White House, DOJ Actions May Pose Additional Challenges for CPSC

Last week, we wrote about the uncertain path before the U.S. Consumer Product Safety Commission (CPSC or the Commission) – and the companies that CPSC regulates – in light of recent Trump administration executive orders and pending vacancies among the commissioners. Since then, additional actions by the Trump administration further cloud the road ahead for CPSC. In particular, on February 11, President Trump issued another executive order (EO) titled, “Implementing the President’s ‘Department of Government Efficiency’ Workforce Optimization Initiative” that aims to further reduce the size of the federal government. On February 12, the Department of Justice (DOJ), through the Acting Solicitor General, sent a letter to Congress stating that DOJ has determined that the statutory tenure protections for members of CPSC and other multi-member regulatory commissions are “unconstitutional.”

“Workforce Optimization Initiative” Executive Order and Reductions in Force

The February 11 EO directs agencies, in coordination with the Office of Management and Budget and Elon Musk’s Department of Government Efficiency, to ensure “that each agency hire[s] no more than one employee for every four employees that depart.” On top of this shrinkage by attrition, the EO directs agency heads to “promptly undertake preparations to initiate large-scale reductions in force (RIFs).” The EO further instructs that agencies should prioritize for RIFs those “components and employees performing functions not mandated by statute or other law who are not typically designated as essential during a lapse in appropriations as provided in the Agency Contingency Plans on the Office of Management and Budget website.”

CPSC may be less affected because of the nature of the agency’s mission: the EO provides that both the four-to-one ratio and the RIF preparations “shall not apply to functions related to public safety, immigration, or law enforcement.” And there is an argument that all (or nearly all) of CPSC’s functions relate to public safety.

In particular, CPSC’s charter statute, the Consumer Product Safety Act (CPSA), was enacted to:

• Protect the public against unreasonable risks of injury associated with consumer products
• Assist consumers in evaluating the comparative safety of consumer products
• Develop uniform safety standards for consumer products and to minimize conflicting state and local regulations
• Promote research and investigation into the causes and prevention of product-related deaths, illnesses, and injuries

It remains to be seen how the administration will interpret the EO’s RIF provisions as applied to CPSC, as well as what actions CPSC leadership may take to comply with the EO. If CPSC experiences a significant reduction in its staffing on top of recent budget constraints, the agency may face difficulties maintaining the pace and scope of operations.

CPSC and Other Multi-Member Regulatory Commissions’ Leadership — Unconstitutional?

In recent years, various plaintiffs have challenged the structures of independent regulatory bodies where agency heads and commissioners are protected by statute from presidential removal. One such statute is the CPSA, which provides that “[a] member of the Commission may be removed by the President for neglect of duty or malfeasance in office but for no other cause.” These challenges have included cases brought against CPSC by both a public-interest research organization and a company facing CPSC administrative litigation seeking to compel a recall, each of which petitioned the Supreme Court for review. In each case, CPSC, through DOJ, successfully opposed Supreme Court review.

Similar challenges may now have a much easier path, as the Acting Solicitor General has written a letter informing Congress of DOJ’s new view “that certain for-cause removal provisions that apply to members of multi-member regulatory commissions are unconstitutional and that the Department will no longer defend [those provisions’] constitutionality.” DOJ’s letter expressly cites CPSC, along with the Federal Trade Commission and the National Labor Relations Board, as examples of such agencies. DOJ’s letter explains that, because “those commissions exercise substantial executive power, ” DOJ “intends to urge the Supreme Court to overrule [Humphrey’s Executor v. United States, 295 U.S. 602 (1935)], which prevents the President from adequately supervising principal officers in the Executive Branch who execute the laws on the President’s behalf.” The letter reflects President Trump’s position that he can terminate commissioners – including CPSC commissioners – at will.

The Arnold & Porter Consumer Product Safety team will be monitoring to see the extent to which DOJ’s position affects litigation challenging actions by CPSC and other independent regulatory agencies.

For questions about notification requirements under Section 15(b) of the CPSA, CPSC enforcement practices, or other product safety matters, please reach out to the authors of this post, who are part of Arnold & Porter’s leading Consumer Product Safety team.

© Arnold & Porter Kaye Scholer LLP 2025 All Rights Reserved. This Blog post is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.