The Consumer Product Safety Commission is led by five presidentially appointed commissioners who may be removed from office only for neglect of duty or malfeasance. In November 2022, the CPSC established new safety standards for the operating cords on window coverings, designed to reduce the risk of strangulation that long window cords pose to young children. The Window Covering Manufacturers Association challenged these standards in the D.C. Circuit, arguing among other things that the CPSC’s leadership structure is unconstitutional because the president can remove the agency’s commissioners only for good cause, not at will. In March 2023, CAC filed an amicus brief in support of the CPSC.

The window manufacturers argued that under the Supreme Court’s 2020 decision in Seila Law LLC v. CFPB, all agency leaders who wield substantial executive power must be removable at will by the president. Our brief showed why this is wrong.

We first demonstrated that Seila Law did not call into question the legitimacy of agencies structured like the CPSC (sometimes referred to as multimember independent agencies). As we explained, Seila Law addressed only the new phenomenon of agencies led by a single director who is not removable at will. Based on three unique features of these single-director independent agencies, the Court concluded that they represent a novel intrusion on presidential authority that clashes with constitutional structure. The Court was clear, however, that it was not overruling its precedent upholding similar removal limits for the leaders of “a traditional independent agency, run by a multimember board.”

Our brief next explained why long-established practice has placed the validity of multimember independent agencies beyond doubt. In separation-of-powers cases, courts place significant weight upon historical practice, because it embodies the compromises and working arrangements that the elected branches of government themselves have reached. Congress has been assigning regulatory authority to multimember independent agencies for a majority of the nation’s history, beginning nearly 150 years ago. Supreme Court decisions, including Seila Law, have consistently confirmed the validity of these traditional agencies. The CPSC cannot be distinguished from the host of other multimember independent agencies that have long populated the executive branch.

Finally, we showed that in addition to precedent and established practice, constitutional text and history further underscore the legitimacy of multimember independent agencies. The Constitution’s text does not address removal authority, and it gives Congress broad flexibility in determining how to shape the federal government. The early consensus that Article II of the Constitution gives presidents inherent removal authority was coupled with a recognition that legislation could limit this authority, and Congress began exercising that option in the nineteenth century. While the Supreme Court has struck down certain types of removal limits as intruding too far on presidential authority, it has always upheld good-cause tenure for the leaders of multimember agencies like the CPSC.

In short, the CPSC’s leadership structure is consistent with Supreme Court precedent, established practice, and the Constitution’s original meaning.

In September 2023, the D.C. Circuit granted the window manufacturers’ petition and vacated the CPSC’s safety standards. The court did not address the claim that the CPSC’s structure is unconstitutional. Instead, the court held that in establishing the new standards the CPSC did not adhere to procedures required by the Consumer Product Safety Act and the Administrative Procedure Act.