Document Type
Book Chapter
Publication Date
2026
Abstract
United States v. Arthrex addressed a seemingly straightforward Appointments Clause 1 challenge to the secretarially appointed administrative patent judges (APJs) who serve on the Patent Trial and Appeal Board (PTAB). The challengers successfully argued that APJs exercised too much authority with too little supervision to qualify as "inferior" officers. Importantly, in Arthrex the U.S. Supreme Court also extended a recent string of invalidations of legislative structures that had been aimed at enhancing agency independence. The Arthrex Court asserted the need for political control over agency adjudication decisions and did so, moreover, in an old department with a long administrative adjudication history. The Court's reasoning and remedy may signal a new judicial appetite to constitutionalize political control over agency adjudication. Arthrex also should raise concerns about a cookie-cutter judicial approach to agency adjudication structures and should prompt commentators, legislators, and judges to consider the reasons for the wide variation in federal adjudication structures, to recognize the pitfalls as well as the promise of political control over adjudication decisions, and to uphold the role of the political branches in legislating the design of institutions.
Publication Information & Recommended Citation
Mendelson, Nina A. and Rebecca S. Eisenberg. "United States v. Arthrex, Inc., 594 U.S. 1 (2021)." In Leading Cases in Administrative Law, edited by Anna Shavers, Christopher J. Walker, and Matthew Lee Wiener, 335-343. American Bar Association, 2026.
Comments
© 2026, Published in Leading Cases in Administrative Law, 2026, by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.