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 because neither the Secretary nor Director can review their decisions or remove them at will. To remedy this constitutional violation, the Federal Circuit invalidated the APJs' tenure protections, making them removable 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 appointment 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 advice and consent of the Senate.” Id., at 663. Applying that test to Coast Guard Court of Criminal Appeals judges appointed by the Secretary 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 “signifcant” 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 publish a certifcate” canceling or confrming patent claims he had previously allowed. § 318(b).
The Government and Smith & Nephew contend that the Director has various ways to indirectly infuence the course of inter partes review. Page Proof Pending Publication 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 responsible 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 department appoint a handful of contemporary offcers who purportedly exercise fnal decisionmaking authority. Several of their examples, however, 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 determined the patentability of inventions in 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. UNITED STATES v. ARTHREX, INC.
(d) The Court does 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 offcers do not bind the Executive Branch to exercise executive power in a particular manner, and the Court does not address supervision 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 constitutionally be enforced to the extent that its requirements prevent the Director from reviewing fnal decisions rendered by APJs. The Director 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 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 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 offcer. 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.
I and II, in which Alito, Gorsuch, Kavanaugh, and Barrett, JJ., joined, and an opinion with respect to Part III, in which Alito, Kavanaugh, and Barrett, JJ., joined. Gorsuch, J., fled an opinion concurring in part and dissenting in part, post, p. 27. Breyer, J., fled an opinion concurring in the judgment in part and dissenting in part, in which Sotomayor and Kagan, JJ., joined, post, p. 38. Thomas, J., fled a dissenting 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 Page Proof Pending Publication 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 Acushnet 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; Page Proof Pending Publication UNITED STATES v. ARTHREX, INC.
Chief Justice Roberts delivered the opinion of the Court 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 Patent 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 congressional 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 Foundation by Oliver J. Dunford 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. Page Proof Pending Publication Page Proof Pending Publication issue patents for inventions they deemed “suffciently useful and important.” § 1, 1 Stat. 109–110. Jefferson, a renowned 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” without 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 administered 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 determination 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 decide 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 Congress 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 returning the initial determination of patentability to the Executive 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 DeUNITED STATES v. ARTHREX, INC.
partment of Commerce “responsible for the granting and issuing 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 direction 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 established 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 Trademarks, 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 this 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 examiners. §§ 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 requirements for inventions. See § 6(a) of the America Invents Act, 125 Stat. 299. Any person—other than the patent owner himself—can fle a petition to institute inter partes review of a patent. 35 U. S. C. § 311(a). The Director can institute review only if, among other requirements, he determines that the petitioner is reasonably likely to prevail on at least one challenged patent claim. § 314(a). Congress has committed the decision to institute inter partes Page Proof Pending Publication review to the Director's unreviewable discretion. See Thryv, 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 proceeding. 35 U. S. C. § 6(c). The PTAB then assumes control of the process, which resembles civil litigation in many respects. § 316(c). The PTAB must issue a fnal written decision 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 underlying 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 patent fnally determined to be unpatentable, confrming any claim of the patent determined to be patentable, and incorporating 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 surgical device for reattaching soft tissue to bone without tying a knot, U. S. Patent No. 9,179,907 ('907 patent). Arthrex soon Page Proof Pending Publication UNITED STATES v. ARTHREX, INC.
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 review 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 President 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 principal offcers and therefore that their appointment by the Secretary of Commerce was unconstitutional. The Government 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 decisions 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 invalidated the tenure protections for APJs. Making APJs removable at will by the Secretary, the panel held, prospectively “renders them inferior rather than principal offcers.” Id., at 1338. The Federal Circuit vacated the PTAB's decision and remanded for a fresh hearing before a new panel of APJs, who would no longer enjoy protection against removal. Id., at 1338–1340.
Page Proof Pending Publication 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 aspects of the panel's decision in three petitions for certiorari. We granted those petitions to consider whether the PTAB's structure is consistent with 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 Executive Branch' ” and “ `cannot delegate [that] ultimate responsibility 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., concurring 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 offcers 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 behalf 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).
Page Proof Pending Publication UNITED STATES v. ARTHREX, INC.
The Appointments Clause provides: “[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, 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 Departments.” Art. II, § 2, cl. 2.
Assigning the nomination power to the President guarantees 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 “default manner of appointment” for inferior offcers is also nomination by the President and confrmation by the Senate. Id., at 660. But the Framers foresaw that “when offces became numerous, and sudden removals necessary, this mode might be inconvenient.” United States v. Germaine, 99 U. S. 508, 510 (1879). Refecting this concern for “administrative convenience,” the Appointments Clause permits Congress to dispense with joint appointment, but only for inferior offcers. Edmond, 520 U. S., at 660. Congress may Page Proof Pending Publication vest the appointment of such offcers “in the President alone, in the Courts of Law, or in the Heads of Departments.”
B
Congress provided that APJs would be appointed as inferior 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 employees or contractors—because they “exercis[e] signifcant authority 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 advice 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 Secretary 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 prescribing rules of procedure and formulating policies for courtPage Proof Pending Publication UNITED STATES v. ARTHREX, INC.
martial cases, and could also “remove a Court of Criminal Appeals 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 signifcant,” 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 institute 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 supervise[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 rePage Proof Pending Publication 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 challenged 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 responsibility 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 cancel a patent claim or confrm it,” post, at 50 (opinion of Thomas, J.), simply ignores the undisputed fact that the Director'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 allowed, as dictated by the APJs' fnal decision. § 318(b); see §§ 131, 153. The chain of command runs not from the Director 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 authority 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 Director can also designate the APJs who will decide a particular 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 consequences” 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 intervene 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 Page Proof Pending Publication UNITED STATES v. ARTHREX, INC.
to the Government, could manipulate the composition of the PTAB 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 handpicking (and, if necessary, repicking) Board members, can indirectly infuence the course of inter partes review.
That is not the solution. It is the problem. The Government 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 accountability 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 assignment without cause” and refusing to designate that APJ on future PTAB panels. Edmond, 520 U. S., at 664. Even assuming that is true, reassigning an APJ to a different task going forward gives the Director no means of countermanding the fnal decision already on the books. Nor are APJs Page Proof Pending Publication “meaningfully controlled” by the threat of removal from federal 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 `legislative' 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 ultimately 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 accountability.” 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 dissent 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 safePage Proof Pending Publication UNITED STATES v. ARTHREX, INC.
guard[ ]” that “preserve[s] political accountability” through direction 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 offcer in the agency “organizational chart,” post, at 44, but as we explained in Edmond, “[i]t is not enough that other offcers 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, principal 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 supervision 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 Page Proof Pending Publication subversive of uniformity in the execution of the laws.” 3 Works 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 responsibility for a wrong construction rests with the head of the department, when it proceeds from him.” Id., at 559. Early congressional statutes expressly empowered department heads to supervise the work of their subordinates, sometimes by providing for an appeal in adjudicatory proceedings to a Presidentially nominated and Senate confrmed offcer. See, e. g., 1 Stat. 66–67 (authorizing appeal of auditor decisions to Comptroller); § 4, 1 Stat. 378 (permitting supervisors 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 direction and control) as they saw ft. See J. Mashaw, Creating the Administrative Constitution 254 (2012).
This Court likewise indicated in early decisions that adequate supervision entails review of decisions issued by inferior offcers. For example, we held that the Commissioner 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, almost “too manifest to require comment,” was that the authority 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 Commissioner “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 Page Proof Pending Publication UNITED STATES v. ARTHREX, INC.
forthrightly acknowledged at oral argument, it “certainly is the norm” for principal offcers to have the capacity to review 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 reconsideration” by the agency head is the standard way to maintain political accountability and effective oversight for adjudication that takes place outside the confines of § 557(b). Walker & Wasserman, The New World of Agency Adjudication, 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 departments but who nevertheless purportedly exercise fnal decisionmaking authority. Several examples, however, involve 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 behalf 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 Immigration Review under control of Attorney General). And while the Board of Veterans' Appeals does make the fnal decision within the Department 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 distinguishPage Proof Pending Publication Page Proof Pending Publication able, such as the Benefts Review Board members who appear 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 Appeals 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 appealable 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 contractors.
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, adjudication has followed the traditional rule that a principal offcer, 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 President with the advice and consent of the Senate—who exercised 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 Commissioner, who directed the work of his subordinates by, for example, 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 Appeals established in 1927. 44 Stat. 1335–1336. Simplifed somewhat, the Board of Appeals decided the patentability UNITED STATES v. ARTHREX, INC.
of inventions in panels composed of examiners-in-chief without an appeal to the Commissioner. But decisions by examiners-in-chief could be reviewed by the Court of Customs and Patent Appeals (CCPA), an entity within the Executive 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 authority regarding the granting of patents” through the examination 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 opinion). 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 interference proceedings); 5 Stat. 120–121 (board of examiners to hear appeal from patentability or priority decision of Commissioner). 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 “special and temporary conditions.” United States v. Eaton, 169 U. S. 331, 343 (1898) (holding that an inferior offcer can perform functions of principal offce on acting basis). APJs, by contrast, occupy a permanent offce unless removed by the Secretary for cause.
Page Proof Pending Publication * * * We hold that the unreviewable authority wielded by APJs during inter partes review is incompatible with their appointment by the Secretary to an inferior offce. The principal 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 duties 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 offcers do not bind the Executive Branch to exercise executive power in a particular manner, and we do not address supervision outside the context of adjudication. Cf. post, at 56–57 (opinion of Thomas, J.). 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, 424 U. S., at 126.
III
We turn now to the appropriate way to resolve this dispute 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 intact.” 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 unconstitutional enactment” in resolving a legal dispute. Massa Page Proof Pending Publication UNITED STATES v. ARTHREX, INC.
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 portions of the statute are “not repugnant” to the Constitution, effectively severing the unconstitutional portion of the statute. 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 required 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 continues, the appropriate remedy is to order outright dismissal of the proceeding below. The partial dissent, similarly forswearing 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: Decisions 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 responsibility 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 conduct of inter partes review. 35 U. S. C. §§ 314(a), 316(a). In Page Proof Pending Publication every respect save the insulation of their decisions from review within the Executive Branch, APJs appear to be inferior offcers—an understanding consistent with their appointment in a manner permissible for inferior but not principal 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 rehearings.” § 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 proceeding, 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 reviewing fnal decisions rendered by APJs. Because Congress has vested the Director with the “power and duties” of the PTO, § 3(a)(1), the Director has the authority to provide for a means of reviewing PTAB decisions. See also §§ 3(a)(2)(A), 316(a)(4). The Director 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. This does not result in an incomplete or unworkable statutory scheme. Cf. United States v. Treasury Employees, 513 U. S. 454, 479 (1995). To the contrary, review by the Director 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 Trademark Modernization Act of 2020, 134 Stat. 2209.
The Government defends the different approach adopted by the Federal Circuit. The Court of Appeals held unenPage Proof Pending Publication UNITED STATES v. ARTHREX, INC.
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 unenforceable, 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 Government is correct that at-will removal by the Secretary would cure the constitutional problem, review by the Director 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 decision. 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 authority 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 petitions for inter partes review. We do not address the Director'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 adjudicate the petition in the frst instance, see Freytag, 501 U. S., at 881–882, they lacked the power under the Constitution to fnally resolve the matter within the Executive Branch. Under these circumstances, a limited remand to Page Proof Pending Publication 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 Director, rather than the appointment of APJs by the Secretary, 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 Senate. The Constitution therefore forbids the enforcement of statutory restrictions on the Director that insulate the decisions 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 discretion 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.