In this compelling episode of Unwritten Law, NCLA’s John Vecchione is joined by litigation counsel Kara Rollins to discuss the unprecedented turmoil at the Consumer Product Safety Commission (CPSC). Following President Trump’s firing of three Democratic commissioners, a dramatic court battle erupted, spotlighting the controversial Humphrey’s Executor precedent and sparking an existential debate about the independence and accountability of federal agencies. Kara and John delve into the explosive details of the Dreamland Baby v. CPSC case, the reinstatement controversy, and why this litigation may force the Supreme Court to clarify—or overturn—the longstanding limits on presidential removal power.

Key topics: Humphrey’s Executor, independent agencies, unitary executive, CPSC litigation, separation of powers, and recent administrative-law upheavals.

Mark Chenoweth: If you think that unwritten law doesn’t affect you, think again. Whether you’re a business owner, a professional, or just an average citizen, you are unknowingly going to fall under vague and unofficial rules. When bureaucrats act like lawmakers, they’re really restricting your liberty without the consent of the governed.

John Vecchione: Welcome to Unwritten Law with John Vecchione and Mark Chenoweth. But Mark Chenoweth isn’t here today. Instead, I’m joined by my colleague, Kara Rollins. Kara, welcome to the program.

Kara Rollins: Thanks for having me.

John Vecchione: We have a case here at NCLA called Dreamland Baby.

Kara Rollins: Dreamland Baby.

John Vecchione: Versus CPSC. I wanted to say Trumka because that’s where we’re going to go. Tell us about Dreamland first.

Kara Rollins: So, we’ve talked about this on the show before. Our client, Dreamland Baby, produces weighted infant sleep sacks. These are sweet swaddles that have weight put throughout them in a quilted fabric. It sort of helps lull the baby and settles them. Our client actually invented this for her own child. Then, did prototypes and shared them with friends and family. Everybody loves it. Eventually, she makes it onto – what’s that investor show? Shark Tank.

John Vecchione: Shark Tank.

Kara Rollins: The thing takes off. She’s not the only sort of company out there. Dreamland. There’s others in the market. But Dreamland and another company make up pretty much most of the market share for this particular type of product. The Consumer Product Safety Commission, which we’ve talked about before, has general sort of regulatory power over consumer products, including infant and child goods, generally speaking. Back about a year ago, they were having their sort of annual priorities hearing. Commissioner Trumka tried to get a ballot initiative on to start a mandatory rule making to regulate infant weighted sleep products including Dreamland’s products ultimately.

John Vecchione: He won the vote, huh?

Kara Rollins: No. He lost the vote.

John Vecchione: Oh, here we go.

Kara Rollins: This is the thing about the CPSC is like, look, if we’re going to have safe baby products – I’m a mom myself – I want to make sure that the people that are making those decisions are doing it based on facts and data not vibes. What’s happening in this case is regulation buy vibes. We think these are bad. Therefore, we should regulate them. That’s at least sort of Commissioner Trumka’ s position.

John Vecchione: Well, not everyone thinks they’re bad. Trumka thinks they’re bad.

Kara Rollins: Yeah. Thinks they’re bad.

John Vecchione: So, what does he do? This is the question.

John Vecchione: How does do it?

Kara Rollins: He sends them to the retailers. Well, he makes them publicly. He makes them on Twitter. He makes videos. He does this whole thing. But he sends them to retailers and says stop selling these. They kill babies.

John Vecchione: What letterhead does he use?

Kara Rollins: CPSC’s letterhead. So, what is left with this general impression because he makes this statement. NIH, CDC, and CPSC are all in accord on this. He makes a whole bunch of crazy statements. They lead to lower blood saturation. They damage infant brains. All this stuff. Stuff that is completely unsupported by anything other than his own speculation.

John Vecchione: It looks like an official CPCS thing.

Kara Rollins: It looks like CPSC thought about this. That it recognized that these products were dangerous. That it had gone through some of the basic determinations it does for products.

John Vecchione: And done the votes and all that kind of thing.

Kara Rollins: None of that happened because CPSC admitted back in that November hearing they didn’t have data to support a mandatory rule making. IE, there are not enough instances showing that these products are dangerous. They later went and did a deep dive of the data. This is last summer. They looked at infant sleep blankets, wearable sleep blankets. This is just swaddles. Right. This is just the fancy word for infant swaddles that you zip your baby up into or Velcro them in. However they go. They found 160 some odd cases of incidents across all infant swaddles, not just the weighted ones.

When they specifically broke out the weighted ones, what they find is what we typically find in infant products. If there is an incident and also has other unsafe sleep factors combined, this is not being in bed, not being alone, having loose blankets, pillows, bottle props. What have you. Yet, he still seems to think that there’s danger when the CPSC’s own data cannot support a mandatory rule making.

John Vecchione: Now, our case. Where’s our case? Where’s Dreamland Baby?

Kara Rollins: So, we filed last November, I believe, in the District Court of D. C. In an unusual maneuver, almost immediately, we were brought into settlement agreements with the government. Those settlement agreements have since failed. We’ll talk a little bit why I think maybe –

John Vecchione: Let’s not do the settlement agreements. But where does the case stand?

Kara Rollins: Well, now, we have to file our response to the motion to dismiss because we’ve been trying to settle this case for the past several months. But as we’re going to talk, chaos has ensued in the interim.

John Vecchione: That’s where I’m going on this. Our case is in the midst of motion to dismiss. We’re going on about it. But what happens? There was a change in the election. Trump gets in. What does he do?

Kara Rollins: So, up until May 8th/May 9th of this year, to my knowledge, the CPSC was the only major commission agency that still had a majority of Democratic commissioners. It was a 3/2 Democrat appointed commission. Which means that they are not aligned with the President. Right. There’s been a change in government. This is like the one thing that courts always talk about. It’s like if you don’t like what’s going on, there’s elections. Okay. An election happened. Yet, these commissioners are still in place. So, come May 8th/May 9th, Trump fires the three Democrat appointees.

John Vecchione: They, of course, went on to the private sector.

Kara Rollins: No.

John Vecchione: What did they do?

Kara Rollins: Which they could have. You know this, most commissioners just go on to the private sector and go on with their lives. But no. In this instance, they sued to be reinstated in the District of Maryland.

John Vecchione: What’s their theory?

Kara Rollins: Their theory is they are protected by Humphrey’s executor. Right. We’ve talked about this a lot on the program.

John Vecchione: Let me interject here. Basically, they say they have a term of years. That they are not fireable by the President because Congress has set up the CPSC to be bi-partisan and to not be subject to the President. But that falls afoul of the unitary executive, separation of powers. It is only hanging on by its fingernails through Humphrey’s executor, which is an anti-new deal decision from the ‘30s before the switch in time where they didn’t want Roosevelt having all those powers. So, they said, well, for the FTC, because it’s quasi-judicial, quasi-legislative, and it doesn’t really have any power, we’re going to let these guys stay.

Kara Rollins: It doesn’t have executive power.

John Vecchione: It doesn’t have executive power. So whether Roosevelt wants to fire them or not, he can’t fire them. Well, this has caused a lot of litigation. Many people feel that’s going to fall. I have been of the opinion that it won’t fully fall until an FTC case gets there. But this one is pretty wild. We now have three of them. They go to Maryland. As we may know, Maryland is a jurisdiction that now, subsequent of this, Trump has sued all the judges in the Maryland District Courts.

Kara Rollins: For different reasons. But still, the thrust is still there if you want a feel for that district.

John Vecchione: Suing all the judges. Right. What happens here?

Kara Rollins: I want to take back on one technical point from Humphrey’s. Mark would be mad if we didn’t make this. In Humphrey’s, aside from the fact that he had died, that’s why it’s executor.

John Vecchione: Yes.

Kara Rollins: You don’t get reinstatement if you’re fired.

John Vecchione: He wanted money.

Kara Rollins: You get money. This is critical. This goes to the relief and the remedy that gets order by the district court. So, they go to the district court. They file a TRO, a preliminary injunction. Then, they have a first hearing. Then, they decide they’re going to move forward on summary judgment essentially. This thing gets fast tracked. It’s briefed and argued by June 6th. I think June 13th is when the court’s decision comes out. What the court says is we can reinstate these. We can join the acting chair.

[Crosstalk]

John Vecchione: Not only can’t Trump fire them, but I’m going to put them back in place.

Kara Rollins: He does sort of a funky way of doing this. He doesn’t directly reinstate them. He permanently joins the OMB director and the acting chair and others from stopping them from living out their commissioner lives. Right. Doing commissioner stuff. It’s almost like the district court recognized, I think there might be language in the opinions to this fact, recognized that he cannot reinstate them. Right. There is no power to do that. But he’s like I can do this back door thing that leads to the same affect. So, what happens? My favorite line, John, you’re a Game of Thrones guy too.

Chaos is a ladder. That ladder, I think, is leading directly from the CPSC’s headquarter to the Supreme Court for cert. I absolutely believe this is the case that’s going to cert because the facts are unhinged at this point.

John Vecchione: Well, hang on. We haven’t gotten there yet. All right. So, they go back. Of course, these three commissioners, they keep their heads down. Right. They don’t do anything controversial now that they’re back.

Kara Rollins: Let’s go back to the district court opinion first. I forget when this is. It might be between when the firings occur and the court rules. But the Supreme Court issues an order in a case called Wilcox. It’s an administrative stay of a lower court’s permanent injunction – this is going to be important here – for reinstating I think an NLRB member and something else. What the court said is we’re not going to let that happen this time. It’s an administrative stay. Stops administrative chaos while we figure out the legal merits of this case. Right.

So, those commissioners were not reinstated. They’re not in their offices. The district court here mentions Wilcox twice, including a footnote where if I remember correctly, the court incorrectly states that Wilcox was a preliminary injunction. It isn’t. It's a permanent injunction. It as the exact same state that is currently here. Right. It gets decided on summary judgement.

John Vecchione: Trying to say that Wilcox didn’t cover this case, I thought, was disingenuous. I don’t usually say that about court cases. But I thought it was ridiculous. Nonetheless, the judge makes his order. He sends everybody back into their jobs. Then, I was saying, of course, they behaved innocuously. Right?

Kara Rollins: I was going to say if these are my clients, my advice is you go in. You smile at people. You send some emails. You toe the line. There’s no line toeing here. Again, chaos is a ladder. What do they do? They go in. They immediately hijack the agenda committee. Start putting on emergency agenda items to effectively undo everything that’s been done in the past month by the two commissioners. Mind you, there’s no carve outs. These are cart blanche. There are no carve outs for things like recalls and other safety affects. They were just like everything they did was unlawful because we were unlawfully fired. See injunction.

So, they go and undo just a month’s worth of work by the commission. My personal favorite is then when they’re going for the motion of administrative stay or stay of the court’s order, the government has to file this affidavit or declaration from, I think it’s the general counsel of the CPSC or the acting general counsel. The facts are just wild. This wasn’t like sitting and twiddling your thumbs. This was a wholesale overturn of everything that’s said. As he writes in the declaration or affidavit. The reinstated commissioner has invalidated almost every action of the CPSC prior to their reinstatement.

Calling into question the legal validity of the important safety work of the commission reversing work to effectuate many of President Trump’s lawful executive orders regarding the operations of federal agencies and undermining CPSC’s vital mission on behalf of Americans. This gets attached to that declaration. Commissioner Trumka, we’ve talked about before, he’s the one who pauses this idea we’re going to have these emergency meetings. We’re going to hijack the agenda committee. He says to all, in an email chain, to everybody on the agenda planning committee.

This is several members across the commission as well as members of commissioner’s staff in this whole thing. “To the staff of the agenda planning committee. Let me be clear. You are instructed to attend the meeting as usual. If you choose to ignore the directive of the commission, I suggest you read the court order and decide whether you want to personally violate it". This is giving I’m the captain now vibes. This is the entire thing that Wilcox was meant to stop. They’re just blowing through this completely. That’s why I think this is the case that ultimately gets granted cert.

John Vecchione: The key thing here is now the President of the United States has fired these folks. The CPSC is now being run like a pirate brig away from the actual admiralty, if you will. If I may take the Master and Commander view. The fact is the Interior Executive could not be traduced more thoroughly than what we’re seeing. Trumka’s father was the head of Teamsters and was also some bull in a China shop type guy. He’s now come through here. But of course, this district court case, it’s such an outlier. It’s so outrageous. The fourth circuit must have stepped in and fixed this.

Kara Rollins: One would think. Somehow, they managed to get a panel that goes this is okay. Wilcox doesn’t mean what Wilcox says. I think that that’s the most outrageous. That’s sort of the concurring. There’s no sort of majority opinion on the stay order. That gets released on maybe Monday. All of this is going pretty quick. But immediately, this is no surprise. Typically, you wait for the appellate court to answer before you go running to Supreme Court. Immediately, the Solicitor General files a stay, an application for stay, with the Supreme Court.

John Vecchione: Goes to Chief Judge Roberts in the fourth, right?

Kara Rollins: Yes. Chief Justice Roberts gets them from the fourth. Wilcox actually also because it came out of the D.C. circuit goes directly to Chief Justice Roberts. So, he is fully apprised of sort of how these things play out. I want to read a line from the SG’s administrative say. They write the district court below chose different path. One that has sown chaos and disfunction of the Consumer Products Safety Commission. That warrants this court’s immediate intervention.

They then go on to point out aspects of the disruption, but critically, as I said, that the district court seemed to think Wilcox was in a different procedural posture than it was. But this is to some extent on all fours. By the way, the chaos that the court was concerned about when it issued the stay in Wilcox has happened times three.

John Vecchione: Yes, here. So, Roberts ordered the Trumka and is it Burns?

Kara Rollins: It’s Boyle and Owen Cyric, yeah. The lead case name is Trump vs Boyle.

John Vecchione: They told them to respond by July 11th. So, happy Fourth to all their lawyers. We’ll see what happens. I have to say I’m hosting this. I’m thinking of Johnny Carson. Weird, wild stuff here. You know, like that. This really is. I mean, this is stuff you wouldn’t have even seen in the ninth circuit in the old days. The willfulness of this is unbelievable to me. They do say Humphrey’s executor. They are bound by Humphrey’s executor, but we just saw with Casa vs Trump the remedies matter. Right. Remedies matter.

Kara Rollins: Yeah. Even if they’re bound, the remedy is never reinstatement. Right. That’s just not an available remedy. They can get paid out. The government can cut checks to these people for the remainders of their terms. I think that would be a perfectly permissible remedy. But one of the things I think the Department of Justice has been arguing very well in all of these cases is there’s two things. One, Humphrey’s should probably be overturned. But this is an argument. This following argument is something NCLA has been making.

John Vecchione: Ellie McNary has a very good article on this as well. I think that what we’re going to see is the court is going to have to do something about this. I think you’re absolutely right. We’ll be looking on July 11th for the response. But I think the court’s going to move fast on this even on their vacation. I can’t imagine this lasts through the summer. So, Kara, thank you for being here. Thank you for going through all these cases. I think that once this sort of Mutiny on the Bounty of the CPSC is taken care of, we will have you back. Thanks for being here. Thank you all for listening to Unwritten Law.

Mark Chenoweth: As we like to say here at NCLA, let judges judge. Let legislators legislate. Stop bureaucrats from doing either.

[End of Audio]

Duration: 20 minutes