Amicus Brief: Leachco, Inc. v. Consumer Product Safety Commission

Leachco is a child-accessory company that grew out of a mom’s designing various devices for her babies and children, and grew to holding dozens of patents. It was eventually investigated by the Consumer Product Safety Commission, but won before CPSC’s administrative law judge (internal adjudicator). The commission appealed that ruling… to itself. Leachco sued in federal court and asked for a preliminary injunction to halt the administrative proceeding, so that it may obtain “meaningful” judicial relief for its constitutional claims before it’s “too late.” Leachco alleges that the Commission is unconstitutionally structured because its commissioners wield significant executive powers without the accountability the Constitution requires—unrestricted removal power by the president. Because the commissioners enjoy for-cause removal protections, Leachco suffers ongoing “here-and-now” harm that cannot be remedied once the proceeding ends.

Yet the lower courts repeatedly denied Leachco’s requests. The Tenth Circuit held that, unlike violations of “individual rights,” violations of the separation of powers can never cause irreparable harm and thus Leachco is barred from receiving injunctive relief. Separately, the court held that Leachco is unlikely to succeed on the merits because the agency’s commissioners are lawfully insulated from removal under the Supreme Court’s decision in Humphrey’s Executor v. United States (1935).

Leacho is now seeking Supreme Court review, particularly in light of Seila Law v. CFPB (2020), which held that Humphrey’s adopted only a narrow exception to the president’s “unrestricted” removal power. MI has joined the Competitive Enterprise Institute on an amicus brief supporting that petition and asking the Court to reconsider Humphrey’s Executor. We argue that the CPSC’s structure infringes on the president’s ability to ensure that laws are faithfully executed.

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

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