5th Circuit Judges Decide Not to Rehear Commissioner-Protection Case

Judges of the 5th Circuit U.S. appeals court April 16 denied a request for an en banc rehearing of the decision that upheld CPSC commissioners' removal protections. Eight judges voted in favor of rehearing, but nine voted against. The earlier decision (PSL, 1/22/24) did not endorse the protections but urged a Supreme Court reconsideration of 1935's Humphreys Executor v United States. In the rehearing denial, 5th Circuit judges repeated that suggestion.

In concurring remarks on the denial, Judge Don Willet wrote (bit.ly/3QctSZV):

"Until [the Supreme Court rules], we must apply precedent dutifully – but we need not do so quietly. Count me among those skeptical of Humphrey’s Executor, which seems nigh impossible to square with the Supreme Court’s current separation-of-powers sentiment. Even so, sentiment is not precedent. And while an en banc petition cannot push reset on Humphrey’s Executor, a certiorari petition can."

"And this cert petition writes itself."

Dissenting Judge James Ho went further, writing, "Restoring our democracy requires regaining control of the bureaucracy." He suggested that the 5th Circuit should seek to reconcile Humprey's with 2020's Selia Law v. Consumer Financial Protection Bureau even if the newer Supreme Court decision addressed an agency led by just one person, not a panel.

In Selia, the Supreme Court held that the CFPB director can be removed at the will of the president. In Humphrey's, the Supreme Court held that President Franklin Roosevelt could not so remove one of the FTC commissioners. This year, the 5th Circuit deemed CPSC's multi-member structure to be like FTC's so decided the precedent from Humphrey's still applies.

CPSC commissioners cannot be removed by the president except in certain for-cause situations. They serve in staggered seven-year terms that run regardless of being filled. Once confirmed by the Senate, commissioners are seated until the end of their terms regardless of who is president and even if control of the White House switches parties.

The argument against this structure is that it improperly abridges the president's powers over the executive branch under Article II of the Constitution. Currently, this means that Democratic control of CPSC could last well into the next administration regardless of who wins the November presidential election.

Interestingly, a new president can remove a CPSC chairman from that position at will, but the person nonetheless remains as a commissioner.