When the Supreme Court’s members find that the most plausible reading of a law would make it unconstitutional, what should the Court do? From our vantage, that is the most interesting and important question that emerges from the Court’s decision in United States v. Arthrex, 141 S. Ct. 1970 (2021), and has implications for the way that courts review challenges to agency structures in other contexts as well. Arthrex involved a challenge to a decision of the Patent Trial and Appeal Board (PTAB), an entity within the Department of Commerce that is composed of more than 200 Administrative Patent Judges (APJs), a Director and Deputy Director of the Patent and Trademark Office (PTO), and the PTO’s Commissioner for Patents and Commissioner for Trademarks. No provision of the America Invents Act (AIA), which created the process involved in Arthrex, provided for review of PTAB decisions by the Director or another principal officer. As a result, the Court held that APJs exercised unreviewable discretionary authority, which made them principal officers of the United States whose appointment constitutionally must be made by the President with confirmation by the Senate. Instead of holding the challenged PTAB decision to be unlawful, however, the Court held that the statutory provisions that effectively precluded review of PTAB decisions by the Director should be severed from the law as unconstitutional. That step, in the Court’s view, transformed APJs into inferior officers subject to the Director’s control. In other words, the remedy for an unconstitutional administrative decision, was to make it constitutional by revising the law. With that remedy in place, Arthrex won the battle but lost the war over the validity of its patent In our view, Arthrex’s remedy is at odds with generally accepted, and well-grounded, approaches to dealing with separation of powers problems. Because reading the statute to allow the Director to review PTAB decisions was not a plausible construction of the statute governing the process, the Court should have struck down the PTAB process and left it to Congress to decide what steps to take in response. Despite thoughtful arguments about the need to avoid holding laws unconstitutional, the better course—and the course that is more faithful to the division of responsibility between Congress and the courts—is to set aside actions taken under an unconstitutional structure and let the political branches sort out how to go forward with a constitutional approach. Put aside the scissors and paste; limit judicial decisionmaking to interpreting and applying the law. [ABSTRACT FROM AUTHOR]