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Monday January 22, 2024

5th Circuit Upholds Commissioners' Removal Protections

The U.S. 5th Circuit appeals court January 17 upheld the protections CPSC commissioners enjoy against not-for-cause removal by presidents. The ruling ( reverses a 2022 Texas U.S. district court decision that those protections violate Article II of the Constitution due to the commission's executive powers outside presidential oversight. The judges in the new decision did not give strong endorsement of the protections, but rather asserted they were bound by Supreme Court precedent, specifically the 1935 Humphreys Executor v. United States decision.


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They acknowledged the high court's recent interest in administrative law, including the current review of what is known as "Chevron Deference" in which courts typically defer to agencies on matters in which laws are silent, especially where agency staff have the professional expertise.


They wrote:

"Today's case may also attract the Court's interest. It tees up one of the fiercest (and oldest) fights in administrative law: the Humphrey's Executor 'exception' to the general 'rule' that lets a president remove subordinates at will. In this 1935 New Deal-era precedent, which detractors say dilutes the president's constitutional power over the executive branch, the Supreme Court upheld restrictions on the president's authority to remove commissioners of so-called 'independent' agencies – those headed by officers who may only be removed for specified causes…"
"…As middle-management circuit judges, we must follow binding precedent, even if that precedent strikes us as out of step with prevailing Supreme Court sentiment. The logic of Humphrey's may have been overtaken, but the decision has not been overruled – at least not yet. Until that happens, Humphrey's controls."

The underlying, modern case is Consumers' Research v. Consumer Product Safety Commission (6:21-cv-256-JDK), decided in eastern Texas U.S. district court.


The plaintiff did argue that a 2020 Supreme Court decision, Seila Law v. Consumer Financial Protection Bureau, means that Humphreys should be overridden. However, the 5th Circuit judges said Selia dealt with removal of a person atop an agency with a single leader. They wrote that CPSC's structure, in contrast, is nearly identical to FTC's – with a multi-member commission – so Humphreys still stands.


Humphreys involved President Franklin Roosevelt's attempt to remove an FTC commissioner, William Humphrey, but the 1930s Supreme Court sided with congressional power to condition such removal via statute.