SUPREME COURT OF THE UNITED STATES
Nos. 19–1434, 19–1452 and 19–1458
UNITED STATES, PETITIONER
ARTHREX, INC., et al.
SMITH & NEPHEW, INC., et al., PETITIONERS
ARTHREX, INC., et al.
ARTHREX, INC., PETITIONER
SMITH & NEPHEW, INC., et al.
on writs of certiorari to the united states court of appeals for the federal circuit
[June 21, 2021]
Justice Thomas, with whom Justice Breyer, Justice Sotomayor, and Justice Kagan join as to Parts I and II, dissenting.
For the very first time, this Court holds that Congress violated the Constitution by vesting the appointment of a federal officer in the head of a department. Just who are these “principal” officers that Congress unsuccessfully sought to smuggle into the Executive Branch without Senate confirmation? About 250 administrative patent judges who sit at the bottom of an organizational chart, nestled under at least two levels of authority. Neither our precedent nor the original understanding of the Appointments Clause requires Senate confirmation of officers inferior to not one, but two
officers below the President.
The Executive Branch is large, and the hierarchical path from President to administrative patent judge is long. At the top sits the President, in whom the executive power is vested. U. S. Const., Art. II, §1. Below him is the Secretary of Commerce, who oversees the Department of Commerce and its work force of about 46,000. 15 U. S. C. §§1501, 1513. Within that Department is the United States Patent and Trademark Office led by a Director. 35 U. S. C. §§1, 2(a), 3(a) (also known as the Under Secretary of Commerce for Intellectual Property). In the Patent and Trademark Office is the Patent Trial and Appeal Board. §6(a). Serving on this Board are administrative patent judges. Ibid.
There are few statutory prerequisites to becoming an administrative patent judge. One must be a “perso[n] of competent legal knowledge and scientific ability” and be “appointed by the Secretary.” Ibid
. The job description too is relatively straightforward: sit on the Board along with the Director, the Deputy Director, the Commissioner for Patents, the Commissioner for Trademarks, and other administrative patent judges. Ibid
The Board adjudicates both appellate and trial disputes. See §6(b). It may directly review certain decisions made by patent examiners, and it may hold its own proceedings to determine the patentability of patent claims. As relevant here, it conducts inter partes review, which “offers a second look at an earlier administrative grant of a patent.” Cuozzo Speed Technologies
, 579 U. S. 261, 279 (2016). Inter partes review—and all other types of Board hearings—must be “heard by at least 3 members” of the Board. §6(c).
In this suit, Smith & Nephew, Inc., and Arthrocare Corp. (collectively, Smith & Nephew) filed a petition challenging some of Arthrex, Inc.’s patent claims. After deciding that there was a reasonable likelihood that Smith & Nephew would prevail, the Director instituted review. §314(a). A panel of three administrative judges ultimately agreed with Smith & Nephew that the disputed claims were unpatentable. The Director did not convene a panel to rehear that decision. Nor is there any suggestion that Arthrex sought rehearing from the Board or from the Director. Instead, Arthrex appealed the Board’s decision to the United States Court of Appeals for the Federal Circuit.
On appeal, Arthrex argued that the Federal Circuit must vacate the Board’s decision. According to Arthrex, administrative patent judges are constitutionally defective because they are principal officers who were neither appointed by the President nor confirmed by the Senate. The Federal Circuit agreed in part. The court held that administrative patent judges are
principal officers. 941 F. 3d 1320, 1335 (2019). But the court professed to transform these principal officers into inferior ones by withdrawing statutory removal restrictions. Id.,
The Court now partially agrees with the Federal Circuit. Although it cannot quite bring itself to say so expressly, it too appears to hold that administrative patent judges are principal officers under the current statutory scheme. See ante
, at 10–14. But it concludes that the better way to judicially convert these principal officers to inferior ones is to allow the Director to review Board decisions unilaterally. Ante
, at 21 (plurality opinion); ante
, at 7 (Breyer, J., concurring in part and dissenting in part).
That both the Federal Circuit and this Court would take so much care to ensure that administrative patent judges, appointed as inferior officers, would remain inferior officers at the end of the day suggests that perhaps they were inferior officers to begin with. Instead of rewriting the Director’s statutory powers, I would simply leave intact the patent scheme Congress has created.
The Constitution creates a default process to appoint all officers: The President “by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States.” Art. II, §2. But Congress has discretion to change the default process for “inferior” officers: “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.” Ibid.
The Court has been careful not to create a rigid test to divide principal officers—those who must be Senate confirmed—from inferior ones. See, e.g.
v. United States
, 520 U. S. 651, 661 (1997) (the Court has “not set forth an exclusive criterion”); Morrison
487 U. S. 654, 671 (1988) (“We need not attempt here to decide exactly where the line falls between the two types of officers”). Instead, the Court’s opinions have traditionally used a case-by-case analysis. And those analyses invariably result in this Court deferring to Congress’ choice of which constitutional appointment process works best.[1
] No party (nor the majority) has identified any instance in which this Court has found unconstitutional an appointment that aligns with one of the two processes outlined in the Constitution.
Our most exhaustive treatment of the inferior-officer question is found in Edmond
. There, we evaluated the status of civilian judges on the Coast Guard Court of Criminal Appeals who were appointed by the Secretary of Transportation. As in all previous decisions, the Court in Edmond
held that the Secretary’s appointment of the judges complied with the Appointments Clause.
Recognizing that no “definitive test” existed for distinguishing between inferior and principal officers, the Court set out two general guidelines. 520 U. S., at 661–662. First, there is a formal, definitional requirement. The officer must be lower in rank to “a superior.” Id.
, at 662. But according to the Court in Edmond
, formal inferiority is “not enough.” Ibid.
So the Court imposed a functional requirement: The inferior officer’s work must be “directed and supervised at some level by others who were appointed by Presidential nomination with advice and consent of the Senate.” Id.
, at 663. Because neither side asks us to overrule our precedent, I would apply this two-part guide.
There can be no dispute that administrative patent judges are, in fact, inferior: They are lower in rank to at least two different officers. As part of the Board, they serve in the Patent and Trademark Office, run by a Director “responsible for providing policy direction and management supervision for the Office and for the issuance of patents and the registration of trademarks.” 35 U. S. C. §3(a)(2)(A). That Office, in turn, is “[w]ithin the Department of Commerce” and “subject to the policy direction of the Secretary of Commerce.” §1(a). The Secretary, in consultation with the Director, appoints administrative patent judges. §6(a).
As a comparison to the facts in Edmond
illustrates, the Director and Secretary are also functionally superior because they supervise and direct the work administrative patent judges perform. In Edmond
, the Court focused on the supervision exercised by two different entities: the Judge Advocate General and the Court of Appeals for the Armed Forces (CAAF). The Judge Advocate General exercised general administrative oversight over the court on which the military judges sat. Edmond
, 520 U. S., at 664. He possessed the power to prescribe uniform rules of procedure for the court and to formulate policies and procedure with respect to the review of court-martial cases in general. Ibid.
And he could remove a Court of Criminal Appeals judge from his judicial assignment without cause, a “powerful tool for control.” Ibid.
The Court noted, however, that “[t]he Judge Advocate General’s control over Court of Criminal Appeals judges is . . . not complete.” Ibid.
This was so for two reasons. He could “not attempt to influence (by threat of removal or otherwise) the outcome of individual proceedings.” Ibid.
And, he had “no power to reverse decisions of the court.” Ibid.
But this lack of complete control did not render the military judges principal officers. That is because one of the two missing powers resided, to a limited degree, in a different entity: the CAAF. Ibid.
CAAF could not “reevaluate the facts” where “there [was] some competent evidence in the record to establish each element of the offense beyond a reasonable doubt.” Id.
, at 665. Still, it was “significant . . . that the judges of the Court of Criminal Appeals ha[d] no power to render a final decision on behalf of the United States unless permitted to do so by other Executive officers.” Ibid.
Having recounted the various means of supervision, the Court held that the military judges were inferior officers. Consistent with the Constitution, Congress had the power to vest the judges’ appointments in the Secretary of Transportation. Id.
, at 665–666.
The Director here possesses even greater functional power over the Board than that possessed by the Judge Advocate General. Like the Judge Advocate General, the Director exercises administrative oversight over the Board. Because the Board is within the Patent and Trademark Office, all of its powers and duties are ultimately held by the Director. 35 U. S. C. §3(a)(1). He “direct[s]” and “supervis[es]” the Office and “the issuance of patents.” §3(a)(2)(A). He may even “fix the rate of basic pay for the administrative patent judges.” §3(b)(6). And ultimately, after the Board has reached a decision in a specific case, the Director alone has the power to take final action to cancel a patent claim or confirm it. §318(b).
Also like the Judge Advocate General in Edmond
, the Director prescribes uniform procedural rules and formulates policies and procedures for Board proceedings. Among other things, he has issued detailed regulations that govern “Trial Practice and Procedure” before the Board. 37 CFR pt. 42 (2020); see also ibid
. (prescribing regulations governing, inter alia
, discovery, oral argument, termination of trial, notice, privilege, filing fees, etc.); see also 35 U. S. C. §§2(b)(2), 316(a)(4), 326(a)(4). He has designed a process to designate and de-designate Board decisions as precedential. Patent Trial and Appeal Board, Standard Operating Procedure 2 (Revision 10), pp. 1–2 (Sept. 20, 2018) (SOP2). He may issue binding policy directives that govern the Board. §3(a)(2)(A). And he may release “instructions that include exemplary applications of patent laws to fact patterns, which the Board can refer to when presented with factually similar cases.” 941 F. 3d, at 1331. His oversight is not just administrative; it is substantive as well. §3(a)(2)(A).
The Director has yet another “powerful tool for control.” Edmond
, 520 U. S., at 664. He may designate which of the 250-plus administrative patent judges hear certain cases and may remove administrative patent judges from their specific assignments without cause. See §6(c). So, if any administrative patent judges depart from the Director’s direction, he has ample power to rein them in to avoid erroneous decisions. And, if an administrative patent judge consistently fails to follow instructions, the Secretary has the authority to fire him. 5 U. S. C. §7513(a); 35 U. S. C. §3(c); Cobert
, 800 F. 3d 1340, 1351 (CA Fed. 2015) (interpreting §7513(a) to allow removal for “ ‘[f]ailure to follow instructions or abide by requirements [that] affec[t] the agency’s ability to carry out its mission’ ”).[2
To be sure, the Director’s power over administrative patent judges is not complete. He cannot singlehandedly reverse decisions. Still, he has two powerful checks on Board decisions not found in Edmond.
Unlike the Judge Advocate General and CAAF in Edmond
, the Director may
influence individual proceedings. The Director decides in the first instance whether to institute, refuse to institute, or de-institute particular reviews, a decision that is “final and nonappealable.” 35 U. S. C. §314(d); see also §314(a). If the Director institutes review, he then may select which administrative patent judges will hear the challenge. §6(c). Alternatively, he can avoid assigning any
administrative patent judge to a specific dispute and instead designate himself, his Deputy Director, and the Commissioner of Patents. In addition, the Director decides which of the thousands of decisions issued each year bind other panels as precedent. SOP2, at 8. No statute bars the Director from taking an active role to ensure the Board’s decisions conform to his policy direction.
But, that is not all. If the administrative patent judges “(somehow) reach a result he does not like, the Director can add more members to the panel—including himself—and order the case reheard.” Oil States Energy Services
v. Greene’s Energy Group
, 584 U. S. ___, ___ (2018) (Gorsuch, J., dissenting) (slip op., at 3). There is a formalized process for this type of review. The Director may unilaterally convene a special panel—the Precedential Opinion Panel—to review a decision in a case and determine whether to order rehearing sua sponte
. SOP2, at 5. (Any party to a proceeding or any Board member can also recommend rehearing by the Precedential Opinion Panel. Ibid.
) The default members of the panel are the Director, the Commissioner for Patents, and the Chief Administrative Patent Judge. Id.
, at 4. So even if all
administrative patent judges decide to defy the Director’s authority and go their respective ways, the Director and the Commissioner for Patents can still put a stop to it. And, if the Commissioner for Patents is running amuck, the Director may expand the size of the panel or may replace the Commissioner with someone else, including his Deputy Director. Ibid.
Further, this panel is not limited to reviewing whether there is “competent evidence” as the CAAF was. It can correct anything that may “have been misapprehended or overlooked” in the previous opinion. 37 CFR §41.79(b)(1). This broad oversight ensures that administrative patent judges “have no power to render a final decision on behalf of the United States unless permitted to do so by other Executive officers.” Edmond
, 520 U. S., at 665.
The Court today appears largely to agree with all of this. “In every respect” save one, the plurality says, “[administrative patent judges] appear to be inferior officers.” Ante
, at 20–21. But instead of finding it persuasive that administrative patent judges seem to be inferior officers—“an understanding consistent with their appointment”—the majority suggests most of Edmond
is superfluous: All that matters is whether the Director has the statutory authority to individually reverse Board decisions. See ante
, at 10; see also ante
, at 20 (plurality opinion).
The problem with that theory is that there is no precedential basis (or historical support)[3
] for boiling down “inferior-officer” status to the way Congress structured a particular agency’s process for reviewing decisions. If anything, Edmond
stands for the proposition that a “limitation upon review does not . . . render [officers] principal officers.” 520 U. S., at 665. Recall that the CAAF could not reevaluate certain factual conclusions reached by the military judges on the Court of Criminal Appeals. Ibid.
And recall that neither CAAF nor the Judge Advocate General could “attempt to influence” individual proceedings. Id.
, at 664. Yet, those constraints on supervision and control did not matter because the Court in Edmond
considered all the means of supervision and control exercised by the superior officers. Although CAAF could not reevaluate everything, “[w]hat is significant” is that CAAF could oversee the military judges in other ways: The military judges could not render “a final decision on behalf of the United States unless permitted to do so by other Executive officers.” Id.
, at 665. Here, the Director cannot singlehandedly reevaluate individual decisions, but he still directs and “supervises . . . the Board members responsible for deciding patent disputes.” Oil States Energy Services
, 584 U. S., at ___ (Gorsuch, J., dissenting) (slip op., at 3).
Perhaps the better way to understand the Court’s opinion today is as creating a new form of intrabranch separation-of-powers law. Traditionally, the Court’s task when resolving Appointments Clause challenges has been to discern whether the challenged official qualifies as a specific sort of officer and whether his appointment complies with the Constitution. See Lucia
, 585 U. S. ___, ___ (2018) (slip op., at 1) (“This case requires us to decide whether administrative law judges . . . qualify as [officers of the United States]”). If the official’s appointment is inconsistent with the constitutional appointment process for the position he holds, then the Court provides a remedy. Id.
, at ___ (slip op., at 12). Otherwise, the Court must conclude that the “appointments at issue in th[e] case are . . . valid.” Edmond
, 520 U. S., at 666.
Today’s majority leaves that tried-and-true approach behind. It never expressly tells us whether administrative patent judges are inferior officers or principal. And the Court never tells us whether the appointment process complies with the Constitution. The closest the Court comes is to say that “the source of the constitutional violation” is not
“the appointment of [administrative patent judges] by the Secretary.” Ante
, at 23 (plurality opinion). Under our precedent and the Constitution’s text, that should resolve the suit. If the appointment process for administrative patent judges—appointment by the Secretary—does not violate the Constitution, then administrative patent judges must be inferior officers. See Art. II, §2, cl. 2. And if administrative patent judges are inferior officers and have been properly appointed as such, then the Appointments Clause challenge fails. After all, the Constitution provides that “Congress may by Law vest the Appointment of . . . inferior Officers . . . in the Heads of Departments.” Ibid
The majority’s new Appointments Clause doctrine, though, has nothing to do with the validity of an officer’s appointment. Instead, it polices the dispersion of executive power among officers. Echoing our doctrine that Congress may not mix duties and powers from different branches into one actor, the Court finds that the constitutional problem here is that Congress has given a specific power—the authority to finally adjudicate inter partes review disputes—to one type of executive officer that the Constitution gives to another. See ante
, at 21 (plurality opinion); see also, e.g.
, 564 U. S. 462, 503 (2011) (assignment of Article III power to Bankruptcy Judge); Bowsher
, 478 U. S. 714, 728–735 (1986) (assignment of executive power to a legislative officer). That analysis is doubly flawed.
For one thing, our separation-of-powers analysis does not fit. The Constitution recognizes executive, legislative, and judicial power, and it vests those powers in specific branches. Nowhere does the Constitution acknowledge any such thing as “inferior-officer power” or “principal-officer power.” And it certainly does not distinguish between these sorts of powers in the Appointments Clause.
And even if it did, early patent dispute schemes establish that the power exercised by the administrative patent judges here does not belong exclusively to principal officers. Nonprincipal officers could—and did—render final decisions in specific patent disputes, not subject to any appeal to a superior executive officer. In 1793, Congress provided that resolution of disputes, where two applicants sought a patent for the same invention, “shall be submitted to the arbitration of three persons” chosen by the Secretary or by the parties, and that “the decision or award . . . , delivered to the Secretary of State . . . or any two of them, shall be final, as far as respects the granting of the patent.” Act of Feb. 21, 1793, §9, 1 Stat. 322–333. In 1836, Congress allowed applicants to appeal the denial of a patent application to “a board of examiners, to be composed of three disinterested persons, who shall be appointed for that purpose by the Secretary of State.” Act of July 4, 1836, §7, 5 Stat. 119–120. The Board had the power “to reverse the decision of the Commissioner, either in whole or in part,” and the decision governed “further proceedings.” Ibid.
These two early examples show, at a minimum, that the final resolution of patent disputes is not the sole preserve of principal officers.
More broadly, interpreting the Appointments Clause to bar any nonprincipal officer from taking “final” action poses serious line-drawing problems. The majority assures that not every decision by an inferior officer must be reviewable by a superior officer. Ante
, at 19. But this sparks more questions than it answers. Can a line prosecutor offer a plea deal without sign off from a principal officer?[4
] If faced with a life-threatening scenario, can an FBI agent use deadly force to subdue a suspect? Or if an inferior officer temporarily fills a vacant office tasked with making final decisions, do those decisions violate the Appointments Clause?[5
] And are courts around the country supposed to sort through lists of each officer’s (or employee’s) duties, categorize each one as principal or inferior, and then excise any that look problematic?
Beyond those questions, the majority’s nebulous approach also leaves open the question of how much “principal-officer power” someone must wield before he becomes a principal officer. What happens if an officer typically engages in normal inferior-officer work but also has several principal-officer duties? Is he a hybrid officer, properly appointed for four days a week and improperly appointed for the fifth? And whatever test the Court ultimately comes up with to sort through these difficult questions, are we sure it is encapsulated in the two words “inferior officer”?
The majority offers one last theory. Although the parties raise only an Appointments Clause challenge and the plurality concedes that there is no appointment defect, ante,
at 23, the Court appears to suggest that the real
issue is that this scheme violates the Vesting Clause. See Art. II, §1, cl.1; see also ante
, at 13–14 (citing Free Enterprise Fund
v. Public Company Accounting Oversight Bd.
, 561 U. S. 477, 496 (2010)); Myers
v. United States
, 272 U. S. 52, 135 (1926)). According to the majority, the PTAB’s review process inverts the executive “chain of command,” allowing administrative patent judges to wield “unchecked . . . executive power” and to “dictat[e ]” what the Director must do. Ante
, at 11, 14. This final offering falters for several reasons.
First no court below passed on this issue. See 941 F. 3d, at 1327 (addressing whether “the [administrative patent judges] who presided over this inter partes
review were . . . constitutionally appointed”). Given that this Court is generally one “of review, not of first view,” it is unclear why we would grant relief on this ground. Cutter
, 544 U. S. 709, 718, n. 7 (2005).
Second, the idea that administrative patent judges are at the top
of the chain of command is belied not only by the statutory scheme, see supra,
at 7–10, but also by the majority’s own refusal to ever name these judges principal officers. See ante,
Third, even if the chain of command were broken, Senate confirmation of an administrative patent judge would offer no fix. As Madison explained, the Senate’s role in appointments is an exception
to the vesting of executive power in the President; it gives another branch a say in the hiring of executive officials. 1 Annals of Cong. 463 (1789). An Article II Vesting Clause problem cannot be remedied by stripping away even more power from the Executive.
Fourth, and finally, historical practice establishes that the vesting of executive power in the President did not require that every patent decision be appealable to a principal officer. As the majority correctly explains, these sorts of final decisions were routinely made by inferior executive officers (or, perhaps, by mere executive employees). See ante
, at 17–18. If no statutory path to appeal to an executive principal officer existed then, I see no constitutional reason why such a path must exist now.
Perhaps this Vesting Clause theory misunderstands the majority’s argument. After all, the Court never directly says that any law or action violates the Vesting Clause. The Court simply criticizes as overly formalistic the notion that both Clauses do exactly what their names suggest: The Appointments Clause governs only appointments; the Vesting Clause deals just with the vesting of executive power in the President. Ante
, at 13. I would not be so quick to stare deeply into the penumbras of the Clauses to identify new structural limitations.
In the end, the Court’s remedy underscores that it is ambivalent about the idea of administrative patent judges actually
being principal officers. Instead of holding as much explicitly, the Court rewrites the statutory text to ensure that the Director can directly review Board decisions. Ante
, at 21–22 (plurality opinion). Specifically, the Court declares unenforceable the statutory provision that “prevents the Director from reviewing the decisions of the [Board] on his own.” Ante
, at 22. And as a remedy, the Court “remand[s] to the Acting Director for him to decide whether to rehear the petition.” Ibid
. In that way, the Court makes extra clear what should already be obvious: Administrative patent judges are inferior officers.
But neither reading of the majority’s opinion—(1) that administrative patent judges are principal officers that the Court has converted to inferior officers, or (2) that administrative patent judges are inferior officers whose decisions must constitutionally be reversible by the Director alone—supports its proposed remedy.
Take the principal officer view. If the Court truly believed administrative patent judges are principal officers, then the Court would need to vacate the Board’s decision. As this Court has twice explained, “the ‘appropriate’ remedy for an adjudication tainted with an appointments violation is a new ‘hearing before a properly appointed’ official.” Lucia
, 585 U. S., at ___ (slip op., at 12) (quoting Ryder
v. United States
, 515 U. S. 177, 183, 188 (1995)). If administrative patent judges are (or were) constitutionally deficient principal officers, then surely Arthrex is entitled to a new hearing before officers untainted by an appointments violation. But, the Court does not vacate the Board’s decision. In fact, it expressly disavows the existence of an appointments violation. Ante
, at 23 (plurality opinion).
The quasi-separation-of-powers view fares no better. If we accept as true the Court’s position that the Appointments Clause inherently grants the Director power to reverse Board decisions, then another problem arises: No constitutional violation has occurred in this suit. The Board had the power to decide and lawfully did decide the dispute before it. The Board did not misinterpret its statutory authority or try to prevent direct review by the Director. Nor did the Director wrongfully decline to rehear the Board’s decision. Moreover, Arthrex has not argued that it sought review by the Director. So to the extent “the source of the constitutional violation is the restraint on the review authority of the Director,” ibid.
, his review was not constrained. Without any constitutional violation in this suit to correct, one wonders how the Court has the power to issue a remedy. See Carney
, 592 U. S. ___, ___ (2020) (slip op., at 4) (Article III prevents “the federal courts from issuing advisory opinions”).
Perhaps the majority thinks Arthrex should receive some kind of bounty for raising an Appointments Clause challenge and almost
identifying a constitutional violation. But the Constitution allows us to award judgments, not participation trophies.
Although unnecessary to resolve this suit, at some point it may be worth taking a closer look at whether the functional element of our test in Edmond
—the part that the Court relies on today—aligns with the text, history, and structure of the Constitution. The founding era history surrounding the Inferior Officer Clause points to at least three different definitions of an inferior officer, none of which requires a case-by-case functional examination of exactly how much supervision and control another officer has. The rationales on which Edmond
relies to graft a functional element into the inferior-officer inquiry do not withstand close scrutiny.
Early discussions of inferior officers reflect at least three understandings of who these officers were—and who they were not—under the Appointments Clause. Though I do not purport to decide today which is best, it is worth noting that administrative patent judges would be inferior under each.
The narrowest understanding divides all executive officers into three categories: heads of departments, superior officers, and inferior officers. During the Constitutional Convention, James Madison supported this view in a brief discussion about the addition of the Inferior Officer Clause. 2 Records of the Federal Convention of 1787, p. 627 (M. Farrand ed. 1911) (Farrand); see also Mascott, Who Are “Officers of the United States,” 70 Stan. L. Rev. 443, 468, n. 131 (2018). Gouverneur Morris moved to add the clause. But Madison initially resisted. He argued that it did “not go far enough if it be necessary at all [because] Superior Officers below Heads of Departments ought in some cases to have the appointment of the lesser offices.” 2 Farrand 627. The motion nonetheless passed. The crux of Madison’s objection appears to rely on the idea that there are three types of officers: inferior officers, superior officers, and department heads. Congress could vest the appointment of inferior officers in the President, the courts, or a department head. But the others must be appointed by the President with Senate confirmation.
Some held a second understanding: Inferior officers encompass nearly all
officers. As Justice Story put it, “[w]hether the heads of departments
are inferior officers in the sense of the constitution, was much discussed, in the debate on the organization of the department of foreign affairs, in 1789.” 3 Commentaries on the Constitution of the United States 386, n. 1 (1833) (emphasis added). Proponents of this understanding argued that the Secretary of State should be an inferior officer because he was inferior to the President, “the Executive head of the department.” 1 Annals of Cong. 509. In other words, inferior officers would encompass all
executive officers inferior to the President, other than those specifically identified in the Constitution: “Ambassadors, other public Ministers and Consuls.” Art. II, §2.
The constitutional text and history provide some support for this rationale. By using the adjective “such” before “inferior Officers,” the Clause about inferior officers could be understood to refer back to “all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law.” Ibid.
; see also 2 S. Johnson, A Dictionary of the English Language (6th ed. 1785) (defining “such” to mean “[c]omprehended under the term premised, like what has been said”). And to be “inferiour” means simply to be “[l]ower in place”; “[l]ower in station or rank of life” and “[s]ubordinate” to another officer. 1 ibid.
Department heads are officers, and they are lower in rank and subordinate to the President. See U. S. Const., Art. II, §1.
But others disagreed, contending this went “too far; because the Constitution” elsewhere specifies “ ‘the principal officer in each of the Executive departments.’ ” 1 Annals of Cong. 459. These Framers endorsed a third understanding, which distinguished just between inferior and principal officers. See id.
, at 518 (“We are to have a Secretary for Foreign Affairs, another for War, and another for the Treasury; now, are not these the principal officers in those departments”). A single officer could not simultaneously be both. Ultimately, this group won out, “expressly designat[ing]” the Secretary of the Department of Foreign Affairs as a “principal officer,” not an inferior one. Edmond
, 520 U. S., at 663 (quoting Act of July 27, 1789, ch. 4, §§1–2, 1 Stat. 28–29).
This principal-inferior dichotomy also finds roots in the structure of the Constitution, which specifically identifies both principal officers (in the Opinions Clause and the Twenty-fifth Amendment) and inferior officers (in the Appointments Clause). And it comports with contemporaneous dictionary definitions. A “principal” officer is “[a] head” officer; “a chief; not a second.” 2 Johnson, Dictionary of the English Language. Other executive officers would, by definition, be lower than or subordinate to these head officers.
The principal-inferior officer divide played out in other contexts as well. In the debate over removability of officers, Representative Smith indicated that he “had doubts whether [an] officer could be removed by the President” in light of the impeachment process. 1 Annals of Cong. 372. Madison disagreed, arguing that impeachment alone for all removals “would in effect establish every officer of the Government on the firm tenure of good behaviour; not the heads of Departments only, but all the inferior officers of those Departments, would hold their offices during good behaviour.” Ibid
State constitutions at the founding lend credence to this idea that inferior officers encompass all officers except for the heads of departments. For example, the 1789 Georgia State Constitution provided that “militia officers and the secretaries of the governor . . . shall be appointed by the governor.” Art. IV, §2. But “[t]he general assembly may vest the appointment of inferior officers in the governor, the courts of justice, or in such other manner as they may by law establish.” Ibid.
The law thus distinguished between secretaries and inferior officers. Similarly, the Delaware Constitution directed that “[t]he State treasurer shall be appointed annually by the house of representatives, with the concurrence of the Senate.” Art. VIII, §3 (1792). But “all inferior officers in the treasury department” were to be “appointed in such manner as is or may be directed by law.” §6.
Although not dipositive, this Court has adopted the nomenclature of the principal-inferior distinction. See, e.g.
at 5–6; Edmond
, 520 U. S., at 661 (“distinguishing between principal and inferior officers for Appointments Clause purposes”); Buckley
, 424 U. S. 1, 132 (1976) (per curiam
) (“Principal officers are selected by the President with the advice and consent of the Senate. Inferior officers Congress may allow to be appointed by the President alone, by the heads of departments, or by the Judiciary”); cf. Lucia
, 585 U. S., at ___ (Thomas, J., concurring) (slip op., at 2) (“While principal officers must be nominated by the President and confirmed by the Senate, Congress can authorize the appointment of ‘inferior Officers’ by ‘the President alone,’ ‘the Courts of Law,’ or ‘the Heads of Departments’ ”); United States
, 99 U. S. 508, 511 (1879) (“the principal officer in” the Opinions Clause “is the equivalent of the head of department in the other”). And in reasoning adopted unanimously by the Court, at least one opinion defined “principal officers” for purposes of the Appointments Clause to be “ambassadors, ministers, heads of departments, and judges.” Freytag
, 501 U. S. 868, 884 (1991).
Regardless of which of the three interpretations is correct, all lead to the same result here. Administrative patent judges are inferior officers.
Start with the broadest understanding. A careful read of the Appointments Clause reveals that the office of “administrative patent judge” does not appear amidst the offices of ambassador, consul, public minister, and Supreme Court judge the Constitution identifies. See Art. II, §2, cl. 2. So, if inferior officers are all executive officers other than those with special appointment processes laid out in the Constitution, then administrative patent judges squarely fit.
Administrative patent judges also fall on the inferior-officer side of the inferior-principal divide. It is agreed that administrative patent judges are not the heads of any department. See ante
, at 8; Brief for Arthrex, Inc., 5–6 (noting that the Secretary of Commerce is the relevant “department head”). Thus, to the extent a “principal officer . . . is the equivalent of the head of department,” administrative patent judges are not one. Germaine
, 99 U. S., at 511.
And under the Madisonian tripartite system, administrative patent judges would still be inferior. These judges are not heads of departments. Nor are they “superior officers.” An administrative patent judge is not “[h]igher” than or “greater in dignity or excellence” to other officers inferior to him. 2 Johnson, Dictionary of the English Language (defining “Superiour”). Tellingly, neither respondent nor the majority identify a single
officer lower in rank or subordinate to administrative patent judges. Surely if “[w]hether one is an ‘inferior’ officer depends on whether he has a superior,” then whether one is a superior officer depends on whether he has an inferior. Edmond
, 520 U. S., at 662; see also Morrison
, 487 U. S., at 720 (Scalia, J., dissenting) (“Of course one is not a ‘superior officer’ without some supervisory responsibility”). In contrast, an administrative patent judge is
lower in rank and subordinate to both the Director and the Secretary.
* * *
To be clear, I do not purport to have exhausted all contemporaneous debates, sources, and writings. Perhaps there is some reason to believe that the inherent nature of an inferior officer requires that all of their decisions be directly appealable to a Senate-confirmed executive officer. But the majority does not identify one. And, without any justification in the text, in the history, or in our precedent, I would not impose that requirement.
If anything, the Court’s functional prong in Edmond
may merit reconsideration. The Edmond
opinion highlighted three justifications for its decision to require more than just a lower rank and a superior officer. But having reviewed the history, it is worth checking whether these reasons are sound. They may not be.
highlighted the Constitution’s use of the term “inferior officer.” 520 U. S., at 663. Were the Appointments Clause meant to identify only lower ranking officers, then the Constitution could have used the phrase “ ‘lesser officer.’ ” Ibid
. But Madison’s objection to the Inferior Officer Clause pokes a hole in this distinction. After all, Madison used almost exactly this “lesser officer” phrasing: He urged a broader clause so that “superior officers” could “have the appointment of the lesser offices
.” 2 Farrand 627 (emphasis added). If Madison understood the two terms to be interchangeable, perhaps this Court should too.
flagged that the Appointments Clause was designed “to preserve political accountability relative to important Government assignments.” 520 U. S., at 663. But the accountability feature of the Appointments Clause was not about accountability for specific decisions
made by inferior officers, but rather accountability for “ ‘a bad nomination.’ ” Id
., at 660 (quoting The Federalist No. 77, p. 392 (M. Beloff ed. 1987)). The Appointments Clause “provides a direct line of accountability for any poorly performing officers
back to the actor who selected them.” Mascott, 70 Stan. L. Rev., at 447 (emphasis added).
And third, Edmond
noted that legislation adopted by early Congresses revealed that inferior officers were subject to the discretion and direct oversight of the principal officer. 520 U. S., at 663. Take, for example, the Act establishing the Department of War: It referred “to the Secretary of that department as a ‘principal officer,’ ” and provided that “the Chief Clerk, would be ‘employed’ within the Department as the Secretary ‘shall deem proper,’ as an ‘inferior officer.’ ” Edmond
, 520 U. S., at 664 (quoting ch. 7, 1 Stat. 49–50).
But not every officer was neatly categorized as a principal officer or an inferior one. For example, the Act of Congress Establishing the Treasury Department created “the following officers, namely: a Secretary of the Treasury, to be deemed head of the department; a Comptroller . . . , and an Assistant to the Secretary of the Treasury, which assistant shall be appointed by the said Secretary.” Act of Sept. 2, 1789, ch. 12, §1, 1 Stat. 65. The statute does not label the Comptroller as a principal officer or a department head. Nor is he expressly designated as an inferior officer. Moreover, his duties extended beyond doing merely what the Secretary deemed proper. The Comptroller’s statutory power and authority included “countersign[ing] all warrants drawn by the Secretary of Treasury,” “provid[ing] for the regular and punctual payment of all monies which may be collected,” and “direct[ing] prosecutions for all delinquencies of officers of the revenue, and for debts that are, or shall be due to the United States.” §3, id.,
at 66. This quasi-judicial figure’s “principal duty seems to be deciding upon the lawfulness and justice of the claims and accounts subsisting between the United States and particular citizens.” 1 Annals of Cong. 611–612 (Madison); see also ante
, at 14–15. Yet at least one early legislator (with no recorded objections) thought “the Comptroller was an inferior officer.” 1 Annals of Cong. 613 (Stone).
Given the lack of historical support, it is curious that the Court has decided to expand Edmond
’s “functional” prong to elevate administrative patent judges to principal-officer status (only to demote them back to inferior-officer status). Perhaps the Court fears that a more formal interpretation might be too easy to subvert. A tricky Congress could allow the Executive to sneak a powerful, Cabinet-level-like officer past the Senate by merely giving him a low rank. Maybe. But this seems like an odd case to address that concern. And, even if this suit did raise the issue, the Court should be hesitant to enforce its view of the Constitution’s spirit at the cost of its text.
* * *
The Court today draws a new line dividing inferior officers from principal ones. The fact that this line places administrative patent judges on the side of Ambassadors, Supreme Court Justices, and department heads suggests that something is not quite right. At some point, we should take stock of our precedent to see if it aligns with the Appointments Clause’s original meaning. But, for now, we must apply the test we have. And, under that test, administrative patent judges are both formally and functionally inferior to the Director and to the Secretary. I respectfully dissent.