Why Congress has to hold federal agencies accountable for executive overreach | Opinion
The separation of powers is a defining characteristic of our democracy. The branches are co-equal, with checks and balances but without encroachment — when unelected bureaucrats exceed their authority, a “fourth” branch of government emerges and freedoms are put at risk. No matter the challenge or the divisiveness of an issue, Congress makes the law. Allowing otherwise threatens the constitutional balance.
The House of Representatives was designed, among other things, to check executive branch overreach. This includes holding large and influential federal agencies accountable. Commonsense regulations and federal agencies to implement them are necessary, but agencies must only exercise powers granted by elected lawmakers and not appropriate powers unto themselves.
A recent lawsuit on appeal to the Federal Circuit, Apple Inc. v. Vidal, hinges on a textbook example of the administrative state exceeding constitutional boundaries. This case questions whether the U.S. Patent and Trademark Office overstepped its authority when changing patent quality review practices. The outcome will either establish much-needed limits on agency power or signal that unelected officials can indeed rewrite laws with impunity.
In 2011, Congress passed the America Invents Act to modernize the U.S. patent system and create a new review process for previously granted patents. Inter partes review is necessary because, despite U.S. Patent and Trademark Office examiners’ best efforts, they sometimes issue patents for “inventions” which are not new or issue overly broad patents, which could apply to whole technology categories.
Low-quality patents in circulation cause confusion and inefficiencies. Most often this materializes in wasteful patent infringement lawsuits. Inter partes review allows the public to challenge patents so U.S. Patent and Trademark Office experts can efficiently correct the agency’s own mistakes, instead of forcing patent conflicts into the courts.
Apple Inc. v. Vidal stems from the former U.S. Patent and Trademark Office director issuing a precedential rule in 2020 stating the office would deny inter partes review if there was a related lawsuit. This conflicts with Congress creating inter partes review as a better alternative to lawsuits. I know; I was there and voted for the America Invents Act. Instead of sticking to the law, the former U.S. Patent and Trademark Office director funneled disputes away from the agency and into the courts.
When you specialize in government oversight, vague terms like “precedential rule” catch your attention. They sound harmless, but in fights over the separation of powers, they are Trojan horses. Here, “precedential rule” meant bureaucrats rewriting the law.
Agency officials should use their expertise to best implement laws, but only within the confines of the statute with the letter and spirit intact. When Congress gives a little leeway, agencies tend to take a mile. Such is the essence of power, which is why our framers placed checks on it. Congress also passed laws requiring agencies to follow steps when making their own rules. Agencies must comply with a formal process, which mandates advance notice and allows the public to comment before any new regulation takes effect.
Advanced manufacturing, health-care, software and semiconductor companies filed this appeal because the U.S. Patent and Trademark Office director did not follow the congressionally-mandated rulemaking process. The former director changed the law and did so unilaterally, without notice or the opportunity for stakeholder and public input.
If the U.S. Patent and Trademark Office’s rule stands, it will signal that if Congress gives agencies any discretion in implementing laws, agencies have permission to change the law entirely. Agency power would continue expanding unchecked, and if Congress wants to limit it, lawmakers would be forced to specify agencies have no discretion whatsoever, leading to less effective governance.
We should all closely watch Apple Inc. v. Vidal. It may offer necessary precedent to protect against future administrative state abuses and government overreach.
Gowdy represented South Carolina’s 4th District in the U.S. House of Representatives from 2011 to 2019 and served as chairman of the Committee on Oversight and Government Reform during the 115th Congress.
