Conservatives Test Whether the Supreme Court Will Do Literally Anything They Want

If you are in the business of seeking out public information, it can be frustrating when an agency denies your public records request or refuses to waive any fees it might require before handing over documents. 

It’s normal to call up the agency and say, Hey! This is important! If you’re a journalist, you might write a story about how the government is blocking access to information the public urgently needs. You might even sue to try to get the records released.

If you work at a right-wing think tank — say, an organization financed by Leonard Leo, the dark money master who assembled the Supreme Court’s conservative supermajority — you might evidently try going nuclear: using some denied records requests as a vehicle to urge the high court to declare that a federal agency’s structure is unconstitutional, because its director cannot be fired by the president.

That’s what is happening in Consumers’ Research v. Consumer Product Safety Commission, a case that conservatives wish to put before the Supreme Court this term. The petitioners in the case are Consumers’ Research, a conservative think tank bankrolled by Leo, and By Two L.P., an “educational consulting” company in Texas with little public footprint. 

It’s not clear why the husband and wife duo behind By Two, who appear to have run a side business breeding Havanese puppies, would necessarily be interested in the independence of federal agencies. The original complaint says they “are parents of young children who use and play with products regulated by the commission,” adding: “As parents, they have an interest in ensuring that the products used by their children do not pose unreasonable risks of injury.” 

Their participation in the case likely helped ensure the lawsuit went before a conservative federal judge in Texas, before heading to the conservative Fifth Circuit Court of Appeals. 

Consumers’ Research and By Two did not respond to Rolling Stone’s requests for comment.
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The case is part of a broader effort by conservatives to end the independence of regulatory agencies, utilizing their supermajority on the Supreme Court. Leo, who helped Donald Trump select and install three of the high court’s six conservative justices, has urged wealthy conservative donors to back efforts to “flood the zone with cases that challenge misuse of the Constitution by the administrative state.”

Ultimately, the case feels like a test for Leo’s conservative allies on the Supreme Court: Will they accept any vehicle, no matter the details, to advance their anti-regulatory crusade? 

Justices are scheduled to discuss the matter on Monday.

The effort from Consumers’ Research and By Two targets the independence of the U.S. Consumer Product Safety Commission (CPSC), which was created by Congress half a century ago to protect Americans from being injured or harmed by unsafe consumer products. 

Lawyers representing Consumers’ Research and By Two write that “scholars of the administrative state have branded the CPSC as the ‘most powerful federal regulatory agency ever created.’”

The CPSC is an independent agency. Its members are nominated by the president, and serve for seven-year terms. The president does not have the power to remove them, except for cause; conservatives wish to change that.

The commission’s work is vital: This month, the CPSC announced recalls on children’s rings that contain prohibited levels of lead and cadmium; kids garden tools coated with lead paint; an infant high chair that can both trap a baby and let them fall out; a desk lamp that can overheat and catch fire; a spa pump that can overheat and ignite; and a bed prone to collapsing while people sleep on it. You get the picture. 
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Consumers’ Research and By Two do not make products that are regulated by the CPSC. Rather, they assert the right to challenge the CPSC’s independence based on how it handled public records requests they filed under the Freedom of Information Act, or FOIA. Effectively, they argue they are victims of “FOIA procedures administered by an agency that is unconstitutionally insulated from the president.”

When the lawsuit began, Consumers’ Research had filed 25 FOIA requests with the CPSC, and By Two had filed 50 requests with the CPSC. Some of the requests sought records of all rules and safety standards relating to products like infant high chairs, pacifiers, dolls, rattles, baby carriers, car seats, and baby floats — going back three decades. The CPSC denied some of the FOIA requests and requests for fee waivers.

The idea these FOIA rejections offer sufficient basis for this effort to end the CPSC’s independence, is, on its face, laughable.

President Joe Biden’s solicitor general, Elizabeth Prelogar, explained in a recent filing why their argument is both ridiculous and troubling.

“In short, petitioners’ mere submission of FOIA requests to the commission does not give them Article III standing to challenge the commissioners’ removal protection,” she wrote. “Otherwise, any individual or entity could manufacture standing to litigate any separation-of-powers issue against any agency simply by asserting an intent to make FOIA requests.”

She further noted that Consumers’ Research and By Two “are not subject to the commission’s regulatory, enforcement, or adjudicatory authority,” adding that “even if petitioners’ intention to file FOIA requests were somehow sufficient to satisfy Article III, that is at best a threadbare and attenuated personal stake in the important constitutional question petitioners ask the court to decide.”

While the basis for the lawsuit is absurd, the lawyers on the case are no joke. The legal team is made up of high-powered lawyers from Jones Day, including former Trump White House Counsel Don McGahn.

McGahn serves on the board of the influential conservative legal network, the Federalist Society — alongside Leo, a longtime executive at the society who is now its co-chair.
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Consumers’ Research and By Two have received backing from 16 Republican attorneys general; Leo’s dark money network has long been the top financier of the Republican Attorneys General Association, which helps elect GOP law enforcement chiefs. Leo’s network has funded several nonprofits supporting the petitioners, including: Advancing American Freedom, which is led by former Vice President Mike Pence; Americans for Limited Government; and the New Civil Liberties Alliance.

Speaking in March about the Supreme Court he helped assemble, Leo said, “We have a great Overton window in the next couple of decades to really try to create a free society. And I think we should take full advantage of it.”