TagU.S. Senate

U.S. Supreme Court agrees to hear Appointments Clause challenge to administrative patent judges

Image of the front of the United States Supreme Court building

On October 13, the U.S. Supreme Court agreed to hear United States v. Arthrex Inc., a case involving the president’s appointment and removal power and whether administrative patent judges (APJs) are principal officers of the United States who must be appointed by the president and confirmed by the U.S. Senate.

After losing a patent dispute before three APJs, Arthrex, Inc. appealed their decision to the U.S. Court of Appeals for the Federal Circuit. Arthrex argued that the APJs were principal officers and that allowing the secretary of commerce to appoint them violated the Appointments Clause in Article II of the U.S. Constitution. The Federal Circuit ruled in Arthrex’s favor, holding that the removal protections APJs enjoy as members of the federal civil service makes them principal officers who must be appointed by the president, not the secretary of commerce.

To resolve what they saw as an unconstitutional process, the Federal Circuit ruled that federal removal protections could not apply to APJs moving forward. The court’s opinion states that making the APJs removable at-will changes them into inferior officers and allows the secretary of commerce to appoint them.

The U.S. government appealed the decision of the Federal Circuit. Former Solicitor General Noel Francisco argued that the U.S. Supreme Court should review the case because the Federal Circuit’s decision found “a constitutional infirmity in the statutory framework that governs more than 200 agency adjudicators, in an agency that administers intellectual-property rights affecting vast swaths of the Nation’s economy.” He also argued that the Federal Circuit was wrong to conclude that APJs were principal officers that needed to be appointed by the president and confirmed by the U.S. Senate.

The Appointments Clause of the U.S. Constitution gives the president the power, with the advice and consent of the U.S. Senate, to appoint ambassadors, public ministers and consuls, justices of the Supreme Court, and other officers of the United States. The clause allows Congress to give authority to the president alone, courts, or department heads to appoint inferior officers.

Debates over the extent of the appointment and removal power and how it applies to those who work in federal agencies are part of a broader debate about executive control of agencies. Executive control of agencies is one of five pillars key to understanding the main areas of debate about the nature and scope of the administrative state.

To learn more about the case or the appointment and removal power, see here:
United States v. Arthrex Inc.
Appointment and removal power (administrative state)

Additional reading:
Five pillars of the administrative state: Executive control of agencies
Arguments in favor of strong executive appointment and removal power
Arguments against strong executive appointment and removal power
Reform proposals related to executive appointment and removal power
List of scholarly work pertaining to executive appointment and removal power

Link to the October 13 SCOTUS order list:
https://www.supremecourt.gov/orders/courtorders/101320zor_8m58.pdf

Link to the U.S. Government petition for certiorari:
https://www.supremecourt.gov/DocketPDF/19/19-1434/146330/20200625125505259_19-___%20-%20USA%20v.%20Arthrex%20%20USA%20v.%20Polaris%20Petition.pdf

Link to the Federal Circuit opinion:
https://casetext.com/case/arthrex-inc-v-smith-nephew-inc-2021



Toomey announces he won’t run for re-election to U.S. Senate in 2022

On Oct. 5, U.S. Senator Pat Toomey (R-Pa.) announced that he would not seek re-election to the U.S. Senate and would be retiring from Congress. Toomey also stated that he would not run for governor of Pennsylvania in 2022.

At a press conference, Toomey said, “I will not be running for reelection in 2022 and I will not be running for governor. I will serve out the remainder of my term for a little over two years that are left to the current term and after that my plan is to go back to the private sector.” While he said he had no specific plans, he said he looked forward to spending more time with his family.

Toomey was first elected to the U.S. Senate in 2010, defeating Joe Sestak (D) 51% to 49% for the seat previously held by Arlen Specter (D). Toomey won re-election in 2016, defeating Katie McGinty (D) 48% to 47%. Prior to his time in the Senate, Toomey represented Pennsylvania’s 15th Congressional District from 1999 to 2005.

Republicans are currently in the majority in the U.S. Senate with 53 seats. Democrats hold 45 seats and two are held by independents who caucus with the Democratic Party.

Thirty-five Senate seats are up for election in 2020. If Republicans lose no more than two seats, they will retain control of the Senate. If Democrats win four or more seats, they will gain a majority. If Republicans lose exactly three seats, whichever party wins the presidential election will have the majority, as the vice president serves as president of the Senate.

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U.S. Senate confirms six U.S. District Court nominees

The U.S. Senate confirmed six nominees to U.S. District Court judgeships. The 94 U.S. District Courts are the general trial courts of the United States federal courts. The Senate has confirmed 214 of President Trump’s Article III judicial nominees—two Supreme Court justices, 53 appellate court judges, 157 district court judges, and two U.S. Court of International Trade judges—since January 2017.

The confirmed nominees are:

Stephen McGlynn and David Dugan, confirmed to the U.S. District Court for the Southern District of Illinois. When they assume office (after receiving their judicial commission and taking their judicial oath), the court will have:
• No vacancies.
• Two Democrat-appointed judges and two Republican-appointed judges.

Stanley Blumenfeld, Mark Scarsi, and John Holcomb, confirmed to the U.S. District Court for the Central District of California. When they assume office, the court will have:
• Seven vacancies.
• Nine Democrat-appointed judges and 12 Republican-appointed judges.

Todd Robinson, confirmed to the U.S. District Court for the Southern District of California. After Robinson assumes office, the court will have:
• Four vacancies.
• Four Democrat-appointed judges and five Republican-appointed judges.

Blumenfeld, Scarsi, Holcomb, and Robinson are the first four District Court nominees to be confirmed to a California court since Trump took office.

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Hagerty wins Republican nomination for U.S. Senate in Tennessee

Bill Hagerty won the 15-candidate Republican primary for U.S. Senate in Tennessee. With 31% of the vote reporting, Hagerty had received 52.5% of the vote and Manny Sethi had received 37.9%. George Flinn Jr. was the only candidate with more than 3% of the vote.

Incumbent Sen. Lamar Alexander (R), first elected in 2002, did not run for re-election.

Hagerty received endorsements from Sen. Marsha Blackburn (R-Tenn.) and U.S. President Donald Trump (R), whose administration he previously served in as the U.S. Ambassador to Japan. Sethi, an orthopedic surgeon, received endorsements from U.S. Sen. Rand Paul (R-Ky.) and former Sen. Jim DeMint (R-S.C.), founder of the Senate Conservatives Fund and the former president of the Heritage Foundation.

According to pre-primary campaign finance reports, Hagerty raised $12.3 million, the second-highest total among all non-incumbent Republicans in 2020 U.S. Senate primaries at the time. He reported $2.7 million cash on hand. Sethi raised $4.6 million with $386,000 on hand. Satellite spending totaled over $4 million primarily in the form of campaign ads. Standing With Conservatives spent $110,000 on ads supporting Hagerty and $1.2 million opposing Sethi. America One spent $375,000 opposing Sethi. Conservative Outsider PAC and Protect Freedom PAC spent $1 million opposing Hagerty and $1.5 million supporting Sethi, respectively.

Hagerty will face the winner of the Democratic primary on November 3, 2020. Three race forecasters rate the general election as Safe/Solid Republican.

Republicans currently control 53 seats in the Senate. Democrats control 45. There are two Independents who caucus with the Democrats.

Thirty-five elections will take place for the U.S. Senate in November, including special elections in Arizona for the seat that John McCain (R) won in 2016 and in Georgia for the seat that Johnny Isakson (R) won in 2016.