Document Type
Article
Publication Date
12-4-2025
Publisher
Yale Law School
Language
en-US
Abstract
“I do not say the office is either Executive or Judicial; I think it rather distinct from both, though it partakes of each, and therefore some modification, accommodated to those circumstances ought to take place.” – James Madison on the Comptroller, June 29, 1789
On Monday, December 8th, the Supreme Court will hear oral arguments in Trump v. Slaughter. The case presents a pivotal challenge to Humphrey’s Executor, the New Deal precedent underpinning so-called independent agencies. In Humphrey’s, the Hughes Court unanimously held that Congress could shield administrators from presidential removal if they exercised “quasi-judicial” or “quasi-legislative” functions. Since the 1980s, originalists have scorned these “quasi” categories, viewing them as a departure from the Constitution’s mandate for unitary presidential control over administration.
Yet recent findings challenging the unitary executive theory (UET) fortuitously shed light on the quasi-judicial category’s historical pedigree. But these findings have been put forward by scholars with separate research agendas. In our newly available essay on SSRN, we synthesize hidden throughlines in the new literature. We argue the quasi-judicial function from Humphrey’s is compatible with original public meaning. More profoundly, it embodies a “history and tradition” integral to the Anglo-American constitutional project—far more primordial than even originalist credentials can suggest.
Recommended Citation
Beau J. Baumann & Jed H. Shugerman,
“Quasi-Judicial”: A History and Tradition, by Beau J. Baumann & Jed H. Shugerman
,
Notice and Comment
(2025).
Available at:
https://scholarship.law.bu.edu/faculty_scholarship/4160
