D.C. Circuit Review – Reviewed: Our (Relatively) Uncontroversial Appointments Clause

by Aaron Nielson — Friday, Nov. 1, 2019@Aaron_L_Nielson

Separation-of-powers cases tend to be controversial. For instance, when the D.C. Circuit last addressed removal and initially concluded that Congress could not grant the Consumer Financial Protection Bureau’s Director “for cause” protection, the United States argued that the panel had “set[] up what may be the most important separation-of-powers case in a generation.” What followed was rehearing by the full D.C. Circuit, which sided with the CFPB in a decision that came in at 250 pages, including the six concurrences and dissents. The Supreme Court has now agreed to hear this same issue, and some are already hinting at the possibility of a 5-4 decision.

Notably, however, separation-of-powers cases are not always controversial, at least not in that sense. The Appointments Clause cases are a good example. Although the Appointments Clause is very important (indeed, we hosted an entire symposium on it), it doesn’t generate the same intensity. In Lucia v. SEC, for instance, Justice Kagan — in a 7-2 (or 6-1-2, depending on your count) decision — concluded that the SEC’s administrative law judges are “Officers of the United States,” meaning that their manner of appointment was unconstitutional.

It isn’t just the Supreme Court, moreover, that decides Appointments Clause cases with relatively less controversy. Consider Lucia, when it was still in the D.C. Circuit. There, after a fascinating oral argument, the en banc Court split evenly, “even though judges appointed by Democratic Presidents outnumber their colleagues appointed by Republican Presidents.” Similarly, when the Tenth Circuit disagreed with the D.C. Circuit on this issue in Bandimere v. SEC, its opinion “was authored by a judge who had run for high political office as a Democrat earlier in his career, and who had been appointed to the bench by President Obama.” To be sure, in Bandimere, there was a dissent, but it was only for a small portion of the Tenth Circuit. Using party-of-nominating-president as a proxy can be problematic, but the fact that these cases don’t break down on those lines is noteworthy.

And these aren’t the only examples. In Intercollegiate Broadcasting System, Inc. v. Copyright Royalty Board, for instance, a D.C. Circuit panel of Judges Williams* (the author), Garland, and Griffith unanimously found a violation of the Appointments Clause for Copyright Royalty Judges. The United States accepted that decision and did not seek certiorari. Similarly, yesterday, in Arthrex, Inc. v. Smith & Nephew, Inc., a panel of the Federal Circuit — also comprised of judges appointed by presidents of both parties — unanimously held that the Patent Trial and Appeal Board’s Administrative Patent Judges are unconstitutionally appointed.

Assuming there is an actual pattern here and not just noise, I’m not sure why the Appointments Clauses cases are less controversial than the removal cases. It’s probably not the remedy. In Free Enterprise Fund v. Public Company Accounting Oversight Board, the Court — controversially — severed the removal protection. Free Enterprise Fund was a high-profile, contentious decision. Yet in Intercollegiate Broadcasting System and Arthrex, the courts also severed the removal protections. Another possibility is that sorting through the Appointments Clause may be easier than figuring out removal. Or perhaps the stakes are just lower for the Appointments Clause. Or maybe there is another dynamic that I’m missing entirely. But in all events, our relatively uncontroversial Appointments Clause strikes me as interesting.

Well, at least interesting enough to merit a quick blog post in a quiet week for the D.C. Circuit. 🙂


* Speaking of Judge Williams, he authored the lone opinion this week for the Court. As a heads up: Institute For Justice v. IRS — per Wiliams, joined by Judges Pillard and Rao — is more fun to read than a technical FOIA opinion has any right to be. If you’ve ever wondered what is a “database” (and, really, even if you haven’t), you should give this one a read. To the Institute for Justice: congratulations on your chance to potentially learn more about the Asset Forfeiture Tracking and Retrieval System.


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About Aaron Nielson

Professor Nielson is a professor at Brigham Young University Law School. Before joining the academy, Professor Nielson was a partner in the Washington, D.C. office of Kirkland & Ellis LLP (where he remains of counsel). He also has served as a law clerk to Justice Samuel A. Alito, Jr. of the U.S. Supreme Court, Judge Janice Rogers Brown of the U.S. Court of Appeals for the D.C. Circuit, and Judge Jerry E. Smith of the U.S. Court of Appeals for the Fifth Circuit. All views expressed are the author's alone. Follow him on Twitter @Aaron_L_Nielson.

6 thoughts on “D.C. Circuit Review – Reviewed: Our (Relatively) Uncontroversial Appointments Clause

  1. William M Yeatman

    This is a really good one (& it’s a high mean). I suspect you’re right, the implications of this benign Appointments Clause jurisprudence is an entirely different matter. Whether at-will removable ALJs subvert compromise that underlies ’46 APA is the Scopes Monkey Trial for administrativists v anti-administrativists. We’re headed there (unless Court finds some way to dodge logic of Free Enterprise Fund.

  2. El roam

    Interesting. The respectable author of the post, wonders, why separation of powers cases are not always controversial, let alone the Appointments clause. One may assume, that we don’t deal with cases. We don’t deal with chaotic facts and circumstances, or rather chaotic legal and factual configurations. But rather very well determined in advance clear principles, easily predicted ( before issues or cases are born or arose).

    Yet, what is interesting in the Intercollegiate case, is that finally, and although predicted, not so simple.It seems intuitively, that the CRJ is quite supervised and controlled ( for the matter of appointment) Here I quote:

    ” The Register (who is appointed by the Librarian and acts at his direction, see id. § 701(a)) has the authority to interpret the copyright laws and provide written opinions to the CRJs on “novel material question[s]” of law; the CRJs must abide
    by these opinions in their determinations. See id. §802(f)(1)(B). The Register also reviews and corrects any legal errors in the CRJs’ determinations. Id. § 802(f)(1)(D). Oversight by the Register at the direction of the Librarian on issues of law of course is not exactly direction by a principal officer, Edmond, 520 U.S. at 663, but it is a non-trivial limit on the CRJs’ discretion, and the Librarian may well be able to influence the nature of the Register’s interventions.But the Register’s power to control the CRJs’ resolution of pure issues of law plainly leaves vast discretion over the rates and terms. ”

    But the vast discretion over the rates alone, is deadly one. it means I quote:

    “….life or death for firms and industries”

    So, although yet predictable, it wasn’t so simple to trace and understand such issue. But once caught, it is not that much chaotic and complicated ( like real cases, specific cases in courts).Maybe, that is the explanation.


  3. Daniel Solomon

    Mr. Yeatman is, unfortunately and disgracefully probably correct when he says:

    Whether at-will removable ALJs subvert compromise that underlies ’46 APA is the Scopes Monkey Trial for administrativists v anti-administrativists. We’re headed there (unless Court finds some way to dodge logic of Free Enterprise Fund.)

    The purpose in large part for the APA was to ensure that the public (remember them?) would not perceive administrative hearings to be kangaroo courts administered by agency hacks.

    Article II section 2 does not prohibit Congress from attempting to find the best qualified impartial candidates rather than idiologues and sycophants.


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