President Donald Trump’s administration on Wednesday asked the Supreme Court to step in on an emergency basis to permit the firing of three members of the Consumer Product Safety Commission, as the White House continues to attempt to assert more control over independent agencies.
Trump dismissed the three Joe Biden-appointees in May, but a federal district court last month ordered their reinstatement. The administration is asking the Supreme Court to pause the lower court order, a move that would take the three commissioners off the board again.
The appeal is the latest to reach the high court dealing with the administration’s power to fire board members at agencies Congress set up to have independence from the whims of the White House. The court has been receptive to Trump’s arguments in earlier cases, giving his administration more control over those agencies – at least in the short term.
The litigation around the Consumer Product Safety Commission, has “thrown the agency into chaos,” the Trump administration told the Supreme Court and has “put agency staff in the untenable position of deciding which commissioners’ directives to follow.”
The agency is charged with protecting consumers from dangerous products by issuing recalls and taking other enforcement steps.
Trump has had considerable success with similar claims over independent agencies at the Supreme Court. In May, the court, in an unsigned opinion, allowed Trump to fire officials at two independent federal labor agencies that enforce worker protections. The Department of Justice heavily cited that outcome in its appeal to the high court Wednesday.
“Because the Constitution vests the executive power in the president,” the court wrote in its opinion at the time, “he may remove without cause executive officers who exercise that power on his behalf, subject to narrow exceptions recognized by our precedents.”
Writing for the dissenting justices, Justice Elena Kagan said the majority had effectively overruled a decades-old Supreme Court case, Humphrey’s Executor v. US, that allowed Congress to require presidents to show cause – such as malfeasance – before dismissing board members overseeing independent agencies.
In the Consumer Product Safety Commission case now pending, the Richmond-based 4th US Circuit Court of Appeals unanimously rejected Trump’s appeal – despite the outcome in the earlier case. In a concurring opinion, US Circuit Judge James Wynn noted that the Supreme Court had not yet technically overturned Humphrey’s Executor.
“That precedent remains binding on this court unless and until the Supreme Court overrules it,” wrote Wynn, who was nominated to the bench by former President Barack Obama.
In its filing Wednesday, the Trump administration urged the Supreme Court to issue an immediate “administrative stay” that would let Trump keep the members off the board for a few days while the court considers the case. The board members fired back rapidly with a brief Wednesday rejecting the need for that outcome.
Because the board members are “currently serving and have been since June 13,” they told the court, “an administrative stay would disrupt the status quo.”
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