The Volokh Conspiracy
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SCOTUS Stays Injunction Against Removal of CPSC Commissioners
Further indication that independent agencies will not be "independent" much longer.
Today the Supreme Court stayed a district court order barring President Trump from removing the three Democratic members of the Consumer Product Safety Commission. The Court's order is not particularly surprising given its prior order staying a similar injunction barring the removal of other appointees to independent agencies. The three justices appointed by Democratic Presidents dissented.
As has become increasingly common, the Court issued the order with minimal explanation and without argument. The unsigned order in Trump v. Boyle suggested that lower courts should take greater cues from such orders than they have been, even though such orders are not precedential. From the order:
The application is squarely controlled by Trump v. Wilcox, 605 U. S. ___ (2025). Although our interim orders are not conclusive as to the merits, they inform how a court should exercise its equitable discretion in like cases. The stay we issued in Wilcox reflected "our judgment that the Government faces greater risk of harm from an order allowing a removed officer to continue exercising the executive power than a wrongfully removed officer faces from being unable to perform her statutory duty." Ibid. (slip op., at 1). The same is true on the facts presented here, where 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.
Justice Kavanaugh wrote separately to note that he would have granted cert before judgment in addition to granting the stay application. He wrote:
When an emergency application turns on whether this Court will narrow or overrule a precedent, and there is at least a fair prospect (not certainty, but at least some reasonable prospect) that we will do so, the better practice often may be to both grant a stay and grant certiorari before judgment. In those unusual circumstances, if we grant a stay but do not also grant certiorari before judgment, we may leave the lower courts and affected parties with extended uncertainty and confusion about the status of the precedent in question. Moreover, when the question is whether to narrow or overrule one of this Court's precedents rather than how to resolve an open or disputed question of federal law, further percolation in the lower courts is not particularly useful because lower courts cannot alter or overrule this Court's precedents. In that situation, the downsides of delay in definitively resolving the status of the precedent sometimes tend to outweigh the benefits of further lower-court consideration.
So it is here. Therefore, I not only would have granted a stay but also would have granted certiorari before judgment.
Apparently he did not have too many takers for this position. The three dissenters object to resolving these sorts of issues on the emergency docket, but did not want to accelerate the Court's resolution of the underlying question. Joining Justice Kavanaugh's call for certiorari would likely hasten Humphrey's Executor's demise.
Justice Kagan penned a brief dissent on behalf of the three liberal justices, lamenting the Court's hostility to Humphrey's, and in particular the justices' willingness to "the President to remove Commissioners for no reason other than their party affiliation." As Kagan notes, this could have the practical effect of eliminating bipartisan commissions with regulatory authority.
