It’s no understatement to say that the Roberts Court, in only the last decade or so, has rewritten the textbooks on administrative law. And more seismic changes could be on the way. Since the long conference, the Supreme Court has twice relisted Consumers’ Research v. Consumer Product Safety Commission, a potential blockbuster that could overturn Humphrey’s Executor.

The Solicitor General, among others, argues that the petitioning party lacks standing. According to the skeptics, Consumers’ Research suffered no harm because it isn’t regulated by the Commission. Instead, the suit flows from the agency’s administration of the Freedom of Information Act. We respectfully disagree—as did both the District Court and the Fifth Circuit. There is actionable harm whenever citizens are subjected to unconstitutionally structured government. Consumers’ Research is a live controversy that belongs in Article III court.

However, to the extent the Court would prefer a vehicle with a direct regulatory connection, there is a complementary petition pending that is ripe for consolidation with Consumers’ Research. In Leachco, Inc. v. CPSC, a case litigated by our firm Pacific Legal Foundation, the stakes could not be higher for the petitioners, whose livelihood hangs in the balance.

Leachco is a family business based in Ada, Oklahoma, founded by Jamie Leach and her husband Clyde. Jamie has designed all of the company’s products, including an infant lounger called the Podster. The CPSC alleges that the Podster is a “substantial product hazard,” that is, a “product defect which (because of the pattern of defect, the number of defective products distributed in commerce, the severity of the risk, or otherwise) creates a substantial risk of injury to the public.”

After Leachco refused the CPSC’s request to recall the Podster, the CPSC authorized an administrative lawsuit, which was commenced in February 2022. Last August, Leachco appeared for the administrative trial, held before a CPSC-appointed “Presiding Officer” at the Commission’s offices in Bethesda, Maryland. Almost a year later, the Presiding Officer concluded that the Podster does not have a design defect and, even if it did, such a defect did not create a substantial risk of injury to the public. The Commission’s enforcement lawyers have appealed—to the Commission itself. Thus, the same body that initiated the lawsuit in the first place will sit as an appellate panel. The Commission conducts a de novo review, after which it may affirm or reverse—and make new findings of fact. Briefing is ongoing.

While all this was going on, Leachco filed a collateral action in federal district court seeking an injunction to stay the CPSC’s administrative hearing. Leachco argued that because the CPSC Commissioners enjoy for-cause removal protection, the CPSC is structurally unconstitutional. The district court and, later, the Tenth Circuit held (1) Leachco was unlikely to succeed on its removal claims and, regardless, (2) violations of the separation of powers, unlike the violation of “individual” constitutional rights, can never cause irreparable harm. Accordingly, Leachco’s requests for injunctive relief were denied.

In its cert petition, Leachco presents three questions:

1. Does the for-cause restriction on the President’s authority to remove the CPSC’s Commissioners violate the separation of powers?

2. Should Humphrey’s Executor v. United States, 295 U.S. 602 (1935), be overruled?

3. For purposes of preliminary-injunctive relief, can a separation-of-powers violation cause irreparable harm—as this Court and several circuits hold—or can separation-of-powers violations never cause irreparable harm—as the Tenth Circuit alone holds?

If Humphrey’s Executor were overturned, some might mistakenly assume that our client would be worse off, because the final decisionmaker would become less insulated from politics. This would be a gross misapprehension, for two reasons.

First, the Commissioners are policymakers, not judges. The entire point of Commission review of ALJ decisions is to put a policy gloss on cases adjudicated before the agency. If our client must endure policymaker justice, then they would prefer an accountable policymaker. The only thing worse than overbearing executive power is overbearing and unaccountable executive power.

Second, and more fundamentally, these removal claims cannot be viewed in isolation. Instead, they fit within a grander constitutional design, one that includes the Seventh Amendment, Article III, and due process. Under the Constitution, political accountability is a feature, not a bug, for executive branch adjudication. And that’s because, under the Constitution, executive branch adjudication cannot extend beyond a narrow class of “public rights,” including immigration, taxation, tariffs, Indian relations, public lands, and public benefits. The idea is that public rights should be managed by public officials, in accordance with national policies set by the president. This is how administrative adjudication worked in the eighteenth and nineteenth centuries. The upshot is that the Appointments Clause operates hand in hand with the public rights doctrine (properly construed). When controversies implicate private rights, such as Leachco v. CPSC, they belong in court.