Plaintiffs—Appellees,

versus Consumer Product Safety Commission,

Defendant—Appellant. ______________________________

Appeal from the United States District Court for the Eastern District of Texas USDC No. 6:21-CV-256 ______________________________

ON PETITION FOR REHEARING EN BANC Before Jones, Dennis, and Willett, Circuit Judges. Per Curiam: Treating the petition for rehearing en banc as a petition for panel rehearing (5th Cir. R. 35 I.O.P.), the petition for panel rehearing is DENIED. The petition for rehearing en banc is DENIED because, at the request of one of its members, the court was polled, and a majority did not vote in favor of rehearing (Fed. R. App. P. 35 and 5th Cir. R. 35). No. 22-40328

In the en banc poll, eight judges voted in favor of rehearing (Jones, Smith, Elrod, Ho, Duncan, Engelhardt, Oldham, and Wilson), and nine voted against rehearing (Richman, Stewart, Southwick, Haynes, Graves, Higginson, Willett, Douglas, and Ramirez).

2 No. 22-40328 Don R. Willett, Circuit Judge, concurring in the denial of rehearing en banc: Our Founding generation was fixated on splitting up power—so much so that that our Constitution enshrines a belt-and-suspenders approach, allocating federal power not just among branches but also within branches. This seismic case highlights a tension wrought by this dual-division design. And, like most constitutional disputes, it tees up the fateful “who decides?” question. Using friction to combat faction, our Constitution, the oldest written national constitution on Earth, 1 splits federal power horizontally: “Madisonian architecture infused with Newtonian genius—three separate branches locked in synchronous orbit by competing interests.” 2 And with federal judicial power, the Framers went a step further, marrying inter-branch division with intra-branch division. This case ostensibly is about Article II, which vests executive power in “a President of the United States of America.” 3 But this case decisionally is about Article III, which vests “judicial Power” in “one supreme Court” and then downward to “such inferior courts as the Congress may from time to time ordain and establish.”4 Lower-court judges must honor both structural dictates, of course. We must restrain the unconstitutional dilution of executive power on the one hand and respect the decisions of the Supreme Court on the other. But what if these power-dividing dictates collide? As “middle-management circuit

1 Fun Facts, National Constitution Center, available at https://constitutioncenter.org/media/files/funfacts.pdf. 2 Collins v. Mnuchin, 938 F.3d 553, 562 (5th Cir. 2019) (en banc). 3 U.S. Const. art. II, § 1, cl. 1. 4 U.S. Const. art. III, § 1.

3 No. 22-40328 judges,”5 our paramount loyalty is to the Constitution—more precisely, to the Constitution as the Supreme Court interprets it. 6 The New Deal-era precedent that lets Congress restrict the President’s ability to remove members of multiheaded agencies, what we now shorthand as Humphrey’s Executor,7 is still on the books. Indeed, the Supreme Court has twice declined to overrule it, going out of its way to declare—recently and conspicuously— that it would “not revisit” the decision but leave it “in place.”8 I believe we must follow suit, even if we think Humphrey’s Executor was wrongly decided as an original matter and even if we think it is “out of step with prevailing Supreme Court sentiment.”9 That vert