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. 

Roberts’s opinion misunderstands the Appointments Clause provisions involving principal and inferior officers, viewing them as a protection of presidential power and responsibility rather than as a limit on presidential power designed to deter poor appointments to important offices.  Roberts’s opinion also appears to misread the principal case it relies upon, Edmond v. U.S., viewing it as supporting the result he reaches rather than suggesting the opposite conclusion.

The Principal and Inferior Officer Provisions of the Appointments Clause

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.

Second, the Constitution’s differing treatment of principal and inferior officers is also not chiefly about focusing responsibility on the President for the appointment.  In fact, the President can be made more responsible for the appointment of an inferior officer if Congress vests his appointment in the President alone.  Much the same result can be accomplished by vesting his appointment in the head of a department who is subject to presidential control. 

(It is true that vesting the appointment of an executive officer in a court of law would deprive the President of control over the appointment, assuming such an arrangement were constitutional.  But given the infrequency in which executive officers are appointed by courts of law, the overall effect of the inferior officer appointment provision still seems to promote presidential control.) 

By contrast, the President does not entirely control the appointment of a principal officer.  The President nominates but the appointment cannot occur without the Senate’s consent.  Thus, the President is less accountable for the appointment than he would be if the appointment were vested in the President alone or perhaps even in the head of a department he supervises.  After all, the President’s appointment might be rejected by the Senate and then the President might blame bad behavior by his next nominee on the fact that his preferred choice was rejected. 

To be sure, Alexander Hamilton justified appointments by the President with the advice and consent of the Senate on the ground that it would place primary responsibility on the President.  But it is essential to remember that Hamilton was attempting to explain why the Constitution did not assign the appointment of officers to the legislature, which many of the states did at that time.  While he correctly argued that appointment by the President with the consent of the Senate would focus more responsibility on a single person than would appointment by the legislature, he was not arguing – nor could he – that appointment by the President with the consent of the Senate placed more responsibility on the President than appointment by the President alone.

Moreover, Roberts’s argument that presidential appointment promotes democratic accountability is also problematic in another way.  Roberts claims that it is only the President “on whom all the people vote,” suggesting that Presidents are uniquely accountable to the electorate.  But from an originalist perspective, this is something of an anachronism.  While Presidents today are largely selected by a process under which all citizens can be thought to vote for the President, that was not written into the Constitution.  When the Constitution was enacted, the members of the Electoral College could be selected any way that the state legislature chose, including by a vote of the state legislature.  Direct democratic accountability was not an essential feature of presidential elections. 

The Test for an Inferior Officer

Thus, Roberts’s picture of the principal and inferior officer provisions of the Appointments Clause as promoting presidential control of agency officials and presidential responsibility for principal officer appointments is a serious distortion.  These provisions were designed to ensure that important officers would be required to secure the consent of the Senate rather than to allow unilateral appointments by the executive. 

Given this understanding of the provisions, the question is how one distinguishes between principal and inferior officers and whether the APJs in Arthrex were principal or inferior officers.  The answer here turns on the meaning of “inferior officer.” 

Unfortunately, this is a complicated question.  There are several possible tests for an inferior officer, including but not limited to:  

1. An inferior officer must be subject to having their decision overturned by a principal officer.
2. An inferior officer must be subject to removal from the entirety of their federal service by a principal officer.
3. An inferior officer must be subject to removal by a principal officer from their authority to make a specific type of decision, such as removal of APJs from deciding inter partes cases.
4. An inferior officer must be subject to a combination of these conditions, such as both 1 and 2.

In Arthrex, Roberts concludes that, for adjudicative officers of the type under review, number 1 by itself is sufficient to determine whether someone is an inferior officer.  He explicitly does not decide whether number 2 would be sufficient by itself but concludes that number 3 would not be enough to make someone an inferior officer. (Roberts’s conclusion as to number 2 does not speak for a majority of the Court but only for four members.)

Unfortunately, Roberts’s opinion does not adequately justify these conclusions.  He does provide some limited historical evidence for 1 but by itself it does not seem compelling.  And he does not really explain why number 3 is insufficient to render someone an inferior officer.  One might speculate that he deems number 3 insufficient because he does not believe that such a limited removal will sufficiently incentivize the inferior officer to follow the decision of the principal officer.  But it is not clear why limited removal would not be sufficient if full removal would suffice. 

But it is not my purpose to be too critical of Roberts here. An originalist analysis of this issue is complicated and I tentatively lean towards the result that Roberts reaches.  But Roberts makes two arguments for his result that have serious defects.

First, Roberts attempts to address the argument that the Director had sufficient authority to control the panels by taking various actions to stack the panels in favor of the decisions he desires.  Roberts responded: “That is not the solution. It is the problem.”  These mechanisms of Director control, whatever their effectiveness, are problematic because they “blur the lines of accountability demanded by the Appointments Clause,” leaving the public not knowing who to blame for a “pernicious measure.”    

I acknowledge that this argument has rhetorical force.  Having discussed the purpose of the Appointments Clause as focusing responsibility on a democratically accountable President, Roberts uses that purpose to reject the powers that the Director has to achieve control.

But while the argument has rhetorical force, it lacks originalist force.  Since the differing treatment of principal and inferior officers under the original meaning of the Appointments Clause is based on ensuring a senatorial check on important officers rather than focusing responsibility on a democratically accountable President, his argument fails under originalism. 

Second, Roberts also relies upon the precedent of Edmond v. U.S., but his reliance is problematic.  Since Edmond was written by Justice Scalia, it would seem to have strong originalist credibility.  But whether or not Edmond is correctly decided, Roberts appears to misread Scalia’s opinion.  

In Edmond, the Court concluded that the Coast Guard Court of Criminal Appeals was composed of inferior officers because they were “directed and supervised” by principal officers.    Scalia noted that the Judge Advocate General could remove a Coast Guard Court of Criminal Appeals judge “from his judicial assignment without cause.”  While the Judge Advocate General could not “reverse decisions of the court,” other executive officials – the Court of Appeals for the Armed Forces (CAAF) – could do so as the appellate court hearing appeals from the Coast Guard Court of Criminal Appeals.    

Roberts’s reliance on this opinion seems to support his conclusion that the APJs were not inferior officers because no one had the power to reverse their decisions.  While the Director, like the Judge Advocate General in Edmond, might have had the power to remove APJs from their judicial assignments without cause, no one had the power to reverse them, as did the CAAF in Edmond.

But closer inspection of the opinion shows that Roberts may have misread Scalia’s opinion.  It turns out that the CAAF did not have complete authority to reverse the Coast Guard Court of Criminal Appeals.  The Coast Guard Court of Criminal Appeals was entitled to significant deference as to fact questions.  So long “as there is some competent evidence in the record to establish each element of the offense beyond a reasonable doubt,” the CAAF “will not reevaluate the facts.”  Thus, even if the CAAF disagreed with a decision, it could not reverse in certain cases. 

Scalia acknowledged this limitation but concluded that it did not render the judges of the Coast Guard Court of Criminal Appeals principal officers because the Court “had no power to render a final decision on behalf of the United States unless permitted to do so by other Executive officers.” 

Scalia’s statement here appears to suggest that the power to reverse is not essential.  Rather, the power to deprive someone of the authority to decide cases would be sufficient.  This interpretation is not entirely clear because Scalia did make much of the fact that the CAAF had the power to reverse many of the decisions of the Coast Guard Court of Criminal Appeals.  Still, Scalia’s words seem to suggest that the power to deprive an officer of the ability to decide a case was sufficient to render them an inferior officer.  While Roberts might have plausibly interpreted Scalia to require some significant, if not complete, authority to reverse inferior officer decisions, he did not say so, treating Scalia’s decision as if it largely decided the APJ issue.

In the end, Roberts’s opinion is an originalist mess.  While it may reach the correct originalist conclusion, its reasoning is seriously deficient.  It entirely misunderstands the reasons for the distinction between principal and inferior officers in the Appointments Clause, and it fails to explain or justify many of its conclusions.  Courts relying on the opinion will be misled and may even be led further away from the Clause’s original meaning.

Michael B. Rappaport is the Hugh and Hazel Darling Foundation Professor of Law at the University of San Diego School of Law.