The Supreme Court has declined, for now, to hear the latest attack on the so-called administrative state. On Monday it left in place a 90-year old landmark decision that declared that presidents cannot fire members of a multi-member independent agency, except in cases of bad behavior.

The Consumer Product Safety Commission is a multi-member commission that is designed to protect the public from injuries and deaths caused by consumer products.

Consumers’ Research, an organization that conducts research on consumer products, sued after the CPSC denied a set of their Freedom of Information Act requests. To challenge the denial, Consumers’ Research challenged the structure of the commission, arguing that CPSC is unconstitutionally insulated from presidential supervision and control.

The conservative Fifth Circuit Court of Appeals, by a bare majority, held that CPSC can exercise “substantial executive power” while insulated from the president’s supervision and control. In its opinion, the appeals court relied on a landmark 1935 Supreme Court decision which protected “traditional independent agency” members from firing at will.

Consumers’ Research, in the latest of dozens of recent attacks on the so-called administrative state, argued that the Fifth Circuit adopted an “expansive misreading” of that 1935 case. But the government countered that Consumer’s Research is not regulated by the CSPC, and thus has no standing to challenge the agency’s structure.

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