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Washington, D.C., Dec. 31, 2020 (GLOBE NEWSWIRE) -- The New Civil Liberties Alliance, a nonpartisan, nonprofit civil rights group, filed an
amicus curiae brief in the U.S. Supreme Court in the case of
United States v. Arthrex, Inc., et al. At issue in the consolidated set of cases is whether administrative patent judges (APJs) can be appointed by the U.S. Secretary of Commerce or whether the Constitution requires the President to appoint these judges and the Senate to confirm them.
NCLA argues (with Arthrex) that APJs are "principal officers" of the United States. Hence, according to the Constitution's Appointments Clause, they must be appointed by the President with the advice and consent of the Senate. The Secretary of Commerce, as the head of a department, could appoint APJs if they were deemed "inferior officers." But under the America Invents Act of 2011, APJ decisions cannot be reviewed by a superior in the Executive Branch—only by other APJs. This fact means that APJs are "principal" officers. Therefore, the Appointments Clause requires appointment by the President himself, thereby ensuring presidential accountability for their performance in office.