An essential premise of American constitutional theory is that the separation of powers among the three branches of government—as championed by James Madison in Federalist 51 and Alexander Hamilton in Federalist 78—protects individual liberty and property. Both Madison and Hamilton knew that people do not put on angel's wings when they assume public office. Accordingly, as Justice Anthony Kennedy wrote in Boumediene v. Bush (2008), “The Framers' inherent distrust of governmental power was the driving force behind the constitutional plan that allocated powers among three independent branches”—none of which may encroach on the domain properly reserved for others. Although there are inevitable gray areas, the basic program is simple enough: Congress makes law through its legislative power; the President enforces the law through his executive power; and the courts resolve legal disputes through their judicial power.
The principle of separation of powers is now under a frontal assault in Oil States Energy Services, LLC v. Greene's Energy Group LLC, which will be argued before the Supreme Court on November 27. Oil States tests the ability of Congress to undermine the constitutional scheme through a system of inter partes review under the America Invents Act (AIA). The AIA is strongly opposed by independent inventors who protest that it “has suddenly and drastically increased the probability that a contested patent will be held invalid.” One source of their anxiety is that the AIA gives a political appointee, the Director of the United States Patent and Trademark Office, sole and unreviewable power to constitute trial panels that enjoy the power to issue a final written decision “canceling any claim of the patent finally determined to be unpatentable,” subject only to a limited appeal to the Federal Circuit Court of Appeals (the court that hears patent appeals).
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