“I do not say the office is either Executive or Judicial; I think it rather distinct from both, though it partakes of each, and therefore some modification, accommodated to those circumstances ought to take place.” – James Madison on the Comptroller, June 29, 1789

On Monday, December 8th, the Supreme Court will hear oral arguments in Trump v. Slaughter. The case presents a pivotal challenge to Humphrey’s Executor, the New Deal precedent underpinning so-called independent agencies. In Humphrey’s, the Hughes Court unanimously held that Congress could shield administrators from presidential removal if they exercised “quasi-judicial” or “quasi-legislative” functions. Since the 1980s, originalists have scorned these “quasi” categories, viewing them as a departure from the Constitution’s mandate for unitary presidential control over administration.

Yet recent findings challenging the unitary executive theory (UET) fortuitously shed light on the quasi-judicial category’s historical pedigree. But these findings have been put forward by scholars with separate research agendas. In our newly available essay on SSRN, we synthesize hidden throughlines in the new literature. We argue the quasi-judicial function from Humphrey’s is compatible with original public meaning. More profoundly, it embodies a “history and tradition” integral to the Anglo-American constitutional project—far more primordial than even originalist credentials can suggest.

The quasi-judicial label describes administrative judicialization: a process where Americans (1) insulate judge-like administrators from hierarchical political control and (2) embed court-like norms and processes in agencies. At the Founding, early Congresses instinctively insulated court-like (and trustee-like) administrators from the kinds of control that UET theorists crave. Later, lawmakers refined this instinct with elaborate judicial procedures, formalizing enduring American impulses.

This history yields a clear conclusion: Humphrey’s invocation of the quasi-judicial category provides no basis for overruling the decision. It would be profoundly ironic for the Roberts Court—professing originalist fidelity—to undermine one of America’s most enduring state-building instincts. When Chief Justice Roberts compared judges to umpires, he evoked this Anglo-American instinct connecting judicial independence with court-like functions. Generations of Americans have gravitated toward such insulation. Often, lawmakers sought court-like insulation in the cases involving administrators wielding tremendous discretion and power. That this inter-generational drive for insulated, court-like administration often took place in salient and public-facing debates only enhances the tradition’s authority. And because the quasi-judicial category flows from a deeply felt link between courts and decisionmaker independence, any erosion of the category in the Roberts Court’s march towards overruling Humphrey’s risks eroding public trust in administration and courts themselves.

The Real English Backdrop

Unitary originalists have long relied on a distorted view of English government to support their interpretation. They claim the English monarch could remove officials at will, implying that Article II’s “executive power” silently incorporated this prerogative as a baseline norm absent explicit mention of removal authority.

Recent work dismantles this unitarian narrative. English monarchs lacked at-will removal power over key officials. The UET stems from a misunderstanding of officeholding law: in the 17th and 18th centuries, many English officers held property interests in their posts, protecting them from arbitrary dismissal. Significant offices in the Exchequer and Chancery were insulated. Crucially, these insulated offices often wielded quasi-judicial duties. The Barons of the Exchequer, for instance, handled judicial functions while shielded from removal. At lower levels, quasi-judicial officers like sheriffs—tasked with executing judicial process—and coroners were insulated from at-will removal.

More critically, English law offered a nuanced interplay between judicial and executive power. As one of us has demonstrated, authorities widely treated judicial power as a subset of executive power. This shaped the Founders’ baseline expectations: Gouverneur Morris, a key architect of the presidency, noted late in the Constitutional Convention that “the Judiciary . . . was part of the Executive.” Ratification debates echo this understanding.

Our point is that the interrelationship between judicial and executive power at the Founding was underdetermined in the extreme. When the Founders adopted a tripartite separation of powers, the implications of their actions were deeply undertheorized. This understanding, and the backdrop mixing of executive and judicial functions, informed Congress’s earliest actions.

The Founding Era

Our essay catalogs numerous Founding-era instances of the quasi-judicial category. Here, we highlight a few. The generation exhibited an instinctive drive toward administrative judicialization, insulating administrators from political control when perceiving judge-like roles or seeking judicial virtues. While robust court-like procedures evolved later, the core premise—that quasi-judicial officers required protection from at-will removal—accords with original public meaning.

The epigraph above quotes Madison’s 1789 advocacy for a Treasury Comptroller with term-of-years tenure. Everyone engaging in the House debate understood Madison was proposing an independent Comptroller insulated from presidential at-pleasure removal (further evidence of a default rule of removal for cause). Madison emphasized the office’s functions: “The principal duty seems to be deciding the lawfulness and justice of the claims and accounts subsisting between the United States and particular citizens; this partakes strongly of the judicial character, and there may be strong reasons why an officer of this kind should not hold his office at the pleasure of the executive branch.” Encountering a backward-looking applicator of law to facts, Madison analogized the Comptroller to judges. Insulating such an officer from political hierarchy followed naturally; the Anglo-American tradition recoiled at subjecting judge-like figures to hierarchical control by politicians.

Similar patterns appear in the independent Revolutionary War Debt Commission, the Sinking Fund Commission, the First Congress’s judicial removal provisions, and various other antebellum commissions. Alexander Hamilton designed an independent Debt Commission to foster incorruptibility, granting commissioners “equitable discretion” and finality and prompting figures like Virginia Governor Beverley Randolph to liken them to judges. The Sinking Fund invoked trustee metaphors, but the impulse mirrored quasi-judicial independence for public-fisc roles. The Founders engaged in a new project defined by radical experimentation. While wandering in uncharted territory, the Founders drew on established governance models (courts and the law of trusts) to ground their efforts in broader Anglo-American traditions.

This “quasi-judicial” background helps explain Marbury v. Madison. Marbury was a justice of the peace with a five-year term, so he was not an Article III judge, and yet Chief Justice Marshall repeatedly described him as “not removable,” and President Jefferson apparently agreed, because he failed to remove Marbury, regardless of the commission issue. First, Jane Manners and Lev Menand solved this puzzle by demonstrating a common law default rule of protection for office held for a specific term of years, without language about removal at pleasure. Second, Congress granted this protection to justices of the peace, an executive office that traditionally mixed with a judicial role.

The kinds of administrative officials uncovered by Nick Parrillo are the subject of controversy, but not in any sense that undermines the quasi-judicial category. Parrillo analyzed essentially independent auditors and commissioners who wielded vast powers to assign taxable land values across the nation. He used these findings to suggest that the broad delegation of quasi-legislative functions at or near the Founding undermines the originalist bona fides of a strong nondelegation doctrine. Philip Hamburger replied and (to simplify things) contested whether Parrillo’s administrators were really wielding legislative power. The Parrillo-Hamburger dispute is not over whether Congress created independent administrators wielding quasi-judicial functions. They only disagree over whether these administrators are an early example of mixed-function cases, administrators wielding both quasi-judicial and quasi-legislative functions. (Hamburger’s own work is very candid about the ways that American administrative entities drew inspiration from judicial norms and procedures.)

These examples anchor the quasi-judicial function in original meaning. Readers should consult our essay’s full Founding section and our antebellum section (and please consult this Trump v. Slaughter amicus brief by Nathaniel Donahue and Noah Rosenblum for more antebellum examples).

Postbellum Continuity and the New Deal

In the aftermath of the Civil War, Congress worked to institutionalize the longstanding instinct towards judicialized administration with more nuanced and thickly articulated court-like norms and procedures. In the lead up to the creation of the Interstate Commerce Commission (ICC), members of Congress openly debated how far they could go in creating a court-like agency. The instinct towards what were eventually called independent regulatory commissions (IRCs) was shaped by an epidemic of corruption and a taste for the judge-like accrual of expertise through case-by-case adjudication. IRCs became a symbol of good administration through to the 1930s, when they were discredited by President Roosevelt’s President’s Committee on Administrative Management (PCAM). But by then, any serious confrontation with the logical entailments of the quasi-judicial category was unthinkable. The legislative struggles behind key IRCs like the Federal Trade Commission and the Federal Reserve System show that Congress could not escape the drive for insulated, court-like agencies once the ICC established a new model.

Recall our definition of judicialized administration: (1) instinctive insulation followed by (2) thickly articulated court-like procedures. That instinct for insulation was there before and after the Founding. But the postbellum period is when that deeply American instinct to insulate court-like administrators was institutionalized. The Interstate Commerce Act limited presidents’ ability to remove ICC commissioners. As Manners and Menand have shown, the development of the nineteenth-century law of officeholding presumed that legislatures could insulate certain administrators from removal. New statutory provisions protecting quasi-judicial functionaries from removal started popping up across the country at the federal, state, and municipal levels.

Importantly, this is also the period when the idea of insulated, court-like administrators was loudly sold to the American people. The work of Hiroshi Okayama is profound on this point. Okayama parses legislative histories to show how legislators sold IRCs as independent bodies modeled on the Supreme Court. If you believe that tradition is strengthened or solidified through public-facing deliberation, the postbellum period cemented the Anglo-American instinct for insulating judge-like administrators.

Our essay shows just how central administrative judicialization was to the administrative law field at the turn of the twentieth century. The leading administrative law textbooks divided the subject between executive, quasi-judicial, and quasi-legislative functions. The quasi-judicial function was at the heart of hundreds of state and federal cases, many of them touching on the law of officeholding. Everyone understood that it required (in what one of us has termed an “ideational entailment”) decisionmaker neutrality. Across the country, legislators aped the ICC and established court-like commissions that were insulated from hierarchical political control. By the time of Myers v. United States (1926) and Humphrey’s (1935), the quasi-judicial category had been serving as the dominant heuristic in the administrative law field for decades. Later debates in the 1920s, 1930s, and 1940 were informed by this background. As we show, no one could imagine a version of American administrative law without the quasi-judicial function.

New findings show just how central the quasi-judicial category was to Congress’s construction of the modern state. In the aftermath of Myers, the Senate tapped its constitutional advisors in the Office of Legislative Counsel to come up with a response. That Office advised Congress that it could insulate administrators from Myers by delegating quasi-judicial and quasi-legislative functions. In effect, the Senate’s lead lawyers anticipated Humphrey’s by almost a decade and concluded that the UET is inapplicable when lawmakers create quasi-judicial agencies. Congress, acting in reliance on the quasi categories’ demand for decisionmaker neutrality, used their constitutional consiglieri’s advice to craft new agencies wielding court-like functions. Because the Office of Legislative Counsel was also in charge of statute drafting, it was able to implement its understanding of the quasi categories across scores of statutes from the 1920s through the 1950s.   

Congress’s reliance here provides a unique glimpse at the stakes of the Roberts Court’s campaign for a unitary executive. Congress’s newly discovered internal legal deliberations show that it relied on the quasi categories when it strengthened federal agencies. Because quasi-judicial functionaries could be insulated from presidential control, the thinking went, lawmakers worked around the clock to build powerful court-like agencies. By pulling the rug out from Congress’s designs, the Roberts Court is ignoring Congress’s vision, its quid pro quo between administrative power and political insulation.

Eventually, the successes of IRCs prompted a challenge. As Congress expanded the modern state, the demand for administrative adjudications became more than what the IRCs could shoulder on their own. Without much consideration, Congress injected court-like procedures and norms into executive departments. This teed up a key issue that drove contentious debates in the leadup to the passage of the Administrative Procedure Act (APA): how to insulate judge-like administrators in executive departments from hierarchical political control.

As we detail in our essay, all the major groups behind the leadup to the APA built their work around the quasi categories. This includes the ABA’s Special Committee on Administrative Procedure, the Attorney General’s Committee on Administrative Procedure, and (ironically) the PCAM. In the end, the APA’s structure was built around a blueprint provided by the quasi-judicial category. Today, the federal government is populated with judge-like administrators who operate with various levels of insulation from hierarchical political control. This ensures the longstanding American instinct towards decisionmaker neutrality and a more twentieth-century notion of due process. That the instinct for insulated quasi-judicial administrators is embodied in administrative law’s greatest “superstatute” is just another reason for treating this tradition as a decisive gloss on the Constitution’s meaning.

Conclusion

This overview merely samples the literature’s rapid evolution. It demonstrates that Humphrey’s quasi-judicial function is compatible with original public meaning and stems from Anglo-American administrative judicialization. Americans expect court-like neutrality for administrators wielding court-like functions. Today, this tradition aligns modern governance with due process. In Trump v. Slaughter, the Roberts Court should preserve (or at least not denigrate) this tradition.

We hasten to add that judicial supremacy is bolstered by administrative judicialization. The federal judiciary is bolstered by Americans’ instinct towards judge-like independence. The presence of judge-like administrators who serve as the embodiment of hierarchical political will could only damage that American instinct for both administrative judges and their brethren in Article III courts. In the end, we think it admirable that an unbroken chain of Americans has demanded court-like independence when legislators create court-like agencies.

Beau J. Baumann is a PhD candidate at Yale Law School. Jed H. Shugerman is a Professor at Boston University School of Law.