Last year in United States v. Arthrex, the Supreme Court ruled 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. The Court’s decision concerned the line between “inferior” and “principal” officers, a distinction created by the Constitution’s Appointments Clause. That clause mandates that an officer who has not been confirmed by the Senate may only serve in an “inferior” office. And 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 Arthrex, a majority of the Supreme Court found that APJs were not adequately “directed and supervised” for one key reason: when deciding whether to cancel a patent, their unreviewable decision was “the last stop for review within the Executive Branch.” To fix this constitutional defect, the Court modified the statutory scheme to allow the Patent and Trademark Office (PTO) director to review every decision of the APJs. As Chief Justice John Roberts wrote, “the exercise of executive power by inferior officers must at some level be subject to the direction and supervision of an officer nominated by the President and confirmed by the Senate.” Since the PTO director is normally a position filled via presidential nomination and Senate consent, granting reviewing power to the PTO director seemingly fit the bill.

But there was a twist. A few months before the Supreme Court issued its decision, the PTO director resigned, and the office fell vacant. That vacancy ended up lasting more than a year, during which time the functions and duties of the position were delegated to an official who had not been confirmed by the Senate. After the Arthrex decision came down, the PTO decided that this unconfirmed official “performing the duties” of the PTO director would be the recipient of the newfound reviewing power granted by the Supreme Court. Arthrex’s Supreme Court victory thus turned out to be entirely hollow: while the Supreme Court agreed that it was unconstitutional for unconfirmed APJs to have the last word on Arthrex’s patent, Arthrex’s only remedy was review by a different unconfirmed official.

Understandably unsatisfied with this outcome, Arthrex went back to the Court of Appeals for the Federal Circuit (the appellate court that handles all patent cases) and argued that the Constitution requires review by a Senate-confirmed PTO director. But in a blow to the separation of powers principles that the Appointments Clause was intended to protect, the Federal Circuit last week rejected that argument.

In doing so, the Federal Circuit relied on an 1898 Supreme Court case called U.S. v. Eaton. In that thinly reasoned decision, the Supreme Court seemingly endorsed the constitutionality of serving without Senate consent in principal offices that would normally require Senate consent, so long as the service is “for a limited time, and under special and temporary conditions.” Yet courts have declined to put any upper limit on just how long this “special and temporary” service can last. The Federal Circuit was not concerned by the fact that the official performing the duties of the PTO director could have kept those duties indefinitely, serving as long as it took for a permanent PTO director to be nominated and confirmed. Instead, the court simply noted that the official acted on Arthrex’s patent on his 268th day of temporary service, and that this length of time was short enough.

I’ve previously written that there is serious doubt whether Eaton should be understood to apply to all vacancies or rather only to vacancies where the permanent occupant of an office is temporarily indisposed by sickness or travel. Examining the early history of temporary officers provides some evidence that the latter, more limited approach is closer to the original understanding of the Appointments Clause. And in any event, Eaton is unquestionably in tension with the more modern categorical approach announced by the Supreme Court in Edmond, a tension that the Supreme Court has not yet resolved.

And the problems with Eaton are further compounded by a statutory loophole, one that also came into play in the Federal Circuit’s decision. Even though courts have declined to place any upper time limit on permissible temporary service under Eaton, Congress has attempted to place such a limit by statute. The Federal Vacancies Reform Act (FVRA) is a law that was intended to regulate and limit the executive branch’s use of unconfirmed acting officers. And one such limit in the law is a time limit on their acting service.

But a major loophole in the FVRA’s text, which I have previously called for eliminating, allows the executive branch to bypass even these generous time limits. The executive branch can exploit this loophole by delegating all of the nonexclusive duties of an office (which, in practice, are usually all of the duties), and that is exactly what the Commerce Department did in the case of the PTO director. The Federal Circuit, while admitting that this loophole “renders the FVRA’s scope ‘vanishingly small,’” nonetheless upheld the loophole’s use as complying with the letter of the law.

Arthrex is thus a case study in the lack of democratic accountability that results from the combined effect of Eaton and the FVRA’s delegation loophole. While the Supreme Court’s Arthrex decision seemed at the time to be a crucial win for the separation of powers, it has been shown in less than a year’s time to be largely toothless. In practical effect, an unconfirmed subdelegatee exercising the PTO director’s powers has no more democratic accountability than an unconfirmed APJ. Neither has been vetted or voted upon by the Senate, a process that Alexander Hamilton hoped “would tend greatly to prevent the appointment of unfit characters.” If the Appointments Clause and the rule the Supreme Court set down in Edmond are to have real effect, both the Eaton doctrine and the FVRA must be reexamined and reformed.