The fate of the administrative state turns on the 1935 case Humphrey’s Executor v. United States. In Trump v. Wilcox, currently pending on the Supreme Court’s emergency docket, President Trump has asserted that the Constitution gives him the power to remove Cathy Harris of the Merit Systems Protection Board (MSPB) and Gwynne Wilcox of the National Labor Relations Board (NLRB), despite statutory restrictions on his removal power in both cases. Because both agencies are headed by independent, multimember boards, the lower courts invalidated both removals under Humphrey’s Executor, which the Supreme Court recently glossed as permitting Congress to give for-cause removal protections to a similarly structured agency.

But the scope of Humphrey’s Executor is not clear, in part due to its difficult-to-parse use of early-twentieth-century terms of art that have largely fallen out of fashion. In 1935, the Humphrey’s Executor Court upheld restrictions on the President’s ability to remove members of the Federal Trade Commission (FTC) because the FTC wielded “quasi-legislative” and “quasi-judicial” power. The Humphrey’s Executor Court found that the FTC was unlike the “purely executive” officers covered by Myers v. United States, the 1926 case invalidating a law restricting the President’s ability to remove a postmaster. A blog post is too short a forum to fully excavate these categories (a longer piece is in the works), but it can demonstrate that they were technical terms of art, and that understanding them is key to ascertaining the proper scope of Humphrey’s Executor at a moment where that issue is squarely before the Court.

The Controversy

The problem for contemporary lawyers is that few know what “quasi-legislative,” “quasi-judicial,” or “purely executive” meant for the Humphrey’s Executor Court, making the scope of the case difficult to determine. Clarence Thomas called them “handwaving and obfuscating phrases,” Antonin Scalia opined that the distinction was “not a clear one or even a rational one,” and Geoffrey P. Miller described the reasoning as “confused and distorted,” calling Humphrey’s Executor “one of the most egregious opinions to be found on pages of the United States Supreme Court Reports.”

Whatever one believes about the merit of these distinctions, they played an important organizing role in early twentieth century legal thought. In his book on the presidency, William Howard Taft—who, as Chief Justice, was later the author of Myers v. United States—subdivided the “executive function” into the “purely executive . . . quasi-legislative[,] and quasi-judicial” functions; and in the opening chapter of his casebook on administrative law, Ernst Freund subdivided “Administrative Power” into “executive, quasi judicial, and quasi legislative functions.” Unpacking these terms is key to understanding Humphrey’s Executor.

In the narrowest version of its argument in Wilcox, the government contends that Humphrey’s Executor doesn’t apply to the contemporary NLRB or MSPB because they both wield “substantial executive power.” Examples of this power include adjudicating disputes, issuing subpoenas, and making rules. This argument builds on Seila Law LLC v. CFPB (2020), in which the Supreme Court stated that the Humphrey’s Executor FTC merely made recommendations to Congress and Article III courts, and asserted that the power to make binding rules or seek penalties was “quintessentially executive power.” This claim is untrue to the early-twentieth-century intellectual milieu in which Humphrey’s Executor was conceived.

Progressive Era lawyers used the categories of “quasi-judicial” and “quasi-legislative” to refer to administrative bodies that were understood to be executive-branch auxiliaries to the judiciary and legislature—not (as the Seila Law Court concluded) because they issued nonbinding recommendations to judges and legislators, but rather because they were conceptually exercising power akin to legislative or judicial power, and operated partially under the supervision of those respective branches.

Quasi-Modes of Governance

Quasi-legislative and quasi-judicial bodies were “administrative,” to use the Progressives’ newly developed terminology, meaning they helped the political bodies implement their will. For Progressive Era lawyers, there was an enormous difference between politics and administration. As Frank Goodnow wrote, “[p]olitics has to do with policies or expressions of the state will. Administration has to do with the execution of these policies.” Politicians could not possibly anticipate every possible contingency under which the law would be executed, nor could they understand the minute details of every technical area; rather, they laid out broad principles and created bodies of experts to implement their will. Quasi-legislative and quasi-judicial bodies were expert administrators, and enjoyed greater autonomy because they were thought to be implementing political directions.

In the case of quasi-legislative power, agencies were subject to legislative oversight because the legislature set the scope of their power and the procedures by which they made decisions. As Chief Justice Taft wrote in a 1922 majority opinion, delegating authority to expert “administrative boards” was “necessary in order that the legislative power may be effectively exercised.” Provided the legislature created a “course of procedure and certain rules of decision” to guide the agency in spelling out the legislature’s wishes, it could escape nondelegation challenges. Although the Court did not use the term “quasi-legislative” in that opinion, it did in other opinions, as in a 1914 opinion referring to the “quasi-legislative capacity” of the Interstate Commerce Commission (ICC) to prevent future injury by fixing prospective rates—the kind of binding prospective decisionmaking that the Trump Administration sees as executive power in its Wilcox briefs.

Quasi-judicial power is a more complicated concept. Without delving too deeply into its origins protecting government officers from tort suits, suffice it to say that by the Progressive Era, it addressed thorny separation-of-powers issues involving administrative adjudication of certain kinds of issues. In the late-nineteenth and early-twentieth centuries, for instance, litigants challenged the constitutionality of the ICC, arguing that its ability to issue subpoenas in circuit courts, hold hearings, issue written opinions, and employ other traditional indicia of judicial power (and force courts to opine on these issues) raised Article III separation-of-powers concerns. But federal courts and the Supreme Court rejected many of these challenges because the ICC was quasi-judicial, and properly accountable to the courts in at least some capacity. But its authority could still be considerable. As the Supreme Court explained in a 1913 decision on a different legal issue, ICC rate orders could be “conclusive” as to the “fact and amount of damage” from an unreasonable rate but nonetheless be “quasi-judicial” because carriers could still appeal the decision and receive a “judicial hearing” in a circuit court.

“Purely executive” power was a separate category for Progressive Era lawyers. Like “quasi-judicial,” it has a complicated history, but as used in Humphrey’s Executor it referred to executive officers who did not use quasi-judicial or quasi-legislative power.

These could be high ranking officials making discretionary decisions. As one D.C. Circuit advocate put it, “[e]xecutive discretion, with which the judiciary cannot interfere, also presupposes a matter of purely executive or political nature intrusted to the judgment of an executive officer whose action is final.” Consider, for instance, Public Clearing House v. Coyne (1904), where the Supreme Court found that there was no due process violation when the Postmaster General refused to deliver mail to a recipient he thought was using the mail for fraudulent purposes. Because the statute entrusted the matter to “the judgment or discretion of the head of the department,” the court could not intervene—“we think it within the power of Congress to intrust [the Postmaster General] with the power of seizing and detaining letters upon evidence satisfactory to himself, and that his action will not be reviewed by the court in doubtful cases.”

But purely executive officers could also be low-level officials like tax collectors, as Thomas Cooley explained in an 1874 opinion for the Michigan Supreme Court, because their proceedings were “conducted without judicial forms, and without the intervention of the judicial authority,” at least in the first instance. To be clear, these officers could only avoid review when they acted within their authority—inappropriate action or actions beyond their legal authority could often subject officers to tort suits and other forms of judicial review because they were thought to be acting without legal authority. But due process did not require a hearing before they acted, nor did these powers present nondelegation issues. Their actions may well have raised legal concerns, but they were not separation-of-powers problems.

Returning to the FTC

The FTC, the agency at issue in Humphrey’s Executor, was explicitly designed not to be purely executive. In the conference report for the statute creating the FTC, Congressman J. Harry Covington explained that its authority would be “judicial in nature,” likening it to the ICC or the Commissioner of Patents, who “act[ed] in a quasi judicial capacity, and therefore his decision is not reviewable by his superior executive officer . . . but only by a court.” To that end, the FTC’s organic statute gave it quasi-judicial power, making its finding of facts “conclusive” under certain conditions, and permitting the FTC to enforce its orders by applying to the courts.

Contemporary observers may disagree with the taxonomy underlying Humphrey’s Executor, but it was hardly handwaving or irrational. In fact, it correctly identified that the architects of the FTC thought it would not be purely executive; they used the same theory as the Humphrey’s Executor Court to justify the FTC’s independence. This taxonomy was connected to a theory of the state and its relationship to politics, and was designed to protect the lawmaking process from baroque formalist assaults. Understanding the legal regime it created, which still binds courts in at least some capacity, requires us to pay careful attention to that intellectual world.

Nathaniel Wald Donahue is a Samuel I. Golieb Fellow in Legal History at NYU School of Law.