NCLA Asks Supreme Court to Restore Presidential Control over “Independent” CPSC Commissioners
2024年7月19日 - 7:28AM
Today, the New Civil Liberties Alliance filed an amicus curiae
brief urging the Supreme Court to hear Consumers’ Research v.
Consumer Product Safety Commission, taking this golden opportunity
to overturn the 1935 Humphrey’s Executor v. Federal Trade
Commission decision and revamp CPSC’s unconstitutional structure.
Under current law, the President supposedly is only allowed to fire
CPSC commissioners “for neglect of duty or malfeasance in office,”
which insulates them from removal in violation of the “take Care”
clause of Article II of the Constitution. To approve CPSC’s
structure, the Fifth Circuit below invoked Humphrey’s Executor,
which upheld the constitutionality of FTC Commissioners’ similar
tenure protections on the flawed theory that the Federal Trade
Commission does not exercise executive power.
Humphrey’s must be overruled or confined to its
facts. CPSC incorrectly claims that its leadership structure is
identical to that of FTC when Humphrey’s Executor was decided.
However, Humphrey’s wrongly held that FTC exercised no executive
power in 1935, so it should be overruled on that basis. The
Constitution vests all executive power in the President, and the
ability to remove subordinates for any reason is an essential part
of executive power, if the President is to hold officials fully
accountable. The divided Fifth Circuit panel in this case thought
it was bound by Humphrey’s, but it admitted the decision’s
reasoning “‘has not withstood the test of time.’”
And whether or not FTC exercised executive power
in 1935, CPSC does so today. Hence, CPSC’s authority structure
cannot survive scrutiny even if the Supreme Court refuses to
revisit the holding in Humphrey’s. Mere application of the
Humphrey’s holding to CPSC should suffice to condemn the latter
agency’s current structure. CPSC admits to welding executive power,
and its authority falls entirely into that category, with the
agency adjudicating administrative cases, recalling products, and
initiating lawsuits. The President is fully entitled under the
Constitution to remove Commissioners at will, who exercise such
executive power.
NCLA released the following statements:
“The Constitution vests the executive power—all
of it—in the President. It is long past time for the Court to
correct its 1935 mistake, when it held that Congress could create a
‘fourth’ branch of government ‘independent’ of all political
controls. The President, who is ultimately responsible to the
people, must have the power to ensure that laws are ‘faithfully
executed’ by his subordinates. To do so, he must have the power to
fire subordinates who are not aligned with his policies. The Court
should take this case.”— Greg Dolin, Senior Litigation
Counsel, NCLA
“CPSC’s actions are obnoxious to presidential
oversight. Having independent agencies in the Executive Branch
contradicts a proper understanding of the Constitution, and this
case provides a good vehicle to fix that
problem.”— Mark Chenoweth, President,
NCLA
For more information visit
the amicus page here.
ABOUT NCLA
NCLA is a nonpartisan, nonprofit civil rights
group founded by prominent legal scholar Philip Hamburger to
protect constitutional freedoms from violations by the
Administrative State. NCLA’s public-interest litigation and other
pro bono advocacy strive to tame the unlawful power of state and
federal agencies and to foster a new civil liberties movement that
will help restore Americans’ fundamental rights.
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Ruslan Moldovanov
New Civil Liberties Alliance
202-869-5237
ruslan.moldovanov@ncla.legal