This morning the Supreme Court granted certiorari in only two cases, Carr v. Saul and Davis v. Saul, which both raise the same question and will be consolidated for oral argument later this term. The question presented in both cases is whether a disability benefits claimant must raise an appointments-clause challenge to the appointment of an administrative law judge during the administrative proceedings on their claims to avoid waiving the claim.
Carr and Davis are added to a docket that is already rich with separation of powers cases concerning the appointment and removal of federal officers.
In U.S. v. Arthrex the Court will consider whether administrative patent judges in the U.S. Patent and Trademark Office (PTO) are “principal officers” who must be appointed by the President with the advice and consent of the Senate and, if so, whether the lower court’s decision to eliminate regulatory restrictions on the removal of patent judges cured any constitutional defect in their appointment. And, in Collins v. Mnuchin, the Court will consider the constitutionality of the Federal Housing Finance Agency’s structure—which parallels that of the Consumer Financial Protection Bureau—and the removability of the FHFA’s Acting Director.
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