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Tuesday, January 17, 2006

Myers and Humphrey's Executor

Ann Althouse and others (e.g., see here and here) have been discussing the case of Humphrey's Executor v. United States (295 U.S. 602; 1935 ). Humphrey's Executor got referenced frequently during the Alito confirmation hearings, as Democratic Senators were attempting to gauge Judge Alito's beliefs about the scope of executive power. But their questions in this area were, in my opinion, not trenchant enough.

What would have been daring, had any of the Democratic Senators or their staffs wanted to truly test Judge Alito's ability to speak off the cuff about constitutional law, would have been to ask a follow up question on Humphrey's Executor. Namely, would Judge Alito agree with the holding in Myers v. United States (272 U.S. 52; 1926), which was modified by the ruling in Humphrey's Executor nine years later. Myers ruled that the President could fire postmasters general without consent of the Senate, but the principle that was articulated in the holding was quite broad. Chief Justice Taft wrote:

"The vesting of the executive power in the President was essentially a grant of the power to execute the laws. But the President alone and unaided could not execute the laws. He must execute them by the assistance of subordinates. This view has since been repeatedly affirmed by this court. ... As he is charged specifically to take care that they be faithfully executed, the reasonable implication, even in the absence of express words, was that as part of his executive power he should select those who were to act for him under his direction in the execution of the laws. The further implication must be, in the absence of any express limitation respecting removals, that as his selection of administrative officers is essential to the execution of the laws by him, so must be his power of removing those for whom he cannot continue to be responsible."

Humphrey's Executor, in Justice Sutherland's opinion, distinguishes FTC Commissioners from postmasters general; Justice Sutherland writes:

"The office of a postmaster is so essentially unlike the office now involved that the decision in the Myers case cannot be accepted as controlling our decision here. A postmaster is an executive officer restricted to the performance of executive functions. He is charged with no duty at all related to either the legislative or judicial power. The actual decision in the Myers case finds support in the theory that such an officer is merely one of the units in the executive department, and, hence, inherently subject to the exclusive and illimitable power of removal by the Chief Executive, whose subordinate and aid he is. Putting aside dicta, which may be followed if sufficiently persuasive but which are not controlling, the necessary reach of the decision goes far enough to include all purely executive officers. It goes no farther; much less does it include an officer who occupies no place in the executive department, and who exercises no part of the executive power vested by the Constitution in the President."

This is an eminently reasonable distinction to make, one that Judge Alito has (given his statements in support of Humphrey's Executor) implied he agrees with as a matter of precedent. But it would have been interesting if those Senators concerned about Judge Alito's views about the scope of executive power had pressed him about Myers, and whether he agreed with the ways that Humphrey's Executor narrowed the scope of the implications of Myers.

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