The Right’s Truly Incredible Argument for Weakening Consumer Safety

The Consumer Product Safety Commission, which was created a half-century ago, exists to keep Americans safe from faulty, defective, and dangerous products on the market. Just within the last week, they have pushed companies to recall lawn mower engines that occasionally catch fire, rock climbing ascenders that don’t actually work, biometric gun safes that allow for unauthorized access, and baby sling carriers that don’t properly secure infants.

Very few Americans have a problem with this. Unfortunately, the ones that do are willing to spend a lot of money to stop it. Two recent lawsuits—one in Texas, another in Oklahoma—show how the conservative legal establishment is mobilizing against the consumer watchdog agency. The results could be dangerous, if not deadly, for everyone else.

In the Texas case, a group named Consumers’ Research filed a lawsuit in 2022 to challenge the agency’s constitutionality. The lawsuit is a betrayal of the organization’s founding mission. When it was created in the 1920s, Consumers’ Research was one of the original consumer advocacy watchdogs. It tested thousands of products on the market for their safety and efficacy, paving the way for successor organizations like Consumer Reports, which broke away from it in the 1930s.

The current iteration of Consumers’ Research bears no resemblance to its original mission. In 1981, it was purchased by M. Stanton Evans, a prominent conservative editor and activist. Evans soon shuttered the group’s product testing labs and hollowed out its staff. Millions of dollars of anonymous donor money flowed into Consumers’ Research in recent years as it turned its attention to fighting what it describes as “woke” companies. Among those influencing the shift is Leonard Leo, the Federalist Society leader who oversaw Trump’s efforts to push the federal courts to the right.

Undermining the CPSC would be a boon for companies that hope to sell defective and flawed products to American consumers. Consumers’ Research argued it had standing to challenge the organization’s constitutionality on deeply cynical grounds. In 2021, it filed Freedom of Information Act requests to obtain voluntary safety regulations standards materials whose copyrights are owned by a private standards organization. The CSPC denied the request and told Consumers’ Research to obtain them from the organization itself.

“Each of these voluntary safety standards can be purchased for $46 to $195 from ASTM,” Consumers’ Research said in its complaint. “The Commission did not make a decision on the request for a fee waiver. Because the Commission denied this FOIA request, Consumers’ Research must pay ASTM to obtain these documents.”

Though it is funded by anonymous right-wing donors with deep pockets, the group argued that paying these fees for a service it voluntarily sought would amount to an “imminent financial injury.” It blamed the purported injury on the agency’s structure, which it said was unconstitutional. (More on that later.) This is the kind of phantom case that right-wing legal groups often conjure up to get legal questions in front of ideologically sympathetic judges.

The Oklahoma lawsuit, by comparison, has actual real-world stakes. It was filed by Leachco, a baby products company that is resisting a CPSC recall of one of its infant loungers. Pediatric and child safety organizations have long emphasized safe sleep standards to reduce the risk of sudden infant death. The American Association of Pediatrics recommends that babies sleep on their backs on a firm, fitted mattress with a tight fitted sheet. It discourages unsafe practices like co-sleeping or placing “loose blankets, pillows, stuffed toys, bumpers and other soft items,” all of which can lead to suffocation.

In 2021, the CPSC issued a new rule that sought to remove unsafe baby sleep products from the American market. It ordered a recall of popular loungers like the Dockatot Deluxe because they did not meet the new standards, noting that multiple infant deaths had been associated with them. One of the products that violated the new rule was the Leachco Podster. Its pillow-like design is both its major selling point and its biggest problem, according to the CPSC. The softness and low sides “can cause airflow obstruction if an infant rolls, moves, or is placed in a position where the infant’s nose or mouth are obstructed by the Podsters.”

While Leachco recommends against allowing babies to sleep in the Podster, the agency found multiple instances where babies had suffocated in them and noted that it takes “actual consumer use” into consideration. Most companies voluntarily recall their products when they are found to be unsafe by the CPSC. Leachco did not. The Oklahoma-based company instead filed a lawsuit in 2022 to block the CPSC’s enforcement efforts, arguing that the agency’s structure violated the Constitution’s separation of powers, and continue marketing the product.

“Jamie and Clyde [Leach] see Leachco as their story of the American way: work hard, innovate, and never give up,” they said in their complaint. “They have always modeled these virtues for their children and hope their kids can carry on in the business one day. The Commission’s baseless allegations and arbitrary administrative proceeding threaten everything the Leaches have worked so hard for.” Supporting their lawsuit is the Pacific Legal Foundation, a prominent right-wing legal organization.

As with other watchdog agencies, the CPSC enjoys a degree of insulation from day-to-day political forces. It is headed by a five-member commission, each of whom serves a staggered seven-year term after they are confirmed by the Senate. Commissioners cannot be fired by the president except for cause. Both Leachco and Consumers’ Research argue that the removal protections are unconstitutional because Congress constrained the president’s essential power to fire officers.

This is a familiar argument from conservative anti-regulatory groups. The Supreme Court stripped the director of the Consumer Financial Protection Bureau of their removal protections in a 2020 case on separation-of-powers grounds. The justices distinguished the CFPB director from other agency heads with similar protections by noting that those agencies typically had multi-member commissions heading them, which reduced the threat of arbitrary exercises of power. As the court noted, the CFPB itself was modeled after the CPSC when Congress established it in 2011.

The Leachco complaint framed this argument in terms of liberty and the Framers’ intent. It quoted from founding-era political documents for a couple of pages to emphasize that the CPSC’s broad powers threatened Americans’ individual rights. “The Framers, of course, well understood how concentrated, arbitrary power could deprive Americans of their ‘unalienable’ fundamental rights to life, liberty, and property,” the company noted. Leachco even quoted specific complaints against the British Crown in the Declaration of Independence that it thought were applicable in its consumer safety case.

Consumers’ Research did not bother with paeans to the Founders. It merely envisioned a world where the CPSC’s work ground to a halt after a president fired most of the commissioners. “If the Commissioners had been removed [when President Biden took office in January 2021], the Commission could not have adopted the FOIA rule on January 29, 2021, because [it] would have lacked a quorum,” the organization said in its complaint. “Similarly, if President Trump had removed the Commissioners during his term in office, the Commission would have lacked a quorum to issue a notice of proposed rulemaking for the FOIA rule on April 16, 2020.”

In the Texas case, a federal district court judge sided with the challengers and struck down the removal provision. But a three-judge panel in the Fifth Circuit Court of Appeals reversed that decision and ruled in favor of the agency in January—sort of. Consumers’ Research had strongly criticized the 1935 case Humphrey’s Executor v. United States in its arguments. In that New Deal–era case, the court upheld the removal protections for the Federal Trade Commission and allowed Congress to enact them for similarly structured agencies.

The panel’s conservative members agreed with that criticism but said they were nonetheless bound to apply it. “As middle-management circuit judges, we must follow binding precedent, even if that precedent strikes us as out of step with prevailing Supreme Court sentiment,” Judge Don Willett wrote for the panel. “The logic of Humphrey’s may have been overtaken, but the decision has not been overruled—at least not yet. Until that happens, Humphrey’s controls.”

The Oklahoma case faced a much rougher road. The district court rejected Leachco’s request for a preliminary injunction against the CPSC, and the Tenth Circuit Court of Appeals’ panel declined to reverse it last week. In its ruling, the Tenth Circuit panel noted that all of the available precedent pointed in the CPSC’s favor, including the recent decision by the Fifth Circuit. Unlike the Fifth Circuit, however, the Tenth Circuit rejected the idea that the structure violated the separation of powers at all.

Judge David Ebel observed in a footnote that the common right-wing theory about removal protections misunderstood how the laws actually worked. “They were not restrictions imposed upon an unwilling executive branch,” he wrote. “Rather, the executive branch affirmatively chose to accept some insulation for its agencies and commissions from short term political control to ensure the good and faithful execution of its executive duties. The removal protections at issue in this case originated with the exercise of, rather than limitations on, presidential discretion.”

That is also why the conservative legal establishment is fighting so hard to remove those protections. The “good and faithful execution” of the agencies’ regulatory functions is seen as a bug, not a feature. Wealthy right-wing donors fund these lawsuits so that regulatory agencies will be more malleable by Republican presidents and their appointees. After former President Donald Trump installed his own appointees at the CFPB, for example, they began undermining its regulatory efforts against the financial services industry. Kathy Kraninger, who served as the agency’s Trump-era director, went on to work for a crypto company and is now the CEO of the Florida Bankers Association.

Neither Consumers’ Research nor Leachco have asked the Supreme Court to review the circuit courts’ rulings yet, though they still have time to do so. There is no real reason for the justices to take up the case since the lower courts are in agreement. But the Fifth Circuit’s conservative judges are strongly encouraging the court to do it anyway. When the court denied a request to rehear the Consumers’ Research case in April, Willett wrote separately to say that the justices should take up the case to overturn Humphrey’s Executor and the “strange conclusion” that he says that precedent forced him to reach.

In a way, these cases would be a perfect vehicle for the conservative justices to overturn Humphrey’s Executor if they wish to do so. They illustrate exactly why watchdog agencies like the CPSC were designed to be insulated from day-to-day political forces, how wealthy right-wing donors stand to benefit if those removal protections are erased, and how Americans could be harmed if it happens. Conservative legal theories about the separation of powers may ultimately be of little comfort to grieving parents who bought an unsafe product without realizing it.