Amazon wants product safety regulator declared unconstitutional

Amazon is claiming the nation’s premier product safety agency is unconstitutional, deploying an argument that has found favor with the Trump administration as the company seeks to avoid responsibility for shipping dangerous products to consumers.

The giant retailer filed suit last week against the Consumer Product Safety Commission (CPSC), a federal agency with a 50-year history of protecting consumers from deadly cribs, refrigerators and garage doors and other potentially dangerous products.

Amazon is asking a federal court in Maryland to throw out the commission’s January order that the company is legally responsible for every harmful product sold on its site, such as defective hair dryers and carbon monoxide detectors.

Since 2021, the retailer has argued that it should not be considered a “distributor” of goods found in its online store from other companies that pay to list their items with Amazon. The company argues that it merely ships these goods for others – similar to UPS and FedEx – and should not be required to cooperate with the CPSC on recalls if those products are found to be unsafe.

The lawsuit goes further, saying the company shouldn’t have to comply with the January ruling of the commissioners, claiming they are illegally protected from being fired by the president. The company argues the commission’s structure violates the Constitution by blending judicial and executive powers.

“Amazon is suffering, and will continue to suffer, irreparable harm from being subjected to an order issued by an unconstitutionally structured agency,” the suit says.

Amazon and Elon Musk’s SpaceX also have filed lawsuits arguing that the National Labor Relations Board (NLRB), the agency charged with protecting workers’ right to unionize, is unconstitutional. Walmart and Kroger have brought such claims against the Federal Trade Commission, where President Donald Trump fired two Democratic commissioners this week.

Last month, Trump fired NLRB member Gwynne Wilcox and two members of the Equal Employment Opportunity Commission. Wilcox filed a lawsuit challenging her removal that is being heard in a federal appeals court. Ultimately, the question of whether regulators can be protected from removal by the president could be decided by the U.S. Supreme Court.

The Trump administration has indicated that it will not defend the 90-year-old legal precedent that protects some federal regulators from executive removal, known as Humphrey’s Executor, should it be challenged in court.

Over the past 10 years, conservative lawyers have increasingly raised these constitutional arguments, said Georgetown constitutional lawyer Victoria Nourse. So far, they have been hamstrung by legal precedent.

But “now that Trump has said, ‘I’m going to attack Humphrey’s Executor,’ it gives them new life to try and attack the agencies,” she said. Nourse described lawsuits like Amazon’s as “little fires being lit all over Washington.”

“What Trump wants and what the companies want is to get rid of all this regulation, period.”

Trump could more easily deliver on his promises to slash regulation if he gains the ability to fire whomever he wants and appoints business-friendly replacements, said Georgetown Law professor David Vladeck.

“You can smother an agency like the CPSC simply by putting in people who don’t care about the agency’s mission and wouldn’t go after companies like Amazon just because they’re selling products that might hurt people,” said Vladeck, a former director of the Bureau for Consumer Protection at the FTC.

Amazon has moved to exploit the Trump administration’s disruption of independent regulators. The company used Wilcox’s firing to argue that it shouldn’t have to recognize a successful union election at a Whole Foods store in Philadelphia and to try to delay a hearing in an unfair-labor-practice case brought by Amazon drivers in Palmdale, California.

“We have proactive measures in place to prevent unsafe products, and we continuously monitor the listings in our store,” Amazon spokesperson Juliana Karber said in an emailed statement. “If we discover an unsafe product available for sale, we address the issue immediately, and refine our processes.”

The company declined to comment on ongoing litigation.

The CPSC declined to comment on this story. Amazon founder Jeff Bezos owns the Washington Post.

Before Amazon challenged the constitutionality of the CPSC, litigants including a baby product company, a magnet company and a conservative blog all made the same argument in different suits, most of which failed.

The baby products company, Leachco, is represented by Pacific Legal. Oliver Dunford, who oversees the firm’s separation of powers division, said it is exciting that Amazon has thrown its weight behind arguments he has been making for years.

The goal of this work, Dunford told The Post, is “to limit each branch of government to its proper powers.”

“Amazon’s suit against the CPSC – particularly its argument that the CPSC unconstitutionally exercises the government’s legislative, executive, and judicial powers – will hopefully highlight what small businesses with limited resources face every day,” he said.

William Wallace, director of safety advocacy at Consumer Reports, a nonprofit organization that supports the CPSC’s mission, also finds Amazon’s entry into the fray notable.

“It’s striking to see a company associated with about 40 percent of U.S. retail e-commerce sales, which regularly touts its product safety bona fides, take direct aim at the agency charged with overseeing federal product safety laws,” he said.