On Monday, the Supreme Court takes a look at a present-day version of a constitutional debate that has been raging for generations over presidential power to appoint officials in the U.S. government. The Court will be hearing three appeals combined for a one-hour hearing. The audio will be available on c-span.org/supremecourt
Hearing starts at 10 a.m.:
United States v. Arthrex Inc.
(and two other cases)
Background: One of the fascinating things about living under a written Constitution more than two centuries old is that a quite narrow public debate very frequently takes place against a broad historical background. For a current example: How does a judge who works in the internal appeals process at the U.S. Patent Office get that job? The answer lurks in the way the Founders wrote Article II in 1787.
In fact, the answer can be found in a document older than that, a 1748 treatise, Spirit of the Laws, by a French political philosopher, the Baron de Montesquieu. America’s founding generation was much attracted to Montsquieu’s notion of separation of government powers, as a guarantor of liberty. The division of powers is at the core of the Founders’ desire for checks and balances. While they intentionally created a powerful President at the head of the Executive Branch, the draftsmen of the Constitution nevertheless were determined to keep that power in check to prevent abuse.
One way to do that was to require the President, in appointing officers of the government, to submit his nominees to the U.S. Senate for its “advice and consent.” President Biden right now is experiencing some difficulty in getting some of his Cabinet nominees approved in that very process.
That process is controlled by Article II’s Appointments Clause, which the Supreme Court described in a 1997 opinion as “among the significant structural safeguards of the constitutional scheme. …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.”
The Clause provides that the President “shall have power…, by and with the advice and consent of the Senate,” to appoint “officers of the United States.” However, it also gave Congress the power to assign the appointment of “inferior officers” to the President, acting alone, to the courts, or to the “heads of departments.”
Those phrases clearly treat appointment of “officers of the United States” (a phrase that the courts have defined as “principal officers”) differently from the naming of “inferior officers,” but just what is that difference? What kind of government position should be elevated above an “inferior” post to a “principal” one and thus require Senate approval?
The courts use a variety of tests to answer that question: how much power does the officer have, how much independence do they have to act without real supervision, who appoints them, who can fire them (if anybody can) and for what reason? In recent years, one of the most strenuously debated issues in Appointments Clause cases focuses on whether the President can remove a government official.
Advocates of a strong Presidency contend that, since the Constitution requires the President to “faithfully execute” the laws, the occupant of the office must be able to fire any Executive Branch officer at will, for any reason or no reason, in order to manage all of the work of that Branch. The current conservative Supreme Court majority has been quite sympathetic to that view. But that approach has encountered increasing opposition from critics of what they call the “imperial Presidency” and who suggest that Congress can and should take strong action to insulate some government officers from outright dismissal.
In only a few times in history has Congress limited the power of the President to fire outright a “principal officer.” And, of course, it has provided some protection for “inferior officers,” such as federal workers covered by Civil Service job protection, who can be dismissed only for sufficient cause, such as neglect of duty.
In the new cases before the Supreme Court on Monday, the Justices will confront such large issues in a seemingly narrow dispute, raised in three combined cases dealing with officers within the Patent Office who serve as “administrative patent judges.”
There are now more than 200 of those judges working in the Patent Office. They are assigned to sit among multi-member panels as the Patent Trial and Appeal Board, which reviews thousands of cases every year in a variety of patent disputes, including the kind at issue here: a request to nullify an existing patent. That is an awesome power, because it can destroy extremely valuable property rights. That board, though, can revoke a patent and no supervisor in the Executive Branch can second-guess such a ruling. Only a special federal appeals court, the Court of Appeals for the Federal Circuit, can review a Board decision in that kind of case. (The Federal Circuit Court’s decisions can be challenged in the Supreme Court.)
A Federal Circuit Court ruling is now at issue before the Justices. It focuses on a dispute between two medical technology companies, both of whom make and sell “suture anchors,” which surgeons implant in bone to help secure adjoining soft tissue.
One of those firms, Arthrex, Inc., based in Naples, Fla., sued the other, Smith & Nephew, Inc., of Andover, Mass., claiming infringement of a patent held by Arthrex. As often happens in such lawsuits, Smith & Nephew defended itself against the infringement claim by asking the Patent Office to void many of the claims Arthrex included in its patent. A panel of the Patent Trial and Appeal Board examined the case, and nullified all 11 claims challenged by Smith & Nephew, ruling that they should not have been patented.
That panel included three administrative patent judges. When Arthrex took the case on to the Federal Circuit Court to challenge the loss of its patent rights, the company also argued that the panel’s makeup violated the Appointments Clause. Under federal law, the Commerce Secretary, whose department includes the Patent Office, chooses the judges but does not have complete authority to remove them their jobs. The Secretary only has power to fire such a judge for a sufficient cause and cannot overturn its rulings. Arthrex argued that the judges are principal, not “inferior,” officers, and thus could only be named under the Appointments Clause.
In a complex decision, the Federal Circuit Court declined to rule itself on the validity of the patent, but instead decided that (a) Arthrex had a right to raise its constitutional challenge for the first time in its appeal of the Board decision, (b) that the administrative judges were “principal officers” because of the power they wield and thus should have been named by the President and confirmed by the Senate, and (c) that the protection given them from outright firing thus was unconstitutional under the Appointments Clause.
Then, the Federal Circuit Court had to decide what to do about the constitutional violation. Rather than strike down the whole system of using such judges on the Patent Board, it removed their protection from dismissal. It sent the back to the Patent Board for a new decision by new administrative judges, now subject to removal at will.
The federal government took the case on to the Supreme Court, contesting Arthrex’s right to make its constitutional challenge at the Federal Circuit Court after failing to make that protest first before the Patent Board, and challenging the finding that the judges were “principal officers.” Arthrex filed its own appeal, challenging the remedy that the lower court had fashioned and hoping to curtail the powers of the Patent Board to nullify patents unless the judges are made subject to Senate approval. Smith & Nephew also filed an appeal, raising only the issue of whether the judges were “principal officers.” The Court granted review of all three.
The questions before the Court: Is the current mode of selecting judges who sit on the Patent Board unconstitutional and, if it is, did the Federal Circuit Court impose a faulty remedy? Should a constitutional violation have been left to Congress to fix? Was Arthrex barred from raising the constitutional issue only at the Federal Circuit Court level?
Significance: Few issues in constitutional law are more prominent these days than the growth in the power of the Presidency, especially with the rise of a conservative legal movement that believes with some passion in the need to shore up the power of that office. That belief appears to be getting increasing support from the Supreme Court.
Just last year, a divided Court struck down the protection that Congress had given to the director of the Consumer Financial Protection Bureau, finding that the President needs the power to unilaterally dismiss that official in order to keep supervisory control of its work. As a remedy, the majority left the Board’s makeup unchanged, but simply made the director subject to outright dismissal by the President.
While that decision, and others in recent years, might suggest that the Court may once again side with presidential authority, each of these cases has its own characteristics that may not yield to a predictable outcome. For example, in this particular dispute: does the remedy of making the judges subject to being fired even while leaving intact their real power to declare patents invalid threaten the validity of thousands of patents that are critical to the economy and the stability of intellectual property rights?
And the way the Federal Circuit Court chose to remedy the violation it found raises, again, another broad question that runs across the whole of constitutional decision-making by the courts. That is the question of what power the courts have, and what powers Congress has, when part of a federal law has been struck down as unconstitutional, and someone must decide how that is to be remedied. Should the courts’ job stop with the ruling of unconstitutionality, and let Congress fix that problem? In fixing such a flaw themselves, have the courts intruded on legislative power?
That is precisely an issue that, by coincidence, is already being weighed by the Court: if it strikes down the Affordable Care Act’s mandate that everyone must have health insurance, is the entire Act invalid or should most of it be kept intact? The Justices heard that question in November, and a final decision is now awaited. The outcome may have a direct impact on how the Justices view the dispute over the patent judges.
On Tuesday, the Court will hold a hearing on how courts are to interpret a major part of the federal Voting Rights Act when state legislatures make it harder to vote – a critical issue in the wake of the 2020 elections.
