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Friday, March 16, 2018

ANALYSIS/OPINION:

Personnel is policy.


When President Andrew Jackson failed to convince his Secretary of Treasury William Duane to withdraw funds from the hated Second Bank of the United States to deposit in private institutions, he fired him in favor of Attorney General Roger B. Taney, who did the dirty work with alacrity.

Like President Jackson’s Treasury Secretary, federal agencies characteristically enjoy vast discretion in executing their charter statutes. Members of Congress flee from enacting policy because terrified that some voter, somewhere, might be upset. The safest course is to delegate policy decisions to federal agencies and scream to high heavens in displays of bravado when they stumble. In other words, poltroonery, thy name is Congress.

Federal agency policies are thus determined more by leadership personnel than by unambiguous statutory directives—a government of men more than a government of law. Think of the dramatic changes in policy at the Consumer Finance Protection Agency, the Environmental Protection Agency, or the Department of Justice without the enactment or amendment of a single law. All that changed was leadership appointed by President Donald Trump replaced leadership appointed by President Barack Obama.

Mr. Trump, however, has unfinished personnel work to do at the little noted and soon forgotten Consumer Product Safety Commission (CPSC). It was born in 1972 as a child of congressional enthusiasm for schoolmarm government. Prior to the CPSC’s birth, the common law had created strict tort liability for any unreasonably dangerous or defective consumer product. The strict liability standard was enforced by juries drawn from a cross-section of the community. It worked. There was no epidemic of dangerous or defective consumer products that were causing hospitals to fill.

The CPSC, nevertheless, was endowed with authority to protect the public against unreasonable risk of injuries or death associated with consumer products. The CPSC was the very definition of redundancy. The common law of strict liability was already performing that task. The CPSC’s strongest claim to existence is that, over more than four decades, it has “contributed to an [indeterminate] decline in the rate of deaths and injuries [exhibiting some nexus] to a consumer product.” If the CPSC were abolished tomorrow, the public would be no more alarmed than it was when the Interstate Commerce Commission died in 1995 at age 108.

Deregulation was a major Trump campaign theme. It has been the hallmark of the first year of his presidency. But the 5-member CPSC has been an outlier because its leadership remains dominated by three Obama Democratic appointees: Marietta Robinson, Robert Adler, and Elliot F. Kaye. The sole Republican is Acting Chairman Ann Marie Buerkle, whose nomination as permanent Chairman has lingered in the Senate after a favorable report of the Committee on Commerce, Science, and Transportation more than five months ago. The CPSC is an independent agency whose members can be removed by the President before the expiration of their 7-year terms only for good cause.

While waiting for the terms of the CPSC Democrats to expire, President Trump should hammer Senate Majority Leader Mitch McConnell for an immediate confirmation vote on Ms. Buerkle’s nomination. Her confirmation as Chairman will open her seat for a second Trump appointee.

For Mr. Trump to dawdle on revamping the CPSC’s leadership and leave it in control of Obama appointees is to shoot himself in the foot.


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