NYU Law Legal Historians Rosenblum and Donahue Cited in Sotomayor's Trump v. Slaughter Dissent

In her dissent from the Supreme Court's decision overruling Humphrey’s Executor, Associate Justice of the US Supreme Court Sonia Sotomayor leaned twice on the work of NYU Law legal historians whose scholarship has become a flashpoint in the controversy surrounding presidential removal power.

Sotomayor’s dissent, joined by justices Elena Kagan and Ketanji Brown Jackson, cited Professor Noah Rosenblum—writing with historian and Professor of Law at Washington University in St. Louis Andrea Scoseria Katz—to bolster her argument that Chief Justice Taft’s account of history in the Court’s 1926 decision Myers v. United States doesn't hold up. Sotomayor wrote that “most contemporary scholars” view Taft’s reading of the founding-era “Decision of 1789” as skewed, and cited Katz and Rosenblum’s 2023 Columbia Law Review article for that proposition, alongside their observation that even scholars and jurists of Taft’s own era pushed back on the opinion’s historical claims.

Later in her dissent, Sotomayor drew on an amicus brief filed directly in Slaughter by Rosenblum with fellow NYU historian Nathaniel Donahue. The brief traced the origins of the terms “quasi-legislative” and “quasi-judicial,” phrases the 1935 Humphrey’s Executor decision used to describe agencies like the FTC. Chief Justice John Roberts’s majority opinion argued that these terms had been drained of legal significance by later rulings, which held that functions once called “quasi-legislative” or “quasi-judicial” are, in substance, executive power that belongs to the President. Sotomayor’s dissent pushed back sharply, accusing the majority of treating the terms as devoid of meaning and citing Rosenblum and Donahue's brief for the claim that the concepts were, in fact, well-established well before Humphrey’s was decided—used by figures from Madison to Taft, and by courts developing a “quasi-judicial” category for officers whose duties resembled a judge’s.

Rosenblum is a legal historian whose scholarship focuses on the separation of powers and the history of the administrative state; he

 is also affiliated with the Brennan Center for Justice’s Historians Council on the Constitution, a group of scholars that has organized several amicus filings challenging the modern “unitary executive” theory on historical grounds. Donahue, his co-author on the Slaughter amicus brief, is assistant professor of law at NYU. His research focuses on the legal history of the American state and how Americans use law to facilitate state capacity, economic development, and responsive governance.