Jurist: Accountability in the administrative state

The modern Administrative State “wields vast power and touches almost every aspect of daily life.” Ensuring accountability for the officials who exercise this vast power is no simple task. But the Supreme Court has the opportunity to improve what Madison called the “chain of dependence”—so that “those who are employed in the execution of the law will be in their proper situation;” the “lowest officers, the middle grade, and the highest, will depend, as they ought, on the President, and the President on the community.”

In the United States v. Arthrex, the Supreme Court will decide whether the Appointments Clause requires administrative patent judges (APJs) to be nominated by the President and confirmed by the Senate. The case arises from a patent dispute resolved by an APJ after an administrative trial that has “many of the usual trappings of litigation.” The APJ resolves discovery disputes, may authorize witnesses, issues subpoenas, considers briefing, and hears oral arguments. These powers are similar to powers exercised by federal judges, who themselves must be nominated by the President and confirmed by the Senate.

So, easy decision? It should be.

The Appointments Clause, generally ignored unless a president makes a Supreme Court nomination, is a critical component of the Constitution’s Separation of Powers, whose “ultimate purpose” is “to protect the liberty and security of the governed.” The Appointments Clause helps ensure, as Madison suggests, that those who execute power on behalf of the government are held accountable to the people through their elected officials. As the Supreme Court explained: “By requiring the joint participation of the President and the Senate, the Appointments Clause was designed to ensure public accountability for both the making of a bad appointment and the rejection of a good one.”

According to the Appointments Clause, ambassadors, other public ministers and consuls, supreme court justices, and other officers of the United States may take office only through Presidential nomination and Senate confirmation (the default mode for all officers), unless Congress “by Law” authorizes the President alone, Courts of Law, and Heads of Department to appoint “inferior officers.”

Currently, APJs are considered inferior officers appointable by the Secretary of Commerce (as Head of that Department). But the Supreme Court has not definitively distinguished between inferior and non-inferior officers. Indeed, the Court only recently determined that administrative law judges (ALJs) in the Securities and Exchange Commission—positions comparable to APJS—were even officers at all. ALJs had previously been hired like any other (non-officer) civil servant. But the Supreme Court correctly decided that the ALJs wield too much power to be “mere” employees. They are Officers of the United States who must be appointed through the Appointments Clause.

The Court was not asked to consider whether ALJs are inferior or non-inferior officers. That issue is squarely presented in Arthrex. In a friend-of-the-court brief, Pacific Legal Foundation argues that the Appointments Clause contemplates not two, but three types of officers: principal officers (the Heads of Departments); superior officers (officials who, although not heading departments, nonetheless exercise significant powers); and inferior officers (those who perform less-important, even ministerial, responsibilities). Under this framework, superior officers would include federal judges, the Solicitor General, Assistant Attorneys General, the FDA Commissioner—all of whom must be (and, under current law are) appointed by Presidential nomination and Senate confirmation. Only inferior officers may be appointed by the President alone, the Courts of Law, or the Heads of Departments.

Here, APJs are not principal officers—they do not head any department. The question thus becomes whether they are superior or inferior officers. The Supreme Court has noted that “the term ‘inferior officer’ connotes a relationship with some higher ranking officer or officers below the President.” As Justices Souter and Scalia pointed out, this is a necessary but not a sufficient condition to establish inferior-officer status. The federal government has thousands of officers below their respective Heads of Department who are not “inferior Officers of the United States,” officers like the superior officers identified above. Thus, an officer’s inferior rank—alone—is not dispositive. Otherwise, every officer in every Executive Branch department—except for the “Head” of each department—would be an inferior officer.

Therefore, to determine whether an officer is a superior or inferior officer, the Supreme Court must consider something else. This “something else” is the importance and scope of an officer’s responsibilities. Two factors are especially important here: whether an officer has broad discretion in carrying out responsibilities of high importance and whether the officer can issue final decisions on behalf of the government. APJs have both broad discretions—conducting administrative trials involving discovery disputes, decisions on issuing subpoenas, considering the parties’ briefs and oral arguments—and the power to issue the government’s final decisions—resolving patent disputes.

Indeed, as mentioned above, APJs’ powers are similar to those exercised by federal judges, particularly district court judges, who oversee complex trials, make discovery rulings, etc. And, district court judges issue final decisions (subject to appeal, as are APJ decisions). No one disputes that a federal judge cannot take office unless nominated by the President and confirmed by the Senate. They are, therefore, so-called superior officers. And because APJs exercise similar powers, they should be held to be superior officers who cannot take office without Presidential nomination and Senate confirmation.

The Court should therefore hold that APJs are superior officers to ensure the Framers’ goal that “those who are employed in the execution of the law will be in their proper situation, and the chain of dependence be preserved; the lowest officers, the middle grade, and the highest, will depend, as they ought, on the President, and the President on the community.”

This op-ed was originally published by Jurist on March 3, 2021.