Abstract
The hiring and firing of patent judges and directors of federal agencies: it’s somewhat less than gripping stuff. But this year, these two seemingly mundane controversies provided a chance for the Roberts Court to build on a theory of a core concept of the U.S. Constitution—the separation of powers—gradually being unveiled by the Court over the last few years. In June 2021, the Supreme Court issued a pair of decisions in Collins v. Yellen, concerning the removal of the heads of federal agencies, and U.S. v. Arthrex, on the appointment of administrative patent judges, or APJs.
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Notes
- 1.
Major expositors of unitary executive theory are Steven G. Calabresi and Christopher S. Yoo, The Unitary Executive: Presidential Power from Washington to Bush (New Haven: Yale University Press, 2008), and Steven G. Calabresi and Saikrishna Prakash, “The President’s Power to Execute the Laws,” The Yale Law Journal 104 (1994): 541–665.
- 2.
See, for instance, Vicki Divoll, “Eight Things I Hate About Unitary Executive Theory,” Vermont Law Review 38 (2013): 147–154, and Seila Law v. CFPB, 591 U.S. __ (2020) Kagan dissent at 4, 23: “The majority offers the civics class version of separation of powers—call it the Schoolhouse Rock definition of the phrase. … [But no] mathematical formula governs institutional design; trade-offs are endemic to the enterprise. But that is precisely why the issue is one for the political branches to debate—and then debate again as times change. And it’s why courts should stay (mostly) out of the way. Rather than impose rigid rules like the majority’s, they should let Congress and the President figure out what blend of independence and political control will best enable an agency to perform its intended functions.” See the discussion in SCOTUS 2020 Ch 13 “Seila Law v. Consumer Finance Protection Bureau on Separation of Powers” by Howard Schweber.
- 3.
The clause reads, in relevant part: “[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint … all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Court of Law, or in the Heads of Departments.” U.S. Const. Art. II, § 2, Cl. 2.
- 4.
The Court of Appeals for the Federal Circuit had arrived at the conclusion that APJs were principal officers but had held that the remedy was to make APJs fireable, as opposed to making their decisions reviewable. U.S. v. Arthrex, Inc., 941 F. 3d 1320 (2019) at 1335.
- 5.
The statute that established this system of patent adjudication was the Leahy-Smith America Invents Act of 2011. For more on the law, see the Patent and Trademark Office website’s discussion of the statute and its implementation, available at www.uspto.gov/patents/laws/leahy-smith-america-invents-act-implementation.
- 6.
U.S. v. Arthrex decision, page 19.
- 7.
Part III of Roberts’ opinion was joined by Justices Alito, Kavanaugh, and Coney Barrett, but not Justice Gorsuch.
- 8.
Arthrex Breyer opinion at 7: “I do not agree with the Court’s basic constitutional determination. For purposes of determining a remedy, however, I recognize that a majority of the Court has reached a contrary conclusion. … Under the Court’s new test, the current statutory scheme is defective only because the APJ’s decisions are not reviewable by the Director alone. The Court’s remedy addresses that specific problem, and for that reason I agree with its remedial holding.” It is possible to speculate that the liberal Justices agreed to Chief Justice Roberts’ preferred remedy because it avoided the more drastic solutions of making APJs removable or requiring that the President, with the Senate’s approval, appoint them all.
- 9.
Arthrex Gorsuch opinion at 4-6. Gorsuch also wrote to make the separate point that to allow an administrative agency the power “to withdraw a vested property right” of an individual—as in patent hearings—was unconstitutional. Only a court could do that (Ibid. at 1). Although no other Justice subscribed to this argument, its implications on the administrative state would be far-reaching.
- 10.
Arthrex Breyer opinion at 3.
- 11.
Arthrex Thomas dissent at 1.
- 12.
The original case was called Collins v. Mnuchin and became Collins v. Yellen when Janet Yellen became Secretary of the Treasury under the administration of President Joe Biden. Collins was consolidated with a separate case, Yellen v. Collins, and argued on December 9, 2020.
- 13.
Public Law 110-289 (30 July 2008). “Fannie Mae” is the nickname for the Federal National Mortgage Association (FNMA), which was founded in 1938. Similarly, the official name of Freddie Mac is the Federal Home Loan Mortgage Corporation (FHLMC), created in 1970 to expand the market for mortgage loans.
- 14.
The 2012 agreement provided that shareholders’ economic interests in the mortgage companies would be transferred to the federal government.
- 15.
U.S. Const. Art. II, §3.
- 16.
The Court left open the possibility that the FHFA’s unconstitutional structure had nevertheless inflicted harm on the shareholders in this particular case, which would give the shareholders a right to challenge the dividend agreement in future court proceedings. It remanded the case for further proceedings to determine whether this had in fact occurred.
- 17.
Collins v. Yellen decision at 26 and 31.
- 18.
Collins Sotomayor dissent at 13.
- 19.
Myers v. United States, 272 U.S. 52 (1926).
- 20.
See Seila Law (2020) Kagan dissent at 17: “[W]ithin a decade the Court abandoned [the] view [adopted in Myers]” of an exclusive executive removal power. And see, upholding such statutory arrangements, Humphrey’s Executor v. U.S., 295 U.S. 602 (1935), Wiener v. United States, 357 U.S. 349 (1958), Morrison v. Olson, 487 U.S. 654 (1988), Mistretta v. United States, 488 U.S. 361 (1989), and Edmond v. United States, 520 U.S. 651 (1997).
- 21.
See, e.g., Free Enterprise Fund v. Public Company Accounting Oversight Bd., 561 U.S. 477 (2010), Arlington v. FCC, 569 U.S. 290 (2013), Lucia v. SEC, 585 U.S. ___ (2018), Seila Law (2020). In his dissent in Arthrex, Justice Breyer describes the decision as “one part of a larger shift in our separation-of-powers jurisprudence” (Breyer opinion at 5).
- 22.
On the tension between these two ideals cutting through public administration, see Stephen Skowronek, John Dearborn, and Desmond King, Phantoms of a Beleaguered Republic: The Deep State and the Unitary Executive (New York: OUP, 2021).
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Katz, A.S. (2022). Collins v. Yellen and US v. Arthrex on the Separation of Powers. In: Marietta, M. (eds) SCOTUS 2021. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-030-88641-7_6
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