J. Scott Applewhite/AP Photo
Associate Justice Neil Gorsuch, President Donald Trump’s first appointee to the high court, speaks in his chambers at the Supreme Court in Washington, September 4, 2019.
The Washington Post wished us a merry Christmas this year by reporting on the 1,600 cases of children ingesting high-powered rare-earth magnets used in desk toys, up sixfold from just three years ago. Why has magnet ingestion, which can lead to intestinal shredding, become an epidemic of late? Because the Tenth Circuit Court of Appeals ruled in 2016 that the Consumer Product Safety Commission (CPSC) overreached by issuing an effective ban on the desk toys.
One of the three judges who heard that case and ruled for the toy industry, leading three years later to a surge in children eating powerful magnets and ripping up their insides, is Neil Gorsuch, President Trump’s first pick for the U.S. Supreme Court. It’s a cautionary tale for what happens when judges decide to insert themselves into regulatory policymaking, and it’s poised to get much, much worse.
Zen Magnets v. Consumer Product Safety Commission, heard by Gorsuch and two other federal judges, came seven years after the rise of magnet sets as a popular desk toy. Users could model the magnets into different shapes. But if the tiny magnets came loose from the sets, children, being children, will put them in their mouths. And because the magnets were unusually powerful, ingesting as little as two of them would cause them to pull together, generating serious intestinal injuries.
The CPSC had a safety standard in place for children’s magnet toys, but these desk sets, marketed to adults, weren’t covered under the rule. In 2011, the agency issued a public warning about magnet sets, and in 2012 it passed mandatory regulations that prohibited the type of small magnets used in them, citing the public-health risk. Nearly all companies selling magnet sets complied, but Zen Magnets resisted.
The CPSC took Zen Magnets to court to force a recall of their products, and this eventually came before the Gorsuch-led Tenth Circuit panel. Gorsuch did not write the majority opinion in the case, but provided the deciding vote for the 2-1 majority. According to the ruling by Judge David Ebel, the agency hadn’t adequately analyzed how much consumers were put at risk from magnet sets, questioning the data that 900 children would be saved from magnet ingestion annually under the rule. The ruling also argued that the CPSC failed to address “the public’s need” for magnet sets, because teachers could theoretically use the toys to explain physics and geometry concepts.
In other words, the ruling hinged on cost-benefit analysis, that trusted friend to deregulation. Gorsuch and his colleague tried to line up, in this case, the cost of children sustaining intestinal shredding from eating magnets with the benefit of a desk toy that someone might someday use to explain how magnets work. We now see plainly the consequences.
The ruling left the CPSC unable to block magnet sets from hitting the market. The industry only needed to regulate itself through voluntary standards, which amount to written warnings and packaging changes, not alterations to the size and strength of the magnets. The head of Zen Magnets, Shihan Ou, admitted to The Washington Post that the magnet sets are “inherently dangerous.” But that hasn’t stopped him from selling them. And subsequently, magnet ingestions, in the space of a few years, jumped sixfold.
Voluntary industry standard-setting could become more of the norm if the courts continue to insert themselves into regulatory policymaking. An emerging theory called the “non-delegation doctrine” could prohibit Congress from deferring to regulatory agencies on various types of policy questions. Since this type of delegation has been standard for decades, it would effectively stall a massive number of regulations. Justice Brett Kavanaugh, in a short opinion released in November, asserted that barring congressional delegation to regulatory agencies on major policy questions “may warrant further consideration in future cases.”
In stating this, Kavanaugh referenced an opinion from this summer by Justice Neil Gorsuch in Gundy v. United States, which demanded reinstitution of the non-delegation doctrine. Justices Clarence Thomas, John Roberts, and Samuel Alito joined Gorsuch’s opinion; the only reason it’s not law today is that Kavanaugh wasn’t on the court when Gundy was heard, deadlocking the court and staving off the non-delegation doctrine for a moment. But Kavanaugh has clearly signaled the doctrine would have a majority on the Court whenever the justices received an applicable case.
That means, sometime soon—especially if Trump loses to a more regulatory-minded Democrat in 2020—the Supreme Court will follow Gorsuch’s lead and intervene to block federal agencies from doing their job. Until now, we didn’t have such stark evidence of what that would look like. Now we know—it means more children rushed to the emergency room for surgery to get magnets out of their intestines.
The administrative state isn’t optional. In its absence, the administration just moves into corporate executive suites, who worry more about profits and less about their product risks. The judiciary is poised to accelerate this transfer, and that leads down a bad path. A vote for politicians who place anti-regulatory zealots on the federal bench is a vote for more magnets eating away at the insides of children.
