A guide to the Supreme Court in restoring the separation of powers

Visitors walk in front of the Supreme Court building on Capitol Hill in Washington, DC


Patrick Semansky/Associated Press

An important legal project of the coming years should be the reaffirmation of the separation of powers as correctly understood in the US Constitution. A small but perhaps momentous step in that direction came in a March 18 federal court ruling against the Consumer Product Safety Commission (CPSC).

Federal Judge Jeremy Kernodle ruled that a restriction by Congress on the President’s power to fire members of the CPSC is unconstitutional (Consumer Research and By Two LP vs. CPSC). The plaintiffs are educational companies that have been denied fee waivers by the CPSC for Freedom of Information Act requests.

In their request for discharge, they also included that the structure of the CPSC was unconstitutional “by protecting the commissioners from the impeachment of the president”. Judge Kernodle agreed, and his reasoning could take the Independent Federal Agencies Act another step toward proper presidential oversight.

The founders conferred all executive power on a single president for political accountability. But in the 20th century, Congress undermined this unified control by establishing independent agencies (SEC, FTC, etc.). The Supreme Court too readily approved the arrangement, most notably in a failed 1935 case known as Humphrey’s enforcer That said Congress could limit the President’s ability to fire commissioners from the agency.

The Supreme Court took off Humphrey’s enforcer in recent years, particularly in cases involving individual directors at the Consumer Financial Protection Bureau and the Federal Housing Finance Agency. President Biden took advantage of both cases by forcing President Trump-appointed directors to resign.

Judge Kernodle has now ruled that the same logic applies to an agency like the CPSC, which is run by multiple (five) commissioners. We’ll spare you the arcane legal details, but suffice it to say that the advisory is a logical extension of recent Supreme Court rulings. It will likely be upheld by the Fifth Circuit Court of Appeals and the Supreme Court if the Biden administration appeals.

In this case Humphrey’s enforcer would be hollowed out enough to be a dead letter even if not formally lifted as a precedent. Such a decision would also further isolate Morrison vs. Olson (1988) as a bastard of constitutional law. Morrison upheld the statute of independent lawyers and was the cause of Antonin Scalia’s greatest objection.

Judge Kernodle’s decision will not have major immediate political ramifications because he has not ruled that all CPSC decisions are invalid, even if the agency is not properly structured. But his opinion is significant in aiding the Supreme Court’s efforts to bring Congress, the executive branch and the judiciary back to their constitutional tracks.

The court could soon scale back its teachings Oops and


judicial deference to administrative agencies, which could prompt Congress to write clearer legislation. Judges are also applying their “big questions” doctrine more vigorously to challenge agency decisions such as the vaccination mandate. Kudos to Judge Kernodle for illuminating the constitutional way forward.

Journal Editor’s Report: The Best and Worst of the Week by Adam O’Neal, Dan Henninger and Kim Strassel. Images: Zuma Press/DNC/AFP/Getty Images/Shutterstock Composite: Mark Kelly

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https://www.wsj.com/articles/restoring-the-separation-of-powers-judge-jeremy-kernodle-consumer-product-safety-commission-11647980624 A guide to the Supreme Court in restoring the separation of powers

Ethan Gach

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