Humphrey's Executor v. United States

[The reporter prints no vote and no roster. The syllabus of this case runs from the caption straight into eight numbered holding paragraphs and then the certificate note; there is no tally anywhere in it, and no “in which … joined” line. What the report prints on its own authority is only that Mr. Justice Sutherland delivered the opinion of the Court, at 295 U. S. 618, and Mr. Justice McReynolds’ brief separate statement at 632. There is no dissent. From the absence of any contrary writing in the thirty-one pages of the report one may infer that the decision was unanimous, with McReynolds concurring by the short statement reproduced at the end of this reading — but that is an inference from silence, not printed text, and it should not be recited as though the volume stated it.

Facts and posture. William E. Humphrey was nominated by President Hoover in December 1931 to succeed himself as a member of the Federal Trade Commission, was confirmed by the Senate, and was commissioned for a seven-year term expiring September 25, 1938. On July 25, 1933, President Roosevelt wrote asking for his resignation on the ground “that the aims and purposes of the Administration with respect to the work of the Commission can be carried out most effectively with personnel of my own selection,” while disclaiming any reflection on Humphrey personally or on his services. Humphrey declined to resign. On October 7, 1933, the President removed him. Humphrey never acquiesced, continuing to insist that he remained a member of the Commission, and he died on February 14, 1934 — the date the official report prints. His executor sued in the Court of Claims for the salary withheld between the attempted removal and the death, and that court certified two questions to this Court: whether the Act’s three enumerated causes restrict the President’s power of removal, and if so whether that restriction is constitutional.

Omitted: the argument of counsel for the Executor and for the United States, at pp. 604–618; portions of the Court’s summary of §§ 5, 6 and 7 of the Federal Trade Commission Act; and the extended Shurtleff recitation, which is given in condensed form. The opinion of the Court is otherwise reproduced substantially entire, and McReynolds’ separate statement in full. The 1935 volume’s OCR is materially imperfect; broken tokens, letter-for-letter substitutions and spliced running heads have been repaired silently as transcription artifacts, each checked against the page image, and nothing else has been changed. Bracketed italics are editorial; everything else is verbatim.]

MR. JUSTICE SUTHERLAND delivered the opinion of the Court.

Plaintiff brought suit in the Court of Claims against the United States to recover a sum of money alleged to be due the deceased for salary as a Federal Trade Commissioner from October 8, 1933, when the President undertook to remove him from office, to the time of his death on February 14, 1934. The court below has certified to this court two questions in respect of the power of the President to make the removal. The material facts which give rise to the questions are as follows:

William E. Humphrey, the decedent, on December 10, 1931, was nominated by President Hoover to succeed himself as a member of the Federal Trade Commission, and was confirmed by the United States Senate. He was duly commissioned for a term of seven years expiring September 25, 1938; and, after taking the required oath of office, entered upon his duties. On July 25, 1933, President Roosevelt addressed a letter to the commissioner asking for his resignation, on the ground “that the aims and purposes of the Administration with respect to the work of the Commission can be carried out most effectively with personnel of my own selection,” but disclaiming any reflection upon the commissioner personally, or upon his services. The commissioner replied, asking time to consult his friends. After some further correspondence upon the subject, the President on August 31, 1933, wrote the commissioner expressing the hope that the resignation would be forthcoming and saying:

“You will, I know, realize that I do not feel that your mind and my mind go along together on either the policies or the administering of the Federal Trade Commission, and, frankly, I think it is best for the people of this country that I should have a full confidence.”

The commissioner declined to resign; and on October 7, 1933, the President wrote him:

“Effective as of this date you are hereby removed from the office of Commissioner of the Federal Trade Commission.”

Humphrey never acquiesced in this action, but continued thereafter to insist that he was still a member of the commission, entitled to perform its duties and receive the compensation provided by law at the rate of $10,000 per annum. Upon these and other facts set forth in the certificate, which we deem it unnecessary to recite, the following questions are certified:

“1. Do the provisions of section 1 of the Federal Trade Commission Act, stating that ‘any commissioner may be removed by the President for inefficiency, neglect of duty, or malfeasance in office,’ restrict or limit the power of the President to remove a commissioner except upon one or more of the causes named?

“If the foregoing question is answered in the affirmative, then—

“2. If the power of the President to remove a commissioner is restricted or limited as shown by the foregoing interrogatory and the answer made thereto, is such a restriction or limitation valid under the Constitution of the United States?”

The Federal Trade Commission Act creates a commission of five members to be appointed by the President by and with the advice and consent of the Senate, and § 1 provides:

“Not more than three of the commissioners shall be members of the same political party. The first commissioners appointed shall continue in office for terms of three, four, five, six, and seven years, respectively, from the date of the taking effect of this Act, the term of each to be designated by the President, but their successors shall be appointed for terms of seven years, except that any person chosen to fill a vacancy shall be appointed only for the unexpired term of the commissioner whom he shall succeed. The commission shall choose a chairman from its own membership. No commissioner shall engage in any other business, vocation, or employment. Any commissioner may be removed by the President for inefficiency, neglect of duty, or malfeasance in office … .”

[Section 5 declares unfair methods of competition in commerce unlawful and empowers the commission to prevent their use, by complaint, notice, hearing, findings of fact, and a cease and desist order enforceable and reviewable in the circuit court of appeals. Section 6 gives the commission wide powers of investigation, “upon which it must report to Congress with recommendations. Many such investigations have been made, and some have served as the basis of congressional legislation.” Section 7 provides that in any antitrust suit in equity brought by or under the direction of the Attorney General, the court may refer the suit to the commission, as a master in chancery, to ascertain and report an appropriate form of decree.]

First. The question first to be considered is whether, by the provisions of § 1 of the Federal Trade Commission Act already quoted, the President’s power is limited to removal for the specific causes enumerated therein. The negative contention of the government is based principally upon the decision of this court in Shurtleff v. United States, 189 U. S. 311.

[Shurtleff concerned a general appraiser of merchandise appointed under the Act of June 10, 1890, whose statute provided that the nine general appraisers “may be removed from office at any time by the President for inefficiency, neglect of duty, or malfeasance in office.” The President removed Shurtleff without assigning any cause. The Court of Claims dismissed his petition for salary, and this Court affirmed, declining to apply the maxim expressio unius est exclusio alterius because to do so “would involve the alteration of the universal practice of the government for over a century and the consequent curtailment of the powers of the executive in such an unusual manner.” The reason, Sutherland explains, was that the 1890 Act fixed no term of office at all, so that Shurtleff’s reading would have given the appraiser tenure for life — “a complete revolution in respect of the general tenure of office, effected by implication with regard to that particular office only.” The Court there said it was “quite inadmissible … to attribute an intention on the part of Congress to make such an extraordinary change in the usual rule governing the tenure of office … without stating such intention in plain and explicit language.”]

These circumstances, which led the court to reject the maxim as inapplicable, are exceptional. In the face of the unbroken precedent against life tenure, except in the case of the judiciary, the conclusion that Congress intended that, from among all other civil officers, appraisers alone should be selected to hold office for life was so extreme as to forbid, in the opinion of the court, any ruling which would produce that result if it reasonably could be avoided. The situation here presented is plainly and wholly different. The statute fixes a term of office, in accordance with many precedents. The first commissioners appointed are to continue in office for terms of three, four, five, six, and seven years, respectively; and their successors are to be appointed for terms of seven years—any commissioner being subject to removal by the President for inefficiency, neglect of duty, or malfeasance in office. The words of the act are definite and unambiguous.

The government says the phrase “continue in office” is of no legal significance and, moreover, applies only to the first commissioners. We think it has significance. It may be that, literally, its application is restricted as suggested; but it, nevertheless, lends support to a view contrary to that of the government as to the meaning of the entire requirement in respect of tenure; for it is not easy to suppose that Congress intended to secure the first commissioners against removal except for the causes specified and deny like security to their successors. Putting this phrase aside, however, the fixing of a definite term subject to removal for cause, unless there be some countervailing provision or circumstance indicating the contrary, which here we are unable to find, is enough to establish the legislative intent that the term is not to be curtailed in the absence of such cause. But if the intention of Congress that no removal should be made during the specified term except for one or more of the enumerated causes were not clear upon the face of the statute, as we think it is, it would be made clear by a consideration of the character of the commission and the legislative history which accompanied and preceded the passage of the act.

The commission is to be non-partisan; and it must, from the very nature of its duties, act with entire impartiality. It is charged with the enforcement of no policy except the policy of the law. Its duties are neither political nor executive, but predominantly quasi-judicial and quasi-legislative. Like the Interstate Commerce Commission, its members are called upon to exercise the trained judgment of a body of experts “appointed by law and informed by experience.” Illinois Central R. Co. v. Interstate Commerce Comm’n, 206 U. S. 441, 454; Standard Oil Co. v. United States, 283 U. S. 235, 238–239.

The legislative reports in both houses of Congress clearly reflect the view that a fixed term was necessary to the effective and fair administration of the law. In the report to the Senate the Senate Committee on Interstate Commerce, in support of the bill which afterwards became the act in question, after referring to the provision fixing the term of office at seven years, so arranged that the membership would not be subject to complete change at any one time, said:

“The work of this commission will be of a most exacting and difficult character, demanding persons who have experience in the problems to be met—that is, a proper knowledge of both the public requirements and the practical affairs of industry. It is manifestly desirable that the terms of the commissioners shall be long enough to give them an opportunity to acquire the expertness in dealing with these special questions concerning industry that comes from experience.”

The report declares that one advantage which the commission possessed over the Bureau of Corporations (an executive subdivision in the Department of Commerce which was abolished by the act) lay in the fact of its independence, and that it was essential that the commission should not be open to the suspicion of partisan direction. The report quotes a statement to the committee by Senator Newlands, who reported the bill, that the tribunal should be of high character and “independent of any department of the government … a board or commission of dignity, permanence, and ability, independent of executive authority, except in its selection, and independent in character.”

The debates in both houses demonstrate that the prevailing view was that the commission was not to be “subject to anybody in the government but … only to the people of the United States”; free from “political domination or control” or the “probability or possibility of such a thing”; to be “separate and apart from any existing department of the government—not subject to the orders of the President.”

More to the same effect appears in the debates, which were long and thorough and contain nothing to the contrary. While the general rule precludes the use of these debates to explain the meaning of the words of the statute, they may be considered as reflecting light upon its general purposes and the evils which it sought to remedy. Federal Trade Comm’n v. Raladam Co., 283 U. S. 643, 650.

Thus, the language of the act, the legislative reports, and the general purposes of the legislation as reflected by the debates, all combine to demonstrate the congressional intent to create a body of experts who shall gain experience by length of service—a body which shall be independent of executive authority, except in its selection, and free to exercise its judgment without the leave or hindrance of any other official or any department of the government. To the accomplishment of these purposes, it is clear that Congress was of opinion that length and certainty of tenure would vitally contribute. And to hold that, nevertheless, the members of the commission continue in office at the mere will of the President, might be to thwart, in large measure, the very ends which Congress sought to realize by definitely fixing the term of office.

We conclude that the intent of the act is to limit the executive power of removal to the causes enumerated, the existence of none of which is claimed here; and we pass to the second question.

Second. To support its contention that the removal provision of § 1, as we have just construed it, is an unconstitutional interference with the executive power of the President, the government’s chief reliance is Myers v. United States, 272 U. S. 52. That case has been so recently decided, and the prevailing and dissenting opinions so fully review the general subject of the power of executive removal, that further discussion would add little of value to the wealth of material there collected. These opinions examine at length the historical, legislative and judicial data bearing upon the question, beginning with what is called “the decision of 1789” in the first Congress and coming down almost to the day when the opinions were delivered. They occupy 243 pages of the volume in which they are printed. Nevertheless, the narrow point actually decided was only that the President had power to remove a postmaster of the first class, without the advice and consent of the Senate as required by act of Congress. In the course of the opinion of the court, expressions occur which tend to sustain the government’s contention, but these are beyond the point involved and, therefore, do not come within the rule of stare decisis. In so far as they are out of harmony with the views here set forth, these expressions are disapproved.

A like situation was presented in the case of Cohens v. Virginia, 6 Wheat. 264, 399, in respect of certain general expressions in the opinion in Marbury v. Madison, 1 Cranch 137. Chief Justice Marshall, who delivered the opinion in the Marbury case, speaking again for the court in the Cohens case, said:

“It is a maxim, not to be disregarded, that general expressions, in every opinion, are to be taken in connection with the case in which those expressions are used. If they go beyond the case, they may be respected, but ought not to control the judgment in a subsequent suit, when the very point is presented for decision. The reason of this maxim is obvious. The question actually before the Court is investigated with care, and considered in its full extent. Other principles which may serve to illustrate it, are considered in their relation to the case decided, but their possible bearing on all other cases is seldom completely investigated.”

And he added that these general expressions in the case of Marbury v. Madison were to be understood with the limitations put upon them by the opinion in the Cohens case.

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.

The Federal Trade Commission is an administrative body created by Congress to carry into effect legislative policies embodied in the statute in accordance with the legislative standard therein prescribed, and to perform other specified duties as a legislative or as a judicial aid. Such a body cannot in any proper sense be characterized as an arm or an eye of the executive. Its duties are performed without executive leave and, in the contemplation of the statute, must be free from executive control. In administering the provisions of the statute in respect of “unfair methods of competition”—that is to say in filling in and administering the details embodied by that general standard—the commission acts in part quasi-legislatively and in part quasi-judicially. In making investigations and reports thereon for the information of Congress under § 6, in aid of the legislative power, it acts as a legislative agency. Under § 7, which authorizes the commission to act as a master in chancery under rules prescribed by the court, it acts as an agency of the judiciary. To the extent that it exercises any executive function—as distinguished from executive power in the constitutional sense—it does so in the discharge and effectuation of its quasi-legislative or quasi-judicial powers, or as an agency of the legislative or judicial departments of the government.*

[The footnote to that sentence, which Seila Law and Collins both cite:]

* The provision of § 6 (d) of the act which authorizes the President to direct an investigation and report by the commission in relation to alleged violations of the anti-trust acts, is so obviously collateral to the main design of the act as not to detract from the force of this general statement as to the character of that body.

If Congress is without authority to prescribe causes for removal of members of the trade commission and limit executive power of removal accordingly, that power at once becomes practically all-inclusive in respect of civil officers with the exception of the judiciary provided for by the Constitution. The Solicitor General, at the bar, apparently recognizing this to be true, with commendable candor, agreed that his view in respect of the removability of members of the Federal Trade Commission necessitated a like view in respect of the Interstate Commerce Commission and the Court of Claims. We are thus confronted with the serious question whether not only the members of these quasi-legislative and quasi-judicial bodies, but the judges of the legislative Court of Claims, exercising judicial power, continue in office only at the pleasure of the President.

We think it plain under the Constitution that illimitable power of removal is not possessed by the President in respect of officers of the character of those just named. The authority of Congress, in creating quasi-legislative or quasi-judicial agencies, to require them to act in discharge of their duties independently of executive control cannot well be doubted; and that authority includes, as an appropriate incident, power to fix the period during which they shall continue in office, and to forbid their removal except for cause in the meantime. For it is quite evident that one who holds his office only during the pleasure of another, cannot be depended upon to maintain an attitude of independence against the latter’s will.

The fundamental necessity of maintaining each of the three general departments of government entirely free from the control or coercive influence, direct or indirect, of either of the others, has often been stressed and is hardly open to serious question. So much is implied in the very fact of the separation of the powers of these departments by the Constitution; and in the rule which recognizes their essential co-equality. The sound application of a principle that makes one master in his own house precludes him from imposing his control in the house of another who is master there. James Wilson, one of the framers of the Constitution and a former justice of this court, said that the independence of each department required that its proceedings “should be free from the remotest influence, direct or indirect, of either of the other two powers.” And Mr. Justice Story in the first volume of his work on the Constitution, citing No. 48 of the Federalist, said that neither of the departments in reference to each other “ought to possess, directly or indirectly, an overruling influence in the administration of their respective powers.”

The power of removal here claimed for the President falls within this principle, since its coercive influence threatens the independence of a commission, which is not only wholly disconnected from the executive department, but which, as already fully appears, was created by Congress as a means of carrying into operation legislative and judicial powers, and as an agency of the legislative and judicial departments.

In the light of the question now under consideration, we have reexamined the precedents referred to in the Myers case, and find nothing in them to justify a conclusion contrary to that which we have reached. The so-called “decision of 1789” had relation to a bill proposed by Mr. Madison to establish an executive Department of Foreign Affairs. The bill provided that the principal officer was “to be removable from office by the President of the United States.” This clause was changed to read “whenever the principal officer shall be removed from office by the President of the United States” certain things should follow, thereby, in connection with the debates, recognizing and confirming, as the court thought in the Myers case, the sole power of the President in the matter. We shall not discuss the subject further, since it is so fully covered by the opinions in the Myers case, except to say that the office under consideration by Congress was not only purely executive, but the officer one who was responsible to the President, and to him alone, in a very definite sense. A reading of the debates shows that the President’s illimitable power of removal was not considered in respect of other than executive officers. And it is pertinent to observe that when, at a later time, the tenure of office for the Comptroller of the Treasury was under consideration, Mr. Madison quite evidently thought that, since the duties of that office were not purely of an executive nature but partook of the judiciary quality as well, a different rule in respect of executive removal might well apply.

In Marbury v. Madison, supra, it is made clear that Chief Justice Marshall was of opinion that a justice of the peace for the District of Columbia was not removable at the will of the President; and that there was a distinction between such an officer and officers appointed to aid the President in the performance of his constitutional duties. In the latter case, the distinction he saw was that “their acts are his acts” and his will, therefore, controls; and, by way of illustration, he adverted to the act establishing the Department of Foreign Affairs, which was the subject of the “decision of 1789.”

The result of what we now have said is this: Whether the power of the President to remove an officer shall prevail over the authority of Congress to condition the power by fixing a definite term and precluding a removal except for cause, will depend upon the character of the office; the Myers decision, affirming the power of the President alone to make the removal, is confined to purely executive officers; and as to officers of the kind here under consideration, we hold that no removal can be made during the prescribed term for which the officer is appointed, except for one or more of the causes named in the applicable statute.

To the extent that, between the decision in the Myers case, which sustains the unrestrictable power of the President to remove purely executive officers, and our present decision that such power does not extend to an office such as that here involved, there shall remain a field of doubt, we leave such cases as may fall within it for future consideration and determination as they may arise.

In accordance with the foregoing, the questions submitted are answered.

Question No. 1, Yes.

Question No. 2, Yes.

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[Mr. Justice McReynolds’ separate statement, at 295 U. S. 632, in full. It is the only separate writing in the case, and there is no dissent.]

MR. JUSTICE McREYNOLDS agrees that both questions should be answered in the affirmative. A separate opinion in Myers v. United States, 272 U. S. 178, states his views concerning the power of the President to remove appointees.

Notes & Questions

Read this before anything else. Humphrey’s Executor is no longer good law. It was overruled on June 29, 2026, in Trump v. Slaughter, No. 25-332, 609 U. S. ___ (2026), the current case for this module. Roberts, C. J., wrote for six; Thomas, J., joined all of it except the part carving out the Federal Reserve; Gorsuch, J., concurred; Sotomayor, J., dissented, joined by Kagan and Jackson, JJ. You are therefore reading a ninety-one-year-old decision that was the foundation of the independent agency and is now a historical artifact — and it was overruled eight weeks before this course began. That is not a reason to skim it. It is the reason the module exists: you cannot understand what Slaughter did without understanding precisely what it undid, and the argument Slaughter accepted is an argument that was available, and rejected, in 1935.

1. Big picture — the charter of the independent agency, written unanimously, by a Court that hated the New Deal. Nine years before this case, in Myers v. United States — a note in this module — Chief Justice Taft had written that the President’s power to remove executive officers he appoints is illimitable, and had said so at enormous length. Humphrey’s Executor confines Myers to purely executive officers and holds that Congress may protect the members of a body exercising what the Court calls quasi-legislative and quasi-judicial functions. That holding built the modern administrative state: the Federal Trade Commission, the Securities and Exchange Commission, the Federal Communications Commission, the National Labor Relations Board and the Federal Reserve all rest on it, directly or by analogy. Two contextual facts are worth holding. First, it was unanimous, and it came down on the same day as Schechter Poultry, which you read as a note in Module 5 — a day on which the Court struck at the New Deal from three directions at once. Second, the case is about a dead man’s back pay. Humphrey had refused to resign, been removed, sued, and died; his executor continued the suit for salary. Nothing in the case turns on reinstating anybody, which is worth remembering when you read modern removal cases about who currently sits in a chair.

2. Raw specific knowledge — two holdings, in order, and one line that did all the work. (a) The statutory holding comes first. The Court construes the Federal Trade Commission Act’s provision permitting removal for inefficiency, neglect of duty, or malfeasance in office as limiting removal to those causes, rather than as merely illustrating them. Be able to say why the Court reads it that way — the text, the fixed seven-year terms, the staggering of those terms, and the Commission’s character as the Court describes it. (b) The constitutional holding follows only because of (a). Having construed the statute to restrict removal, the Court must decide whether Congress may do that, and holds it may, for a body of this kind. (c) The line that mattered: Myers is confined to purely executive officers, and the Commission is characterized as an agency of the legislative and judicial departments, exercising its duties without executive leave and in the discharge of duties that are neither political nor executive but predominantly quasi-legislative and quasi-judicial. Learn that formulation exactly, because every case after it in this module is an argument about it — Morrison abandons it, Seila Law treats this case as a narrow exception surviving on its facts, and Slaughter calls the categories a fiction and discards them. (d) Housekeeping: the reporter prints no vote and no roster, so the line-up on the page is an inference from the absence of any dissent, and McReynolds’ brief separate statement at 632 is the only separate writing.

3. Practical application — sort the agencies, then re-sort them. Take the FTC as this Court describes it and compare it to the FTC as it actually operated by 2026: it promulgates binding rules, conducts investigations, brings enforcement actions in its own name, and litigates in federal court. (a) Which of those functions is quasi-legislative, which quasi-judicial, and which is simply executive? Do the same for the SEC, the NLRB, the Federal Election Commission and the Federal Reserve Board. (b) You will find that the categories do not sort cleanly, and that is the point — it is the ground on which Slaughter discarded them. But be careful about the inference. A distinction that is hard to apply at the margin is not thereby meaningless, and you should be able to make that argument, because it is the dissent’s. (c) Now the drafting exercise. It is 1935 and you are counsel to the Senate committee. Draft the removal provision that would give the Commission the independence Congress wanted while surviving the argument the Court accepted in Myers. Then ask whether your draft survives Slaughter, and if it does not, whether anything could.

4. Attack the reasoning — the characterization, and the politics. (a) The load-bearing move is descriptive: the Commission is not really executive. Once you say that, the removal power over executive officers is simply not implicated. But the description was doubtful in 1935 and became indefensible later, and the Court never explains what makes enforcing a statute against a private party something other than executing the law. State the strongest version of the Court’s position anyway — it exists, and it runs through the idea of a body designed to be a repository of expert, nonpartisan judgment discharging duties assigned by Congress. Then state Slaughter’s answer: an agency that executes a congressional mandate against private parties exercises executive power, whatever adjectives are attached to it. Which is the better reading of Article II, and does your answer depend on what you think agencies are for? (b) The politics. Roosevelt asked Humphrey to go because, as the correspondence in the reading shows, he wanted a Commissioner of his own choosing to carry out the administration’s purposes. The Court treats that as the paradigm case of an improper removal. But it is also a perfectly ordinary description of democratic accountability — a President elected on a program wants officials who will carry it out. Is the case protecting expertise from politics, or insulating unelected officials from the electorate? You cannot answer that without deciding what you think the FTC is, which is why the descriptive question in (a) is not merely a labelling exercise. (c) A caution about how you use this case now. It is overruled, but the concept of an agency insulated from at-will removal survived in the Federal Reserve carve-out in Slaughter, and that carve-out is grounded in history and tradition rather than in anything like the quasi-legislative rationale. Ask what work this opinion still does, if any, for an argument about the Fed.

5. Creative thinking — what independence was for, and whether anything replaces it. (a) Name the value. Removal protection was supposed to buy something: continuity across administrations, technical expertise insulated from short-run politics, bipartisan composition, and adjudicative fairness when the agency acts like a court. Take each of those four and ask whether it can be secured by some device other than tenure protection — staggered terms without for-cause protection, statutory bipartisanship requirements, procedural rules for adjudication, appropriations independence, judicial review. Build the most independent agency you can that is nonetheless headed by officers removable at will. Then say honestly whether it would be independent. (b) The Federal Reserve problem. Slaughter holds for-cause protection unconstitutional for agencies exercising executive power and then preserves the Fed on historical grounds — an exception Justice Thomas declined to join. If the constitutional principle is that the President must be able to remove those who execute the law, what is the principled basis for a monetary-policy exception? Construct the best defence (central banking as a distinct historical tradition traceable to the First and Second Banks; the specific and well-documented costs of politicized monetary policy) and the best attack (that the Constitution does not contain a central-banking exception, and that “history and tradition” is doing the work an argument should be doing). (c) Finally, the question this whole module is really about: the trade between accountability and insulation is not a legal question, and the Constitution does not obviously answer it. Write two paragraphs identifying where in the constitutional text, structure or history you think the answer is actually located — and if you conclude it is not located anywhere, say what a court should do then.