Supreme Court Should Not Review Phony Separation of Powers Case

By Alan B. Morrison, Regulatory Rev., Aug. 19, 2024

At the U.S. Supreme Court’s September conference, it will be asked, in Consumers’ Research v. Consumer Product Safety Commission, to grant review and decide an important separation of powers question: whether the statutory provision that protects the five Consumer Product Safety Commission (CPSC) commissioners from being removed from office at-will by the President, except for neglect of duty or malfeasance in office, is constitutional. However, because the petitioners lack standing, the Court should deny review and await a case in which the issue is properly presented.

* * *

To begin, the petitioners, including Consumers’ Research, are not manufacturers or sellers of a product that the CPSC regulates; they are not subject to any CPSC regulations; and they have not had any enforcement actions brought against them. They also do not allege that the CPSC has, for example, failed to regulate toys such that their children are placed in danger. Instead, they are two educational organizations that often submit requests for CPSC records under the Freedom of Information Act (FOIA), and they did so here.

Read more here.