I see Thomas’ point, although I’m note sure Patent Judges should be the final word.
Haven’t read the decision yet, but Thomas is rarely wrong.
From Gorsuch’s CONCURRENCE:
“Nor does the Court pause to consider whether venturing further down this remedial path today risks undermining the very separation of powers its merits decision purports to vindicate. While the Court’s merits analysis ensures that executive power properly resides in the Executive Branch, its severability analysis seemingly confers legislative power to the Judiciary—endowing us with the authority to make a raw policy choice between competing lawful options. No doubt, if Congress is dissatisfied with the choice the Court makes on its behalf today, it can always reenter the field and revise our judgment. But doesn’t that just underscore the legislative nature of the Court’s judgment?”
Thomas:
“Today’s majority leaves that tried-and-true approach behind. It never expressly tells us whether administrative patent judges are inferior officers or principal. And the Court never tells us whether the appointment process complies with the Constitution. The closest the Court comes is to say that “the source of the constitutional violation” is not “the appointment of [administrative patent judges] by the Secretary.” Ante, at 23 (plurality opinion). Under our precedent and the Constitution’s text, that should resolve the suit.....
Beyond those questions, the majority’s nebulous approach also leaves open the question of how much principal officer power” someone must wield before he becomes a principal officer. What happens if an officer typically engages in normal inferior-officer work but also has several principal-officer duties? Is he a hybrid officer, properly appointed for four days a week and improperly appointed for the fifth? And whatever test the Court ultimately comes up with to sort through these difficult questions, are we sure it is encapsulated in the two words “inferior officer”?....
I would not be so quick to stare deeply into the penumbras of the Clauses to identify new structural limitations....
The Court today draws a new line dividing inferior officers from principal ones. The fact that this line places administrative patent judges on the side of Ambassadors, Supreme Court Justices, and department heads suggests that something is not quite right....”