Yesterday in United States v. Arthrex, the Supreme Court ruled in a 5–4 decision that Administrative Patent Judges (APJs) possess too much “unreviewable authority” for officers who have not been appointed by the president and confirmed by the Senate. While the decision is unquestionably a win for democratic accountability, it also leaves some unanswered questions. In this post I’ll examine one issue that lower courts will be left to grapple with in the wake of Arthrex: the interplay of final decision-making authority and tenure protection in Appointments Clause cases.

Arthrex was a case about drawing the line between “inferior” and “principal” officers, a distinction created by the Constitution’s Appointments Clause. The key Supreme Court precedent on that dividing line is Edmond v. United States (1997), which held that an officer is inferior only if “directed and supervised” by a superior appointed by the president and confirmed by the Senate. In Edmond, the Court identified three factors that weighed in favor of its holding that the officer at issue was indeed “directed and supervised” and therefore inferior: (1) reviewability of the officer’s decisions by a superior; (2) direct oversight of the officer by a superior; and (3) the power of a superior to remove the officer from office at will.

Ever since Edmond, the crucial unanswered question has been how these three factors interact with each other, especially when they weigh in different directions. Is any one factor more fundamental than the other two? Should courts rule for whichever side wins two out of three? Or should courts attempt to weigh all factors equally in some kind of multi-factor balancing test?

Arthrex was the first case to reach the Supreme Court on the principal/​inferior divide since Edmond, making it a prime opportunity to add clarity to these questions. The APJs at issue in Arthrex had the power to issue decisions that were not reviewable by a superior, and APJs could not be removed from federal service by a superior except for good cause. Thus, both the “non-reviewability” factor and the “non-removability” factor were implicated by the APJs’ statutory scheme, presenting an ideal chance to address which factor, if any, takes precedence.

While Arthrex didn’t provide an explicit answer, the opinion goes a long way toward suggesting that reviewability of an officer’s decision holds primary position among the three Edmond factors.

The biggest clue toward the Court’s thinking lies in the contrast between the Court’s choice of remedy and the remedy chosen by the Federal Circuit. In its decision below, the Federal Circuit had found the APJs to be insufficiently supervised and therefore principal officers, a holding that the Supreme Court affirmed. But as a remedy, the Federal Circuit had made APJs removable at will from federal service while retaining the APJs’ ability to issue final and non-reviewable decisions. The resulting scheme, in the Federal Circuit’s view, rendered the APJs sufficiently supervised so as to be inferior officers.

But the Supreme Court declined to adopt the federal circuit’s “removability” remedy. Instead, the Court substituted an alternative “reviewability” remedy of its own, rendering decisions of the APJs reviewable by the PTO director while retaining the APJs’ protection from at-will removal. The plurality opinion expressly declined to endorse the federal circuit’s conclusion that removability alone would establish sufficient supervision. Instead, the plurality held that reviewability is the more straightforward remedy “regardless whether the Government is correct that at-will removal by the Secretary [of Commerce] would cure the constitutional problem.” Indeed, the plurality went so far as to say that APJs appear to be inferior officers “in every respect save the insulation of their decisions from review within the Executive Branch,” a strong suggestion that removability is unlikely to be the determinative factor in the Appointments Clause inquiry.

At the very least, the Court’s choice of remedy strongly suggests that the Court was more confident that reviewability provides sufficient supervision than it was that removability provides sufficient supervision. And this suggestion is bolstered by reasoning found elsewhere in the Court’s opinion. In unsuccessfully arguing that APJs were already sufficiently supervised so as to be inferior, the government had noted that because the PTO director selects which APJs will sit on each 3‑person adjudicatory panel, the director could, in theory, decide never to assign a particular APJ to any panel ever again. The government argued that this would effectively “remove” that APJ from their adjudicatory duties, meaning that a de facto at-will removal power already exists.

The Court rejected this argument, however, noting that “reassigning an APJ to a different task going forward gives the Director no means of countermanding the final decision already on the books.” But that reasoning applies just as much to any potential power to remove APJs at will from federal service altogether, the remedy chosen by the Federal Circuit. Such a power would likewise fall short of allowing the director to “countermand[]” any “final decision already on the books.” In other words, the Court’s explanation for why the government’s de facto removal argument fell short of demonstrating sufficient supervision can be extrapolated into a broader argument for why removability in general is not enough, on its own, to create sufficient supervision.

And a final indicator of the Court’s inclination is found in the Court’s recounting of Appointments Clause history, where the Court explained that it had “indicated in early decisions that adequate supervision entails review of decisions issued by inferior officers.” Once again, there is no suggestion in this portion of the opinion that the power to remove an officer after a decision would, on its own, serve as a sufficient alternative to the power to review that decision.

The closest the Arthrex Court came to a positive reference to removability was in its comparison of APJs with members of the Labor Department’s Benefits Review Board, who likewise have final decision-making authority despite lacking Senate confirmation. The Court tepidly noted that such members are “potentially distinguishable” from APJs because they “appear to serve at the pleasure of the appointing department head.” That is hardly a ringing endorsement that the BRB members are in fact inferior officers and that their method of appointment is constitutional.

Given these indicators, lower courts going forward will likely be hesitant to hold that removability without reviewability constitutes sufficient supervision. Even oversight combined with removal power may not be enough to overcome the fundamental fact that an officer with the last word for the Executive Branch inherently possesses a level of independence that is hard to square with “inferior” status.