If you are In the field of public information seeking, it can be frustrating when an agency denies your public records request or refuses to waive any fees you may request before turning over documents.
It's normal for you to call the agency and say, Hey! This is important! If you are a journalist, you might write a story about how the government is blocking access to information the public urgently needs. You can also file a lawsuit to try to release the records.
If you worked at a right-wing think tank — say, an organization funded by Leonard Leo, the dark money master who assembled the conservative majority on the Supreme Court — you clearly might try to go nuclear: using some rejected records requests as a way to get the Supreme Court to declare that the agency's structure Federalism is unconstitutional, because its director cannot be dismissed by the president.
This is what happens in Consumer Research v. Consumer Product Safety CommissionIt is an issue that conservatives want to bring before the Supreme Court this season. The petitioners in the case are Consumers' Research, a conservative think tank funded by Liu, and By Two LP, a Texas “education consulting” firm with little public influence.
It's not clear why the husband-and-wife duo behind By Two, who appear to be running a side business raising Havanese puppies, would care about 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 their children use do not pose unreasonable risks of injury.”
Their involvement in the case likely helped ensure that the lawsuit went before a conservative federal judge in Texas, before heading to the conservative Fifth Circuit Court of Appeals.
Did not respond to consumer research and By Two Rolling StoneRequests for comment.
The case is part of a broader effort by conservatives to end the independence of regulators, using their supermajority on the Supreme Court. Liu, who helped Donald Trump select and appoint three of the six conservative justices to the Supreme Court, urged wealthy conservative donors to support efforts to “flood the region with cases that challenge the abuse of the Constitution by the administrative state.”
Ultimately, the case appears to be a test for Liu's conservative allies on the Supreme Court: Will they accept any means, regardless of the details, to advance their anti-regulation campaign?
The justices are scheduled to discuss the matter on Monday.
The effort by the consumer think tank and By Two aims to establish the independence of the U.S. Consumer Product Safety Commission (CPSC), which Congress created half a century ago to protect Americans from being harmed or harmed by unsafe consumer products.
“Researchers at the Administrative State have described the Consumer Product Safety Commission as the most powerful federal regulatory agency ever created,” attorneys representing the Consumer Research Foundation and By Two wrote.
The Consumer Product Safety Commission is an independent agency. Its members are nominated by the President and serve for seven years. The president cannot dismiss them except for a reason; Conservatives want to change that.
The committee's work is vital: This month, the Consumer Product Safety Commission announced a recall of baby rings that contain banned levels of lead and cadmium; Children's garden tools covered in lead paint; A baby high chair that can hold the baby and let him fall; A desk lamp can get hot and catch fire; Spa pump can overheat and catch fire; The bed is prone to collapsing when people sleep on it. You get the picture.
Consumers' Research and By Two do not manufacture products regulated by the Consumer Product Safety Commission (CPSC). Instead, they assert the right to challenge the independence of the Consumer Product Safety Commission (CPSC) based on how it handles public records requests it makes under the Freedom of Information Act, or FOIA. Effectively, they claim to be victims of “FOIA proceedings administered by an agency unconstitutionally isolated from the president.”
When the lawsuit began, Consumer Research had filed 25 FOIA requests with the Consumer Product Safety Commission (CPSC), and By Two had filed 50 requests with the CPSC. Some requests asked for all the rules and safety standards related to products such as high chairs, pacifiers, dummies, rattles, baby carriers, car seats and baby floats – dating back three decades. The Consumer Product Safety Commission (CPSC) has denied some FOIA requests and fee waiver requests.
The idea that this FOIA rejection provides a sufficient basis for these efforts to end the independence of the Consumer Product Safety Commission is, on its face, laughable.
Elizabeth Prelogar, Joe Biden's general counsel, explained in a recent filing why their argument is both absurd and troubling.
“In short, the mere fact that petitioners submit FOIA requests to the Commission does not give them Article III standing to challenge commissioners’ protections from removal,” she wrote. “Otherwise, any An individual or entity can create standing for litigation any Separation of powers case v any The agency simply by confirming its intent to file FOIA requests.
She further noted that Consumer Research and By Two “are not subject to the Commission's regulatory, executive, or judicial authority,” adding that “even if petitioners' intent to file FOIA requests were somehow sufficient to satisfy Title III, that would be at best.” A threadbare and diluted personal stake in the important constitutional question on which the petitioners are asking the Court to decide.
While the basis of the lawsuit is ridiculous, the lawyers in this case are no joke. The legal team consists of high-ranking lawyers at the law firm Jones Day, including former Trump White House advisor Don McGahn.
McGahn serves on the board of directors of the influential conservative legal network, the Federalist Society — along with Liu, a longtime executive of the association and now its co-president.
Consumer Research and By Two received support from 16 Republican attorneys general. Liu's dark money network has long been a major funder of the Republican Attorneys General's Association, which helps elect GOP law enforcement chiefs. The Leo Network has funded several nonprofits supporting the petitioners, including: Advancing American Freedom, 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 form, Liu said: “We have a big window on Overton in the next two decades to try to create a free society. And I think we should take full advantage of it.”
