appointments clause

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In 2016, President Obama appointed four active-duty military officers already serving on the Army or Air Force Courts of Criminal Appeals (CCAs) to serve as judges on the United States Court of Military Commission Review (CMCR). This case consolidates petitions from eight servicemembers whose appeals were each ruled on in a CCA proceeding by one of the judges also appointed to the CMCR. Dalmazzi and her fellow petitioners, individuals whose sentences were affirmed by one of these judges, challenge the judges’ dual appointments as violations of 10 U.S.C. § 973(b)(2), which bars military officers from holding civil offices requiring appointment by the president with the advice and consent of the Senate. Dalmazzi also argues that the Supreme Court has jurisdiction to hear the appeal under 28 U.S.C. § 1259(3). The United States counters that the CMRC judgeship is not a civil office and appointments there do not require advice and consent of the Senate. Additionally, the United States argues that the Supreme Court lacks jurisdiction in some of the consolidated cases. This case creates potential implications for the scope of the Appointments Clause and the Executive Branch’s power to select judges.

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The Supreme Court will decide if the Appointments Clause governs the appointment of members of the Financial Oversight and Management Board for Puerto Rico (the “Board”). In response to Puerto Rico’s debt crisis, Congress enacted the Puerto Rico Oversight, Management and Economic Stability Act of 2016 (PROMESA), which created the Board that institutes Title III proceedings on behalf of Puerto Rico. In 2017, a number of creditors filed complaints seeking to dismiss the Board’s debt adjustment proceedings, challenging President Obama’s appointment of the board members. On appeal, the First Circuit held that the Board members’ appointments are unconstitutional but sustained the Board’s Title III proceedings under the de facto officer doctrine. The Board and other Petitioners argue that the Board members’ appointments are constitutional because the Appointments Clause does not apply when Congress acts in the U.S. territories pursuant to its Article IV authority. The creditors and other Respondents counter that all constitutional safeguards, including the Appointments Clause, always apply in the U.S. territories. The outcome of this case has implications for Congress’s authority in providing administrative structures to govern the U.S. territories.

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In 2002, Congress passed the Sarbanes-Oxley Act in reaction to the perceived failures of the self-regulatory system for accounting procedures that led to the infamous Enron and WorldCom scandals. The Act established the Public Company Accounting Oversight Board to supervise the audit of public companies. Although the Board is under the authority of the Securities and Exchange Commission, its members are not subject to direct removal or appointment by the President and it retains the power to set and raise its own budget. In this case, the Supreme Court will determine whether the Act’s establishment of the Board is an unconstitutional violation of separation of power principles and whether the Board’s structure violates the Appointments Clause. Petitioners argue that the Act violates  separation  of powers by diminishing the President’s ability to control or supervise Board members. Respondents argue that the Act does not violate  separation  of powers because Congress can grant exclusive appointment and removal authority to the Heads of Departments. Petitioners additionally argue that the Board’s structure violates the Appointment Clause because Board members are Principal Officers and, even if they were to be construed as Inferior Officers, their appointment is still unconstitutional, because the SEC is not a “Department” and its Commissioners are not the SEC’s “Head,” as required by the Clause. In response, Respondents argue that Board members are inferior officers because they are controlled directly by the  SEC,  and that the SEC  is in fact  a “Department” over which the President can exercise broad control and the Commission is its “Head” because it exercises the SEC’s collective powers. The case will ultimately determine the permissibility of the scheme currently in place that regulates US financial markets.

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This case asks the Supreme Court to decide whether the Administrative Law Judges (“ALJs”) of the Securities and Exchange Commission (“SEC”) are “Officers of the United States” within the meaning of the Appointments Clause of the Constitution. If the SEC ALJs are officers, then they cannot simply be hired like a regular government employee; instead, they must be hired according to the procedures required by the Appointments Clause. The SEC successfully argued before the D.C. Circuit that the ALJs are not officers; but following the election of President Trump, the U.S. Solicitor general switched the SEC’s position in this case. Both Raymond J. Lucia and the SEC now agree that the SEC ALJs are officers within the meaning of the Appointments Clause because the SEC ALJs have enough sovereign authority entrusted to their discretion to require the structural power-check of the appointment process. Anton Metlitsky, the Court-appointed amicus supporting the judgment below, argues that SEC ALJs are not officers because they do not have the power to make final decisions that bind either the SEC or third parties. The Court’s holding in this case could greatly impact the SEC’s enforcement regime and all the proceedings currently pending before SEC ALJs.

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This case asks the Supreme Court to decide whether administrative patent judges are principal or inferior officers under the Appointments Clause. If administrative patent judges are principal officers, the court must also determine the proper remedy for the Appointments Clause violation. Administrative patent judges are executive officers in the U.S. Patent and Trade Office (“USPTO”) who are appointed by the Secretary of Commerce in consultation with the Director of the USPTO (the “Director”). Petitioners United States and Smith & Nephew argue that the Federal Circuit erred in holding that the APJs are principal officers. The United States and Smith & Nephew contend that they are inferior officers because the Director—a principal officer—extensively supervises their work. The United States contends that the Federal Circuit’s remedy of severing the portion of the statute that protected the APJs from being removed except for good cause was appropriate. In contrast, Smith & Nephew contend Arthrex is only entitled to a declaratory judgment, but if the Court grants relief beyond a declaratory judgment, Smith & Nephew agree with the Federal Circuit’s severance remedy. Respondent Arthrex counters that APJs are principal officers because they render decisions on behalf of the United States that are not subject to review by a superior Executive officer. Arthrex further argues that if APJs are principal officers, the Court’s remedy should be to invalidate the entire inter partes review system and allow Congress to fix it as they see fit. This case has drastic implications for past patentability decisions and how patents are reviewed moving forward.

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