CONTEXT
In 1935, the USSC’s Humphrey’s Executor decision affirmed congress’s power to limit presidential removal of officials in independent executive branch agencies to specific causes like inefficiency, neglect, or malfeasance. There now are 13 such agencies. This protected those agencies from political interference, ensuring they could operate without fear of being weaponized by presidents for partisan or corrupt aims. Today, this precedent faces existential threat from “originalism,” a legal theory weaponized by far-right authoritarians to concentrate unchecked executive power in the presidency. The case is now pending with the USSC in Trump v. Wilcox. It will most likely be decided in May or June of 2026. The USSC will most likely severely limit or completely eliminate the Humphrey’s Executor limit on presidential power. That would be a catastrophe for democracy, civil liberties and the rule of law. Critique of originalism
Originalism, now a core authoritarian legal dogma, arose in the 1930s and the concept was significantly refined in the 1970s and 1980s. The term originalism was coined in the 1980s. The legal theory claims that the Constitution’s “original public meaning” grants presidents absolute authority over executive functions, including firing officials at will, with or without cause. Proponents argue Humphrey’s Executor violates Article II’s Vesting Clause by fragmenting executive accountability. They cite the “Decision of 1789”—a congressional debate they falsely claim settled presidential removal power. In reality, the First Congress never reached consensus. Only 9 of 54 House members endorsed unlimited removal power; most supported congressional checks or compromise. The Founders deliberately used ambiguous language to avoid rigid doctrines, prioritizing practical governance.Historical evidence further undermines originalist claims. Alexander Hamilton’s Federalist No. 77 endorsed Senate involvement in removals, contradicting the myth of an all-powerful presidency. In 1790, George Washington signed the Sinking Fund Commission Act, creating officials with fixed terms and removal protections to manage Revolutionary War debt. That is a clear Founding-era precedent for independent agencies directly contrary to MAGA’s claims. Early laws also shielded Treasury officials from arbitrary dismissal, reflecting the Founders’ nuanced approach to balancing power.
Mainstream legal scholars dismiss originalism’s hostility to Humphrey’s Executor as ideologically driven, not historically grounded. Critics note originalists cherry-pick evidence, misquote texts, and ignore contradictions, such as Hamilton’s support for checks on presidential power. Historians like Jonathan Gienapp argue originalists project modern authoritarian ideals onto the past, fabricating a “unitary executive” theory alien to 18th-century governance.
The stakes are profound. MAGA-aligned originalists seek to overturn Humphrey’s Executor to enable presidents to purge independent agencies, replacing nonpartisan expertise with loyalists. This would erode democratic safeguards, allowing politicization of institutions meant to serve the public interest ranging from the Federal Reserve to election protection agencies to consumer and worker protections. Such efforts align with a broader agenda to centralize power, favoring corruption and entrenching minority rule.
Originalism’s flawed reasoning and selective history cannot mask its true aim: dismantling constraints on executive authority to enable authoritarianism. By distorting the past, it threatens the delicate balance of power that has safeguarded American democracy for nearly a century. Defending Humphrey’s Executor is not just a legal battle. It is a fight to preserve democratic governance rooted in accountability, not unaccountable autocracy and kleptocracy.