Public Citizen News / May-June 2023
By Adina Rosenbaum
This article appeared in the May/June 2023 edition of Public Citizen News. Download the full edition here.
Companies are attacking the authority of the Consumer Product Safety Commission (CPSC) to do its work protecting consumers from dangerous products. Public Citizen is filing briefs in courts across the nation to support the agency and its vital product-safety standards.
Multi-member independent agencies—government agencies governed by a board or commission whose members can be removed by the president only for cause—are a long-standing and well-established part of the U.S. government. Congress has been creating such agencies since the 1800s, assigning them responsibilities in a wide variety of areas, including the regulation of securities (the Securities and Exchange Commission), election laws (the Federal Election Commission), telecommunications (the Federal Communications Commission), and consumer products (the CPSC). The independence of these agencies helps ensure that they are protected from political pressure and that their members can exercise their expert judgment in performing their statutorily assigned roles.
The Supreme Court has long upheld the constitutionality of multi-member independent agencies. The Court has understood that the Constitution does not require the president to have unrestricted power of removal over the heads of independent agencies and has explained that such removal power would threaten the agencies’ independence.
In 2020, in a case called Seila Law LLC v. Consumer Financial Protection Bureau, the Supreme Court declined to extend its precedent concerning the constitutionality of multi-member independent agencies to the unusual context of an independent agency led by only a single director. Explaining that this single-member structure departed from the historical practice of conferring authority on multi-member independent boards and commissions, the Court held that, for an agency with a single director, the Constitution requires that the president have authority to remove the director at will.
Although Seila Law distinguished single-member independent agencies from multi-member independent agencies, several new cases challenge actions of the CPSC, the agency charged with protecting the public from hazardous consumer products, on the theory that its structure is unconstitutional because the president can remove its five commissioners only for cause.
Public Citizen recently filed amicus briefs in support of the CPSC in three cases challenging the CPSC’s structure. The first case involves an enforcement proceeding that the CPSC commenced against Leachco, Inc., a company that makes infant lounging pillows that have reportedly been involved in the deaths of two babies. Leachco filed suit against the CPSC, seeking a preliminary injunction against the enforcement proceeding on a number of grounds, including the restrictions on the removal of CPSC commissioners. The district court denied the preliminary injunction, and Leachco appealed to the U.S. Court of Appeals for the Tenth Circuit.
In the court of appeals, Public Citizen filed an amicus brief supporting the CPSC. 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 brief also explains that 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.
The second case involves a CPSC rule setting a standard for operating cords on custom window coverings. Window coverings with accessible operating cords pose a risk of injury or death to young children from strangulation. In 2018, the industry adopted a voluntary standard that provides strong protections against the risks posed by operating cords on stock window coverings. But although accessible cords on custom window coverings also pose a risk to children, the 2018 voluntary standard did not apply similar standards to custom window coverings. Accordingly, in 2022, the CPSC promulgated a final rule to extend the standards for stock window coverings in the 2018 voluntary standard to custom window coverings.
An organization called the Window Covering Manufacturers Association challenged the rule in the U.S. Court of Appeals for the D.C. Circuit, arguing, among other things, that the restrictions on removing CPSC commissioners require vacatur of the final rule. On behalf of itself, Consumer Federation of America, Consumer Reports, Kids in Danger, Parents for Window Blind Safety, and U.S. PIRG, Public Citizen filed an amicus brief in support of the CPSC, arguing that the rule is necessary to reduce an unreasonable risk of injury and death and that the statutory restrictions on removal of CPSC commissioners do not render the rule invalid. The brief explains that the CPSC is precisely the type of multi-member, expert agency whose members can be protected from at will removal by the president without violating separation-of-powers principles and that, regardless, the removal restrictions do not provide a basis for vacating the window covering rule.
The third case involves another recent CPSC safety rule—this time a rule aimed at addressing the risk of injury and death to children associated with clothing storage units tipping over. Industry organizations challenged the rule in the U.S. Court of Appeals for the Fifth Circuit. Again, the challengers argued, among other things, that the rule should be vacated based on the limitations on the president’s power to remove the CPSC’s commissioner. And again, Public Citizen filed an amicus brief explaining that the statutory limits on the president’s power to remove the commissioners do not render the rule invalid.
The broad attacks on the CPSC in these cases reflect a larger trend of regulated industries trying to undermine the authority of federal agencies that protect consumers. And Public Citizen’s briefs in these cases reflect the organization’s long history of pushing back against attempts by industry to undo consumer protections.