John F. Duffy (George Washington) has posted Are Adminsitrative Patent Judges Unconstitutional? on SSRN. Here is the abstract:
As amended in 1999, 35 U.S.C. § 6 authorizes the Director of the Patent and Trademark Office (PTO) to appoint all administrative patent judges of the Board of Patent Appeals and Interferences. That method of appointment is almost certainly unconstitutional, and the administrative patent judges serving under such appointments are likely to be viewed by the courts as having no constitutionally valid governmental authority. The full extent of the problem was revealed in a recent statement to the press by a PTO spokeswoman, who disclosed that nearly two-thirds of the agency's administrative patent judges were appointed under the new statute. If administrative patent judges are being randomly assigned to three-judge panels, then a simple probability calculation shows that more than 95% of Board panels are likely to include at least one unconstitutionally appointed judge.
Duffy argues persuasively that administrative patent judges are subject to the provisions of the appointmetns clause, and thus the question becomes whether the Director of the Patent and Trademark office is a "head of department" authorized to appoint "inferior officers." Here is the relevant passage:
This brings us to the question whether administrative patent judges are being validly appointed within the limitations of the Appointments Clause. Because the PTO Director is not the President or a Court of Law, the validity of the appointment process turns on whether the Director can be viewed as a “Head of Department.” Once again, Freytag is the leading case on the subject, and it pretty clearly forecloses any argument that the Director could be considered a department head. Under the majority reasoning in Freytag, “Heads of Departments” for purposes of the Appointments Clause are confined “to executive divisions like the Cabinet-level departments,” which the Court held to be “limited in number and easily identified.” 501 U.S. at 886. The PTO Director is subordinate to the Secretary of Commerce and therefore cannot qualify as a Cabinet-level department head. The official title of the PTO Director is “Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office.” 35 U.S.C. § 3(a) (emphasis added). Moreover, the PTO itself is statutorily “established as an agency of the United States, within the Department of Commerce” and is “subject to the policy direction of the Secretary of Commerce.” 35 U.S.C. § 1(a); see also 15 U.S.C. § 1511(4) (listing the PTO as one of the bureaus “under the jurisdiction and subject to the control of the Secretary of Commerce”). Thus, the PTO Director’s primary duty — to “provid[e] policy direction and management supervision for the [PTO],” 35 U.S.C. § 3(a)(2)(A) — is subject to the oversight of the Secretary of Commerce. Indeed, even under the more capacious view of “Heads of Departments” articulated in Justice Scalia’s concurring opinion in Freytag, an Under Secretary fails to qualify because heads of departments encompass only “the heads of all agencies immediately below the President in the organizational structure of the Executive Branch.” Id. at 918 (Scalia, J., concurring the judgment); see also id. at 915 (Scalia, J., concurring in the judgment) (noting that “a subdivision of the Department of the Treasury . . . would not qualify” as a Department). Thus, an Under Secretary of Commerce is not a constitutionally acceptable appointing authority for officers of the United States like administrative patent judges.
The question then become whether Freytag v. Commissioner, 501 U.S. 868, 880 (1991) was rightly decided. Duffy doesn't address this question, but it would obviously be at issue if the Supreme Court were to grant cert. in on the petition currently before it.
Here are the relevant passages from Freytag:
We cannot accept the Commissioner's assumption that every part of the Executive Branch is a department the head of which is eligible to receive the appointment power. The Appointments Clause prevents Congress from distributing power too widely by limiting the actors in whom Congress may vest the power to appoint. The Clause reflects our Framers' conclusion that widely distributed appointment power subverts democratic government. Given the inexorable presence of the administrative state, a holding that every organ in the Executive Branch is a department would multiply indefinitely the number of actors eligible to appoint. The Framers recognized the dangers posed by an excessively diffuse appointment power and rejected efforts to expand that power. See Wood, at 79-80. So do we. For the chief judge of the Tax Court to qualify as a "Head of a Department," the Commissioner must demonstrate not only that the Tax Court is a part of the Executive Branch but also that it is a department.
We are not so persuaded. This Court for more than a century has held that the term "Department" refers only to " `a part or division of the executive government, as the Department of State, or of the Treasury,' " expressly "creat[ed]" and "giv[en] . . . the name of a department" by Congress. Germaine, 99 U. S., at 510-511. See also Burnap, 252 U. S., at 515 ("The term head of a Department means . . . the Secretary in charge of a great division of the executive branch of the Government, like the State, Treasury, and War, who is a member of the Cabinet"). Accordingly, the term "Heads of Departments" does not embrace "inferior commissioners and bureau officers." Germaine, 99 U. S., at 511.
Confining the term "Heads of Departments" in the Appointments Clause to executive divisions like the Cabinet-level departments constrains the distribution of the appointment power just as the Commissioner's interpretation, in contrast, would diffuse it. The Cabinet-level departments are limited in number and easily identified. Their heads are subject to the exercise of political oversight and share the President's accountability to the people.
Such a limiting construction also ensures that we interpret that term in the Appointments Clause consistently with its interpretation in other constitutional provisions. In Germaine, see 99 U. S., at 511, this Court noted that the phrase "Heads of Departments" in the Appointments Clause must be read in conjunction with the Opinion Clause of Art. II, 2, cl. 1. The Opinion Clause provides that the President "may require the Opinion, in writing, of the principal Officer in each of the Executive Departments," and Germaine limited the meaning of "Executive Department" to the Cabinet members.
The phrase "executive departments" also appears in 4 of the Twenty-fifth Amendment, which empowers the Vice President, together with a majority of the "principal officers of the executive departments," to declare the President "unable to discharge the powers and duties of his office." U. S. Const., Amdt. 25, 4. The Amendment was ratified February 10, 1967, and its language, of course, does not control our interpretation of a prior constitutional provision, such as the Appointments Clause. [n.4] Nevertheless, it is instructive that the hearings on the Twenty-fifth Amendment confirm that the term "department" refers to Cabinet-level entities:
"[O]nly officials of Cabinet rank should participate in the decision as to whether presidential inability exists. . . . The intent . . . is that the Presidential appointees who direct the 10 executive departments named in 5 U.S.C. 1 [now codified as 101], or any executive department established in the future, generally considered to comprise the President's Cabinet, would participate . . . in determining inability." H. R. Rep. No. 203, 89th Cong., 1st Sess., 3 (1965).
Treating the Tax Court as a "Department" and its chief judge as its "Head" would defy the purpose of the Appointments Clause, the meaning of the Constitution's text, and the clear intent of Congress to transform the Tax Court into an Article I legislative court. The Tax Court is not a "Department."
It is clear that the Freytag opinion does not assert that the phrase "heads of departments" had an ordinary public meaning (or "conventional semantic meaning" that would limit its meaning to the heads of Cabinet-level offices. Of course, not--the cabinet did not exist prior to the implementation of the Constitution. And obviously, the organization of the executive branch could be accomplished in a variety of ways--with different lines of authority. If, for example, George Washington had chosen to make the Vice President the head of staff, there would be only one official directly below the President, and if that had occurred, then it is likely that the phrase "head of department" would have been given a different construction. The 25th amendment does not directly address this question--it was ratified long after the Constitution of 1789 and might be using the term "department" in a different sense.
The point of this discussion is that the phrase "heads of departments" is vague: it does not draw a bright line between "departments" and mere "units of organization". This means that the issue is one of constitutional construction--the specification of legal rules to implement the Constitution where its semantic content does not determine the issue. The decision in Freytag then is a constitutional construction--in this case a construction given by the First Congress in the legislation establishing the organization of the executive.
This notion was advanced by the Supreme Court in Germaine, the authority on which the Freytag Court relied:
That instrument was intended to inaugurate a new system of government, and the departments to which it referred were not then in existence. The clause we have cited is to be found in the article relating to the Executive, and the word as there used has reference to the subdivision of the power of the Executive into departments, for the more convenient exercise of that power. One of the definitions of the word given by Worcester is, ‘a part or division of the executive government, as the Department of State, or of the Treasury.’ Congress recognized this in the act creating these subdivisions of the executive branch by giving to each of them the name of a department. Here we have the Secretary of State, who is by law the head of the Department of State, the Departments of War, Interior, Treasury, &c. And by one of the latest of these statutes reorganizing the Attorney-General's office and placing it on the basis of the others, it is called the Department of Justice. The association of the words ‘heads of departments' with the President and the courts of law strongly implies that something different is meant from the inferior commissioners and bureau officers, who are themselves the mere aids and subordinates of the heads of the departments. Such, also, has been the practice, for it is very well understood that the appointments of the thousands of clerks in the Departments of the Treasury, Interior, and the others, are made by the heads of those departments, and not by the heads of the bureaus in those departments.
So this raises a series of interesting questions. Congress was the branch of government charged with constitutional authority to give a construction of the phrase "heads of department." That construction was then relied upon by the Supreme Court in Germaine and then indirectly by the subsequent Court in Freytag. In 1999, the Congress adopted (at least implicitly) a different construction by treating the Director of the PTO as a "head of department." Does Congress retain authority to construe the phrase "heads of departments"? Is Congress bound by its prior construction or may it change its mind? Once the Court addressed the meaning of "heads of departments" in Germaine did this freeze the original construction in place? Or has constitutional practice become so court-centric that the issue is now committed to the courts, so that Congress's construction over this structural matter are no longer authoritative?
Read Duffy's very interesting paper! Highly recommended!
P.S. Marty Lederman emails with some valuable links: