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`Nos. 19-1434, 19-1452, and 19-1458
`
`IN THE
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`
`
`
`UNITED STATES OF AMERICA,
`Petitioner,
`
`v.
`ARTHREX, INC. ET AL.,
`Respondents.
`
`On Writs of Certiorari to the
`United States Court of Appeals for the Federal Circuit
`
`
`
`BRIEF OF U.S. LUMBER COALITION AS
`AMICUS CURIAE URGING AFFIRMANCE IN
`PART AND REVERSAL IN PART, SUPPORTING
`RESPONDENTS IN NOS. 19-1434 & 19-1452 AND
`PETITIONER IN NO. 19-1458
`
`Kevin K. Russell
` Counsel of Record
`Erica Oleszczuk Evans
`GOLDSTEIN &
` RUSSELL, P.C.
`7475 Wisconsin Ave.
`Suite 850
`Bethesda, MD 20814
`(202) 362-0636
`kr@goldsteinrussell.com
`
`(additional captions on inside cover)
`
`
`
`
`SMITH & NEPHEW, INC., ET AL.,
`Petitioners,
`
`v.
`ARTHREX, INC. ET AL.,
`Respondents.
`
`
`ARTHREX, INC. ET AL.,
`
`Petitioner,
`
`v.
`SMITH & NEPHEW, INC., ET AL.,
`Respondents.
`
`
`
`
`
`
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`
`
`i
`TABLE OF CONTENTS
`
`Because Their Decisions Control A
`Federal Agency’s Execution Of Federal
`
`Decisions Are Not Subject To Review By
`
`Make Final Decisions On Behalf Of The
`Executive Branch On Important Matters Of
`
`TABLE OF AUTHORITIES ........................................ ii
`INTEREST OF THE AMICUS CURIAE .................... 1
`SUMMARY OF ARGUMENT ..................................... 2
`ARGUMENT ................................................................ 5
`I. APJs Are Principal Officers Because They
`Federal Law ........................................................... 5
`A. APJs Are “Officers Of The United States”
`Law. ................................................................. 6
`B. APJs Are Principal Officers Because Their
`Any Other Executive Branch Official ............ 8
`II. The Constitutional Problem Cannot Be
`Tenure Protections .............................................. 20
`CONCLUSION ........................................................... 23
`
`Remedied By Simply Invalidating APJs’
`
`
`
`
`
`
`
`ii
`TABLE OF AUTHORITIES
`
`Cases
`
`Auffmordt v. Hedden,
`137 U.S. 310 (1890) .................................................. 7
`Buckley v. Valeo,
`424 U.S. 1 (1976) ...................................................... 7
`Coal. for Fair Lumber Imports v. United States,
`471 F.3d 1329 (D.C. Cir. 2006) ................................ 1
`Dep’t of Transp. v. Ass’n of Am. R.Rs.,
`575 U.S. 43 (2015) ................................................ 8, 9
`Edmond v. United States,
`520 U.S. 651 (1997) ......................................... passim
`Free Enter. Fund v. Pub. Co. Acct. Oversight Bd.,
`561 U.S. 477 (2010) ......................................... passim
`Freytag v. Comm’r,
`501 U.S. 868 (1991) .................................... 11, 18, 19
`Griffin v. Thompson,
`43 U.S. (2 How.) 244 (1844) ................................... 12
`Intercollegiate Broad. Sys., Inc. v. Copyright
`Royalty Bd.,
`684 F.3d 1332 (D.C. Cir. 2012) .............................. 14
`Kappos v. Hyatt,
`566 U.S. 431 (2012) ................................................ 13
`Morrison v. Olson,
`487 U.S. 654 (1988) .................................. 4, 8, 19, 20
`Myers v. United States,
`272 U.S. 52 (1926) .................................................. 12
`NLRB v. SW Gen., Inc.,
`137 S. Ct. 929 (2017) .............................................. 20
`
`
`
`iii
`Pennsylvania v. U.S. Dep’t of Health & Human
`Servs.,
`80 F.3d 796 (3d Cir. 1996) ..................................... 14
`Printz v. United States,
`521 U.S. 898 (1997) .......................................... 12, 14
`Seila Law LLC v. CFPB,
`140 S. Ct. 2183 (2020) ..................................... passim
`United States v. Allred,
`155 U.S. 591 (1895) ................................................ 12
`United States v. Germaine,
`99 U.S. 508 (1879) .................................................... 7
`
`Constitutional Provisions
`
`U.S. Const. art. II, § 1, cl. 1 ......................................... 6
`U.S. Const. art. II, § 2, cl. 2 ................................ passim
`U.S. Const. art. II, § 3 ........................................ 4, 6, 15
`U.S. Const. art. III, § 1 .............................................. 11
`U.S. Const. amend. I .................................................. 16
`
`Statutes
`
`Act of Apr. 10, 1790, ch. 7, 1 Stat. 109 ...................... 13
`Act of Apr. 30, 1798, ch. 35, 1 Stat. 553 .................... 12
`Act of Feb. 20, 1792, ch. 7, 1 Stat. 232 ...................... 12
`Act of July 4, 1836, ch. 357, 5 Stat. 117 .................... 13
`Act of Mar. 3, 1839, ch. 88, 5 Stat. 353 ..................... 13
`Veterans’ Benefits Improvement Act of 1994,
`Pub. L. No. 103-446, 108 Stat. 4645 ...................... 14
`5 U.S.C. § 557(b) ........................................................ 14
`26 U.S.C. § 7443A(c) .................................................. 19
`35 U.S.C. § 6 ............................................................. 5, 8
`35 U.S.C. § 318(b) ........................................................ 5
`
`
`
`iv
`
`Rules
`Other Authorities
`
`Sup. Ct. R. 37.6 ............................................................ 1
`
`Steven G. Calabresi & Gary Lawson, The
`Unitary Executive, Jurisdiction Stripping, and
`the Hamdan Opinions: A Textualist Response
`to Justice Scalia, 107 Colum. L. Rev. 1002
`(2007) ...................................................................... 11
`Dep’t of Veterans Affairs, VA History in Brief,
`https://www.va.gov/opa/publications/archives/
`docs/history_in_brief.pdf ........................................ 14
`P.J. Federico, Evolution of Patent Office
`Appeals, 22 J. Pat. Off. Soc’y 838 (1940) ............... 13
`Lee S. Liberman, Morrison v. Olson: A
`Formalistic Perspective on Why the Court Was
`Wrong, 38 Am. U. L. Rev. 313 (1989). ................... 20
`Thomas Sheridan, A Complete Dictionary of the
`English Language (2d ed. 1789) .............................. 9
`Noah Webster, An American Dictionary of the
`English Language (3d ed. 1830) .............................. 9
`
`
`
`
`
`
`1
`INTEREST OF THE AMICUS CURIAE1
`The U.S. Lumber Coalition is a non-profit
`corporation representing large and small softwood
`lumber producers from around the country, joined by
`their employees, and woodland owners, working to
`address Canada’s unfair lumber trade practices.
`Those practices have led the United States to impose
`antidumping and countervailing duties on certain
`Canadian softwood lumber, duties that Canada has
`challenged pursuant to the dispute resolution
`provisions of the North American Free Trade
`Agreement (NAFTA). The Coalition has an interest in
`the proper interpretation of the Appointments Clause
`because NAFTA’s dispute resolution provisions (which
`were carried over into the United States-Mexico-
`Canada Agreement) raise serious Appointments
`Clause questions. See Coal. for Fair Lumber Imports
`v. United States, 471 F.3d 1329, 1330-31 (D.C. Cir.
`2006) (per curiam) (explaining that under NAFTA, a
`binational panel of private arbitrators can review the
`United States’ compliance with U.S. antidumping and
`countervailing duty laws and order the relevant U.S.
`agencies to change or eliminate the duties if the panel
`decides the agencies misapplied federal law); id. at
`1332-33 (finding that settlement agreement between
`United States and Canada revoking such duties
`rendered particular constitutional challenge
`to
`NAFTA dispute resolution provisions nonjusticiable).
`
`1 Pursuant to Supreme Court Rule 37.6, amicus affirms
`that no counsel for a party authored this brief in whole or in part
`and that no person other than amicus, its members, and its
`counsel made a monetary contribution to its preparation or
`submission. All parties have filed blanket consents to the filing of
`amicus briefs with the Clerk’s office.
`
`
`
`2
`SUMMARY OF ARGUMENT
`I. It is undisputed that in many circumstances,
`administrative patent judges (APJs) of the Patent and
`Trademark Office (PTO) have the final word within
`the Executive Branch on whether a patent will issue
`or a previously issued patent will be revoked. On any
`reasonable understanding of the text, history, and
`purposes of the Appointments Clause, that makes
`APJs principal officers who must be nominated by the
`President and confirmed by the Senate.
`A. To start, officials whose decisions control a
`federal agency’s execution of federal law are “Officers
`of
`the United States” and
`therefore
`their
`appointments are subject to the restrictions of the
`Appointments Clause.
` While this Court has
`sometimes
`treated
`individuals who
`provide
`temporary,
`partial
`assistance
`in
`agency
`decisionmaking as employees or contractors, the Court
`has never suggested that Congress could delegate an
`agency’s core functions to non-officers and thereby
`avoid the Constitution’s structural protections against
`arbitrary or abusive exercise of federal power.
`B. Nor has this Court ever suggested that
`someone with the final say in an agency’s exercise of
`such powers would be anything other than a principal
`officer. As a matter of common understanding, the
`person who makes the final decisions with respect to
`an agency’s core functions—here, issuing and revoking
`patents—is a principal officer of that department.
`Those who must abide by those decisions—including,
`here, the PTO’s Director—are naturally understood to
`be subordinate to that final authority. A judge whose
`vote counts no more than her law clerks’ is not the
`principal officer of her chambers.
`
`
`
`3
`That view is consistent with historical practice.
`From the beginning, a unifying feature of inferior
`officers authorized by Congress was that their
`decisions were subject to review and revisions by the
`principal officers of their department. Indeed, even
`today, the independence of the APJs in the PTO is an
`aberration.
`The
`traditional arrangement, under which
`inferior officers’ decisions are subject to review and
`countermand by a principal officer, is exactly what the
`drafters of the Appointments Clause intended. The
`Clause is part of a broader constitutional design that
`protects liberty by ensuring that a popularly elected
`President has ultimate
`control—and
`therefore
`accountability—for all the operations of the Executive
`Branch. Because the President cannot realistically
`review all (or even a small fraction of) the law-
`enforcing decisions made by federal agencies, it is vital
`that the principal officers the President has chosen
`can exercise that kind of control. Otherwise, the
`President could shirk his responsibility to the People
`by explaining that he and his principal officers lacked
`the power to change what the federal government has
`done.
`Importantly, the People have a right to hold the
`President—and the President has the right to hold his
`principal officers—accountable for every significant
`exercise of federal power. It is not enough that the
`President or an agency head has the power to
`determine the general direction of a department, or
`how it enforces federal law in the run of cases. The
`President has taken an oath to “take Care that the
`Laws be faithfully executed.” U.S. Const. art. II, § 3.
`There is no exception for case-specific failures that the
`
`
`
`4
`President could not prevent because he and his
`principal officers lacked final authority over the
`matter.
`Here, however, were the public to decry the PTO’s
`grant or invalidation of an important patent, the
`President would turn to the Director of the PTO, who
`could credibly claim that he lacked the power to avoid
`that result. Indeed, it is entirely possible that the
`Director would have sat on the panel that issued the
`decision, but was outvoted by his supposed
`subordinates.
`None of this Court’s decisions countenance that
`result. To the contrary, the Court has repeatedly
`emphasized that the decisions of those it has deemed
`inferior officers were subject to review by other
`principal officers within the Executive Branch. The
`only possible exception is the independent counsel in
`Morrison v. Olson, 487 U.S. 654 (1988). But that
`exception proves the rule that such insulation requires
`an
`extraordinary
`justification and
`significant
`compensating limitations, none of which is present
`here.
`II. Simply eliminating APJs’ tenure protections
`would not remedy the constitutional problem. Being
`able to fire (or reassign) APJs at will is far too blunt
`an instrument to allow the PTO Director to control the
`outcome of particular cases and, therefore, to be truly
`accountable for them.
`Indeed, the cause of political accountability would
`be set back, not advanced, by telling the Director that
`he should direct the outcome of particular cases
`through behind-the-scenes threats of termination.
`The coerced result would be portrayed to the world as
`the fair judgment of apolitical experts, allowing the
`
`
`
`5
`Director to evade responsibility for what may (or may
`not) be his own decision, undertaken for reasons kept
`secret from the public. Even if Congress would have
`preferred that result to broader invalidation, the
`constitutional design cannot endure it.
`ARGUMENT
`I. APJs Are Principal Officers Because They
`Make Final Decisions On Behalf Of The
`Executive Branch On Important Matters Of
`Federal Law.
`The PTO is assigned responsibility for issuing and
`revoking patents. From the Founding until the middle
`of the twentieth century, the final responsibility for
`that exercise of governmental power lay in the hands
`of officials who were nominated by the President and
`confirmed by the Senate. See No. 19-1434 Pet. App.
`21a. Today, the final decision whether to issue or
`revoke a patent is made by the Patent Trial and
`Appeal Board (PTAB), a panel of APJs, who are
`appointed by the Secretary of Commerce without
`Senate approval. See ibid; 35 U.S.C. § 6. A PTAB’s
`decision is not subject to review or revision by any
`other official in the PTO and, unless reversed by a
`court, binds all other Executive Branch officials,
`including the PTO’s Senate-confirmed Director. See
`35 U.S.C. § 318(b).
`The question here is whether the Constitution
`permits Congress to lodge final authority for such
`decisions in officials who are not nominated by the
`President or confirmed by the Senate. The answer is
`no.
`
`The Constitution protects liberty through careful
`distribution of authority among the officials of the
`
`
`
`6
`federal government. See, e.g., Free Enter. Fund v. Pub.
`Co. Acct. Oversight Bd., 561 U.S. 477, 501 (2010). The
`power to enforce the Nation’s law is lodged with the
`Executive. U.S. Const. art. II, § 1, cl. 1. A principal
`protection against the abuse of that power is the
`People’s right to elect and hold accountable a single
`Chief Executive who is given exclusive responsibility
`to “take Care that the Laws be faithfully executed.”
`Id. art. II, § 3; see, e.g., Free Enter. Fund, 561 U.S. at
`492-93. To empower the President to fulfill that
`obligation, and to provide an additional check on the
`potential for abuse, the Appointments Clause requires
`that the President nominate, and the Senate confirm,
`all “Officers of the United States,” with the exception
`that “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.” U.S. Const. art. II, § 2, cl. 2.
`This Court has not “set forth an exclusive criterion
`for distinguishing between principal and inferior
`officers for Appointments Clause purposes.” Edmond
`v. United States, 520 U.S. 651, 661 (1997). But the
`Court has never before condoned Congress assigning
`the principal functions of a government department to
`inferior officers whose decisions are shielded from
`review or revision by any other Executive Branch
`official. The text, purposes, and history of the
`Appointments Clause precludes that effort here.
`A. APJs Are “Officers Of The United States”
`Because Their Decisions Control A
`Federal Agency’s Execution Of Federal
`Law.
`As an initial matter, APJs are “Officers of the
`United States,” as opposed to mere employees, because
`
`
`
`7
`they exercise “significant authority pursuant to the
`laws of the United States.” Edmond, 520 U.S. at 662
`(citation omitted).2 Indeed, the PTAB exercises not
`only significant, but ultimate authority over the
`principal governmental function of the PTO, issuing
`final decisions for the office on whether to issue or
`revoke patents.
`To be sure, this Court has occasionally held that
`individuals who provide partial, temporary assistance
`to an agency’s decisionmakers can be employees or
`contractors rather than officers. For example, in
`United States v. Germaine, 99 U.S. 508 (1879), the
`Court held that a surgeon hired to conduct physical
`examinations to assist the Government in making
`pension benefit determinations was not an officer, but
`merely a contractor, because the surgeon’s “duties are
`not continuing and permanent,” but “occasional and
`intermittent.” Id. at 512 (emphasis omitted); see also
`Auffmordt v. Hedden, 137 U.S. 310, 326-27 (1890)
`(same for “merchant appraiser” contracted to assist
`agency in resolving import duty disputes).
`Those cases are distinguishable, of course,
`because the APJ’s duties are continuing and
`permanent. See 35 U.S.C. § 6. But more importantly,
`the Court has never suggested that Congress can
`assign employees or contractors even temporary
`authority to make final decisions on behalf of a federal
`agency regarding its enforcement of federal law. See,
`
`2 See also Buckley v. Valeo, 424 U.S. 1, 131 (1976) (per
`curiam) (constitutional term “Officers of the United States” was
`“taken by all concerned to embrace all appointed officials
`exercising responsibility under the public laws of the Nation”); id.
`at 132 (“No class or type of officer is excluded because of its special
`functions.”).
`
`
`
`8
`e.g., Morrison v. Olson, 487 U.S. 654, 671-72 (1988)
`(special counsel given responsibility for deciding
`whether to bring a criminal prosecution on behalf of
`the United States is an officer, despite significant
`limits on the counsel’s jurisdiction and tenure); Dep’t
`of Transp. v. Ass’n of Am. R.Rs., 575 U.S. 43, 63 (2015)
`(Alito, J., concurring) (reading a statute to permit
`private arbitrators to resolve disputes over the content
`of federal regulations would “raise serious questions
`under the Appointments Clause”); id. at 87-88
`(Thomas, J., concurring in the judgment) (“Although
`no provision of the Constitution expressly forbids the
`exercise of governmental power by a private entity,
`our so-called ‘private nondelegation doctrine’ flows
`logically from the three Vesting Clauses.”).
`Because APJs dictate the PTO’s exercise of some
`of its most important and basic law enforcement
`responsibilities, they are undoubtedly Officers of the
`United States, subject to the Appointments Clause.
`B. APJs Are Principal Officers Because
`Their Decisions Are Not Subject To
`Review By Any Other Executive Branch
`Official.
`Because they are officers, APJs must either be
`nominated by the President and confirmed by the
`Senate (which they are not) or qualify as “inferior
`officers” within the meaning of the Appointments
`Clause. While the Court has eschewed bright-line
`rules for distinguishing between principal and inferior
`officers, a critical consideration should be whether the
`official has the “power to render a final decision on
`behalf of the United States” in particular cases.
`Edmond, 520 U.S. at 665. Where, as here, an official’s
`case-specific exercise of Executive authority is not
`
`
`
`9
`subject to review and reversal by any other Executive
`Branch official, the official should be considered a
`principal officer absent some unusual justification
`that is absent here. That conclusion flows naturally
`from
`the
`text, history, and purposes of
`the
`Appointments Clause, as well as this Court’s
`decisions.
`Text. The Constitution does not define the term
`“inferior officer,” but its ordinary meaning denotes
`subordination to a superior. See Edmond, 520 U.S. at
`662 (“Whether one is an ‘inferior’ officer depends on
`whether he has a superior.”); Inferior (def. 4), Noah
`Webster, An American Dictionary of the English
`Language 450 (3d ed. 1830) (“Subordinate; of less
`importance”); Inferiour, Thomas Sheridan, A Complete
`Dictionary of the English Language (2d ed. 1789)
`(“Lower in place; lower in [s]tation or rank of life; lower
`in value or excellency; [s]ubordinate”). And being a
`subordinate ordinarily entails having one’s significant
`decisions subject to review and revision by a superior.
`See, e.g., Seila Law LLC v. CFPB, 140 S. Ct. 2183,
`2199 n.3 (2020) (inferior officer is one whose “work is
`directed and supervised by a principal officer”)
`(internal quotation marks omitted); Ass’n of Am.
`R.Rs., 575 U.S. at 63 (Alito, J., concurring) (“[A]n
`officer who acts without supervision must be a
`principal officer.”) (citing Edmond, 520 U.S. at 663).
`Petitioners do not deny that the PTO’s Director
`lacks the authority to review and countermand
`particular PTAB decisions. They claim instead that
`no such power is necessary for the PTAB to be inferior
`to the Director. See U.S. Br. 37; S&N Br. 35-36. But
`that position cannot be squared with any common
`understanding of what it means to be an “inferior”
`
`
`
`10
`officer. A principal officer’s power of direction and
`supervision necessarily includes the power to direct
`how the inferior will exercise government power in
`particular instances. An army general is surely
`entitled to review, revise, and countermand an inferior
`officer’s particular battle plans, not just to dictate a
`broader strategy for the conflict. If control over such
`essential military functions were vested in majors
`rather than generals, we would understand the major
`to be the principal officer and the general to be the
`subordinate, inferior officer.
`It is particularly difficult to reconcile petitioners’
`view of an “inferior” officer in the context of an
`adjudicative body. A magistrate judge whose reports
`and recommendations bind a district court would not
`be described as the “inferior” officer
`in that
`relationship. A judge whose decisions are controlled
`by a vote of her law clerks is not the principal officer
`of her chambers. And the reason the Constitution
`describes the lower federal courts as “inferior Courts”
`is precisely because their decisions are subject to
`review by this Court, not because this Court hires or
`fires lower court judges (responsibilities reserved for
`Congress and the President). U.S. Const. art. III, § 1.3
`
`3 While the Constitution permits Congress to control this
`Court’s appellate jurisdiction over the lower courts, the Framers
`would not have described those courts as “inferior” if no appellate
`review at all had been permitted or contemplated. Cf. Steven G.
`Calabresi & Gary Lawson, The Unitary Executive, Jurisdiction
`Stripping, and the Hamdan Opinions: A Textualist Response to
`Justice Scalia, 107 Colum. L. Rev. 1002 (2007) (noting serious
`constitutional questions that would arise if Congress attempted
`to make some categories of lower court decisions unreviewable by
`this Court). In this case, the PTAB’s decisions are never subject
`to review or countermand by any other Executive Branch official.
`
`
`
`11
`Indeed, it is nearly impossible to construct an
`English sentence describing someone as having
`“inferior” status in a hierarchy when that person
`wields the ultimate, unreviewable authority to make
`the organization’s most important decisions.4
`In this case, it is all but definitional that the
`person who has the final say about whether the PTO
`will issue or revoke a patent is a principal officer of the
`Patent Office. And to say that the rest of the Office is
`bound to adhere to that decision is to say that the
`others are subordinate to the PTAB with respect to the
`Office’s essential responsibilities.
`History. Petitioners’ position also runs headlong
`into history. See Seila Law, 140 S. Ct. at 2201
`(“‘Perhaps the most telling indication of a severe
`constitutional problem with an executive entity is a
`lack of historical precedent’ to support it.”) (citation
`omitted and cleaned up); Printz v. United States, 521
`U.S. 898, 905 (1997) (“[C]ontemporaneous legislative
`exposition of the Constitution . . ., acquiesced in for a
`long term of years, fixes the construction to be given
`its provisions.”) (quoting Myers v. United States, 272
`U.S. 52, 175 (1926)) (ellipses in original).
`As the Court explained in Edmond, the First
`Congress subjected early inferior officers to the
`plenary control of principal officers. For example, in
`
`4 At best, a person might have principal authority for some
`category of responsibilities and a subordinate position with
`respect to others. But giving a principal officer additional inferior
`responsibilities does not eliminate the need for presidential
`appointment and Senate confirmation. Cf. Freytag v. Comm’r,
`501 U.S. 868, 882 (1991) (“Special trial judges are not inferior
`officers for purposes of some of their duties under § 7443A, but
`mere employees with respect to other responsibilities.”).
`
`
`
`12
`establishing the office of the “Chief Clerk” of the
`Department of Foreign Affairs and the Department of
`War, Congress provided that this “inferior officer”
`should be “employed” as the principal officer “shall
`deem proper.” 520 U.S. at 663-64 (citations omitted).
`Congress provided the same unrestricted authority
`over inferior officers in the Post Office and Navy. See
`Act of Feb. 20, 1792, ch. 7, § 3, 1 Stat. 232, 234 (Deputy
`Postmaster subject to “such regulations” “as may be
`found necessary” by the Postmaster General); Act of
`Apr. 30, 1798, ch. 35, §§ 1-2, 1 Stat. 553, 553-54
`(Principal Clerk in Department of the Navy to be
`“employed in such manner as [Secretary of the Navy]
`shall deem most expedient”).
`Likewise, in United States v. Allred, 155 U.S. 591
`(1895), this Court explained that commissioners of the
`federal courts—who performed some of the functions
`of modern magistrates, including issuing warrants—
`were inferior officers who had long been understood to
`be “subject to the orders and directions of the court
`appointing them.” Id. at 595; see also Griffin v.
`Thompson, 43 U.S. (2 How.) 244, 257 (1844) (“There is
`inherent in every court a power to supervise the
`conduct of its officers, and the execution of its
`judgments and process.”).
`The first Patent Act similarly assigned final
`responsibility for issuing patents to principal officers,
`namely a commission comprised of the Secretary of
`State, the Secretary of War, and the Attorney General.
`See Act of Apr. 10, 1790, ch. 7, 1 Stat. 109, 109-10.
`Congress continued the pattern after it transferred
`that authority to the Patent Office, generally
`subjecting the decisions of patent examiners to review
`by the presidentially appointed and Senate-confirmed
`
`
`
`13
`Commissioner of Patents. See, e.g., Kappos v. Hyatt,
`566 U.S. 431, 440 (2012) (“Under the 1870 Act, an
`applicant denied a patent by the primary examiner
`could appeal first to a three-member board of
`examiners-in-chief, then to the Commissioner for
`Patents, and finally to an en banc sitting of the
`Supreme Court of the District of Columbia.”).5
`Critically, petitioners and their numerous amici
`are unable cite any Founding-era pattern of Congress
`giving an inferior officer statutory authority to make
`important decisions on behalf of a department while
`immune from case-specific review by a principal
`officer. Indeed, petitioners are able to cite only a
`smattering of allegedly similar statutes in the entire
`history of the country. See S&N Br. 38-42 (citing
`Copyright Royalty Board (established in 2004),6 Board
`
`
`5 For a period of less than three years, between July of 1836
`and March of 1839, certain decisions of the Commissioner were
`subject to revision by a three-person board of examiners
`appointed by the Secretary of State. See P.J. Federico, Evolution
`of Patent Office Appeals, 22 J. Pat. Off. Soc’y 838, 839-41, 842-43
`(1940) (discussing Act of July 4, 1836, ch. 357, § 7, 5 Stat. 117,
`119-20, superseded by Act of Mar. 3, 1839, ch. 88, § 11, 5 Stat.
`353, 354-55). The 1836 statute did not directly address whether
`the Secretary of State could review and revise the board’s
`decisions. Compare § 7, 5 Stat. at 120 (the board’s opinion “being
`certified to the Commissioner, he shall be governed thereby in
`further proceedings to be had on such application”), with id. § 1,
`5 Stat. at 118 (Commissioner shall perform duties “under the
`direction of the Secretary of State”). The issue apparently never
`came up, perhaps because the board of examiners heard a total of
`nine cases under this regime. See Federico at 841.
`6 See Intercollegiate Broad. Sys., Inc. v. Copyright Royalty
`Bd., 684 F.3d 1332, 1334-35 (D.C. Cir. 2012) (describing Board’s
`origins, but holding that its members are principal officers).
`
`
`
`14
`of Veterans’ Appeals (established in 1994),7 and the
`Departmental Appeals Board of the Department of
`Health and Human Services (established in the
`1970s)8). But examples “of such recent vintage . . . are
`no more probative than the statute before us of a
`constitutional tradition that lends meaning to the
`text.” Printz, 521 U.S. at 918. Indeed, petitioners’
`handful of examples illustrates that even today,
`insulating administrative adjudications from review
`by principal officers is an aberration. See also, e.g., 5
`U.S.C. § 557(b) (provision of Administrative Procedure
`Act providing for agency review of decisions by
`administrative law judges); Arthrex Br. 30.
`Purposes.
` The ordinary meaning of the
`constitutional text, as
`illuminated by historical
`tradition, is strongly reinforced by the Appointments
`Clause’s purposes.
`is part of a
`The Appointments Clause
`to
`consolidate
`constitutional design
`intended
`Executive power in a single, nationally elected
`President charged with the ultimate responsibility to
`“take Care that the Laws be faithfully executed.” U.S.
`Const. art. II, § 3; see, e.g., Seila Law, 140 S. Ct. at
`2203. Under this plan, “individual executive officials
`
`
`7 The Board was established in the 1930s. See Dep’t of
`Veterans Affairs, VA History in Brief 12, https://www.va.gov/opa/
`publications/archives/docs/history_in_brief.pdf. In 1994, Congress
`directed that the Board’s members other than the Chairman
`would be appointed by the Secretary of the Department of
`Veterans Affairs without Senate confirmation. See Veterans’
`Benefits Improvement Act of 1994, Pub. L. No. 103-446, tit. II,
`§ 201(a)(1), 108 Stat. 4645, 4655.
`8 See Pennsylvania v. U.S. Dep’t of Health & Human Servs.,
`80 F.3d 796, 800 (3d Cir. 1996) (describing history).
`
`
`
`15
`will still wield significant authority, but that authority
`remains subject to the ongoing supervision and control
`of the elected President.” 140 S. Ct. at 2203. “Through
`the President’s oversight, ‘the chain of dependence [is]
`preserved,’ so that ‘the lowest officers, the middle
`grade, and the highest’ all ‘depend, as they ought, on
`the President, and the President on the community.”
`Ibid. (quoting 1 Annals of Cong. 499 (J. Madison))
`(alteration in original).
`The Appointments Clause ensures this chain of
`dependance and accountability. See, e.g., Edmond,
`520 U.S. at 663. The President cannot fulfil his
`obligation to “take Care that the Laws be faithfully
`executed,” U.S. Const. art. II, § 3, unless the President
`can effectively direct how subordinates
`in the
`Government actually execute the laws. See, e.g., Free
`Enter. Fund, 561 U.S. at 484. Accordingly, the
`Constitution vests in the President the power not only
`of “appointing” but also “overseeing, and controlling
`those who execute the laws.” Id. at 492 (citation
`omitted, emphasis added).
`federal
`Of course, given the size of the
`government, the President cannot direct official’s
`exercise of executive power in every instance. The
`President must rely on principal officers. But
`principal officers can perform their function, and
`maintain
`the
`constitutional
`lines of political
`accountability, only if principal officers have actual,
`effective control over their agencies’ exercise of
`governmental power.
`Importantly, it is not enough that a principal
`officer has some power to influence the way in which
`subordinates exercise power generally; the principal
`officer must also have the authorit
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