United States v. Arthrex, Inc

To ensure accountability, powerful government officials must be appointed by the President and confirmed by the Senate.

Amicus Briefs > Separation of Powers > United States v. Arthrex, Inc

Administrative Patent Judges (APJs) hear administrative trials concerning patent disputes and, in the process, exercise powers similar to those of federal judges. APJs may issue subpoenas to require testimony and documentation, rule on the parties’ evidentiary arguments, and issue thousands of final decisions each year—decisions that bind the private parties who appear before them. Because of the scope of their powers, APJs should be appointed to office (like federal judges) only through Presidential nomination and Senate confirmation.

In our friend-of-the-court brief, PLF argues that the Supreme Court should hold that under the Constitution’s Appointments Clause, APJs are “superior” officers who cannot take office until they are nominated by the President and confirmed by the Senate. 

  • While often overlooked, the Appointments Clause is a key component of the Constitution’s Separation of Powers. It requires cooperation between the President and the Senate, and it frustrates attempts to give powerful posts to cronies or those unworthy to hold high positions. It also ensures that the President and the Senate are accountable for the appointment of high officers—encouraging thoughtful consideration. 
  • The Appointments Clause also helps the President and Congress check and balance each other. Congress may create executive-branch agencies and establish high offices to run those agencies. However, Congress cannot prevent the President from having a say in the appointment of those who will hold those offices and oversee those agencies. 
  • According to the Appointments Clause, the President “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.” 
  • Therefore, the default manner for appointing all federal officers is presidential nomination and Senate confirmation. But Congress may “by Law” authorize the President alone, the Courts of Law, or the head of executive-branch departments to appoint “inferior” officers.  
  • The Supreme Court has not definitively determined the distinction between inferior and non-inferior officers.  
  • In Arthrex, the government contends that APJs are merely inferior officers who may be appointed without Senate confirmation. 

In its friend-of-the-court brief, PLF disagrees with the government’s position. 

  • PLF argues that the Appointments Clause contemplates three types of officers 
  • Principal Officers (the Heads of Departments) 
  • Superior Officers (officials who, although not heading departments, exercise significant powers) 
  • Inferior Officers (those who perform less important, even ministerial, responsibilities) 
  • PLF does not claim that APJs are Principal Officers—they do not head any departments: APJs are officers in the U.S. Patent and Trademark Office, which is itself an agency in the Commerce Department. 
  • Nonetheless, because APJs exercise such significant power, PLF asserts, they cannot be merely inferior officers. PLF identifies two factors that the Supreme Court should use to distinguish superior and subordinate officers: 
  • Broad discretion in carrying out responsibilities of high importance, and  
  • The power to issue final decisions on behalf of the government. 
  • Much like federal judges—who are superior officers requiring Presidential nomination and Senate confirmation—APJs (1) exercise broad discretion in ruling on evidentiary disputes, compelling testimony, etc., and (2) APJs issue final decisions following administrative trials. 
  • Therefore, the Supreme Court should hold that APJs are Superior Officers who cannot take office without Presidential nomination and Senate confirmation. 

PLF regularly participates as amicus curiae, or friend of the court, in cases brought by others. This supplements our direct representation cases by providing judges with unique, strategic, and helpful arguments to consider when crafting their opinions. 

 

Related Documents

PLF regularly participates as amicus curiae, or friend of the court, in cases brought by others. This supplements our direct representation cases by providing judges with unique, strategic, and helpful arguments to consider when crafting their opinions in related cases

United States v. Arthrex, Inc - PLF AC Merits Brief

December 29, 2020 Download

What’s at stake?

  • At stake is holding the government accountable for its actions. Elected officials—the President and Senators—must take their responsibilities to staff the government with powerful officials seriously.
  • The increasingly powerful Administrative State, which “wields vast power and touches almost every aspect of daily life,” must be kept accountable to the people through their elected officials.

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