Supreme Court declines to hear challenge of the Consumer Product Safety Commission’s structure

By John Fritze, CNN

(CNN) — The Supreme Court declined Monday 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 Constitution because its five-member board can only be removed by the president for cause.

A federal appeals court had 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 don’t make products regulated by the commission and therefore shouldn’t 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 US 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.”

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