Supreme Court Stays Democratic Commissioners' Reinstatements

The Supreme Court July 23 stayed the district court decision that returned the three Democratic commissioners to CPSC. As requested by the Department of Justice (DOJ), the majority treated as a precedent its earlier decision to stay reinstatements at two other agencies. The underlying reasoning was that "the Government faces greater risk of harm from an order allowing a removed officer to continue exercising the executive power than a wrongfully removed officer faces from being unable to perform…statutory duty."

The decision (bit.ly/4faTYrI) compared CPSC to one of the agencies in that earlier stay: "[T]he Consumer Product Safety Commission exercises executive power in a similar manner as the National Labor Relations Board, and the [CPSC] case does not otherwise differ…in any pertinent respect." Besides NLRB, the other agency was the Merit Systems Protection Board (MSPB).

However, the court did not expedite scrutiny of the 1935 precedent – Humphrey's Executor v. United States – long used to uphold statutes protecting members of multimember government panels like CPSC. DOJ had sought that treatment too (PSL, 7/21/25). It argued that the current status of the CPSC case – under review in the 4th circuit U.S. appeals court – could push potential Supreme Court attention to Humphrey's past its next term and thus far into the current presidential term.

In a concurrence to the stay, Justice Brett Kavanaugh suggested the court should have taken that course, writing:

"When an emergency application turns on whether this Court will narrow or overrule a precedent, and there is at least a fair prospect (not certainty, but at least some reasonable prospect) that we will do so, the better practice often may be to both grant a stay and grant certiorari before judgment. In those unusual circumstances, if we grant a stay but do not also grant certiorari before judgment, we may leave the lower courts and affected parties with extended uncertainty and confusion about the status of the precedent in question. Moreover, when the question is whether to narrow or overrule one of this Court's precedents rather than how to resolve an open or disputed question of federal law, further percolation in the lower courts is not particularly useful because lower courts cannot alter or overrule this Court's precedents. In that situation, the downsides of delay in definitively resolving the status of the precedent sometimes tend to outweigh the benefits of further lower-court consideration."

A dissent by Justice Elena Kagan and joined by Justices Sonia Sotomayor and Ketanji Brown Jackson asserted that the court was abusing the emergency docket. Kagan made a similar charge with the NLRB and MSPB stays (PSL, 7/7/25). On the CPSC stay, she wrote:

"Once again, this Court uses its emergency docket to destroy the independence of an independent agency, as established by Congress…Today, the same majority's stay permits the President to fire, again without cause, the Democratic members of the Consumer Product Safety Commission (CPSC). Congress provided that the CPSC, like the NLRB and MSPB, would operate as 'a classic independent agency – a multi-member, bipartisan commission' whose members serve staggered terms and cannot be removed except for good reason…In Congress's view, that structure would better enable the CPSC to achieve its mission – ensuring the safety of consumer products, from toys to appliances – than would a single-party agency under the full control of a single President. The CPSC has thus operated as an independent agency for many decades, as the NLRB and MSPB also did. But this year, on its emergency docket, the majority has rescinded that status. By allowing the President to remove Commissioners for no reason other than their party affiliation, the majority has negated Congress's choice of agency bipartisanship and independence."

Kagan suggested that the broader goal is to shift power from the legislative to the executive branch.