Of the Supreme Court’s rulings today, its unanimous decision in NCAA v. Alston (affirming a lower-court’s antitrust injunction against NCAA rules limiting the education-related benefits schools may offer student-athletes) will deservedly receive the most attention. But United States v. Arthrex presents divisions on two very interesting legal questions. I will very briefly sketch those divisions here.

1. The primary question in Arthrex is whether the Appointments Clause of the Constitution allows Administrative Patent Judges (APJs) to be appointed by the Secretary of Commerce. APJs, sitting in panels of three, serve on the Patent Trial and Appeal Board (PTAB) and decide challenges to the validity of existing patents.

Under the Appointments Clause, the president shall, with the consent of the Senate, “appoint Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.”

If APJ are “inferior Officers,” then it was clearly proper for Congress to vest authority to appoint them in the Secretary of Commerce. But if they are “public Ministers and Consuls”—principal officers, as such have come to be called—then they would have had to be appointed by the president, after Senate confirmation.

By a 5-4 vote, the Court determined that APJs are principal officers. One surprise is that Justice Thomas is in dissent on this question, along with the three liberal justices.

In determining that APJs are principal officers, Chief Justice Roberts’s majority opinion finds critical that the PTAB decisions that APJs reach cannot be reviewed “by their nominal superior or any other principal officer in the Executive Branch.” In short, because they exercise unreviewable power, they are principal officers.

In his dissent, Justice Thomas argues that the Director of the Patent and Trademark Office and the Secretary of Commerce are both formally superior to APJs (they are higher in rank) and functionally superior “because they supervise and direct the work [APJs] perform.” While the PTO Director cannot overturn a PTAB decision made by the APJs, the Director has “powerful checks” on PTAB decisions. Among other things, he can select which APJs will hear a challenge and, if he doesn’t like a decision, can try to stack a panel to rehear the decision.

In addition to joining Thomas’s analysis, Justice Breyer, joined by Justices Sotomayor and Kagan, opines that the Court should give Congress “a degree of leeway” in establishing federal offices and should adopt a “functional approach” to the question that takes into account “purposes and consequences.”

2. On remedy, the five justices in the majority on the substantive Appointments Clause issue divide four (Chief Justice, Alito, Kavanaugh, and Barrett) to one (Gorsuch), so the agreement of the three liberal justices provides the Chief Justice seven votes for his resolution.

The Chief determines that the appropriate remedy is to hold unenforceable the federal statute that prevents the PTO Director from reviewing PTAB decisions on his own and to remand the matter to him to decide whether to rehear the challenged decision.

In a very interesting opinion, Gorsuch objects to the Chief’s severability analysis. Congress hasn’t spoken to the various remedial options that are available, he observes, so the Court should simply set aside the PTAB decision in this case and leave it to Congress to decide what broader fix is warranted.