Professor Daniel A. Crane
83 Geo. Wash. L. Rev. 1835
Published in connection with the Law Review’s 2014 Symposium “The FTC at 100”
The Supreme Court’s 1935 Humphrey’s Executor decision paved the way
for the modern administrative state by holding that Congress could constitutionally
limit the President’s powers to remove heads of regulatory agencies.
The Court articulated a quartet of features of the Federal Trade Commission’s
statutory design that ostensibly justified the Commission’s constitutional
independence. It was to be nonpartisan and apolitical, uniquely expert,
and performing quasi-legislative and quasi-judicial, rather than executive,
functions. In recent years, the staying power of Humphrey’s Executor has
been called into question as a matter of constitutional design. This Essay reconsiders
Humphrey’s Executor from a different angle. At the end of a one hundred-
year natural experiment, the Commission bears almost no resemblance
to the Progressive-technocratic vision articulated by the Court. The
Commission is not politically independent, uniquely expert, or principally legislative
or adjudicative. Rather, it is essentially a law enforcement agency beholden
to the will of Congress. This finding has potentially important
implications for agency design, constitutional doctrine and theory, and understanding
of agency functioning.
