Document Type
Working Paper
Publication Date
12-2025
Language
en-US
Abstract
In challenging the historical assumptions underlying the unitary executive theory, scholars have made several seemingly unrelated discoveries. First, "judicial" power was conceived in English law as a subset of "executive" authority. Second, Congress at or near the Founding insulated certain court-like comissions from presidential control. Finally, the "quasi-judicial" and "quasi-legislative" powers that were central to the holding of Humphrey's Executor flowed from a forgotten nineteenth-century legal tradition was guiding Congress's construction of the modern state. This Essay connects these findings into a single claim: generations of American stretching back past the Founding have instinctively insulated administrators granted quasi-judicial functions from hierarchical control and presidential removal. Americans expect judge-like independence when politicians grant administrators judge-like powers and functions.
The quasi-judicial category deployed in Humphrey's was the logical extension of English legal customs, Founding Era administration, and the evolution of the ninteenth-century law of officeholding. It reflected an Anglo-American instinct to insulate judge-like offices from direct hierarchical control. Whether you are an originalist or a believer in the history-and-tradition approach, these findings show that Congress may insulate quasi-judicial officials from presidential removal and direction. Beyond original public meaning, the quasi-judicial function from Humphrey's is bound up with the Anglo-American constitutional project stretching back beyond the Founding. If the Roberts Court overrules Humphrey's, it will imperil a primordial instinct that is part of our rule-of-law tradition.
Recommended Citation
Beau J. Baumann & Jed H. Shugerman,
Quasi-Judicial: A History and Tradition
(2025).
Available at:
https://scholarship.law.bu.edu/faculty_scholarship/4159
