American Home Furnishings Alliance, Mississippi Economic Council, and Mississippi Manufacturers Association v. United States Consumer Product Safety Commission, Amicus Curiae Brief of Separation of Powers Clinic in Support of Petitioners

Abstract

The Supreme Court has held that Article II’s vesting of executive power in the President, who must “take Care that the Laws be faithfully executed,” provides the President with the power to remove most principal executive officers at will. The Court has also held that Humphrey’s Executor v. United States established only a narrow exception to that principle “for multimember expert agencies that do not wield substantial executive power,” a descriptor the Court applied to the Federal Trade Commission as it was understood to operate in 1935 when Humphrey’s Executor was issued.


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, as relevant here. The CPSC has not been shy about exercising these powers, which the Supreme Court has labeled as quintessentially executive. Accordingly, 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.

Keywords: Separation of Powers, Constitutional Law, Administrative Law, Executive Power, Appointments Clause, Independent Agencies, Humphrey's Executor, Precedent

JEL Classification: H1, H10, H11, K23, Z18, G38