DOJ to Pursue SCOTUS Negation of Commissioners' Firing Protection

The Department of Justice is set to ask the Supreme Court to overturn the legal precedent used to support the Consumer Product Safety Act's protection against at-will firing of CPSC commissioners and similar shields for other agencies. That came in a letter (bit.ly/4hUjC3P) from Acting Solicitor General Sarah Harris to the ranking members of the Senate and House Judiciary Committees – Sen. Richard Durbin (D-Ill.) and Rep. Jamie Raskin (D-Md.).

The letter disputed the view that the 1935 Supreme Court case, Humphrey's Executor v. United States, is applicable to CPSC, National Labor Relations Board, and modern-day Federal Trade Commission. The last was protected by Humphrey's, which upheld a bar against at-will firing of that agency's commissioners.

However, asserted Harris, a 2020 Supreme Court ruling, Selia Law LLC v. Consumer Financial Protection Bureau, narrowed the protections for agencies exercising "substantial executive power" like creating rules. The agencies have such powers, so their leaders can be dismissed at will, argued Harris, concluding:

"To the extent that Humphrey's Executor requires otherwise, the Department intends to urge the Supreme Court to overrule that decision, which prevents the President from adequately supervising principal officers in the Executive Branch who execute the laws on the President's behalf, and which has already been severely eroded by recent Supreme Court decisions."

Absent expedited Supreme Court attention, it is doubtful that such a case could do much to speed a 3-2 Republican CPSC majority. Democratic Commissioner Mary Boyle's term ends in October, so she can be replaced then anyway. Of course, the faster possibility is to ignore Humphrey's.

The 5th Circuit U.S. appeals court last year refused to rule on the Selia question, bowing to Humphrey's as precedent (PSL, 3/25/24). But the judges supported Supreme Court review as ripe. Later, the 10th Circuit also rejected addressing such matters (PSL, 6/10/24). Then, the Supreme Court declined, without comment, to consider appeals of those decisions. Both cases involved disputes over CPSC actions.