Another Step Toward Overruling Humphrey’s Executor and Granting Plenary Presidential Removal Authority
Recently, the Supreme Court in a case involving President Trump’s without cause firing of the Democratic Commissioners on the Consumer Products Safety Commission stayed an order that had been issued by the U.S. District Court for the District of Maryland. That order called for their reinstatement based on the Supreme Court’s decision in Humphrey’s Executor v. United States, 295 U.S. 602 (1935) in which the Court held that the provisions of the Federal Trade Commission Act that protected FTC Commissioners from without cause removal were constitutional.
Yesterday’s unsigned stay order was granted by the Court on its emergency docket without briefing and oral argument. The Court explained that its order was consistent with the stay order that it had previously issued in Trump v. Wilcox, 605 U.S.____, involving the President’s firing of members of the National Labor Relations Board and the Merit System Protection Board.
In granting the stay, the Court stated as it had in the Wilcox case that its interim orders are not conclusive as to the merits, suggesting that on account of this order it was not making any substantive decision as to the continuing validity of Humphrey’s Executor — only as how to exercise its equitable discretion. That said, given how a majority of the Justices have previously signaled that they are prepared to directly overrule or effectively overrule Humphrey’s Executor, it seems clear that this will be the result when the issue is substantively before the Court as it undoubtedly will be on account of one of the pending lower court cases.
In that regard, Justice Kavanaugh, concurring in the result, wrote an opinion in which he stated that he would have had the Court grant the stay at the same time granting certiorari before judgment. He reasoned that when an emergency application turns on whether the Court will narrow or overrule a precedent, and when there is “at least a fair prospect (not certainty, but at least some reasonable prospect) that we will do so,” the better practice in such unusual cases may be to both grant the stay and grant certiorari before judgment so as not to leave the lower courts and affected parties with extended uncertainty and confusion about the status of the precedent in question.
Justice Kagan vigorously dissented as she had in the Wilcox case writing that the Court is using its emergency docket to “destroy” the independence of an independent agency, as established by Congress — the result being to increase executive power at the expense of legislative authority, all but overturning Humphrey’s Executor and accomplishing that end with “the scantiest of explanations.”
While the Supreme Court again states that its grant of the stay is only with respect to the case before it, the order clearly again portends that the Court will overrule or otherwise render dead Humphrey’s Executor — a decision that has assured the independence of the FTC and immunized it from presidential control.
As we explained in our prior post, when this ultimately occurs, it will undoubtedly have a major impact on how the FTC’s regulatory and enforcement authority are exercised and will in turn almost certainly have a material effect on how the federal antitrust laws are applied to health care providers, including, in among many other ways, how mergers, joint ventures and affiliations are treated.
