United States v. Arthrex, Inc.

P R E L I M I N A R Y P R I N T
Volume 594 U. S. Part 1
Pages 1–68
OFFICIAL REPORTS
OF
T H E S U P R E M E C O U R T
June 21, 2021
REBECCA A. WOMELDORF
reporter of decisions
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the bound volume is published. Users are requested to notify the Reporter
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pio@supremecourt.gov, of any typographical or other formal errors.

CASES ADJUDGED
IN THE
SUPREME COURT OF THE UNITED STATES
AT
OCTOBER TERM, 2020
UNITED STATES v. ARTHREX, INC., et al.
certiorari to the united states court of appeals for
the federal circuit
No. 19–1434. Argued March 1, 2021—Decided June 21, 2021*
The question in these cases is whether the authority of Administrative
Patent Judges (APJs) to issue decisions on behalf of the Executive
Branch is consistent with the Appointments Clause of the Constitution.
APJs conduct adversarial proceedings for challenging the validity of
an existing patent before the Patent Trial and Appeal Board (PTAB).
During such proceedings, the PTAB sits in panels of at least three of its
members, who are predominantly APJs. 35 U. S. C. §§ 6(a), (c). The
Secretary of Commerce appoints all members of the PTAB—including
200-plus APJs—except for the Director, who is nominated by the Presi-
dent and confrmed by the Senate. §§ 3(b)(1), (b)(2)(A), 6(a). After
Smith & Nephew, Inc., and ArthroCare Corp. (collectively, Smith &
Nephew) petitioned for inter partes review of a patent secured by Ar-
threx, Inc., three APJs concluded that the patent was invalid. On ap-
peal to the Federal Circuit, Arthrex claimed that the structure of the
PTAB violated the Appointments Clause, which specifes how the Presi-
dent may appoint offcers to assist in carrying out his responsibilities.
Art. II, § 2, cl. 2. Arthrex argued that the APJs were principal offcers
who must be appointed by the President with the advice and consent of
*Together with No. 19–1452, Smith & Nephew, Inc., et al. v. Arthrex,
Inc., et al. and No. 19–1458, Arthrex, Inc. v. Smith & Nephew, Inc., et al.,
also on certiorari to the same court.
1
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2 UNITED
STATES v. ARTHREX, INC.
Syllabus
the Senate, and that their appointment by the Secretary of Commerce
was
therefore unconstitutional. The Federal Circuit held that the APJs
were principal offcers whose appointments were unconstitutional be-
cause neither the Secretary nor Director can review their decisions or
remove them at will. To remedy this constitutional violation, the Fed-
eral Circuit invalidated the APJs' tenure protections, making them re-
movable at will by the Secretary.
Held: The judgment is vacated, and the case is remanded.
941 F. 3d 1320, vacated and remanded.
The Chief Justice delivered the opinion of the Court with respect
to Parts I and II, concluding that the unreviewable authority wielded
by APJs during inter partes review is incompatible with their appoint-
ment by the Secretary of Commerce to an inferior offce. Pp. 11–23.
(a) The Appointments Clause provides that only the President, with
the advice and consent of the Senate, can appoint principal offcers.
With respect to inferior offcers, the Clause permits Congress to vest
appointment power “in the President alone, in the Courts of Law, or in
the Heads of Departments.” Pp. 11–13.
(b) In Edmond v. United States, 520 U. S. 651, this Court explained
that an inferior offcer must be “directed and supervised at some level
by others who were appointed by Presidential nomination with the ad-
vice and consent of the Senate.” Id., at 663. Applying that test to
Coast Guard Court of Criminal Appeals judges appointed by the Secre-
tary of Transportation, the Court held that the judges were inferior
offcers because they were effectively supervised by a combination of
Presidentially nominated and Senate confrmed offcers in the Executive
Branch. Id., at 664–665. What the Court in Edmond found “signif-
cant” was that those judges had “no power to render a fnal decision on
behalf of the United States unless permitted to do so by other Executive
offcers.” Id., at 665.
Such review by a superior executive offcer is absent here. While
the Director has tools of administrative oversight, neither he nor any
other superior executive offcer can directly review decisions by APJs.
Only the PTAB itself “may grant rehearings.” § 6(c). This restriction
on review relieves the Director of responsibility for the fnal decisions
rendered by APJs under his charge. Their decision—the fnal word
within the Executive Branch—compels the Director to “issue and pub-
lish a certifcate” canceling or confrming patent claims he had pre-
viously allowed. § 318(b).
The Government and Smith & Nephew contend that the Director has
various ways to indirectly infuence the course of inter partes review.

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3
Syllabus
The Director, for example, could designate APJs predisposed to decide
a
case in his preferred manner. But such machinations blur the lines
of accountability demanded by the Appointments Clause and leave the
parties with neither an impartial decision by a panel of experts nor
a transparent decision for which a politically accountable offcer must
take responsibility.
Even if the Director can refuse to designate APJs on future PTAB
panels, he has no means of countermanding the fnal decision already on
the books. Nor can the Secretary meaningfully control APJs through
the threat of removal from federal service entirely because she can fre
them only “for such cause as will promote the effciency of the service.”
5 U. S. C. § 7513(a); see Seila Law LLC v. Consumer Financial Protec-
tion Bureau, 591 U. S. –––, –––. And the possibility of an appeal to
the Federal Circuit does not provide the necessary supervision. APJs
exercise executive power, and the President must be ultimately respon-
sible for their actions. See Arlington v. FCC, 569 U. S. 290, 305, n. 4.
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.” Free Enterprise Fund
v. Public Company Accounting Oversight Bd., 561 U. S. 477, 496.
APJs accordingly exercise power that conficts with the design of the
Appointments Clause “to preserve political accountability.” Edmond,
520 U. S., at 663. Pp. 13–18.
(c) History reinforces the conclusion that the unreviewable executive
power exercised by APJs is incompatible with their status as inferior
offcers. Founding-era congressional statutes and early decisions from
this Court indicate that adequate supervision entails review of decisions
issued by inferior offcers. See, e. g., 1 Stat. 66–67; Barnard v. Ashley,
18 How. 43, 45. Congress carried that model of principal offcer review
into the modern administrative state. See, e. g., 5 U. S. C. § 557(b).
According to the Government and Smith & Nephew, heads of depart-
ment appoint a handful of contemporary offcers who purportedly exer-
cise fnal decisionmaking authority. Several of their examples, how-
ever, involve inferior officers whose decisions a superior executive
offcer can review or implement a system for reviewing. See, e. g.,
Freytag v. Commissioner, 501 U. S. 868. Nor does the structure of the
PTAB draw support from the predecessor Board of Appeals, which
deter mi ned the patent abi lity of i nventi ons i n panels composed of
examiners-in-chief without an appeal to the Commissioner. 44 Stat.
1335–1336. Those Board decisions could be reviewed by the Court of
Customs and Patent Appeals—an executive tribunal—and may also have
been subject to the unilateral control of the agency head. Pp. 18–22.

4 UNITED
STATES v. ARTHREX, INC.
Syllabus
(d) The Court does not attempt to “set forth an exclusive criterion for
disti
nguishing between principal and inferior offcers for Appointments
Clause purposes.” Edmond, 520 U. S., at 661. Many decisions by infe-
rior offcers do not bind the Executive Branch to exercise executive
power in a particular manner, and the Court does not address supervi-
sion outside the context of adjudication. Here, however, Congress has
assigned APJs “signifcant authority” in adjudicating the public rights
of private parties, while also insulating their decisions from review
and their offces from removal. Buckley v. Valeo, 424 U. S. 1, 126.
P. 23.
The Chief Justice, joined by Justice Alito, Justice Kavanaugh,
and Justice Barrett, concluded in Part III that § 6(c) cannot constitu-
tionally be enforced to the extent that its requirements prevent the
Director from reviewing fnal decisions rendered by APJs. The Direc-
tor accordingly may review fnal PTAB decisions and, upon review, may
issue decisions himself on behalf of the Board. Section 6(c) otherwise
remains operative as to the other members of the PTAB. When re-
viewing such a decision by the Director, a court must decide the case
“conformably to the constitution, disregarding the law” placing restric-
tions on his review authority in violation of Article II. Marbury v.
Madison, 1 Cranch 137, 178.
The appropriate remedy is a remand to the Acting Director to decide
whether to rehear the petition fled by Smith & Nephew. A limited
remand provides an adequate opportunity for review by a principal off-
cer. Because the source of the constitutional violation is the restraint
on the review authority of the Director, rather than the appointment of
APJs by the Secretary, Arthrex is not entitled to a hearing before a
new panel of APJs. Pp. 23–27.
Roberts, C. J., delivered the opinion of the Court with respect to Parts
I and II, in which Alito, Gorsuch, Kavanaugh, and Barrett, JJ.,
joined, and an opinion with respect to Part III, in which Alito, Kava-
naugh, and Barrett, JJ., joined. Gorsuch, J., fled an opinion concur-
ring in part and dissenting in part, post, p. 27. Breyer, J., fled an opin-
ion concurring in the judgment in part and dissenting in part, in which
Sotomayor and Kagan, JJ., joined, post, p. 38. Thomas, J., fled a dis-
senting opinion, in which Breyer, Sotomayor, and Kagan, JJ., joined as
to Parts I and II, post, p. 44.
Deputy Solicitor General Stewart argued the cause for the
United States. With him on the briefs were Acting Solici-
tor General Wall, Acting Solicitor General Prelogar, Acting
Assistant Attorney General Clark, Deputy Assistant Attor-
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5
Counsel
ney General Granston, Sopan Joshi, Jonathan Y. Ellis, Scott
R.
McIntosh, Melissa N. Patterson, Thomas W. Krause, Far-
heena Y. Rasheed, Molly R. Silfen, and Daniel Kazhdan.
Mark A. Perry argued the cause for Smith & Nephew,
Inc., et al. With him on the briefs were Kellam M. Conover,
Charles T. Steenburg, Nathan R. Speed, and Richard F.
Giunta.
Jeffrey A. Lamken argued the cause for Arthrex, Inc.
With him on the briefs were Robert K. Kry, James A. Barta,
Anthony P. Cho, Jessica E. Fleetham, Charles W. Saber, Sal-
vatore P. Tamburo, John W. Schmieding, and Trevor
Arnold.†
†Briefs of amici curiae urging reversal in all cases were fled for Acush-
net et al. by Peter J. Brann, David Swetnam-Burland, and Stacy O. Sti-
tham; for Administrative Law Professors et al. by Alan B. Morrison, pro
se; for the American Intellectual Property Law Association by Sophie F.
Wang, Patrick J. Coyne, and Bryana T. McGillycuddy; for the Americans
for Prosperity Foundation et al. by Michael Pepson and Cynthia Fleming
Crawford; for Askeladden L. L. C. by Gregory H. Lantier and David M.
Lehn; for the Association for Accessible Medicines by Matthew S. Hellman
and Jeffrey K. Francer; for the Cato Institute et al. by Ilya Shapiro; for
the Computer & Communications Industry Association et al. by Joshua
Landau; for Cross-Industry Groups by Stephen I. Vladeck, Ian Heath Ger-
shengorn, and Lindsay C. Harrison; for eComp Consultants by Charles
R. Macedo and David P. Goldberg; for the High Tech Investors Alliance
by Andrew J. Pincus and Jed W. Glickstein; for Intel Corp. by Donald B.
Verrilli, Jr., Ginger D. Anders, and Jordan D. Segall; for the Intellectual
Property Law Association of Chicago by John R. Linzer, Margaret
M. Duncan, and Judy K. He; for Unifed Patents, LLC, by William G.
Jenks and Jonathan Stroud; and for Jason V. Morgan by Jason Morgan,
pro se.
Briefs of amici curiae urging affrmance in all cases were fled for the
Fair Inventing Fund by Mathew B. Tully; for the New Civil Liberties
Alliance by Richard A. Samp, Jared McClain, and Margaret A. Little; for
TiVo Corp. by Michael E. Joffre, Jason D. Eisenberg, and William H.
Milliken; and for the U. S. Lumber Coalition by Kevin K. Russell and
Erica Oleszczuk Evans.
Briefs of amici curiae were fled in all cases for Apple Inc. by Mark S.
Davies and Christopher J. Cariello; for B. E. Technology, LLC, by James
M. Hood III; for the Coalition Against Patent Abuse by Charles Duan;
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6 UNITED
STATES v. ARTHREX, INC.
Opinion of the Court
Chief Justice Roberts delivered the opinion of the
Cour
t with respect to Parts I and II.
The validity of a patent previously issued by the Patent
and Trademark Offce can be challenged before the Patent
Trial and Appeal Board, an executive tribunal within the
PTO. The Board, composed largely of Administrative Pat-
ent Judges appointed by the Secretary of Commerce, has the
fnal word within the Executive Branch on the validity of a
challenged patent. Billions of dollars can turn on a Board
decision.
Under the Constitution, “[t]he executive Power” is vested
in the President, who has the responsibility to “take Care
that the Laws be faithfully executed.” Art. II, § 1, cl. 1; § 3.
The Appointments Clause provides that he may be assisted
in carrying out that responsibility by offcers nominated by
him and confrmed by the Senate, as well as by other offcers
not appointed in that manner but whose work, we have held,
must be directed and supervised by an offcer who has been.
§ 2, cl. 2. The question presented is whether the authority
of the Board to issue decisions on behalf of the Executive
Branch is consistent with these constitutional provisions.
I
A
The creation of a workable patent system was a con-
gressional priority from the start. The First Congress
established the Patent Board—consisting impressively of
Secretary of State Thomas Jefferson, Secretary of War
Henry Knox, and Attorney General Edmund Randolph—to
for Engine Advocacy et al. by Jef Pearlman and Alexandra H. Moss; for
the Niskanen Center by David Bookbinder; for the Pacifc Legal Founda-
tion by Oliver J. Dun ford and Damien M. Schiff; for US Inventor, Inc.,
by Robert Greenspoon; for Jeremy C. Doerre by Jeremy C. Doerre, pro se;
for John Harrison by John Harrison, pro se; for Joshua J. Malone by Timo-
thy J. Haller; for Andrew Michaels by Andrew Michaels, pro se; and for
39 Aggrieved Inventors by Bridget A. Smith and Kenneth J. Weatherwax.
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7
Opinion of the Court
issue patents for inventions they deemed “suffciently useful
and
important.” § 1, 1 Stat. 109–110. Jefferson, a re-
nowned inventor in his own right, “was charged with most
of the responsibility” to administer the new patent system.
Federico, Operation of the Patent Act of 1790, 18 J. Pat. Off.
Soc. 237, 238–239 (1936). The Patent Board was a short-
lived experiment because its members had much else to do.
Jefferson candidly admitted that he had “been obliged to give
undue & uninformed opinions on rights often valuable” with-
out the “great deal of time” necessary to “understand & do
justice by” patent applicants. Letter from T. Jefferson to
H. Williamson (Apr. 1, 1792), in 6 Works of Thomas Jefferson
459 (P. Ford ed. 1904).
In 1793, Congress shifted to a registration system admin-
istered by the Secretary of State. See 1 Stat. 319–321.
The Secretary no longer reviewed the substance of patent
applications but instead issued patents through a routine
process “as a ministerial offcer.” Grant v. Raymond, 6 Pet.
218, 241 (1832). The courts would make the initial determi-
nation of patent validity in a subsequent judicial proceeding,
such as an infringement suit. See 1 Stat. 322. This scheme
unsurprisingly resulted in the Executive Branch issuing
many invalid patents and the Judicial Branch having to de-
cide many infringement cases. See S. Doc. No. 338, 24th
Cong., 1st Sess., 3 (1836). Judge William Van Ness—who
before taking the bench had served as second to Aaron Burr
in his duel with Alexander Hamilton—lamented that Con-
gress had left the door “open and unguarded” for imposters
to secure patents, with the consequences of “litigation and
endless trouble, if not total ruin, to the true inventor.”
Thompson v. Haight, 23 F. Cas. 1040, 1041–1042 (No. 13,957)
(CC SDNY 1826). Congress heeded such concerns by re-
turning the initial determination of patentability to the Ex-
ecutive Branch, see 5 Stat. 117–118, where it remains today.
The present system is administered by the Patent and
Trademark Offce (PTO), an executive agency within the De-

8 UNITED
STATES v. ARTHREX, INC.
Opinion of the Court
partment of Commerce “responsible for the granting and
issui
ng of patents” in the name of the United States. 35
U. S. C. §§ 1(a), 2(a)(1). Congress has vested the “powers
and duties” of the PTO in a sole Director appointed by
the President with the advice and consent of the Senate.
§ 3(a)(1). As agency head, the Director “provid[es] policy di-
rection and management supervision” for PTO offcers and
employees. § 3(a)(2)(A).
This suit centers on the Patent Trial and Appeal Board
(PTAB), an executive adjudicatory body within the PTO es-
tablished by the Leahy-Smith America Invents Act of 2011.
125 Stat. 313. The PTAB sits in panels of at least three
members drawn from the Director, the Deputy Director, the
Commissioner for Patents, the Commissioner for Trade-
marks, and more than 200 Administrative Patent Judges
(APJs). 35 U. S. C. §§ 6(a), (c). The Secretary of Commerce
appoints the members of the PTAB (except for the Director),
including the APJs at issue in th is dispute. §§ 3( b)(1),
(b)(2)(A), 6(a). Like the 1790 Patent Board, the modern
Board decides whether an invention satisfes the standards
for patentability on review of decisions by primary examin-
ers. §§ 6(b)(1), 134(a).
Through a variety of procedures, the PTAB can also take
a second look at patents previously issued by the PTO.
§§ 6(b)(2)–(4). One such procedure is inter partes review.
Established in 2011, inter partes review is an adversarial
process by which members of the PTAB reconsider whether
existing patents satisfy the novelty and nonobviousness re-
quirements for inventions. See § 6(a) of the America In-
vents Act, 125 Stat. 299. Any person—other than the pat-
ent owner himself—can fle a petition to institute inter
partes review of a patent. 35 U. S. C. § 311(a). The Direc-
tor can institute review only if, among other requirements,
he determines that the petitioner is reasonably likely to pre-
vail on at least one challenged patent claim. § 314(a). Con-
gress has committed the decision to institute inter partes
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Opinion of the Court
review to the Director 's unreviewable discreti on. See
Thr
yv, Inc. v. Click-To-Call Technologies, LP, 590 U. S.
45, 52–53 (2020). By regulation, the Director has delegated
this authority to the PTAB itself. 37 CFR § 42.4(a) (2020).
The Director designates at least three members of the
PTAB (typically three APJs) to conduct an inter partes pro-
ceeding. 35 U. S. C. § 6(c). The PTAB then assumes control
of the process, which resembles civil litigation in many re-
spects. § 316(c). The PTAB must issue a fnal written deci-
sion on all of the challenged patent claims within 12 to 18
months of institution. § 316(a)(11); see SAS Institute Inc. v.
Iancu, 584 U. S. 357, 363 (2018). A party who disagrees
with a decision may request rehearing by the PTAB. 35
U. S. C. § 6(c); 37 CFR § 42.71(d).
The PTAB is the last stop for review within the Executive
Branch. A party dissatisfed with the fnal decision may
seek judicial review in the Court of Appeals for the Federal
Circuit. 35 U. S. C. § 319. At this stage, the Director can
intervene before the court to defend or disavow the Board's
decision. § 143. The Federal Circuit reviews the PTAB's
application of patentability standards de novo and its under-
lying factual determinations for substantial evidence. See
Oil States Energy Services, LLC v. Greene's Energy Group,
LLC, 584 U. S. 325, 332 (2018). Upon expiration of the time
to appeal or termination of any appeal, “the Director shall
issue and publish a certifcate canceling any claim of the pat-
ent fnally determined to be unpatentable, confrming any
claim of the patent determined to be patentable, and incorpo-
rating in the patent by operation of the certifcate any new
or amended claim determined to be patentable.” § 318(b).
B
Arthrex, Inc. develops medical devices and procedures for
orthopedic surgery. In 2015, it secured a patent on a surgi-
cal device for reattaching soft tissue to bone without tying a
knot, U. S. Patent No. 9,179,907 ('907 patent). Arthrex soon
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10 UNITED
STATES v. ARTHREX, INC.
Opinion of the Court
claimed that Smith & Nephew, Inc. and ArthroCare Corp.
(
collectively, Smith & Nephew) had infringed the '907 patent,
and the dispute eventually made its way to inter partes re-
view in the PTO. Three APJs formed the PTAB panel that
conducted the proceeding and ultimately concluded that a
prior patent application “anticipated” the invention claimed
by the '907 patent, so that Arthrex's patent was invalid.
See App. to Pet. for Cert. in No. 19–1434, p. 128a.
On appeal to the Federal Circuit, Arthrex raised for the
frst time an argument premised on the Appointments Clause
of the Constitution. That Clause specifes how the Presi-
dent may appoint offcers who assist him in carrying out his
responsibilities. Principal offcers must be appointed by
the President with the advice and consent of the Senate,
while inferior offcers may be appointed by the President
alone, the head of an executive department, or a court.
Art. II, § 2, cl. 2. Arthrex argued that the APJs were prin-
cipal offcers and therefore that their appointment by the
Secretary of Commerce was unconstitutional. The Govern-
ment intervened to defend the appointment procedure.
The Federal Circuit agreed with Arthrex that APJs were
principal offcers. 941 F. 3d 1320, 1335 (2019). Neither the
Secretary nor Director had the authority to review their de-
cisions or to remove them at will. The Federal Circuit held
that these restrictions meant that APJs were themselves
principal offcers, not inferior offcers under the direction of
the Secretary or Director.
To fx this constitutional violation, the Federal Circuit in-
validated the tenure protections for APJs. Making APJs
removable at will by the Secretary, the panel held, prospec-
tively “renders them inferior rather than principal offcers.”
Id., at 1338. The Federal Circuit vacated the PTAB's deci-
sion and remanded for a fresh hearing before a new panel
of APJs, who would no longer enjoy protection against re-
moval. Id., at 1338–1340.
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Opinion of the Court
This satisfed no one. The Government, Smith & Nephew,
and
Arthrex each requested rehearing en banc, which the
Court of Appeals denied. 953 F. 3d 760, 761 (2020) (per cu-
riam). The parties then requested review of different as-
pects of the panel's decision in three petitions for certiorari.
We granted those petitions to consider whether the
PTAB's str ucture is consistent w ith the Appointments
Clause, and the appropriate remedy if it is not. 592 U. S.
––– (2020).
II
A
The President is “ `responsible for the actions of the Execu-
tive Branch' ” and “ `cannot delegate [that] ultimate responsi-
bility or the active obligation to supervise that goes with
it.' ” Free Enterprise Fund v. Public Company Accounting
Oversight Bd., 561 U. S. 477, 496–497 (2010) (quoting Clinton
v. Jones, 520 U. S. 681, 712–713 (1997) (Breyer, J., concur-
ring in judgment)). The Framers recognized, of course, that
“no single person could fulfll that responsibility alone, [and]
expected that the President would rely on subordinate off-
cers for assistance.” Seila Law LLC v. Consumer Finan-
cial Protection Bureau, 591 U. S. –––, ––– (2020) (plurality
opinion).
Today, thousands of offcers wield executive power on be-
half of the President in the name of the United States. That
power acquires its legitimacy and accountability to the public
through “a clear and effective chain of command” down from
the President, on whom all the people vote. Free Enter-
prise Fund, 561 U. S., at 498. James Madison extolled this
“great principle of unity and responsibility in the Executive
department,” which ensures that “the chain of dependence
[will] be preserved; the lowest offcers, the middle grade, and
the highest, will depend, as they ought, on the President,
and the President on the community.” 1 Annals of Cong.
499 (1789).
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12 UNITED
STATES v. ARTHREX, INC.
Opinion of the Court
The Appointments Clause provides:
“
[The President] shall nominate, and by and with the
Advice and Consent of the Senate, shall appoint Ambas-
sadors, other public Ministers and Consuls, Judges of
the supreme Court, and all other Offcers of the United
States, whose Appointments are not herein otherwise
provided for, and which shall be established by Law: but
Congress may by Law vest the Appointment of such
inferior Offcers, as they think proper, in the President
alone, in the Courts of Law, or in the Heads of Depart-
ments.” Art. II, § 2, cl. 2.
Assigning the nomination power to the President guaran-
tees accountability for the appointees' actions because the
“blame of a bad nomination would fall upon the president
singly and absolutely.” The Federalist No. 77, p. 517 (J.
Cooke ed. 1961) (A. Hamilton). As Hamilton wrote, the
“sole and undivided responsibility of one man will naturally
beget a livelier sense of duty and a more exact regard to
reputation.” Id., No. 76, at 510–511. The Appointments
Clause adds a degree of accountability in the Senate, which
shares in the public blame “for both the making of a bad
appointment and the rejection of a good one.” Edmond v.
United States, 520 U. S. 651, 660 (1997).
Only the President, with the advice and consent of the
Senate, can appoint noninferior offcers, called “principal”
offcers as shorthand in our cases. See id., at 659. The “de-
fault manner of appointment” for inferior offcers is also nom-
ination by the President and confrmation by the Senate.
Id., at 660. But the Framers foresaw that “when offces be-
came numerous, and sudden removals necessary, this mode
might be inconvenient.” United States v. Germaine, 99
U. S. 508, 510 (1879). Refecting this concern for “adminis-
trative convenience, ” the Appointments Clause per mits
Congress to dispense with joint appointment, but only for
inferior offcers. Edmond, 520 U. S., at 660. Congress may
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Opinion of the Court
vest the appointment of such offcers “in the President alone,
i
n the Courts of Law, or in the Heads of Departments.”
B
Congress provided that APJs would be appointed as in-
ferior offcers, by the Secretary of Commerce as head of a
department. The question presented is whether the nature
of their responsibilities is consistent with their method of
appointment. As an initial matter, no party disputes that
APJs are offcers—not “lesser functionaries” such as employ-
ees or contractors—because they “exercis[e] signifcant au-
thority pursuant to the laws of the United States.” Buckley
v. Valeo, 424 U. S. 1, 126, and n. 162 (1976) (per curiam); see
Lucia v. SEC, 585 U. S. 237, 247–249 (2018). APJs do so
when reconsidering an issued patent, a power that (the
Court has held) involves the adjudication of public rights
that Congress may appropriately assign to executive offcers
rather than to the Judiciary. See Oil States, 584 U. S., at
336–337.
The starting point for each party's analysis is our opinion
in Edmond. There we explained that “[w]hether one is an
`inferior' offcer depends on whether he has a superior” other
than the President. 520 U. S., at 662. An inferior offcer
must be “directed and supervised at some level by others
who were appointed by Presidential nomination with the ad-
vice and consent of the Senate.” Id., at 663.
In Edmond, we applied this test to adjudicative offcials
within the Executive Branch—specifically, Coast Guard
Court of Criminal Appeals judges appointed by the Secre-
tary of Transportation. See id., at 658. We held that the
judges were inferior offcers because they were effectively
supervised by a combination of Presidentially nominated and
Senate confrmed offcers in the Executive Branch: frst, the
Judge Advocate General, who “exercise[d] administrative
oversight over the Court of Criminal Appeals” by prescrib-
ing rules of procedure and formulating policies for court-
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martial cases, and could also “remove a Court of Criminal
Appea
ls judge from his judicial assignment without cause”;
and second, the Court of Appeals for the Armed Forces, an
executive tribunal that could review the judges' decisions
under a de novo standard for legal issues and a deferential
standard for factual issues. Id., at 664–665. “What is sig-
nifcant,” we concluded, “is that the judges of the Court of
Criminal Appeals have no power to render a fnal decision
on behalf of the United States unless permitted to do so by
other Executive offcers.” Id., at 665.
Congress structured the PTAB differently, providing only
half of the “divided” supervision to which judges of the Court
of Criminal Appeals were subject. Id., at 664. Like the
Judge Advocate General, the PTO Director possesses powers
of “administrative oversight.” Ibid. The Director fxes the
rate of pay for APJs, controls the decision whether to insti-
tute inter partes review, and selects the APJs to reconsider
the validity of the patent. 35 U. S. C. §§ 3(b)(6), 6(c), 314(a).
The Director also promulgates regulations governing inter
partes review, issues prospective guidance on patentability
issues, and designates past PTAB decisions as “precedential”
for future panels. §§ 3(a)(2)(A), 316(a)(4); Brief for United
States 6. He is the boss, except when it comes to the one
thing that makes the APJs offcers exercising “signifcant
authority” in the frst place—their power to issue decisions
on patentability. Buckley, 424 U. S., at 126. In contrast to
the scheme approved by Edmond, no principal offcer at any
level within the Executive Branch “direct[s] and super-
vise[s]” the work of APJs in that regard. 520 U. S., at 663.
Edmond goes a long way toward resolving this dispute.
What was “signifcant” to the outcome there—review by a
superior executive offcer—is absent here: APJs have the
“power to render a fnal decision on behalf of the United
States” without any such review by their nominal superior
or any other principal offcer in the Executive Branch. Id.,
at 665. The only possibility of review is a petition for re-
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hearing, but Congress unambiguously specifed that “[o]nly
the
Patent Trial and Appeal Board may grant rehearings.”
§ 6(c). Such review simply repeats the arrangement chal-
lenged as unconstitutional in this suit.
This “diffusion of power carries with it a diffusion of
accountability.” Free Enterprise Fund, 561 U. S., at 497.
The restrictions on review relieve the Director of responsi-
bility for the fnal decisions rendered by APJs purportedly
under his charge. The principal dissent's observation that
“the Director alone has the power to take fnal action to can-
cel a patent claim or confrm it,” post, at 50 (opinion of
Thomas, J.), simply ignores the undisputed fact that the Di-
rector's “power” in that regard is limited to carrying out the
ministerial duty that he “shall issue and publish a certifcate”
canceling or confrming patent claims he had previously al-
lowed, as dictated by the APJs' fnal decision. § 318(b); see
§§ 131, 153. The chain of command runs not from the Direc-
tor to his subordinates, but from the APJs to the Director.
The Government and Smith & Nephew assemble a catalog
of steps the Director might take to affect the decisionmaking
process of the PTAB, despite his lack of any statutory au-
thority to review its decisions. See Brief for United States
30–32; Brief for Smith & Nephew, Inc., et al. 25–27. The
Government reminds us that it is the Director who decides
whether to initiate inter partes review. § 314(a). The Di-
rector can also designate the APJs who will decide a particu-
lar case and can pick ones predisposed to his views. § 6(c).
And the Director, the Government asserts, can even vacate
his institution decision if he catches wind of an unfavorable
ruling on the way. The “proceeding will have no legal con-
sequences” so long as the Director jumps in before the Board
issues its fnal decision. Brief for United States 31.
If all else fails, the Government says, the Director can in-
tervene in the rehearing process to reverse Board decisions.
The Government acknowledges that only the PTAB can
grant rehearing under § 6(c). But the Director, according
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16 UNITED
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Opinion of the Court
to the Government, could manipulate the composition of the
PT
AB panel that acts on the rehearing petition. For one
thing, he could “stack” the original panel to rehear the case
with additional APJs assumed to be more amenable to his
preferences. See Oil States, 584 U. S., at 347 (Gorsuch, J.,
dissenting). For another, he could assemble an entirely new
panel consisting of himself and two other offcers appointed
by the Secretary—in practice, the Commissioner for Patents
and the APJ presently designated as Chief Judge—to decide
whether to overturn a decision and reach a different outcome
binding on future panels. See Brief for United States 6–7,
31–32. The Government insists that the Director, by hand-
picking (and, if necessary, repicking) Board members, can in-
directly infuence the course of inter partes review.
That is not the solution. It is the problem. The Govern-
ment proposes (and the dissents embrace) a roadmap for the
Director to evade a statutory prohibition on review without
having him take responsibility for the ultimate decision.
See post, at 39–40 (Breyer, J., concurring in judgment in
part and dissenting in part); post, at 51–53 (opinion of
Thomas, J.). Even if the Director succeeds in procuring his
preferred outcome, such machinations blur the lines of ac-
countability demanded by the Appointments Clause. The
parties are left with neither an impartial decision by a panel
of experts nor a transparent decision for which a politically
accountable offcer must take responsibility. And the public
can only wonder “on whom the blame or the punishment of
a pernicious measure, or series of pernicious measures ought
really to fall.” The Federalist No. 70, at 476 (A. Hamilton).
The Government contends that the Director may respond
after the fact by removing an APJ “from his judicial assign-
ment without cause” and refusing to designate that APJ on
future PTAB panels. Edmond, 520 U. S., at 664. Even as-
suming that is true, reassigning an APJ to a different task
going forward gives the Director no means of countermand-
ing the fnal decision already on the books. Nor are APJs
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“meaningfully controlled” by the threat of removal from fed-
era
l service entirely, Seila Law, 591 U. S., at –––, because the
Secretary can fre them after a decision only “for such cause
as will promote the effciency of the service,” 5 U. S. C.
§ 7513(a). In all the ways that matter to the parties who
appear before the PTAB, the buck stops with the APJs, not
with the Secretary or Director.
Review outside Article II—here, an appeal to the Federal
Circuit—cannot provide the necessary supervision. While
the duties of APJs “partake of a Judiciary quality as well as
Executive,” APJs are still exercising executive power and
must remain “dependent upon the President.” 1 Annals of
Cong., at 611–612 (J. Madison); see Oil States, 584 U. S., at
336. The activities of executive offcers may “take `legisla-
tive' and `judicial' forms, but they are exercises of—indeed,
under our constitutional structure they must be exercises
of—the `executive Power,' ” for which the President is ulti-
mately responsible. Arlington v. FCC, 569 U. S. 290, 305,
n. 4 (2013) (quoting Art. II, § 1, cl. 1).
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.” Free Enterprise Fund, 561 U. S., at 496. APJs
accordingly exercise power that conficts with the design of
the Appointments Clause “to preserve political accountabil-
ity.” Edmond, 520 U. S., at 663.
The principal dissent dutifully undertakes to apply the
governing test from Edmond, see post, at 48–53 (opinion of
Thomas, J.), but its heart is plainly not in it. For example,
the dissent rejects any distinction between “inferior-offcer
power” and “principal-offcer power,” post, at 55, but Ed-
mond calls for exactly that: an appraisal of how much power
an offcer exercises free from control by a superior. The dis-
sent pigeonholes this consideration as the sole province of
the Vesting Clause, post, at 57–58, but Edmond recognized
the Appointments Clause as a “signifcant structural safe-
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guard[ ]” that “preserve[s] political accountability” through
direc
tion and supervision of subordinates—in other words,
through a chain of command. 520 U. S., at 659, 663. The
dissent would have the Court focus on the location of an off-
cer in the agency “organizational chart,” post, at 44, but as
we explained in Edmond, “[i]t is not enough that other off-
cers may be identifed who formally maintain a higher rank,
or possess responsibilities of a greater magnitude,” 520 U. S.,
at 662–663. The dissent stresses that “at least two levels of
authority” separate the President from PTAB decisions, post,
at 44–45, but the unchecked exercise of executive power by
an offcer buried many layers beneath the President poses
more, not less, of a constitutional problem. Conspicuously
absent from the dissent is any concern for the President's
ability to “discharge his own constitutional duty of seeing
that the laws be faithfully executed.” Myers v. United
States, 272 U. S. 52, 135 (1926).
The other dissent charges that the Court's opinion has
“no foundation” in past decisions. Post, at 42 (opinion of
Breyer, J.). Of course, we have a different view on the
proper application of Edmond in this dispute. As for other
past decisions, it is the dissent that expressly grounds its
analysis in dissenting opinions from Free Enterprise Fund
and Seila Law, while frankly acknowledging that the Court's
opinions in those cases support the principles that guide us
here. Post, at 42–44.
C
History reinforces the conclusion that the unreviewable
executive power exercised by APJs is incompatible with
their status as inferior offcers. Since the founding, princi-
pal offcers have directed the decisions of inferior offcers on
matters of law as well as policy. Hamilton articulated the
principle of constitutional accountability underlying such su-
pervision in a 1792 Treasury circular. Writing as Secretary
of the Treasury to the customs offcials under his charge, he
warned that any deviations from his instructions “would be
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19
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subversive of uniformity in the execution of the laws.” 3
W
orks of Alexander Hamilton 557 (J. Hamilton ed. 1850).
“The power to superintend,” he explained, “must imply a
right to judge and direct,” thereby ensuring that “the re-
sponsibility for a wrong construction rests with the head of
the department, when it proceeds from him.” Id., at 559.
Early congressional statutes expressly empowered depart-
ment heads to supervise the work of their subordinates,
sometimes by providing for an appeal in adjudicatory pro-
ceedings to a Presidentially nominated and Senate confrmed
offcer. See, e. g., 1 Stat. 66–67 (authorizing appeal of audi-
tor decisions to Comptroller); § 4, 1 Stat. 378 (permitting su-
pervisors of the revenue to issue liquor licenses “subject to
the superintendence, control and direction of the department
of the treasury”). For the most part, Congress left the
structure of administrative adjudication up to agency heads,
who prescribed internal procedures (and thus exercised di-
rection and control) as they saw ft. See J. Mashaw, Creat-
ing the Administrative Constitution 254 (2012).
Th is Cour t likew ise indicated in ear ly decisi ons that
adequate supervision entails review of decisions issued by
inferior offcers. For example, we held that the Commis-
sioner of the General Land Offce—the erstwhile agency that
adjudicated private claims to public lands and granted land
patents—could review decisions of his subordinates despite
congressional silence on the matter. Our explanation, al-
most “too manifest to require comment,” was that the au-
thority to review fowed from the “necessity of `supervision
and control,' vested in the commissioner, acting under the
direction of the President.” Barnard v. Ashley, 18 How. 43,
45 (1856). “Of necessity,” we later elaborated, the Commis-
sioner “must have power to adjudge the question of accuracy
preliminary to the issue of a [land] patent.” Magwire v.
Tyler, 1 Black 195, 202 (1862).
Congress has carried the model of principal offcer review
into the modern administrative state. As the Government
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Opinion of the Court
forthrightly acknowledged at oral argument, it “certainly is
the
norm” for principal offcers to have the capacity to re-
view decisions made by inferior adjudicative offcers. Tr. of
Oral Arg. 23. The Administrative Procedure Act, from its
inception, authorized agency heads to review such decisions.
5 U. S. C. § 557(b). And “higher-level agency reconsidera-
tion” by the agency head is the standard way to maintain
political accountability and effective oversight for adjudi-
cati on that takes place outside the confines of § 557( b).
Walker & Wasserman, The New World of Agency Adjudica-
tion, 107 Cal. L. Rev. 141, 157 (2019). To take one example
recently discussed by this Court in Free Enterprise Fund,
the Public Company Accounting Oversight Board can issue
sanctions in disciplinary proceedings, but such sanctions are
reviewable by its superior, the Securities and Exchange
Commission. 15 U. S. C. §§ 7215(c)(4), 7217(c).
The Government and Smith & Nephew point to a handful
of contemporary offcers who are appointed by heads of de-
partments but who nevertheless purportedly exercise fnal
decisionmaking authority. Several examples, however, in-
volve inferior offcers whose decisions a superior executive
offcer can review or implement a system for reviewing.
For instance, the special trial judges in Freytag v. Commis-
sioner, 501 U. S. 868 (1991), may enter a decision on be-
half of the Tax Court—whose members are nominated by
the President and confrmed by the Senate, 26 U. S. C.
§ 7443(b)—but only “subject to such conditions and review
as the court may provide.” § 7443A(c); see also 8 CFR
§ 1003.0(a) (2020) (establishing Executive Offce for Immigra-
tion Review under control of Attorney General). And while
the Board of Veterans' Appeals does make the fnal decision
w ith in the Depar tment of Veterans Affairs, 38 U. S. C.
§§ 7101, 7104(a), its decisions are reviewed by the Court of
Appeals for Veterans Claims, an Executive Branch entity,
§§ 7251, 7252(a). See Henderson v. Shinseki, 562 U. S. 428,
431–432 (2011). Other examples are potentially distinguish-
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able, such as the Benefts Review Board members who ap-
pear
to serve at the pleasure of the appointing department
head. See 33 U. S. C. § 921(c); Kalaris v. Donovan, 697 F. 2d
376, 396–397 (CADC 1983).
Perhaps the Civilian and Postal Boards of Contract Ap-
peals are most similar to the PTAB. The Administrator of
General Services and the Postmaster General appoint the
members of the respective Boards, whose decisions are ap-
pealable to the Federal Circuit. See 41 U. S. C. §§ 7105(b),
(d), (e), 7107(a). Congress established both entities in 2006
and gave them jurisdiction over disputes involving public
contrac tors. 119 Stat. 3391– 3394. Whatever distinct
issues that scheme might present, the Boards of Contract
Appeals—both young entrants to the regulatory landscape—
provide the PTAB no “foothold in history or tradition” across
the Executive Branch. Seila Law, 591 U. S., at –––.
When it comes to the patent system in particular, adjudi-
cation has followed the traditional rule that a principal off-
cer, if not the President himself, makes the fnal decision
on how to exercise executive power. Recall that offcers
in President Washington's Cabinet formed the frst Patent
Board in 1790. 1 Stat. 109–110. The initial determination
of patentability was then relegated to the courts in 1793, but
when the Executive Branch reassumed authority in 1836, it
was the Commissioner of Patents—appointed by the Presi-
dent with the advice and consent of the Senate—who exer-
cised control over the issuance of a patent. 5 Stat. 117, 119.
The patent system, for nearly the next hundred years,
remained accountable to the President through the Commis-
sioner, who directed the work of his subordinates by, for ex-
ample, hearing appeals from decisions by examiners-in-chief,
the forebears of today's APJs. 12 Stat. 246–247.
The Government and Smith & Nephew fnd support for
the structure of the PTAB in the predecessor Board of Ap-
peals established in 1927. 44 Stat. 1335–1336. Simplifed
somewhat, the Board of Appeals decided the patentability

22 UNITED
STATES v. ARTHREX, INC.
Opinion of the Court
of inventions in panels composed of examiners-in-chief
w
ithout an appeal to the Commissioner. But decisions by
examiners-in-chief could be reviewed by the Court of Cus-
toms and Patent Appeals (CCPA), an entity within the Exec-
utive Branch until 1958. 45 Stat. 1476; see Ex parte Bake-
lite Corp., 279 U. S. 438, 460 (1929); see also 72 Stat. 848.
The President appointed CCPA judges with the advice and
consent of the Senate. 36 Stat. 105. Even after 1958, the
Commissioner appears to have retained “the ultimate au-
thority regarding the granting of patents” through the exam-
ination and interference processes, notwithstanding the lack
of a formal appeal from the Board's decision. In re Alappat,
33 F. 3d 1526, 1535 (CA Fed. 1994) (en banc) (plurality opin-
ion). The history of the Board of Appeals, though more
winding and varied than recounted here, has little to say
about the present provision expressly ordering the Director
to undo his prior patentability determination when a PTAB
panel of unaccountable APJs later disagrees with it. See 35
U. S. C. § 318(b).
The Government and Smith & Nephew also note that early
Patent Acts authorized the Secretary of State to appoint two
types of offcials who made fnal decisions on questions of
patent law. See 1 Stat. 322–323 (panel of arbitrators in in-
terference proceedings); 5 Stat. 120–121 (board of examiners
to hear appeal from patentability or priority decision of Com-
missioner). Neither example, however, serves as historical
precedent for modern APJs. Both the arbitrators and the
examiners assembled to resolve a single issue—indeed, these
ad hoc positions may not have even constituted offces. See
Auffmordt v. Hedden, 137 U. S. 310, 327 (1890). If they
were offcers, they exercised their limited power under “spe-
cial and temporary conditions.” United States v. Eaton, 169
U. S. 331, 343 (1898) (holding that an inferior offcer can per-
form functions of principal offce on acting basis). APJs, by
contrast, occupy a permanent offce unless removed by the
Secretary for cause.
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***
W
e hold that the unreviewable authority wielded by APJs
during inter partes review is incompatible with their ap-
pointment by the Secretary to an inferior offce. The princi-
pal dissent repeatedly charges that we never say whether
APJs are principal offcers who were not appointed in the
manner required by the Appointments Clause, or instead
inferior offcers exceeding the permissible scope of their du-
ties under that Clause. See post, at 46, 54, 58–59 (opinion
of Thomas, J.). But both formulations describe the same
constitutional violation: Only an offcer properly appointed
to a principal offce may issue a fnal decision binding the
Executive Branch in the proceeding before us.
In reaching this conclusion, we do not attempt to “set forth
an exclusive criterion for distinguishing between principal
and inferior offcers for Appointments Clause purposes.”
Edmond, 520 U. S., at 661. Many decisions by inferior off-
cers do not bind the Executive Branch to exercise executive
power in a particular manner, and we do not address supervi-
sion outside the context of adjudication. Cf. post, at 56–57
(opinion of Thomas, J.). Here, however, Congress has as-
signed APJs “signifcant authority” in adjudicating the pub-
lic rights of private parties, while also insulating their deci-
sions from review and their offces from removal. Buckley,
424 U. S., at 126.
III
We turn now to the appropriate way to resolve this dis-
pute given this violation of the Appointments Clause. In
general, “when confronting a constitutional faw in a statute,
we try to limit the solution to the problem” by disregarding
the “problematic portions while leaving the remainder in-
tact.” Ayotte v. Planned Parenthood of Northern New
Eng., 546 U. S. 320, 328–329 (2006). This approach derives
from the Judiciary's “negative power to disregard an uncon-
stitutional enactment” in resolving a legal dispute. Massa-
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chusetts v. Mellon, 262 U. S. 447, 488 (1923). In a case that
presents
a confict between the Constitution and a statute,
we give “full effect” to the Constitution and to whatever por-
tions of the statute are “not repugnant” to the Constitution,
effectively severing the unconstitutional portion of the stat-
ute. Bank of Hamilton v. Lessee of Dudley, 2 Pet. 492, 526
(1829) (Marshall, C. J.). This principle explains our “normal
rule that partial, rather than facial, invalidation is the re-
quired course.” Brockett v. Spokane Arcades, Inc., 472 U. S.
491, 504 (1985).
Arthrex asks us to hold the entire regime of inter partes
review unconstitutional. In its view, any more tailored
declaration of unconstitutionality would necessitate a policy
decision best left to Congress in the frst instance. Because
the good cannot be separated from the bad, Arthrex contin-
ues, the appropriate remedy is to order outright dismissal of
the proceeding below. The partial dissent, similarly for-
swearing the need to do anything beyond “identifying the
constitutional violation,” would grant full relief to Arthrex.
Post, at 32 (Gorsuch, J., concurring in part and dissenting
in part).
In our view, however, the structure of the PTO and the
governing constitutional principles chart a clear course: De-
cisions by APJs must be subject to review by the Director.
Congress vested the Director with the “powers and duties”
of the PTO, 35 U. S. C. § 3(a)(1), tasked him with supervising
APJs, § 3(a)(2)(A), and placed the PTAB “in” the PTO, § 6(a).
A single offcer has superintended the activities of the PTO
since the Commissioner of Patents assumed the role of “chief
offcer” of the Patent Offce in 1836. § 1, 5 Stat. 117–118.
The Commissioner long oversaw examiners-in-chief, see 12
Stat. 246–247, just as the Director today has the responsibil-
ity to oversee APJs. While shielding the ultimate decisions
of the 200-plus APJs from review, Congress also provided
the Director means of control over the institution and con-
duct of inter partes review. 35 U. S. C. §§ 314(a), 316(a). In
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every respect save the insulation of their decisions from
re
view within the Executive Branch, APJs appear to be
inferior offcers—an understanding consistent with their ap-
pointment in a manner permissible for inferior but not prin-
cipal offcers.
The America Invents Act insulates APJs from supervision
through two mechanisms. The statute provides that “each
. . . inter partes review shall be heard by at least 3 members
of the [PTAB]” and that “only the [PTAB] may grant rehear-
ings.” § 6(c). The upshot is that the Director cannot rehear
and reverse a fnal decision issued by APJs. If the Director
were to have the “authority to take control” of a PTAB pro-
ceeding, APJs would properly function as inferior offcers.
Go-Bart Importing Co. v. United States, 282 U. S. 344, 354
(1931).
We conclude that a tailored approach is the appropriate
one: Section 6(c) cannot constitutionally be enforced to the
extent that its requirements prevent the Director from re-
viewing fnal decisions rendered by APJs. Because Con-
gress has vested the Director with the “power and duties”
of the PTO, § 3(a)(1), the Director has the authority to pro-
vide for a means of reviewing PTAB decisions. See also
§§ 3(a)(2)(A), 316(a)(4). The Director accordingly may re-
view fnal PTAB decisions and, upon review, may issue deci-
sions himself on behalf of the Board. Section 6(c) otherwise
remains operative as to the other members of the PTAB.
This does not result in an incomplete or unworkable statu-
tory scheme. Cf. United States v. Treasury Employees, 513
U. S. 454, 479 (1995). To the contrary, review by the Direc-
tor would follow the almost-universal model of adjudication
in the Executive Branch, see supra, at 19–20, and aligns the
PTAB with the other adjudicative body in the PTO, the
Trademark Trial and Appeal Board, see § 228 of the Trade-
mark Modernization Act of 2020, 134 Stat. 2209.
The Government defends the different approach adopted
by the Federal Circuit. The Court of Appeals held unen-
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forceable APJs' protection against removal except “for such
cause
as will promote the effciency of the service,” 5 U. S. C.
§ 7513(a), which applies through 35 U. S. C. § 3(c). See 941
F. 3d, at 1337, 1340. If the for-cause provision were unen-
forceable, the Secretary could remove APJs at will. See Ex
parte Hennen, 13 Pet. 230, 259–260 (1839). The Government
contends that APJs would then be inferior offcers under
Free Enterprise Fund. But regardless whether the Gov-
ernment is correct that at-will removal by the Secretary
would cure the constitutional problem, review by the Direc-
tor better refects the structure of supervision within the
PTO and the nature of APJs' duties, for the reasons we have
explained. See supra, at 16–17, 24–25.
In sum, we hold that 35 U. S. C. § 6(c) is unenforceable as
applied to the Director insofar as it prevents the Director
from reviewing the decisions of the PTAB on his own. The
Director may engage in such review and reach his own deci-
sion. When reviewing such a decision by the Director, a
court must decide the case “conformably to the constitution,
disregarding the law” placing restrictions on his review au-
thority in violation of Article II. Marbury v. Madison, 1
Cranch 137, 178 (1803). We add that this suit concerns only
the Director's ability to supervise APJs in adjudicating peti-
tions for inter partes review. We do not address the Direc-
tor's supervision over other types of adjudications conducted
by the PTAB, such as the examination process for which the
Director has claimed unilateral authority to issue a patent.
See Reply Brief for Arthrex, Inc. 6.
We also conclude that the appropriate remedy is a remand
to the Acting Director for him to decide whether to rehear
the petition fled by Smith & Nephew. Although the APJs'
appointment by the Secretary allowed them to lawfully adju-
dicate the petition in the frst instance, see Freytag, 501
U. S., at 881–882, they lacked the power under the Constitu-
tion to fnally resolve the matter within the Executive
Branch. Under these circumstances, a limited remand to
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the Director provides an adequate opportunity for review by
a
principal offcer. Because the source of the constitutional
violation is the restraint on the review authority of the Di-
rector, rather than the appointment of APJs by the Secre-
tary, Arthrex is not entitled to a hearing before a new
panel of APJs. Cf. Lucia, 585 U. S., at 251–252.
***
Today, we reaffrm and apply the rule from Edmond that
the exercise of executive power by inferior offcers must at
some level be subject to the direction and supervision of an
offcer nominated by the President and confrmed by the Sen-
ate. The Constitution therefore forbids the enforcement of
statutory restrictions on the Director that insulate the deci-
sions of APJs from his direction and supervision. To be
clear, the Director need not review every decision of the
PTAB. What matters is that the Director have the discre-
tion to review decisions rendered by APJs. In this way, the
President remains responsible for the exercise of executive
power—and through him, the exercise of executive power
remains accountable to the people.
The judgment of the United States Court of Appeals for
the Federal Circuit is vacated, and the cases are remanded
for further proceedings consistent with this opinion.
It is so ordered.
Justice Gorsuch, concurring in part and dissenting in
part.
For most of this Nation's history, an issued patent was
considered a vested property right that could be taken from
an individual only through a lawful process before a court.
Oil States Energy Services, LLC v. Greene's Energy Group,
LLC, 584 U. S. 325, 352–354 (2018) (Gorsuch, J., dissenting).
I continue to think this Court's recent decision in Oil
States—upsetting this traditional understanding and allow-
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ing offcials in the Executive Branch to “cancel” already-
issued
patents—departed from the Constitution's separation
of powers. But it would be an even greater departure to
permit those offcials to withdraw a vested property right
while accountable to no one within the Executive Branch.
Accordingly, I join Parts I and II of the Court's opinion.
Respectfully, however, I am unable join the plurality's sever-
ability discussion in Part III.
*
On the merits, I agree with the Court that Article II vests
the “executive Power” in the President alone. This admit-
tedly formal rule serves a vital function. If the executive
power is exercised poorly, the Constitution's design at least
ensures “[t]he people know whom to blame”—and hold ac-
countable. Morrison v. Olson, 487 U. S. 654, 729 (1988)
(Scalia, J., dissenting). As Hamilton explained, the Presi-
dent's “due dependence on the people, and . . . due responsi-
bility” to them, are key “ingredients which constitute safety
in the republican sense.” The Federalist No. 70, p. 424 (C.
Rossiter ed. 1961). Or as Madison put it, “no principle is
more clearly laid down in the Constitution than that of re-
sponsibility.” 1 Annals of Cong. 462 (1789). Without presi-
dential responsibility there can be no democratic accountabil-
ity for executive action.
Of course, the framers recognized that no one alone can
discharge all the executive duties of the federal government.
They “expected that the President would rely on subordinate
offcers for assistance.” Seila Law LLC v. Consumer Finan-
cial Protection Bureau, 591 U. S. –––, ––– (2020) (opinion of
Roberts, C. J.). But the framers took pains to ensure those
subordinates would always remain responsible to the Presi-
dent and thus, ultimately, to the people. Because it is the
President's duty to take care that the laws be faithfully exe-
cuted, Art. II, § 3, the framers sought to ensure he possessed
“the power of appointing, overseeing, and controlling those
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who execute the laws.” 1 Annals of Cong. 463 (Madison)
(
emphasis added).
To this end, the Constitution provided for a chain of au-
thority. Several constitutional provisions refect this struc-
ture. See Calabresi & Prakash, The President's Power To
Execute the Laws, 104 Yale L. J. 541, 570–599 (1994); Law-
son, Appointments and Illegal Adjudication: The American
Invents Act Through a Constitutional Lens, 26 Geo. Mason
L. Rev. 26, 57–58 (2018). The Appointments Clause, for ex-
ample, vests the President with the power to appoint “Off-
cers of the United States” with “the Advice and Consent of
the Senate,” and to appoint “inferior Offcers . . . alone” when
Congress authorizes him to do so. Art. II, § 2, cl. 2.
By defnition, an “ `inferior offcer' . . . has a superior.”
Edmond v. United States, 520 U. S. 651, 662 (1997). To be
an “inferior” offcer, then, one must be both “subordinate to
a[n] offcer in the Executive Branch” and “under the direct
control of the President” through a “chain of command.”
Morrison, 487 U. S., at 719–721 (Scalia, J., dissenting). In
th is way, the “ text and str ucture of the Appointments
Clause” require a “reference to hierarchy.” Calabresi &
Lawson, The Unitary Executive, Jurisdiction Stripping, and
the Hamdan Opinions: A Textualist Response to Justice
Scalia, 107 Colum. L. Rev. 1002, 1018–1020 (2007). Only
such an understanding preserves, as Madison described it,
the “chain of dependence,” where “the lowest offcers, the
middle grade, and the highest”—each and every one—“will
depend, as they ought, on the President.” 1 Annals of Cong.
499 (Madison). And where the President, in turn, depends
“on the community,” so that “[t]he chain of dependence”
fnally “terminates in the supreme body, namely, in the
people.” Ibid.
I agree with the Court, too, that the statutory regime be-
fore us breaks this chain of dependence. In the America
Invents Act of 2011 (AIA), Congress authorized the inter
partes review (IPR) process, which permits anyone to fle a
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petition asking the Patent and Trademark Offce to “cancel”
someone
else's patent. 35 U. S. C. § 311. Congress as-
signed the power to decide an IPR proceeding to a specifc
group of offcials—the Patent Trial and Appeal Board
(PTAB). Under the AIA's terms, three members from the
PTAB—of ten, as here, admi nistrative patent judges
(APJs)—sit on a panel to decide whether to cancel a patent.
§ 6(c). After the three-member panel issues its decision, a
party may seek rehearing from another three-member panel.
Ibid. But only a PTAB panel—and no other offcial within
the Executive Branch—may grant rehearing. Ibid. If that
fails, a losing party's only recourse is to seek judicial review
in the Court of Appeals for the Federal Circuit, which re-
views the PTAB's factual fndings under the deferential sub-
stantial evidence standard of review. See § 319; Oil States,
584 U. S., at 332.
Under this statutory arrangement, APJs are executive of-
fcers accountable to no one else in the Executive Branch.
A panel of bureaucrats wields unreviewable power to take
vested property rights. This design may hold its advan-
tages for some. Often enough, the Director of the Patent
and Trademark Offce and the President may be happy to
wash their hands of these decisions. But by breaking the
chain of dependence, the statutory scheme denies individuals
the right to be subjected only to lawful exercises of execu-
tive power that can ultimately be controlled by a President
accountable to “the supreme body, namely, . . . the people.”
*
The real question here concerns what to do about it. In
Part III of its opinion, the plurality invokes severability doc-
trine. Ante, at 23–26. It “sever[s]” Congress's statutory
direction that PTAB decisions may not be reviewed by the
Director of the Patent Offce—in that way reconnecting
APJs to the chain of command and subjecting their decisions
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to a superior who is, in turn, ultimately accountable to the
President.
See ibid.
I don't question that we might proceed this way in some
cases. Faced with an application of a statute that violates
the Constitution, a court might look to the text of the law in
question to determine what Congress has said should happen
in that event. Sometimes Congress includes “fallback” pro-
visions of just this sort, and sometimes those provisions tell
us to disregard this or that provision if its statutory scheme
is later found to offend the Constitution. See, e. g., Bow-
sher v. Synar, 478 U. S. 714, 718–719 (1986); see also Walsh,
Partial Unconstitutionality, 85 N. Y. U. L. Rev. 738, 780–781
(2010).
The problem here is that Congress has said nothing of the
sort. And here it is the combination of separate statutory
provisions that conspire to create a constitutional violation.
Through some provisions, Congress has authorized executive
offcers to cancel patents. §§ 6(b)(4), 318(a). Through oth-
ers, it has made their exercise of that power unreviewable
within the Executive Branch. See §§ 6(c), 318(b). It's the
combination of these provisions—the exercise of executive
power and unreviewability—that violates the Constitution's
separation of powers.
Nor is there only one possible way out of the problem.
First, one could choose as the Court does and make PTAB
decisions subject to review by the Director, who is answer-
able to the President through a chain of dependence. See
Duffy, Are Administrative Patent Judges Unconstitutional?
77 Geo. Wash. L. Rev. 904, 911 (2009). Separately, one could
specify that PTAB panel members should be appointed by
the President and confrmed by the Senate and render their
decisions directly reviewable by the President. See Law-
son, 26 Geo. Mason L. Rev., at 57. Separately still, one could
reassign the power to cancel patents to the Judiciary where
it resided for nearly two centuries. See Oil States, 584
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U. S., at 352–354 (Gorsuch, J., dissenting). Without some
direc
tion from Congress, this problem cannot be resolved as
a matter of statutory interpretation. All that remains is a
policy choice.
In circumstances like these, I believe traditional remedial
principles should be our guide. Early American courts did
not presume a power to “sever” and excise portions of stat-
utes in response to constitutional violations. Instead, when
the application of a statute violated the Constitution, courts
simply declined to enforce the statute in the case or contro-
versy at hand. See Seila Law, 591 U. S., at ––– (Thomas,
J., concurring in part and dissenting in part); see also Walsh,
N. Y. U. L. Rev., at 769. I would follow that course today
by identifying the constitutional violation, explaining our
reasoning, and “setting aside” the PTAB decision in this case.
See Novartis AG v. Torrent Pharmaceuticals Ltd., 853 F. 3d
1316, 1323–1324 (CA Fed. 2017) (holding that the standard in
5 U. S. C. § 706 governs judicial review of PTAB decisions).
The Court declines to follow this traditional path. In-
stead, it imagines that, if Congress had known its statutory
scheme was unconstituti ona l, it wou ld have preferred
to make the policy choice the Court makes for it today.
Faced with an unconstitutional combination of statutory
instructions—providing for the exercise of executive power
and its unreviewability—the Court chooses to act as if the
provision limiting the Director's ability to review IPR deci-
sions doesn't exist. Having done that, the Court gifts the
Director a new power that he never before enjoyed, a power
Congress expressly withheld from him and gave to someone
else—the power to cancel patents through the IPR process.
Effectively, the Court subtracts statutory powers from one
set of executive offcials and adds them to another.
While the Court has in relatively recent years proclaimed
the power to proceed in this fashion, it has never paused to
explain how this “severance doctrine” comports with tradi-
tional judicial remedial principles. See Barr v. American
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Assn. of Political Consultants, Inc., 591 U. S. –––, ––– (2020)
(
Gorsuch, J., concurring in judgment in part and dissenting
in part). Or with the fact that the judicial power is limited
to resolving discrete cases and controversies. Murphy v.
National Collegiate Athletic Assn., 584 U. S. 453, 488 (2018)
(Thomas, J., concurring). Or with the framers' explicit re-
jection of allowing this Court to serve as a council of revision
free to amend legislation. See Mitchell, The Writ-of-Era-
sure Fallacy, 104 Va. L. Rev. 933, 954–960 (2018). Let alone
with our constant admonitions that policy choices belong to
Congress, not this Court. E. g., Pereida v. Wilkinson, 592
U. S. 224, 241–242 (2021). And certainly none of the early
cases the plurality cites today proceeded as it does. See
ante, at 23–24, 26.
Nor does the Court pause to consider whether venturing
further down this remedial path today risks undermining the
very separation of powers its merits decision purports to
vindicate. While the Court's merits analysis ensures that
executive power properly resides in the Executive Branch,
its severability analysis seemingly confers legislative power
to the Judiciary—endowing us with the authority to make
a raw policy choice between competing lawful options. No
doubt, if Congress is dissatisfed with the choice the Court
makes on its behalf today, it can always reenter the feld and
revise our judgment. But doesn't that just underscore the
legislative nature of the Court's judgment? And doesn't de-
ciding for ourselves which policy course to pursue today
allow Congress to disclaim responsibility for our legislative
handiwork much as the President might the PTAB's execu-
tive decisions under the current statutory structure?
Instead of confronting these questions, the Court has justi-
fed modern “severance” doctrine on assumptions and pre-
sumptions about what Congress would have chosen to do, had
it known that its statutory scheme was unconstitutional.
See, e. g., Seila Law, 591 U. S., at ––– (opinion of Roberts, C.
J.) (“We will presume that Congress did not intend the validity
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of the statute in question to depend on the validity of the con-
stituti
onally offensive provision” (internal quotation marks
omitted)). But any claim about “congressional intent” di-
vorced from enacted statutory text is an appeal to mysticism.
Short of summoning ghosts and spirits, how are we to know
what those in a past Congress might think about a question
they never expressed any view on—and may have never
foreseen?
Let's be honest, too. These legislative séances usually
wind up producing only the results intended by those con-
ducting the performance: “When you are told to decide, not
on the basis of what the legislature said, but on the basis of
what it meant, . . . your best shot at fguring out what the
legislature meant is to ask yourself what a wise and intelli-
gent person should have meant; and that will surely bring
you to the conclusion that the law means what you think it
ought to mean.” Scalia, Common-Law Courts in a Civil-
Law System, in A Matter of Interpretation: Federal Courts
and the Law 18 (A. Gutmann ed. 1997); see also United
States v. Public Util. Comm'n of Cal., 345 U. S 295, 319
(1953) (Jackson, J., concurring) (describing that process as
“not interpretation of a statute but creation of a statute”).
The crystal ball ends up being more of a mirror.
Our case illustrates the problem. The Court apparently
believes that Congress would have wanted us to render
PTAB decisions reviewable by the Director. This regime is
consistent with the “ `standard federal model' ” for agency
adjudication. Walker & Wasserman, The New World of
Agency Adjudication, 107 Cal. L. Rev. 141, 143–144 (2019).
It's easy enough to see why a group of staid judges selecting
among policy choices for itself might prefer a “standard”
model. But if there is anything we know for certain about
the AIA, it is that Congress rejected this familiar approach
when it came to PTAB proceedings. Multiple amici contend
that Congress did so specifcally to ensure APJs enjoy “inde-
pendence” from superior executive offcers and thus possess
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more “impartiality.” Brief for Fair Inventing Fund as Ami-
cu
s Curiae 20–21 (quoting legislative history that Congress
desired a “ `fairer' ” and “ `more objective' ” process); see also,
e. g., Brief for New Civil Liberties Alliance as Amicus Cu-
riae 6 (Congress sought “to preserve the independence of
those conducting inter partes reviews”); Brief for US Inven-
tor Inc. as Amicus Curiae 22 (“[I]t is plainly evident that Con-
gress would not have enacted an APJ patentability trial sys-
tem that was more political than the one they did enact”); Brief
for Cato Institute et al. as Amici Curiae 20 (It was a “con-
scious congressional decision to provide individuals with the
power to adjudicate (and often destroy) vested patent rights
with some level of independence”). All of which suggests that
the plurality's severability analysis defes, rather than imple-
ments, legislative intent. At the least, it is surely plausible
that, if faced with a choice between giving the power to cancel
patents to political offcials or returning it to courts where it
historically resided, a Congress so concerned with independ-
ent decisionmaking might have chosen the latter option.
My point here isn't that I profess any certainty about what
Congress would have chosen; it's that I confess none. Ask-
ing what a past Congress would have done if confronted with
a contingency it never addressed calls for raw speculation.
Speculation that, under traditional principles of judicial rem-
edies, statutory interpretation, and the separation of powers,
a court of law has no authority to undertake.
*
If each new case this Court entertains about the AIA high-
lights more and more problems with the statute, for me the
largest of them all is the wrong turn we took in Oil States.
There, the Court upheld the power of the Executive Branch
to strip vested property rights in patents despite a long his-
tory in this country allowing only courts that authority. See
584 U. S., at 352–354 (Gorsuch, J., dissenting). In the
course of rejecting a separation-of-powers challenge to this
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novel redistribution of historic authority, the Court acknowl-
edged
the possibility that permitting politically motivated
executive offcials to “cancel” patents might yet raise due
process concerns. Id., at 344. But the Court refused to
consider those concerns in Oil States because, it said, no one
had “raised a due process challenge.” Ibid.
It was my view at the time that the separation of powers—
and its guarantee that cases involving the revocation of
vested property rights must be decided by Article III
courts—is itself part of the process that is due under our
Constitution. See Chapman & McConnell, Due Process as
Separation of Powers, 121 Yale L. J. 1672, 1801–1804 (2012).
Any suggestion that the neutrality and independence the
framers guaranteed for courts could be replicated within the
Executive Branch was never more than wishful thinking.
The Court's decision in Oil States allowing executive offcials
to assume an historic judicial function was always destined
to invite familiar due process problems—like decisions “fa-
vor[ing] those with political clout, the powerful and the popu-
lar.” Thryv, Inc. v. Click-To-Call Technologies, LP, 590
U. S. 45, 80 (2020) (Gorsuch, J., dissenting). After all,
“[p]owerful interests are capable of amassing armies of lob-
byists and lawyers to infuence (and even capture) politically
accountable bureaucracies.” Oil States, 584 U. S., at 348
(same).
Already in the AIA's short tenure these problems have
started coming home to roost—even with supposedly “inde-
pendent” APJs. The briefs before us highlight example
after example. I leave the interested reader to explore oth-
ers. See, e. g., Brief for TiVo Corporation as Amicus Curiae
6–13; Brief for 39 Aggrieved Inventors as Amici Curiae 14–
23; Brief for Joshua J. Malone as Amicus Curiae 9–11. Here
just consider the tale of a patent attorney at one of the
world's largest technology companies who left the company
to become an APJ. See Brief for US Inventor Inc. as Ami-
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over dozens of IPRs brought by his former company. Ibid.
In
those proceedings, the company prevailed in its efforts to
cancel patents damaging to its private economic interests
96% of the time. Ibid. After six years of work, the APJ
decided he had done enough, resigned, and (yes) returned to
the company. Ibid. Without a hint of irony, that company
has fled an amicus brief in this case to inform us, as a
self-described “frequent user of the IPR process,” about “the
benefts of the system.” Brief for Apple Inc. as Amicus
Curiae 3. Nor is that the only large technology company to
have its attorneys rotate in and out of the PTO to similar
effect. See Brief for B. E. Technology, LLC, as Amicus
Curiae 17 (discussing a Google attorney). Oil States virtu-
ally assured results like these.
That's not the end of the constitutional problems fowing
from Oil States either. The Director has asserted “plenary
authority” to personally select which APJs will decide an
IPR proceeding. Brief for United States 5–6. Thus, any
APJs whose rulings displease the party currently in power
could soon fnd themselves with little to do. The PTAB has
even “claimed the power through inter partes review to
overrule fnal judicial judgments affrming patent rights.”
Thryv, 590 U. S., at 80 (Gorsuch, J., dissenting). And this
menu of constitutional problems is surely just illustrative,
not exhaustive.
Today's decision at least avoids the very worst of what Oil
States could have become—investing the power to revoke
individual's property rights in some unaccountable fourth
branch controlled by powerful companies seeking a competi-
tive advantage. Alignments between the moneyed and the
permanent bureaucracy to advance the narrow interests of
the elite are as old as bureaucracy itself. Our decision today
represents a very small step back in the right direction by
ensuring that the people at least know who's responsible
for supervising this process—the elected President and his
designees.

38 UNITED
STATES v. ARTHREX, INC.
Opinion of Breyer, J.
Still, I harbor no illusions that today's decision will resolve
a
ll the problems. Even if our judgment demands some
degree of democratic accountability in the IPR process, it
does not begin to fx the revolving door or any of the other
due process problems Oil States ignored. No doubt, chal-
lenges involving those aspects of the IPR process will come.
When they do, I hope this Court will come to recognize what
was evident for so much of our history—that the process
due someone with a vested property right in a patent is a
proceeding before a neutral and independent judge.
Justice Breyer, with whom Justice Sotomayor and
Justice Kagan join, concurring in the judgment in part and
dissenting in part.
I
I agree with Justice Thomas’ discussion on the merits
and I join Parts I and II of his dissent. Two related consid-
erations also persuade me that his conclusion is correct.
First, in my view, the Court should interpret the Appoint-
ments Clause as granting Congress a degree of leeway to
establish and empower federal offces. Neither that Clause
nor anything else in the Constitution describes the degree of
control that a superior offcer must exercise over the deci-
sions of an inferior offcer. To the contrary, the Constitution
says only that “Congress may by Law vest the Appointment
of such inferior Offcers, as they think proper, . . . in the
Heads of Departments.” Art. II, § 2, cl. 2. The words “by
Law . . . as they think proper” strongly suggest that Con-
gress has considerable freedom to determine the nature of
an inferior offcer's job, and that courts ought to respect that
judgment. See Lucia v. SEC, 585 U. S. 237, 263–264 (2018)
(Breyer, J., concurring in judgment in part and dissenting
in part). In a word, the Constitution grants to Congress
the “authority to create both categories of offces—those the
President must fll with the Senate's concurrence and `infe-
rior' ones. . . . That constitutional assignment to Congress
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counsels judicial deference.” In re Sealed Case, 838 F. 2d
476,
532 (CADC) (R. Ginsburg, J., dissenting), rev'd sub nom.
Morrison v. Olson, 487 U. S. 654 (1988). Article I's grant
to Congress of broad authority to enact laws of different
kinds concerning different subjects—and to implement those
laws in ways that Congress determines are “necessary and
proper”—suggests the same. Art. I, § 8, cl. 18.
Even a small degree of “judicial deference” should prove
suffcient to validate the statutes here. For one, the provi-
sions at issue fall well within Article I's grant to Congress
of the patent power. Nothing in them represents an effort
by the “Legislative Branch [to] aggrandize itself at the ex-
pense of the other two branches.” Buckley v. Valeo, 424
U. S. 1, 129 (1976) (per curiam). There is accordingly no
general separation-of-powers defect that has arisen in other
cases. See, e. g., Metropolitan Washington Airports Au-
thority v. Citizens for Abatement of Aircraft Noise, Inc., 501
U. S. 252, 277 (1991).
For another, Congress' scheme is consistent with our Ap-
pointments Clause precedents. They require only that an
inferior offcer be “directed and supervised at some level,”
Edmond v. United States, 520 U. S. 651, 663 (1997), and the
Administrative Patent Judges (APJs) are supervised by two
separate Senate-confrmed offcers, the Secretary of Com-
merce and the Director of the Patent and Trademark Offce
(PTO). Even were I to assume, with the majority, that the
Director must have power to “control” the APJs, the statutes
grant the Director considerable control. As the Court rec-
ognizes, the Director “fxes” their “rate[s] of pay,” decides
“whether to institute inter partes review,” “selects the
APJ's” who will preside at each particular proceeding, “pro-
mulgates regulations governing inter partes review,” “issues
prospective guidance on patentability issues,” and “desig-
nates past PTAB decisions as `precedential' for future pan-
els.” Ante, at 14. All told, the Director maintains control
of decisions insofar as they determine policy. The Director
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cannot rehear and decide an individual case on his own; but
Congress
had good reason for seeking independent Board
determinations in those cases—cases that will apply, not cre-
ate, Director-controlled policy.
Finally, Congress' judgment is unusually clear in this suit,
as there is strong evidence that Congress designed the cur-
rent structure specifcally to address constitutional concerns.
See In re DBC, 545 F. 3d 1373, 1377–1380 (CA Fed. 2008)
(explaining amendment to address defects in prior appoint-
ment process).
Second, I believe the Court, when deciding cases such as
these, should conduct a functional examination of the offces
and duties in question rather than a formalist, judicial-
rules-based approach. In advocating for a “functional ap-
proach,” I mean an approach that would take account of, and
place weight on, why Congress enacted a particular statutory
limitation. It would also consider the practical consequences
that are likely to follow from Congress' chosen scheme.
Wiener v. United States, 357 U. S. 349 (1958), provides a
good example of the role that purposes and consequences can
play. In that case, the Court considered whether, in the face
of congressional silence on the matter, the President had
the constitutional or statutory authority to remove without
cause a member of the War Claims Commission. Justice
Frankfurter, writing for a unanimous Court, said that Con-
gress sought to create a commission that was “ `entirely free
from the control or coercive infuence, direct or indirect,'
of either the Executive or the Congress.” Id., at 355–356
(quoting Humphrey's Executor v. United States, 295 U. S.
602, 629 (1935)). He then asked why Congress might want
to deny the President the power to remove a commissioner.
Because, he answered, the “intrinsic judicial character” of
the Commission's duties required that it be able to adjudicate
claims solely on the merits of each claim free of external
executive pressure. 357 U. S., at 355. “Congress did not
wish to have hang over the Commission the Damocles' sword
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of removal by the President for no reason other than that he
preferred
to have on that Commission men of his own choos-
ing.” Id., at 356. The Court has subsequently used the
functional approach refected in Wiener to resolve all manner
of separation-of-powers disputes, including disputes under
the Appointments Clause. See, e. g., Buckley, 424 U. S., at
126 (distinguishing employees from offcers by asking if the
individual exercises “signifcant authority”); Mistretta v.
United States, 488 U. S. 361, 409 (1989) (asking whether a
statute “prevents the Judicial Branch from performing its
constitutionally assigned functions”).
In this suit, a functional approach, which considers pur-
poses and consequences, undermines the Court's result.
Most agencies (and courts for that matter) have the power
to reconsider an earlier decision, changing the initial result
if appropriate. Congress believed that the PTO should have
that same power and accordingly created procedures for re-
considering issued patents. Congress also believed it im-
portant to strengthen the reconsideration power with proce-
dural safeguards that would often help those whom the
PTO's initial decision had favored, such as the requirement
that review be available only when there is a “reasonable
likelihood” that the patent will be invalid. 35 U. S. C.
§ 314(a). Given the technical nature of patents, the need for
expertise, and the importance of avoiding political interfer-
ence, Congress chose to grant the APJs a degree of inde-
pendence. These considerations set forth a reasonable leg-
islative objective suffcient to justify the restriction upon
the Director's authority that Congress imposed. And, as
Justice Thomas thoroughly explains, there is no reason to
believe this scheme will prevent the Director from exercising
policy control over the APJs or will break the chain of ac-
countability that is needed to hold the President responsible
for bad nominations. Post, at 50–53 (dissenting opinion).
The Court does not take these realities into account. In-
stead, for the frst time, it examines the APJs' offce function
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42 UNITED
STATES v. ARTHREX, INC.
Opinion of Breyer, J.
by function and fnds, in Edmond, a judicially created rule:
“Only
an offcer properly appointed to a principal offce may
issue a fnal decision binding the Executive Branch in [inter
partes review] proceeding[s].” Ante, at 23. As an initial
matter, I agree with Justice Thomas that this rule has no
foundation in Edmond or our Appointments Clause prece-
dents. Post, at 53–54.
More broadly, I see the Court's decision as one part of a
larger shift in our separation-of-powers jurisprudence. The
Court applied a similarly formal approach in Free Enterprise
Fund v. Public Company Accounting Oversight Bd., 561
U. S. 477 (2010), where it considered the constitutional status
of the members of an accounting board appointed by the
Securities and Exchange Commission. It held that Con-
gress could not limit the SEC's power to remove those
members without cause. The Court also applied a formalist
approach in Seila Law LLC v. Consumer Financial Protec-
tion Bureau, 591 U. S. ––– (2020), where it held that Con-
gress could not protect from removal without cause the
(single) head of the Consumer Financial Protection Bureau.
My dissent in the frst case and Justice Kagan's dissent in
the second explain in greater detail why we believed that
this shift toward formalism was a mistake.
I continue to believe that a more functional approach to
constitutional interpretation in this area is superior. As for
this particular suit, the consequences of the majority's rule
are clear. The nature of the PTAB calls for technically cor-
rect adjudicatory decisions. And, as in Wiener, that fact
calls for greater, not less, independence from those poten-
tially infuenced by political factors. The Court's decision
prevents Congress from establishing a patent scheme con-
sistent with that idea.
But there are further reasons for a functional approach
that extend beyond the bounds of patent adjudication.
First, the Executive Branch has many different constituent
bodies, many different bureaus, many different agencies,

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43
Opinion of Breyer, J.
many different tasks, many different kinds of employees.
A
dministration comes in many different shapes and sizes.
Appreciating this variety is especially important in the con-
text of administrative adjudication, which typically demands
decisionmaking (at least where policy made by others is sim-
ply applied) that is free of political infuence. Are the Presi-
dent and Congress, through judicial insistence upon certain
mechanisms for removal or review, to be denied the ability
to create independent adjudicators?
Second, the Constitution is not a detailed tax code, and for
good reason. The Nation's desires and needs change, some-
times over long periods of time. In the 19th century the
Judiciary may not have foreseen the changes that produced
the New Deal, along with its accompanying changes in the
nature of the tasks that Government was expected to per-
form. We may not now easily foresee just what kinds of
tasks present or future technological changes will call for.
The Founders wrote a Constitution that they believed was
fexible enough to respond to new needs as those needs de-
veloped and changed over the course of decades or centuries.
At the same time, they designed a Constitution that would
protect certain basic principles. A principle that prevents
Congress from affording inferior level adjudicators some de-
cisionmaking independence was not among them.
Finally, the Executive Branch and Congress are more
likely than are judges to understand how to implement the
tasks that Congress has written into legislation. That un-
derstanding encompasses the nature of different mechanisms
of bureaucratic control that may apply to the many thou-
sands of administrators who will carry out those tasks. And
it includes an awareness of the reasonable limits that can be
placed on supervisors to ensure that those working under
them enjoy a degree of freedom suffcient to carry out their
responsibilities. Considered as a group, unelected judges
have little, if any, experience related to this kind of a
problem.
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Thomas, J., dissenting
This is not to say that the Constitution grants Congress
free
rein. But in this area of the law a functional approach,
when compared with the highly detailed judicial-rules-based
approach refected in the Court's decision, is more likely to
prevent inappropriate judicial interference. It embodies, at
least to a degree, the philosopher's advice: “Whereof one
cannot speak, thereof one must be silent.”
II
For the reasons I have set forth above, I do not agree with
the Court's basic constitutional determination. For pur-
poses of determining a remedy, however, I recognize that a
majority of the Court has reached a contrary conclusion. On
this score, I believe that any remedy should be tailored to
the constitutional violation. 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 specifc problem, and for
that reason I agree with its remedial holding.
***
In my view, today's decision is both unprecedented and
unnecessary, and risks pushing the Judiciary further into
areas where we lack both the authority to act and the capac-
ity to act wisely. I respectfully dissent.
Justice Thomas, with whom Justice Breyer, Justice
Sotomayor, and Justice Kagan join as to Parts I and II,
dissenting.
For the very frst time, this Court holds that Congress
violated the Constitution by vesting the appointment of a
federal offcer in the head of a department. Just who are
these “pr incipa l” officers that Congress unsuccessfully
sought to smuggle into the Executive Branch without Senate
confrmation? About 250 administrative patent judges who
sit at the bottom of an organizational chart, nestled under at
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45
Thomas, J., dissenting
least two levels of authority. Neither our precedent nor the
or
iginal understanding of the Appointments Clause requires
Senate confrmation of offcers inferior to not one, but two
offcers below the President.
I
The Executive Branch is large, and the hierarchical path
from President to administrative patent judge is long. At
the top sits the President, in whom the executive power is
vested. U. S. Const., Art. II, § 1. Below him is the Secre-
tary of Commerce, who oversees the Department of Com-
merce and its work force of about 46,000. 15 U. S. C. §§ 1501,
1513. Within that Department is the United States Pat-
ent and Trademark Offce led by a Director. 35 U. S. C.
§§ 1, 2(a), 3(a) (also known as the Under Secretary of Com-
merce for Intellectual Property). In the Patent and Trade-
mark Offce is the Patent Trial and Appeal Board. § 6(a).
Serving on this Board are administrative patent judges.
Ibid.
There are few statutory prerequisites to becoming an
administrative patent judge. One must be a “perso[n] of
competent legal knowledge and scientifc ability” and be “ap-
pointed by the Secretary.” Ibid. The job description too
is relatively straightforward: sit on the Board along with the
Director, the Deputy Director, the Commissioner for Pat-
ents, the Commissioner for Trademarks, and other adminis-
trative patent judges. Ibid.
The Board adjudicates both appellate and trial disputes.
See § 6(b). It may directly review certain decisions made
by patent examiners, and it may hold its own proceedings to
determine the patentability of patent claims. As relevant
here, it conducts inter partes review, which “offers a second
look at an earlier administrative grant of a patent.” Cuozzo
Speed Techno l og i es, LLC v. Lee, 579 U. S. 261, 279
(2016). Inter partes review—and all other types of Board
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46 UNITED
STATES v. ARTHREX, INC.
Thomas, J., dissenting
hearings—must be “heard by at least 3 members” of the
Board.
§ 6(c).
In this suit, Smith & Nephew, Inc., and Arthrocare Corp.
(collectively, Smith & Nephew) fled a petition challenging
some of Arthrex, Inc.'s patent claims. After deciding that
there was a reasonable likelihood that Smith & Nephew
would prevail, the Director instituted review. § 314(a). A
panel of three administrative judges ultimately agreed with
Smith & Nephew that the disputed claims were unpatent-
able. The Director did not convene a panel to rehear that
decision. Nor is there any suggestion that Arthrex sought
rehearing from the Board or from the Director. Instead,
Arthrex appealed the Board's decision to the United States
Court of Appeals for the Federal Circuit.
On appeal, Arthrex argued that the Federal Circuit must
vacate the Board's decision. According to Arthrex, adminis-
trative patent judges are constitutionally defective because
they are principal offcers who were neither appointed by the
President nor confrmed by the Senate. The Federal Circuit
agreed in part. The court held that administrative patent
judges are principal offcers. 941 F. 3d 1320, 1335 (2019).
But the court professed to transform these principal offcers
into inferior ones by withdrawing statutory removal restric-
tions. Id., at 1338.
The Court now partially agrees with the Federal Circuit.
Although it cannot quite bring itself to say so expressly, it
too appears to hold that administrative patent judges are
principal offcers under the current statutory scheme. See
ante, at 14–18. But it concludes that the better way to judi-
cially convert these principal offcers to inferior ones is to
allow the Director to review Board decisions unilaterally.
Ante, at 25 (plurality opinion); ante, at 44 (Breyer, J., con-
curring in part and dissenting in part).
That both the Federal Circuit and this Court would take
so much care to ensure that administrative patent judges,
appointed as inferior offcers, would remain inferior offcers

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47
Thomas, J., dissenting
at the end of the day suggests that perhaps they were
i
nferior offcers to begin with. Instead of rewriting the
Director's statutory powers, I would simply leave intact the
patent scheme Congress has created.
II
The Constitution creates a default process to appoint all
offcers: The President “by and with the Advice and Consent
of the Senate, shall appoint Ambassadors, other public Minis-
ters and Consuls, Judges of the supreme Court, and all other
Offcers of the United States.” Art. II, § 2. But Congress
has discretion to change the default process for “inferior”
offcers: “Congress may by Law vest the Appointment of
such inferior Offcers, as they think proper, in the President
alone, in the Courts of Law, or in the Heads of Depart-
ments.” Ibid.
A
The Court has been careful not to create a rigid test
to divide principal offcers—those who must be Senate
confrmed—from inferior ones. See, e. g., Edmond v. United
States, 520 U. S. 651, 661 (1997) (the Court has “not set forth
an exclusive criterion”); Morrison v. Olson, 487 U. S. 654,
671 (1988) (“We need not attempt here to decide exactly
where the line falls between the two types of offcers”). In-
stead, the Court's opinions have traditionally used a case-by-
case analysis. And those analyses invariably result in this
Court deferring to Congress' choice of which constitutional
appointment process works best.
1
No party (nor the major-
1
This Court has found a vast range of positions to be inferior, including
a district court clerk, Ex parte Hennen, 13 Pet. 230, 258 (1839) (“that a
clerk is one of the inferior offcers contemplated by . . . the Constitution
cannot be questioned”); election supervisors tasked with reg istering
names, inspecting and scrutinizing the register of voters, and counting the
votes cast, Ex parte Siebold, 100 U. S. 371, 380, 398 (1880) (“Congress had
the power to vest the appointment of the supervisors in question in the
circuit courts”); a vice consul who temporarily carried out the duties of
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48 UNITED
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Thomas, J., dissenting
ity) has identifed any instance in which this Court has found
unconstituti
onal an appointment that aligns with one of the
two processes outlined in the Constitution.
Our most exhaustive treatment of the inferior-offcer ques-
tion is found in Edmond. There, we evaluated the status of
civilian judges on the Coast Guard Court of Criminal Ap-
peals who were appointed by the Secretary of Transporta-
tion. As in all previous decisions, the Court in Edmond
held that the Secretary's appointment of the judges complied
with the Appointments Clause.
Recognizing that no “defnitive test” existed for distin-
guishing between inferior and principal offcers, the Court
set out two genera l g uidel i nes. 520 U. S., at 661– 662.
First, there is a formal, defnitional requirement. The off-
the consul, United States v. Eaton, 169 U. S. 331, 343 (1898) (“The claim
that Congress was without power to vest in the President the appointment
of a subordinate offcer called a vice-consul, to be charged with the duty
of temporarily performing the functions of the consular offce, disregards
both the letter and spirit of the Constitution”); a United States Commis-
sioner, entrusted with “issu[ing] warrants,” “caus[ing] the offenders to be
arrested and imprisoned, or bailed, for trial,” “sit[ting] as judge or arbitra-
tor in such differences as may arise between the captains and crews of
any vessels belonging to the nations whose interests are committed to his
charge”; “institut[ing] prosecutions” and who enjoys “to a certain extent,
independen[ce] in their statutory and judicial action,” United States v.
Allred, 155 U. S. 591, 594–595 (1895); Go-Bart Importing Co. v. United
States, 282 U. S. 344, 352–354 (1931) (“United States commissioners are
inferior offcers”); an independent counsel, charged with “ `full power and
independent authority to exercise all investigative and prosecutorial func-
tions,' ” Morrison, 487 U. S., at 661, 661–662, 671–672; special trial judges
within the United States Tax Court “who exercise independent authority”
and may “hear certain specifcally described proceedings” and may “ren-
der the decisions of the Tax Court in declaratory judgment proceedings
and limited-amount tax cases,” Freytag v. Commissioner, 501 U. S. 868,
870–871, 882 (1991); judges on the Coast Guard Court of Criminal Appeals,
Edmond, 520 U. S., at 653; and members of the Public Company Account-
ing Oversight Board who “determin[e] the policy and enforc[e] the laws of
the United States,” Free Enterprise Fund v. Public Company Accounting
Oversight Bd., 561 U. S. 477, 484, 511 (2010).
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49
Thomas, J., dissenting
cer must be lower in rank to “a superior.” Id., at 662. But
accordi
ng to the Court in Edmond, formal inferiority is “not
enough.” Ibid. So the Court imposed a functional require-
ment: The inferior offcer's work must be “directed and
supervised at some level by others who were appointed by
Presidential nomination with advice and consent of the Sen-
ate.” Id., at 663. Because neither side asks us to overrule
our precedent, I would apply this two-part guide.
There can be no dispute that administrative patent judges
are, in fact, inferior: They are lower in rank to at least two
different offcers. As part of the Board, they serve in the
Patent and Trademark Offce, run by a Director “responsible
for providing policy direction and management supervision
for the Offce and for the issuance of patents and the regis-
tration of trademarks.” 35 U. S. C. § 3(a)(2)(A). That Of-
fce, in turn, is “within the Department of Commerce”
and “subject to the policy direction of the Secretary of
Commerce.” § 1(a). The Secretary, in consultation with
the Director, appoints administrative patent judges. § 6(a).
As a comparison to the facts in Edmond illustrates, the
Director and Secretary are also functionally superior be-
cause they supervise and direct the work administrative pat-
ent judges perform. In Edmond, the Court focused on the
supervision exercised by two different entities: the Judge
Advocate General and the Court of Appeals for the Armed
Forces (CAAF). The Judge Advocate General exercised
general administrative oversight over the court on which the
military judges sat. Edmond, 520 U. S., at 664. He pos-
sessed the power to prescribe uniform rules of procedure for
the court and to formulate policies and procedure with re-
spect to the review of court-martial cases in general. Ibid.
And he could remove a Court of Criminal Appeals judge
from his judicial assignment without cause, a “powerful tool
for control.” Ibid.
The Court noted, however, that “[t]he Judge Advocate
General's control over Court of Criminal Appeals judges
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Thomas, J., dissenting
is . . . not complete.” Ibid. This was so for two reasons. He
cou
ld “not attempt to infuence (by threat of removal or oth-
erwise) the outcome of individual proceedings.” Ibid. And,
he had “no power to reverse decisions of the court.” Ibid.
But this lack of complete control did not render the mili-
tary judges principal offcers. That is because one of the
two missing powers resided, to a limited degree, in a differ-
ent entity: the CAAF. Ibid. CAAF could not “reevaluate
the facts” where “there [was] some competent evidence in
the record to establish each element of the offense beyond a
reasonable doubt.” Id., at 665. Still, it was “signifcant . . .
that the judges of the Court of Criminal Appeals ha[d] no
power to render a fnal decision on behalf of the United
States unless permitted to do so by other Executive offcers.”
Ibid. Having recounted the various means of supervision,
the Court held that the military judges were inferior offcers.
Consistent with the Constitution, Congress had the power to
vest the judges' appointments in the Secretary of Transpor-
tation. Id., at 665–666.
The Director here possesses even greater functional power
over the Board than that possessed by the Judge Advocate
General. Like the Judge Advocate General, the Director
exercises administrative oversight over the Board. Because
the Board is within the Patent and Trademark Offce, all of
its powers and duties are ultimately held by the Director.
35 U. S. C. § 3(a)(1). He “direct[s]” and “supervis[es]” the
Offce and “the issuance of patents.” § 3(a)(2)(A). He may
even “fx the rate of basic pay for the administrative patent
judges.” § 3(b)(6). And ultimately, after the Board has
reached a decision in a specifc case, the Director alone has
the power to take fnal action to cancel a patent claim or
confrm it. § 318(b).
Also like the Judge Advocate General in Edmond, the Di-
rector prescribes uniform procedural rules and formulates
policies and procedures for Board proceedings. Among
other things, he has issued detailed regulations that govern
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51
Thomas, J., dissenting
“Trial Practice and Procedure” before the Board. 37 CFR
pt.
42 (2020); see also ibid. (prescribing regulations gov-
erning, inter alia, discovery, oral argument, termination of
trial, notice, privilege, fling fees, etc.); see also 35 U. S. C.
§§ 2(b)(2), 316(a)(4), 326(a)(4). He has designed a process to
designate and de-designate Board decisions as precedential.
Patent Trial and Appeal Board, Standard Operating Proce-
dure 2 (Revision 10), pp. 1–2 (Sept. 20, 2018) (SOP2). He
may issue binding policy directives that govern the Board.
§ 3(a)(2)(A). And he may release “instructions that include
exemplary applications of patent laws to fact patterns, which
the Board can refer to when presented with factually similar
cases.” 941 F. 3d, at 1331. His oversight is not just admin-
istrative; it is substantive as well. § 3(a)(2)(A).
The Director has yet another “powerful tool for control.”
Edmond, 520 U. S., at 664. He may designate which of the
250-plus administrative patent judges hear certain cases and
may remove administrative patent judges from their specifc
assignments without cause. See § 6(c). So, if any adminis-
trative patent judges depart from the Director's direction,
he has ample power to rein them in to avoid erroneous deci-
sions. And, if an administrative patent judge consistently
fails to follow instructions, the Secretary has the authority
to fre him. 5 U. S. C. § 7513(a); 35 U. S. C. § 3(c); Cobert v.
Miller, 800 F. 3d 1340, 1351 (CA Fed. 2015) (interpreting
§ 7513(a) to allow removal for “ `[f]ailure to follow instruc-
tions or abide by requirements [that] affec[t] the agency's
ability to carry out its mission' ”).
2
To be sure, the Director's power over administrative
patent judges is not complete. He cannot singlehandedly re-
verse decisions. Still, he has two powerful checks on Board
decisions not found in Edmond.
2
Although not applicable to any who served on the Board in this suit, a
small subset of administrative patent judges are subject to a slightly dif-
ferent removal standard. See 83 Fed. Reg. 29324 (2018); see also 5
U. S. C. § 7543(a); 5 CFR pt. 359 (2020); Brief for United States 5, n. 1.
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Unlike the Judge Advocate General and CAAF in Ed-
mo
nd, the Director may infuence individual proceedings.
The Director decides in the frst instance whether to insti-
tute, refuse to institute, or de-institute particular reviews,
a decision that is “fnal and nonappealable.” 35 U. S. C.
§ 314(d); see also § 314(a). If the Director institutes review,
he then may select which administrative patent judges will
hear the challenge. § 6(c). Alternatively, he can avoid as-
signing any administrative patent judge to a specifc dispute
and instead designate himself, his Deputy Director, and the
Commissioner of Patents. In addition, the Director decides
which of the thousands of decisions issued each year bind
other panels as precedent. SOP2, at 8. No statute bars the
Director from taking an active role to ensure the Board's
decisions conform to his policy direction.
But, that is not all. If the administrative patent judges
“(somehow) reach a result he does not like, the Director can
add more members to the panel—including himself—and
order the case reheard.” Oil States Energy Services, LLC
v. Greene's Energy Group, LLC, 584 U. S. 325, 347 (2018)
(Gorsuch, J., dissenting). There is a formalized process for
this type of review. The Director may unilaterally convene
a special panel—the Precedential Opinion Panel—to review a
decision in a case and determine whether to order rehearing
sua sponte. SOP2, at 5. (Any party to a proceeding or any
Board member can also recommend rehearing by the Prece-
dential Opinion Panel. Ibid.) The default members of the
panel are the Director, the Commissioner for Patents, and
the Chief Administrative Patent Judge. Id., at 4. So even
if all administrative patent judges decide to defy the Direc-
tor's authority and go their respective ways, the Director
and the Commissioner for Patents can still put a stop to it.
And, if the Commissioner for Patents is running amuck, the
Director may expand the size of the panel or may replace
the Commissioner with someone else, including his Deputy
Director. Ibid. Further, this panel is not limited to re-
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53
Thomas, J., dissenting
viewing whether there is “competent evidence” as the
CA
AF was. It can correct anything that may “have been
misapprehended or overlooked” in the previous opinion. 37
CFR § 41.79(b)(1). This broad oversight ensures that ad-
ministrative patent judges “have no power to render a fnal
decision on behalf of the United States unless permitted
to do so by other Executive offcers.” Edmond, 520 U. S.,
at 665.
B
The plurality today appears largely to agree with all of
this. “In every respect” save one, the plurality says, “[ad-
ministrative patent judges] appear to be inferior offcers.”
Ante, at 24–25. But instead of fnding it persuasive that ad-
ministrative patent judges seem to be inferior offcers—“an
understanding consistent with their appointment”—the ma-
jority suggests most of Edmond is superfuous: All that mat-
ters is whether the Director has the statutory authority to
individually reverse Board decisions. See ante, at 14–15;
see also ante, at 25 (plurality opinion).
The problem with that theory is that there is no preceden-
tial basis (or historical support)
3
for boiling down “inferior-
offcer” status to the way Congress structured a particular
agency's process for reviewing decisions. If anything, Ed-
mond stands for the proposition that a “limitation upon re-
view does not . . . render [offcers] principal offcers.” 520
U. S., at 665. Recall that the CAAF could not reevaluate
certain factual conclusions reached by the military judges
on the Court of Criminal Appeals. Ibid. And recall that
neither CAAF nor the Judge Advocate General could “at-
tempt to infuence” individual proceedings. Id., at 664.
Yet, those constraints on supervision and control did not
matter because the Court in Edmond considered all the
means of supervision and control exercised by the superior
offcers. Although CAAF could not reevaluate everything,
3
See Part IV, in fra.
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“[w]hat is signifcant” is that CAAF could oversee the mili-
t
ary judges in other ways: The military judges could not ren-
der “a fnal decision on behalf of the United States unless
permitted to do so by other Executive offcers.” Id., at 665.
Here, the Director cannot singlehandedly reevaluate individ-
ual decisions, but he still directs and “supervises . . . the
Board members responsible for deciding patent disputes.”
Oil States Energy Services, 584 U. S., at 347 (Gorsuch, J.,
dissenting).
C
Perhaps the better way to understand the Court's opinion
today is as creating a new form of intrabranch separation-of-
powers law. Traditionally, the Court's task when resolving
Appointments Clause challenges has been to discern whether
the challenged offcial qualifes as a specifc sort of offcer
and whether his appointment complies with the Constitution.
See Lucia v. SEC, 585 U. S. 237, 241 (2018) (“This case re-
quires us to decide whether administrative law judges . . .
qualify as [offcers of the United States]”). If the offcial's
appointment is inconsistent with the constitutional appoint-
ment process for the position he holds, then the Court pro-
vides a remedy. Id., at 251. Otherwise, the Court must
conclude that the “appointments at issue in th[e] case are . . .
valid.” Edmond, 520 U. S., at 666.
Today's majority leaves that tried-and-true approach be-
hind. It never expressly tells us whether administrative
patent judges are inferior offcers or principal. And the
Court never tells us whether the appointment process com-
plies with the Constitution. The closest the Court comes is
to say that “the source of the constitutional violation” is
not “the appointment of [administrative patent judges] by
the Secretary.” Ante, at 27 (plurality opinion). Under our
precedent and the Constitution's text, that should resolve the
suit. If the appointment process for administrative patent
judges—appointment by the Secretary—does not violate the
Constitution, then administrative patent judges must be in-
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55
Thomas, J., dissenting
ferior offcers. See Art. II, § 2, cl. 2. And if administrative
patent
judges are inferior offcers and have been properly
appointed as such, then the Appointments Clause challenge
fails. After all, the Constitution provides that “Congress
may by Law vest the Appointment of . . . inferior Offcers
. . . in the Heads of Departments.” Ibid.
The majority's new Appointments Clause doctrine, though,
has nothing to do with the validity of an offcer's appoint-
ment. Instead, it polices the dispersion of executive power
among offcers. Echoing our doctrine that Congress may
not mix duties and powers from different branches into one
actor, the Court fnds that the constitutional problem here is
that Congress has given a specifc power—the authority to
fnally adjudicate inter partes review disputes—to one type
of executive offcer that the Constitution gives to another.
See ante, at 25 (plurality opinion); see also, e. g., Stern v.
Marshall, 564 U. S. 462, 503 (2011) (assignment of Article III
power to Bankruptcy Judge); Bowsher v. Synar, 478 U. S.
714, 728–735 (1986) (assignment of executive power to a leg-
islative offcer). That analysis is doubly fawed.
For one thing, our separation-of-powers analysis does not
ft. The Constitution recognizes executive, legislative, and
judicial power, and it vests those powers in specifc branches.
Nowhere does the Constitution acknowledge any such thing
as “ inferior-officer power ” or “principal-officer power. ”
And it certainly does not distinguish between these sorts of
powers in the Appointments Clause.
And even if it did, early patent dispute schemes establish
that the power exercised by the administrative patent judges
here does not belong exclusively to principal offcers. Non-
principal offcers could—and did—render fnal decisions in
specifc patent disputes, not subject to any appeal to a supe-
rior executive offcer. In 1793, Congress provided that reso-
lution of disputes, where two applicants sought a patent for
the same invention, “shall be submitted to the arbitration of
three persons” chosen by the Secretary or by the parties,
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and that “the decision or award . . . , delivered to the Secre-
t
ary of State . . . or any two of them, shall be fnal, as far as
respects the granting of the patent.” Act of Feb. 21, 1793,
§ 9, 1 Stat. 322–323. In 1836, Congress allowed applicants
to appeal the denial of a patent application to “a board of
examiners, to be composed of three disinterested persons,
who shall be appointed for that purpose by the Secretary of
State.” Act of July 4, 1836, § 7, 5 Stat. 119–120. The Board
had the power “to reverse the decision of the Commissioner,
either in whole or in part,” and the decision governed “fur-
ther proceedings.” Ibid. These two early examples show,
at a minimum, that the fnal resolution of patent disputes is
not the sole preserve of principal offcers.
More broadly, interpreting the Appointments Clause to
bar any nonprincipal offcer from taking “fnal” action poses
serious line-drawing problems. The majority assures that
not every decision by an inferior offcer must be reviewable
by a superior offcer. Ante, at 23. But this sparks more
questions than it answers. Can a line prosecutor offer a plea
deal without sign off from a principal offcer?
4
If faced with
a life-threatening scenario, can an FBI agent use deadly
force to subdue a suspect? Or if an inferior offcer tempo-
rarily flls a vacant offce tasked with making fnal decisions,
do those decisions violate the Appointments Clause?
5
And
4
And all this contemplates that it is easy to distinguish between a prin-
cipal and inferior offcer. But recall that the default appointment scheme
for all offcers—inferior and principal alike—is Presidential appointment
and Senate confir mati on. Senate confir mati on says noth i ng about
whether an offcer is principal or inferior for constitutional purposes. Cf.
2 Opinion of Offce of Legal Counsel 58, 59 (1978) (concluding that United
States Attorneys “can be considered to be inferior offcers,” even though
Congress has never “exercised its discretionary power to vest the appoint-
ment of U. S. Attorneys in the Attorney General”).
5
See Eaton, 169 U. S., at 343 (“The claim that Congress was without
power to vest in the President the appointment of a subordinate offcer
called a vice-consul, to be charged with the duty of temporarily perform-
ing the functions of the consular offce, disregards both the letter and spirit
of the Constitution”).
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are courts around the country supposed to sort through lists
of
each offcer's (or employee's) duties, categorize each one
as pr i ncipa l or i nfer i or, and then excise any that look
problematic?
Beyond those questions, the majority's nebulous approach
also leaves open the question of how much “principal-offcer
power” someone must wield before he becomes a principal
offcer. What happens if an offcer typically engages in nor-
mal inferior-offcer work but also has several principal-offcer
duties? Is he a hybrid offcer, properly appointed for four
days a week and improperly appointed for the ffth? And
whatever test the Court ultimately comes up with to sort
through these diffcult questions, are we sure it is encapsu-
lated in the two words “inferior offcer”?
D
The majority offers one last theory. Although the parties
raise only an Appointments Clause challenge and the plural-
ity concedes that there is no appointment defect, ante, at 27,
the Court appears to suggest that the real issue is that this
scheme violates the Vesting Clause. See Art. II, § 1, cl.1;
see also ante, at 17–18 (citing Free Enterprise Fund v.
Public Company Accounting Oversight Bd., 561 U. S. 477,
496 (2010)); Mye rs v. Un i ted Sta tes, 272 U. S. 52, 135
(1926)). According to the majority, the PTAB's review proc-
ess inverts the executive “chain of command,” allowing
administrative patent judges to wield “unchecked . . . execu-
tive power” and to “dictat[e]” what the Director must do.
Ante, at 15, 18. This fnal offering falters for several
reasons.
First, no court below passed on this issue. See 941 F. 3d,
at 1327 (addressing whether “the [administrative patent
judges] who presided over this inter partes review were . . .
constitutionally appointed”). Given that this Court is gen-
erally one “of review, not of frst view,” it is unclear why we
would grant relief on this ground. Cutter v. Wilkinson, 544
U. S. 709, 718, n. 7 (2005).
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Second, the idea that administrative patent judges are at
the
top of the chain of command is belied not only by the
statutory scheme, see supra, at 50–53, but also by the major-
ity's own refusal to ever name these judges principal offcers.
See ante, at 23.
Third, even if the chain of command were broken, Senate
confrmation of an administrative patent judge would offer
no fx. As Madison explained, the Senate's role in appoint-
ments is an exception to the vesting of executive power in
the President; it gives another branch a say in the hiring of
executive offcials. 1 Annals of Cong. 463 (1789). An Arti-
cle II Vesting Clause problem cannot be remedied by strip-
ping away even more power from the Executive.
Fourth, and fnally, historical practice establishes that the
vesting of executive power in the President did not require
that every patent decision be appealable to a principal offcer.
As the majority correctly explains, these sorts of fnal deci-
sions were routinely made by inferior executive offcers (or,
perhaps, by mere executive employees). See ante, at 21–22.
If no statutory path to appeal to an executive principal off-
cer existed then, I see no constitutional reason why such a
path must exist now.
Perhaps this Vesting Clause theory misunderstands the
majority's argument. After all, the Court never directly
says that any law or action violates the Vesting Clause. The
Court simply criticizes as overly formalistic the notion that
both Clauses do exactly what their names suggest: The Ap-
pointments Clause governs only appointments; the Vesting
Clause deals just with the vesting of executive power in the
President. Ante, at 17. I would not be so quick to stare
deeply into the penumbras of the Clauses to identify new
structural limitations.
III
In the end, the Court's remedy underscores that it is am-
bivalent about the idea of administrative patent judges actu-
ally being principal offcers. Instead of holding as much ex-
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plicitly, the Court rewrites the statutory text to ensure that
the
Director can directly review Board decisions. Ante, at
24–26 (plurality opinion). Specifcally, the Court declares
unenforceable the statutory provision that “prevents the Di-
rector from reviewing the decisions of the [Board] on his
own.” Ante, at 26. And as a remedy, the Court “remand[s]
to the Acting Director for him to decide whether to rehear
the petition.” Ibid. In that way, the Court makes extra
clear what should already be obvious: Administrative patent
judges are inferior offcers.
But neither reading of the majority's opinion—(1) that ad-
ministrative patent judges are principal offcers that the
Court has converted to inferior offcers, or (2) that adminis-
trative patent judges are inferior offcers whose decisions
must constitutionally be reversible by the Director alone—
supports its proposed remedy.
Take the principal offcer view. If the Court truly be-
lieved administrative patent judges are principal offcers,
then the Court would need to vacate the Board's decision.
As this Court has twice explained, “the `appropriate' remedy
for an adjudication tainted with an appointments violation is
a new `hearing before a properly appointed' offcial.” Lucia,
585 U. S., at 251 (quoting Ryder v. United States, 515 U. S.
177, 183, 188 (1995)). If administrative patent judges are (or
were) constitutionally defcient principal offcers, then surely
Arthrex is entitled to a new hearing before offcers untainted
by an appointments violation. But, the Court does not va-
cate the Board's decision. In fact, it expressly disavows the
existence of an appointments violation. Ante, at 27 (plural-
ity opinion).
The quasi-separation-of-powers view fares no better. If
we accept as true the Court's position that the Appointments
Clause inherently grants the Director power to reverse
Board decisions, then another problem arises: No constitu-
tional violation has occurred in this suit. The Board had the
power to decide and lawfully did decide the dispute before
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it. The Board did not misinterpret its statutory authority
or
try to prevent direct review by the Director. Nor did the
Director wrongfully decline to rehear the Board's decision.
Moreover, Arthrex has not argued that it sought review by
the Director. So to the extent “the source of the constitu-
tional violation is the restraint on the review authority of
the Director,” ibid., his review was not constrained. With-
out any constitutional violation in this suit to correct, one
wonders how the Court has the power to issue a remedy.
See Carney v. Adams, 592 U. S. 53, 58 (2020) (Article
III prevents “the federal courts from issuing advisory
opinions”).
Perhaps the majority thinks Arthrex should receive some
kind of bounty for raising an Appointments Clause challenge
and almost identifying a constitutional violation. But the
Constitution allows us to award judgments, not participa-
tion trophies.
IV
Although unnecessary to resolve this suit, at some point it
may be worth taking a closer look at whether the functional
element of our test in Edmond—the part that the Court re-
lies on today—aligns with the text, history, and structure of
the Constitution. The founding era history surrounding the
Inferior Offcer Clause points to at least three different
defnitions of an inferior offcer, none of which requires a
case-by-case functional examination of exactly how much su-
pervision and control another offcer has. The rationales on
which Edmond relies to graft a functional element into the
inferior-offcer inquiry do not withstand close scrutiny.
A
Early discussions of inferior offcers refect at least three
understandings of who these offcers were—and who they
were not—under the Appointments Clause. Though I do not
purport to decide today which is best, it is worth noting that
administrative patent judges would be inferior under each.
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Thomas, J., dissenting
1
The
narrowest understanding divides all executive offcers
into three categories: heads of departments, superior off-
cers, and inferior offcers. During the Constitutional Con-
vention, James Madison supported this view in a brief
discussion about the addition of the Inferior Offcer Clause.
2 Records of the Federal Convention of 1787, p. 627 (M. Far-
rand ed. 1911) (Farrand); see also Mascott, Who Are “Offcers
of the United States,” 70 Stan. L. Rev. 443, 468, n. 131 (2018).
Gouverneur Morris moved to add the clause. But Madison
initially resisted. He argued that it did “not go far enough
if it be necessary at all [because] Superior Offcers below
Heads of Departments ought in some cases to have the ap-
pointment of the lesser offces.” 2 Farrand 627. The mo-
tion nonetheless passed. The crux of Madison's objection
appears to rely on the idea that there are three types of
offcers: inferior offcers, superior offcers, and department
heads. Congress could vest the appointment of inferior
offcers in the President, the courts, or a department head.
But the others must be appointed by the President with
Senate confrmation.
Some held a second underst andi ng: Infer i or officers
encompass near ly all officers. As Justice Story put it,
“[w]hether the heads of departments are inferior officers in
the sense of the constitution, was much discussed, in the de-
bate on the organization of the department of foreign affairs,
in 1789.” 3 Commentaries on the Constitution of the United
States 386, n. 1 (1833) (emphasis added). Proponents of this
understanding argued that the Secretary of State should be
an inferior officer because he was inferior to the President,
“the Executive head of the department.” 1 Annals of Cong.
509. In other words, inferior officers would encompass all
executive officers inferior to the President, other than those
specifically identified in the Constitution: “Ambassadors,
other public Ministers and Consuls.” Art. II, § 2.
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The constitutional text and history provide some support
for
this rationale. By using the adjective “such” before “in-
ferior Offcers,” the Clause about inferior offcers could be
understood to refer back to “all other Offcers of the United
States, whose Appointments are not herein otherwise pro-
vided for, and which shall be established by Law.” Ibid.;
see also 2 S. Johnson, A Dictionary of the English Language
(6th ed. 1785) (defning “such” to mean “[c]omprehended
under the term premised, like what has been said”). And
to be “inferiour” means simply to be “[l]ower in place”;
“[l]ower in station or rank of life” and “[s]ubordinate” to an-
other offcer. 1 ibid. Department heads are offcers, and
they are lower in rank and subordinate to the President.
See U. S. Const., Art. II, § 1.
But others disagreed, contending this went “too far; be-
cause the Constitution” elsewhere specifes “ `the principal
offcer in each of the Executive departments.' ” 1 Annals of
Cong. 459. These Framers endorsed a third understanding,
which distinguished just between inferior and principal off-
cers. See id., at 518 (“We are to have a Secretary for For-
eign Affairs, another for War, and another for the Treasury;
now, are not these the principal offcers in those depart-
ments”). A single offcer could not simultaneously be both.
Ultimately, this group won out, “expressly designat[ing]” the
Secretary of the Department of Foreign Affairs as a “princi-
pal offcer,” not an inferior one. Edmond, 520 U. S., at 663
(quoting Act of July 27, 1789, ch. 4, §§ 1–2, 1 Stat. 28–29).
This principal-inferior dichotomy also fnds roots in the
structure of the Constitution, which specifcally identifes
both principal offcers (in the Opinions Clause and the
Twenty-ffth Amendment) and inferior offcers (in the Ap-
pointments Clause). And it comports with contemporane-
ous dictionary defnitions. A “principal” offcer is “[a] head”
offcer; “a chief; not a second.” 2 Johnson, Dictionary of
the English Language. Other executive offcers would, by
defnition, be lower than or subordinate to these head
offcers.
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Thomas, J., dissenting
The principal-inferior offcer divide played out in other
contexts
as well. In the debate over removability of off-
cers, Representative Smith indicated that he “had doubts
whether [an] offcer could be removed by the President” in
light of the impeachment process. 1 Annals of Cong. 372.
Madison disagreed, arguing that impeachment alone for all
removals “would in effect establish every offcer of the Gov-
ernment on the frm tenure of good behaviour; not the heads
of Departments only, but all the inferior offcers of those De-
partments, would hold their offces during good behaviour.”
Ibid.
State constitutions at the founding lend credence to this
idea that inferior offcers encompass all offcers except for
the heads of departments. For example, the 1789 Georgia
State Constitution provided that “militia offcers and the sec-
retaries of the governor . . . shall be appointed by the gover-
nor.” Art. IV, § 2. But “[t]he general assembly may vest
the appointment of inferior offcers in the governor, the
courts of justice, or in such other manner as they may by
law establish.” Ibid. The law thus distinguished between
secretaries and inferior offcers. Similarly, the Delaware
Constitution directed that “[t]he State treasurer shall be ap-
pointed annually by the house of representatives, with the
concurrence of the Senate.” Art. VIII, § 3 (1792). But “all
inferior offcers in the treasury department” were to be “ap-
pointed in such manner as is or may be directed by law.” § 6.
Although not dipositive, this Court has adopted the no-
menclature of the principal-inferior distinction. See, e. g.,
ante, at 10–11; Edmond, 520 U. S., at 661 (“distinguishing
between principal and inferior offcers for Appointments
Clause purposes”); Buckley v. Valeo, 424 U. S. 1, 132 (1976)
(per curiam) (“Principal offcers are selected by the Presi-
dent with the advice and consent of the Senate. Inferior
offcers Congress may allow to be appointed by the President
alone, by the heads of departments, or by the Judiciary”);
cf. Lucia, 585 U. S., at 253 (Thomas, J., concurring) (“While
principal offcers must be nominated by the President and
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confrmed by the Senate, Congress can authorize the ap-
poi
ntment of `inferior Offcers' by `the President alone,' `the
Courts of Law,' or `the Heads of Departments' ”); United
States v. Germaine, 99 U. S. 508, 511 (1879) (“the principal
offcer in” the Opinions Clause “is the equivalent of the head
of department in the other”). And in reasoning adopted
unanimously by the Court, at least one opinion defned “prin-
cipal offcers” for purposes of the Appointments Clause to be
“ambassadors, ministers, heads of departments, and judges.”
Freytag v. Commissioner, 501 U. S. 868, 884 (1991).
2
Regardless of which of the three interpretations is correct,
all lead to the same result here. Administrative patent
judges are inferior offcers.
Start with the broadest understanding. A careful read of
the Appointments Clause reveals that the offce of “adminis-
trative patent judge” does not appear amidst the offces of
ambassador, consul, public minister, and Supreme Court
judge the Constitution identifes. See Art. II, § 2, cl. 2. So,
if inferior offcers are all executive offcers other than those
with special appointment processes laid out in the Constitu-
tion, then administrative patent judges squarely ft.
Administrative patent judges also fall on the inferior-
offcer side of the inferior-principal divide. It is agreed that
administrative patent judges are not the heads of any
department. See ante, at 13; Brief for Arthrex, Inc., 5–6
(noting that the Secretary of Commerce is the relevant “de-
partment head”). Thus, to the extent a “principal offcer . . .
is the equivalent of the head of department,” administrative
patent judges are not one. Germaine, 99 U. S., at 511.
And under the Madisonian tripartite system, administra-
tive patent judges would still be inferior. These judges are
not heads of departments. Nor are they “superior offcers.”
An administrative patent judge is not “[h]igher” than or
“greater in dignity or excellence” to other offcers inferior to
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him. 2 Johnson, Dictionary of the English Language (defn-
i
ng “Superiour”). Tellingly, neither respondent nor the ma-
jority identify a single offcer lower in rank or subordinate
to administrative patent judges. Surely if “[w]hether one is
an `inferior' offcer depends on whether he has a superior,”
then whether one is a superior offcer depends on whether
he has an inferior. Edmond, 520 U. S., at 662; see also Mor-
rison, 487 U. S., at 720 (Scalia, J., dissenting) (“Of course one
is not a `superior offcer' without some supervisory responsi-
bility”). In contrast, an administrative patent judge is
lower in rank and subordinate to both the Director and the
Secretary.
***
To be clear, I do not purport to have exhausted all contem-
poraneous debates, sources, and writings. Perhaps there is
some reason to believe that the inherent nature of an inferior
offcer requires that all of their decisions be directly appeal-
able to a Senate-confrmed executive offcer. But the major-
ity does not identify one. And, without any justifcation in
the text, in the history, or in our precedent, I would not im-
pose that requirement.
B
If anything, the Court's functional prong in Edmond may
merit reconsideration. The Edmond opinion highlighted
three justifcations for its decision to require more than just
a lower rank and a superior offcer. But having reviewed
the history, it is worth checking whether these reasons are
sound. They may not be.
First, Edmond highlighted the Constitution's use of the
term “inferior offcer.” 520 U. S., at 663. Were the Ap-
pointments Clause meant to identify only lower ranking off-
cers, then the Constitution could have used the phrase
“ `lesser offcer.' ” Ibid. But Madison's objection to the In-
ferior Offcer Clause pokes a hole in this distinction. After
all, Madison used almost exactly this “lesser offcer” phras-
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ing: He urged a broader clause so that “superior off-
cers”
could “have the appointment of the lesser offces.”
2 Farrand 627 (emphasis added). If Madison understood
the two terms to be interchangeable, perhaps this Court
should too.
Second, Edmond fagged that the Appointments Clause
was designed “to preserve political accountability relative
to important Government assignments.” 520 U. S., at 663.
But the accountability feature of the Appointments Clause
was not about accountability for specifc decisions made by
inferior offcers, but rather accountability for “ `a bad nomi-
nation.' ” Id., at 660 (quoting The Federalist No. 77, p. 392
(M. Beloff ed. 1987)). The Appointments Clause “provides
a direct line of accountability for any poorly performing off-
cers back to the actor who selected them.” Mascott, 70
Stan. L. Rev., at 447 (emphasis added).
And third, Edmond noted that legislation adopted by early
Congresses revealed that inferior offcers were subject to the
discretion and direct oversight of the principal offcer. 520
U. S., at 663. Take, for example, the Act establishing the
Department of War: It referred “to the Secretary of that
department as a `principal offcer,' ” and provided that “the
Chief Clerk, who would be `employed' within the Depart-
ment as the Secretary `shall deem proper,' as an `inferior
offcer.' ” Id., at 664 (quoting ch. 7, 1 Stat. 49–50).
But not every offcer was neatly categorized as a principal
offcer or an inferior one. For example, the Act of Congress
Establishing the Treasury Department created “the follow-
ing offcers, namely: a Secretary of the Treasury, to be
deemed head of the department; a Comptroller . . . , and an
Assistant to the Secretary of the Treasury, which assistant
shall be appointed by the said Secretary.” Act of Sept. 2,
1789, ch. 12, § 1, 1 Stat. 65. The statute does not label the
Comptroller as a principal offcer or a department head.
Nor is he expressly designated as an inferior offcer. More-
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over, his duties extended beyond doing merely what the Sec-
ret
ary deemed proper. The Comptroller's statutory power
and authority included “countersign[ing] all warrants drawn
by the Secretary of the Treasury,” “provid[ing] for the regu-
lar and punctual payment of all monies which may be col-
lected,” and “direct[ing] prosecutions for all delinquencies of
offcers of the revenue, and for debts that are, or shall be due
to the United States.” § 3, id., at 66. This quasi-judicial
fgure's “principal duty seems to be deciding upon the lawful-
ness and justice of the claims and accounts subsisting be-
tween the United States and particular citizens.” 1 Annals
of Cong. 611–612 (Madison); see also ante, at 18–19. Yet at
least one early legislator (with no recorded objections)
thought “the Comptroller was an inferior offcer.” 1 Annals
of Cong. 613 (Stone).
Given the lack of historical support, it is curious that the
Court has decided to expand Edmond's “functional” prong
to elevate administrative patent judges to principal-offcer
status (only to demote them back to inferior-offcer status).
Perhaps the Court fears that a more formal interpretation
might be too easy to subvert. A tricky Congress could
allow the Executive to sneak a powerful, Cabinet-level-like
offcer past the Senate by merely giving him a low rank.
Maybe. But this seems like an odd case to address that con-
cern. And, even if this suit did raise the issue, the Court
should be hesitant to enforce its view of the Constitution's
spirit at the cost of its text.
***
The Court today draws a new line dividing inferior offcers
from principal ones. The fact that this line places adminis-
trative patent judges on the side of Ambassadors, Supreme
Court Justices, and department heads suggests that some-
thing is not quite right. At some point, we should take
stock of our precedent to see if it aligns with the Appoint-
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ments Clause's original meaning. But, for now, we must
apply
the test we have. And, under that test, administra-
tive patent judges are both formally and functionally inferior
to the Director and to the Secretary. I respectfully dissent.
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