Today, TechFreedom joined an amicus brief asking the Supreme Court to reject the Federal Circuit’s “blue pencil” editing of federal administrative law. After finding that administrative patent judges (APJs) are principal officers under the Constitution, and that the statutory scheme governing them therefore violates the Constitution’s Appointments Clause, the Federal Circuit decided to “fix” the problem by striking APJs’ statutory tenure protection. The brief was led by Americans for Prosperity Foundation (AFPF). 

“Only Congress may write our laws,” said Corbin K. Barthold, Director of Appellate Litigation at TechFreedom. “In this case, the Federal Circuit properly acted as a court when, in the process of resolving a concrete dispute, it concluded that the statute governing APJs violates the Appointments Clause. It then illicitly acted as a lawmaker, however, when (in the words of a dissenting judge) it ‘considered several potential fixes’ to the statute and ‘chose the one it viewed’ as best.”

There are several ways that the statutory scheme could be brought in line with the Constitution’s appointments protocol. For example, APJs’ decisions could be subjected to greater review within the U.S. Patent and Trademark Office. By choosing among the options at hand, argue AFPF and TechFreedom, the Federal Circuit improperly rewrote the law from the bench.

“The Federal Circuit should have let Congress fix the problem,” Barthold continued. “The Supreme Court should reject the Federal Circuit’s attempt to craft public policy. The judiciary should stick to applying the law as written, while ensuring that the other branches stay within their constitutional lanes. It should not try to edit laws it views as defective. To do so is to wield the legislative power — a power that belongs to Congress alone.”

“The temptation to judicially ‘update’ statutes is especially acute when fast-evolving technology is at issue,” Barthold concluded. “TechFreedom takes an interest in statutory interpretation cases, because we believe that a predictable body of law, applied by judges as written, promotes entrepreneurship and innovation.”

The case is United States v. Arthrex, Inc., No. 19-1434 (U.S.).


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Read our related work including:

  • TechFreedom’s amicus brief in FTC v. AMG Capital, another Supreme Court case, this term, about the importance of applying the law as written