Thanks for pointing out this case, I am just starting to read it, the remedy for the unconstitionally insulated ptab was: "The appropriate remedy is a remand to the Acting Director to decide
whether to rehear the petition filed by Smith & Nephew." We may get that same remedy under the Severability Analysis of Collins, and we know what MC thinks about the nws!
Question though: If the SCOTUS concludes 1st that the nws was ultra vires and void pursuant to the APA, do they even need to decide what the appropriate remedy is for acts by an unconstitionally insulated FHFA Director? Are there other cases working their way up the Federal Courts ladder that ask for a different remedy other than the nws?
It seems that the dissent believes that the ALJ are inferior officers and therefore under the Appointments Clause are not needed to be directly accountable to the POTUS (do you remember Justice Kagan telling David Thompson that, "No that's the Appointments Clause"?)
"JUSTICE THOMAS, with whom JUSTICE BREYER, JUSTICE
SOTOMAYOR, and JUSTICE KAGAN join as to Parts I and II,
dissenting.
For the very first time, this Court holds that Congress
violated the Constitution by vesting the appointment of a
federal officer in the head of a department. Just who are
these “principal” officers that Congress unsuccessfully
sought to smuggle into the Executive Branch without Sen-
ate confirmation? About 250 administrative patent judges
who sit at the bottom of an organizational chart, nestled
under at least two levels of authority. Neither our prece-
dent nor the original understanding of the Appointments
Clause requires Senate confirmation of officers inferior to
not one, but two officers below the President."
