This PubCo post highlighted a petition for cert. filed this term to review the Fifth Circuit decision, Consumers’ Research v. Consumer Product Safety Commission. Below is a brief update on the outcome. The expectation was that, if the SCOTUS granted cert. in the case, the Court might take the opportunity to continue its shellacking of the administrative state. But would they? The case involved the concept of agency independence as established in a 1935 case, Humphrey’s Executor v. United States—more specifically, the president’s authority to remove commissioners of so-called “independent” agencies, in this instance, the Consumer Product Safety Commission. With the three-judge panel of the Fifth Circuit practically begging SCOTUS to review its decision, it sure seemed like a good bet that the Court would grant cert.
This case involved an amendment to CPSC’s FOIA regulations that increased the per-page fee for paper copies by $0.05(!!), and eliminated duplication fees for electronic copies. One of the plaintiffs, an educational consulting partnership, asked for, but was denied, waivers of these fees. They sued, arguing that the CPSC’s structure violates Article II of the U.S. Constitution because the President may remove the members of the CPSC only for cause, along with other claims related to CPSC’s purported unconstitutional structure. The Fifth Circuit could not “agree that the Commission’s structure violates the prevailing iteration of the removal doctrine as the Supreme Court has articulated it.” To trigger a constitutional violation would require that for-cause removal be combined with “‘other independence-promoting mechanisms’ that ‘work[] together’ to ‘excessively insulate’ an agency from the President’s control.” None were identified. Accordingly, the court held that, “[u]nder these rules, Humphrey’s still protects the [CPSC].”
However, the Fifth Circuit explicitly suggested that the case may attract SCOTUS’s attention because it
“tees up one of the fiercest (and oldest) fights in administrative law: the Humphrey’s Executor ‘exception’ to the general ‘rule’ that lets a president remove subordinates at will. In this 1935 New Deal-era precedent, which detractors say dilutes the president’s constitutional power over the executive branch, the Supreme Court upheld restrictions on the president’s authority to remove commissioners of so-called ‘independent’ agencies—those headed by officers who may only be removed for specified causes….As middle-management circuit judges, we must follow binding precedent, even if that precedent strikes us as out of step with prevailing Supreme Court sentiment. The logic of Humphrey’s may have been overtaken, but the decision has not been overruled—at least not yet. Until that happens, Humphrey’s controls.”
And at the conclusion, the court acknowledged that “Humphrey’s does settle the question. Only the Supreme Court has power to reconsider that New Deal-era precedent—perhaps reaffirming it, overruling it, or narrowing it—and at least so far, it hasn’t.”
And, as of yesterday, it still won’t—not this term at least—as SCOTUS denied cert in this case. We may never know whether the denial was based on narrow case specifics or signals an intent by the Court to pause its efforts to curb the administrative state, as least temporarily. Was it just that the Court agreed with CPSC that the case was an “exceptionally poor vehicle for deciding a constitutional question of this magnitude”? Or perhaps the Court has bigger fish to fry: a petition for cert. has also recently been filed in Consumers’ Research v. FCC, another case out of the Fifth Circuit, which raises the question of whether Congress violated the nondelegation doctrine in granting certain authority to the FCC—a question that, depending on the outcome could have enormous impact. (See this PubCo post.) Stay tuned.
