Supreme Court Declines to Hear Challenge to Structure of CPSC

On October 21, 2024, the Supreme Court declined to hear a challenge to the structure of the Consumer Product Safety Commission (CPSC). As we explained in a previous blog post, under CPSC’s current structure, the president of the United States can remove CPSC commissioners from office only for neglect of duty or malfeasance. If the Supreme Court had granted certiorari, the Court would have considered whether the president should have the authority to remove appointed CPSC commissioners at will or for cause only.

The case in question, Consumers’ Research v. Consumer Product Safety Commission, 91 F.4th 342 (5th Cir. 2024), arose after CPSC denied Freedom of Information Act (FOIA) requests filed by Consumers’ Research, an organization that conducts research on consumer products. Consumers’ Research, first filed in 2022, challenged the FOIA denial by arguing that CPSC is unconstitutionally insulated from the supervision and control of the Executive Branch. The District Court sided with Consumers’ Research, issuing a declaratory judgment that CPSC’s restriction on removal of commissioners violates Article II of the Constitution. The Fifth Circuit Court of Appeals reversed, holding that CPSC can still exercise “substantial executive power” while insulated from the president’s supervision and control.

The Fifth Circuit’s decision in Consumers’ Research (and the propriety of CPSC’s current structure) rests on Humphrey’s Executor v. Federal Trade Commission, 295 U.S. 602 (1935), a landmark case that upheld the constitutionality of FTC commissioners’ tenure protections against an Article II challenge. The FTC’s structure is essentially identical to that of CPSC: a multimember commission with commissioners removable only for cause.

Critics of Humphrey’s Executor have argued that it was wrong at the time it was decided and should be reconsidered. One such critic, the New Civil Liberties Alliance (NCLA), has asserted that because CPSC commissioners exercise executive power, the president must retain the ability to supervise commissioners and remove those he no longer wishes to exercise executive powers. In that way, according to NCLA, “Humphrey’s Executor is flatly inconsistent with the Constitution’s allocation of all ‘executive Power’ to the President.” 

In response to the Supreme Court’s denial of certiorari, Will Hill, Executive Director of Consumers’ Research, asserted that the organization would continue to advocate against CPSC’s structure. Hill noted, “While it is disappointing the Supreme Court declined our appeal, Consumers' Research will continue to look for ways to protect consumers from an unconstitutional bureaucracy that lacks the proper checks and balances…. No regulatory agency that directly impacts consumers and wields substantial executive power, such as the Consumer Product Safety Commission, should be shielded from any executive oversight.”

The challenge presented in Consumers’ Research is the latest in a string of cases that have challenged the power of federal agencies, which the Supreme Court has sought to rein in through a series of recent decisions. Most significant was the Court’s decision in Loper Bright Enterprises v. Raimondo, 603 U.S. ___ (2024), which overturned the 40-year-old Chevron decision that requires courts to defer to an agency’s reasonable interpretation of an ambiguous law passed by Congress.

The Court’s denial of certiorari in Consumers’ Research means CPSC and other federal agency commissioners will maintain their perceived job security and be less susceptible to influence across changing administrations. And unless the Supreme Court decides to hear a challenge presenting a similar question, CPSC commissioners can only be removed “for neglect of duty or malfeasance in office.”