Article IV, Section 2, Clause 3:
No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due.
Unlike the English tradition which firmly established oparliamentary primacy in 1688, our history of federalism and `separation of powers' has (since Marbury v. Madison) embedded a sometimes tragic decisive role to the judiciary. It was so because the national government was constitutionally, and statutorily committed to protecting the private right to hold persons as chattel. The Declaration of Indepence's opening oration - that "All men ar are created equal, endowed by their Creator with certain inalienable rights - life liberty and the pursuit of happiness" - failed in the face of positive law - the Constitution's Article IV and the soon to follow fugitive slave law of 1793. In 1842 Joseph Story, writing for the Supreme Court declared unenforceable in Prigg v. Pennsylvania - state laws that obstructed the right of a slave owner to recover his escaped human property anywhere in the United States. The only safe refuge was in Canada.
The Prigg declaration of federal supremacy was grounded in Constitution and statutes of 1793 and 1850.
But unresolved was the extent of executive power. The English `glorious revolution' of 1688 unmistakably established Parliamentary primacy - over crown and court. But our Congress was hobbled by the terms of Constitutional compromise between states grounded in free labor and those grounded in chattel slavery..
Unresolved has been the extent of the Constitution's Article II, Section 3 command that the laws "shall be faithfully executed". In that regard the Supreme Court has now cast its vote fo r the President and against the Congress which constrained the executive's power to discharge an agency constituted by law, such as the Federal Trade Commission and others.
Thus when a District Judge enjoined Donald Trump's discharge of two members of such boards, the Supreme Court declared, in an unsigned May 2025 order in Trump v. Wilcox
The Government has applied for a stay of orders from the District Court for the District of Columbia enjoining the President’s removal of a member of the National Labor Relations Board (NLRB) and a member of the Merit Systems Protection Board (MSPB), respectively. The President is prohibited by statute from removing these officers except for cause, and no qualifying cause was given. See 29 U. S. C. §153(a); 5 U. S. C. §1202(d).
But rather than faithfully execute the statutory command the President discharged Board members without any stated cause. This action elicited dissent by three Associate Justices. Writing for the dissenters Elena Kagan said:
For 90 years, Humphrey’s Executor v. United States, 295 U. S. 602 (1935), has stood as a precedent of this Court. And not just any precedent. Humphrey’s undergirds a significant feature of American governance: bipartisan administrative bodies carrying out expertise-based functions with a measure of independence from presidential control. The two such agencies involved in this application are the National Labor Relations Board (NLRB) and Merit Systems Protection Board (MSPB). But there are many others— among them, the Federal Communications Commission (FCC), Federal Trade Commission (FTC), and Federal Reserve Board. Congress created them all, though at different times, out of one basic vision. It thought that in certain spheres of government, a group of knowledgeable people from both parties—none of whom a President could remove without cause—would make decisions likely to advance the long-term public good.
But now the other shoe has dropped. The court has agreed to hear Trump v. Slaughter - a challenge by the now discharged member of the Federal Trade Commission the Court stayed the order below and granted "certiorari before judgment",saying:
The parties are directed to brief and argue the following questions: (1) Whether the statutory removal protections for members of the Federal Trade Commission violate the separation of powers and, if so, whether Humphrey’s Executor v. United States, 295 U. S. 602 (1935), should be overruled. (2) Whether a federal court may prevent a person’s removal from public office, either through relief at equity or at law.
In another impassioned dissent Elena Kagan, explaining that Humphreys remains good law, wrote on September 22:
So the President cannot, as he concededly did here, fire an FTC Commissioner without any reason. To reach a different result requires reversing the rule stated in Humphrey’s: It entails overriding rather than accepting Congress’s judgment about agency design. The majority may be raring to take that action, as its grant of certiorari before judgment suggests. But until the deed is done, Humphrey’s controls, and prevents the majority from giving the President the unlimited removal power Congress denied him.
- GWC
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