June 24, 2021 9:21AM # Fallout from a Big Week of Administrative Law at the Supreme Court By [William Yeatman](https://www.cato.org/people/william-yeatman) --- SHARE It’s been a huge week for administrative law before the Supreme Court, featuring two opinions that invalidated congressional designs for regulatory programs. Thus, the Roberts Court continued its [aggressive oversight](https://www.yalejreg.com/nc/taking-a-hard-look-at-dhs-v-regents-of-the-university-of-california-by-william-yeatman/) of the administrative state. In this post, I assess the fallout. On Monday, by a 5 — 4 vote, the Court in *[U.S. v. Arthrex](https://www.supremecourt.gov/opinions/20pdf/19-1434_ancf.pdf)*. held that the Patent Trial and Appeal Board’s (PTAB) adjudication regime is unconstitutional because it vested final decision-making authority in an official other than a principal officer. In [prior](https://www.cato.org/blog/appointments-clause-after-arthrex) [posts](https://www.cato.org/blog/patent-victory-democratic-accountability), my colleague Thomas Berry has explained how the majority’s holding both advances political accountability and modifies constitutional doctrine. Also, Christopher Walker, on whose scholarship the majority leaned, has provided an insightful summary at *[Notice & Comment](https://www.yalejreg.com/nc/what-arthrex-means-for-the-future-of-administrative-adjudication-reaffirming-the-centrality-of-agency-head-review/)*. Here, I’ll elaborate on *Arthrex*’s ramifications beyond the PTAB. There are a handful of agencies whose in-house courts are designed similarly to the PTAB and which, therefore, likely run afoul of the reasoning set forth by the *Arthrex* majority. These bodies are: - the [Departmental Appeals Board](https://www.hhs.gov/about/agencies/dab/index.html) at the Health & Human Services Department; - the [Judicial Officer](https://oalj.oha.usda.gov/office-judicial-officer-0#:~:text=Judicial%20Officer%20Bobbie%20J.,McCartney&text=McCartney%20was%20appointed%20to%20the,officer%20of%20USDA%20(7%20C.F.R.) at the Agriculture Department; - the [Administrative Review Board](https://www.dol.gov/agencies/arb) and the [Benefits Review Board](https://www.dol.gov/agencies/brb/welcome) at the Labor Department; and, - the [Board of Land Appeals](https://www.doi.gov/oha/organization/ibla) at the Interior Department. I understand that these regimes, like the PTAB at issue in Arthrex, involve adjudications where the final decision maker is not a principal officer. Almost certainly, these programs will have to be redesigned in the wake of *Arthrex*. Such a redesign could occur in either of two ways. Preferably, Congress would take the lead, but these sorts of changes could be wrought, too, by the home agency in which the tribunal is nested. Turning to today’s opinion in *[Collins v. Yellen](https://www.supremecourt.gov/opinions/20pdf/19-422_k537.pdf)*, where the Court, by a 7 – 2 vote, held that the Federal Housing Finance Agency (FHFA) director cannot be insulated from direct presidential management. As the opinion of the court observed, this outcome was a “straight line application” of the Court’s prior holding in *Seila Law*. In terms of effects beyond the FHFA, the Court’s holding on the constitutional merits won’t ripple far. That’s because there was only one other agency designed like the FHFA, and that’s the Consumer Protection Finance Bureau, whose invalidation in *Seila Law* paved the way for today’s ruling in *Collins v. Yellen*. The upshot is that the Court has run out of agencies of this sort to invalidate. In terms of fallout from *Collins v. Yellen*, the most immediate result is that the Biden administration [already has exercised](https://twitter.com/Jordanfabian/status/1407742263715893255) its new authority to fire the incumbent director of the FHFA, Mark Calabria, who was appointed by Trump. Perhaps the biggest result in *Colins v. Yellen* is that six Justices adopted an expansive view of justiciability, or access to federal courts, for these sorts of separation of powers challenges. This augurs well for many similar “structural” constitutional challenges that are pending or impending in the lower courts. The other significant result in *Collins v. Yellen* is that the Court provided definitive guidance for whether “acting appointees” who head independent agencies also enjoy insulation from direct presidential management—they don’t and, therefore, may be removed at will by the president. ([H/​t Dan Farber](https://twitter.com/dfarber/status/1407713390470918151)). This is an important clarification, because modern presidents increasingly rely on these temporary appointments due to the time-consuming nature of Senate confirmation. None of the above analysis touches upon the muddled message that the Court sent regarding how to go about remedying these constitutional harms. That’s a separate and more complicated matter, one that I’ll address in a future post. Suffice it to say for now, majorities on the Court in both cases continued an unfortunate trend of denying meaningful relief to the parties that were affected by these constitutional violations. On this question, Justice Gorsuch penned strong separate opinions arguing that action by unconstitutional actors should be void, period. Gorsuch gets it exactly right. ##### Related Tags [Constitutional Law](https://www.cato.org/constitutional-law), [Supreme Court](https://www.cato.org/supreme-court) [![Creative Commons License](/build/cato_2020/images/creative-commons.svg)](http://creativecommons.org/licenses/by-nc-sa/4.0/) This work is licensed under a [Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International License](https://creativecommons.org/licenses/by-nc-sa/4.0/).