The Supreme Court on Wednesday allowed President Trump to terminate for now, without cause, President Biden's appointees to the Consumer Product Safety Commission. The decision further limits a 90-year-old high-court precedent that was aimed at protecting the independence of certain regulatory agencies.
"The Consumer Product Safety Commission exercises executive power in a similar manner as the National Labor Relations Board, and the case does not otherwise differ from Wilcox in any pertinent respect," the court said in its order.
In a concurrent order, Justice Brett Kavanaugh said he would have granted the case for review in the fall.
The court's three liberals dissented.
Justice Elena Kagan, writing for herself and the other two liberals, Justices Sonia Sotomayor and Ketanji Brown Jackson, accused the majority of using the emergency docket to prevent Congress from prohibiting removals without cause. The result, as she observed, is to grant greater executive power at the expense of legislative authority.
"The majority has acted on the emergency docket—with 'little time, scant briefing, and no argument' — to override Congress's decisions about how to structure administrative agencies so that they can perform their prescribed duties," she wrote. "By means of such actions, this Court may facilitate the permanent transfer of authority, piece by piece by piece, from one branch of Government to another."
The court's action, while temporary, presents a direct challenge to Humphrey's Executor, the longstanding Supreme Court precedent, which restricts the president's power to remove agency officials at will. In a unanimous Supreme Court decision, in 1935, the justices ruled that President Roosevelt could not remove an FTC Commissioner just because the commissioner disagreed with Roosevelt's New Deal plan. The court said that when Congress created the Federal Trade Commission and other specialized agencies, they were to remain independent, and thus the president was not authorized to fire commissioners before their terms were over, except for malfeasance or other wrongful conduct.
In 2021, Biden appointed three members to the CPSC, the federal agency that creates safety standards for product recalls, researches potential product hazards and on rare occasions bans unsafe products altogether. But just months after Trump took office, he fired the Biden-appointed commissioners before their terms were over.
The commissioners sued, arguing that the president could not prematurely end their appointments, without cause. Congress designed the consumer protection agency as "an independent regulatory commission," the commissioners argued, and according to law, the president could only remove them for "neglect of duty of malfeasance in office."
The Trump administration argued that the president was within his rights as the nation's chief executive, to remove commissioners, "at will," because they exercise "substantial or considerable executive power."
A federal judge in Maryland temporarily blocked the Trump administration from firing the commissioners and reinstated them to their previous positions while the case proceeds through the lower courts.
After the Fourth Circuit Court of Appeals declined to intervene, the Trump administration appealed to the Supreme Court, citing a May decision, in which the justices, by a 6-to-3 vote, granted the administration's emergency request to terminate members of the National Labor Relations Board and the Merit Systems Protections Board. On Wednesday, the court sided with the administration.
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