This morning the Supreme Court granted certiorari in United States v. Arthrex, in which the Supreme Court will consider the constitutionality of administrative patent judges at the Patent & Trademark Office (PTO), adding another important Appointments Clause case to the Court’s docket for the term.
Under current law, administrative patent judges are appointed by the Secretary of Commerce. In a constitutional challenge to this arrangement, the U.S. Court of Appeals for the Federal Circuit concluded that, under existing precedent, administrative patent judges are principal officers, and that therefore their appointment by the Secretary of Commerce is unconstitutional.
In Arthrex, the Court accepted certiorari to consider two questions:
- Whether, for purposes of the Appointments Clause, U.S. Const. Art. II, § 2, Cl. 2, administrative patent judges of the U.S. Patent and Trademark Office are principal officers who must be appointed by the President with the Senate’s advice and consent, or “inferior Officers” whose appointment Congress has permissibly vested in a department head.
- Whether, if administrative patent judges are principal officers, the court of appeals properly cured any Appointments Clause defect in the current statutory scheme prospectively by severing the application of 5 U.S.C. 7513(a) to those judges.
The first question is fairly straightforward, and I would not be at all surprised to see the Court affirm the Federal Circuit here. The second question is more difficult. As with Collins v. Mnuchin, another separation of powers case before the Supreme Court this term, the remedial question is arguably the most important aspect of the case.
Over at Notice & Comment (an absolutely essential resource on administrative law), Chris Walker explains why and how Congress could quickly and simply cure the constitutional infirmity here.
If I had to make a prediction, I think the Supreme Court will agree with the Federal Circuit’s formalist approach to the Appointments Clause issue. But I have no confidence they will agree that the remedy (to make the administrative patent judges removable at will) cures the constitutional defect. Perhaps more importantly, that remedy, as a policy matter, is awful. It increases constitutional tensions in agency adjudication between the decisional independence of administrative judges and the political control of agency adjudication. I’ve written more about those constitutional tensions here.
Ultimately, I hope the Supreme Court doesn’t have to figure out the remedy. Congress should act. And the legislative fix is simple: amend the Patent Act to give the agency head final decisionmaking authority and reinstate the modest tenure protections.
There is another constitutional issue in the background of Arthrex—whether administrative judges (in the PTO or elsewhere) must be removable at will—but as Chris Walker notes, there is no need for the justices to reach this question here. It is likely to reach One First Street soon enough.
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