Labor & Employment Law Daily Wrap Up, PUBLIC EMPLOYEES—U.S.: Supreme Court stays order that had reinstated CPSC members fired by Trump, (Jul 24, 2025)
Organizations Mentioned:AFL-CIO | National Labor Relations Board | Public Citizen Litigation Group | U.S. Department of Justice
By Jason Albright, J.D.
“Once again,” said Justice Kagan in her dissent, “this Court uses its emergency docket to destroy the independence of an independent agency, as established by Congress.”
Staying a federal district court’s permanent injunction that ordered the reinstatement of three Democratic members of the U.S. Consumer Product Safety Commission (CPSC)—including Richard Trumka Jr.—who were fired without cause in May 2025 by President Trump, the U.S. Supreme Court found that the Trump administration’s application “is squarely controlled by Trump v. Wilcox, 605 U. S. ___ (2025),” which “reflected ‘our judgment that the Government faces greater risk of harm from an order allowing a removed officer to continue exercising the executive power than a wrongfully removed officer faces from being unable to perform her statutory duty.” Justice Kavanaugh, writing separately, concurred. In a dissent joined by Justices Sotomayor and Jackson, Justice Kagan argued that “[t]he majority has acted on the emergency docket—with ‘little time, scant briefing, and no argument’—to override Congress’s decisions about how to structure administrative agencies so that they can perform their prescribed duties” (Trump v. Boyle, No. 25A11 (U.S. July 23, 2025)).
CPSC and for-cause removal requirements. Established by Congress in 1972 as an independent agency, the CPSC consists of five Commissioners who are nominated by the President and confirmed by the Senate to serve staggered, seven-year terms. No more than three commissioners can be affiliated with the same political party, and pursuant to the Consumer Product Safety Act (CPSA), they can be removed prior to the expiration of their terms only for “neglect of duty or malfeasance in office.”
Removals. All three Commissioners in the case were nominated by President Biden, confirmed by the Senate, and never accused of neglect of duty or malfeasance in office. Nonetheless, on May 8, two of them received an email stating that “On behalf of President Donald J. Trump, I am writing to inform you that your position on the Consumer Product Safety Commission is terminated effective immediately. Thank you for your service.”
One of the two, Richard Trumka Jr., is the son of the late Richard Trumka, who served as president of the AFL-CIO from September 2009 until his death in August 2021.
The following day, the third Democratic Commissioner received a phone call informing him that Trump had terminated him from his role as a CPSC Commissioner as well.
Lawsuit. Arguing that the government acted ultra vires and in violation of the CPSA by removing them without cause and taking action to effectuate the purported terminations, the three Commissioners sued in federal district court in Maryland, seeking declaratory and injunctive relief.
Decision below. The district court ultimately issued a declaratory judgment and permanent injunction, reinstating the three to their positions.
Stay. The administration then applied for an emergency stay, which the Court granted in a brief, per curiam opinion.
Wilcox controlling. The High Court noted that the stay it issued in Trump v. Wilcox, 605 U.S. ___ (2025), “reflected ‘our judgment that the Government faces greater risk of harm from an order allowing a removed officer to continue exercising the executive power than a wrongfully removed officer faces from being unable to perform her statutory duty.’” “The same,” the Court said, “is true on the facts presented here, where the Consumer Product Safety Commission exercises executive power in a similar manner as the National Labor Relations Board, and the case does not otherwise differ from Wilcox in any pertinent respect.”
The June 13, 2025, order of the Maryland federal district court was thus stayed pending disposition of the government’s appeal to the Fourth Circuit, as well as that of a petition for certiorari, “if such a writ is timely sought.”
Concurrence. In his concurrence, Justice Kavanaugh wrote to say that, in addition to granting a stay, he would have granted certiorari before judgment in this case or in Wilcox.
Dissent and will of Congress. In her dissent, joined by Justices Sotomayor and Jackson, Justice Kagan argued that “[t]he majority has acted on the emergency docket—with ‘little time, scant briefing, and no argument’—to override Congress’s decisions about how to structure administrative agencies so that they can perform their prescribed duties.”
“Wilcox itself,” said Kagan, “was minimally (and, as I have previously shown, poorly) explained.” “The majority rejects Congress’s design of a whole class of agencies (except, as Wilcox somehow has it, the Federal Reserve) by layering nothing on nothing.”
Piecemeal transfer of authority. “The result—an increase of executive power at the expense of legislative authority—does not stand alone,” according to the dissent. “Just last week, this Court granted another stay allowing the President to ignore a federal statute. That decision permitted the President to push forward in dismantling the Department of Education, even though Congress created that agency and tasked it with performing vital functions.” See McMahon v. New York, 606 U.S. ___ (2025).
“By means of such actions” as the majority’s here, warned Kagan, “this Court may facilitate the permanent transfer of authority, piece by piece by piece, from one branch of Government to another.”
The case is No. 25A11.
Judge: Per curiam.
Attorneys: D. John Sauer, U.S. Department of Justice, for Donald J. Trump. Nicolas Anthony Sansone (Public Citizen Litigation Group) for Mary Boyle.
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