states this court held the coast guard court of criminal appeals judges were inferior officers the court based that conclusion on the combined supervisory powers of the coast guard judge advocate general and the court of appeals for the armed forces here are the mechanisms by which the is director can supervise administrative pattern judges substantially exceed the combined powers of the supervising officials and had been the judge advocate general was authorized to probably gave rules of procedure for the court of criminal appeals and he could remove individuals from their judicial assignments without cause the p t o director can exercise those same two powers but he has other important tools of control as well the director can promulgated binding guidance concerning substantive patent law he can designate particular board opinions as presidential thus making those opinions binding on future panels he can also decide whether any particular review will be instituted and which judges will sit on the panel and he can d m s to to the review even after it has been arthritics focuses primarily on the purported absence of any mechanism by which the director can review of panels final written decision but the board can grant rehearing of any such decision and the director is a member of the board and is authorized to decide which members will sit the panel the director thus can convene a new panel that consists of himself and two other members of his choosing to decide whether any final written decision will be referred to the director's power over rehearing says not plenary since he must exercise it jointly w two other board members but in edmonton the review authority of the court of appeals for the armed forces was not plenary either since that court could not reassessed the factual findings of the court of appeals to the court of criminal appeals taken together the director supervisory powers are fully sufficient to render administrative patton judges inferior officers mr stewart that was a long list of things that the director can do but of course the one thing that he can't do is just change the decision of the p g a and the rest of those things deciding whether to rehear you know stacking in a non pejorative way the panels rehearing you know guidance on hypothetical fact they all seem to be more or less ways of twisting the arms of the a p j s and so it is sort of a direct directly opposite to what the appointments clause was designed to do which is transparency and make it clear who's responsible one here you know the director can pressure the a p j a but at the end of the day he can say well that's not my fault that's what he wanted  isn't that true i think i took two things in response to the st or the supervisory mechanisms that we've identified are transparent if the director issues binding guidance that says here's how the patent law is applied to particular patterns that will be done in the director's own name and the director will have responsibility for it you have to agree the a p j is the one who's going to decide whether that so called hypothetical applies in this particular case and if he comes out with a different result that's the executive decision not the director's rule about hypotheticals what even if you focus on the mechanisms that are available after a written decision is issued the board panel's decision will be the decision of the executive agency only if it is not reheard and as i said in my opening the director's power over rehearing has not plenary but it is substantial and you  is that the inferior has disappeared here and is supervised at some level by the executive branch officials who are appointed by the president and confirmed by the senate and we don't have a bright line test for this but the court in edmond  said that the court of appeals for the armed forces can't nd guess the factual determination of the lower court it is not sufficient to make those lower court judges principal officers things can slip through the cracks and supervision can nevertheless be sufficient and that's essentially what we have here even if you just look at the fact review the director has substantial control but i think the court should focus primarily on the mechanisms of control that are available in the st instance issu public guidance and so forth because the usual hallmark of supervisory authority is that the supervisor can tell the subordinates how to do the job before the subordinate does it and the director has ample tools there thank you  prior time just curious you may not have thought about this but if maybe the as to the office has been peekaboo if we go back to that i dissented and had a very long appendix with dozens and dozens of people that i suddenly thought were they seem to be like here we used to call them hearing examiners and really they used to be civil servants all kinds of shapes and sizes in terms of powers and they suddenly all became officers of the united states but the majority said we're not saying they all are we're just talking about peekaboo so are these people officers of the united states why is my answer i'd like a line if you ever thought of one between the statement and peekaboo the majority don't worry they're not all officers of the united states have you thought of a distinction there between the long list and peek a boo him would it apply here we we've essentially acquiesced in the proposition that the board the administrative patent judges are officers rather than employees as you'll recall from the previous in this case there was a failure if there was a period when they were appointed by the director and were thought to be employees congress and change the statute it's not absolutely clear that that so but the mechanism of appointment is sufficient so long as they are inferior officer high thought you might have done that and i wonder if in the course of doing you thought of the line of some kind that might distinguish the dozens of people i've put in that appendix from these people here and in the majority's in peak of a well i think the court has drawn the line in terms of between officer and employer the in terms of exercising substantial authority under the laws of the united states obviously that something very far from a bright line i think it is significant in this regard that the removal provision the top clickable to administrative patent judges is the same removal provision that applies to officers and employees of the  o generally the room will provision signals that congress didn't intend for these officers to exercise any unusual level of independence from the director justice alito mr starr suppose congress application of one particular provision of one particular regulatory statute and suppose the s g can decide which deputy is to review each case the falls into this category the s g or the attorney general can issue guidelines on the meaning of the provision and the standard to be applied and deciding to take an appeal but once a debt a deputy makes a decision let's face a decision not to appeal nobody not the attorney general or the president himself can countermands that would that be constitutional i mean i think it would be a close call you if you would obviously be looking at morrison versus son in order to determine to assess the significance of the fact that the deputies authority was limited to a narrow category of cases and certainly the fact that the solicitor general could probably get substantive standards that would bind the deputy in making his decision might lead you to conclude that that person is still an inferior officer rather than a principal officer but however that case would come out here the decision of an ordinary p tab panel is not unreviewable within the agency it is subject to rehearing the director is a member of the board the director can appoint a panel that includes other board members in order to determine whether a rehearing shall be granted so that authority as i've said is not pl change a somewhat i think it would change it or if you said the solicitor general can sit on a panel that will review the deputy's decision and the solicitor general may sit on a panel with two other deputies and theoretically could be outvoted but the seward the other side's case comes down basically i think to just saying you're not an inferior officer if you can make final decisions that are  unreviewable by the director that's a fairly straight forward line yours is a bit more amorphous i think it's what the chief was getting to but i think that what i want to understand is what is your final test being judged against is it and i thought i heard a little bit of the of it when you said  the director is setting the policies and procedures he is he or she is the person who controls the outcome in the sense of setting what the policies and procedures are am i right that baseline that is certainly part of it and i would agree that we don't have a bright line test but that's in part because this court has emphasized that there is no exclusive criterion for determining and there were various principal officers and what we are emphasizing is that the director has really two different forms of control he can issue policy guidelines that will be binding on board panels in cases generally but the director also is a member of the board can participate in the board's decision making process and individual cases for my colleagues and there are some who don't like amorphous concepts or ones that don't have a yardstick by which to measure what is the advantage of us keeping the edmund pettus i think the advantage is that the government is so multifarious there are such an enormous number of officers and employees within the executive branch that any attempt to to formulate a bright line test would almost inevitably lead to anomalous results in some category categories of cases even in seven hundred and eighty seven dollars the framers were concerned that it would be administratively inconvenient to require senate confirmation for all officers and since that time the executive branch has grown enormously but they're still just one president and they're still just one senate and according to  would you put a lot of weight on the ability of the director to be part of a board that rehears a decision i had thought that there was a the usual mechanism for rehearing a decision that  the panel and the panel could decide whether to rehear the case if it had it believe that it overlooked something but because the director is a member of the board and chooses the composition of the panel the board the director can always decide in an individual case no here the rehearing panel will be different of criminal appeals there was really nothing that the cap could do about it that actual determinations could slip through the cracks and here the director cannot only convene this panel the director can issue policy guidance that explains the rules of law as th understands them and other panel members are obliged to go along the only thing that really can slip through the cracks in the p t o setting is factual determinations with which the director might disagree but other board members  oversight the chain of dependences preserve so that low the lowest officers in middle grade and the highest all depend as they ought on the president and the president on the community i'm struggling to and how that interpretation of our constitution squares with your argument that not even the president ited states either him self or through his subordinates can reverse a decision of a p j s were the chain of dependence well the president obviously appoints the director subject to senate confirmation and the director can be removed by the president that arrives and the removal but my question is focused on the supervision and control of language and see the law well the the president can issue kind of instructions to the director and can terminate the director of the director doesn't comply the director has various supervisory method again that's removal and my question was focused on supervision of the president disagrees with the decision or one of his designees down the chain of dependence disagrees with the decision there is no remedy that the president has correct well there is a prospective remedy in the sense that  talking about the decision i'm not talking about removal you know there is a there is a right of appeals to the federal circuit but i think that i think that's a separate branch of government i'm again i'm talking within the executive branch mr stewart there's there's no chain of dependence running to the president with respect to the supervision of a particular decision is there there or there is no ability to ensure that the factual findings of two other members of the panelists will could be overridden but certainly position wouldn't change any of that that is holding that the a p j is our principal officers who must be appointed by the president with senate confirmation wouldn't give the president any greater power of control over their decisions in the event that they were i still think it may be a wolf as justice scalia famously said and he said in those cases it can be discerned by careful and perceptive analysis so here's why here here's the sources for my concern on that front st this structure is a real break from tradition which we've said in cases like free enterprise fund and many others perhaps the most telling indication of a constitutional problem is a departure or the lack of historical precedent lack of agency review of the ale j decision by someone who's appointed by the president with advice and consent of the senate is absent here and is ordinarily present and story has been present and then nd the  lack of accountability as the chief justice said justice course which was just saying these are multi million sometimes one billion dollars decisions being made not by someone who's accountable in the usual way that the appointments clause demands and the director on rehearing does not have the unilateral power to reverse so you know congress is going to do that they can eliminate agency review and prevent or move oil well then it's easy to make the have the capacity to to review their decisions but as we know from edmond that doesn't have to be plenary review the court in edmonton specifically addressed that the court of appeals for the armed forces could not revisit the factual determination guard court of criminal appeals and said what's more important is that there is review not that review was not plenary and it in addition the director has substantial authority to instruct the judges as to matters of law as to the director's own interpretation of the patent laws and can insist that the judge is comply with that those instructions the other thing i would say is if you think that that is the constitutional problem and if you think the constitutional rule is some senate stewart on page thirty eight of your brief you talk about the strength of their own little power and you say that because there is an efficiency of service standard applicable here and because the director can promulgated regulations the violation of which might be cause for firing that those are ways in which the director can exercise some back and control of the that with whom he's not happy with their performance but isn't it the case you know as arthur x points out that a p j is to get the protection from federal service altogether they would have the protections of the m s p be and i'd say two things about removal st in addition to removing a p j s from federal service altogether the director can remove them from their judicial assignment and the court in pay the two things that could be done st they could be assigned tasks such as rule making training other employees in a p j s do sometimes perform those tasks the nd thing is arthritis appears to concede that there is no constitutional problem with the p tab adjudicating direct appeals from denial of patent applications are threats of knowledge is there sufficient director control in that area that there is not a constitutional problem and so particular pj's could very possibly this kind instead yes i mean especially at the director thought the problem with these officials is that in inner parties reviews they are not being sufficiently compliant with the director's instructions that the other thing i would say about the removal provision is that in addition to providing a practical tool for control the fact that the a p j is are subject to the same removal protection as officers and employees generally indicates that congress didn't intend for them to tap any sort of special independence from from the director of humanity to men to wrap up mr stewart thank you mr chief justice this court has emphasized that there is no exclusive criterion for inferior officers status that the inquiry examine all the tools of control taken together here the director has substantial tools of control well before a final written decision is issued the director has a power that the  nor the court of appeals for the armed forces had an admin namely did the ability to issue binding instructions that will provide rules of decision for administrative pattern judges as they decide cases thank you mr chief justice mr perry mr chief justice and may have please the court arthritis proposal for a bright line administrative review requirement rests on a single line from edmond noting that the military judge is couldn't render on all decision unless permitted to do so by other executive officers the court in that sentence was not announcing a requirement for inferior officer status it was commenting on the narrow scope of kaffir view which followed its observation that the jag could not provide advance guidance to the military judge it in sharp contrast to p t o director can and does kids if they have the guidance to a p j it he also has unilateral institution and assignment power and he can order a review of any board decision moreover only the director takes final action by confirming or canceling patent client a p j can't render any decision unless the director permits them to do so they are inferior officers you're going to have to call them and saying on the director's granted rehearing he's appointed himself and two others just don't think the same way he does to the panel he's issued new guidance saying in a so called hypothetical case that looks like ours it should charade out of the adjudication yet you're relying on all of those powers to say that everything is is all right i mean it really doesn't sound like any kind of adjudication that we would accept  you know when to say characterized by due process mr chief justice whether or not there are due process considerations in any particular determination has nothing to do with the appointments clause question here right we have a structural allocation of power from the president through the secretary through the director to the a p j s that is being respected and being followed in the chain of command due process is a separate issue not presented in the petition not presented in the case there may well be due process problems in other cases but that is not a reason to dilute or pollute the appointments clause justice thomas thank you mr chief justice  thomas the principal officers sit at the right hand of the president the only one of this court has recognized the ambassadors in the cabinet officers and they had to be agencies i want to step removed these individuals are three steps removed so you know the secretary now finally is the director maybe the a p j definitely are not and that's the chain of command that the court has described over and over again that would be one test the other the the ad be absolute supervision i don't know it's really difficult to discern how much it would be required on the your test your honor the ultimate test is whether the president and his direct reports remain accountable for the operations of the agency so if the congress were to give total free reign to a to a sleeper agent to be embedded within the agency that might be a problem but where the chain of command is preserved and the director and ultimately the secretary of the president bear the responsibility and accountability that is sufficient and totality of the circumstances here show that the latter is the case with respect to the patent office thank you just as prior i'm just curious if you found other examples like the jag example say that the senior executive service members of that have a lot of authority in dozens of different areas in the different kinds of officials and does you find any good examples which would help you where they do example going to make on the call decisions every day in court and remember we're making very narrow decisions here the ultimate the what the board decided in this case is that the priority date of this patent was may th two thousand and fourteen that is not a decision that our constitution requires to be made by a principle officer or even reviewed by a principal officer it's a narrow case specific factual question that the board answered and we believe answered correctly so the answer your question is yes there are many such officers but but they are just generally given the opportunity to decide narrow case specific application specific questions rather than broad questions of national policy that that's the dividing line in our government ways in which there is control over over these a p j so i'm going to go through these go through your list and eliminate them one by one and you tell me this when to stop to when we get to the point where we've crossed the line and there's no longer sufficient control so let's say that the director does not control whether to institute p r s in the st place he does not control how many and which a pj's on which panels he does not provide exemplary applications of patent laws the fact patterns that are binding on a p j s he does not control whether a panel's decision will be presidential he does not direct whether a panel's decision will be reheard by  and any one of them might be removed if all of them were removed and you know the sleeper agent i described in every case had to be determined based on the powers congress has actually conferred and here are the suite of powers together including one the court didn't mention very need to have someone in the direct control of the president i'm assuming that that as i thin thinking about that question adjudicatory type proceedings between adjudicate of independence and presidential control and that balance can be struck by congress in many many ways and throughout history has been struck in many many ways so long as the channels of authority or preserve i'll come back to what mr stewart said it's the advanced offering of guidance is more important in this context for example the director can identify problems coming  have panels not to make those mistakes preserve both the political accountability and avoids those due process type problems that may arise in individual circumstances that is the essence of supervision which is carried out every in the agency head and i was just wondering is is there a story behind this i mean how did this come to be and is there anything that we should take from that or is this just an unaccountably strange bird between two private parties over patentability including priority date the issue in this case and they have always been appointed by the secretary in eight trillion seven hundred and fifteen billion two hundred and ten million seven hundred and fifty two thousand and eight there's no question that those issues have always been decided by inferior officers much of that time since one thousand nine hundred and nine in the interference context without director review and and that's what has been carried forward in the modern tradition so we have a patent specific tradition it comes out of the examination process right these are sort of super examiners to review examiners or nd level examiners and that and the examiners of course decide the same questions of the st line and their employees not even officer so the tradition we think is relevant to that of the patent office and is are very much in line with a long long history that in fact stretches all the way back to the founding and us congress ever taken a look at this do we know that congress has considered this and and knows what's going on and has it ever reached a determination on the appointments question we do know justice kagan congress for a brief period to the appointment of the director and then changed it to the secretary to avoid appointments cause problems there's a provision in the statute speaking of that and specifically decided that they are inferior officers who can and should be appointed the secretary in that determination we think is entitled to a certain amount of deference thank you mr perry justice course which mr perry i understand you and your colleagues on the other side disagree a little bit over the  patent interference question and history here but in answer to justice kagan is is it fair to say that yes this is a rare bird in that in this area maybe for historically contention reasons may be considered maybe not this is an unusual animal in the sense that there isn't a final review in the agency head while there is review ability in the agency had but just this court has to directly answer your question since the a p a was  the appointments clause is not a super a p a it doesn't require the president or congress to follow the a p a in any particular case is that a long way of saying yes that this area is it's not so generous very very unusual it is unusual  is also well and historically founded and until now unchallenged ok and with respect to the soft power that is sometimes emphasize that the director may have over appointing different decisions are subject to due process constraints and that would be able to jim a source of concern of those kinds of issues arose there is no such question or allegation or concern in this case this is this is only a structural appointments cost question absolutely they are of course the yellow flag if not a red flag and then your test to try to deal with that seems to resurrect morrison v olson's test so we've gotten away from that in in edmund justice alito as questions pointed that out and what i'm worried about this is the wall for what i'm worried about is this gives a model for congress to eliminate agency review avail change decisions and kind of fragment and take away from it and just see control going forward because this however this came about to justice question this would be a model going forward and that would allow congress to give extraordinary power to inferior officers which is not how our government is ordinarily structured and then to just sort of my worst question seems like a make the a p j's principle officers with presidential point and senate and vice and consent if you want to add more judicial model but here that this hybrid gives enormous power to inferior officers and it's really just out of the norm your response in this case is still valid the board is declared to be on hand of all but the director has not handled it to this day three years later nothing had happened because the director the politically well pointed directly accountable to the perry so i want you to assume for the purposes of my question that you lose on the appointments clause issue and i want to ask you about remedy so you know the federal will think about one unusual thing about the remedy here is that it's not one specific provision in the statutory scheme that's being challenge is unconstitutional it's the way that they work together you know so we could if we decided that it was unconstitutional perhaps make all of the  's subject to say their principal officers and so they have to be subject to presidential appointments to toil confirmation we could say well listen we're going to strike the provision in the statute that says only the  has that authority we could make them maybe at will employees so they're removable at the discretion of the director without having to go through the full process when discussed before that's a lot of think the statute of course is constitutional and i don't mean to be flip but if you tell me how we lose we can tell you what the remedy is so for example if the real problem here is the lack of agency review ability then the most direct line to a solution would be to sever the provision requiring board rehearing so that the director could unilaterally urge you to and there may be other remedies depending on where if anywhere the court were to find a constitutional violation it is not where the federal circuit found it and it's certainly not where our threats has identified it which is to take down the whole system you know they don't actually want presidential confirmation they don't actually want direct to review what they want is for the court to to to blow up the whole thing because of a structural problem that again not to fight the hypothetical we think the them exist thank you ahmed to wrap up mr perry and your chief justice principal executive officer sit at the right hand of the president and make national policy they are the ambassadors the cabinet members in the agency has to have no shapiro here other than the president the a p j is here are three steps away from the president the chain of command runs through the secretary of commerce and the p t o director this court has consistently recognized subordinate officials in general and administrative adjudicators in particular to be inferior officers a p j s carry out policy they do not make it findings like these have been made by inferior officers since the patent office was created and a p j as carry on that tradition they are inferior officers thank you thank you counsel mr lamb can thank you mr chief justice and may it please the court administrative patent judges do one thing decide cases their decisions are the executives final word resolving one billion dollar disputes affecting the innovation landscape they can even overturn earlier decisions by their own agency had to grant a path no sapir in the executive has authority to review their decisions to overturn their exercise of government authority accountability suffers if a principal officer has review authority but refuses to exercise it and overrule subordinates the president and the public can hold him accountable for not choice but the principle is not accountable if the answer is i have no authority congress made my suppose that underlings the final word punishing a pj's for decisions or guidance to prevent future air doesn't undo decisions already made for parties the decision remains the executive final word in two hundred years this court has never upheld such a scheme admin emphasizes review by presidential appointed senate confirmed officers hard to imagine the  coastguard judges there would be inferior officers if none of their decisions could ever be countermanded by a superior which is why the federal circuit to remedy strike a p j tenure protection is no remedy at all a p j s would still be the final word of the executive for the case they decide not subject a p j s to on scene behind the scenes pressures through its appearance could evade accountability how to fix the statute is for congress solutions point in opposite directions congress might want a p j s to be presidential appointed and senate confirmed as examiners in chief for four hundred and fourteen years congress might want to grab the director express authority to read board panel decisions that's how the congress fix the problem for the trademark people to have the authority to overturn those in situations where billions of dollars are at stake but at the same time in terms of basic patent rules and approaches and guidance you don't want them to have that responsibility right why isn't that a fair balance well magick you have to the constitution permits adjudication in the executive branch and part because some adjudication is executive in nature but placing that function in the executive means that the key protections against executive overreach which is accountability to the people for the decisions have to be observed allowing unaccountable officers to decide those cases finally stripping any accountable principle of authority to overturn them defeats that structural protection now the standard model for agency a structure that she is both the impartiality of initial decision and allows for principle officer review and it ensur the principal officer review after the fact has a principal officer taking responsibility for his decision to overturn the impartial adjudicator this by contrast comes up with a situation where you really are and it doesn't make sense because you really can't be an inferior officer you cannot be an inferior adjudicator when there's no superior who can review any of your decisions after well not any of your actual decisions but can certainly take actions that would redirect any mistakes that  the director sees in how a particular case was handled for the implementation of a patent policy according to the president's directives the president's responsibilities  regulation or punishment of the a p j after the fact simply doesn't change the fact that the a p j s decision is the final word in the case the final word of the executive for the parties agreed by the loss of valuable right there's no superior they can go to to ask them to countermand that bad decision for the public and agree parties want to know who to hold accountable for the decision there's just nobody the press office that office response is i have no authority to overturn those bad decisions congress strip me of that power that's the opposite of accountability it's the nature of adjudication you decide individual cases if we're going to have accountability in education ask to be accountability for individual cases structural protections like these protected individual liberty they have to apply in individual cases what about the argument that as a matter of practicality which is something that the government has to take into d account what you supposing is is really quite impractical practical hundreds and hundreds of administrative hearing examiners as at least they used to be called making these sorts of decisions the notion of meaningful review of each one seems to me to be fanciful the city of justice because you count the appointments causes about accountability what matters is legal authority if the director thinks he's too busy to review a decision if the director think the too numerous to repair and attention the public can the president can hold him accountable for that decision but if the director's answer is i have no legal authority to review those decisions then he is not accountable at all thank you counsel justice thomas the director but what matters is for individuals to understand when they are making these decisions that there is a subject to potential review and reversible bias by their principal officer absent that oversight there isn't sufficient guidance and control to ensure that they're inferior officers in the end were ultimately entitled to a decision where a principal officer appointed by and accountable to the president has authority to review availability of review this court the lower federal courts don't cease to be inferior courts merely because this court denies sir surely in the vast majority of cases it is the avila that veil ability of review that makes an inferior courts and this court the court and so it doesn't have to be actual view in any case but an ad and then when for example review was limited to issues of law and if there is so long as there was sufficient evidence on every element the offense the higher court couldn't overturn it and so presumably under proper circumstances that would be an appropriate standard but what you can't have is what we have here which is not only can you not remove the lower on the supposedly lower officers but the director simply does not have authority to overturn their decisions no matter how vehemently he may disagree with he may disagree with them in fact he had almost in any rehearing sits in a panel of twenty three where he is outnumbered two to one would solve your problem that's exactly how yes that's exactly how congress to fix the problem for the trademark trial and appeals board it provided inserted an express provision saying that the director has  to overturn board decisions with which the director disagrees but this court can't pencil in that sort of authority the government attempts to get their bias asserting that the court should strike for example statute authorizes his review that would be permissible so long as consistent with the statute because the public and the president could hold the director accountable for his or unable to mean that you can be an exact same posture that you are in right now as long as he does it by delegation rather than by statute well it wouldn't be the exact same posture your honor because if it's by delegation he could always withdraw that delegation if it's by delegation he is accountable for having done the delegation he cannot point his finger at congress and say congress deprive me of the power to overturn that decision it would be his choice to not review the decision his choice to delegate his choice for which he is accountable to the president and the people of the united states justice prior following up on what justice thomas says i mean i don't know why is this an unusual matter of delegation i mean after all the government is filled with all kinds of different people doctors in practice may have final authority to decide at the veterans and ministration whether you're on your right day for an appointment the sergeants will decide what hill to take in the army of inspectors general may decide who is a whistleblower and have absolutely unreviewable authority to send something over to congress to say what that whistleblowers said there are many shapes and sizes and some and congress i mean you're saying congress can't restrict their authority at all no matter what the shape and what the size or can they do it sometimes enough do it other times and if so when i mean  complicated justice breyer i think when you're talking about an adjudication what's critical is the authority of a principal officer to be able to overturn that it doesn't read doctor not for a whistleblower now for policy decisions   power to decide whether to send a letter to congress at the request of a whistleblower yeah i don't think you that are not on your oath there i think that sending a letter to congress may or may not be substantial governmental authority of the sort that would be to be told ok but then we have a finding out what you're looking for is the other side is saying this given the complexity of the federal government of course they're going to be vast numbers of different cases so we have three basic things to look at what's the position in respect of the president of the individual what's the nature of that job and what is the nature of the delegation of non authority i mean even magistrates and lower court judges decide things without review such as a denial of summary judgment or what the nature of the authority delegated what the nature of the job what the distance from the president is under the rubric policy is it taking too many policy matters away from the president so an adjudicator will have more authority possible and so will a whistleblower inspector general and maybe somebody else well maybe somebody in the nuclear right what you say you see what they're driving at so what's your response to that justice brah i think when you have adjudication it's just in the nature of adjudications that you  individual cases and if you're going to have accountability in those decisions which you must if you're in the executive branch that accountability has to be for individual decisions and if you if you have an unassailable as an underling with unreviewable authority to decide the matter you do not have accountability of the superior you simply can't be an inferior adjudicator if there is no superior who can review any of your decisions over the constitution use of the word inferior only in the con of the context of the lower federal courts those courts are inferior because their decisions are subject to this group's review is there are reports out there where this court would have no authority to review their decisions ever under any circumstances they might be a laicus let's assume that we agree with you bat this current in him violate the apartment's clause you say in your brief we shouldn't go any further we should leave it to congress to decide what to do to fix the problem but bad really doesn't answer the question of what relief you should get in this case i assume you know it be satisfied if at the end of this case the only thing that you obtain is a declaration that the current scheme is constitutional but nothing is done to disturb the decision of the board right you wouldn't be satisfied with that correct that would be essentially an advisory opinion for us because the court because the i p r system is unconstitutional this case can't proceed there's no constitutional mechanism to which this case can be remanded accordingly the i p r really should some of the alternatives such as saying that you are entitled to have the director review the decision of the board your honor i think the court point repeatedly at it's in light of convincing point the law is a combination of what the constitution requires and any statutory additions to what the constitution requires so if the constitution  requires some alteration of the current statutory scheme so be it and that is an alteration that would possibly bring this in the compliance with the constitution i think your honor i believe there's you know the choice of how to have these decisions made whether or not you elevate a pj's to have them appointed by the president to make them true principle officers or conversely whether you would instead subordinate them to the director by making the decisions reviewed by the director is a sort of fundamental policy choice this court does not make congress but somebody has to make a choice about somebody and the judiciary has to make a choice about how this case and i don't think you can i don't think it's an answer to say don't make any choice at all just say that we when that is a choice that is a form of relief is a yes ye and it is the former really for example disqualification sorel it said there's multiple possibilities of how the statute could be changed but we are not the institution to beat it to doing it on the legislature have to make that change and i think that's precisely the case here because the possible solutions point in diametrically opposite directions one is to make the officers to make the a p j s appointed by the president so that you have so their true principle officers the other would be to make them truly subordinate to the director by making their decisions not final at least subject to the possibility of review by the director but since those in the multiple other possibilities point in such dire magically opposed direction counsel i find it odd not to protect congress prerogative but it's nothing that we do will tie congress's hands the one thing we do know is that they can change anything we do as a temporary remedy assuming we were to rule in your favor but i am i have a problem with our jurisprudence has as its developed in this hand in in heads of the department were were referred to as principal our officers and other members as inferior officers as a whole history that many of those inferior officers to final decisions in a wide variety of areas get that's the way we proceeded the history also shows that early statutes gave non principal officers the power to make final adjudicatory decisions on behalf of the land commissioners were given the power to make final determinations as to a claimant's right to a tract of land i personally read this history is suggesting that principle officers were intended to be policy makers and individuals who merely adjudicated claims based on set policies were not principle officers so for me the person that is has to be held responsible is not the policy makers all of the policies of the sit in the director presidential power is a put in the director the l g s cannot influence the course of the law that's only the director so please tell me why the individual decision based on a quasi i logged precedent and then the director isn't responsible for it it's not his fault and i think i have no problem with that if the a p j makes a mistake under the policy to terminations it doesn't make you an inferior officer simply because somebody in a coordinate branch could review your decisions if that where this test then that has a department and they can't members of the cabinet would be inferior officers also because their decisions can be reviewed by the courts under edmond to be an appearance here officer you have to be subject to the supervision and control of a principal officer and that doesn't mean that you can only have one single how division the principal officer in any in any agency madison as we pointed out in our brief expression we recognize the fact that you could have other principal officers subordinates or with a has one of the last point i just ignore the history under your view and no what it teaches us no quite the opposite i think the history of the arbitrators that you mentioned they would decide just a single case and that has to consequences st because an arbitrator doesn't have a continuing position historically the director in this case but the review was under a clear error standard would that be enough your honor i think consistent with adam and a clearer standard of legal would probably be sufficient in light of the other means of controlled of the director had and how about if it was under an agreed to us or a standard i think your honor at some point where the authority of the director is so cut off that he can't is not able to say with any accountability that the final decision of the e p j represents the views of the united states that this is a decision that he is willing to stand behind as the word of the p t o let's point let's think about what you just said in reference to edmund  edmund as you said this is what you said a clear our standard would have to suffice the standard was is there a competent evidence in the record now if i think about that standard i mean when is there no competent evidence in the record so i guess i'm wondering how edmund is at all consistent with some of the statements that you've been making this this morning you said that you know that it's if if the head of the authority it's not our fault there was competence evident in the in in the record i mean it wasn't very good evidence and the evidence in our view was outweighed by much better evidence but it was competent so it's not our fault are putting aside whether there is there is an overall legal authority yet many decisions the calf would be able to say you know this was in the end a decision about the evidence and we basically have no authority with respect to judgments about how good the evidence is as long as there's like something there we have to go along it's not our fault but your honor i think the answer is that one thing that congress can't do and still maintain use and if you're officer is to say that your adjudicator of decision are not subject to review by any principal officer under any circumstances that simply goes too far and that's what we have  here i mean i guess what i'm just wondering is whether this doesn't suggest that this question of review is something that's not an on off switch as to this single issue but something that needs to be put into the mix and needs to be considered along with all the other evidence of control that the agency had has the reason why this competent evidence standard was ok in edmond was principal officer to review the suppose and furious decision is a critical but perhaps not always sufficient condition but you really can't call them an inferior officer if the answer is for the superior i have no authority to review your decisions at all under your honor i don't think so because you know for example he cannot conceive really anticipate every conceivable factual sonari every conceivable distinction every single thing that an and a and jew to cater might come up with along the government seems to try and contrive together ways that the government that she's made that the director could possibly control the outcomes for example front running a p j decisions with a specific guidance manipulating panel or panel composition to achieve results didn't stick to it and to try and avoid bad decisions all of those contrivances to try and give the director some sort of control just show that congress didn't give the director the critical authority you  authority to review and overturn decisions so he can stand behind them as the final word to the united states so mr land can in our last couple of cases see a lot of free enterprise we were able to get in and get out rather cleanly severing  removal provisions and of course that took care of the constitutional problem there here you indicate that supervision is a real problem and more machinations are  sufficient for you on our st not off course one of a multiple options and put in opposite directions but it wouldn't even fix the problem even if the director would somehow give the director the ability to grant a rehearing despite the rule that the body with authority to decide cases initially usually has the authority to grant a hearing not somebody else but the director still wouldn't have unilateral authority to decide cases on rehearing the statute still says decision are issued in panels  were congress meeting only one member trying to insert the director as a single decision maker where congress provided for people to sit in panels of three that isn't a surgical solution that's vivisection all the other other portions of the statute we'd have to eliminate or add to know but it would still rather i think that you would have to strike at least to those two but that would be a radical alteration of the scheme congress established panels of three were an important protection against idiosyncratic thinking they ensure a necessary breadth of expertise they provide a check ensuring just do you have decision makers a different background and it would be a departure of that from historical practice of having as examiners in chief work for one hundred and fourteen years or you can try and subordinate them by making the director the final decision maker and give him capacity to overturn decisions within he disagrees one on one option you give us is to simply set aside the i p r determination remand the case the agency and then wait for congress to fix the problem back and i'm sure some would argue that well but that could take a long time what's your response to that  congress out when it would address the problem it has already addressed the problem with respect to the trademark trial and appeals board in addition its congress has already held hearings it has before it ready made solutions one historical more one more recent with a tea towel available and there's only seven hundred and fifty dollars of these i p r is currently pending approximately which is a little more than three per ip jay congress could readily make it possible for the e to be refiled if it shows in a new and constitutional system ultimately it's more of jeff rangel it's more respectful of congress to give congress the ultimate authority and give congress the choice of what it believes is the right answer for the structure for an agency responsible for technological innovation and important property rights this court shouldn't be placing a thumb on the scale and giving judicial promoter to one of multiple diametrically opposed aleutians thank you justice kavanagh  thank you chief justice good morning mr lampton i want to follow up on some other of my colleagues questions and then turn to severability st following up on the chief's questions my understanding of your position is protection plus agency review and that gives due process but also gives ultimate agency control of policy that's kind of the historically settled solution you want to preserve that correct that's exactly right and it was also that type of solution that persisted for one hundred years in it with respect to initial examinations and with with respect to interference of his will and here in the here are the problem is congress departed from the tradition by keeping the due process part without the agency review part and you can either keep their word of you know if you want to keep them as inferior officers or if you want to avoid an agency any agency review congress can do that too but that they have to do presidential appointment and senate confirmation of the a p j's correct that's right if history means anything this is an outlier it's an aberration and an unconstitutional one of the right and then justice thomas asked about how would be different delegated in other words if the power of review were granted to their or director and then it delegated your answer that i think was accountability is that correct i think that's right we're in a princip operator has the authority and then chooses to delegate it to another assuming that that's consistent with a statute that principle officer is in accountable for the choice to delegate if the attorney general says i'm too busy to review these i want somebody else to do it for me the public and the president can hold them accountable for that choice and then just prior a spot inspector generals he also had other officers too but on inspector generals my understanding is those are presidential point and senate confirmed there actually would be a pretty big problem with they were purposes still alive after adam so morrison relied heavily on the fact that the officer was appointed for a limited duration and for a single task a single investigation whatever one might think of that is a completely different matter entirely to have an entire branch of an agency with two hundred dollars or more permanent positions there adjudicating case after case after case with out the possibility without authority and a principal officer to overturn their decisions and then just to end it and just to clarify one thing i think this comes from justice kagan's questions and then there was both review of some sort she as you to pinpoint that review of some court but also remove ability and well correct that's right they could be removed from their positions and they have there was are you of some sort and here we have exactly the opposite let me let me turn because i've got to turn quickly to respects really follows from the nature of the constitutional problem we declare what the nature of the constitutional problem is we say then we enter judgment and then start decisis means that that constitutional problem exists for all cases isn't the nature of the constitutional problem here the lack of director of you know what should be not saying six see is the constitutional problem no your honor because the problem stems also from the fact that the officers are not appointed by the president and senate confirmed either one would be sufficient to address the problem and it's not like separation of power cases where the officer is just the single problem the officer is not subject to presidential control and therefore all the remedies involve subordinat can you think of any situation in which we have said ok well there are multiple flaws in the scheme but you know it's just this cap and i was just saying six b seems to be the big problem so are going to think it's the cleanest to go that route are you can you tell me the negative that we've never done it part of the country your honor and for all that's exactly what this court did it so there is at least five different things that are problematic combined and that would be a matter of which is due to make the judicial yet intimate around that makes sense i mean let's say that justice cavanagh is right and that seems very sensible and makes a lot of sense to solve this problem assuming that we say there is one by saying sixty is the problem so that's that's the locus of the constitutional problem here and we're going to say that that's what we're holding unconstitutional so that going forward it's just that the p tab can't have the final word well the court could just as easily say the locus of the constitutional problem is the fact that these officers are not a but what i'm asking is if can you cite a case or are you telling me that there is none and you cite a case for the proposition where we have done just that understanding that that runs against what you want us to do here i'm just asking is there a negative is it the case that we've always had the position that we had in sorell and we've never said that when there might be multiple provisions working together that create a problem or multiple ways of solving it that we haven't just chosen one that makes sense i think frequently you're right your hon in the sense that this court doesn't make that sort of judicial policy decision when the possibilities are multiple and they point in more any point in complete opposite directions this court recognize that it's respectful of congress to let congress make the policy choice and the board it's not a matter of surgical relief then ok mr lamb can let me let me put it to the appointments close issue so just as karen was pointing out there are many ways in which we would say that is our subordinate to the director and it seems to me that one way to look at this case this is say that it turns out isn't foot level if you look at front end controls you know if you look at hiring and firing and the ability of the director to set policy that the p j s must follow and  many respects their inferior officers and we might say that congress has given them this one authority in this case specific review authority that is one that is inconsistent with the unfair officer role but it does it does seem odd doesn't it to say that they are principle officers because that officer how's with already that goes beyond that for inferior officer if their officers the final decision maker for the executive branch where no there is no superior in that context that officer is then a principle officer for all purposes and cannot their decisions before they become the final word of the executive branch because they pj's don't have that's a period they cannot be appointed as inferior officers the current i p r regime s s is as a result unconstitutional  perry pointed to section three hundred and eighteen dollars b and the fact that the director does the final action but section three hundred and eighteen dollars b points out that in fact the director is made subordinate to the a p js because it says that the director shall issue can find a claim if the board finds the doesn't solve the problem because they still have no sapir ear and exercise of government authority but how to fix this problem is a question for congress because the possible solutions point in opposite directions congress might want them to be senate confirmed were as an exemption she four hundred and fourteen years already might want to subordinate them to the director as congress ordered for it as congress provided for trademark judges last year congress can upright approach by amending the law but this court cannot simply rewrite statute and it shouldn't allow the executive should try and jury rig a solution to contriving a remedy the respectful thing here is to let congress to choose the path forward the court should hold the i p r regime unconstitutional as constituted the i p r proceedings against  x therefore cannot continue and the i p r should be dismissed thank you thank you counsel rebuttal mr stewart thank you mr chief justice mr lampton referred to this court's ability to supervise lower courts by reviewing their judgment but the principle means by which this court supervises the lower courts is not by affirming or reversing a few dozen lower court judge of judgments every year the principle means of supervision it is this court issues presidential opinions that bind lower court in future cases and the court typically tries to exercise its search for a jurisdiction in such a way that the legal rulings that issues will address questions of law that are both important and recurring and similarly in this case it's important not to ignore the front and back and asms that are available to the director to influence the outcome of or decision to that so both because they are the most practically efficacious means of using the director resources and because these are the means that are most often characteristic of the exercise of supervisory power that nd mr lampton said that the director can't be held accountable if the board issues a decision that people believe are wrong is wrong and that that's incorrect the losing party in an i p r can always ask the director to convene a new panel to grant rehearing and to put the director himself on that panel and if the director declines to take that step he can be held accountable for allowing the panel decision to remain in place that the only imperfection in the director's accountability and review authority is that the director could be outvoted by the other two members of the panel that he convened but those other two members of the panel would be balanced by any directives of law that the director had issued the only practical fear is that those two people will disagree with the director's view of the facts and to that extent accountability is limited but as justice kagan's questions pointed out that's exactly what was going on in edmond that in edmond people who thought that the facts had been determined incorrectly could only blame the coast guard criminal court of criminal appeals judges they couldn't blame any senate confirmed officer the last th i'd say is mr perry referred to a usa is and people in positions like that though if they go into court conducting trials they'll have to make snap decisions about whether to object to particular evidence how to respond if a judge disapproves their proposed line of questioning as a practical matter these are decisions that often can't be undone after the fact and so a blanket rule that an officer is a principal officer if he or she can do anything that binds the united states without being subject to being countermanded by a senate confirmed officer that would be unworkable mr lamb can attempt to confine the rule he is advocating to that you give officials but there's really no principle basis for striking that limitation edmund makes clear that administrative adjudicators are subject to the same appointments clause principles as other federal officers thank you thank you