United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit ____________ FILED January 17, 2024 No. 22-40328 ____________ Lyle W. Cayce Clerk Consumers’ Research; By Two, L.P.,

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 ______________________________

Before Jones, Dennis, and Willett, Circuit Judges. Don R. Willett, Circuit Judge: The Supreme Court in recent years has taken a keen interest in administrative law—the law that governs the government—reexamining foundational notions of federal regulatory power.1 In its current Term, for example, the Court is revisiting so-called Chevron deference, the 40-year-old

1 See, e.g., West Virginia v. Envtl. Prot. Agency, 142 S. Ct. 2587, 2599 (2022) (major- questions doctrine); Gundy v. United States, 139 S. Ct. 2116, 2121 (2019) (non-delegation doctrine); Lucia v. S.E.C., 138 S. Ct. 2044, 2049 (2018) (Appointments Clause). Case: 22-40328 Document: 00517035671 Page: 2 Date Filed: 01/17/2024

No. 22-40328

doctrine under which courts defer to agency interpretations of ambiguous laws.2 Today’s case may also attract the Court’s interest. It tees up one of the fiercest (and oldest) fights in administrative law: the Humphrey’s Executor “exception” to the general “rule” that lets a president remove subordinates at will.3 In this 1935 New Deal-era precedent, which detractors say dilutes the president’s constitutional power over the executive branch, the Supreme Court upheld restrictions on the president’s authority to remove commissioners of so-called “independent” agencies—those headed by officers who may only be removed for specified causes.4 The Humphrey’s exception traditionally “has applied only to multi- member bodies of experts.”5 Sitting en banc, we recently described the exception like this: Congress’s decision “limiting the President to ‘for cause’ removal is not sufficient to trigger a separation-of-powers violation.”6 Instead, for-cause removal creates a separation-of-powers problem only if it “combine[s]” with “other independence-promoting mechanisms” that “work[] together” to “excessively insulate” an independent agency from presidential control.7

2 Loper Bright Enterprises, Inc. v. Raimondo, 45 F.4th 359, 363 (D.C. Cir. 2022), cert. granted, 143 S. Ct. 2429 (2023). 3 Seila Law LLC v. Consumer Fin. Prot. Bureau, 140 S. Ct. 2183, 2206 (2020). 4 See Humphrey’s Ex’r v. United States, 295 U.S. 602 (1935). 5 Collins v. Mnuchin, 938 F.3d 553, 587 (5th Cir. 2019) (en banc) (“Collins II”), aff’d in part, vacated in part, rev’d in part sub nom. Collins v. Yellen, 141 S. Ct. 1761 (2021)). 6 Collins v. Mnuchin, 896 F.3d 640, 667 (5th Cir. 2018