Amicus Brief: Consumers’ Research v. Consumer Product Safety Commission

In Seila Law v. CFPB (2021), the Supreme Court held that Humphrey’s Executor—a 1935 case okaying for-cause removal requirements for executive-branch officials in certain circumstances—extends only to “multimember expert agencies” that “do not wield substantial executive power.” The Consumer Product Safety Commission (CPSC) is one of the most powerful agencies within the federal government, regulating everything from mattresses to stoves through enforcement actions, rulemakings, and administrative adjudication. In 2021, Consumers Research and others sued the CPSC, arguing that the agency is unconstitutionally insulated from the president.

The district court granted partial summary judgment, awarding the petitioners a declaratory judgment holding the CPSC’s removal restrictions unconstitutional. But a divided Fifth Circuit panel reversed, reading Humphrey’s Executor as extending to any traditional multimember agency, regardless of how much power it wielded. Every judge—in majority and in dissent—agreed the CPSC wields substantial executive power. Nevertheless, the CPSC’s Commissioners are not removable at-will; the president can only fire them for “neglect of duty or malfeasance in office,” and for no “other” reason. 15 U.S.C. § 2053(a). The Fifth Circuit denied rehearing 8-9, with Judges Andrew Oldham and James Ho writing dissents.

The Manhattan Institute has now filed a brief supporting the challengers’ petition for Supreme Court review, with an originalist perspective on Article II and a restricted view of Humphrey’s Executor. If the Court grants cert, as it should, this would be next term’s big administrative law case.

Ilya Shapiro is a senior fellow and director of Constitutional Studies at the Manhattan Institute. Follow him on Twitter here.

Tim Rosenberger is a legal fellow at the Manhattan Institute.

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