Over at the Notice & Comment Blog, I have an essay that criticizes Chief Justice Roberts's majority opinion in Arthrex:
In U.S. v. Arthrex, the Supreme Court in an opinion by Chief Justice Roberts held that administrative patent judges (APJs) were not inferior officers for purposes of the Appointments Clause since their decisions were not reviewable by any executive branch officer. While the result in the case may very well accord with the Constitution’s original meaning, its reasoning when viewed from an originalist perspective is a mess.
The essay continues:
The main and clearest problem with Roberts’s opinion is that it fundamentally misunderstands the nature and purpose of the distinction between principal and inferior officers in the Appointments Clause. The majority opinion views the distinction between principal and inferior officers as primarily about presidential control and democratic accountability. Because no principal officer can reverse the decisions of the Patent Trial and Appeal Board (PTAB), the President is denied control over the PTAB and cannot be seen as responsible for its decisions. As Roberts concludes his principal analysis of the defects of the statute, “given the insulation of PTAB decisions from any executive review, the President can neither oversee the PTAB himself nor ‘attribute the Board’s failings to those whom he can oversee.’” And this failure to preserve presidential control is problematic because it undermines the purpose of the Appointments Clause to ensure political accountability of the President, “on whom all the people vote.”
From an originalist perspective, this analysis is mistaken. In fact, in some ways, this analysis of the Clause has the matter backward.
First, the Constitution’s differing treatment of principal and inferior officers is not mainly about presidential control. Instead, it is about limiting presidential power. The Constitution allows for the appointment of inferior officers by the President alone, heads of departments, or courts of law. But it makes clear that principal officers can only be appointed with the consent of the Senate. Even if the Senate wants to abdicate its responsibility to vote on the appointment of principal officers, it cannot do so. The purpose of this provision is clear. It is a check on the President appointing cronies or other questionable individuals to high executive office. Roberts’s opinion largely misses this, barely mentioning the need for the senatorial check.
The essay also questions whether Roberts correctly reads Edmond v. US, the principal case upon which the opinion relies.
Read the whole thing!
Posted at 8:00 AM