Tuesday, January 10, 2023
Interesting article on In re Humphrey's Estate. Professor Craine argues that historically and substantively the Federal Trade Commission does not operate as a "quasi-judicial and quasi-legislative" body but is instead an arm of the Executive Branch. He is essentially arguing that the FTC's authority is unconstitutional, I think, one more nail in the coffin of the administrative state although he doesn't come right out and say so.
Humphrey’s Executor was the product of a broad coalition of Su-
preme Court Justices concerned with the overexpansion of presiden-
tial power. It legitimized the administrative state by enunciating vision for Progressive-technocratic administrative legislating by inde-
pendent and nonpolitical experts, and adjudicating of anticompetitive
practices. A century of experience has shown that the FTC’s actual
practice conforms very little to this vision. It is independent from the
President but inclined to the will of Congress, not uniquely expert,
and not predominantly legislative or adjudicatory. Rather, its pre-
dominant character is that of a law enforcement agency.
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