Who is an Inferior Office, and Why Does it Matter?

Yale Journal on Regulation Notice and Comment 2021

4 Pages Posted: 16 Sep 2021

See all articles by Alan B. Morrison

Alan B. Morrison

George Washington University - Law School

Robert L. Glicksman

George Washington University - Law School

Dmitry Karshtedt

George Washington University - Law School

Mark A. Lemley

Stanford Law School

Joshua D. Sarnoff

DePaul University College of Law

Date Written: February 18, 2021

Abstract

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

Suggested Citation

Morrison, Alan B. and Glicksman, Robert L. and Karshtedt, Dmitry and Lemley, Mark A. and Sarnoff, Joshua D., Who is an Inferior Office, and Why Does it Matter? (February 18, 2021). Yale Journal on Regulation Notice and Comment 2021, Available at SSRN: https://ssrn.com/abstract=3905527

Alan B. Morrison (Contact Author)

George Washington University - Law School ( email )

2000 H Street, N.W.
Washington, DC 20052
United States

Robert L. Glicksman

George Washington University - Law School ( email )

2000 H Street, N.W.
Washington, DC 20052
United States
202-994-4641 (Phone)

HOME PAGE: http://www.law.gwu.edu/Faculty/profile.aspx?id=16085

Dmitry Karshtedt

George Washington University - Law School ( email )

2000 H Street, N.W.
Washington, DC 20052
United States

Mark A. Lemley

Stanford Law School ( email )

559 Nathan Abbott Way
Stanford, CA 94305-8610
United States

Joshua D. Sarnoff

DePaul University College of Law ( email )

25 E. Jackson Blvd.
Chicago, IL Cook County 60604-2287
United States
312-362-6326 (Phone)

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