A Rendezvous With Humphrey

Very soon, the Supreme Court will be asked to decide whether Humphrey’s Executor should be overruled. Critics often assert that the Justices should not decide important questions on the emergency docket. Indeed, some Justices said these sorts of disputes are better resolved in the orderly process on the merits docket, as if “percolation” matters anymore.

I don’t think this rationale holds up for Humphrey’s Executor. Since Seila Law, everyone has been on notice that Humphrey’s Executor was on life support. As we learned in Janus, parties should have taken notice that Abood was put on a death watch. Ditto for the Lemon test.

I seriously doubt that the members of the Supreme Court have not considered what to do with Humphrey’s Executor. All of the arguments for and against Humphrey’s Executor have been vetted for nearly a century. It is time.

Whatever the Court does here, it should not simply punt because the issue arises on the shadow docket. The nation is currently divided about whether the President can remove members of the NLRB, MSPB, FTC, and a jumble of more acronyms. Decide the issue, and move on. Indeed, I expect the emergency docket will implode over the next few months. If all of the national TROs and preliminary injunctions ripen to timely appeals, the Court will become overwhelmed with deadlines.

My previous posts on the issue are here, here, here, here, here, and here.

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