Who is an Inferior Office, and Why Does it Matter?
Yale Journal on Regulation Notice and Comment 2021
4 Pages Posted: 16 Sep 2021
Date Written: February 18, 2021
On March 1, 2021, the Supreme Court will hear argument in three cases arising from the Federal Circuit’s Arthrex decision (https://www.scotusblog.com/case-files/cases/united-states-v-arthrex-inc/). The main issue before the Courtis whether the more than 250 administrative patent judges (APJs) who are employed by the Patent & Trademark Office (PTO) are inferior or principal officers under the Constitution. Riding on the outcome of that ruling are not only all of the patent validity trials heard by APJs, but potentially hundreds of thousands of cases in other agencies heard by administrative law judges (ALJs) and administrative judges (AJs), which include social security disability claims and immigration cases of all varieties. If Congress has mis-classified these adjudicators, not only will many hearings have to be repeated, but the structure of agency adjudications generally is likely to be significantly altered.
Keywords: administrative law, constitutional law, removal power, unitary executive, due process, political control
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