CPSC Commissioners and Executive Power

On July 18, 2024, the New Civil Liberties Alliance (NCLA), a nonprofit civil-rights organization, filed an amicus curiae brief, encouraging the Supreme Court to grant certiorari to Consumers’ Research v. Consumer Product Safety Commission, 91 F.4th 342 (5th Cir. 2024) to answer whether the president of the United States should have the authority to remove appointed commissioners of the Consumer Product Safety Commission (CPSC) at will or for cause only. If heard, Consumers’ Research could have significant impact on the structure and functioning of CPSC.

Under the current structure of CPSC, the president can only remove a CPSC commissioner from office for neglect of duty or malfeasance. Consumers’ Research asks the Court to consider whether this is constitutional. Although CPSC is empowered by statute to broadly exercise executive powers, “including the power to bring civil actions to enforce laws subject to its jurisdiction,” the commissioners are not at-will employees. This, according to critics, is unconstitutional because the president is entitled to the at-will removal of officers who exercise executive power.

Consumers’ Research was first filed in 2022 by educational organizations focused on product safety issues, alleging that the structure of CPSC violates Article II of the Constitution and the separation of powers by insulating commissioners from removal. In 2022, the District Court issued a declaratory judgment, holding that CPSC’s restriction on removal of commissioners violates Article II. The Fifth Circuit reversed, and petitioners appealed to the Supreme Court.

If certiorari is granted, the Court would need to decide whether to overturn Humphrey’s Executor v. Federal Trade Commission, 295 U.S. 602 (1935), which upheld the constitutionality of FTC commissioners’ tenure protections against an Article II challenge in 1935. The FTC’s structure is essentially identical to that of CPSC: a multimember commission with commissioners removable only for cause.

Under Humphrey’s Executor, the president is only permitted to remove CPSC commissioners for neglect of duty or malfeasance in office, which largely insulates them from removal. Critics of Humphrey’s Executor, including NCLA, argue that it was wrong at the time it was decided and must be overruled. According to NCLA, because CPSC commissioners exercise executive power, the president must retain the ability to supervise commissioners and remove those he no longer wishes to delegate power to. In that way, “Humphrey’s Executor is flatly inconsistent with the Constitution’s allocation of all ‘executive Power’ to the President,” NCLA argues. See NCLA Amicus Brief at 6.

NCLA representatives have also issued strong statements in support of the amicus brief. As NCLA President Mark Chenoweth stated, “CPSC’s actions are obnoxious to presidential oversight. Having independent agencies in the Executive Branch contradicts a proper understanding of the Constitution, and this case provides a good vehicle to fix that problem.” These statements were echoed by NCLA Senior Litigation Counsel Greg Dolin, who noted “The Constitution vests the executive power—all of it—in the President. It is long past time for the Court to correct its 1935 mistake, when it held that Congress could create a ‘fourth’ branch of government ‘independent’ of all political controls. The President, who is ultimately responsible to the people, must have the power to ensure that laws are ‘faithfully executed’ by his subordinates. To do so, he must have the power to fire subordinates who are not aligned with his policies. The Court should take this case.”

It remains to be seen whether the Supreme Court will take up the case. If certiorari is granted and Humphrey’s Executor is overruled, it would have major implications for the perceived job security of CPSC (and other federal agency) commissioners, thereby influencing how CPSC commissioners fulfill their roles.