s, he turned to founding-era history, including the writing of thinkers such as James Wilson, to understand the separation of powers and the contours of the president’s removal power.This is all to say that Humphrey’s was not a progressive opinion that played fast and loose with the text, structure, or history of the Constitution. In fact, at the time, progressives were often the ones advocating for sweeping presidential-removal power.Yet for Roberts, Humphrey’s is at odds with Chief Justice William Taft’s 1926 opinion Myers v. United States, which held that Congr