Executive Decisions After Arthrex
Supreme Court Review, Forthcoming
42 Pages Posted: 16 Aug 2021 Last revised: 20 Jun 2022
Date Written: May 2, 2022
Decisionmaking in the modern executive branch frequently rests on a convenient formalism. Ultimate power is typically vested in high-level “principal” officers who, under the Appointments Clause, must be appointed by the President with the advice and consent of the Senate. The vast bulk of day-to-day decisions within the branch, however, are made by thousands of lower-level officials who are either “inferior” officers appointed under the Appointments Clause or mere employees lacking any official appointment under modern doctrine. United States v. Arthrex marks out a constitutional limit to this modern allocation of power. Whatever de facto power lower-level officials possess as a matter of practice, the Court held in Arthrex that Congress cannot vest final decisional authority in subordinate civil servants not appointed by the President with the advice and consent of the Senate.
Arthrex is significant for at least three reasons. First, the Supreme Court has now, for the first time in its modern separation of powers jurisprudence, relied on a combination of the Appointments Clause and Article II’s Executive Vesting Clause to invalidate statutory law not because of the tenure protections afforded to officers, but because of the distribution of decisional power between principal officers and lower-level officials. That new focus on the distribution of power leads to a second major implication of the case: The decisions of hundreds of inferior officers, such as administrative patent judges, must be subject to the review of a principal officer, but many questions remain to be answered about the exact scope and content of that review. Some of those issues are already being raised in litigation. Third, Arthrex deepens the tension between the Court’s recent separation-of-powers cases and its older precedent Morrison v. Olson. The Arthrex Court conspicuously avoided citing Morrison, but it did carefully limit its holding to “the context of adjudication.” That curious limitation leaves the law currently (though perhaps only temporarily) in a deeply untraditional place, with principal officer supervision over inferior officers required for some executive branch adjudicative decisions but not required for some core executive decisions such as whom to investigate and prosecute.
Keywords: Supreme Court, Appointments Clause, Article II, administrative law, patent law, U.S. Patent and Trademark Office, administrative patent judges, Federal Circuit, executive agencies, separation of powers, principal officers, inferior officers
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