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Edith Jones Calls Out Don Willett’s Fumble on Humphrey’s Executor

As Chevron deference’s blot on administrative law is revisited in the Supreme Court, the Fifth Circuit recently grappled with another troublesome precedent with profound separation-of-powers consequences. Humphrey’s Executor v. United States (1935) was a New Deal–era decision that upheld restrictions on presidential power to remove commissioners of ostensibly independent agencies. They could not be removed by the president at will, but only for cause. The precedent has been understood to apply in the context of multimember bodies of experts which had legislative and judicial, but not executive, power. At the time, that was the nature of the agency involved in the case, the Federal Trade Commission (FTC)…

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