**On February 12, 2025,** Acting Solicitor General Sarah M. Harris sent a required letter to Senator Dick Durbin advising him that the Department of Justice (DOJ) will no longer defend the constitutionality of statutory tenure protections for members of the Federal Trade Commission (FTC), the National Labor Relations Board (NLRB), or the Consumer Product Safety Commission (CPSC), thus seeking to end the life of the 1935 Supreme Court case *Humphrey’s Executor v. United States*.
This comes as no surprise. *Humphrey’s* has been in the conservative crosshairs for a long time and the Supreme Court, in *Seila Law v. CFPB,* put it on life support when it denied “for cause” removal to the single head of the Consumer Financial Protection Bureau in 2020, but did not extend the holding to multi-member bodies like the FTC and the NLRB. President Trump removed NLRB Commissioner Gwynne Wilcox on January 28, 2025, and the case will ultimately make its way to the Supreme Court where the *Seila Law* exception will be tested and *Humphrey’s* fate determined.
*Humphrey’s* survival could turn on the degree to which those agencies perform adjudicatory functions rather than “executive” ones such as policymaking and enforcement. In *Wiener v. United States* (1958) the Court upheld removal restrictions that protected agency commissioners who exclusively exercised “quasi-judicial authority.” Adjudication is conducted by judges under the protection of the Due Process Clause, which provides a constitutional counter-balance to executive power under Article II.
There is a long tradition going back to English common law of insulating judges from executive interference in their decision-making. It is what the rule of law means—a fair hearing before an impartial decider. And “for cause” is not an insurmountable barrier. It just means that removal must be based on factors such as inefficiency, neglect of duty, or malfeasance, not an arbitrary desire to punish adjudicators for their decisions or, worse, to direct them to decide a case a certain way. So, *Humphrey’s* could be reversed, and *Wiener* would still stand. But even that outcome is not assured.
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**On February 12, 2025,** Acting Solicitor General Sarah M. Harris sent a required letter to Senator Dick Durbin advising him that the Department of Justice (DOJ) will no longer defend the constitutionality of statutory tenure protections for members of the Federal Trade Commission (FTC), the National Labor Relations Board (NLRB), or the Consumer Product Safety Commission (CPSC), thus seeking to end the life of the 1935 Supreme Court case *Humphrey’s Executor v. United States*.
This comes as no surprise. *Humphrey’s* has been in the conservative crosshairs for a long time and the Supreme Court, in *Seila Law v. CFPB,* put it on life support when it denied “for cause” removal to the single head of the Consumer Financial Protection Bureau in 2020, but did not extend the holding to multi-member bodies like the FTC and the NLRB. President Trump removed NLRB Commissioner Gwynne Wilcox on January 28, 2025, and the case will ultimately make its way to the Supreme Court where the *Seila Law* exception will be tested and *Humphrey’s* fate determined.
*Humphrey’s* survival could turn on the degree to which those agencies perform adjudicatory functions rather than “executive” ones such as policymaking and enforcement. In *Wiener v. United States* (1958) the Court upheld removal restrictions that protected agency commissioners who exclusively exercised “quasi-judicial authority.” Adjudication is conducted by judges under the protection of the Due Process Clause, which provides a constitutional counter-balance to executive power under Article II.
There is a long tradition going back to English common law of insulating judges from executive interference in their decision-making. It is what the rule of law means—a fair hearing before an impartial decider. And “for cause” is not an insurmountable barrier. It just means that removal must be based on factors such as inefficiency, neglect of duty, or malfeasance, not an arbitrary desire to punish adjudicators for their decisions or, worse, to direct them to decide a case a certain way. So, *Humphrey’s* could be reversed, and *Wiener* would still stand. But even that outcome is not assured.