Chamber: SCOTUS Should Give President Power to Oust Independent Commissioners

A case before the U.S. Supreme Court, Consumers' Research, et al. v. Consumer Product Safety Commission, potentially has major implications for the FCC and FTC, and could permit a president to fire a commissioner at will, industry lawyers said. The U.S. Chamber of Commerce and other conservative groups are asking SCOTUS in amicus filings to grant the writ of certiorari from Consumers' Research.

The 5th U.S. Circuit Court of Appeals, widely viewed as the most conservative of the circuits, in January rejected the appeal. If SCOTUS grants certiorari and agrees with Consumers’ Research, it would overturn a 1935 precedent established in Humphrey’s Executor v. U.S. The earlier 5th Circuit decision predicted the case could be of interest to SCOTUS, with its focus on administrative law. “It tees up one of the fiercest (and oldest) fights in administrative law,” said the decision by Judge Don Willett, a Trump appointee.

“On the merits, this Court’s precedents permit only one conclusion: removal restrictions for CPSC commissioners violate the Constitution because … the CPSC wields substantial executive power,” the Chamber said in an amicus brief supporting Consumers' Research in seeking review. Article II of the Constitution “‘grants … the executive power of the government’ ‘to the President,’ who must ‘take care that the laws be faithfully executed,’” the Chamber said: “The subordinate officers who wield authority on the President’s behalf ‘must remain accountable to’ him so that he may exercise that constitutional responsibility.”

Joining the Chamber were Louisiana and 15 other Republican-led states, which also filed in support, as did U.S. Sen. Ted Cruz, R-Texas. "From ‘airborne beach umbrellas,’ to memory foam mattresses, to ‘fire extinguisher balls,’ there is no product in American society that can escape the regulatory grasp” of the CPSC, the states said. The Cato Institute said, “Some agencies grew their powers piecemeal, while others received broad new powers abruptly via Congressional authorization": "The 50-year ‘leakage’ of executive power to unelected, difficult to remove government officials must be abated to preserve the separation of powers scheme that the Constitution requires.”

SCOTUS “has been chipping away at limits on the removal power, and it seems likely” at some point Chief Justice John Roberts is “aiming” to overturn the Humphrey's Executor decision, TechFreedom Internet Policy Counsel Corbin Barthold said. The question is “will the justices flinch at doing so while Donald Trump is still in the picture?” Give the president “unlimited removal power, and the next day” a President Donald Trump would fire every Democratic commissioner, Barthold said.

If SCOTUS agreed with the Chamber, it would “essentially eliminate independent regulatory enforcement,” American University administrative law professor Jeff Lubbers said. The staggered nomination process at the FCC and the opposing party members of the commission work to prevent a new White House from gaining instant control over the commission, Lubbers said. However, several U.S. justices -- including Brett Kavanaugh -- have signaled that they would likely be receptive to a challenge, he said.

Overturning the precedent would cause a “massive sea change” for independent agencies depending on who is in the White House, DLA Piper Administrative Law Appellate Practice Chair Peter Karanjia said. “I think it would depend on who's in charge, and the specifics of what any given business or company may want at any given time,” Karanjia said. “There are some cases where the companies will not want a regulator to take action, and there are other cases where it will.”

Lubbers and Karanjia agreed agencies would lose some of their independence. There’s a distinction between a president influencing the FCC through indirect means such as “the bully pulpit” and having the ability to fire commissioners at will, Karanjia said.

Overturning the 1935 case “has long been on the wish list of the right-wing scholars whose radical views are becoming more mainstream in the current Supreme Court,” Benton Institute for Broadband & Society Senior Counselor Andrew Schwartzman said. While some justices “have indicated receptiveness, I suspect that this case asks the majority to take an extremely disruptive step that may be less necessary” after the Loper Bright and Jarkesy decisions, which limited agency power, he said.

Tejas Narechania, professor of law at the University of California, Berkeley, said in an email that SCOTUS “has had opportunities in the past to overrule precedents affirming the independence of such commissioners, and so it's hard to think of a compelling reason they would suddenly decide to do so here.” But the current court, more than any other in history, “likes to use its docket discretion to choose cases for the purposes of revisiting, and perhaps overruling, precedent,” Narechania said: “We saw that this past term in Loper Bright. Perhaps this will be another example.”

Former FCC Commissioner Michael Copps said, “It’s a double-barrel onslaught on effective government.” He added, “First comes [Loper] to disembowel needed expert agencies and now this push by special interests to speed that up by allowing mass firings of the experts who provide us with consumer protection, public health and financial safeguards, environmental regulations and many other safeguards of the public interest.”

The long-standing precedent “has been widely criticized by many scholars, including conservative ones,” Free State Foundation President Randolph May said. May wouldn’t be surprised to see SCOTUS take the case, though he doesn't think it's a good bet that the Court "will hold the president can fire a CPSC commissioner without cause.” The court “will closely examine the statute, structure and organization of each so-called ‘independent' agency because they are not all the same,” he wrote in an email.