Quasi-Judicial: A History and Tradition

Abstract

The Supreme Court’s recent removal cases have revived a foundational question in constitutional law: whether all administration must be controlled by the President, or whether Congress possesses the power to insulate administration from the President’s raw political will. This Article simultaneously delivers a blow to the unitary executive theory while fleshing out what comes next. It argues that contemporary debates have overlooked a lost tradition central to the Anglo-American constitutional project, one that redeems long-dismissed precedents like Humphrey’s Executor.

Although lawyers have long dismissed Humphrey’s “quasi-judicial” function, that phrase is just the label we put on a primordial instinct that predates the Constitution itself. Drawing on sources from early modern England through the Founding and the long nineteenth century, this Article reconstructs a constitutional tradition under which legislators insulated judge-like administrators from presidential control and removal. Under this tradition, officers who adjudicated, exercised equitable judgement, and made sensitive financial decisions were often independent from, rather than accountable to, a presidential chain of command.

This new history and tradition offers a compelling basis for curbing the Trump Administration’s assault on the Federal Reserve System and scores of quasi-judicial agencies. It also provides a historical basis not only for saving the core of Humphrey’s but also strengthening the Wiener default rule in favor of removal protections for adjudicatory officers. Far from an exception to the unitary executive theory, the quasi-judicial tradition is an existential challenge to the theory’s historical pedigree. The quasi-judicial function from Humphrey’s, contrary to popular belief, is not peripheral to the separation of powers. It is one of our constitutional tradition’s most durable strategies for reconciling the demands of governance with legality.

Keywords: Unitary Executive, Article I, Separation of Powers, Humphrey's Executor, Quasi-Judicial, History and Tradition, Presidential power, Administrative law