United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
___________ FILED
April 16, 2024
No. 22-40328
___________ Lyle W. Cayce
Clerk
Consumers’ Research; By Two, L.P.,
Plaintiffs—Appellees,
versus
Consumer Product Safety Commission,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 6:21-CV-256
______________________________
ON PETITION FOR REHEARING EN BANC
Before Jones, Dennis, and Willett, Circuit Judges.
Per Curiam:
Treating the petition for rehearing en banc as a petition for panel
rehearing (5th Cir. R. 35 I.O.P.), the petition for panel rehearing is
DENIED. The petition for rehearing en banc is DENIED because, at the
request of one of its members, the court was polled, and a majority did not
vote in favor of rehearing (Fed. R. App. P. 35 and 5th Cir. R. 35).
No. 22-40328
In the en banc poll, eight judges voted in favor of rehearing (Jones,
Smith, Elrod, Ho, Duncan, Engelhardt, Oldham, and Wilson), and nine
voted against rehearing (Richman, Stewart, Southwick, Haynes, Graves,
Higginson, Willett, Douglas, and Ramirez).
2
No. 22-40328
Don R. Willett, Circuit Judge, concurring in the denial of rehearing en
banc:
Our Founding generation was fixated on splitting up power—so much
so that that our Constitution enshrines a belt-and-suspenders approach,
allocating federal power not just among branches but also within branches.
This seismic case highlights a tension wrought by this dual-division design.
And, like most constitutional disputes, it tees up the fateful “who decides?”
question.
Using friction to combat faction, our Constitution, the oldest
written national constitution on Earth, 1 splits federal power horizontally:
“Madisonian architecture infused with Newtonian genius—three separate
branches locked in synchronous orbit by competing interests.” 2 And with
federal judicial power, the Framers went a step further, marrying inter-branch
division with intra-branch division. This case ostensibly is about Article II,
which vests executive power in “a President of the United States of
America.” 3 But this case decisionally is about Article III, which vests
“judicial Power” in “one supreme Court” and then downward to “such
inferior courts as the Congress may from time to time ordain and establish.”4
Lower-court judges must honor both structural dictates, of course.
We must restrain the unconstitutional dilution of executive power on the one
hand and respect the decisions of the Supreme Court on the other. But what
if these power-dividing dictates collide? As “middle-management circuit
1
Fun Facts, National Constitution Center, available at
https://constitutioncenter.org/media/files/funfacts.pdf.
2
Collins v. Mnuchin, 938 F.3d 553, 562 (5th Cir. 2019) (en banc).
3
U.S. Const. art. II, § 1, cl. 1.
4
U.S. Const. art. III, § 1.
3
No. 22-40328
judges,”5 our paramount loyalty is to the Constitution—more precisely, to
the Constitution as the Supreme Court interprets it. 6 The New Deal-era
precedent that lets Congress restrict the President’s ability to remove
members of multiheaded agencies, what we now shorthand as Humphrey’s
Executor,7 is still on the books. Indeed, the Supreme Court has twice declined
to overrule it, going out of its way to declare—recently and conspicuously—
that it would “not revisit” the decision but leave it “in place.”8
I believe we must follow suit, even if we think Humphrey’s Executor
was wrongly decided as an original matter and even if we think it is “out of
step with prevailing Supreme Court sentiment.”9 That vertical limitation on
our judicial power, compelled by the structure of Article III and the doctrine
of stare decisis, means we are not at liberty to get ahead of our skis and
precipitately shrink a Supreme Court decision’s precedential scope.10
Thus, when we are confronted with a constitutional challenge against
an agency (the CPSC) that everyone agrees is structurally identical to the
one in Humphrey’s Executor (the FTC), we cannot break new constitutional
5
Consumers’ Rsch. v. Consumer Product Safety Comm’n, 91 F.4th 342, 346 (5th Cir.
2024).
6
Cf. post, at 11 (Oldham, J., dissenting) (“[T]he panel majority could not really
reconcile the Commission’s structure with the Constitution as interpreted by the Supreme
Court.”).
7
295 U.S. 602 (1935).
8
Seila L. LLC v. Consumer Fin. Protection Bur., 140 S. Ct. 2183, 2206 (2020); Free
Enter. Fund v. Public Accounting Oversight Bd.,
561 U.S. 477, 483 (2010).
9
Consumers’ Rsch., 91 F.4th at 356.
10
Nor can we, by the same token, “distort,” “stretch,” or “halfheartedly invoke”
precedent. Post, at 11 (Oldham, J., dissenting). Fortunately, none of us is doing any of
those things. What may be manifesting instead is a reasonable, good-faith disagreement on
how to apply nearly, nearly, zombified precedent.
4
No. 22-40328
ground.11 Granted, a lot has changed since that 1935 decision. We no longer
indulge the fiction that the FTC wields merely quasi-legislative and quasijudicial power.12 And we 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.13 But, as our court
declared barely four months ago, “whether the FTC’s authority has changed
so fundamentally as to render Humphrey’s Executor no longer binding is for
the Supreme Court, not us, to answer.”14 Our judicial task, then, does not
suddenly change once we have a structurally identical agency with a different
name almost a century later.15 Humphrey’s Executor has been overtaken, but
it has not been overturned—not yet at least.16
Judge Oldham’s scholarly dissent expresses eminently
reasonable disagreement, and as with the arguments made by the challengers
in this case, I find myself mostly nodding in agreement. Our narrow
disagreement, it seems, distills to one issue: how to read the Supreme Court’s
11
See Epic Sys. Corp. v. Lewis, 584 U.S. 497, 510 (2018) (“The law of precedent
teaches that like cases should generally be treated alike.”)
12
Seila Law, 140 S. Ct. at 2198 n.2 (“The Court’s conclusion that the FTC did
not exercise executive power has not withstood the test of time.”).
13
Id. at 2218 (Thomas, J., concurring in part) (“Humphrey’s Executor does not
even satisfy its own exception.”); see also Consumers’ Rsch.,
91 F.4th at 357 (Jones, J.,
dissenting) (“No doubt the FTC has evolved significantly over time.”).
14
Illumina v. Fed. Trade Comm’n, 88 F.4th 1036, 1047 (5th Cir. 2023).
15
See Rodriguez de Quijas v. Shearson/American Exp., Inc., 490 U.S. 477, 484 (1989)
(“If a precedent of this Court has direct application in a case, yet appears to rest on reasons
rejected in some other line of decisions, the Court of Appeals should follow the case which
directly controls, leaving to this Court the prerogative of overruling its own decisions.”).
16
See Seila Law, 140 S. Ct. at 2211–12 (Thomas, J., concurring in part) (“The
Court concludes that it is not strictly necessary for us to overrule that decision. But with
today’s decision, the Court has repudiated almost every aspect of Humphrey’s
Executor.”).
5
No. 22-40328
2020 decision in Seila Law. As I explained at greater length in the panel
opinion, Seila Law does not change the calculus here, because even though
the CPSC can be said to exercise substantial executive power, its structure
is not historically unprecedented, and, crucially, it does not have the defining
single-director feature that the Supreme Court so emphatically emphasized
in distinguishing Humphrey’s Executor.17 Indeed, as we recently held en banc,
it is only when these mechanisms combine to “excessively insulate” the
independent agency from presidential control that we have a separation-ofpowers problem.18
I write, however, not to rehash what was already written in the panel
opinion. As its author, I think it speaks for itself. I write instead to say this:
Despite today’s en banc denial, the panel opinion need not be the last word.
Our “strange conclusion,” as I have said, “follows, respectfully, from the
Supreme Court’s removal doctrine, not from our application of it.”19 And
though I disagreed with Judge Jones when we heard this case as a panel,
I agree completely with her overarching point: “The Supreme Court has
created uncertainty that only it can ultimately alleviate.”20
Until then, we must apply precedent dutifully—but we need not do so
quietly. Count me among those skeptical of Humphrey’s Executor, which
17
Seila Law, 140 S. Ct. at 2201 (“Perhaps the most telling indication of a severe
constitutional problem with an executive entity is a lack of historical precedent to support
it.” (alterations adopted) (citation omitted));
id. at 2192 (“While we need not and do not
revisit our prior decisions in allowing certain limitations on the President’s removal power,
there are compelling reasons not to extend those precedents to the novel context of an
independent agency led by a single Director.”).
18
Collins v. Mnuchin, 896 F.3d 640, 666–67 (5th Cir. 2018), as reinstated by Collins
v. Mnuchin,
938 F.3d 553, 587 (5th Cir. 2019) (en banc), aff’d in part, vacated in part, rev’d
in part sub nom. Collins v. Yellen,
141 S. Ct. 1761 (2021).
19
Consumers’ Rsch., 91 F.4th at 355.
20
Id. at 356 (Jones, J., dissenting).
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No. 22-40328
seems nigh impossible to square with the Supreme Court’s current
separation-of-powers sentiment. Even so, sentiment is not precedent. And
while an en banc petition cannot push reset on Humphrey’s Executor, a
certiorari petition can.
And this cert petition writes itself.
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No. 22-40328
James C. Ho, Circuit Judge, dissenting from denial of rehearing en banc:
I agree with my dissenting colleagues that “[t]he Constitution vests
the President with the power to remove principal executive officers.” Post, at
_ (emphasis added). Accordingly, I join my colleagues in concluding that any
statutory provision that restricts the President’s power to remove principal
executive officers is unconstitutional under Article II.
I write separately to briefly reprise a previous observation I’ve made
about Executive Branch employees more broadly. Under current statutory
law, “[o]nly a tiny percentage of Executive Branch employees are subject to
Presidential removal. The overwhelming majority of federal employees, by
contrast, are protected against Presidential removal by civil service laws.”
Feds for Med. Freedom v. Biden, 63 F.4th 366, 390 (5th Cir. 2023) (en banc)
(Ho, J., concurring). So “the President actually controls surprisingly little of
the Executive Branch.”
Id. “[W]e should consider whether laws that limit
the President’s power to remove Executive Branch employees are consistent
with the vesting of executive power exclusively in the President.”
Id. at 391.
There 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. “The right to vote
means nothing if we . . . allow the real work of lawmaking to be exercised by .
. . agency bureaucrats, rather than by elected officials accountable to the
American voter.” Texas v. Rettig, 993 F.3d 408, 410–11 (5th Cir. 2021) (Ho,
J., dissenting from denial of rehearing en banc) (citing Philip
Hamburger, Is Administrative Law Unlawful? 369, 374–75
(2014)). And we elect the leadership of the Executive Branch for the exact
same reason—to ensure accountability to the American voter.
Because the court today declines to take even this modest step to
restore democratic accountability to our federal bureaucracy, I must dissent.
8
No. 22-40328
Andrew S. Oldham, Circuit Judge, joined by Jones, Smith, Elrod,
Ho, Duncan, Engelhardt, and Wilson, Circuit Judges, dissenting
from the denial of rehearing en banc:
The Constitution vests the President with the power to remove
principal executive officers. The Supreme Court has explained Congress may
restrict that power only for “multimember expert agencies that do not wield
substantial executive power.” Seila L. LLC v. Consumer Fin. Prot. Bureau,
140 S. Ct. 2183, 2199 (2020). A divided panel of this court found the principal
officers in charge of the Consumer Product Safety Commission wield
“substantial” executive power, but it nevertheless held Congress may grant
those officers for-cause removal protections. Consumers’ Rsch. v. Consumer
Prod. Safety Comm’n,
91 F.4th 342, 353, 356 (5th Cir. 2024). The panel
majority justified its holding by explaining inferior courts have no authority
to “adjust [the] borders” of Supreme Court precedent.
Id. at 352. I agree
with that premise. But respectfully, it demonstrates the panel majority’s
error. The Supreme Court’s precedents make clear the Commission’s
statutory for-cause removal protections violate the Constitution, so I would
grant the petition for rehearing en banc.
I.
“Under our Constitution, the ‘executive Power’—all of it—is ‘vested
in a President.’” Seila L., 140 S. Ct. at 2191 (quoting U.S. Const. art. II,
cl. 1). At the founding, the executive Power was understood to encompass
the power to remove executive officers, which means the Constitution vested
the President with the power of removal. Aditya Bamzai & Saikrishna
Bangalore Prakash, The Executive Power of Removal,
136 Harv. L. Rev.
1756, 1763–82 (2023). And because 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.
Id.
at 1789; see also Free Enter. Fund v. Pub. Co. Acct. Oversight Bd.,
561 U.S. 477,
9
No. 22-40328
483 (2010) (“Since 1789, the Constitution has been understood to empower
the President to keep [his] officers accountable—by removing them from
office, if necessary.”).
That makes sense. No single person could run the executive branch
alone, so “the Framers expected that the President would rely on subordinate
officers for assistance.” Seila L., 140 S. Ct. 2191. While those officers may
assist the President in carrying out his constitutionally assigned duties, it
remains “his responsibility to take care that the laws be faithfully executed.”
Free Enter. Fund, 561 U.S. at 493 (emphasis in original). As the Supreme
Court has explained, “the buck stops with the President.” Ibid. But if the
President lacked the power to remove his subordinates, he “could not be held
fully accountable for discharging his own responsibilities; the buck would
stop somewhere else.” Id. at 502. Indeed, Congress could “transform the
executive branch into a perpetual and unaccountable bureaucratic machine.”
Bamzai & Prakash, The Executive Power of Removal, supra at 1762.
So the Supreme Court has long “recognized the President’s
prerogative to remove executive officials.” Seila L., 140 S. Ct. at 2197. In
Myers v. United States, the Court held the Constitution vests the President
with the exclusive power to remove the postmaster general.
272 U.S. 52, 176
(1925). The reason, the Court explained, is that “Article II ‘grants to the
President’ the ‘general administrative control of those executing the laws,
including the power of appointment and removal of executive officers.’” Seila
L.,
140 S. Ct. at 2197 (emphasis in original) (quoting Myers, 272 U.S. at 163–
164). Then, in Free Enterprise Fund, the Court held Congress could not
insulate an executive branch official with two layers of for-cause removal
protection. 561 U.S. at 483. In doing so, the Court “reiterated the President’s
[] removal power” as articulated in Myers. Seila L.,
140 S. Ct. at 2198. Thus,
there is no doubt as to “the general rule that the President possesses ‘the
10
No. 22-40328
authority to remove those who assist him in carrying out his duties.’” Ibid.
(quoting Free Enterprise Fund, 561 U.S. at 513–14).
In Seila Law, the Supreme Court explained it has recognized just two
exceptions to the general rule established in Myers. See id. at 2199–00. First,
Congress may restrict the President’s power to remove inferior officers so
long as the restrictions do not “impede the President’s ability to perform his
constitutional duty.” Morrison v. Olson,
487 U.S. 654, 691 (1988). Second,
Congress may restrict the President’s power to remove members of a
“multimember expert agenc[y] that do[es] not wield substantial executive
power.” Seila L., 140 S. Ct. at 2199–200; see Humphrey’s Executor v. United
States,
295 U.S. 602 (1935).
“These two exceptions”—the Morrison exception and the
Humphrey’s exception—“represent what up to now have been the outermost
constitutional limits of permissible congressional restrictions on the
President’s removal power.” Seila L., 140 S. Ct. at 2199–00. And in light of
the compelling historical and structural evidence that the President’s
removal power was originally understood to be unrestrictable, the Court has
twice declined to extend either exception to any “new situation.” Seila L.,
140 S. Ct. at 2201 (quoting Free Enterprise Fund, 561 U.S. at 483). The upshot
is that the exceptions are not to be extended—a statutory restriction on the
President’s power to remove an executive branch officer is constitutional
only if it is encompassed by either the Morrison exception or the Humphrey’s
exception. See id. at 2200–01.
II.
Consumers’ Research and By Two sued the Consumer Product Safety
Commission (“the Commission”). They claim the Commission’s structure
is unconstitutional because the President may remove the Commission’s
11
No. 22-40328
members only “for neglect of duty or malfeasance in office but for no other
cause.” 15 U.S.C. § 2053(a).
The plaintiffs are correct. Congress through § 2053(a) clearly
purported to restrict the President’s removal power. And neither of the
recognized exceptions to that otherwise unrestrictable power applies. The
Morrison exception is plainly irrelevant because the Commissioners report to
none but the President. They are accordingly principal, not inferior, officers.
See United States v. Arthrex, Inc., 141 S. Ct. 1970, 1980 (2021) (“‘Whether
one is an “inferior” officer depends on whether he has a superior’ other than
the President.”) (quoting Edmond v. United States,
520 U.S. 651, 662 (1997)).
The Humphrey’s exception is similarly inapposite. That is because—
as the panel majority recognized—“the Commission exercises substantial
executive power.” Consumers’ Rsch., 91 F.4th at 354. The Commission’s
power is executive because that is the only kind of power an agency (like the
Commission) can exercise under our Constitution. See City of Arlington v.
FCC,
569 U.S. 290, 305 n.4 (2013) (“[U]nder our constitutional structure
[agency actions] must be exercises of [] the ‘executive Power.’” (citation
omitted)); Seila L.,
140 S. Ct. at 2216 (same); Morrison,
487 U.S. at 690 n.28
(similar). That proposition is so obvious that the government does not even
contest it. ROA.634.
The Commission’s power is also substantial. The Supreme Court has
never devised a test for substantiality, but it has laid down some markers. For
example, in Seila Law the Court described the Consumer Financial
Protection Bureau as “vested with significant executive power.” 140 S. Ct.
at 2201.1 It did so because the CFPB “dictate[s] and enforce[s] policy for a
1
The panel majority emphasized that the Court described the CFPB’s power as
“significant” while describing the Humphrey’s exception as limited to agencies whose
power is “substantial.” Consumers’ Rsch., 91 F.4th at 353. But significant and substantial
12
No. 22-40328
vital segment of the economy affecting millions of Americans.” Id. at 2204.
And the CFPB has potent tools to pursue its objectives: broad discretion to
make rules, sweeping investigatory and enforcement powers, and extensive
adjudicatory authority. Id. at 2193.
All that is true of the Commission. Like the CFPB, the Commission
“dictate[s] and enforce[s] policy for a vital segment of the economy affecting
millions of Americans.” Seila L., 140 S. Ct. at 2204. In fact, it has jurisdiction
over “more than $1.6 trillion in consumer products sold each year.”
Consumer Product Safety Commission, Strategic Plan 2023-
2026 at 1, https://perma.cc/64FK-J5CM (last accessed February 26, 2024).
And like the CFPB, the Commission has potent tools:
The Commission has broad rulemaking discretion. It has nearunconstrained power to “promulgate consumer product safety
standards.” 15 U.S.C. § 2056(a); see Finnbin, LLC v. CPSC,
45 F.4th
127, 134 (D.C. Cir. 2022). It may even “ban[]” products outright
when it deems them “hazardous.” 15 U.S.C. § 2057. And its
pronouncements have the force of law. See id. § 2068(a)(1) (“It shall
be unlawful for any person to sell, offer for sale, manufacture for sale,
distribute in commerce, or import . . . any consumer product, or other
product or substance” regulated by the Commission “that is not in
conformity with” the Commission’s “consumer product
safety . . . rule[s], regulation[s], standard[s], or ban[s].”).
The Commission has sweeping investigatory and enforcement
powers. It may inspect “any factory, warehouse, or establishment in
which consumer products are manufactured or held.” 15 U.S.C.
are synonyms, so there is no reason to presume the Court’s terminological variation is
significant (or substantial). See Substantial, Merriam-Webster Thesaurus (online
ed.).
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§ 2065(a). It may define recordkeeping requirements. Id. § 2065(b). It
may inspect the records of companies subject to its jurisdiction on
demand. Ibid. It may condition the sale of any consumer product in
the United States on compliance with its inspection and
recordkeeping requirements. See id. § 2065(d). And most
importantly, it may file enforcement suits in federal court seeking
injunctive relief, id. § 2071(a), and civil penalties of up to $100,000
per violation, with a cap at $15 million for a “related series of
violations,” id. §§ 2069(a)-(b), 2076(b)(7)(A).
The Commission has adjudicatory authority. It may conduct a hearing
to determine whether a product distributed in commerce presents a
hazard, after which it may order a manufacturer, distributor, or
retailer to (among other things) cease distribution of a product. Id.
§ 2064(c).
It thus appears Congress vested the Commission with power that is
analogous to the CFPB’s. It stands to reason that if the CFPB’s power is
substantial, the Commission’s is too. The panel majority acknowledged as
much. See Consumers’ Rsch., 91 F.4th at 353 (“[T]he Commission’s power is
substantial.”). That means the Commission’s power is both executive and
substantial, which means the Commission is not encompassed by the
Humphrey’s exception to the President’s general power of removal. See Seila
L.,
140 S. Ct. at 2000 (explaining the Humphrey’s exception applies only to
“multimember expert agencies that do not wield substantial executive power”)
(emphasis added). There is no other exception for the Commission’s
removal protections to shelter under, so those protections violate Article II
of the Constitution.
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III.
The panel majority accepted the argument that the Commission’s
removal protections violate Article II as “free from any logical error.”
Consumers’ Rsch., 91 F.4th at 355. So instead of quibbling over deduction, the
panel majority instead contended the argument proceeds from a mistaken
premise.2 In the panel majority’s view, the Humphrey’s exception applies to
more than just “multimember expert agencies that do not wield substantial
executive power.” Seila L.,
140 S. Ct. at 2199. It applies to “any traditional
independent agency headed by a multimember board.” Consumers’ Rsch.,
91
F.4th at 352 (citation and internal quotation marks omitted).
The problem with the panel majority’s argument is that the
Humphrey’s exception simply does not sweep in all traditional independent
agencies headed by multimember boards. That is for the obvious reason that
the Supreme Court said it does not less than four years ago. See Seila L., 140
S. Ct. at 2199 (explaining the Humphrey’s exception applies only “to
multimember expert agencies that do not wield substantial executive
power”); see also
id. at 2211 (Thomas, J., concurring in part and dissenting in
part) (“Because the Court takes a step in the right direction by limiting
Humphrey’s Executor to multimember expert agencies that do not wield
substantial executive power, I join Parts I, II, and III of its opinion.” (emphasis
in original) (internal citation and quotation marks omitted)).
The panel majority resisted this conclusion on three grounds, but
none is persuasive. First, the panel majority asserted the Court in Seila Law
did not mean what it said about the narrowness of the Humphrey’s exception.
To prove it, the panel majority plucked an irrelevant clause from the facts
2
The panel majority did so even as it admitted the argument does “not rely on any
single premise that [it could] confidently label faulty.” Id. at 352.
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No. 22-40328
section and presented it as evidence that the Court actually thinks the
Humphrey’s exception is quite broad. Consumers’ Rsch., 91 F.4th at 352
(“[S]o far as we can tell, the exception still protects any ‘traditional
independent agency headed by a multimember board.’”) (quoting Seila L.,
140 S. Ct. at 2193). But in context, the clause supplies no support for the
panel majority’s position because it is not part of a legally significant
statement. It is a mere description of the way Congress designed the CFPB.
See Seila L.,
140 S. Ct. at 2193 (“Congress’s design for the CFPB differed
from the proposals of Professor Warren and the Obama administration in one
critical respect. Rather than create a traditional independent agency headed
by a multimember board or commission, Congress elected to place the CFPB
under the leadership of a single Director.”). An argument that depends on
mischaracterized dicta is not a very compelling argument.
Second, the panel majority noted that the Court in Seila Law did not
“revisit Humphrey’s Executor or any other precedent.” Consumers’ Rsch., 91
F.4th at 352 (quoting Seila L.,
140 S. Ct. at 2198). And the panel majority
asserted (without support) that Humphrey’s Executor held Congress may
restrict the President’s power to remove the members of any traditional
independent agency headed by a multimember board. In the panel majority’s
view, anything the Supreme Court might have said about Humphrey’s
Executor in Seila Law is accordingly irrelevant; Humphrey’s Executor binds
this court because the Supreme Court has not (yet) overruled or narrowed it.
Consumers’ Rsch.,
91 F.4th at 356.
But it is entirely beside the point that Humphrey’s Executor is still on
the books because the holding of that case is nowhere near as broad as the
panel majority claimed. Humphrey’s Executor made no generalizations about
independent agencies. Rather, the Court explained its holding “depend[ed]
upon the character” of the 1935 FTC—especially on the fact that the FTC
was a “quasi legislative and quasi judicial bod[y]” that exercised executive
16
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power only “in the discharge and effectuation of its quasi legislative or quasi
judicial powers, or as an agency of the legislative or judicial departments of
the government.” Id. at 628, 630. And to be doubly clear about the limited
nature of its decision, the Court explained:
To the extent that, between the decision in the Myers Case,
which sustains the unrestrictable power of the President to
remove purely executive officers, and our present decision that
such power does not extend to an office such as that here
involved, there shall remain a field of doubt, we leave such
cases as may fall within it for future consideration and
determination as they may arise.
Id. at 632. In other words, the 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. That is why the Supreme Court in Seila Law summarized the holding
of Humphrey’s Executor like this: “Humphrey’s Executor permitted Congress
to give for-cause removal protections to a multimember body of experts,
balanced along partisan lines, that performed legislative and judicial
functions and was said not to exercise any executive power.” Seila L., 140 S. Ct.
at 2199 (emphasis added).
Rightly understood, the fact-bound holding of Humphrey’s Executor
does not encompass the Commission’s removal protections. Most obviously,
that is because the Commission has “the power to seek daunting monetary
penalties against private parties on behalf of the United States in federal
court—a quintessentially executive power not considered in Humphrey’s
Executor.” Seila L., 140 S. Ct. at 2200. So Humphrey’s Executor does not
“settle” this case. Consumers’ Rsch.,
91 F.4th at 356. In holding otherwise,
the panel majority apparently misread the Court’s opinion. Worse, it ignored
the Court’s very recent explanation of what was actually decided in that case.
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Third, the panel majority explained that if it was not bound by
Humphrey’s Executor, it was nonetheless bound by our decision in Collins v.
Mnuchin. See Consumers’ Rsch., 91 F.4th at 355 (citing Collins,
896 F.3d 640,
645 (5th Cir. 2018), as reinstated by Collins v. Mnuchin,
938 F.3d 553, 588 (5th
Cir. 2019) (en banc), aff’d in part, vacated in part, rev’d in part sub nom. Collins
v. Yellen,
141 S. Ct. 1761 (2021)). There, we held that for-cause removal
protection alone is “not sufficient to trigger a separation-of-powers
violation.” Id. at 667. Rather, we explained that “for-cause removal violates
the constitution only when it combines with other independence-promoting
mechanisms that work together to excessively insulate an agency from the
President’s control.” Consumers’ Rsch.,
91 F.4th at 355 (quotation omitted)
(quoting Collins, 896 F.3d at 666–67).
But Collins is irrelevant because the framework it established was
unequivocally undermined by Seila Law. As explained above, the Supreme
Court in that case made clear the general rule is that the President has
“unrestrictable power . . . to remove [] executive officers.” Myers, 295 U.S.
at 632. There are just two exceptions—the Morrison exception and the
Humphrey’s exception. Neither exception licenses inferior courts to bless
restrictions on the President’s removal power based on their own
freewheeling assessment of an agency’s insulation from presidential control.3
So to the extent the panel majority deemed the Commissions’ removal
protections constitutional based on the Commission’s lack of
“independence-promoting mechanisms,” Consumers’ Rsch.
91 F.4th at 355
(quoting Collins,
896 F.3d at 667), the panel majority contravened Myers.
3
If Collins somehow precluded the panel majority from giving effect to the
Supreme Court’s decision in Seila Law, that is all the more reason to grant the petition for
rehearing en banc.
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In sum, the panel majority could not really reconcile the
Commission’s structure with the Constitution as interpreted by the Supreme
Court. But it apparently could not believe the Court meant what it said just
four years ago. So the panel majority distorted Seila Law, then stretched the
holding of Humphrey’s Executor, then halfheartedly invoked an irrelevant
decision of this court, all to protect the Commissioners from the President’s
constitutional power to remove them from office.
IV.
Even if the panel majority correctly interpreted the Supreme Court’s
precedents, it was still wrong in this case. The panel majority distilled from
the Court’s precedents that for-cause removal protections are constitutional
for “any traditional independent agency headed by a multimember board.”
Consumers’ Rsch., 91 F.4th at 352 (emphasis added; citation and quotation
omitted). That means on the panel majority’s telling, for-cause removal
protections for agency heads are constitutional only if two things are true:
First, the agency is run by a multimember body. Second, the agency is
“traditional.”
The panel majority said virtually nothing about the second prong of
the test it distilled from the Supreme Court’s precedents—that the agency
be traditional. In fact, it appears the panel majority assumed an agency is
traditional if it is multimember. See id. at 354 (“[T]he Commission has
history on its side. It is a prototypical traditional independent agency, run by
a multimember board.” (quotation omitted)). But if that is true, the
requirement that an agency be traditional is entirely superfluous. It would do
just as well to say for-cause removal protections are constitutional for all
multimember independent agencies. And that would prove too much because
the Court in Seila Law made clear the removal inquiry is more nuanced than
that. See
140 S. Ct. at 2200 (explaining the CFPB’s removal protections are
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unconstitutional for two independent reasons: the CFPB is headed by a single
director, and the CFPB is “hardly a mere legislative or judicial aid”). So to
the extent the panel majority’s test has support in Supreme Court precedent,
the “traditional” prong must do some work.
The Supreme Court has never explained what makes an agency
traditional—perhaps because its recent removal jurisprudence has focused
on the substantiality of an agency’s power rather than its historical pedigree.
See Part I, supra. But in evaluating the traditional-ness of an agency, one
might reasonably start by comparing it with pioneering agencies like the
Federal Trade Commission (at issue in Humphrey’s Executor) and the Federal
Reserve.
The FTC and the Fed are “traditional” in the sense that they are
longstanding; both predate the New Deal by decades. See Federal Trade
Commission, Our History, https://perma.cc/2UTF-7AA7 (Federal
Trade Commission created in 1914); Board of Governors of the
Federal Reserve System, Federal Reserve Act,
https://perma.cc/LQ6T-8P3E (Federal Reserve System created in 1913).
Moreover, the FTC is traditional in the sense that the Supreme Court has
held its structure is constitutional. See Humphrey’s Executor, 295 U.S. 602.
And the Fed is traditional in the sense that it looks like the kind of
“administrative body” described by the Humphrey’s Executor Court.
295
U.S. at 628. That is because the Fed’s most important responsibility is
administration of the money supply. See 12 U.S.C. § 225a. And unlike law
enforcement, administration of the money supply is not an executive
function—so the Fed’s independence does not offend the traditional
principle that all executive power is vested in the President. See Morrison v.
Olson,
487 U.S. 654, 691 (1988) (noting “law enforcement functions” are
traditionally executive).
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No. 22-40328
The Commission shares none of these characteristics. First, it does
not predate the New Deal. It was created in 1972, more than half a century
after the FTC and the Fed. Consumer Product Safety
Commission, Who We Are – What We Do for You,
https://perma.cc/A3JZ-UPWU. Second, the Supreme Court has never held
that the Commission’s structure is constitutional. Third, the Commission’s
principal responsibility is to enforce consumer protection laws, which is
(obviously) a law enforcement function. And the Commission has powers
even the Humphrey’s Executor Court would have considered executive—
namely “the power to seek daunting monetary penalties against private
parties on behalf of the United States in federal court.” Seila L., 140 S. Ct. at
2200; see
15 U.S.C. § 2069(a)-(b),
id. § 2076(b)(7)(A). It thus appears the
Commission is not “traditional,” which means it fails to satisfy even the
contrived test the panel majority distills from the Supreme Court’s removal
cases.
…
The panel majority was doubtless correct that inferior courts must
follow binding Supreme Court precedent. See, e.g., State Oil Co. v. Khan, 522
U.S. 3, 20 (1997) (“[I]t is [the Supreme Court’s] prerogative alone to
overrule one of its precedents.”). But that truism accomplishes little because
all agree that we’re bound by Humphrey’s Executor, Myers, Seila Law, &c. The
dispute is how those binding authorities apply to this case. In my view, the
Court’s precedents say the President has unrestrictable power to remove
principal officers unless those officers are part of a traditional multimember
expert agency that does not wield substantial executive power. That means
the Commission’s removal protections are unconstitutional. And even if I am
wrong—even if the Court’s precedents mean what the panel majority said
they mean—the Commission’s removal protections are still unconstitutional
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No. 22-40328
because the Commission is not “traditional.” I respectfully dissent from our
court’s refusal to reconsider these questions en banc.
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