Nos. 19-1434, 19-1452, 19-1458
`
`In the Supreme Court of the United States
`_____________________
`
`UNITED STATES,
` Petitioner,
`v.
`
`ARTHREX, INC., et al.,
` Respondents.
`_____________________
`
`SMITH & NEPHEW, INC., et al.,
` Petitioners,
`v.
`
`ARTHREX, INC., et al.,
` Respondents.
`_____________________
`
`ARTHREX, INC.,
` Petitioner,
`v.
`
`SMITH & NEPHEW, INC., et al.,
` Respondents.
`_____________________
`
`On Writs of Certiorari to the United States
`Court of Appeals for the Federal Circuit
`_____________________
`
`BRIEF OF PROFESSOR JOHN HARRISON AS
`AMICUS CURIAE IN SUPPORT OF NEITHER PARTY
`_____________________
`
`
`
`December 1, 2020
`
`JOHN HARRISON
`Counsel of Record
`UNIVERSITY OF VIRGINIA
`SCHOOL OF LAW
`580 Massie Road
`Charlottesville, VA 22903
`(434) 924-3093
`jh8m@law.virginia.edu
`
`
`
`
`

`

`ii
`
`TABLE OF CONTENTS
`
`TABLE OF AUTHORITIES ....................................... iv
`
`INTEREST OF AMICUS CURIAE ............................. 1
`
`SUMMARY OF ARGUMENT...................................... 1
`
`ARGUMENT ................................................................. 4
`
`I. The Court of Appeals Relied on the
`Mistaken Assumption that Courts Give
`Remedies that Change the Content of
`Statutory Law ................................................ 4
`
`A. The Court of Appeals Decided the Case
`on the Assumption that Its Decision
`Changed the Content of the Statutory
`Law, Transforming a Principal Office
`into an Inferior Office ............................ 4
`
`B.
`
`Invalidation, Severance of
`Unconstitutional Statutory Provisions,
`and the Activation of Statutory
`Fallback Systems, Are Brought About
`by the Constitution and the Statutes
`Involved, and Are Not Remedies by
`Which Courts Change the Content of
`the Law ................................................... 5
`
`C. The Possibility that Lower Courts May
`Resolve the Same Question Differently
`Demonstrates that Courts Do Not Give
`Remedies that Change the Content of
`Statutory Law, But Rather Set
`Precedents, the Scope of Which is
`Limited for Courts Other than this
`Court ....................................................... 9
`
`
`
`

`

`
`
`iii
`
`II. Because Invalidity Arises, and Statutory
`Fallbacks Are Effective, Ab Initio, If the
`Court of Appeals Was Correct on the
`Constitutional and Fallback Issues, the
`Appointments of APJs at Issue In this Case
`Were Valid When Made and Did Not
`Become Valid Only After the Lower Court’s
`Decision ........................................................ 14
`
`CONCLUSION ............................................................ 18
`
`
`
`
`
`
`

`

`iv
`
`TABLE OF AUTHORITIES
`
`
`
`CASES
`
`Alaska Airlines, Inc. v. Brock,
`480 U.S. 678 (1987) ............................................... 16
`
`Arthrex, Inc. v. Smith & Nephew, Inc.,
`941 F.3d 1320 (Fed. Cir. 2019) ................. 4, 5, 7, 15
`
`Ayotte v. Planned Parenthood
`of N. New England,
`546 U.S. 320 (2006) ................................................. 8
`
`Barr v. Am. Ass’n of Pol. Consultants, Inc.,
`140 S. Ct. 2335 (2020) ....................................... 6, 16
`
`Bowsher v. Synar,
`478 U.S. 714 (1986) ........................................... 7, 17
`
`Free Enterprise Fund v.
`Public Accounting Oversight Bd.,
`561 U.S. 477 (2010) ............................................... 12
`
`Intercollegiate Broad. Sys., Inc. v.
`Copyright Royalty Bd.,
`684 F. 3d 1332 (D.C. Cir. 2012)...................... 11, 12
`
`Leavitt v. Jane L.,
`518 U.S. 137 (1996) ................................................. 8
`
`Lucia v. SEC,
`138 S. Ct. 2044 (2018) ............................................. 5
`
`Marbury v. Madison,
`5 U.S. (1 Cranch) 137 (1803) .................................. 6
`
`Myers v. United States,
`272 U.S. 52 (1926) ........................................... 15, 16
`
`United States v. Booker,
`543 U.S. 220 (2005) ................................................. 8
`
`
`
`

`

`
`
`v
`
`United States v. Davis,
`139 S. Ct. 2319 (2019) ......................................... 6, 7
`
`CONSTITUTIONAL PROVISION
`
`U.S. Const. art. II, § 2, cl. 2 ......................................... 7
`
`STATUTES
`
`5 U.S.C. § 703 .............................................................. 10
`
`5 U.S.C. § 7513(a) ....................................... 9, 11, 13, 15
`
`17 U.S.C. §§ 801-02..................................................... 11
`
`17 U.S.C. § 802(i) ........................................................ 12
`
`28 U.S.C. § 1295 .................................................... 10, 12
`
`28 U.S.C. § 1331 .......................................................... 10
`
`28 U.S.C. § 1491(a) ..................................................... 12
`
`28 U.S.C. § 2201 .......................................................... 10
`
`
`
`
`
`
`
`
`
`

`

`
`
`INTEREST OF AMICUS CURIAE
`
`
`
`
`
`John Harrison is a professor at the University of
`Virginia School of Law. He teaches and writes about
`constitutional
`structure,
`federal
`courts,
`and
`severability, and he has an interest in the sound
`development of the law in these fields.
`
`SUMMARY OF ARGUMENT
`
`The court of appeals decided this case on a
`mistaken assumption about the role of the courts
`when they find that a statute is unconstitutional.
`Having found that the statutes as written authorize a
`Head of Department to appoint to a principal office,
`the lower court proceeded as though it could cure a
`constitutional violation by altering the content of the
`statute. Acting on the assumption that its decision to
`eliminate a removal restriction changed the provision
`governing removal of Administrative Patent Judges
`prospectively only, the court concluded that Patent
`Trial and Appeal Board decisions made before the
`court had altered section 7513(a) of Title 5 should be
`vacated. Decisions made after the judicial change in
`
`
`
`
`
` The parties have consented in writing to the filing of this brief,
`and their letters of consent have been filed with the Clerk. No
`party’s counsel authored this brief in whole or in part, and no
`counsel or party made a monetary contribution intended to fund
`its preparation or submission. The University of Virginia School
`of Law provides financial support for activities related to faculty
`members’ research and scholarship, which helped defray the
`costs of preparing this brief. (The School is not a signatory to the
`brief, and the views expressed here are those of the amicus
`curiae.) Otherwise, no person or entity other than the amicus
`curiae has made a monetary contribution intended to fund the
`preparation or submission of this brief.
`
`
`
`

`

`2
`
`
`the statute, the court found, would be consistent with
`the Constitution.
`
` Courts do not give remedies that cause
`unconstitutional statutes to become invalid. They do
`not give remedies that sever parts of statutes, altering
`unconstitutional statutes so that they become
`constitutional and valid. Neither Article III nor the
`federal law of remedies authorizes invalidation or
`severance in those senses. When a statutory rule, or
`a combination of statutory rules, is inconsistent with
`the Constitution, the Constitution makes the rule or
`combination of rules
`invalid.
` Courts
`identify
`constitutional invalidity as appropriate in deciding
`cases. When a court finds that a rule or combination
`of rules is inoperative because of the Constitution, it
`often must identify the fallback rule that applies in
`the contingency of unconstitutionality. In doing so,
`the court does not apply a remedy that changes the
`content of the statute. It finds the content the statute
`already has. Courts have no power to revise statutes
`to make them constitutional. They need no such
`power. All they need is the power to say what the law
`is.
`
` This case illustrates the fallacy of the assumption
`that courts invalidate statutory rules and revise
`statutes by
`rewriting
`them
`to make
`them
`constitutional. That reasoning takes an analogy too
`far. Courts’ holdings can have effects similar to those
`of changes in statutory law brought about by the
`legislature. The effects of judicial holdings come from
`their precedential force, however, not from actual
`changes in statutes. If a federal court of appeals could
`give remedies that altered the content of statutory
`law, other courts would have to apply the statute as
`
`
`
`

`

`3
`
`
`altered by the court of appeals’ remedy. Other federal
`courts of appeals are not required to follow the
`Federal Circuit’s conclusion in this case, however,
`because they are not bound by its precedents on this
`issue. This Court’s decisions can have effects similar
`to the effects of changes to statutes brought about by
`Congress, but not because the Court gives a remedy
`that revises statutory law. The difference between the
`effects of decisions of this Court and of the courts of
`appeals reflects the different precedential scope of
`those decisions. No federal court gives a remedy that
`changes federal statutory law the way Congress does.
`Courts find invalidity under the Constitution and set
`precedents by doing so. They do not bring invalidity
`about.
`
` The court of appeals’ error on this point affected
`its reasoning concerning the timing of the legal events
`involved in this case. Invalidity caused by the
`Constitution arises when a statute is enacted, not
`later when a court finds invalidity. Severance and
`statutory fallback systems are part of the content of
`statutory law, and so go into effect when the relevant
`statute is adopted. Their effectiveness does not wait
`for judicial decision. In this case, if the applicable
`statutes call for an appointment by a Head of
`Department
`to a principal office, which
`the
`Constitution does not allow, the courts must find the
`fallback system implicit in the statutes. If under that
`fallback system Administrative Patent Judges are
`freely removable by the Secretary of Commerce so
`that the office is inferior, and the Secretary appoints
`to the office, that system was in effect when the
`appointments at issue here were made. If those
`assumptions are correct, those appointments were by
`a Head of Department to an inferior office and were
`
`
`
`

`

`4
`
`
`valid. Their validity did not have to wait for the court
`of appeals to revise the statute, which it cannot do. If
`this Court agrees with the court of appeals on the
`constitutional and fallback questions, it should
`conclude that the Administrative Patent Judges’
`appointments were valid when made and continue to
`be valid.
` (Amicus takes no position on the
`constitutional issue, nor on the fallback system that
`applies if the statute as written calls for appointment
`to a principal office by a Head of Department.)
`
`ARGUMENT
`
`I. The Court of Appeals Relied on the
`Mistaken Assumption that Courts Give
`Remedies that Change the Content of
`Statutory Law
`A. The Court of Appeals Decided the Case
`on the Assumption that Its Decision
`Changed the Content of the Statutory
`Law, Transforming a Principal Office
`into an Inferior Office
`
`The court of appeals decided this case on the
`assumption that it could give a remedy that would
`change the content of the statutory law. It found that
`“severing the portion of the Patent Act restricting
`removal of the APJs [Administrative Patent Judges]
`is sufficient to render the APJs inferior officers and
`remedy the constitutional appointment problem.”
`Arthrex, Inc. v. Smith & Nephew, Inc., 941 F.3d 1320,
`1325 (Fed. Cir. 2019). The court did not use “remedy”
`by analogy or as a figure of speech. The next sentence
`in its opinion is “[a]s the final written decision on
`appeal issued while there was an Appointments
`Clause violation, we vacate and remand. Following
`
`
`
`

`

`5
`
`
`Lucia v. S.E.C., the appropriate course of action is for
`this case to be remanded to a new panel of APJs to
`which Arthrex is entitled.” Id. (citation omitted). The
`court’s reference to a period “while there was an
`Appointments Clause violation” shows that
`it
`assumed that prior to its decision, the statutes made
`the office of Administrative Patent Judge a principal
`office, but that the decision changed the law so that it
`no longer violates the Constitution. That reasoning
`also underlay the court’s directive that on remand the
`case be heard by a new panel of APJs. Id at 1340.
`Unlike this Court in Lucia v. SEC, 138 S. Ct. 2044
`(2018), the Federal Circuit was not giving an
`instruction concerning the contingency in which
`persons whose appointment had been invalid would
`receive a new, valid, appointment, id. at 2055
`(directing that the individual who had heard the case
`without a valid appointment not hear it if he later
`received a valid appointment). The court of appeals
`assumed that after it changed the office from principal
`to inferior by altering the statute, the current APJs’
`earlier appointments by the Secretary would become
`effective.
`B. Invalidation,
`of
`Severance
`Unconstitutional Statutory Provisions,
`and the Activation of Statutory Fallback
`Systems, Are Brought About by the
`Constitution and the Statutes Involved,
`and Are Not Remedies by Which Courts
`Change the Content of the Law
`
`The court of appeals’ reasoning stretched an
`analogy past its breaking point. The court treated its
`holding as if that holding were a remedy that changed
`the content of statutory law. That is why the lower
`
`
`
`

`

`6
`
`
`court applied the statute as modified prospectively
`only. After its remedy had worked a change in the
`law, the court reasoned, APJs would have valid
`appointments to the office they hold. Before that
`change, the office was principal, not inferior, and the
`judges’ appointment by the Secretary was ineffective.
`
` Neither invalidation of unconstitutional aspects
`of a statute, nor severance of severable aspects, nor
`the activation of a statutory fallback system, is a
`remedy by which courts change the content of
`statutory law. Courts cannot and need not bring
`about such changes. The Constitution itself brings
`about the invalidity of unconstitutional statutory
`rules and combinations of rules.
` Courts find
`invalidity as appropriate in the process of deciding
`cases, but do not cause it. Marbury v. Madison, 5 U.S.
`(1 Cranch) 137 (1803) (statutory rules that are
`inconsistent with the Constitution are invalid). “The
`term ‘invalidate’ is a common judicial shorthand when
`the Court holds that a particular provision is unlawful
`and therefore may not enforced[.]” Barr v. Am. Ass’n
`of Pol. Consultants, Inc., 140 S. Ct. 2335, 2351 n.8
`(2020) (opinion of Kavanaugh, J.). “[H]owever, when
`it ‘invalidates’ a law as unconstitutional, the Court
`does not formally repeal the law from the U.S. Code or
`the Statutes at Large.” Id.
`
`the
`is produced by
`invalidity
` Because
`Constitution itself and not by a judicial remedy,
`unconstitutional criminal statutes are void when
`adopted, and hence never criminalize the conduct they
`purport to forbid. See, e.g, United States v. Davis, 139
`S. Ct. 2319, 2323-24
`(2019)
`(explaining that
`unconstitutionally vague statutory rule is “no law at
`all” and cannot support a criminal conviction). Also
`
`
`
`

`

`7
`
`
`for that reason, subsequent judicial findings of
`unconstitutionality and invalidity apply to conduct
`that took place after the statute was adopted but
`before the judicial decision. See id. Judicial findings
`of invalidity are retrospective in that fashion because
`they recognize invalidity that had already occurred.
`
` A statute’s operation in the contingency that it is
`to some extent unconstitutional is part of the statute’s
`content. Explicit severability or fallback provisions,
`see, e.g., Bowsher v. Synar, 478 U.S. 714, 735-36
`(1986) (applying statutory fallback system in light of
`the primary system’s unconstitutionality), underline
`that point.1 They govern because the issue they
`
`
`
`1
`
` The court of appeals referred to the issue as one of severability,
`e.g., 941 F.3d at 1335 (heading of section C.). This brief refers
`both to severability and to the fallback system that operates in
`case of unconstitutionality. Describing the question in terms of
`a fallback is more strictly correct. This case does not involve the
`most common kind of severability issue, which arises when one
`aspect of a statute is independently unconstitutional, and the
`question is whether other aspects are severable from it. Rather,
`this case involves the possibility that the statutes involved have
`features that are independently constitutional but that form a
`combination the Constitution does not allow. Congress could
`make the office of Administrative Patent Judge principal.
`Congress may create principal offices, provided the President
`appoints to them. U.S. Const. art. II, § 2, cl. 2 (Appointments
`Clause). Appointment to an office by the Secretary of Commerce
`is not itself unconstitutional. Congress may provide for
`appointment by the Secretary, a Head of Department, provided
`the office involved is inferior. Id. Appointments Clause problems
`arise from a mismatch between an office and the appointing
`authority. The solution to a mismatch is not to find that an
`unconstitutional feature of the system is severable, because no
`feature is itself unconstitutional. Describing the response to
`
`
`
`
`

`

`8
`
`
`address concerns the content of statutory law. The
`principle that the severability of a state statute is “a
`matter of state law,” Leavitt v. Jane L., 518 U.S. 137,
`139 (1996), similarly reflects the assumption that the
`severability of a state statute is an aspect of the
`statute’s content, which for state statutes is a
`question of state law.
`
` Severance of unconstitutional provisions, and the
`activation of fallback systems, are brought about by
`the statutes involved. Courts do not give remedies
`that change the content of statutory law, deleting one
`part while retaining another, or taking out specific
`words or phrases.2
`
`
`
`possible unconstitutionality in terms of a fallback system
`expresses the point that any constitutional defect inheres in the
`whole system, and the question concerns the different system
`that the statute implicitly or explicitly creates in the contingency
`of unconstitutionality of its primary system.
`
`2
`
` Questions of severability sometimes arise in formulating a
`remedy. In Ayotte v. Planned Parenthood of N. New England,
`546 U.S. 320 (2006), the question of severability affected the
`injunction to be issued, id. at 331-32. In United States v. Booker,
`the question of severability affected the Court's order concerning
`the remand. 543 U.S. 220, 227-29 (2005). Injunctions and
`instructions on remand are remedies, but the courts do not issue
`remedies that alter the content of statutory law.
`
`
`
`

`

`
`
`9
`
`C. The Possibility that Lower Courts May
`Resolve the Same Question Differently
`Demonstrates that Courts Do Not Give
`Remedies that Change the Content of
`Statutory Law, But Rather Set
`Precedents, the Scope of Which is
`Limited for Courts Other than this
`Court
`
`The court of appeals found that the relevant
`statutes as written conferred an appointment power
`the Constitution does not allow. It concluded, in light
`of that constitutional difficulty, that the removal
`protection of 5 U.S.C. § 7513(a) does not apply to
`APJs. The court reasoned as though it were giving a
`remedy that changed the content of the statute. Its
`conclusion, however, was a holding, not a remedy. It
`stated but did not change the law. This case
`illustrates the limits of the analogy between remedies
`and holdings. The two are alike to some extent
`because of the precedential effects of holdings. A
`holding of this Court has effects very much like those
`of a change in the statutory law, because all other
`courts follow its precedents concerning federal law.
`
` The analogy between holdings and remedies
`breaks down when the holding is by a court other than
`this one. This case illustrates the difference between
`remedies, which change legal relations, and holdings,
`which set precedent. The court of appeals assumed
`that it had given a remedy that changed the content
`of Title 5, as an act of Congress could. Courts apply
`statutory law, so if the Federal Circuit had amended
`Title 5, other courts would have to apply that statute
`as amended. Other federal courts of appeals,
`however, are not bound by the Federal Circuit’s
`
`
`
`

`

`10
`
`
`conclusion, because that conclusion is a holding and
`they are not bound by the Federal Circuit’s
`precedents.
`
` An example based on this case shows that when
`they find invalidity or severance, or implement
`statutory fallback systems, courts set precedents but
`do not change the statutory law. According to the
`court of appeals’ reasoning, its decision changed Title
`5, and expanded the removal authority of the
`Secretary of Commerce. Suppose that the Secretary,
`in reliance on that new authority, were to give
`instructions to the APJs and say that those who did
`not comply would be removed. If the threat of removal
`were sufficiently likely to be carried out, it could
`justify a declaratory proceeding by an APJ. The judge
`would seek a declaration that, because of the
`statutory removal restriction, the judge is immune
`from removal other than for the reasons set out in
`§ 7513(a).3
`
` A declaratory proceeding of that kind would be
`brought under the Declaratory Judgment Act, 28
`U.S.C. § 2201, and the Administrative Procedure Act,
`5 U.S.C. § 703, with jurisdiction under 28 U.S.C.
`§ 1331. It could be brought, for example, in the
`District Court for the District of Columbia. Such a
`declaratory proceeding would not be subject to the
`Federal Circuit’s appellate jurisdiction under 28
`U.S.C. § 1295. The district court might find that the
`office of Administrative Patent Judge as defined by
`
`
`
`3
`
` See 28 U.S.C. § 2201 (courts may declare the rights and other
`legal relations of the party seeking the declaration). This
`example assumes events that take place before this Court has
`resolved the question of the Secretary’s removal power.
`
`
`
`

`

`11
`
`
`the statutes is inferior, so that no fallback inquiry is
`necessary and the removal restriction of 5 U.S.C.
`§ 7513(a) remains in effect. The district court might
`then give declaratory relief. The D.C. Circuit might
`agree, and affirm the declaratory judgment. With
`that judgment in effect, removal of the plaintiff judge
`for any reason not allowed by 5 U.S.C. § 7513(a) would
`be unlawful. Unless and until this Court holds to the
`contrary, the D.C. Circuit is free to conclude that
`§ 7513(a) is in effect as written. The D.C. Circuit is
`not bound by the Federal Circuit’s precedents. It is
`not obliged to apply the statute as amended by the
`Federal Circuit, because courts cannot amend
`statutes in the sense in which Congress can.4
`
`
`
`4
`
` Another example, with the courts reversed, also illustrates the
`point. A D.C. Circuit case, Intercollegiate Broadcasting System,
`Inc. v. Copyright Royalty Board, 684 F. 3d 1332 (D.C. Cir. 2012),
`cert. denied, 133 S. Ct. 2735 (2013), involved an Appointments
`Clause challenge to the appointment of members of the
`Copyright Royalty Board. The board’s members, Copyright
`Royalty Judges (CRJs), are appointed by the Librarian of
`Congress. 17 U.S.C. §§ 801-02. The statute provides that they
`may be removed only for misconduct, neglect of duty, or
`disqualifying disability. 17 U.S.C. § 802(i). Intercollegiate
`Broadcasting System (IBS) challenged an adverse decision by the
`Copyright Royalty Board. IBS argued that as established by the
`statute the office of Copyright Royalty Judge is principal,
`pointing to the limited supervision produced by the removal
`restriction, and that the Librarian of Congress is not a Head of
`Department. 684 F. 3d at 1336.
`
`The D.C. Circuit in Intercollegiate Broadcasting System
`
`concluded that the Librarian of Congress is a Head of
`Department for purposes of the Appointments Clause, 684 F. 3d
`at 1341-42, but that the statute as written made the office of
`Copyright Royalty Judge principal and not inferior, id. at 1340.
`
`
`
`
`

`

`
`
`12
`
` Holdings are not remedies, and are like remedies
`only to a limited extent. The analogy between a
`holding of invalidity under the Constitution and a
`change in statutory law is strongest with respect to
`this Court’s holdings. That is not because this Court
`can give remedies that no other court can give. All
`federal courts administer the same law of remedies.
`The difference is that this Court’s precedents on
`federal law bind all other courts.
`
` Another possibility related to this case illustrates
`the error in thinking that judicial precedents actually
`change the law. Suppose that, while this case is
`pending before this Court, the Secretary were to
`
`
`
`The court of appeals reasoned as if it could apply a remedy that
`would change the content of the statute. “To remedy the
`violation, we follow the Supreme Court’s approach in Free
`Enterprise Fund v. Public Accounting Oversight Bd., 561 U.S.
`477 (2010), by invalidating and severing the restrictions on the
`Librarian of Congress’s ability to remove the CRJs.” 684 F. 3d
`at 1334 (additional citations omitted).
`
`The D.C. Circuit cannot change the content of statutory law
`
`any more than the Federal Circuit can. After the decision in
`Intercollegiate Broadcasting System, the Librarian of Congress
`might have purported to remove a CRJ contrary to 17 U.S.C.
`§ 802(i), relying on the D.C. Circuit’s purported elimination of
`the removal restriction. The purportedly removed judge might
`have sought backpay in the United States Court of Federal
`Claims under 28 U.S.C. § 1491(a) (giving jurisdiction over claims
`against the United States for money damages founded on federal
`statutes and contracts with the federal government). Decisions
`of the Court of Federal Claims are appealable to the Federal
`Circuit, 28 U.S.C. § 1295(a)(3), which is not bound by the D.C.
`Circuit’s precedents. In such a case, the Federal Circuit might
`have concluded that the removal restriction is intact and that the
`CRJ had been unlawfully removed.
`
`
`
`
`
`

`

`13
`
`
`purport to remove an APJ for reasons not allowed by
`5 U.S.C. § 7513(a), but allowable under the Federal
`Circuit’s decision. If courts can change statutory law,
`that removal would be effective. In this case, this
`Court might find that the office of Administrative
`Patent Judge as defined by the statutes is inferior, so
`that appointment by the Secretary is constitutional,
`and reverse the Federal Circuit. If courts change
`statutory law, such a decision by this Court would
`change the statutory law back to what it had been
`before the lower court’s decision. In the interim the
`statute would have stood as amended by the lower
`court. The situation would be as if Congress had
`repealed and then reinstated the removal restriction.
`The removal, having been made while the statute had
`no restriction, would remain effective.
`
` That result would be nonsensical. If this Court
`concludes that the statutory system as enacted
`creates an inferior office, it will have concluded that
`the law has always had that feature. The Federal
`Circuit will have erred, but will not have actually
`changed § 7513(a). On this score too, the analogy
`between holding and remedy breaks down for lower
`courts, because they can be reversed, whereas this
`Court is final. Thinking that a decision that may yet
`be reversed can change the statutory law leads to the
`conclusion that if such a decision is reversed, the law
`is changed again. That difficulty arises from the
`misleading analogy between holdings and remedies.
`Holdings state the law as found. Remedies change
`parties’ legal relations, but no remedy can change the
`content of a statute.
`
`
`
`

`

`14
`
`
`II. Because Invalidity Arises, and Statutory
`Fallbacks Are Effective, Ab Initio, If the
`Court of Appeals Was Correct on the
`Constitutional and Fallback Issues, the
`Appointments of APJs at Issue In this Case
`Were Valid When Made and Did Not Become
`Valid Only After the Lower Court’s Decision
`
`The court of appeals misunderstood the roles of
`the Constitution, the statutes at issue, and the courts,
`in cases that involve constitutional invalidity and
`statutory fallbacks. That misunderstanding led the
`court to decide this case incorrectly, assuming that it
`was correct about the constitutional issue and the
`statutory fallback.5 The court’s error concerns the
`time at which legal events occur.
`
` As the court of appeals understood the situation,
`the statute as adopted was unconstitutional. The
`statute authorized a Head of Department to appoint
`to a principal office, which the Constitution does not
`allow. The court’s decision “severing” the removal
`restriction, however, changed the statutory law and
`thereby cured the constitutional defect. Once the
`court of appeals had changed the statute, the office
`became inferior, and a Head of Department could
`appoint to it. According to this reasoning, APJs
`
`
`
`5
`
` The decision below was also incorrect if the statutes involved
`have no constitutional defect. The decision is correct only if the
`statutes as written combine a principal office with appointment
`by a Head of Department and the fallback is not an inferior office
`with appointment by the Secretary of Commerce. If the statute
`as written is inconsistent with the Constitution and no fallback
`is in operation that authorizes the appointments the APJs have
`received from the Secretary, then they lack valid appointments.
`
`
`
`

`

`15
`
`
`lacked valid appointments prior to the court of
`appeals’ act of severance. That act of severance
`changed the law and caused the appointments the
`Secretary had previously made to become effective.
`The court of appeals vacated decisions of the PTAB
`made prior to the court’s decision, but stated that
`PTAB decisions made after the Federal Circuit’s
`decision would be valid under the Appointments
`Clause. 941 F. 3d at 1338-39. The court of appeals
`reasoned that its decision cured the constitutional
`violation, but did so only prospectively.6
`
` Judicial decisions say what the law is, but courts
`do not give remedies that invalidate unconstitutional
`statutory provisions. The Constitution itself causes
`statutory rules that are inconsistent with it to be
`invalid. Invalidity results from the Constitution’s
`self-executing effect, and does not wait until a court
`finds it. That is why findings of unconstitutionality
`generally apply to events that took place after an
`unconstitutional statute was adopted but before the
`judicial finding.
`
` Myers v. United States, 272 U.S. 52 (1926),
`illustrates the ab initio operation of the Constitution.
`Myers was a suit for backpay, maintained in this
`Court by the administratrix of a Postmaster who had
`been removed by the President contrary to a statutory
`removal restriction. The Court found that the
`restriction was unconstitutional and invalid, id. at
`
`
`
`6
`
` Another theory that might support the court of appeals’ result
`is that the APJs wrongly believed that they were protected from
`removal by 5 U.S.C. § 7513(a), and that the incorrect belief
`somehow tainted their decision. The court of appeals did not rely
`on that reasoning.
`
`
`
`

`

`16
`
`
`176, and denied the claim for backpay, id. at 177. The
`disposition of the case rested on the assumption that
`the removal restriction had been invalid when
`adopted. If it had become invalid only when the Court
`found it to be unconstitutional, it would have been
`valid from the day Myers was removed to the end of
`the four-year term to which he had been appointed.
`See id. at 106 (explaining that Myers claimed backpay
`up to the expiration of his term in July 1921).
`
` Similar principles govern the timing of severance
`and the operation of statutory fallback systems. A
`statute’s operation in the contingency of its partial
`unconstitutionality is part of the statute’s content.
`When this Court faces a severability question, or a
`question concerning a statutory fallback, it searches
`for that content. That is why the Court’s formulation
`of the severability inquiry depends on its way of
`