Cornelius Campbell Burgess V. Jennifer Whang, Amicus Curiae Brief of Separation of Powers Clinic in Support of Appellee/Cross-Appellant Cornelius Campbell Burgess

Abstract

The Supreme Court has held that Article II’s vesting of executive power in the President, who must “take Care that the Laws be faithfully executed,” provides the President with the power to remove most principal executive officers at will. The Court has also held that Humphrey’s Executor v. United States, established only a narrow exception to that principle “for multimember expert agencies that do not wield substantial executive power,” a descriptor the Court applied to the Federal Trade Commission as it was understood to operate in 1935 when Humphrey’s Executor was issued.

The government does not dispute that a majority of the Directors of the Federal Deposit Insurance Corporation (“FDIC”) enjoy statutory removal protections. Under Humphrey’s Executor and Seila Law, those protections are constitutional only if the FDIC does not “wield substantial executive power.” But the FDIC possesses and exercises significant executive powers far beyond those the Federal Trade Commission (“FTC”) was understood to wield at the time of Humphrey’s Executor. The FDIC can file civil suits, issue binding regulations, and bring administrative proceedings seeking crippling damages and other penalties, as relevant here. The FDIC has not been shy about exercising these powers, which the Supreme Court has labeled as quintessentially executive. Accordingly, the FDIC exercises substantial executive power, and the Humphrey’s Executor exception to the President’s at-will removal power cannot apply to any FDIC Directors.

Keywords: Administrative Law, Separation of Powers, FDIC, Administrative Law Judge, ALJ, Adjudication, Removal Power, Humphrey's Executor

JEL Classification: H1, H11, H83, K23