"Humphrey's Executor (Whoever He Is)":

Ann Althouse discusses Dana Milbank's article on the Alito hearings, which culminated in Milbank's observation:

The nominee relied heavily on the language of law books, mentioning "Humphrey's Executor" (whoever he is) 10 times, "undue burden" 10 times, and "jurisdiction" 25 times.

Humphrey's Executor fundamentally dealt with the constitutionality of the FTC as independent agency. During my time at the FTC, I sported the following scrolled text as a screen saver on my computer:

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.

There is a picture of Commissioner Humphrey on the first floor of the FTC building, which contains a hall of all the FTC's Commissioners through the years. Needless to say, we FTC alumni are well aware of both Mr. Humphrey--and his Executor.

Cornellian (mail):
Interesting that he says "Humphrey's Executor (whoever he is)" rather than "Humphrey's Executor (whatever that is)", seemingly under the impression that Humphrey's Executor is a currently living person with things to say about the law.
1.16.2006 11:19pm
Evelyn Blaine:
For the curious, Humphrey's executor was a man named Samuel F. Rathbun, as is apparent in the trial decision: 81 Ct. Cl. 969 (1935). As far as I can tell, his full name does not appear in the decision, although a footnote mentions that the case was on the docket as Rathbun v. United States. It seems very sad, somehow, to end up as a footnote to legal history and not even to get to be a footnote under one's own name. A little googling reveals that there was a Samuel F. Rathbun who was "an ornithologist of the Pacific Northwest around the turn of the century", but I doubt that it's the same man.
1.17.2006 2:02am
Evelyn Blaine:
I meant to say that his full name does not appear in the Supreme Court decision, as it is printed in the U. S. Reports.
1.17.2006 2:10am
Evelyn Blaine:
By the way, for those who find separation-of-powers as applied to the independent agencies a little ... um ... dry, how about what sounds like a sexy high-stakes death penalty case? This web site offers to write a term paper for you on Humphrey's Executioner v. US .
1.17.2006 2:23am
SimonD (www):
One can only conclude that either a) Milbank is unaware of Google, or b) it was one of those gags that you write at three in the morning and on second thought take out on reviewing with fresh eyes in the morning but his deadline was 4am and thus his first chance to review it was when it hit the newstands.

Comments in the Althouse discussion suggest that this an article aimed at the lay audience, and there is therefore no need to explain what it is. Even if one accepts that it is not the job of the journalist to explain everything to the lay audience, a dubious proposition in itself, surely it is not unreasonable to suggest that they are not supposed to actively mislead the lay audience. The gag/mistake seems to contribute to contribute to the general dumbing down of public discourse. Who's this "Marbury" fellow, then?
1.17.2006 8:39am
Bob Bobstein (mail):
And "jurisdiction"-- why should the Suprme Court be concerned with that kind of technical mumbo jumbo? The Supreme Court should just follow its heart and do what it thinks is right, like President Bush does.

I'm with you, SimonD. Milbank is cheerleading the dumbing down of public discourse by sneering at the mention of the word jurisdiction-- the whole basis for a court's ability to hear a case to begin with! And how is Alito supposed to talk about abortion without using the phrase "undue burden"? With tearful personal testimonials shorn of legal jargon?
1.17.2006 9:57am
Phil Smith (mail):
Sounds rawther like an Ivory Merchant film.
1.17.2006 11:49am
JLR (mail) (www):
Myers v. United States

What would have been daring, had any of the Democratic Senators or their staffs wanted to truly test Judge Alito's ability to speak off the cuff about con law, would have been to ask a follow up question on Humphrey's Executor. Namely, would Judge Alito agree with the holding in Myers v. United States (272 U.S. 52; 1926), which was modified by the ruling in Humphrey's Executor nine years later. Myers ruled that the President could fire postmasters general without consent of the Senate, but the principle that was articulated in the holding was quite broad. Chief Justice Taft wrote:

"The vesting of the executive power in the President was essentially a grant of the power to execute the laws. But the President alone and unaided could not execute the laws. He must execute them by the assistance of subordinates. This view has since been repeatedly affirmed by this court. ... As he is charged specifically to take care that they be faithfully executed, the reasonable implication, even in the absence of express words, was that as part of his executive power he should select those who were to act for him under his direction in the execution of the laws. The further implication must be, in the absence of any express limitation respecting removals, that as his selection of administrative officers is essential to the execution of the laws by him, so must be his power of removing those for whom he cannot continue to be responsible."

Humphrey's Executor, in Justice Sutherland's opinion, distinguishes FTC Commissioners from postmasters general; Justice Sutherland writes:

"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."

This is an eminently reasonable distinction to make, one that Judge Alito has (given his statements in support of Humphrey's Executor) implied he agrees with as a matter of precedent. But it would have been interesting if those Senators concerned about Judge Alito's views about the scope of judicial power had pressed him about Myers, and whether he agreed with the ways that Humphrey's Executor narrowed the scope of the implications of Myers.
1.17.2006 11:57am
JLR (mail) (www):
The last sentence of my above post should say "scope of executive power," not "scope of judicial power."
1.17.2006 12:14pm