Contrary to what one commissioner might think, the Constitution comes before any government official
“To the end it may be a government of laws and not of men.” This ideal comes from the part of the Massachusetts Constitution establishing the state’s separation of powers between its three branches of government. The separation of powers is indispensable to the rule of law.
Whether at the state or federal level, the separation of powers keeps the branches of government at bay and restrains government officials’ exercise of power. And without it, nothing would stop government officials from wielding all three powers of government and rising above accountability.
A recent episode of the Trump administration brought this to light.
In early May, President Trump fired three commissioners of the Consumer Product Safety Commission (CPSC), an independent agency that protects consumers from unsafe products. One of these commissioners is Richard Trumka Jr., who responded by suing the president, arguing Trump doesn’t have the authority to remove him from his position.
Trumka released a letter denouncing the firing. Beyond advancing a legal argument, though, Trumka’s letter was filled with fear-mongering language that focused on why he must remain at the CPSC to continue his vital work.
“CPSC’s lifesaving work is far too important to take this lying down. We stop products that could kill babies in their sleep, that could give kids lead poisoning, that could strangle older Americans,” Trumka wrote. “It’s my job…to tell bad actors what they don’t like to hear: they can’t sell products that hurt your kids. And if they ignore that, to warn you that their products could hurt your family. Profit-hungry companies stand to gain a lot from getting rid of me. Make no mistake: their gain would come at your expense.”
He continued, “So, my work as an independent Commissioner must continue…. If my illegal firing is allowed to stand, it will clear the way for the Administration and its lapdogs to cripple the lifesaving functions of this agency to benefit their wealthy donors.”
There’s an unmistakable self-righteousness seeping through the contents of Trumka’s letter—a sense that the importance of his work rises above the Constitution and the rule of law. But the Constitution comes before the removal protections, the lifesaving work, and the seemingly irreplaceable “independent” commissioners who feel they’re entitled to their jobs.
And what is this “lifesaving” work, exactly? Suing family-run businesses for products that have nothing wrong with them. That’s what happened to PLF’s client Leachco, Inc. and its product, an infant lounger called the Podster, designed to make infant supervision easier for parents. The CPSC, including Commissioner Trumka, voted to sue Leachco for selling a “defective” product that presented a “substantial product hazard.” But the CPSC never identified any objective defects in the Podster, and no injury or death has ever resulted from proper use of it, only from consumers misusing it. And these were three cases of clear misuse out of more than 180,000 Podsters—less than one one-hundredth of a percent.
The CPSC makes its own rules, enforces those rules against businesses and their products, and can prosecute them within the confines of their own offices instead of in federal court. That’s exactly what happened to Leachco.
The threat this poses to the rule of law and individual liberty is obvious: Government officials write the rules (legislative) that they enforce (executive) and try those who violate them before their own judges (judicial).
Unfortunately, this is exactly what has become of much of the federal government. The administrative state is a hodgepodge of powerful departments, agencies, and offices filled with commissioners, board members, and other bureaucrats who wield much more than merely executive power.
With broad congressional mandates, these agencies have vast discretion to write the rules and regulations that carry the force of law, and many of them have their own in-house tribunals where they can try individuals who violate these rules.
These growing powers and the unconstitutional removal protections that keep many officials in office across multiple presidential administrations lead to a feeling among these public servants that their work, their position, and their powers are so vital as to come before anything else, even the separation of powers.
If you exercise significant executive power, then you should serve at the pleasure of the president. That’s what the Constitution, the separation of powers, and the rule of law require.
The executive power of the CPSC and its commissioners is clear as day. The agency enforces 17 federal consumer-product safety laws, adopts rules and regulations for 163 categories of products and substances, and casts a large shadow over $1.6 trillion in consumer products.
But the CPSC, other independent agencies, and the officials who run them operate beyond the separation of powers. What former Commissioner Trumka has in mind is a government of men, not of laws.
