Supreme Court turns away challenge to consumer safety agency’s structure

The Supreme Court announced Monday it won’t take up a case that could have delivered another blow to federal agencies.

Two conservative groups sought to challenge the structure of the Consumer Product Safety Commission (CPSC), which oversees making sure the country’s consumer products are safe. 

At issue were protections preventing the president from firing any of the agency’s five commissioners, except for neglect of duty or malfeasance. 

“For the CPSC, with great power comes great unaccountability,” the groups wrote in their high court petition.

The Supreme Court refused to take up the case in a brief order without any noted dissents, as is typical.

The groups’ request was backed by 11 Republican lawmakers — including Sens. Ted Cruz (Texas) and Mike Lee (Utah) — 16 Republican state attorneys general, the Chamber of Commerce and various libertarian think tanks. 

But the Biden administration warned the Supreme Court against accepting their arguments, saying it could invalidate similar setups of other federal agencies.

“That is not a tenable reading of this Court’s precedent,” U.S. Solicitor General Elizabeth Prelogar wrote in court filings. 

The CPSC, established in 1972, is empowered by Congress to ban hazardous products, issue recalls and seek fines for violations.

Consumers’ Research and By Two, which brand themselves as “educational organizations,” challenged the agency’s setup by suing over records requests the groups made under the Freedom of Information Act. 

A district judge agreed that the commissioners’ for-cause removal protections ran afoul of the separation of powers. A divided panel of the 5th U.S. Circuit Court of Appeals reversed the decision, leading the groups to appeal to the Supreme Court.

The Biden administration urged the high court to turn away the case, arguing the groups did not have legal standing to bring their weighty challenge and calling their suit “highly artificial.”

“It would disserve that principle to allow petitioners to leverage a 5¢ increase in photocopying fees into a vehicle for seeking to effectively overrule a 90-year-old precedent and invalidate dozens of federal statutes,” Prelogar wrote.

The case stood to add to several striking blows the Supreme Court has delivered against the federal bureaucracy in recent terms amid a widespread push from conservative and libertarian interests in recent years to dismantle the “administrative state.”

The plaintiffs were represented by former Trump White House counsel Don McGahn, a Jones Day attorney who has long-standing ties to the conservative Federalist Society.  

“If allowed to stand, the Fifth Circuit’s decision will further entrench an unaccountable Fourth Branch— one that rules Americans without having to answer to them,” McGahn wrote in the petition.

“But the Founders did not fight a revolution so that their descendants could live under the dictates of unelected commissioners and tenured bureaucrats,” he continued. “And this Court’s precedent does not substitute a technocracy for the Founders’ vision.”