The Consumer Product Safety Commission (CPSC) is a federal regulatory agency headed by five commissioners. Under the Consumer Product Safety Act, the commissioners can be removed by the President only for good cause. The CPSC uses administrative law judges (ALJs), who have statutory protection against being fired without cause, in conducting adjudications of enforcement matters involving companies alleged to have sold unsafe consumer products in violation of the CPSC’s regulations.
The subject of one such enforcement proceeding was Leachco, Inc., a company that makes infant sleeping products that reportedly have been involved in the deaths of three babies. Leachco brought an action in the U.S. District Court for the Eastern District of Oklahoma, alleging that the tenure protections for CPSC members and its ALJs violate separation of powers because they impede the President’s ability to direct the agency’s actions. Leachco sought a preliminary injunction, which the district court denied. Leachco then appealed to the Tenth Circuit.
In the court of appeals, Public Citizen filed an amicus brief in support of the CPSC. Arguing that the district court was correct to deny the preliminary injunction because Leachco’s claims are not likely to succeed, the brief explains that both Supreme Court and Tenth Circuit precedent support the constitutionality of independent, multi-member regulatory agencies whose commissioners are protected against removal without cause by the President. The Supreme Court upheld the constitutionality of such commissions in 1935, and its recent opinions have reaffirmed the validity of tenure protection for members of multi-member regulatory agencies. The Supreme Court’s decisions also provide no support for the argument that employment protections for ALJs violate separation of powers. Finally, the Supreme Court’s recent rulings make clear that restrictions on the removal of executive officers, even if unconstitutional, do not deprive those officers of authority to perform their duties.