Amicus Curiae Brief — Consumers' Research, et al., Petitioners v. Consumer Product Safety Commission

No. 23-1323

IN THE

Supreme Court of the United States

_________________________________________________

CONSUMERS’ RESEARCH, ET AL.,

Petitioners,

v.

CONSUMER PRODUCT SAFETY COMMISSION,

Respondent.

____________________________________________________________________________________________________

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Fifth Circuit

____________________________________________________________________________________________________

BRIEF OF AMICUS CURIAE

AMERICANS FOR PROSPERITY FOUNDATION

IN SUPPORT OF PETITIONERS

————

Michael Pepson

Counsel of Record

AMERICANS FOR PROSPERITY FOUNDATION

4201 Wilson Blvd., Ste. 1000

Arlington, VA 22203

(571) 329-4529

mpepson@afphq.org

Counsel for Amicus Curiae

July 17, 2024

i

TABLE OF CONTENTS

Table of Authorities.................................................... ii

Interest of Amicus Curiae ...........................................1

Summary of Argument................................................ 1

Argument ..................................................................... 4

I.

The Constitution Does Not Authorize a

Headless Fourth Branch ..................................4

II.

The At-Will Removal Power Serves As a Key

Accountability Checkpoint ............................... 8

III.

For-Cause Removal Protections For Officers

Wielding

Substantial

Executive

Power

Empower a Fourth Branch...............................9

IV.

The

Panel

Majority

Misapprehended

Humphrey’s Executor’s Sweep ........................ 14

A. Humphrey’s Executor’s Scope Is Cabined By Its

Facts and This Court’s Modern Precedent .... 15

B. Humphrey’s Executor Involved Inapposite

Facts ................................................................ 18

C. Humphrey’s Executor Turned On Reasoning

Incompatible With This Court’s Modern

Separation of Powers Precedent .................... 20

D. Today’s FTC Does Not Qualify For The

Humphrey’s Executor Exception .................... 21

Conclusion ................................................................. 24

ii

TABLE OF AUTHORITIES

Page(s)

Cases

Ameron, Inc. v. U.S. Army Corps of Eng’rs,

787 F.2d 875 (3d Cir. 1986) ................................ 5

AMG Capital Mgmt., LLC v. FTC,

593 U.S. 67 (2021) ............................................. 23

Axon Enter., Inc. v. FTC,

598 U.S. 175 (2023) ........................................... 23

Bowsher v. Synar,

478 U.S. 714 (1986) ............................................. 9

City of Arlington v. FCC,

569 U.S. 290 (2013) ..................................... 10, 21

Collins v. Yellen,

594 U.S. 220 (2021) ......................................... 8, 9

Crim v. Commissioner,

66 F.4th 999 (D.C. Cir. 2023) ........................... 21

Dep’t of Transp. v. Ass’n of Am. R.R.,

575 U.S. 43 (2015) ............................................... 4

Edmo v. Corizon, Inc.,

949 F.3d 489 (9th Cir. 2020) ............................. 16

Feds for Med. Freedom v. Biden,

63 F.4th 366 (5th Cir. 2023) ....................... 10, 11

iii

Fleming v. United States Dep’t of Agric.,

987 F.3d 1093 (D.C. Cir. 2021) ........................... 7

Free Enter. Fund v. Pub. Co. Accounting

Oversight Bd.,

561 U.S. 477 (2010) ......................... 4, 5, 8, 10, 12

Free Enter. Fund v. Pub. Co. Accounting

Oversight Bd.,

537 F.3d 667 (D.C. Cir. 2008) ............................. 6

FTC v. Am. Nat’l Cellular,

868 F.2d 315 (9th Cir. 1989) ............................. 24

FTC v. Cardiff,

No. 18-2104, 2020 U.S. Dist. LEXIS

137800 (C.D. Cal. July 24, 2020) ...................... 24

FTC v. Cement Inst.,

333 U.S. 683 (1948) ........................................... 22

FTC v. Facebook, Inc.,

581 F. Supp. 3d 34 (D.D.C. 2022) ..................... 23

FTC v. Qualcomm Inc.,

935 F.3d 752 (9th Cir. 2019) ............................. 12

FTC v. Ruberoid Co.,

561 U.S. 477 (2010) ............................................. 9

Garza v. Idaho,

586 U.S. 232 (2019) ........................................... 16

Griffiths Hughes, Inc. v. FTC,

63 F.2d 362 (D.C. Cir. 1933) ............................. 22

iv

Heater v. FTC,

503 F.2d 321 (9th Cir. 1974) ............................. 22

Humphrey’s Executor v. United States,

295 U.S. 602 (1935) ..................... 2, 17, 18, 19, 20

In re Aiken Cty.,

645 F.3d 428 (D.C. Cir. 2011) ........................... 12

Loper Bright Enterprises v. Raimondo,

144 S. Ct. 2244 (2024) ................................. 15, 17

Morrison v. Olson,

487 U.S. 654 (1988) ......................................... 4, 6

Myers v. United States,

272 U.S. 52 (1926) ............................... 4, 5, 6, 7, 8

Nat’l Candy Co. v. FTC,

104 F.2d 999 (7th Cir. 1939) ............................. 22

Nat’l Petroleum Refiners Ass’n v. FTC,

482 F.2d 672 (D.C. Cir. 1973) ........................... 22

PHH Corp. v. Consumer Fin. Prot. Bureau,

881 F.3d 75 (D.C. Cir. 2018)……2, 5, 7, 11, 12, 13,

14

Seila Law LLC v. Consumer Fin. Prot.

Bureau,

591 U.S. 197 (2020)…. . 3, 5, 6, 13, 14, 15, 18, 19,

20, 21

Severino v. Biden,

71 F.4th 1038 (D.C. Cir. 2023) ......................... 17

v

Texas v. Rettig,

993 F.3d 408 (5th Cir. 2021) ............................. 16

Trump v. United States,

144 S. Ct. 2312 (2024) .................... .5, 6, 7, 14, 15

United States v. Arthrex, Inc.,

594 U.S. 1 (2021) ............................................. 8, 9

Wayman v. Southard,

23 U.S. (10 Wheat.) 1 (1825)............................... 4

Constitution

U.S. Const. art. I, § 1 ................................................ 4

U.S. Const. art. II, § 1, cl. 1............................ 4, 5, 21

U.S. Const. art. II, § 3 .............................................. 5

U.S. Const. art. III, § 1 ............................................. 4

U.S. Const. art. VI, cl. 2 ......................................... 15

Statutes

15 U.S.C. § 45(m)(1)(a) ........................................... 23

15 U.S.C. § 1681s(a)(2) ........................................... 23

15 U.S.C. § 2069(a) ................................................. 20

15 U.S.C. § 2069(b) ................................................. 20

15 U.S.C. § 2076(b)(7) ............................................ 20

15 U.S.C. § 6505(d) ................................................. 23

vi

Wheeler-Lea Act, Pub. L. No. 447, § 13(a),

52 Stat. 111, 115 (1938) (codified at 15

U.S.C. § 53(a)) ................................................... 22

Trans-Alaska Pipeline Authorization Act,

Pub. L. No. 93-153, § 408(b), (f),

87 Stat. 576, 591–92 (1973) (codified at

15 U.S.C. § 53(b)) .............................................. 23

Magnuson-Moss Warranty-Federal Trade

Commission Improvement Act, Pub. L.

No. 93- 637, § 206(a), 88 Stat. 2183, 2201

(1975) (codified at 15 U.S.C. § 57b) .................. 23

Rules

Sup. Ct. R. 37.2 ......................................................... 1

Other Authorities

1 Annals of Cong. (1789) ...................................... 4, 8

Aditya Bamzai & Saikrishna Prakash,

The Executive Power of Removal,

136 Harv. L. Rev. 1756 (2023) ............................ 7

Br. for Samuel F. Rathbun, Executor,

1935 WL 32964 (filed Mar. 19, 1935) ............... 19

Br. for the United States,

1935 WL 32965 (filed April 6, 1935) ................ 19

Daniel A. Crane,

Debunking Humphrey’s Executor,

83 Geo. Wash. L. Rev. 1835 (2015) ............. 22, 24

vii

David M. FitzGerald, The Genesis of

Consumer Protection Remedies Under

Section 13(b) of the FTC Act (Paper,

FTC 90th Anniversary Symposium)

(Sept. 23, 2004), http://bit.ly/2kUIIcf ......... 22, 23

Dissenting Statement of Commissioner

Andrew N. Ferguson, Joined by

Commissioner Melissa Holyoak, In the

Matter of the Non-Compete Clause Rule,

Matter No. P201200 (June 28, 2024),

https://www.ftc.gov/system/files/ftc_gov/p

df/ferguson-noncompete-dissent.pdf ................ 13

FTC, Criminal Liaison Unit,

https://www.ftc.gov/enforcement/crimina

l-liaison-unit ................................................ 23, 24

Gov’t Accountability Office, Consumer

Product Safety Commission: Actions

Needed To Improve Processes for

Addressing Product Defect Cases (Nov.

2020), https://perma.cc/3DU9-HN45 ................ 14

Jason Marisam,

The President’s Agency Selection Powers,

65 Admin. L. Rev. 821 (2013) ..................... 10, 11

John Yoo,

Unitary, Executive, or Both?,

76 U. Chi. L. Rev. 1935 (2009).......................... 11

viii

Neomi Rao,

Removal: Necessary and Sufficient for

Presidential Control,

65 Ala. L. Rev. 1205 (2014) ................................. 5

Powers and Duties of the Fed. Trade

Comm’n in the Conduct of

Investigations,

34 Op. Att’y Gen. 553 (1925) ............................ 18

Rachel E. Barkow,

Insulating Agencies: Avoiding Capture

Through Institutional Design,

89 Tex. L. Rev. 15 (2010) ............................ 13, 14

Saikrishna Prakash,

The Essential Meaning of Executive

Power,

2003 U. Ill. L. Rev. 701 (2003) ........................ 6, 7

1

BRIEF OF AMICUS CURIAE

IN SUPPORT OF PETITIONERS

Under Supreme Court Rule 37.2, Americans for

Prosperity Foundation (“AFPF”) respectfully submits

this amicus curiae brief in support of Petitioners. 1

INTEREST OF AMICUS CURIAE

Amicus curiae AFPF is a 501(c)(3) nonprofit

organization committed to educating and training

Americans to be courageous advocates for the ideas,

principles, and policies of a free and open society.

Some of those key ideas include the separation of

powers and constitutionally limited government. As

part of this mission, it appears as amicus curiae before

federal and state courts. Here, AFPF writes to

highlight the critical importance of answering the

question presented by Petitioners and the stakes for

self-government and individual liberty.

SUMMARY OF ARGUMENT

The Petition squarely “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.”

Pet. App. 2a (citation omitted). As illuminated by the

1 All parties have received timely notice of amicus curiae’s intent

to file this brief. Amicus curiae states that no counsel for any

party authored this brief in whole or in part, and no entity or

person, aside from amicus curiae or its counsel, made any

monetary contribution intended to fund the preparation or

submission of this brief.

2

Fifth Circuit’s split panel opinion and underscored by

its fractured 9-8 en banc denial, “this cert petition

writes itself.” Pet. App. 39a (Willett, J., concurring in

the denial of rehearing en banc). And this Petition is

an ideal vehicle to “push reset on Humphrey’s

Executor,” id., by making clear it does not extend to

agencies like the Consumer Product Safety

Commission (“CPSC”) that wield substantial

executive power.

At its core, “[t]his is a case about executive power

and individual liberty.” PHH Corp. v. Consumer Fin.

Prot. Bureau, 881 F.3d 75, 164 (D.C. Cir. 2018) (en

banc) (Kavanaugh, J., dissenting). Unlike a fine wine,

Humphrey’s Executor v. United States, 295 U.S. 602

(1935), has not gotten better with age. Over the past

ninety years, Humphrey’s Executor has enabled a host

of separation-of-powers violations, which have had

real practical consequences for countless businesses

and individuals who have found themselves in the

crosshairs of these “independent” agencies’ law

enforcement activities. The targets of these

extraconstitutional administrative entities often have

no meaningful recourse to any elected officials, as

none of them has the power to rein in these

“independent” administrative bodies. Nor can they

remove unelected officials whose public policy and law

enforcement priorities conflict with those of the

political branches—and, by extension, conflict with

the will of the People.

Neither Humphrey’s Executor’s stale vintage nor

any putative “reliance” interest federal officials may

claim to have in unconstitutional insulation from any

political accountability justify extending the “quasilegislative, quasi-judicial” charade upon which that

3

poorly reasoned decision rests to agencies like the

CPSC that wield executive power. In Seila Law LLC

v. Consumer Fin. Prot. Bureau, this Court “repudiated

almost every aspect of Humphrey’s Executor.” 591

U.S. 197, 239 (2020) (Thomas, J., concurring in part

and dissenting in part). In Seila Law, this Court made

clear that its holding is limited to “multimember

expert agencies that do not wield substantial

executive power[.]” Id. at 218 (majority op.). And

today, Humphrey’s Executor is “nearly, nearly,

zombified precedent[.]” Pet. App. 36a n.10 (Willett, J.,

concurring in the denial of rehearing en banc). But

lower courts continue to misapprehend the scope of

this constitutionally dangerous decision, as the

decision below illustrates.

The time has come to “repudiate what is left of this

erroneous precedent,” Seila Law, 591 U.S. at 239

(Thomas, J., concurring in part and dissenting in

part), and confine it to its facts. Our constitutional

Republic will be healthier for it. Leaving the panel

majority’s overbroad reading of Humphrey’s Executor

unaddressed “does not enhance this Court’s

legitimacy; it subverts political accountability and

threatens individual liberty.” Id. at 251 (Thomas, J.,

concurring in part and dissenting in part). Under our

system of checks and balances, those who wield

substantial executive power must be, in some way,

accountable to the source of that power: the People,

through the duly elected President. But “[t]here is no

accountability to the people when so much of our

government is so deeply insulated from those we elect.

Restoring our democracy requires regaining control of

the bureaucracy.” Pet. App. 40a (Ho, J., dissenting

from denial of rehearing en banc). Confining

4

Humphrey’s Executor to its facts is a good starting

place.

This Court should grant the Petition, reaffirm that

it meant what it said in Seila Law, and sweep

Humphrey’s Executor “into the dustbin of repudiated

constitutional principles.” Morrison v. Olson, 487 U.S.

654, 725 (1988) (Scalia, J., dissenting).

ARGUMENT

I.

The Constitution Does Not Authorize a

Headless Fourth Branch.

“Our Constitution was adopted to enable the

people to govern themselves, through their elected

leaders.” Free Enter. Fund v. Pub. Co. Accounting

Oversight Bd., 561 U.S. 477, 499 (2010). To protect

liberty, the Constitution “sets out three branches and

vests a different form of power in each—legislative,

executive, and judicial.” Seila Law, 591 U.S. at 239

(Thomas, J., concurring) (citing U.S. Const. art. I, § 1;

U.S. Const. art. II, § 1, cl. 1; U.S. Const. art. III, § 1).

“[T]he legislature makes, the executive executes, and

the judiciary construes the law[.]” Wayman v.

Southard, 23 U.S. (10 Wheat.) 1, 46 (1825) (Marshall,

C.J.). “These grants are exclusive.” Dep’t of Transp. v.

Ass’n of Am. R.R., 575 U.S. 43, 67 (2015) (Thomas, J.,

concurring in the judgment).

“‘If there is a principle in our Constitution, indeed

in any free Constitution, more sacred than another, it

is that which separates the Legislative, Executive and

Judicial powers.’” Myers v. United States, 272 U.S. 52,

116 (1926) (quoting 1 Annals of Congress, 581). This

means that Congress cannot create administrative

5

bodies that “straddle multiple branches of

Government. . . . Free-floating agencies simply do not

comport with this constitutional structure.” Seila

Law, 591 U.S. at 247. “The Constitution establishes

three branches of government, not four. . . . It

therefore follows that there can be no fourth branch,

headless or otherwise.” Ameron, Inc. v. U.S. Army

Corps of Eng’rs, 787 F.2d 875, 892 (3d Cir. 1986)

(Becker, J., concurring in part).

“To further safeguard liberty, the Framers insisted

upon accountability for the exercise of executive

power,” “lodg[ing] full responsibility . . . in a President

of the United States, who is elected by and

accountable to the people.” PHH Corp., 881 F.3d at

164 (Kavanaugh, J., dissenting). The Constitution

provides in no uncertain terms that “[t]he executive

Power shall be vested in a President,” U.S. Const. Art.

II, § 1, cl. 1, who “shall take Care that the Laws be

faithfully executed,” U.S. Const. Art. II, § 3, thereby

“creat[ing] a strongly unitary executive.” Neomi Rao,

Removal: Necessary and Sufficient for Presidential

Control, 65 Ala. L. Rev. 1205, 1213 (2014).

Under our constitutional structure “[t]he entire

‘executive Power’ belongs to the President alone,”

Seila Law, 591 U.S. at 213, “including the power of

appointment and removal of executive officers,”

Myers, 272 U.S. at 164. This ensures “[t]he buck stops

with the President,” Free Enter. Fund, 561 U.S. at

493, who “bears responsibility for the actions of the

many departments and agencies within the Executive

Branch,” Trump v. United States, 144 S. Ct. 2312,

2327 (2024). And for good reason. The “unitary

Executive”—including the President’s Article II atwill removal power—was designed “not merely to

6

assure effective government but to preserve

individual freedom.”2 Morrison, 487 U.S. at 727

(Scalia, J., dissenting).

“The President’s management of the Executive

Branch requires him to have unrestricted power to

remove the most important of his subordinates . . . in

their most important duties.” Trump, 144 S. Ct. at

2335 (cleaned up). The President’s at-will removal

power flows directly from the Constitution, not from

Congress. See Seila Law, 591 U.S. at 204; Myers, 272

U.S. at 163–64. “[T]he constitutional text and the

original understanding, including the Decision of

1789, established that the President possesses the

power under Article II to remove officers of the

Executive Branch at will.” Free Enter. Fund v. Pub.

Co. Accounting Oversight Bd., 537 F.3d 667, 692 (D.C.

Cir. 2008) (Kavanaugh, J., dissenting), overruled, 561

U.S. 477 (2010).

“The President’s removal power has long been

confirmed by history and precedent. It was discussed

extensively in Congress when the first executive

departments were created in 1789.” Seila Law, 591

U.S. at 214 (cleaned up). “Most members of [the First]

Congress recognized that forbidding removal

effectively would preclude presidential control of law

execution and destroy presidential accountability for

that task.” Saikrishna Prakash, The Essential

Meaning of Executive Power, 2003 U. Ill. L. Rev. 701,

2 “The President occupies a unique position in the constitutional

scheme as the only person who alone composes a branch of

government.” Trump, 144 S. Ct. at 2329 (cleaned up).

7

796 n.556 (2003). “Debates in the First Congress, the

so-called Decision of 1789, made clear that the

President is vested with plenary removal power.”

Fleming v. United States Dep’t of Agric., 987 F.3d

1093, 1114 (D.C. Cir. 2021) (Rao, J., concurring in part

and dissenting in part). The First Congress thus

“confirmed that Presidents may remove executive

officers at will.” PHH Corp., 881 F.3d at 168

(Kavanaugh, J., concurring).

Nor may Congress limit the core at-will removal

power Article II exclusively vests in the President.3

“[B]ecause the Constitution nowhere grants Congress

the authority to strip that power from the President,

the President’s removal power was originally

understood to be nondefeasible.” Pet. App. 42a

(Oldham, J., dissenting from denial of rehearing en

banc) (citing Aditya Bamzai & Saikrishna Prakash,

The Executive Power of Removal, 136 Harv. L. Rev.

1756, 1789 (2023)). Indeed, this Court has “held that

Congress lacks authority to control the President’s

‘unrestricted power of removal’ with respect to

‘executive officers of the United States whom he has

appointed.’” Trump, 144 S. Ct. at 2328 (quoting Myers,

272 U.S. at 106, 176).

3 Just this Term, this Court reiterated that the removal authority

is one of the President’s “core constitutional powers” “within his

exclusive sphere of constitutional authority.” Trump, 144 S. Ct.

at 2327–28.

8

II.

The At-Will Removal Power Serves As a

Key Accountability Checkpoint.

“As Madison stated on the floor of the First

Congress, ‘if any power whatsoever is in its nature

Executive, it is the power of appointing, overseeing,

and controlling those who execute the laws.’” Free

Enter. Fund, 561 U.S. at 492 (quoting 1 Annals of

Cong. 463 (1789)). Given that the President’s

“selection of administrative officers is essential to the

execution of the laws by him, so must be his power of

removing those for whom he can not continue to be

responsible.” Myers, 272 U.S. at 117. More broadly,

“because the President, unlike agency officials, is

elected,” the President’s removal power “is essential

to subject Executive Branch actions to a degree of

electoral accountability.” Collins v. Yellen, 594 U.S.

220, 252 (2021). For “[w]ithout presidential

responsibility there can be no democratic

accountability for executive action.” United States v.

Arthrex, Inc., 594 U.S. 1, 28 (2021) (Gorsuch, J.,

concurring in part, dissenting in part).

Article II’s vesting of at-will removal power allows

the President to ensure unelected administrative

officials “serve the people effectively and in

accordance with the policies that the people

presumably elected the President to promote.”

Collins, 594 U.S. at 252. “It is the power to

supervise—and, if need be, remove—subordinate

officials that allows a new President to shape his

administration and respond to the electoral will that

propelled him to office.” Id. at 278 (Gorsuch, J.,

concurring in part). “At-will removal ensures that the

lowest officers, the middle grade, and the highest, will

depend, as they ought, on the President, and the

9

President on the community.” Id. at 252 (majority op.)

(cleaned up). After all, “[o]nce an officer is appointed,

it is only the authority that can remove him, and not

the authority that appointed him, that he must fear

and, in the performance of his functions, obey.”

Bowsher v. Synar, 478 U.S. 714, 726 (1986).

The President’s at-will removal power also

protects liberty. “Few things could be more perilous to

liberty than some ‘fourth branch’ that does not answer

even to the one executive official who is accountable to

the body politic.” Collins, 594 U.S at 278–79 (Gorsuch,

J., concurring in part) (citing FTC v. Ruberoid Co., 343

U.S. 470, 487 (1952) (Jackson, J., dissenting)). The

President’s Article II at-will removal power guards

against this threat. Limits on that core Executive

power allow “wholly unaccountable government

agent[s to] assert the power to make decisions

affecting individual lives, liberty, and property. The

chain of dependence between those who govern and

those who endow them with power is broken.” Id. at

278 (Gorsuch, J., concurring in part). For this reason,

“[i]f anything, removal restrictions may be a greater

constitutional evil than appointment defects.” Id. at

277 (Gorsuch, J., concurring in part).

III.

For-Cause Removal Protections For

Officers Wielding Substantial Executive

Power Empower a Fourth Branch.

As Justice Robert Jackson explained long ago,

“[t]he rise of administrative bodies probably has been

the most significant legal trend of the last century[.]”

FTC v. Ruberoid Co., 343 U.S. at 487 (dissenting). The

problem is far worse today, as Congress has devised

ever more novel and powerful administrative bodies

10

unmoored to the Constitution. See City of Arlington v.

FCC, 569 U.S. 290, 313–14 (2013) (Roberts, C.J.,

dissenting).

“The growth of the Executive Branch, which now

wields vast power and touches almost every aspect of

daily life, heightens the concern that it may slip from

the Executive’s control, and thus from that of the

people.” Free Enter. Fund, 561 U.S. at 499. For good

reason. “President Truman colorfully described his

power over the administrative state by complaining, ‘I

thought I was the president, but when it comes to

these bureaucrats, I can’t do a damn thing.’ President

Kennedy once told a constituent, ‘I agree with you, but

I don’t know if the government will.’” City of

Arlington, 569 U.S. at 313–14 (Roberts, C.J.,

dissenting) (citations omitted).

That holds true today. As it stands now, “the

President actually controls surprisingly little of the

Executive Branch. Only a tiny percentage of

Executive Branch employees are subject to

Presidential removal.” Feds for Med. Freedom v.

Biden, 63 F.4th 366, 390 (5th Cir. 2023) (en banc) (Ho,

J., concurring). The bulk of the federal bureaucracy is

shielded from presidential removal—and thus from

accountability to the People through the elected

President—by civil service laws. See id. (Ho, J.,

concurring). This means that “a modern president is

more or less stuck with thousands of civil servants

whom he did not appoint and have little loyalty

toward him.” Jason Marisam, The President’s Agency

Selection Powers, 65 Admin. L. Rev. 821, 863 (2013).

This “make[s] it virtually impossible for a

President to implement his vision without the active

11

consent and cooperation of an army of unaccountable

federal employees.”4 Feds for Med. Freedom, 63 F.4th

at 390 (Ho, J., concurring). “Even if a president has

the perfect ally running an agency, that ally may still

fail to produce the desired results if the ally runs into

resistance from his civil servants.” Marisam, 65

Admin. L. Rev. at 863. And those unelected

bureaucrats are almost impossible to fire because

“they enjoy a de facto form of life tenure, akin to that

of Article III judges.”5 Feds for Med. Freedom, 63 F.4th

at 391 (Ho, J., concurring). These tenure-like

protections embolden some federal employees to view

themselves “as a free-standing interest group entitled

to make demands on their superiors.” Id. (Ho, J.,

concurring). And they do.

Now consider what Humphrey’s Executor, under a

maximalist reading, layers on top of this. “To

supervise and direct executive officers, the President

must be able to remove those officers at will.

Otherwise, a subordinate could ignore the President’s

supervision and direction without fear, and the

President could do nothing about it.” PHH Corp., 881

F.3d at 168 (Kavanaugh, J., dissenting). Humphrey’s

Executor dashes this scheme by blessing Congress’s

creation of free-floating administrative bodies that

“[O]ver time the tenure-like protections for the civil service

have sharply reduced the president’s ability to change the

direction of the permanent bureaucracy[.]” John Yoo, Unitary,

Executive, or Both?, 76 U. Chi. L. Rev. 1935, 1956–57 (2009).

4

5 These removal protections cause “a rather curious distortion of

our constitutional structure.” Feds for Med. Freedom, 63 F.4th at

390 (Ho, J., concurring).

12

“are not supervised or directed by the President.” Id.

at 164 (Kavanaugh, J., dissenting).

“Because of Humphrey’s Executor, the President

cannot remove an independent agency’s officers when

the agency pursues policies or makes decisions the

President disagrees with.” In re Aiken Cty., 645 F.3d

428, 442 (D.C. Cir. 2011) (Kavanaugh, J., concurring).

This effectively means that “the President does not

have the final word in the Executive Branch about”

policy decisions made by independent agencies.6 Id. at

446 (Kavanaugh, J., concurring). And the President

“lacks day-to-day control over large swaths of

regulatory policy and enforcement in the Executive

Branch[.]” Id. at 442 (Kavanaugh, J., concurring).

That is no small thing. “By one count, across all

subject matter areas, 48 agencies have heads (and

below them hundreds more inferior officials)

removable only for cause.” Seila Law, 591 U.S. at 276

(Breyer, J., dissenting) (citation omitted). “Examples

of independent agencies include well-known bodies

such as the Federal Trade Commission, the Federal

Communications Commission, the Securities and

Exchange Commission, the National Labor Relations

Board, and the Federal Energy Regulatory

Commission.” PHH Corp., 881 F.3d at 164

(Kavanaugh, J., dissenting); see Free Enter. Fund, 561

U.S. at 549–56 (Breyer, J., dissenting) (Appendix A

6 The FTC’s failed prosecution of Qualcomm is a perfect example,

putting the FTC at odds with the DOJ, which shares authority

to enforce federal antitrust laws. See FTC v. Qualcomm Inc., 935

F.3d 752, 756 (9th Cir. 2019). Unlike the Executive-controlled

DOJ, the President cannot rein in the FTC.

13

listing agencies). “Statute after statute establishing

such entities instructs the President that he may not

discharge their directors except for cause[.]” Seila

Law, 591 U.S. at 261 (Breyer, J., dissenting).

These free-floating administrative bodies are, “in

effect, a headless fourth branch of the U.S.

Government.”7 PHH Corp., 881 F.3d at 165

(Kavanaugh, J., dissenting). And they “possess

extraordinary authority over vast swaths of American

economic and social life—from securities to antitrust

to telecommunications to labor to energy. The list goes

on.” Id. at 170 (Kavanaugh, J., dissenting). Congress

has granted many of these entities sweeping

Executive power impacting private rights.

Consider the CPSC, which “has broad rulemaking

discretion,” “sweeping investigatory and enforcement

powers,” and, on top of this, “adjudicatory authority.”

Pet. App. 46a–47a (Oldham, J., dissenting from denial

of rehearing en banc); see Pet. 3, 6–8. “At the time it

was established” in 1971, the CPSC’s “jurisdiction

covered an estimated ten thousand consumer

products and more than a million sellers and

7 An FTC Commissioner recently observed: “Americans cannot

vote us out when we get it wrong. And Congress has tried to

insulate us from the one person in the Executive Branch whom

the people can vote out, separating us even further from those

whose lives we claim to govern.” Dissenting Statement of

Commissioner Andrew N. Ferguson, Joined by Commissioner

Melissa Holyoak, In the Matter of the Non-Compete Clause Rule,

Matter

No.

P201200,

at

7

(June

28,

2024),

https://www.ftc.gov/system/files/ftc_gov/pdf/fergusonnoncompete-dissent.pdf.

14

producers.” Rachel E. Barkow, Insulating Agencies:

Avoiding Capture Through Institutional Design, 89

Tex. L. Rev. 15, 65–66 (2010). Since then, its powers

have only grown. Today, the CPSC’s reach extends to

“consumer products representing $1.6 trillion in

consumption[.]”

Gov’t

Accountability

Office,

Consumer Product Safety Commission: Actions

Needed To Improve Processes for Addressing Product

Defect Cases 1 (Nov. 2020), https://perma.cc/3DU9HN45. Many similarly structured entities likewise

“exercise[e] substantial executive authority[.]” PHH

Corp., 881 F.3d at 173 (Kavanaugh, J., dissenting)

(providing “sample list”).

IV.

The Panel Majority Misapprehended

Humphrey’s Executor’s Sweep.

As Petitioners explain, see Pet. 4, 14–23, Seila

Law—not Humphrey’s Executor—controls.8 As Seila

Law reaffirmed, Article II’s “text, first principles, the

First Congress’s decision in 1789, Myers, and Free

Enterprise Fund all establish that the President’s

removal power is the rule, not the exception.” 591 U.S.

at 200. And Seila Law makes pellucid that the

Humphrey’s exception “for multimember expert

agencies that do not wield substantial executive

power” is at the “outermost constitutional limits of

permissible congressional restrictions on the

President’s removal power” under this Court’s

precedent. Id. at 218 (citation omitted); see Trump,

8 Amicus believes that Humphrey’s Executor should be squarely

overruled. But this Court need not do so to resolve the question

presented by the Petition. See Pet. 27–29.

15

144 S. Ct. at 2328 (referencing “only ‘two exceptions

to the President’s unrestricted removal power’”

(quoting Seila Law, 591 U.S. at 215)).

It is undisputed that the CPSC exercises

substantial executive power. See Pet. App. 20a.

Therefore, the Humphrey’s Executor exception does

not apply. That should have ended the analysis. But

the panel majority overread Humphrey’s Executor to

expand its holding to cover administrative bodies that

do exercise substantial executive power. See Pet. App.

29a (Jones, J., concurring in part, dissenting in part).

That was error. “[T]he holding of that case is nowhere

near as broad[.]” Pet. App. 50a (Oldham, J., dissenting

from denial of rehearing en banc).

A. Humphrey’s Executor’s Scope Is Cabined

By Its Facts and This Court’s Modern

Precedent.

The Petition presents an ideal opportunity for this

Court to clarify how lower courts should resolve the

sweep of precedent that, while still on the books, is not

only at odds with the Constitution’s text and history

but incompatible with the reasoning of this Court’s

subsequent decisions. Cf. Pet. 13. As Justice Gorsuch

recently explained, “[a] past decision may bind the

parties to a dispute, but it provides this Court no

authority in future cases to depart from” the

Constitution. Loper Bright Enterprises v. Raimondo,

144 S. Ct. 2244, 2279 (2024) (concurring). After all, the

Constitution is the “supreme Law of the Land.” U.S.

Const. art. VI, cl. 2.

Lower court judges should thus “decide every case

faithful to the text and original understanding of the

16

Constitution, to the maximum extent permitted by a

faithful reading of binding precedent.” Texas v. Rettig,

993 F.3d 408, 409 (5th Cir. 2021) (Ho, J., dissenting

from denial of rehearing en banc). While courts must

“faithfully follow” this Court’s precedents, courts

“should resolve questions about the scope of those

precedents in light of and in the direction of the

constitutional text and constitutional history,” Edmo

v. Corizon, Inc., 949 F.3d 489, 506 (9th Cir. 2020)

(Bumatay, J., dissenting from denial of rehearing en

banc) (cleaned up), and “tread carefully before

extending” dubious precedent, Garza v. Idaho, 586

U.S. 232, 259 (2019) (Thomas, J., dissenting).

Respectfully, that did not happen here. As the

panel opinion acknowledged, “[t]he logic of

Humphrey’s may have been overtaken,” Pet. App. 4a,

and “Seila Law cast doubt on the constitutionality of

agencies like the” CPSC, Pet. App. 24a. Its author

wrote: “Count me among those skeptical of

Humphrey’s Executor, which seems nigh impossible to

square with the Supreme Court’s current separationof-powers sentiment.” Pet. App. 38a (Willett, J.,

concurring in denial of rehearing en banc). The panel

simply did not give these considerations due weight in

resolving Petitioners’ Article II removal claim, instead

adopting a maximalist reading of Humphrey’s

Executor.

While the panel opinion’s author acknowledged

that Humphrey’s Executor involved different facts and

was decided in a different legal landscape, see Pet.

App. 36a–37a (Willett, J., concurring in denial of

rehearing en banc), the panel nonetheless concluded

that Humphrey’s Executor controlled its analysis. See

Pet. App. 25a. That conclusion is mistaken. After all,

17

“when judges reach a decision in our adversarial

system, they render a judgment based only on the

factual record and legal arguments the parties at

hand have chosen to develop. A later court assessing

a past decision must therefore appreciate the

possibility that different facts and different legal

arguments may dictate a different outcome.” Loper,

144 S. Ct. at 2281 (Gorsuch, J., concurring).

So too here. “Rightly understood, the fact-bound

holding of Humphrey’s Executor does not encompass

the [CPSC] Commission’s removal protections.” Pet.

App. 51a (Oldham, J., dissenting from denial of

rehearing en banc). The Humphrey’s Executor “Court

did not take a position on the question of whether

Congress could restrict the President’s authority to

remove executive branch officers that wield more

executive power than the 1935 FTC.” Pet. App. 51a

(Oldham, J., dissenting from denial of rehearing en

banc); see Humphrey’s Executor, 295 U.S. at 632. And

even if it had, under this Court’s modern precedent

“only a very narrow reading of” Humphrey’s Executor

“is still good law,” as Judge Walker has suggested

elsewhere.9 Severino v. Biden, 71 F.4th 1038, 1050

(D.C. Cir. 2023) (Walker, J., concurring).

“[I]f Congress may not vest any nonexecutive power in an

executive agency, it might be that little to nothing is left of

the Humphrey’s exception to the general rule that the President

may freely remove his subordinates.” Severino, 71 F.4th at 1050

(Walker, J., concurring). Cf. Pet. 32.

9

18

B. Humphrey’s Executor Involved Inapposite

Facts.

“Rightly or wrongly, the [Humphrey’s Executor]

Court viewed the FTC (as it existed in 1935) as

exercising ‘no part of the executive power.’”10 Seila

Law, 591 U.S. at 215. The Humphrey’s Executor Court

described the 1935 FTC as “an administrative body

created by Congress to carry into effect legislative

policies embodied in the statute in accordance with

the legislative standard therein prescribed, and to

perform other specified duties as a legislative or as a

judicial aid.” Humphrey’s Executor, 295 U.S. at 628.

Cf. Powers and Duties of the Fed. Trade Comm’n in

the Conduct of Investigations, 34 Op. Att’y Gen. 553,

557 (1925) (“A main purpose of the Federal Trade

Commission Act was to enable Congress, through the

Trade Commission, to obtain full information

concerning conditions in industry to aid it in its duty

of enacting legislation.”).

“Such a body,” the Court found, “cannot in any

proper sense be characterized as an arm or an eye of

the executive.” Humphrey’s Executor, 295 U.S. at 628.

Based upon this understanding of the 1935 FTC, the

Court concluded that this administrative body did not

“exercise executive power in the constitutional sense.”

Id. And thus FTC Commissioners “occup[y] no place

in the executive department and . . . exercise[] no part

10 “[W]hat matters is the set of powers the Court considered as

the basis for its decision [in Humphrey’s Executor], not any latent

powers that the agency may have had not alluded to by the

Court.” Seila Law, 591 U.S. at 219 n.4.

19

of the executive power vested by the Constitution in

the President.”11 Id.

On its terms, “Humphrey’s Executor permitted

Congress to give for-cause removal protections to a

multimember body, balanced along partisan lines,

that performed legislative and judicial functions and

was said not to exercise any executive power.” Seila

Law, 591 U.S. at 216 (emphasis added). Indeed,

the Humphrey’s Executor Court placed great weight

on its view that the FTC’s “duties are neither political

nor executive, but predominantly quasi-judicial and

quasi-legislative.” 295 U.S. at 624.

By contrast, this case rests on fundamentally

different facts. For starters, “[i]n 1935, the FTC

satisfied the Court’s test for insulation from at-will

removal because it did not exercise any executive

11 This understanding of the 1935 FTC’s powers was informed by

the parties’ briefs. In a section titled “The Nature of the Federal

Trade Commission,” the brief for Humphrey’s Executor described

the FTC as “a legislative agent of Congress and an agent of the

Courts.” Br. for Samuel F. Rathbun, Executor, 1935 WL 32964,

at *47 (filed Mar. 19, 1935). In discussing the FTC’s powers, the

brief asserted that the FTC’s activities as a “direct agent of

Congress is perhaps the most important single function

performed by the Commission,” “estimat[ing] that approximately

one-half of the total amount expended by the Commission has

been spent on account of investigations undertaken as such an

agent of Congress in aid of legislation[.]” Id. at *44–*46. The

government, for its part, effectively acknowledged that the FTC’s

primary duties were conducting investigations and submitting

“Reports to Congress on special topics[.]” Br. for the United

States, 1935 WL 32965, at *24–26 (filed April 6, 1935).

20

power.” Pet. App. 28a (Jones, J., concurring in part,

dissenting in part). “[U]nlike the 1935 FTC, the CPSC

does exercise executive power.” Pet. App. 28a (Jones,

J., concurring in part, dissenting in part); see Pet. App.

46a–47a (Oldham, J., dissenting from denial of

rehearing en banc); Pet. 7–8. For example, the CPSC

possesses civil penalty authority, see 15 U.S.C.

§§ 2069(a)–(b),

2076(b)(7)—“a

quintessentially

executive power not considered in Humphrey’s

Executor.” Seila Law, 591 U.S. at 219.

C. Humphrey’s

Executor

Turned

On

Reasoning

Incompatible

With

This

Court’s Modern Separation of Powers

Precedent.

Humphrey’s Executor was also poorly reasoned,

and its constitutional holding has only become

lonelier with time. See generally id. at 243–51

(Thomas, J., concurring in part and dissenting in part)

(explaining why). “Humphrey’s Executor laid the

foundation for a fundamental departure from our

constitutional structure with nothing more than

handwaving and obfuscating phrases such as ‘quasilegislative’ and ‘quasi-judicial.’” Id. at 246 (Thomas,

J., concurring in part and dissenting in part). It “relies

on one key premise: the notion that there is a category

of ‘quasi-legislative’ and ‘quasi-judicial’ power that is

not exercised by Congress or the Judiciary, but that is

also not part of ‘the executive power vested by the

Constitution in the President.’” Id. at 247 (Thomas, J.,

concurring in part and dissenting in part) (quoting

Humphrey’s Executor, 295 U.S. at 628). “The problem

is that the [Humphrey’s Executor] Court’s premise

was entirely wrong.” Id. (Thomas, J., concurring in

part and dissenting in part).

21

Under our Constitution, Congress does not have

the power to create these unconstitutional (and

unaccountable) “[f]ree-floating agencies[.]” Id.

(Thomas, J., concurring in part and dissenting in

part). And however one chooses to describe the vast

and varied powers wielded by independent agencies,

“under our constitutional structure” all of those

powers “must be exercises of” Article II executive

power. City of Arlington, 569 U.S. at 304 n.4 (citing

U.S. Const. art. II, §1, cl. 1).

D. Today’s FTC Does Not Qualify For The

Humphrey’s Executor Exception.

Finally, Humphrey’s Executor’s “conclusion that

the FTC did not exercise executive power has not

withstood the test of time.” Seila Law, 591 U.S. at 216

n.2. Today, it “does not even satisfy its own exception.”

Id. at 250 (Thomas, J., concurring in part and

dissenting in part). Regardless of whether this Court’s

characterization of the FTC’s activities was true in

1935, “the FTC has evolved significantly over time.” 12

Pet. App. 28a (Jones, J., dissenting). The 1935 FTC

did not remotely resemble today’s FTC. Nor did it

resemble the CPSC. And the 1935 FTC’s powers are

not in the same ballpark as those the FTC wields

today.

Congress can shift an entity’s “constitutional position” by

granting it different and greater powers. See Crim v.

Commissioner, 66 F.4th 999, 1007 (D.C. Cir. 2023) (Walker, J.,

dissenting). That perhaps holds true for the FTC, which comes

nowhere close to qualifying for the Humphrey’s Executor

exception today.

12

22

To put this in perspective, when Humphrey’s

Executor was decided the FTC did not have consumer

protection authority, let alone independent litigating

authority and the power to seek injunctions directly

in federal court, as well as to enforce those injunctions

in civil and criminal contempt actions. See Daniel A.

Crane, Debunking Humphrey’s Executor, 83 Geo.

Wash. L. Rev. 1835, 1864 (2015) (“[A]t the time of

Humphrey’s Executor, the FTC had no power to sue in

federal district court.”); see also David M. FitzGerald,

The Genesis of Consumer Protection Remedies Under

Section 13(b) of the FTC Act, 2–6 (Paper, FTC 90th

Anniversary Symposium) (Sept. 23, 2004) (describing

evolution of FTC’s powers), http://bit.ly/2kUIIcf.

For that matter, the 1935 FTC lacked power to

seek any retrospective relief, such as restitution and

civil penalties. See Heater v. FTC, 503 F.2d 321, 321–

22 (9th Cir. 1974); FTC v. Cement Inst., 333 U.S. 683,

706 (1948). And while the 1935 FTC issued procedural

“rules” for its inhouse administrative proceedings, see

Griffiths Hughes, Inc. v. FTC, 63 F.2d 362, 363 (D.C.

Cir. 1933); Nat’l Candy Co. v. FTC, 104 F.2d 999, 1003

(7th Cir. 1939), “the agency itself did not assert the

power to promulgate substantive rules until 1962,”

Nat’l Petroleum Refiners Ass’n v. FTC, 482 F.2d 672,

693 & n.27 (D.C. Cir. 1973).

Congress did not grant the FTC any authority to

bring enforcement actions in federal court until 1938.

It was not until three years after Humphrey’s that

Congress for the first time granted the FTC authority

to seek preliminary (but not permanent) injunctive

relief in federal court for violations of Section 12 of the

FTC Act. Wheeler-Lea Act, Pub. L. No. 447, § 13(a),

52 Stat. 111, 115 (1938) (codified at 15 U.S.C. § 53(a));

23

see Fitzgerald, supra, 4. In 1973, Congress expanded

the scope of that authority. Trans-Alaska Pipeline

Authorization Act, Pub. L. No. 93-153, § 408(b), (f), 87

Stat. 576, 591–92 (1973) (codified at 15 U.S.C. § 53(b)).

It was not until 1975 that Congress provided the

FTC with authorization to obtain “restitution” and

other backward-looking remedies in federal court

under limited circumstances. See Magnuson-Moss

Warranty-Federal Trade Commission Improvement

Act, Pub. L. No. 93- 637, § 206(a), 88 Stat. 2183, 2201

(1975) (codified at 15 U.S.C. § 57b); Fitzgerald, supra,

6. Congress subsequently granted the FTC authority

to seek knee-buckling civil penalties directly in

federal court for first-time violations of other statutes

and regulations. See, e.g., 15 U.S.C. § 1681s(a)(2) (Fair

Credit Reporting Act (2003)); id. § 6505(d) (Children’s

Online Privacy Protection Act (1998)); id.

§45(m)(1)(a).

Today, the FTC routinely prosecutes companies in

federal court seeking money damages.13 See also FTC

v. Facebook, Inc., 581 F. Supp. 3d 34, 63 (D.D.C. 2022)

(“So what role does provide the best analogy for

analyzing Chair Khan’s actions in voting to file this

case? The Court concludes it is that of a prosecutor.”).

See generally AMG Capital Mgmt., LLC v. FTC, 593

U.S. 67, 72–74 (2021). The FTC has a “Criminal

Liaison Unit [that] helps prosecutors bring more

The FTC’s inhouse enforcement scheme “houses (and by

design) both prosecutorial and adjudicative activities.” Axon

Enter., Inc. v. FTC, 598 U.S. 175, 189 (2023).

13

24

criminal consumer fraud cases.”14 The FTC has even

brought court actions resulting in incarceration. E.g.,

FTC v. Cardiff, No. 18-2104, 2020 U.S. Dist. LEXIS

137800, at *22–24 (C.D. Cal. July 24, 2020) (granting

FTC’s incarceration request). And, in fact, the FTC

itself has been appointed as a “special prosecutor” to

prosecute a criminal contempt action. FTC v. Am.

Nat’l Cellular, 868 F.2d 315, 322–23 (9th Cir. 1989).

In sum, today’s “FTC bears little resemblance to

the” administrative body described by this Court in

Humphrey’s Executor. Crane, 83 Geo. Wash. L. Rev.

at 1870. And as Judge Willett put it: “[W]e can

forthrightly acknowledge that the FTC of today wields

vastly more executive power than it did when the

Supreme Court first considered its constitutionality

during FDR’s first term.” Pet. App. 36a (Willett, J.,

concurring in denial of rehearing en banc). “The

upshot is that the FTC has essentially become the

executive agency that the Humphrey’s Executor Court

denied it was.” Crane, 83 Geo. Wash. L. Rev. at 1839.

CONCLUSION

This Court should grant the Petition.

FTC,

Criminal

Liaison

https://www.ftc.gov/enforcement/criminal-liaison-unit.

14

Unit,

25

Respectfully submitted,

Michael Pepson

Counsel of Record

AMERICANS FOR PROSPERITY FOUNDATION

4201 Wilson Blvd., Ste. 1000

Arlington, VA 22203

(571) 329-4529

mpepson@afphq.org

Counsel for Amicus Curiae

July 17, 2024