FVRA vs. the Constitution

by Bill Vobach

I struggle to understand how the Federal Vacancies Reform Act (FVRA) can authorize a temporary head of the USPTO, who is acting without Senate confirmation, to oversee PTAB decisions. If decisions of the PTAB must be overseen by a principal officer in view of the Appointments Clause of the Constitution, it seems that an unconfirmed temporary head cannot satisfy that role, even on an interim basis. Stated differently, Congress does not have the authority to waive the Appointments Clause of the Constitution on an interim basis.

So, it was interesting to read Justice Thomas’s concurrence in NLRB v. SW General, Inc.:

That the Senate voluntarily relinquished its advice-and-consent power in the FVRA does not make this end-run around the Appointments Clause constitutional. The Clause, like all of the Constitution’s structural provisions, “is designed first and foremost not to look after the interests of the respective branches, but to protect individual liberty.” NLRB v. Noel Canning, 573 U. S. ___, ___ (2014) (Scalia, J., concurring in judgment) (slip op., at 3) (internal quotation marks and bracket omitted). It is therefore irrelevant that “the encroached-upon branch approves the encroachment.” Free Enterprise Fundsupra, at 497 (internal quotation marks omitted). “Neither Congress nor the Executive can agree to waive” the structural provisions of the Constitution any more than they could agree to disregard an enumerated right. Freytag v. Commissioner, 501 U. S. 868, 880 (1991). The Judicial Branch must be most vigilant in guarding the separation between the political powers precisely when those powers collude to avoid the structural constraints of our Constitution.


Courts inevitably will be called upon to determine whether the Constitution permits the appointment of principal officers pursuant to the FVRA without Senate confirmation.

NLRB v. SW General, Inc., 137 S. Ct. 929, 949 (2017).

It will be interesting to see if anybody challenges a post-Iancu/pre-Vidal decision by the PTAB as being unconstitutional for failing to be overseen by a principal officer whose appointment satisfied the Appointments Clause of the Constitution.

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