According to the court, the U.S. Supreme Court recently declined to hear an appeal challenging the structure of the Consumer Product Safety Commission, the latest legal case that threatened independent government agencies.

The appeal from two “educational organizations,” alleged that the 52-year-old independent consumer protection agency violates the U.S. Constitution because its five-member board can only be removed by the president for cause.

A federal appeals court has ruled against the groups, and so the Supreme Court’s decision to deny the case leaves the agency’s structure in place.

The case is the latest stop in a years-long legal battle over independent agencies Congress creates and attempts to insulate from politics and the whims of a president. Critics say those independent agencies, whose boards cannot be easily removed, raise significant separation of powers concerns.

The Consumer Product Safety Commission can “ban products, file enforcement suits, and secure eight-figure penalties,” the groups told the Supreme Court. “But it does all of this outside the lines of political accountability.”

The agency’s commissioners, the groups said, are “wholly unaccountable to the chief executive whose power it wields.”

In response, the Biden administration argued that the plaintiffs do not make products regulated by the commission and therefore should not be allowed to sue in the first place. The groups filed the litigation not because of a recalled product but rather because the commission declined to fulfill their records requests in 2021.

Biden officials stressed that a ruling for the groups could invite challenges to similarly structured federal agencies, including the National Transportation Safety Board, the Securities and Exchange Commission, the Occupational Safety and Health Review Commission and the Nuclear Regulatory Commission. Those agencies also have multi-member boards that were created to inject a degree of independence from the president — and presidential politics — from their decision-making.

A ruling for the groups, Consumers’ Research and By Two, could have given a president more power to shape those boards.

The appeal is the latest in a string of cases attempting to undermine independent agencies. In 2020, the Supreme Court invalidated the leadership structure of the Consumer Financial Protection Bureau, ruling that it violated separation of powers principles because the president was barred from removing the director at will. That litigation cropped up after a high-profile fight between the then director and former President Donald Trump.

Among the attorneys representing the groups challenging the Consumer Product Safety Commission this time is Don McGahn, who was White House counsel under Trump.

To defend the consumer agency, the Biden administration is relying heavily on a 1935 precedent that raised similar questions about the Federal Trade Commission. The groups challenging the agency are focused instead on the more recent decision, from 2020, involving the CFPB.

A U.S. District Court judge nominated by Trump sided with the groups, but the conservative 5th US Circuit Court of Appeals reversed that decision. When the full 5th Circuit declined to revisit that decision in April, Judge Don Willett, a Trump nominee, wrote that the 1935 precedent controlled the case but that it was “nigh impossible to square” that opinions with the Supreme Court’s “current separation-of-powers sentiment.”

The appeal to the Supreme Court, Willett wrote, “writes itself.”

 

Discussion Questions

1. What is the CPSC?

The CPSC is an independent agency of the U.S. government. It was created by the Consumer Product Safety Act in 1972. The CPSC seeks to promote the safety of consumer products by addressing unreasonable risks of injury by coordinating recalls, evaluating products that are the subject of consumer complaints or industry reports; developing uniform safety standards (some mandatory, some through a voluntary standards process; and conducting research into product-related illness and injury.

According to its website at https://www.cpsc.gov/About-CPSC:

“The CPSC works to save lives and keep families safe by reducing the unreasonable risk of injuries and deaths associated with consumer products and fulfilling its vision to be the recognized global leader in consumer product safety. The CPSC does this by:

(1) Issuing and enforcing mandatory standards or banning consumer products if no feasible standard would adequately protect the public;

(2) Obtaining the recall of products and arranging for a repair, replacement, or refund for recalled products;

(3) Researching potential product hazards;

(4) Developing voluntary standards with standards organizations, manufacturers, and businesses;

(5) Informing and educating consumers directly and through traditional, online, and social media and by working with foreign, state, and local governments and private organizations; and

(6) Educating manufacturers worldwide about our regulations, supply chain integrity, and development of safe products.”

 

2. What is an independent government agency?

In the U.S. government, independent agencies exist outside the federal executive departments (those headed by a Cabinet secretary) and the Executive Office of the President.

The term “independent government agency” refers only to those independent agencies that, while considered part of the executive branch, have regulatory or rulemaking authority and are insulated from presidential control, usually because the president’s power to dismiss the agency head or a member is limited.

 

Established through separate statutes passed by the U.S. Congress, each respective statutory grant of authority defines the goals an independent agency must work towards, as well as what substantive areas, if any, over which it may have the power of rulemaking. These agency rules or regulations, when in force, have the power of federal law.

 

3. In your reasoned opinion, are existential questions related to the independence of the Consumer Product Safety Commission, the National Transportation Safety Board, the Securities and Exchange Commission, the Occupational Safety and Health Review Commission, the Nuclear Regulatory Commission, and other independent agencies appropriate? Why or why not?

This is an opinion question, so student responses may vary. In your author’s opinion, the “beauty” of independent agencies is that their independence largely immunizes these agencies from the political process, which provides them with greater opportunity to fulfill their respective missions.