Separation Of Powers Cases

Separation of Powers is a fundamental legal doctrine that is cited in more than 26,000 federal decisions and more than 45,000 state cases. It is somewhat unique to the framework established by the U.S. Constitution, state constitutions, and even the common law.

A total of 895 decisions by the U.S. Supreme Court (as of Oct. 23, 2022) expressly mention separation of powers doctrine. Two of those decisions concern the PTAB:

• United States v. Arthrex, 141 S. Ct. 1970, 1988 (2021) ("The Constitution therefore forbids the enforcement of statutory restrictions on the Director that insulate the decisions of APJs from his direction and supervision.") - see concurrence (and partial dissent) by Justice Gorsuch.
• Cuozzo Speed Techs. v. Lee, 579 U.S. 261, 276, 136 S. Ct. 2131, 2142 (2016) ("The statute, however, contains a provision that grants the Patent Office authority to issue “regulations . . . establishing and governing inter partes review under this chapter.” 35 U.S.C. §316(a)(4). The Court of Appeals held that this statute gives the Patent Office the legal authority to issue its broadest reasonable construction regulation. We agree.") - but see concurrence by Justice Thomas questioning whether Chevron deference satisfies separation of powers doctrine.