There’s No Such Thing As ‘Independent’ And Apolitical Bureaucrats

There is an ongoing and vigorous debate about the power of Congress to design “independent” federal agencies, including by restricting the president’s power to remove the heads of those agencies. About a century ago, the Supreme Court in Humphrey’s Executor held that certain congressional restrictions on presidential removal powers were constitutional and sanctioned for what we now know as the modern independent agency. While that case and its jurisprudential theory have been tested over the years, the issue is now coming to a head, as President Donald Trump tries to remove officials at various federal agencies and exert more direct authority over the bureaucracy.

There are many reasons why Humphrey’s Executor is wrong based on both originalism and precedent at the time. But one of the most flawed premises underlying Humphrey’s Executor — and underlying the court’s justification for agencies being independent from normal political checks — is that the agency officials will act as “nonpartisan” experts, impervious to politics. Further, according to the court, the longer that these officials served in Washington, D.C., the more expertise they would garner and, in turn, the less political they would become. In Humphrey’s Executor, which addressed the president’s ability to remove Federal Trade Commissioners, the court blindly trusted that these commissioners would act with “entire impartiality” and therefore did not need traditional checks or political accountability.

This idea of completely apolitical, objective actors in government is plainly wrong. From Plato to Aaron Sorkin’s “The West Wing,” thinkers have fantasized about benevolent tyrants and philosopher kings ruling over the masses in their best interests. But has it ever worked in practice? The Supreme Court offered no empirical, sociological, psychological, or historical support for its assertions in Humphrey’s Executor. It simply told the people to believe that powerful bureaucrats could remain entirely impartial, and that they would act only for the common good.

What the framers of the Constitution correctly recognized, however, and what James Madison explained in “Federalist 51,” is that humans are inherently tribal and political beings. They have natural ambitions, not just in the careerist sense but in the broader sense that they want power and wish to impose their ideological views on others. Those ambitions must be counteracted. They must be checked and neutralized by countervailing political mechanisms. And contrary to the court’s view in Humphrey’s Executor that longer tenure would somehow make commissioners more impartial over time, we know that power tends to corrupt and that those in power tend to want more of it.

Politicized Conduct Shows Need for Checks

If anything disproves the court’s theory of an apolitical, expert class in Humphrey’s Executor today, it is the highly politicized conduct of “independent” agency heads under President Joe Biden, such as Lina Khan at the Federal Trade Commission (FTC), Janet Yellen at the Treasury, and Gary Gensler at the Securities and Exchange Commission. These individuals prove that Humphrey’s Executor is a fantasy that cannot be sustained. These are all highly political operators in the thick of D.C. politics. That is not to say these are bad or corrupt people. They are intelligent and accomplished — but they certainly are not entirely impartial.

Khan, for example, is an acolyte and supporter of Sen. Elizabeth Warren, D-Mass. She worked at a left-leaning think tank before being appointed to FTC, and she wrote about her deep disdain for Amazon and Big Tech (her eventual enforcement targets) in law school. While still head of the FTC, Khan went around the country campaigning with Democrat politicians and candidates. Likewise, in 2024, Yellen was dispatched to tout the Biden economic record. According to CNN at the time, “Yellen isn’t a political operator, but she’s one of President Joe Biden’s strongest and most credible economic messengers” — as though messengers who go around stumping for politicians aren’t political operators? And Gensler sought to impose left-wing, ideological views on the market by forcing Environmental, Social, and Governance (ESG) considerations into investing decisions.

The usual response is that bureaucrats in Washington are noble public servants. Of course, there are many people — in and out of government — who can put politics aside and try their best to act impartially. But that is not always the case, especially for the types of people appointed to key agency roles. And even if the president really sought to appoint those most “impartial” experts, who could promise that they would remain unaffected by the media attention, public pressures, and the Washington ecosystem? Contrary to Humphrey’s Executor, no one can guarantee that “independent” officials will always act with “entire impartiality.” If men were angels, we wouldn’t need government, as James Madison said — and we wouldn’t need political checks and balances.

Ruling Lacks Grounding

The originalist Supreme Court ought to put Humphrey’s Executor on the chopping block for lack of grounding in the text, structure, or history of the Constitution. At the same time, it should dispense with the fiction that these operators in Washington are or can remain independent experts impervious to politics. So-called “independent” agency heads like Khan, Yellen, Gensler, and many others have flouted the idea of a purely apolitical, expert class. They may or may not promote some good policy, but agency leaders should always be subject to constitutional checks and balances in the likely event that they respond to politics rather than purely scientific considerations. In other words, in the event that they exhibit human tendencies.

That is the brilliance of our constitutional structure. It was designed to account for and protect against humans’ natural instincts, even when we may do our best to repress those instincts for the common good. The Supreme Court upended our constitutional structure in Humphrey’s Executor based on a fantasy. It’s time to get back to reality.    

Mark Pinkert is a partner at Holtzman Vogel Baran Torchinsky Josefiak PLLC. He represents and advises clients on a variety of administrative issues, including rule challenges, enforcement actions, and constitutional challenges to the administrative state.