Consumers’ Research; By Two, L.P. v. Consumer Product Safety Commission, Amicus Curiae Brief of Separation of Powers Clinic in Support of Appellees

Abstract

The Commissioners of the Consumer Product Safety Commission ('CPSC') have long enjoyed statutory removal protections, and—under Humphrey’s Executor and Seila Law—those protections are constitutional only if the CPSC does not “wield substantial executive power.” But the CPSC possesses and exercises significant executive powers far beyond those the Federal Trade Commission ('FTC') was understood to wield at the time of Humphrey’s Executor. The CPSC can file civil suits and administrative proceedings seeking crippling damages and injunctions, and can also issue binding regulations. The CPSC has not been shy about exercising these powers, which the Supreme Court has labeled as quintessentially executive. Accordingly, the District Court correctly held that the CPSC exercises substantial executive power, and the Humphrey’s Executor exception to the President’s at-will removal power cannot apply to the CPSC Commissioners.

The proper remedy in this case is to declare void the CPSC Commissioners’ statutory removal protections.

Keywords: Separation of Powers, Constitutional Law, Administrative Law, Removal Power, Unitary Executive Theory, Consumer Product Safety Commission, Federal Trade Commission

JEL Classification: H1, H10, H11, K23