(Slip Opinion)
`
`OCTOBER TERM, 2020
`
`Syllabus
`
`1
`
`NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
`being done in connection with this case, at the time the opinion is issued.
`The syllabus constitutes no part of the opinion of the Court but has been
`prepared by the Reporter of Decisions for the convenience of the reader.
`See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
`SUPREME COURT OF THE UNITED STATES
`
`Syllabus
`
`UNITED STATES v. ARTHREX, INC. ET AL.
`CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
`THE FEDERAL CIRCUIT
`No. 19–1434. Argued March 1, 2021—Decided June 21, 2021*
`The question in these cases is whether the authority of Administrative
`Patent Judges (APJs) to issue decisions on behalf of the Executive
`Branch is consistent with the Appointments Clause of the Constitu-
`tion. APJs conduct adversarial proceedings for challenging the valid-
`ity of an existing patent before the Patent Trial and Appeal Board
`(PTAB). During such proceedings, the PTAB sits in panels of at least
`three of its members, who are predominantly APJs. 35 U. S. C. §§6(a),
`(c). The Secretary of Commerce appoints all members of the PTAB—
`including 200-plus APJs—except for the Director, who is nominated by
`the President and confirmed by the Senate. §§3(b)(1), (b)(2)(A), 6(a).
`After Smith & Nephew, Inc., and ArthroCare Corp. (collectively, Smith
`& Nephew) petitioned for inter partes review of a patent secured by
`Arthrex, Inc., three APJs concluded that the patent was invalid. On
`appeal to the Federal Circuit, Arthrex claimed that the structure of the
`PTAB violated the Appointments Clause, which specifies how the
`President may appoint officers to assist in carrying out his responsi-
`bilities. Art. II, §2, cl. 2. Arthrex argued that the APJs were principal
`officers who must be appointed by the President with the advice and
`consent of the Senate, and that their appointment by the Secretary of
`Commerce was therefore unconstitutional. The Federal Circuit held
`that the APJs were principal officers whose appointments were uncon-
`stitutional because neither the Secretary nor Director can review their
`decisions or remove them at will. To remedy this constitutional viola-
`tion, the Federal Circuit invalidated the APJs’ tenure protections,
`——————
`* Together with No. 19–1452, Smith & Nephew, Inc., et al. v. Arthrex,
`Inc., et al. and No. 19–1458, Arthrex, Inc. v. Smith & Nephew, Inc., et al.,
`also on certiorari to the same court.
`
`

`

`
`
`2
`
`
`UNITED STATES v. ARTHREX, INC.
`
`
`Syllabus
`
`making them removable at will by the Secretary.
`Held: The judgment is vacated, and the case is remanded.
`941 F. 3d 1320, vacated and remanded.
`
`THE CHIEF JUSTICE delivered the opinion of the Court with respect
`to Parts I and II, concluding that the unreviewable authority wielded
`
`
` by APJs during inter partes review is incompatible with their appoint-
` ment by the Secretary of Commerce to an inferior office. Pp. 6–19.
`
`
`
`(a) The Appointments Clause provides that only the President, with
`the advice and consent of the Senate, can appoint principal officers.
`
`With respect to inferior officers, the Clause permits Congress to vest
`appointment power “in the President alone, in the Courts of Law, or in
`the Heads of Departments.” Pp. 6–8.
`(b) In Edmond v. United States, 520 U. S. 651, this Court explained
`
`
`
`that an inferior officer must be “directed and supervised at some level
`
`by others who were appointed by Presidential nomination with the ad-
`
`vice and consent of the Senate.” Id., at 663. Applying that test to Coast
`
`Guard Court of Criminal Appeals judges appointed by the Secretary of
`
`Transportation, the Court held that the judges were inferior officers
`because they were effectively supervised by a combination of Presiden-
`tially nominated and Senate confirmed officers in the Executive
`
`
`Branch. Id., at 664–665. What the Court in Edmond found “signifi-
`cant” was that those judges had “no power to render a final decision on
`behalf of the United States unless permitted to do so by other Execu-
`
`
`tive officers.” Id., at 665.
`
`Such review by a superior executive officer is absent here. While the
`
`Director has tools of administrative oversight, neither he nor any other
`
`superior executive officer can directly review decisions by APJs. Only
`the PTAB itself “may grant rehearings.” §6(c). This restriction on re-
`
`view relieves the Director of responsibility for the final decisions ren-
`
`
`dered by APJs under his charge. Their decision—the final word within
`
`the Executive Branch—compels the Director to “issue and publish a
`certificate” canceling or confirming patent claims he had previously al-
`lowed. §318(b).
`
`
`The Government and Smith & Nephew contend that the Director
`has various ways to indirectly influence the course of inter partes re-
`
`view. The Director, for example, could designate APJs predisposed to
`decide a case in his preferred manner. But such machinations blur the
`
`lines of accountability demanded by the Appointments Clause and
`leave the parties with neither an impartial decision by a panel of ex-
`
`perts nor a transparent decision for which a politically accountable of-
`
`ficer must take responsibility.
`
`Even if the Director can refuse to designate APJs on future PTAB
`
`panels, he has no means of countermanding the final decision already
`
`on the books. Nor can the Secretary meaningfully control APJs
`
`
`
`

`

`3
`
`
`Cite as: 594 U. S. ____ (2021)
`
`
`Syllabus
`through the threat of removal from federal service entirely because she
`
`can fire them only “for such cause as will promote the efficiency of the
`service.” 5 U. S. C. §7513(a); see Seila Law LLC v. Consumer Finan-
`
`cial Protection Bureau, 591 U. S. ___, ___. And the possibility of an
`appeal to the Federal Circuit does not provide the necessary supervi-
`sion. APJs exercise executive power, and the President must be ulti-
`
`
`mately responsible for their actions. See Arlington v. FCC, 569 U. S.
`290, 305, n. 4.
`
`
`Given the insulation of PTAB decisions from any executive review,
`
`the President can neither oversee the PTAB himself nor “attribute the
`
`Board’s failings to those whom he can oversee.” Free Enterprise Fund
`
`v. Public Company Accounting Oversight Bd., 561 U. S. 477, 496. APJs
`accordingly exercise power that conflicts with the design of the Ap-
`
`pointments Clause “to preserve political accountability.” Edmond, 520
`
`U. S., at 663. Pp. 8–14.
`
`(c) History reinforces the conclusion that the unreviewable executive
`
`power exercised by APJs is incompatible with their status as inferior
`
`officers. Founding-era congressional statutes and early decisions from
`this Court indicate that adequate supervision entails review of deci-
`
`sions issued by inferior officers. See, e.g., 1 Stat. 66–67; Barnard v.
`Ashley, 18 How. 43, 45. Congress carried that model of principal officer
`
`review into the modern administrative state. See, e.g., 5 U. S. C.
`§557(b).
`
`According to the Government and Smith & Nephew, heads of de-
`
`partment appoint a handful of contemporary officers who purportedly
`exercise final decisionmaking authority. Several of their examples,
`
`however, involve inferior officers whose decisions a superior executive
`
`officer can review or implement a system for reviewing. See, e.g., Frey-
`
`tag v. Commissioner, 501 U. S. 868. Nor does the structure of the
`PTAB draw support from the predecessor Board of Appeals, which de-
`termined the patentability of inventions in panels composed of exam-
`iners-in-chief without an appeal to the Commissioner. 44 Stat. 1335–
`1336. Those Board decisions could be reviewed by the Court of Cus-
`
`toms and Patent Appeals—an executive tribunal—and may also have
`been subject to the unilateral control of the agency head. Pp. 14–18.
`
`(d) The Court does not attempt to “set forth an exclusive criterion
`for distinguishing between principal and inferior officers for Appoint-
`ments Clause purposes.” Edmond, 520 U. S., at 661. Many decisions
`by inferior officers do not bind the Executive Branch to exercise exec-
`utive power in a particular manner, and the Court does not address
`supervision outside the context of adjudication. Here, however, Con-
`gress has assigned APJs “significant authority” in adjudicating the
`public rights of private parties, while also insulating their decisions
`
`from review and their offices from removal. Buckley v. Valeo, 424 U. S.
`
`
`
`
`
`
`
`

`

`4
`
`
`UNITED STATES v. ARTHREX, INC.
`
`
`Syllabus
`
`
`1, 126. Pp. 18–19.
`THE CHIEF JUSTICE, joined by JUSTICE ALITO, JUSTICE KAVANAUGH,
`
`
`and JUSTICE BARRETT, concluded in Part III that §6(c) cannot constitu-
`tionally be enforced to the extent that its requirements prevent the
`Director from reviewing final decisions rendered by APJs. The Direc-
`tor accordingly may review final PTAB decisions and, upon review,
`may issue decisions himself on behalf of the Board. Section 6(c) other-
`
`wise remains operative as to the other members of the PTAB. When
`
`reviewing such a decision by the Director, a court must decide the case
`
`
`“conformably to the constitution, disregarding the law” placing re-
`
`strictions on his review authority in violation of Article II. Marbury v.
`Madison, 1 Cranch 137, 178.
`
`The appropriate remedy is a remand to the Acting Director to decide
`whether to rehear the petition filed by Smith & Nephew. A limited
`
`remand provides an adequate opportunity for review by a principal of-
`ficer. Because the source of the constitutional violation is the restraint
`
`on the review authority of the Director, rather than the appointment
`
`of APJs by the Secretary, Arthrex is not entitled to a hearing before a
`
`new panel of APJs. Pp. 19–23.
` ROBERTS, C. J., delivered the opinion of the Court with respect to Parts
`
`I and II, in which ALITO, GORSUCH, KAVANAUGH, and BARRETT, JJ.,
`joined, and an opinion with respect to Part III, in which ALITO, KA-
`
`VANAUGH, and BARRETT, JJ., joined. GORSUCH, J., filed an opinion con-
`curring in part and dissenting in part. BREYER, J., filed an opinion con-
`curring in the judgment in part and dissenting in part, in which
`
`SOTOMAYOR and KAGAN, JJ., joined. THOMAS, J., filed a dissenting opin-
`ion, in which BREYER, SOTOMAYOR, and KAGAN, JJ., joined as to Parts I
`and II.
`
`
`
`
`

`

`
`
`
`
` Cite as: 594 U. S. ____ (2021)
`
`Opinion of the Court
`
`1
`
`19–1434
`
`
`
`
` NOTICE: This opinion is subject to formal revision before publication in the
`
` preliminary print of the United States Reports. Readers are requested to
`
`
`
` notify the Reporter of Decisions, Supreme Court of the United States, Wash-
`
` ington, D. C. 20543, of any typographical or other formal errors, in order that
`
`
` corrections may be made before the preliminary print goes to press.
`
`
`
`SUPREME COURT OF THE UNITED STATES
`_________________
` Nos. 19–1434, 19–1452 and 19–1458
`
`_________________
`UNITED STATES, PETITIONER
`
`v.
`ARTHREX, INC., ET AL.
`
`
`SMITH & NEPHEW, INC., ET AL., PETITIONERS
`
`19–1452
`
`v.
`ARTHREX, INC., ET AL.
`
`
`ARTHREX, INC., PETITIONER
`
`
`v.
`SMITH & NEPHEW, INC., ET AL.
`
`ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
`
`APPEALS FOR THE FEDERAL CIRCUIT
`[June 21, 2021]
` CHIEF JUSTICE ROBERTS delivered the opinion of the
`Court with respect to Parts I and II.
`The validity of a patent previously issued by the Patent
`
`and Trademark Office can be challenged before the Patent
`Trial and Appeal Board, an executive tribunal within the
`PTO. The Board, composed largely of Administrative Pa-
`tent Judges appointed by the Secretary of Commerce, has
`the final word within the Executive Branch on the validity
`of a challenged patent. Billions of dollars can turn on a
`Board decision.
`Under the Constitution, “[t]he executive Power” is vested
`
`
`in the President, who has the responsibility to “take Care
`
`
`19–1458
`
`
`
`

`

`2
`
`
`UNITED STATES v. ARTHREX, INC.
`
`Opinion of the Court
`that the Laws be faithfully executed.” Art. II, §1, cl. 1; §3.
`The Appointments Clause provides that he may be assisted
`in carrying out that responsibility by officers nominated by
`him and confirmed by the Senate, as well as by other offic-
`ers not appointed in that manner but whose work, we have
`held, must be directed and supervised by an officer who has
`been. §2, cl. 2. The question presented is whether the au-
`thority of the Board to issue decisions on behalf of the Ex-
`ecutive Branch is consistent with these constitutional pro-
`visions.
`
`
`
`
`I
`A
`The creation of a workable patent system was a congres-
`
`sional priority from the start. The First Congress estab-
`lished the Patent Board—consisting impressively of Secre-
`tary of State Thomas Jefferson, Secretary of War Henry
`
`Knox, and Attorney General Edmund Randolph—to issue
`
`patents for inventions they deemed “sufficiently useful and
`important.” §1, 1 Stat. 109–110. Jefferson, a renowned in-
`ventor in his own right, “was charged with most of the re-
`sponsibility” to administer the new patent system. Fed-
`erico, Operation of the Patent Act of 1790, 18 J. Pat. Off.
`Soc. 237, 238–239 (1936). The Patent Board was a short-
`lived experiment because its members had much else to do.
`
`Jefferson candidly admitted that he had “been obliged to
`give undue & uninformed opinions on rights often valuable”
`without the “great deal of time” necessary to “understand &
`do justice by” patent applicants. Letter from T. Jefferson to
`H. Williamson (Apr. 1, 1792), in 6 Works of Thomas Jeffer-
`son 459 (P. Ford ed. 1904).
`
`In 1793, Congress shifted to a registration system admin-
`
`istered by the Secretary of State. See 1 Stat. 319–321. The
`Secretary no longer reviewed the substance of patent appli-
`cations but instead issued patents through a routine pro-
`cess “as a ministerial officer.” Grant v. Raymond, 6 Pet.
`
`
`
`
`
`
`
`

`

`3
`
`
`
` Cite as: 594 U. S. ____ (2021)
`
`Opinion of the Court
`218, 241 (1832). The courts would make the initial deter-
`mination of patent validity in a subsequent judicial pro-
`
`ceeding, such as an infringement suit. See 1 Stat. 322. This
`scheme unsurprisingly resulted in the Executive Branch is-
`suing many invalid patents and the Judicial Branch having
`to decide many infringement cases. See S. Doc. No. 338,
`24th Cong., 1st Sess., 3 (1836). Judge William Van Ness—
`who before taking the bench had served as second to Aaron
`
`Burr in his duel with Alexander Hamilton—lamented that
`Congress had left the door “open and unguarded” for im-
`posters to secure patents, with the consequences of “litiga-
`tion and endless trouble, if not total ruin, to the true inven-
`tor.” Thompson v. Haight, 23 F. Cas. 1040, 1041–1042 (No.
`
`13,957) (CC SDNY 1826). Congress heeded such concerns
`
`by returning the initial determination of patentability to
`the Executive Branch, see 5 Stat. 117–118, where it re-
`mains today.
`
`The present system is administered by the Patent and
`Trademark Office (PTO), an executive agency within the
`
`Department of Commerce “responsible for the granting and
`issuing of patents” in the name of the United States. 35
`U. S. C. §§1(a), 2(a)(1). Congress has vested the “powers
`and duties” of the PTO in a sole Director appointed by the
`
`President with the advice and consent of the Senate.
`§3(a)(1). As agency head, the Director “provid[es] policy di-
`rection and management supervision” for PTO officers and
`employees. §3(a)(2)(A).
`
`This suit centers on the Patent Trial and Appeal Board
`(PTAB), an executive adjudicatory body within the PTO es-
`
`tablished by the Leahy-Smith America Invents Act of 2011.
`125 Stat. 313. The PTAB sits in panels of at least three
`members drawn from the Director, the Deputy Director, the
`Commissioner for Patents, the Commissioner for Trade-
`
`marks, and more than 200 Administrative Patent Judges
`(APJs). 35 U. S. C. §§6(a), (c). The Secretary of Commerce
`
`appoints the members of the PTAB (except for the Director),
`
`
`
`
`
`

`

`4
`
`
`UNITED STATES v. ARTHREX, INC.
`
`Opinion of the Court
`
` including the APJs at issue in this dispute. §§3(b)(1),
`
` (b)(2)(A), 6(a). Like the 1790 Patent Board, the modern
`Board decides whether an invention satisfies the standards
`for patentability on review of decisions by primary examin-
`ers. §§6(b)(1), 134(a).
`Through a variety of procedures, the PTAB can also take
`
`
`a second look at patents previously issued by the PTO.
`
`
`§§6(b)(2)–(4). One such procedure is inter partes review.
`
`Established in 2011, inter partes review is an adversarial
`process by which members of the PTAB reconsider whether
`existing patents satisfy the novelty and nonobviousness re-
`quirements for inventions. See §6(a) of the America Invents
`Act, 125 Stat. 299. Any person—other than the patent
`owner himself—can file a petition to institute inter partes
`
`review of a patent. 35 U. S. C. §311(a). The Director can
`institute review only if, among other requirements, he de-
`
`termines that the petitioner is reasonably likely to prevail
`
`on at least one challenged patent claim. §314(a). Congress
`has committed the decision to institute inter partes review
`
` to the Director’s unreviewable discretion. See Thryv, Inc.
`v. Click-To-Call Technologies, LP, 590 U. S. ___, ___ (2020)
`(slip op., at 6). By regulation, the Director has delegated
`this authority to the PTAB itself. 37 CFR §42.4(a) (2020).
`
`The Director designates at least three members of the
`PTAB (typically three APJs) to conduct an inter partes pro-
`
`ceeding. 35 U. S. C. §6(c). The PTAB then assumes control
`
`of the process, which resembles civil litigation in many re-
`spects. §316(c). The PTAB must issue a final written deci-
`
`sion on all of the challenged patent claims within 12 to 18
`months of institution. §316(a)(11); see SAS Institute Inc. v.
`
`Iancu, 584 U. S. ___, ___ (2018) (slip op., at 5). A party who
`disagrees with a decision may request rehearing by the
`PTAB. 35 U. S. C. §6(c); 37 CFR §42.71(d).
`
`
`The PTAB is the last stop for review within the Executive
`Branch. A party dissatisfied with the final decision may
`seek judicial review in the Court of Appeals for the Federal
`
`
`
`
`
`

`

`
`
`
`
`5
`
`
`
` Cite as: 594 U. S. ____ (2021)
`
`Opinion of the Court
`Circuit. 35 U. S. C. §319. At this stage, the Director can
`
`intervene before the court to defend or disavow the Board’s
`decision. §143. The Federal Circuit reviews the PTAB’s
`
`application of patentability standards de novo and its un-
`derlying factual determinations for substantial evidence.
`See Oil States Energy Services, LLC v. Greene’s Energy
`
`Group, LLC, 584 U. S. ___, ___ (2018) (slip op., at 4). Upon
`expiration of the time to appeal or termination of any ap-
`peal, “the Director shall issue and publish a certificate can-
`celing any claim of the patent finally determined to be un-
`patentable, confirming any claim of the patent determined
`to be patentable, and incorporating in the patent by opera-
`tion of the certificate any new or amended claim determined
`to be patentable.” §318(b).
`
`B
`
`Arthrex, Inc. develops medical devices and procedures for
`orthopedic surgery. In 2015, it secured a patent on a surgi-
`
`cal device for reattaching soft tissue to bone without tying
`a knot, U. S. Patent No. 9,179,907 (’907 patent). Arthrex
`soon claimed that Smith & Nephew, Inc. and ArthroCare
`
`Corp. (collectively, Smith & Nephew) had infringed the ’907
`patent, and the dispute eventually made its way to inter
`
`partes review in the PTO. Three APJs formed the PTAB
`panel that conducted the proceeding and ultimately con-
`cluded that a prior patent application “anticipated” the in-
`
`vention claimed by the ’907 patent, so that Arthrex’s patent
`
`was invalid. See App. to Pet. for Cert. in No. 19–1434,
`p. 128a.
`
`On appeal to the Federal Circuit, Arthrex raised for the
`
`first time an argument premised on the Appointments
`Clause of the Constitution. That Clause specifies how the
`President may appoint officers who assist him in carrying
`out his responsibilities. Principal officers must be ap-
`pointed by the President with the advice and consent of the
`
`Senate, while inferior officers may be appointed by the
`
`
`
`

`

`6
`
`
`UNITED STATES v. ARTHREX, INC.
`
`Opinion of the Court
`President alone, the head of an executive department, or a
`
`court. Art. II, §2, cl. 2. Arthrex argued that the APJs were
`principal officers and therefore that their appointment by
`the Secretary of Commerce was unconstitutional. The Gov-
`ernment intervened to defend the appointment procedure.
`
`
`The Federal Circuit agreed with Arthrex that APJs were
`
`
`principal officers. 941 F. 3d 1320, 1335 (2019). Neither the
`Secretary nor Director had the authority to review their de-
`
`cisions or to remove them at will. The Federal Circuit held
`that these restrictions meant that APJs were themselves
`
`principal officers, not inferior officers under the direction of
`the Secretary or Director.
`
`To fix this constitutional violation, the Federal Circuit in-
`validated the tenure protections for APJs. Making APJs
`removable at will by the Secretary, the panel held, prospec-
`tively “renders them inferior rather than principal officers.”
`Id., at 1338. The Federal Circuit vacated the PTAB’s deci-
`sion and remanded for a fresh hearing before a new panel
`of APJs, who would no longer enjoy protection against re-
`moval. Id., at 1338–1340.
`
`This satisfied no one. The Government, Smith &
`Nephew, and Arthrex each requested rehearing en banc,
`which the Court of Appeals denied. 953 F. 3d 760, 761
`(2020) (per curiam). The parties then requested review of
`different aspects of the panel’s decision in three petitions
`for certiorari.
`
`We granted those petitions to consider whether the
`
`PTAB’s structure is consistent with the Appointments
`Clause, and the appropriate remedy if it is not. 592 U. S.
`
`___ (2020).
`
`
`
`
`II
`A
`
`The President is “‘responsible for the actions of the Exec-
`utive Branch’” and “‘cannot delegate [that] ultimate re-
`
`sponsibility or the active obligation to supervise that goes
`
`
`
`
`
`
`
`
`
`

`

`7
`
`
`
`
`
` Cite as: 594 U. S. ____ (2021)
`
`Opinion of the Court
`with it.’” Free Enterprise Fund v. Public Company Account-
`ing Oversight Bd., 561 U. S. 477, 496–497 (2010) (quoting
`Clinton v. Jones, 520 U. S. 681, 712–713 (1997) (BREYER, J.,
`concurring in judgment)). The Framers recognized, of
`course, that “no single person could fulfill that responsibil-
`ity alone, [and] expected that the President would rely on
`subordinate officers for assistance.” Seila Law LLC v. Con-
`sumer Financial Protection Bureau, 591 U. S. ___, ___
`(2020) (plurality opinion) (slip op., at 2).
`
`Today, thousands of officers wield executive power on be-
`half of the President in the name of the United States. That
`power acquires its legitimacy and accountability to the pub-
`lic through “a clear and effective chain of command” down
`from the President, on whom all the people vote. Free En-
`terprise Fund, 561 U. S., at 498. James Madison extolled
`this “great principle of unity and responsibility in the Exec-
`utive department,” which ensures that “the chain of de-
`pendence [will] 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.” 1 Annals
`of Cong. 499 (1789).
`
`The Appointments Clause provides:
`“[The President] shall nominate, and by and with the
`Advice and Consent of the Senate, shall appoint Am-
`
`bassadors, other public Ministers and Consuls, Judges
`
`of the supreme Court, and all other Officers of the
`United States, whose Appointments are not herein oth-
`
`erwise provided for, and which shall be established by
`
`Law: but 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.” Art. II, §2, cl. 2.
`
`Assigning the nomination power to the President guaran-
`tees accountability for the appointees’ actions because the
`“blame of a bad nomination would fall upon the president
`
`
`
`
`
`
`
`

`

`8
`
`
`UNITED STATES v. ARTHREX, INC.
`
`Opinion of the Court
`singly and absolutely.” The Federalist No. 77, p. 517 (J.
`Cooke ed. 1961) (A. Hamilton). As Hamilton wrote, the
`“sole and undivided responsibility of one man will naturally
`beget a livelier sense of duty and a more exact regard to
`
`
`reputation.” Id., No. 76, at 510–511. The Appointments
`
`Clause adds a degree of accountability in the Senate, which
`shares in the public blame “for both the making of a bad
`
`appointment and the rejection of a good one.” Edmond v.
`
`United States, 520 U. S. 651, 660 (1997).
`Only the President, with the advice and consent of the
`
`
`Senate, can appoint noninferior officers, called “principal”
`officers as shorthand in our cases. See id., at 659. The “de-
`fault manner of appointment” for inferior officers is also
`nomination by the President and confirmation by the Sen-
`ate. Id., at 660. But the Framers foresaw that “when offices
`
`became numerous, and sudden removals necessary, this
`mode might be inconvenient.” United States v. Germaine,
`99 U. S. 508, 510 (1879). Reflecting this concern for “ad-
`ministrative convenience,” the Appointments Clause per-
`mits Congress to dispense with joint appointment, but only
`
`for inferior officers. Edmond, 520 U. S., at 660. Congress
`
`may vest the appointment of such officers “in the President
`alone, in the Courts of Law, or in the Heads of Depart-
`ments.”
`
`
`
`B
`
`Congress provided that APJs would be appointed as infe-
`rior officers, by the Secretary of Commerce as head of a de-
`partment. The question presented is whether the nature of
`their responsibilities is consistent with their method of ap-
`pointment. As an initial matter, no party disputes that
`APJs are officers—not “lesser functionaries” such as em-
`ployees or contractors—because they “exercis[e] significant
`authority pursuant to the laws of the United States.” Buck-
`ley v. Valeo, 424 U. S. 1, 126, and n. 162 (1976) (per curiam);
`
`see Lucia v. SEC, 585 U. S. ___, ___–___ (2018) (slip op., at
`
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`9
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`Opinion of the Court
`8–9). APJs do so when reconsidering an issued patent, a
`
`power that (the Court has held) involves the adjudication of
`public rights that Congress may appropriately assign to ex-
`ecutive officers rather than to the Judiciary. See Oil States,
`584 U. S., at ___–___ (slip op., at 8–9).
`
`
`The starting point for each party’s analysis is our opinion
`
`in Edmond. There we explained that “[w]hether one is an
`
`‘inferior’ officer depends on whether he has a superior”
`
`other than the President. 520 U. S., at 662. An inferior
`
`officer must be “directed and supervised at some level by
`
`others who were appointed by Presidential nomination with
`the advice and consent of the Senate.” Id., at 663.
`In Edmond, we applied this test to adjudicative officials
`within the Executive Branch—specifically, Coast Guard
`Court of Criminal Appeals judges appointed by the Secre-
`tary of Transportation. See id., at 658. We held that the
`judges were inferior officers because they were effectively
`supervised by a combination of Presidentially nominated
`and Senate confirmed officers in the Executive Branch:
`first, the Judge Advocate General, who “exercise[d] admin-
`
`istrative oversight over the Court of Criminal Appeals” by
`prescribing rules of procedure and formulating policies for
`court-martial cases, and could also “remove a Court of
`Criminal Appeals judge from his judicial assignment with-
`out cause”; and second, the Court of Appeals for the Armed
`Forces, an executive tribunal that could review the judges’
`decisions under a de novo standard for legal issues and a
`
`deferential standard for factual issues. Id., at 664–665.
`“What is significant,” we concluded, “is that the judges of
`the Court of Criminal Appeals have no power to render a
`final decision on behalf of the United States unless permit-
`ted to do so by other Executive officers.” Id., at 665.
`
`
`Congress structured the PTAB differently, providing only
`half of the “divided” supervision to which judges of the
`
`Court of Criminal Appeals were subject. Id., at 664. Like
`
`the Judge Advocate General, the PTO Director possesses
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`10
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`UNITED STATES v. ARTHREX, INC.
`
`Opinion of the Court
`
` powers of “administrative oversight.” Ibid. The Director
`
`
`fixes the rate of pay for APJs, controls the decision whether
`to institute inter partes review, and selects the APJs to re-
`consider the validity of the patent. 35 U. S. C. §§3(b)(6),
`6(c), 314(a). The Director also promulgates regulations gov-
`erning inter partes review, issues prospective guidance on
`
`patentability issues, and designates past PTAB decisions as
`“precedential” for future panels. §§3(a)(2)(A), 316(a)(4);
`
`Brief for United States 6. He is the boss, except when it
`
`comes to the one thing that makes the APJs officers exer-
`cising “significant authority” in the first place—their power
`
`to issue decisions on patentability. Buckley, 424 U. S., at
`
`126. In contrast to the scheme approved by Edmond, no
`
`principal officer at any level within the Executive Branch
`“direct[s] and supervise[s]” the work of APJs in that regard.
`
`520 U. S., at 663.
`
`
`Edmond goes a long way toward resolving this dispute.
`What was “significant” to the outcome there—review by a
`
`
`superior executive officer—is absent here: APJs have the
`“power to render a final decision on behalf of the United
`
`States” without any such review by their nominal superior
`or any other principal officer in the Executive Branch. Id.,
`at 665. The only possibility of review is a petition for re-
`hearing, but Congress unambiguously specified that “[o]nly
`
`the Patent and Trial Appeal Board may grant rehearings.”
`§6(c). Such review simply repeats the arrangement chal-
`lenged as unconstitutional in this suit.
`
`This “diffusion of power carries with it a diffusion of ac-
`countability.” Free Enterprise Fund, 561 U. S., at 497. The
`restrictions on review relieve the Director of responsibility
`
`for the final decisions rendered by APJs purportedly under
`
`his charge. The principal dissent’s observation that “the
`
`Director alone has the power to take final action to cancel a
`patent claim or confirm it,” post, at 7 (opinion of THOMAS,
`J.), simply ignores the undisputed fact that the Director’s
`
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` 11
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`Opinion of the Court
`“power” in that regard is limited to carrying out the minis-
`terial duty that he “shall issue and publish a certificate”
`canceling or confirming patent claims he had previously al-
`lowed, as dictated by the APJs’ final decision. §318(b); see
`
`§§131, 153. The chain of command runs not from the Direc-
`
`tor to his subordinates, but from the APJs to the Director.
`
`The Government and Smith & Nephew assemble a cata-
`log of steps the Director might take to affect the deci-
`sionmaking process of the PTAB, despite his lack of any
`statutory authority to review its decisions. See Brief for
`United States 30–32; Brief for Smith & Nephew, Inc., et al.
`25–27. The Government reminds us that it is the Director
`
`who decides whether to initiate inter partes review.
`§314(a). The Director can also designate the APJs who will
`
`decide a particular case and can pick ones predisposed to
`his views. §6(c). And the Director, the Government asserts,
`can even vacate his institution decision if he catches wind
`of an unfavorable ruling on the way. The “proceeding will
`have no legal consequences” so long as the Director jumps
`in before the Board issues its final decision. Brief for
`
`United States 31.
`
`If all else fails, the Government says, the Director can in-
`
`tervene in the rehearing process to reverse Board decisions.
`The Government acknowledges that only the PTAB can
`
`grant rehearing under §6(c). But the Director, according to
`the Government, could manipulate the composition of the
`PTAB panel that acts on the rehearing petition. For one
`thing, he could “stack” the original panel to rehear the case
`with additional APJs assumed to be more amenable to his
`preferences. See Oil States, 584 U. S., at ___ (GORSUCH, J.,
`dissenting) (slip op., at 3). For another, he could assemble
`an entirely new panel consisting of himself and two other
`officers appointed by the Secretary—in practice, the Com-
`missioner for Patents and the APJ presently designated as
`Chief Judge—to decide whether to overturn a decision and
`
`reach a differe