The Chief Judge of the United States Tax Court, an Article I
court composed of 19 judges appointed by the President, is
authorized to appoint special trial judges, 26 U.S.C. § 7443A(a),
and to assign to them certain specified proceedings, §§
7443A(b)(1), (2), and (3), and "any other proceeding which the
chief judge may designate," § 7443A(b)(4). As to subsection (b)(4)
proceedings, the special trial judge may hear the case and prepare
proposed findings and an opinion, but the actual decision is
rendered by a Tax Court judge, § 7443A(c). When petitioners sought
review in the Tax Court of determinations of approximately $1.5
billion in federal income tax deficiencies, their cases were
assigned to a Tax Court judge, but were later reassigned, with
petitioners' consent, to a Special Trial Judge. His unfavorable
opinion was adopted by the Chief Judge as the opinion of the Tax
Court. The Court of Appeals affirmed, rejecting petitioners'
arguments that the assignment of complex cases to a special trial
judge was not authorized by § 7443A and that such assignment
violated the Appointments Clause of the Constitution, which,
inter alia, limits congressional discretion to vest the
appointment of "inferior Officers" to the President, the heads of
departments, and the courts of law.
Held:
1. Subsection (b)(4) authorizes the Chief Judge to assign any
Tax Court proceeding, regardless of complexity or amount in
controversy, to a special trial judge for hearing and preparation
of proposed findings and a written opinion. Its plain language
contains no limiting term restricting its reach to cases that are
minor, simple, or narrow; and neither the statute's structure nor
legislative history contradicts the broad sweep of this language.
Pp.
501 U. S.
873-877.
2. Section 7443A does not transgress the structure of separation
of powers embodied in the Appointments Clause. Pp.
501 U. S.
877-892.
(a) This is one of those rare cases in which the Court should
exercise its discretion to hear petitioners' challenge. That
challenge goes to the validity of the Tax Court proceeding that is
the basis for this litigation and, thus, is a nonjurisdictional
structural constitutional objection that
Page 501 U. S. 869
may be considered, even though petitioners consented to the
assignment.
See Glidden Co. v. Zdanok, 370 U.
S. 530,
370 U. S.
535-536. Pp.
501 U. S.
878-880.
(b) A special trial judge is an "inferior Office[r]" whose
appointment must conform to the Appointments Clause. Such a judge
acts as an inferior officer who exercises independent authority in
cases governed by subsections (b)(1), (2), and (3). The fact that
in subsection (b)(4) cases he performs duties that may be performed
by an employee not subject to the Appointments Clause does not
transform his status. Pp.
501 U. S.
880-882.
(c) The Clause reflects the Framers' conclusion that widely
distributed appointment power subverts democratic government. Thus,
such power can be vested in the Tax Court's Chief Judge only if
that court falls within one of the three repositories the Clause
specifies. Clearly Congress did not intend to grant the President
the power to appoint special trial judges. And the term
"Departmen[t]" refers only to executive divisions like
Cabinet-level departments.
United States v. Germaine,
99 U. S. 508,
99 U. S.
510-511. Treating the Tax Court as a "Department" would
defy the purpose of the Clause, the meaning of the Constitution's
text, and the clear intent of Congress to transform that court from
an executive agency into an Article I court. Pp.
501 U. S.
882-888.
(d) An Article I court, which exercises judicial power, can be a
"Cour[t] of Law" within the meaning of the Appointments Clause. The
reference to "Courts of Law" cannot be limited to Article III
courts merely because they are the only courts the Constitution
mentions. Congress has wide discretion to assign the task of
adjudication to legislative tribunals,
see, e.g., 26 U.
S. v. Canter, 1 Pet. 511,
26 U. S. 546;
and an Article I court cannot exercise judicial power and not be
one of the "Courts of Law."
Buckley v. Valeo, 424 U. S.
1, distinguished. To hold otherwise would also undermine
Congress' understanding that Article I courts can be given the
power to appoint.
See, e.g., 38 U. S. 13
Pet. 230. Pp.
501 U. S.
888-890.
(e) The Tax Court is a "Cour[t] of Law" within the Clause's
meaning. It exercises judicial power to the exclusion of any other
function; its function and role closely resemble those of the
federal district courts; and it is independent of the Executive and
Legislative Branches, in that its decisions are appealable in the
same manner as those of the district courts. Pp.
501 U. S.
890-892.
904 F.2d 1011, affirmed.
BLACKMUN, J., delivered the opinion for a unanimous Court with
respect to Parts I, II, and III, and the opinion of the Court with
respect to Part IV, in which REHNQUIST, C.J., and WHITE, MARSHALL,
and STEVENS, JJ., joined. SCALIA, J., filed an opinion concurring
in part and concurring
Page 501 U. S. 870
in the judgment, in which O'CONNOR, KENNEDY, and SOUTER, JJ.,
joined,
post, p.
501 U.S.
892.
JUSTICE BLACKMUN delivered the opinion of the Court.
The leading Framers of our Constitution viewed the principle of
separation of powers as the central guarantee of a just government.
James Madison put it this way: "No political truth is certainly of
greater intrinsic value or is stamped with the authority of more
enlightened patrons of liberty." The Federalist No. 47, p. 324 (J.
Cooke ed.1961). In this litigation, we must decide whether the
authority that Congress has granted the Chief Judge of the United
States Tax Court to appoint special trial judges transgresses our
structure of separated powers. We answer that inquiry in the
negative.
I
By the Tax Reform Act of 1969, § 951, 83 Stat. 730, 26 U.S.C. §
7441, Congress "established, under article I of the Constitution of
the United States, a court of record to be known as the United
States Tax Court." It also empowered the Tax Court to appoint
commissioners to assist its judges. § 958, 83 Stat. 734. By the Tax
Reform Act of 1984, § 464(a), 98 Stat. 824, the title
"commissioner" was changed to "special trial judge." By § 463(a) of
that Act, 98 Stat. 824, and by § 1556(a) of the Tax Reform Act of
1986, 100 Stat. 2754, Congress authorized the Chief Judge of the
Tax Court to appoint and assign these special trial judges to hear
certain specifically
Page 501 U. S. 871
described proceedings and "any other proceeding which the chief
judge may designate." 26 U.S.C. §§ 7443A(a) and (b). The Tax Court
presently consists of 19 judges appointed to 15-year terms by the
President, by and with the advice and consent of the Senate. §§
7443(a), (b), and (e).
II
This complex litigation began with determinations of federal
income tax deficiencies against the several petitioners, who had
deducted on their returns approximately $1.5 billion in losses
allegedly realized in a tax shelter scheme. [
Footnote 1] When petitioners sought review in the
Tax Court in March, 1982, their cases were assigned to Tax Court
Judge Richard C. Wilbur. Trial began in 1984. Judge Wilbur became
ill in November, 1985, and the Chief Judge of the Tax Court
assigned Special Trial Judge Carleton D. Powell to preside over the
trial as evidentiary referee, with the proceedings videotaped. App.
2. When Judge Wilbur's illness forced his retirement and assumption
of senior status effective April 1, 1986, the cases were
reassigned, with petitioners' specified consent, Brief for
Petitioners 8; Tr. of Oral Arg. 10, to Judge Powell for preparation
of written findings and an opinion. App. 8, 12-14. The judge
concluded that petitioners' tax shelter scheme consisted of sham
transactions and that petitioners
Page 501 U. S. 872
owed additional taxes. The Chief Judge adopted Judge Powell's
opinion as that of the Tax Court. 89 T.C. 849 (1987). [
Footnote 2]
Petitioners took an appeal to the Court of Appeals for the Fifth
Circuit. It affirmed. 904 F.2d 1011 (1990). Petitioners did not
argue to the Court of Appeals, nor do they argue here, that the Tax
Court is not a legitimate body. Rather, they contended that the
assignment of cases as complex as theirs to a special trial judge
was not authorized by § 7443A, and that this violated the
Appointments Clause of the Constitution, Art. II, § 2, cl. 2. The
Court of Appeals ruled that, because the question of the Special
Trial Judge's authority was, "in essence, an attack upon the
subject matter jurisdiction of the special trial judge, it may be
raised for the first time on appeal." 904 F.2d at 1015 (footnote
omitted). The court then went on to reject petitioners' claims on
the merits. It concluded that the Code authorized the Chief Judge
of the Tax Court to assign a special trial judge to hear
petitioners' cases, and that petitioners had waived any
constitutional challenge to this appointment by consenting to a
trial before Judge Powell.
Id. at 1015, n. 9.
Page 501 U. S. 873
We granted certiorari, 498 U.S. 1066 (1991), to resolve the
important questions the litigation raises about the Constitution's
structural separation of powers.
III
Section 7443A(b) of the Internal Revenue Code specifically
authorizes the Chief Judge of the Tax Court to assign four
categories of cases to special trial judges: "(1) any declaratory
judgment proceeding," "(2) any proceeding under section 7463," "(3)
any proceeding" in which the deficiency or claimed overpayment does
not exceed $10,000, and "(4) any other proceeding which the chief
judge may designate." In the first three categories, the Chief
Judge may assign the special trial judge not only to hear and
report on a case, but also to decide it. § 7443A(c). In the fourth
category, the Chief Judge may authorize the special trial judge
only to hear the case and prepare proposed findings and an opinion.
The actual decision then is rendered by a regular judge of the Tax
Court.
Petitioners argue that adjudication by the Special Trial Judge
in this litigation exceeded the bounds of the statutory authority
that Congress has conferred upon the Tax Court. Despite what they
concede to be the "sweeping language" of subsection (b)(4), Brief
for Petitioners 6, petitioners claim that Congress intended special
trial judges to preside over only the comparatively narrow and
minor matters covered by subsections (b)(1), (2), and (3).
The plain language of § 7443A(b)(4) surely authorizes the Chief
Judge's assignment of petitioners' cases to a special trial judge.
When we find the terms of a statute unambiguous, judicial inquiry
should be complete except in rare and exceptional circumstances.
Demarest v. Manspeaker, 498 U. S. 184,
498 U. S. 190
(1991). Subsection (b)(4) could not be more clear. It states that
the Chief Judge may assign "any other proceeding" to a special
trial judge for duties short of "mak[ing] the decision." The
subsection's text contains no
Page 501 U. S. 874
limiting term that restricts its reach to cases that are minor,
simple, or narrow, as petitioners urge. We have stated that courts
"are not at liberty to create an exception where Congress has
declined to do so."
Hallstrom v. Tillamook County,
493 U. S. 20,
493 U. S. 27
(1989).
Nothing in the legislative history contradicts the broad sweep
of subsection (b)(4)'s language. In proposing to authorize the
Chief Judge to assign "any other proceeding" to the special trial
judges, the Committee on Ways and Means stated that it intended "to
clarify" that any other proceeding could be assigned to special
trial judges "so long as a Tax Court judge must enter the
decision." H.R.Rep. No. 98432, pt. 2, p. 1568 (1984). The Report
goes on to explain:
"A technical change is made to allow the Chief Judge of the Tax
Court to assign any proceeding to a special trial judge for hearing
and to write proposed opinions, subject to review and final
decision by a Tax Court judge, regardless of the amount in issue.
However, special trial judges will not be authorized to enter
decisions in this latter category of cases."
Ibid. The Conference Report "follows the House Bill,"
H.R.Conf.Rep. No. 98-861, p. 1127 (1984), and, like the House
Report indicates that Congress knowingly removed the jurisdictional
requirement of a maximum amount in dispute in order to expand the
authority of special trial judges to hear, but not to decide, cases
covered by subsection (b)(4).
Petitioners appear not to appreciate the distinction between the
special trial judges' authority to hear cases and prepare proposed
findings and opinions under subsection (b)(4) and their lack of
authority actually to decide those cases, which is reserved
exclusively for judges of the Tax Court. [
Footnote 3] Because they do not distinguish between
hearing a
Page 501 U. S. 875
case and deciding it, petitioners advance two arguments that, it
seems to us, miss the mark.
Petitioners first argue that the legislative history notes that
the amendment to what is now § 7443A was merely a "technical"
change, and cannot be read to transfer dispositive power to special
trial judges. Petitioners are correct that the 1984 amendment
neither transferred decisional power nor altered the substantive
duties of the special trial judges. Congress has limited the
authority of special trial judges to enter decisions to the narrow
category of cases set forth in subsections (b)(1), (2), and (3).
The scope of the special trial judges' authority to hear and decide
cases, however, has little, if any, relevance to the category of
cases that the special trial judges may hear but not decide.
Since the enactment of the Revenue Act of 1943, § 503, 58 Stat.
72, the Tax Court has possessed authority to appoint commissioners
to assist it in particular cases. Special trial judges and their
predecessors, the commissioners, have been authorized for almost a
half century to hear any case before the Tax Court in the
discretion of its Chief Judge. In practice, before 1984, special
trial judges often heard and reported on large and complex cases.
Accordingly, when Congress adopted subsection (b)(4), it codified
the chief judge's discretion to assign cases like petitioners' to a
special trial judge for hearing and preparation of a report. The
1984 amendment was "technical" in light of the historical
development of the special trial judges' role; the technical nature
of the amendment, however, does not alter the wide-ranging effect
of the statutory text's grant of authority to the Chief Judge to
assign "any other proceeding" within the Tax Court's jurisdiction
to a special trial judge.
Page 501 U. S. 876
Petitioners also argue that the phrase "any other proceeding" is
a general grant of authority to fill unintended gaps left by
subsections (b)(1), (2), and (3). Reading subsection (b)(4) as a
catchall provision, petitioners argue that its meaning must be
limited to cases involving a small amount of money, because any
other interpretation would render the limitations imposed by
subsections (b)(1), (2), and (3) a nullity. In support of this
argument, petitioners rely on this Court's decision in
Gomez v.
United States, 490 U. S. 858
(1989).
We held in
Gomez that the Federal Magistrates Act's
general grant of authority allowing magistrates to "be assigned
such additional duties as are not inconsistent with the
Constitution and laws of the United States," 28 U.S.C. § 636(b)(3),
did not permit a magistrate to supervise juror
voir dire
in a felony trial over a defendant's objection. In so holding, we
explained:
"When a statute creates an office to which it assigns specific
duties, those duties outline the attributes of the office. Any
additional duties performed pursuant to a general authorization in
the statute reasonably should bear some relation to the specified
duties."
490 U.S. at
490 U. S. 864.
In the Magistrates Act, the list of specifically enumerated duties
followed the general grant of authority and provided the outlines
for the scope of the general grant. Unlike the Magistrates Act, §
7443A explicitly distinguishes between the categories of cases
enumerated in subsections (b)(1), (2), and (3), which are
declaratory judgment proceedings and cases involving $10,000 or
less, and the category of "any other proceeding" found in
subsection (b)(4).
The lesser authority exercised by special trial judges in
proceedings under subsection (b)(4) also prevents that subsection
from serving as a grant of general authority to fill any gaps left
in the three preceding subsections. Special trial judges may hear
and decide declaratory judgment proceedings and the limited amount
cases. A special trial judge,
Page 501 U. S. 877
however, cannot render the final decision of the Tax Court in a
case assigned under subsection (b)(4). If the cases that special
trial judges may hear, but not decide, under subsection (b)(4) are
limited to the same kind of cases they could hear and decide under
the three preceding subsections, then subsection (b)(4) would be
superfluous. Our cases consistently have expressed "a deep
reluctance to interpret a statutory provision so as to render
superfluous other provisions in the same enactment."
Pennsylvania Dept. of Public Welfare v. Davenport,
495 U. S. 552,
495 U. S. 562
(1990).
See also Automobile Workers v. Johnson Controls,
Inc., 499 U. S. 187,
499 U. S. 201
(1991). The scope of subsection (b)(4) must be greater than that of
subsections (b)(1), (2), and (3).
We conclude that subsection (b)(4) permits the Chief Judge to
assign any Tax Court proceeding, regardless of complexity or
amount, to a special trial judge for hearing and the preparation of
proposed findings and written opinion. The statute's language,
structure, and history permit no other conclusion.
IV
This construction of § 7443A raises a constitutional issue to
which we now must turn. Petitioners submit that, if subsection
(b)(4) permits a special trial judge to preside over the trial of
any Tax Court case, then the statute violates the Appointments
Clause of the Constitution, Art. II, § 2, cl. 2. According to
petitioners, a special trial judge is an "Office[r]" of the United
States who must be appointed in compliance with the Clause. The
Clause reads:
"He [the President] . . . shall nominate, and by and with the
Advice and Consent of the Senate, shall appoint Ambassadors, other
public Ministers and Consuls, Judges of the supreme Court, and all
other Officers of the United States, whose Appointments are not
herein otherwise provided for, and which shall be established by
Law; but the Congress may by Law vest the Appointment of such
inferior Officers, as they think proper, in
Page 501 U. S. 878
the President alone, in the Courts of Law, or in the Heads of
Departments."
Thus, the Constitution limits congressional discretion to vest
power to appoint "inferior Officers" to three sources: "the
President alone," "the Heads of Departments," and "the Courts of
Law." Petitioners argue that a special trial judge is an "inferior
Office[r]," and also contend that the Chief Judge of the Tax Court
does not fall within any of the Constitution's three repositories
of the appointment power.
A
We first address the Commissioner's argument that petitioners
have waived their right to challenge the constitutional propriety
of § 7443A. The Commissioner contends that petitioners waived this
right not only by failing to raise a timely objection to the
assignment of their cases to a special trial judge, but also by
consenting to the assignment.
The roots of the separation of powers concept embedded in the
Appointments Clause are structural and political. Our separation of
powers jurisprudence generally focuses on the danger of one
branch's aggrandizing its power at the expense of another branch.
See Mistretta v. United States, 488 U.
S. 361,
488 U. S. 382
(1989). The Appointments Clause not only guards against this
encroachment, but also preserves another aspect of the
Constitution's structural integrity by preventing the diffusion of
the appointment power.
The Commissioner correctly notes that petitioners gave their
consent to trial before the Special Trial Judge. This Court in the
past, however, has exercised its discretion to consider
nonjurisdictional claims that had not been raised below.
See
Grosso v. United States, 390 U. S. 62,
390 U. S. 71-72
(1968);
Glidden Co. v. Zdanok, 370 U.
S. 530,
370 U. S.
535-536 (1962);
Hormel v. Helvering,
312 U. S. 552,
312 U. S.
556-560 (1941).
Glidden expressly included
Appointments Clause objections to judicial officers in the category
of nonjurisdictional structural
Page 501 U. S. 879
constitutional objections that could be considered on appeal
whether or not they were ruled upon below:
"And in
Lamar v. United States, 241 U. S.
103,
241 U. S. 117-118, the claim
that an intercircuit assignment . . . usurped the presidential
appointing power under Art. II, § 2, was heard here and determined
upon its merits, despite the fact that it had not been raised in
the District Court or in the Court of Appeals or even in this Court
until the filing of a supplemental brief upon a second request for
review."
Glidden, 370 U.S. at
370 U. S. 536
(Harlan, J., announcing the judgment of the Court).
Like the Court in
Glidden, we are faced with a
constitutional challenge that is neither frivolous nor
disingenuous. The alleged defect in the appointment of the Special
Trial Judge goes to the validity of the Tax Court proceeding that
is the basis for this litigation. It is true that, as a general
matter, a litigant must raise all issues and objections at trial.
But the disruption to sound appellate process entailed by
entertaining objections not raised below does not always overcome
what Justice Harlan called "the strong interest of the federal
judiciary in maintaining the constitutional plan of separation of
powers."
Ibid. We conclude that this is one of those rare
cases in which we should exercise our discretion to hear
petitioners' challenge to the constitutional authority of the
Special Trial Judge.
In reaching this conclusion, we note that we are not persuaded
by the Commissioner's request that this Court defer to the
Executive Branch's decision that there has been no legislative
encroachment on presidential prerogatives under the Appointments
Clause in connection with § 7443A. According to the Commissioner,
the structural interests implicated in this litigation are those of
the Executive Branch, which can be expected to look out for itself.
It is claimed, accordingly, that there is no need for this Court to
be concerned about protecting the separation of powers interests at
stake here.
Page 501 U. S. 880
We are not persuaded by this approach. The Commissioner, we
believe, is in error when he assumes that the interest at stake is
the Executive's own appointment power. The structural principles
embodied in the Appointments Clause do not speak only, or even
primarily, of Executive prerogatives simply because they are
located in Article II. The Appointments Clause prevents Congress
from dispensing power too freely; it limits the universe of
eligible recipients of the power to appoint. Because it articulates
a limiting principle, the Appointments Clause does not always serve
the Executive's interests. For example, the Clause forbids Congress
from granting the appointment power to inappropriate members of the
Executive Branch. Neither Congress nor the Executive can agree to
waive this structural protection. "The assent of the Executive to a
bill which contains a provision contrary to the Constitution does
not shield it from judicial review."
INS v. Chadha,
462 U. S. 919,
462 U. S. 942,
n. 13 (1983). The structural interests protected by the
Appointments Clause are not those of any one branch of Government,
but of the entire Republic.
B
We turn to another preliminary issue in petitioners'
Appointments Clause challenge. Petitioners argue that a special
trial judge is an "inferior Office[r]" of the United States. If we
disagree, and conclude that a special trial judge is only an
employee, petitioners' challenge fails, for such "lesser
functionaries" need not be selected in compliance with the strict
requirements of Article II.
Buckley v. Valeo, 424 U. S.
1,
424 U. S. 126,
n. 162 (1976).
The Commissioner, in contrast to petitioners, argues that a
special trial judge assigned under § 7443A(b)(4) acts only as an
aide to the Tax Court judge responsible for deciding the case. The
special trial judge, as the Commissioner characterizes his work,
does no more than assist the Tax Court judge in taking the evidence
and preparing the proposed findings and opinion. Thus, the
Commissioner concludes, special
Page 501 U. S. 881
trial judges acting pursuant to § 7443A(b)(4) are employees,
rather than "Officers of the United States."
"[A]ny appointee exercising significant authority pursuant to
the laws of the United States is an 'Officer of the United States,'
and must, therefore, be appointed in the manner prescribed by § 2,
cl. 2, of [Article II]."
Buckley, 424 U.S. at
424 U. S. 126.
The two courts that have addressed the issue have held that special
trial judges are "inferior Officers." The Tax Court so concluded in
First Western Govt. Securities, Inc. v. Commissioner, 94
T.C. 549, 557-559 (1990), and the Court of Appeals for the Second
Circuit in
Samuels, Kramer & Co. v. Commissioner, 930
F.2d 975, 985 (1991), agreed. Both courts considered the degree of
authority exercised by the special trial judges to be so
"significant" that it was inconsistent with the classifications of
"lesser functionaries" or employees.
Cf. Go-Bart Importing Co.
v. United States, 282 U. S. 344,
282 U. S.
352-353 (1931) (United States commissioners are inferior
officers). We agree with the Tax Court and the Second Circuit that
a special trial judge is an "inferior Office[r]" whose appointment
must conform to the Appointments Clause.
The Commissioner reasons that special trial judges may be deemed
employees in subsection (b)(4) cases because they lack authority to
enter a final decision. But this argument ignores the significance
of the duties and discretion that special trial judges possess. The
office of special trial judge is "established by Law," Art. II, §
2, cl. 2, and the duties, salary, and means of appointment for that
office are specified by statute.
See Burnap v. United
States, 252 U. S. 512,
252 U. S.
516-517 (1920);
United States v. Germaine,
99 U. S. 508,
99 U. S.
511-512 (1879). These characteristics distinguish
special trial judges from special masters, who are hired by Article
III courts on a temporary, episodic basis, whose positions are not
established by law, and whose duties and functions are not
delineated in a statute. Furthermore, special trial judges perform
more than ministerial tasks. They take testimony,
Page 501 U. S. 882
conduct trials, rule on the admissibility of evidence, and have
the power to enforce compliance with discovery orders. In the
course of carrying out these important functions, the special trial
judges exercise significant discretion.
Even if the duties of special trial judges under subsection
(b)(4) were not as significant as we and the two courts have found
them to be, our conclusion would be unchanged. Under §§
7443A(b)(1), (2), and (3), and (c), the Chief Judge may assign
special trial judges to render the decisions of the Tax Court in
declaratory judgment proceedings and limited amount tax cases. The
Commissioner concedes that, in cases governed by subsections
(b)(1), (2), and (3), special trial judges act as inferior officers
who exercise independent authority. But the Commissioner urges that
petitioners may not rely on the extensive power wielded by the
special trial judges in declaratory judgment proceedings and
limited amount tax cases, because petitioners lack standing to
assert the rights of taxpayers whose cases are assigned to special
trial judges under subsections (b)(1), (2), and (3).
This standing argument seems to us to be beside the point
Special trial judges are not inferior officers for purposes of some
of their duties under § 7443A, but mere employees with respect to
other responsibilities. The fact that an inferior officer on
occasion performs duties that may be performed by an employee not
subject to the Appointments Clause does not transform his status
under the Constitution. If a special trial judge is an inferior
officer for purposes of subsections (b)(1), (2), and (3), he is an
inferior officer within the meaning of the Appointments Clause, and
he must be properly appointed.
C
Having concluded that the special trial judges are "inferior
Officers," we consider the substantive aspect of petitioners'
Appointments Clause challenge. The principle of separation of
powers is embedded in the Appointments Clause. Its relevant
language bears repeating:
"[T]he Congress may by
Page 501 U. S. 883
Law vest the Appointment of such inferior Officers, as they
think proper, in the President alone, in the Courts of Law, or in
the Heads of Departments."
Congress clearly vested the Chief Judge of the Tax Court with
the power to appoint special trial judges. An important fact about
the appointment in this case should not be overlooked. This case
does not involve an "interbranch" appointment.
Cf. Morrison v.
Olson, 487 U. S. 654,
487 U. S.
675-677 (1988). However one might classify the Chief
Judge of the Tax Court, there surely is nothing incongruous about
giving him the authority to appoint the clerk or an assistant judge
for that court.
See id. at
487 U. S. 676.
We do not consider here an appointment by some officer of inferior
officers in, for example, the Department of Commerce or Department
of State. The appointment in this case is so obviously appropriate
that petitioners' burden of persuading us that it violates the
Appointments Clause is indeed heavy.
Although petitioners bear a heavy burden, their challenge is a
serious one. Despite Congress' authority to create offices and to
provide for the method of appointment to those offices,
"Congress' power . . . is inevitably bounded by the express
language of Article II, cl. 2, and unless the method it provides
comports with the latter, the holders of those offices will not be
'Officers of the United States.'"
Buckley, 424 U.S. at
424 U. S.
138-139 (discussing Congress' power under the Necessary
and Proper Clause).
The "manipulation of official appointments" had long been one of
the American revolutionary generation's greatest grievances against
executive power,
see G. Wood, The Creation of The American
Republic 1776-1787, p. 79 (1969) (Wood), because "the power of
appointment to offices" was deemed "the most insidious and powerful
weapon of eighteenth century despotism."
Id. at 143. Those
who framed our Constitution addressed these concerns by carefully
husbanding the appointment power to limit its diffusion. Although
the debate on the Appointments Clause was brief, the
Page 501 U. S. 884
sparse record indicates the Framers' determination to limit the
distribution of the power of appointment. The Constitutional
Convention rejected Madison's complaint that the Appointments
Clause did "not go far enough if it be necessary at all": Madison
argued that "Superior Officers below Heads of Departments ought in
some cases to have the appointment of the lesser offices." 2
Records of the Federal Convention of 1787, pp. 627-628 (M. Farrand
rev.1966). The Framers understood, however, that, by limiting the
appointment power, they could ensure that those who wielded it were
accountable to political force and the will of the people. Thus,
the Clause bespeaks a principle of limitation by dividing the power
to appoint the principal federal officers -- ambassadors,
ministers, heads of departments, and judges -- between the
Executive and Legislative Branches.
See Buckley, 424 U.S.
at
424 U. S.
129-131. Even with respect to "inferior Officers," the
Clause allows Congress only limited authority to devolve
appointment power on the President, his heads of departments, and
the courts of law.
With this concern in mind, we repeat petitioners' central
challenge: can the Chief Judge of the Tax Court constitutionally be
vested by Congress with the power to appoint? The Appointments
Clause names the possible repositories for the appointment power.
It is beyond question in this litigation that Congress did not
intend to grant to the President the power to appoint special trial
judges. We therefore are left with three other possibilities.
First, as the Commissioner urges, the Tax Court could be treated as
a department with the Chief Judge as its head. Second, as the
amicus suggests, the Tax Court could be considered one of
"the Courts of Law." Third, we could agree with petitioners that
the Tax Court is neither a "Departmen[t]" nor a "Cour[t] of Law."
Should we agree with petitioners, it would follow that the
appointment power could not be vested in the Chief Judge of the Tax
Court.
Page 501 U. S. 885
We first consider the Commissioner's argument. According to the
Commissioner, the Tax Court is a department because, for 45 years
before Congress designated that court as a "court of record" under
Article I,
see § 7441, the body was an independent agency
(the predecessor Board of Tax Appeals) within the Executive Branch.
Furthermore, the Commissioner argues that § 7441 simply changed the
status of the Tax Court within that branch. It did not remove the
body to a different branch or change its substantive duties.
The Commissioner "readily" acknowledges that "the Tax Court's
fit within the Executive Branch may not be a perfect one." Brief
for Respondent 41. But he argues that the Tax Court must fall
within one of the three branches, and that the Executive Branch
provides its best home. The reasoning of the Commissioner may be
summarized as follows: (1) The Tax Court must fit into one of the
three branches; (2) it does not fit into either the Legislative
Branch or the Judicial Branch; (3) at one time it was an
independent agency, and therefore it must fit into the Executive
Branch; and (4) every component of the Executive Branch is a
department.
We cannot accept the Commissioner's assumption that every part
of the Executive Branch is a department, the head of which is
eligible to receive the appointment power. The Appointments Clause
prevents Congress from distributing power too widely by limiting
the actors in whom Congress may vest the power to appoint. The
Clause reflects our Framers' conclusion that widely distributed
appointment power subverts democratic government. Given the
inexorable presence of the administrative state, a holding that
every organ in the Executive Branch is a department would multiply
indefinitely the number of actors eligible to appoint. The Framers
recognized the dangers posed by an excessively diffuse appointment
power and rejected efforts to expand that power.
See Wood
79-80. So do we. For the Chief Judge of the Tax Court to qualify as
a "Hea[d] of [a] Departmen[t]," the Commissioner must demonstrate
not only that the Tax
Page 501 U. S. 886
Court is a part of the Executive Branch, but also that it is a
department.
We are not so persuaded. This Court for more than a century has
held that the term "Departmen[t]" refers only to "
a part or
division of the executive government, as the Department of State,
or of the Treasury,'" expressly "creat[ed]" and "giv[en] . . . the
name of a department" by Congress. Germaine, 99 U.S. at
99 U. S.
510-511. See also Burnap, 252 U.S. at
252 U. S. 515
("The term head of a Department means . . . the Secretary in charge
of a great division of the executive branch of the Government, like
the State, Treasury, and War, who is a member of the Cabinet").
Accordingly, the term "Heads of Departments" does not embrace
"inferior commissioners and bureau officers." Germaine, 99
U.S. at 99 U. S.
511.
Confining the term "Heads of Departments" in the Appointments
Clause to executive divisions like the Cabinet-level departments
constrains the distribution of the appointment power just as the
Commissioner's interpretation, in contrast, would diffuse it. The
Cabinet-level departments are limited in number, and easily
identified. Their heads are subject to the exercise of political
oversight, and share the President's accountability to the
people.
Such a limiting construction also ensures that we interpret that
term in the Appointments Clause consistently with its
interpretation in other constitutional provisions. In
Germaine,
see 99 U.S. at
99 U. S. 511,
this Court noted that the phrase "Heads of Departments" in the
Appointments Clause must be read in conjunction with the Opinion
Clause of Art. II, § 2, cl. 1. The Opinion Clause provides that the
President "may require the Opinion, in writing, of the principal
Officer in each of the Executive Departments," and
Germaine limited the meaning of "Executive Departmen[t]"
to the Cabinet members.
The phrase "executive departments" also appears in § 4 of the
Twenty-fifth Amendment, which empowers the Vice
Page 501 U. S. 887
President; together with a majority of the "principal officers
of the executive departments," to declare the President "unable to
discharge the powers and duties of his office." The Amendment was
ratified February 10, 1967, and its language, of course, does not
control our interpretation of a prior constitutional provision,
such as the Appointments Clause. [
Footnote 4] Nevertheless, it is instructive that the
hearings on the Twenty-fifth Amendment confirm that the term
"department" refers to Cabinet-level entities:
"[O]nly officials of Cabinet rank should participate in the
decision as to whether presidential inability exists. . . . The
intent . . . is that the Presidential appointees who direct the 10
executive departments named in 5 U.S.C. 1 [now codified as § 101],
or any executive department established in the future, generally
considered to comprise the President's Cabinet, would participate .
. . in determining inability."
H.R.Rep. No. 203, 89th Cong., 1st Sess., 3 (1965).
Even if we were not persuaded that the Commissioner's view
threatened to diffuse the appointment power and was contrary to the
meaning of "Departmen[t]" in the Constitution, we still could not
accept his treatment of the intent of Congress, which enacted
legislation in 1969 with the express purpose of "making the Tax
Court an Article I court, rather than an executive agency." S.Rep.
No. 91-552, p. 303 (1969). Congress deemed it "anomalous to
continue to classify"
Page 501 U. S. 888
the Tax Court with executive agencies,
id. at 302, and
questioned whether it was "appropriate for one executive agency
[the pre-1969 tribunal] to be sitting in judgment on the
determinations of another executive agency [the IRS]."
Ibid.
Treating the Tax Court as a "Department" and its chief judge as
its "Hea[d]" would defy the purpose of the Appointments Clause, the
meaning of the Constitution's text, and the clear intent of
Congress to transform the Tax Court into an Article I legislative
court. The Tax Court is not a "Departmen[t]."
Having so concluded, we now must determine whether it is one of
the "Courts of Law," as
amicus suggests. Petitioners and
the Commissioner both take the position that the Tax Court cannot
be a "Cour[t] of Law" within the meaning of the Appointments Clause
because, they say, that term is limited to Article III courts.
[
Footnote 5]
The text of the Clause does not limit the "Courts of Law" to
those courts established under Article III of the Constitution. The
Appointments Clause does not provide that Congress can vest
appointment power only in "one supreme Court" and other courts
established under Article III, or only in tribunals that exercise
broad common law jurisdiction. Petitioners argue that Article II's
reference to the "Courts of Law" must be limited to Article III
courts because Article III courts are the only courts mentioned in
the Constitution. It of course is true that the Constitution
"nowhere makes reference to
legislative courts.'" See
Glidden, 370 U.S. at 370 U. S. 543.
But petitioners' argument fails nevertheless. We
Page 501 U. S. 889
agree with petitioners that the Constitution's terms are
illuminated by their cognate provisions. This analytic method
contributed to our conclusion that the Tax Court could not be a
department. Petitioners, however, underestimate the importance of
this Court's time-honored reading of the Constitution as giving
Congress wide discretion to assign the task of adjudication in
cases arising under federal law to legislative tribunals.
See,
e.g., 26 U. S. v.
Canter, 1 Pet. 511,
26 U. S. 546
(1828) (the judicial power of the United States is not limited to
the judicial power defined under Article III, and may be exercised
by legislative courts);
Williams v. United States,
289 U. S. 553,
289 U. S.
565-567 (1933) (same).
Our cases involving non-Article III tribunals have held that
these courts exercise the judicial power of the United States. In
both
Canter and
Williams, this Court rejected
arguments similar to the literalistic one now advanced by
petitioners, that only Article III courts could exercise the
judicial power because the term "judicial Power" appears only in
Article III. In
Williams, this Court explained that the
power exercised by some non-Article III tribunals is judicial
power:
"The Court of Claims . . . undoubtedly . . . exercises judicial
power, but the question still remains -- and is the vital question
-- whether it is the judicial power defined by Art. III of the
Constitution."
"That judicial power apart from that article may be conferred by
Congress upon legislative courts . . . is plainly apparent from the
opinion of Chief Justice Marshall in
American Insurance Co. v.
Canter . . . dealing with the territorial courts. . . . [T]he
legislative courts possess and exercise judicial power . . . ,
although not conferred in virtue of the third article of the
Constitution."
289 U.S. at
289 U. S.
565-566. We cannot hold that an Article I court, such as
the Court of Claims in
Williams or the Territorial Court
of Florida in
Page 501 U. S. 890
Canter, can exercise the judicial power of the United
States, and yet cannot be one of the "Courts of Law."
Nothing in
Buckley v. Valeo contradicts this
conclusion. While this Court in
Buckley paraphrased the
Appointments Clause to allow the appointment of inferior officers
"by the President alone, by the heads of departments, or by the
Judiciary," 424 U.S. at
424 U. S. 132,
we did not hold that "Courts of Law" consist only of the Article
III judiciary. The appointment authority of the "Courts of Law" was
not before this Court in
Buckley. Instead, we were
concerned with whether the appointment of Federal Elections
Commissioners by Congress was constitutional under the Appointments
Clause.
The narrow construction urged by petitioners and the
Commissioner also would undermine longstanding practice. "[F]rom
the earliest days of the Republic,"
see Northern Pipeline
Constr. Co. v. Marathon Pipe Line Co., 458 U. S.
50,
458 U. S. 64
(1982), Congress provided for the creation of legislative courts
and authorized those courts to appoint clerks, who were inferior
officers.
See, e.g., 38 U. S. 13
Pet. 230 (1839). Congress' consistent interpretation of the
Appointments Clause evinces a clear congressional understanding
that Article I courts could be given the power to appoint. Because
"
traditional ways of conducting government . . . give meaning'
to the Constitution," Mistretta, 488 U.S. at 488 U. S. 401,
quoting Youngstown Sheet & Tube Co. v. Sawyer,
343 U. S. 579,
343 U. S. 610
(1952) (concurring opinion), this longstanding interpretation
provides evidence that Article I courts are not precluded from
being "Courts of Law" within the meaning of the Appointments
Clause.
Having concluded that an Article I court, which exercises
judicial power, can be a "Cour[t] of Law" within the meaning of the
Appointments Clause, we now examine the Tax Court's functions to
define its constitutional status and its role in the constitutional
scheme.
See Williams, 289 U.S. at
289 U. S.
563-567. The Tax Court exercises judicial, rather
than
Page 501 U. S. 891
executive, legislative, or administrative, power. It was
established by Congress to interpret and apply the Internal Revenue
Code in disputes between taxpayers and the Government. By resolving
these disputes, the court exercises a portion of the judicial power
of the United States.
The Tax Court exercises judicial power to the exclusion of any
other function. It is neither advocate nor rulemaker. As an
adjudicative body, it construes statutes passed by Congress and
regulations promulgated by the Internal Revenue Service. It does
not make political decisions.
The Tax Court's function and role in the federal judicial scheme
closely resemble those of the federal district courts, which
indisputably are "Courts of Law." Furthermore, the Tax Court
exercises its judicial power in much the same way as the federal
district courts exercise theirs. It has authority to punish
contempts by fine or imprisonment, 26 U.S.C. § 7456(c); to grant
certain injunctive relief, § 6213(a); to order the Secretary of the
Treasury to refund an overpayment determined by the court, §
6512(b)(2); and to subpoena and examine witnesses, order production
of documents, and administer oaths, § 7456(a). All these powers are
quintessentially judicial in nature.
The Tax Court remains independent of the Executive and
Legislative Branches. Its decisions are not subject to review by
either the Congress or the President. Nor has Congress made Tax
Court decisions subject to review in the federal district courts.
Rather, like the judgments of the district courts, the decisions of
the Tax Court are appealable only to the regional United States
courts of appeals, with ultimate review in this Court. The courts
of appeals, moreover, review those decisions "in the same manner
and to the same extent as decisions of the district courts in civil
actions tried without a jury." § 7482(a). This standard of review
contrasts with the standard applied to agency rulemaking by the
courts of appeals under § 10(e) of the Administrative Procedure
Act, 5 U.S.C. § 706(2)(A).
See Motor Vehicle
Mfrs.
Page 501 U. S. 892
Assn. v. State Farm Mutual Automobile Ins. Co.,
463 U. S. 29,
463 U. S. 43-44
(1983).
The Tax Court's exclusively judicial role distinguishes it from
other non-Article III tribunals that perform multiple functions and
provides the limit on the diffusion of appointment power that the
Constitution demands. Moreover, since the early 1800's, Congress
regularly granted non-Article III territorial courts the authority
to appoint their own clerks of court, who, as of at least 1839,
were "inferior Officers" within the meaning of the Appointments
Clause.
See In re Hennen, 13 Pet. at
38 U. S. 258.
Including Article I courts, such as the Tax Court, that exercise
judicial power and perform exclusively judicial functions among the
"Courts of Law" does not significantly expand the universe of
actors eligible to receive the appointment power.
The judgment of the Court of Appeals is affirmed.
It is so ordered.
[
Footnote 1]
At oral argument, counsel for petitioners described the
litigation in this way:
"This is a tax case with implications for up to 3,000 taxpayers
and a billion and a half in alleged tax deficiencies, and it
involved one of the longest trials below in the tax court's history
-- 14 weeks of evidence, complex financial testimony, 9,000 pages
of transcripts, 3,000-plus exhibits."
Tr. of Oral Arg. 3. Counsel also stated petitioners' primary
position:
"In other words, just to put our point succinctly, Congress did
not and could not have intended special trial judges in large,
complex, multiparty, multimillion dollar tax shelter cases --
alleged tax shelter cases such as this one -- Congress did not and
could not have intended such cases to be, in effect, decided by the
autonomous actions of a special trial judge."
Id. at 17.
[
Footnote 2]
Petitioners place some emphasis on the facts that Special Trial
Judge Powell filed his proposed findings and opinion with the Tax
Court on October 21, 1987; that, on that day, the Chief Judge
issued an order reassigning the litigation to himself for
disposition, App. 15; and that, on that same day, the Chief Judge
adopted the opinion of Judge Powell. Brief for Petitioners 8-9.
Indeed, the opinion, including its appendix, covers 44 pages in the
Tax Court Reports. At oral argument, however, counsel observed that
Judge Powell "sometime in the preceding 4 months had filed a report
with the Chief Judge of the tax court." Tr. of Oral Arg. 11. In any
event, this chronology does not appear to us to be at all
significant. The Chief Judge had the duty to review the work of the
Special Trial Judge, and there is nothing in the record disclosing
how much time he devoted to the task. As Chief Judge, he was aware
of the presence of the several cases in the court and the magnitude
of the litigation. The burden of proof as to any negative inference
to be drawn from the time factor rests on petitioners. We are not
inclined to assume "rubber stamp" activity on the part of the Chief
Judge.
[
Footnote 3]
Petitioners also argue that the deferential standard with which
Tax Court Rule 183 requires a Tax Court judge to review the factual
findings of a special trial judge allows the latter not only to
hear a case but effectively to resolve it. This point is not
relevant to our grant of certiorari, which concerned the question
whether the assignment of petitioners' cases to a special trial
judge was authorized by 26 U.S.C. § 7443A(b)(4). Accordingly, we
say no more about this new argument than to note that, under §
7443A(c), a special trial judge has no authority to decide a case
assigned under subsection (b)(4).
[
Footnote 4]
Because the language of the Twenty-fifth Amendment does not bind
our interpretation of the Appointments Clause, the fact that the
Amendment strictly limits the term "department" to those
departments named in 5 U.S.C. § 101 does not provide a similar
limitation on the term "Departmen[t]" within the meaning of the
Appointments Clause. We do not address here any question involving
an appointment of an inferior officer by the head of one of the
principal agencies, such as the Federal Trade Commission, the
Securities and Exchange Commission, the Federal Energy Regulatory
Commission, the Central Intelligence Agency, and the Federal
Reserve Bank of St. Louis.
[
Footnote 5]
The Commissioner has not been consistent in this position.
Indeed, when the present litigation was in the Fifth Circuit, the
Government advocated that the Tax Court is one of the "Courts of
Law." Brief for Appellee in No. 89-4436
et al., pp. 47-51.
It abandoned that position in the later case of
Samuels, Kramer
& Co. v. Commissioner, 930 F.2d 975 (CA2 1991), and there
urged that the Tax Court was a "Department." Brief for Appellee in
No. 89-4436
et al., pp. 34-48.
JUSTICE SCALIA, with whom JUSTICE O'CONNOR, JUSTICE KENNEDY, and
JUSTICE SOUTER join, concurring in part and concurring in the
judgment.
I agree with the Court that 26 U.S.C. § 7443A allows the Chief
Judge of the Tax Court to assign special trial judges to preside
over proceedings like those involved here, and join Parts I, II,
and III of its opinion. I disagree, however, with the Court's
decision to reach, as well as its resolution of, the Appointments
Clause issue.
I
As an initial matter, I think the Court errs by entertaining
petitioners' constitutional challenge on the merits. Petitioners
not only failed to object at trial to the assignment of their case
to a special trial judge, but expressly consented to that
assignment. It was only after the judge ruled against them that
petitioners developed their current concern over whether his
appointment violated Article II, § 2, cl. 2, of the
Page 501 U. S. 893
Constitution. They raised this important constitutional question
for the first time in their appeal to the Fifth Circuit. That court
concluded that petitioners had "waived this objection" by
consenting to the assignment of their case. 904 F.2d 1011, 1015, n.
9 (1990). When we granted certiorari, we asked the parties to brief
and argue the following additional question:
"Does a party's consent to have its case heard by a special tax
judge constitute a waiver of any right to challenge the appointment
of that judge on the basis of the Appointments Clause, Art. II, §
2, cl. 2?"
498 U.S. 1066 (1991).
Petitioners would have us answer that question "no" by adopting
a general rule that "structural" constitutional rights, as a class,
simply cannot be forfeited, and that litigants are entitled to
raise them at any stage of litigation. The Court neither accepts
nor rejects that proposal -- and, indeed, does not even mention it,
though the opinion does dwell upon the structural nature of the
present constitutional claim,
ante at
501 U. S.
878-880. Nor does the Court in any other fashion answer
the question we specifically asked to be briefed, choosing instead
to say that, in the present case, it will "exercise our discretion"
to entertain petitioners' constitutional claim.
Ante at
501 U. S. 879.
Thus, when there occurs a similar forfeiture of an Appointments
Clause objection -- or of some other allegedly structural
constitutional deficiency -- the Courts of Appeals will remain
without guidance as to whether the forfeiture must, or even may, be
disregarded. (The Court refers to this case as "one of th[e] rare"
ones in which forfeiture will be ignored,
ibid. -- but
since all forfeitures of Appointments Clause rights, and arguably
even all forfeitures of structural constitutional rights, can be
considered "rare," this is hardly useful guidance.) Having asked
for this point to be briefed and argued, and having expended our
time in considering it, we should provide an answer. In my view,
the answer is that Appointments Clause claims, and other structural
constitutional claims, have no special entitlement to review. A
party forfeits the right to advance on appeal a
nonjurisdictional
Page 501 U. S. 894
claim, structural or otherwise, that he fails to raise at trial.
Although I have no quarrel with the proposition that appellate
courts may, in truly exceptional circumstances, exercise discretion
to hear forfeited claims, I see no basis for the assertion that the
structural nature of a constitutional claim, in and of itself,
constitutes such a circumstance; nor do I see any other exceptional
circumstance in the present case.
Cf. Peretz v. United States,
post at
501 U. S.
954-955 (SCALIA, J., dissenting). I would therefore
reject petitioners' sweeping proposition that structural
constitutional rights, as a class, cannot be waived or forfeited,
and would refuse to entertain the constitutional challenge
presented here. [
Footnote 2/1]
"No procedural principle is more familiar to this Court than
that a constitutional right may be forfeited in criminal as well as
civil cases by the failure to make timely assertion of the right
before a tribunal having jurisdiction to determine it."
Yakus v. United States, 321 U.
S. 414,
321 U. S. 444
(1944);
see also United States v. Socony-Vacuum Oil Co.,
310 U. S. 150,
310 U. S.
238-239 (1940). Forfeiture [
Footnote 2/2] is "not a mere technicality, and
Page 501 U. S. 895
is essential to the orderly administration of justice." 9 C.
Wright & A. Miller, Federal Practice and Procedure § 2472, p.
455 (1971). In the federal judicial system, the rules generally
governing the forfeiture of claims are set forth in Federal Rules
of Criminal Procedure 51 and 52(b) and Federal Rule of Civil
Procedure 46. The Tax Court, which is not an Article III court, has
adopted a rule virtually identical to the latter, Tax Court Rule
144. These rules reflect the principle that a trial on the merits,
whether in a civil or criminal case, is the "main event," and not
simply a "tryout on the road" to appellate review.
Cf.
Wainwright v. Sykes, 433 U. S. 72,
433 U. S. 90
(1977). The very word "review" presupposes that a litigant's
arguments have been raised and considered in the tribunal of first
instance. To abandon that principle is to encourage the practice of
"sandbagging": suggesting or permitting, for strategic reasons,
that the trial court pursue a certain course, and later -- if the
outcome is unfavorable -- claiming that the course followed was
reversible error.
The blanket rule that
"argument[s] premised on the Constitution's structural
separation of powers [are] not a matter of personal rights, and
therefore [are] not waivable,"
Brief for Petitioners 43-44, would erode this cardinal principle
of sound judicial administration. It has no support in principle or
in precedent or in policy.
As to principle: personal rights that happen to bear upon
governmental structure are no more laden with public interest (and
hence inherently nonwaivable by the individual) than many other
personal rights one can conceive of. First
Page 501 U. S. 896
Amendment free speech rights, for example, or the Sixth
Amendment right to a trial that is "public," provide benefits to
the entire society more important than many structural guarantees;
but if the litigant does not assert them in a timely fashion, he is
foreclosed.
See, e.g., Head v. New Mexico Bd. of Examiners in
Optometry, 374 U. S. 424,
374 U. S.
432-433, n. 12 (1963) (First Amendment);
Levine v.
United States, 362 U. S. 610,
362 U. S. 619
(1960) (Sixth Amendment). Nor is it distinctively true of
structural guarantees that litigants often may undervalue them.
Many criminal defendants, for example, would prefer a trial from
which the press is excluded.
It is true, of course, that a litigant's prior agreement to a
judge's expressed intention to disregard a structural limitation
upon his power cannot have any
legitimating effect --
i.e., cannot render that disregard
lawful. Even
if both litigants not only agree to, but themselves propose, such a
course, the judge must tell them no. But the question before us
here involves the effect of waiver not
ex ante, but
ex
post -- its effect not upon right, but upon
remedy:
must a judgment already rendered be set aside because of an alleged
structural error to which the losing party did not properly object?
There is no reason in principle why that should always be so. It
will sometimes be so -- not, however, because the error was
structural, but because, whether structural or not, it deprived the
federal court of its requisite subject matter jurisdiction. Such an
error may be raised by a party, and indeed must be noticed
sua
sponte by a court, at all points in the litigation,
see,
e.g., American Fire & Casualty Co. v. Finn, 341 U. S.
6,
341 U. S. 17-18
(1951);
Mansfield, C. & L. M. R. Co. v. Swan,
111 U. S. 379,
111 U. S. 382
(1884);
Capron v. Van
Noorden, 2 Cranch 126,
6
U. S. 127 (1804). Since such a jurisdictional defect
deprives not only the initial court but also the appellate court of
its power over the case or controversy, to permit the appellate
court to ignore it because of waiver would be to give the waiver
legitimating, as opposed to merely remedial, effect,
i.e.,
the effect of approving,
ex
Page 501 U. S. 897
ante, unlawful action by the appellate court itself.
That this, rather than any principle of perpetual remediability of
structural defects, is the basis for the rule of "nonwaivability"
of lack of subject matter jurisdiction is demonstrated by the fact
that a final judgment cannot be attacked
collaterally --
i.e., before a court that
does have jurisdiction
-- on the ground that a subject matter jurisdictional limitation
(structural or not) was ignored.
See, e.g., Insurance Corp. of
Ireland v. Compagnie des Bauxites de Guinee, 456 U.
S. 694,
456 U. S. 702,
n. 9 (1982).
As to precedent: Petitioners place primary reliance on some
broad language in
Commodity Futures Trading Comm'n v.
Schor, 478 U. S. 833
(1986). We said in that case that, "[w]hen these Article III
limitations are at issue" (referring not to all structural
limitations of the Constitution, but only to those of Article III,
§§ 1 and 2), "notions of consent and waiver cannot be dispositive."
478 U.S. at
478 U. S. 851.
But the claim before us in
Schor involved a particular
sort of structural defect (a tribunal's exceeding its subject
matter jurisdiction) which, as I have just described, had
traditionally been held nonwaivable on appeal in the context of
Article III tribunals. To extend the same treatment to similar
defects in the context of non-Article III tribunals is quite
natural, whether or not it is analytically required.
Cf., e.g.,
Clapp v. Commissioner, 875 F.2d 1396, 1399 (CA9 1989) ("While
the Tax Court is an Article I court, . . . the few cases discussing
the differences between the Tax Court and an Article III court
indicate that questions of Tax Court jurisdiction are to be
resolved in the same manner as for an Article III court"). It is
clear from our opinion in
Schor that we had the analogy to
Article III subject matter jurisdiction in mind. "To the extent
that this structural principle is implicated in a given case," we
said,
"the parties cannot by consent cure the constitutional
difficulty for the same reason that the parties by consent cannot
confer on federal courts subject matter jurisdiction beyond the
limitations imposed by Article III, § 2.
Page 501 U. S. 898
478 U.S. at
478 U. S. 850-851. [
Footnote 2/3] I would not extend that
nonwaiver rule -- a traditional rule in its application to Article
III courts, and understandably extended to other federal
adjudicative tribunals -- to structural defects that do not call
into question the jurisdiction of the forum. The subject matter
jurisdiction of the forum that issued the judgment, the Tax Court,
is not in question in the present case."
Petitioners only other appeal to precedent is
Glidden Co. v.
Zdanok, 370 U. S. 530
(1962). That case did address a nonjurisdictional structural defect
that had not been raised below. As the Court explains, however,
that was a structural defect that went to the validity of the very
proceeding under review,
ante at
501 U. S. 879,
as opposed to one that merely affected the validity of the claim --
for example, improper appointment of the Executive officer who
issued the regulation central to the controversy. That was
considered significant by the only opinion in the case (that of
Justice Harlan, joined by Justices Brennan and Stewart) to address
the waiver point. ("The alleged defect of authority here relates to
basic constitutional protections
designed in part for the
benefit of litigants."
Id. at
370 U. S. 536
(emphasis added).) The formulation petitioners advance, of course,
is much broader than that. ("[A]n argument premised on the
Constitution's structural separation of powers is not a matter of
personal rights and
Page 501 U. S. 899
therefore
is not waivable." Brief for Petitioners 43-44
(emphasis added). "There can be no hierarchy among separation of
powers principles, in which some are fundamental and nonwaivable,
while the vindication of others may be relegated to the vagaries of
individual litigation strategies."
Id. at 45.) Even more
important, Justice Harlan's plurality opinion in
Glidden
does not stand for the proposition that forfeiture can
never be imposed, but rather the more limited proposition,
which the Court reiterates today, that forfeiture need not
always be imposed.
Several recent opinions flatly contradict petitioners' blanket
assertion that structural claims cannot be waived. Surely under our
jurisprudence the so-called negative Commerce Clause is structural.
See Dennis v. Higgins, 498 U. S. 439,
498 U. S. 447
(1991). And surely the supposed guarantee against waivability must
apply in state courts as well as in federal courts, since,
according to petitioners, it emanates from the structural rights
themselves. Yet only last Term, in
Jimmy Swaggart Ministries v.
Board of Equalization of California, 493 U.
S. 378,
493 U. S. 397
(1990), we declined to consider a negative Commerce Clause
challenge to a state tax because state courts had found the issue
procedurally barred as a result of petitioner's failure to raise it
in his administrative proceeding for tax refund. And in
G. D.
Searle & Co. v. Cohn, 455 U. S. 404,
455 U. S. 414
(1982), we declined to reach a negative Commerce Clause claim in
litigation arising in the federal courts; we remanded the case for
consideration of that issue by the Court of Appeals, "
if it was
properly raised below." (Emphasis added.) The Federal Courts
of Appeals (even after
Schor) have routinely applied the
ordinary rules of forfeiture to structural claims not raised below.
See, e.g., United States v. Doremus, 888 F.2d 630, 633, n.
3 (CA9 1989) (separation of powers claims),
cert. denied,
498 U.S. 1046 (1991);
Opdyke Investment Co. v. Detroit,
883 F.2d 1265, 1276 (CA6 1989) (same);
Interface Group, Inc.
v.
Page 501 U. S. 900
Massachusetts Port Authority, 816 F.2d 9, 16 (CA1 1987)
(Breyer, J.) (Supremacy and Commerce Clause claims).
Finally, as to policy: the need for the traditional forfeiture
rule -- in cases involving structural claims as in all others -- is
obvious. Without that incentive to raise legal objections as soon
as they are available, the time of lower court judges and of juries
would frequently be expended uselessly, and appellate consideration
of difficult questions would be less informed and less complete.
Besides inviting these evils, the categorical rule petitioners
advance would require the development of a whole new body of
jurisprudence concerning which constitutional provisions are
"structural" -- a question whose answer is by no means clear.
Cf. Sunstein, Government Control of Information, 74
Calif.L.Rev. 889, 915 (1986) (arguing that the First Amendment is
structural). Moreover, since that rigid rule would cut so much
against the grain of reason and practice, it would have the side
effect of distorting substantive law. The maxim
volenti non fit
injuria has strong appeal in human affairs, and, by requiring
it to be absolutely and systematically disregarded in cases
involving structural protections of the Constitution, we would
incline ourselves towards finding that no such structural
protection exists.
Thus, the structural nature of the claim here is not sufficient
reason to ignore its forfeiture -- and the Court (though it
discusses the virtues of structure at some length) does not pretend
otherwise. There must be some additional reason, then, why the
Court "exercise[s] our discretion,"
ante at
501 U. S. 879,
to disregard the forfeiture. To disregard it without sufficient
reason is the exercise not of discretion, but of whimsy. Yet beyond
its discussion of structure, the only reason the Court gives is no
reason at all: "we are faced with a constitutional challenge that
is neither frivolous nor disingenuous,"
ibid. That
describes the situation with regard to the vast majority of
forfeited claims raised on appeal. As we make clear in another case
decided this very day, waiver generally
Page 501 U. S. 901
extends not merely to "frivolous" and "disingenuous" challenges,
but even to "[t]he most basic rights of criminal defendants."
Peretz, post at
501 U. S. 936.
Here, petitioners expressly consented to the Special Trial Judge.
Under 26 U.S.C. § 7443A, the Chief Judge of that court has broad
discretion to assign cases to special trial judges. Any party who
objects to such an assignment, if so inclined, can easily raise the
constitutional issue pressed today. Under these circumstances, I
see no reason why this should be included among those "rare cases
in which we should exercise our discretion,"
ante at
501 U. S. 879,
to hear a forfeited claim.
II
Having struggled to reach petitioners' Appointments Clause
objection, the Court finds it invalid. I agree with that
conclusion, but the reason the Court assigns is, in my view, both
wrong and full of danger for the future of our system of separate
and coequal powers.
The Appointments Clause provides:
"[T]he Congress may by Law vest the Appointment of such inferior
Officers, as they think proper, in the President alone, in the
Courts of Law, or in the Heads of Departments."
Art. II, § 2, cl. 2. I agree with the Court that a special trial
judge is an "inferior Office[r]" within the meaning of this Clause,
with the result that, absent Presidential appointment, he must be
appointed by a court of law or the head of a department. I do not
agree, however, with the Court's conclusion that the Tax Court is a
"Cour[t] of Law" within the meaning of this provision. I would find
the appointment valid because the Tax Court is a "Departmen[t]" and
the Chief Judge is its head.
A
A careful reading of the Constitution and attention to the
apparent purpose of the Appointments Clause make it clear that the
Tax Court cannot be one of those "Courts of Law"
Page 501 U. S. 902
referred to there. The Clause does not refer generally to
"Bodies exercising judicial Functions," or even to "Courts"
generally, or even to "Courts of Law" generally. It refers to "the
Courts of Law." Certainly this does not mean any "Cour[t] of Law"
(the Supreme Court of Rhode Island would not do). The definite
article "the" obviously narrows the class of eligible "Courts of
Law" to those courts of law envisioned by the Constitution. Those
are Article III courts, and the Tax Court is not one of them.
The Court rejects this conclusion because the Appointments
Clause does not (in the style of the Uniform Commercial Code)
contain an explicit cross-reference to Article III.
Ante
at
501 U. S.
888-889. This is no doubt true, but irrelevant. It is
equally true that Article I, § 8, cl. 9, which provides that
Congress may "constitute Tribunals inferior to the supreme Court,"
does not explicitly say "Tribunals under Article III, below." Yet
this power "plainly relates to the 'inferior Courts' provided for
in Article III, § 1; it has never been relied on for establishment
of any other tribunals."
Glidden Co. v. Zdanok, 370 U.S.
at
370 U. S. 543
(opinion of Harlan, J.);
see also 3 J. Story, Commentaries
on the Constitution of the United States § 1573, p. 437 (1833).
Today's Court evidently does not appreciate, as Chief Justice
Marshall did, that the Constitution does not "partake of the
prolixity of a legal code,"
McCulloch v.
Maryland, 4 Wheat. 316,
17 U. S. 407
(1819). It does not, like our opinions, bristle with "supras,"
"infras," and footnotes. Instead of insisting upon such legalisms,
we should, I submit, follow the course mapped out in
Buckley v.
Valeo, 424 U. S. 1,
424 U. S. 124
(1976) (per curiam), and examine the Appointments Clause of the
Constitution in light of the "cognate provisions" of which it is a
central feature: Article I, Article II, and Article III. The only
"Courts of Law" referred to there are those authorized by Article
III, § 1, whose judges serve during good behavior with
undiminishable salary. Art. III, § 1.
See Glidden Co. v.
Zdanok, supra at
370 U. S. 543
(opinion of Harlan, J.);
United States v.
Mouat, 124
Page 501 U. S. 903
U.S. 303,
124 U. S. 307
(1888) ("courts of justice") (dictum). The Framers contemplated no
other national judicial tribunals.
"According to the plan of the convention, all judges who may be
appointed by the United States are to hold their offices
during
good behavior. . . ."
The Federalist No. 78, p. 465 (C. Rossiter ed.1961) (A.
Hamilton) (second emphasis in original).
We recognized this in
Buckley, supra, and it was indeed
an essential part of our reasoning. Responding to the argument that
a select group of Congressmen was a "Department," we said:
"The phrase 'Heads of Departments,' used as it is in conjunction
with the phrase 'Courts of Law,' suggests that the Departments
referred to are themselves in the Executive Branch or at least have
some connection with that branch. While the Clause expressly
authorizes Congress to vest the appointment of certain officers in
the 'Courts of Law,' the absence of similar language to include
Congress must mean that neither Congress nor its officers were
included within the language 'Heads of Departments' in this part of
cl. 2."
"Thus, with respect to four of the six voting members of the
Commission, neither the President, the head of any department,
nor the Judiciary has any voice in their selection."
Id. at
424 U. S. 127
(emphasis added). The whole point of this passage is that "the
Heads of Departments" must reasonably be understood to refer
exclusively to the Executive Branch (thereby excluding officers of
Congress) because "the Courts of Law" obviously refers exclusively
to the Judicial Branch. We were right in
Buckley, and the
Court is wrong today.
Even if the Framers had no particular purpose in making the
Appointments Clause refer only to Article III courts, we would
still of course be bound by that disposition. In fact, however,
there is every reason to believe that the Appointments Clause's
limitation to Article III tribunals was adopted
Page 501 U. S. 904
with calculation and forethought, faithfully implementing a
considered political theory for the appointment of officers.
The Framers' experience with post-revolutionary self-government
had taught them that combining the power to create offices with the
power to appoint officers was a recipe for legislative corruption.
[
Footnote 2/4] The foremost danger
was that legislators would create offices with the expectancy of
occupying them themselves. This was guarded against by the
Incompatibility and Ineligibility Clauses, Article I, § 6, cl. 2.
See Buckley, supra at
424 U. S. 124.
But real, if less obvious, dangers remained. Even if legislators
could not appoint themselves, they would be inclined to appoint
their friends and supporters. This proclivity would be unchecked
because of the lack of accountability in a multimember body --
as
Page 501 U. S. 905
James Wilson pointed out in his criticism of a multimember
executive:
"[A]re impartiality and fine discernment likely to predominate
in a numerous [appointing] body? In proportion to their own number,
will be the number of their friends, favorites and dependents. An
office is to be filled. A person nearly connected, by some of the
foregoing ties, with one of those who [is] to vote in filling it,
is named as a candidate. . . . Every member, who gives, on his
account, a vote for his friend, will expect the return of a similar
favor on the first convenient opportunity. In this manner, a
reciprocal intercourse of partiality, of interestedness, of
favoritism, perhaps of venality, is established; and in no
particular instance, is there a practicability of tracing the
poison to its source. Ignorant, vicious, and prostituted characters
are introduced into office; and some of those, who voted, and
procured others to vote for them, are the first and loudest in
expressing their astonishment that the door of admission was ever
opened to men of their infamous description. The suffering people
are thus wounded and buffeted, like Homer's Ajax, in the dark; and
have not even the melancholy satisfaction of knowing by whom the
blows are given."
1 Works of James Wilson 359-360 (J. Andrews ed. 1896).
See
also Essex Result, in Memoir of Theophilus Parsons 381-382
(1859); The Federalist No. 76, pp. 455-457 (C. Rossiter ed.1961)
(A. Hamilton). And not only would unaccountable legislatures
introduce their friends into necessary offices, they would create
unnecessary offices into which to introduce their friends. As James
Madison observed:
"The power of the Legislature to appoint any other than their
own officers departs too far from the Theory which requires a
separation of the great Departments of Government. One of the best
securities against the creation
Page 501 U. S. 906
of unnecessary offices or tyrannical powers is an exclusion of
the authors from all share in filling the one, or influence in the
execution of the other."
Madison's Observations on Jefferson's Draft of a Constitution
for Virginia, reprinted in 6 Papers of Thomas Jefferson 308, 311
(J. Boyd ed.1952).
For these good and sufficient reasons, then, the federal
appointment power was removed from Congress. The Framers knew,
however, that it was not enough simply to define in writing who
would exercise this power or that.
"After discriminating . . . in theory, the several classes of
power, as they may in their nature be legislative, executive, or
judiciary, the next and most difficult task [was] to provide some
practical security for each, against the invasion of the
others."
The Federalist No. 48, p. 308 (C. Rossiter ed.1961) (J.
Madison). Invasion by the Legislature, of course, was the principal
threat, since the "legislative authority . . . possesses so many
means of operating on the motives of the other departments."
Id. No. 49, p. 314 (J. Madison). It can "mask, under
complicated and indirect measures, the encroachments which it makes
on the co-ordinate departments,"
id. No. 48, p. 310 (J.
Madison), and thus control the nominal actions (
e.g.,
appointments) of the other branches.
Cf. T. Jefferson,
Notes on the State of Virginia 120 (W. Peden ed.1955).
Thus, it was not enough simply to repose the power to execute
the laws (or to appoint) in the President; it was also necessary to
provide him with the means to resist legislative encroachment upon
that power. The means selected were various, including a separate
political constituency, to which he alone was responsible, and the
power to veto encroaching laws,
see Art. I, § 7, or even
to disregard them when they are unconstitutional.
See
Easterbrook, Presidential Review, 40 Case W.Res.L.Rev. 905, 920-924
(1990). One of the most obvious and necessary, however, was a
permanent salary. Art. II, § 1. Without this, "the separation of
the
Page 501 U. S. 907
executive from the legislative department would be merely
nominal and nugatory. The legislature, with a discretionary power
over the salary and emoluments of the Chief Magistrate, could
render him as obsequious to their will as they might think proper
to make him." The Federalist No. 73, p. 441 (C. Rossiter ed.1961)
(A. Hamilton).
See also id. No. 51, p. 321 (J. Madison);
Mass.Const., Part The Second, Chapter II, § 1, Art. XIII
(1780).
A power of appointment lodged in a President surrounded by such
structural fortifications could be expected to be exercised
independently, and not pursuant to the manipulations of Congress.
The same is true, to almost the same degree, of the appointment
power lodged in the heads of departments. Like the President, these
individuals possess a reputational stake in the quality of the
individuals they appoint; and though they are not themselves able
to resist congressional encroachment, they are directly answerable
to the President, who is responsible to
his constituency
for their appointments and has the motive and means to assure
faithful actions by his direct lieutenants.
Like the President, the Judicial Branch was separated from
Congress not merely by a paper assignment of functions, but by
endowment with the means to resist encroachment -- foremost among
which, of course, are life tenure (during "good behavior") and
permanent salary. These structural accoutrements not only assure
the fearless adjudication of cases and controversies,
see
The Federalist Nos. 78, 79 (A. Hamilton);
Northern Pipeline
Constr. Co. v. Marathon Pipe Line Co., 458 U. S.
50,
458 U. S. 57-60
(1982) (opinion of Brennan, J.); they also render the Judiciary a
potential repository of appointment power free of congressional (as
well as Presidential) influence. In the same way that depositing
appointment power in a fortified President and his lieutenants
ensures an
actual exclusion of the legislature from
appointment, so too does reposing such power in an Article III
court. The Court's holding, that Congress may deposit
Page 501 U. S. 908
such power in "legislative courts," without regard to whether
their personnel are either Article III judges
or "Heads of
Departments," utterly destroys this carefully constructed scheme.
And the Court produces this result, I remind the reader, not
because of, but
in spite of, the apparent meaning of the
phrase "the Courts of Law."
B
Having concluded, against all odds, that "the Courts of Law"
referred to in Article II, § 2, are not the courts of law
established by Article III, the Court is confronted with the
difficult problem of determining what courts of law they
are. It acknowledges that they must be courts which
exercise "the judicial power of the United States" and concludes
that the Tax Court is such a court -- even though it is not an
Article III court. This is quite a feat, considering that Article
III begins "
The judicial Power of the United States" --
not "
Some of the judicial Power of the United States," or
even "
Most of the judicial Power of the United States" --
"shall be vested in one supreme Court, and in such inferior Courts
as the Congress may from time to time ordain and establish."
Despite this unequivocal text, the Court sets forth the startling
proposition that "the judicial power of the United States is not
limited to the judicial power defined under Article III."
Ante at
501 U. S. 889.
It turns out, however -- to our relief, I suppose it must be said
-- that this is really only a pun. "The judicial power," as the
Court uses it, bears no resemblance to the constitutional term of
art we are all familiar with, but means only "the power to
adjudicate in the manner of courts." So used, as I shall proceed to
explain, the phrase covers an infinite variety of individuals
exercising
executive, rather than
judicial, power
(in the constitutional sense), and has nothing to do with the
separation of powers or with any other characteristic that might
cause one to believe that is what was meant by "the Courts of Law."
As far as I can tell, the only thing to be said for this approach
is that it makes the Tax
Page 501 U. S. 909
Court a "Cour[t] of Law" -- which is perhaps the object of the
exercise.
I agree with the unremarkable proposition that "Congress [has]
wide discretion to assign the task of adjudication in cases arising
under federal law to legislative tribunals."
Ante at
501 U. S. 889.
Congress may also assign that task to subdivisions of traditional
executive departments, as it did in 1924 when it created the Tax
Court's predecessor, the Tax Board of Appeals -- or to take a more
venerable example, as it did in 1791 when it created within the
Treasury Department the Comptroller of the United States, who
"decide[d] on appeal, without further review by the Secretary, all
claims concerning the settlement of accounts." Casper, An Essay in
Separation of Powers: Some Early Versions and Practices, 30 Wm.
& Mary L.Rev. 211, 238 (1989);
see 1 Stat. 66. Such
tribunals, like any other administrative board, exercise the
executive power, not the judicial power of the United States. They
are, in the words of the great Chief Justice, "incapable of
receiving [the judicial power]" -- unless their members serve for
life during good behavior and receive permanent salary.
American Ins. Co. v.
Canter, 1 Pet. 511,
26 U. S. 546
(1828) (Marshall, C.J.).
It is no doubt true that all such bodies "adjudicate,"
i.e., they determine facts, apply a rule of law to those
facts, and thus arrive at a decision. But there is nothing
"inherently judicial" about "adjudication." To be a federal officer
and to adjudicate are necessary but not sufficient conditions for
the exercise of federal judicial power, as we recognized almost a
century and a half ago.
"That the auditing of the accounts of a receiver of public
moneys may be, in an enlarged sense, a judicial act, must be
admitted. So are all those administrative duties the performance of
which involves an inquiry into the existence of facts and the
application to them of rules of law. In this sense the act of the
President in calling out the militia under the act of 1795, [Martin
v. Mott,]
Page 501 U. S. 910
12 Wheat. 19 [(1827)], or of a commissioner who makes a
certificate for the extradition of a criminal, under a treaty, is
judicial. But it is not sufficient to bring such matters under the
judicial power, that they involve the exercise of judgment upon law
and fact."
Murray's Lessee v. Hoboken
Land & Improvement Co., 18 How. 272,
59 U. S. 280
(1856).
Accord, Bator, The Constitution as Architecture:
Legislative and Administrative Courts Under Article III, 65 Ind.
L.J. 233, 264-265 (1990). The first Patent Board, which consisted
of Thomas Jefferson, Henry Knox, and Edmund Randolph in their
capacities as Secretary of State, Secretary of War, and Attorney
General, respectively, 1 Stat. 109, 110 (1790), adjudicated the
patentability of inventions, sometimes hearing argument by
petitioners.
See 18 J. Pat.Off.Soc. 68-69 (July 1936).
They were exercising the executive power.
See Easterbrook,
"Success" and the Judicial Power, 65 Ind. L.J. 277, 280 (1990).
Today, the Federal Government has a corps of administrative law
judges numbering more than 1,000, whose principal statutory
function is the conduct of adjudication under the Administrative
Procedure Act (APA),
see 5 U.S.C. §§ 554, 3105. They are
all
executive officers. "Adjudication," in other words, is
no more an "inherently" judicial function than the promulgation of
rules governing primary conduct is an "inherently" legislative one.
See Standard Oil Co. of New Jersey v. United States,
221 U. S. 1 (1911);
APA, 5 U.S.C. § 553 ("Rule making").
It is true that Congress
may commit the sorts of
matters administrative law judges and other executive adjudicators
now handle to Article III courts -- just as some of the matters now
in Article III courts could instead be committed to executive
adjudicators.
"[T]here are matters, involving public rights, which may be
presented in such form that the judicial power is capable of acting
on them, and which are susceptible of judicial determination, but
which Congress may or may not bring within the cognizance of the
courts of the United
Page 501 U. S. 911
States, as it may deem proper."
Murray's Lessee, supra at
59 U. S. 284.
See also Ex parte Bakelite Corp., 279 U.
S. 438,
279 U. S. 451
(1929). Congress could, for instance, allow direct review by the
Courts of Appeals of denials of Social Security benefits. It could
instead establish the Social Security Court -- composed of judges
serving 5-year terms -- within the Social Security Administration.
Both tribunals would perform identical functions, but only the
former would exercise the judicial power.
In short, given the performance of adjudicatory functions by a
federal officer, it is the identity of the officer -- not something
intrinsic about the mode of decisionmaking or type of decision --
that tells us whether the judicial power is being exercised. "[O]ur
cases demonstrate [that] a particular function, like a chameleon,
will often take on the aspect of the office to which it is
assigned."
Bowsher v. Synar, 478 U.
S. 714,
478 U. S. 749
(1986) (STEVENS, J., concurring in judgment).
Cf. INS v.
Chadha, 462 U. S. 919,
462 U. S. 953,
n. 16 (1983). Where adjudicative decisionmakers do not possess life
tenure and a permanent salary, they are "incapable of exercising
any portion of the judicial power."
Ex parte Randolph, 20
F.Cas. (No. 11,558) 242, 254 (CC Va. 1833) (Marshall, C.J.).
The Tax Court is indistinguishable from my hypothetical Social
Security Court. It reviews determinations by Executive Branch
officials (the Internal Revenue Service) that this much or that
much tax is owed -- a classic executive function. For 18 years its
predecessor, the Board of Tax Appeals, did the very same thing,
see H. Dubroff, The United States Tax Court 47-175 (1979),
and no one suggested that body exercised "the judicial power." We
held just the opposite:
"The Board of Tax Appeals is not a court. It is an executive or
administrative board, upon the decision of which the parties are
given an opportunity to base a petition for review to the courts
after the administrative inquiry of the Board has been had and
decided."
Old
Page 501 U. S. 912
Colony Trust Co. v. Commissioner, 279 U.
S. 716,
279 U. S. 725
(1929) (Taft, C.J.). Though renamed "the Tax Court of the United
States" in 1942, it remained "an independent agency in the
Executive Branch," 26 U.S.C. § 1100 (1952 ed.), and continued to
perform the same function. As an
executive agency, it
possessed many of the accoutrements the Court considers
"quintessentially judicial,"
ante at
501 U. S. 891.
It administered oaths, for example, and subpoenaed and examined
witnesses, § 1114; its findings were reviewed "in the same manner
and to the same extent as decisions of the district courts in civil
actions tried without a jury," § 1141(a). This Court continued to
treat it as an administrative agency, akin to the Federal
Communications Commission (FCC) or the National Labor Relations
Board (NLRB).
See Dobson v. Commissioner, 320 U.
S. 489,
320 U. S.
495-501 (1943).
When the Tax Court was statutorily denominated an "Article I
Court" in 1969, its judges did not magically acquire the judicial
power. They still lack life tenure; their salaries may still be
diminished; they are still removable by the President for
"inefficiency, neglect of duty, or malfeasance in office." 26
U.S.C. § 7443(f). (In
Bowsher v. Synar, supra at
478 U. S. 729,
we held that these latter terms are "very broad" and "could sustain
removal . . . for any number of actual or perceived
transgressions.") How anyone with these characteristics can
exercise judicial power "independent . . . [of] the Executive
Branch" is a complete mystery. It seems to me entirely obvious that
the Tax Court, like the Internal Revenue Service, the FCC, and the
NLRB, exercises executive power. Amar,
Marbury, Section
13, and the Original Jurisdiction of the Supreme Court, 56
U.Chi.L.Rev. 443, 451, n. 43 (1989).
See also Northern
Pipeline, 458 U.S. at
458 U. S. 113 (WHITE, J., dissenting) (equating
administrative agencies and Article I courts);
Samuels, Kramer
& Co. v. Commissioner, 930 F.2d 975, 992-993 (CA2 1991)
(collecting academic authorities for same proposition).
Page 501 U. S. 913
In seeking to establish that "judicial power" in some
constitutionally significant sense -- in a sense different from the
adjudicative exercise of
executive power -- can be
exercised by someone other than an Article III judge, the Court
relies heavily upon the existence of territorial courts.
Ante at
501 U. S.
889-891. Those courts have nothing to do with the issue
before us. [
Footnote 2/5] I agree
that they do not exercise the national
executive power --
but neither do they exercise any national judicial power. They are
neither Article III courts nor Article I courts, but Article IV
courts -- just as territorial governors are not Article I
executives but Article IV executives.
"These Courts, then, are not constitutional Courts, in which the
judicial power conferred by the Constitution on the general
government, can be deposited. They are incapable of receiving it.
They are legislative Courts, created in virtue of the general right
of sovereignty which exists in the government, or in virtue of that
clause which enables Congress to make all needful rules and
regulations, respecting the territory belonging to the United
States. . . . In legislating for them, Congress exercises the
combined powers of the general, and of a
state
government."
American In. Co. v. Canter, 1 Pet. at
26 U. S. 546
(Marshall, C.J.) (emphasis added).
Page 501 U. S. 914
Or as the Court later described it:
"[Territories] are not organized under the Constitution, nor
subject to its complex distribution of the powers of government, as
the organic law; but are the creations, exclusively, of the
legislative department, and subject to its supervision and
control."
Benner v.
Porter, 9 How. 235,
50 U. S. 242
(1850). Thus, Congress may endow territorial governments with a
plural executive; it may allow the executive to legislate; it may
dispense with the legislature or judiciary altogether. It should be
obvious that the powers exercised by territorial courts tell us
nothing about the nature of an entity, like the Tax Court, which
administers the general laws of the Nation.
See Northern
Pipeline, supra at
458 U. S. 75-76
(opinion of Brennan, J.).
The Court claims that there is a "longstanding practice" of
permitting Article I courts to appoint inferior officers.
Ante at
501 U. S. 890.
I am unaware of such a practice. Perhaps the Court means to refer
not to Article I courts but to the territorial courts just
discussed, in which case the practice would be irrelevant. As I
shall discuss below, an Article I court (such as the Tax Court)
that is not within any other department would be able to have its
inferior officers appointed by its chief judge -- not under the
"Courts of Law" provision of Article II, § 2, but under the "Heads
of Departments" provision; perhaps it is that sort of practice the
Court has in mind. It is certain, in any case, that no decision of
ours has ever approved the appointment of an inferior officer by an
Article I court.
Ex parte
Hennen, 13 Pet. 230 (1839), which the Court cites,
involved appointment by an Article III tribunal.
III
Since the Tax Court is not a court of law, unless the Chief
Judge is the head of a department, the appointment of the Special
Trial Judge was void. Unlike the Court, I think he is.
Page 501 U. S. 915
I have already explained that the Tax Court, like its
predecessors, exercises the executive power of the United States.
This does not, of course, suffice to market a "Departmen[t]" for
purposes of the Appointments Clause. If, for instance, the Tax
Court were a subdivision of the Department of the Treasury -- as
the Board of Tax Appeals used to be -- it would not qualify. In
fact, however, the Tax Court is a freestanding, self-contained
entity in the Executive Branch, whose Chief Judge is removable by
the President (and, save impeachment, no one else). Nevertheless,
the Court holds that the Chief Judge is not the head of a
department.
It is not at all clear what the Court's reason for this
conclusion is. I had originally thought that the Court was adopting
petitioners' theory -- wrong, but at least coherent -- that "Heads
of Departments" means Cabinet officers. This is suggested by the
Court's reliance upon the dictum in
Burnap v. United
States, 252 U. S. 512,
252 U. S. 515
(1920), to the effect that the head of a department must be
"'the Secretary in charge of a great division of the executive
branch of the Government, like the State, Treasury, and War,
who is a member of the Cabinet,'"
ante at
501 U. S. 886
(emphasis added); by the Court's observation that "[t]he
Cabinet-level departments are limited in number and easily
identified,"
ibid.; and by its reliance upon the fact
that, in the Twenty-fifth Amendment, "the term
department'
refers to Cabinet-level entities," ante at 501 U. S. 887.
Elsewhere, however, the Court seemingly disclaims Cabinet status as
the criterion, see ante at 501 U. S. 887,
n. 4, and says that the term "Departmen[t]" means "executive
divisions like the Cabinet-level departments," ante at
501 U. S. 886
(emphasis added). Unfortunately, it never specifies what
characteristic it is that causes an agency to be "like a
Cabinet-level department," or even provides any intelligible clues
as to what it might have in mind. It quotes a congressional
Committee Report that seemingly equates Cabinet status with
inclusion within the statutory definition of "`department'" in 5
U.S.C. § 101, ante at 501 U. S. 887
(quoting H.R.Rep.
Page 501 U. S. 916
No. 203, 89th Cong., 1st Sess., 3 (1965)), but this hint is
canceled by a footnote making it clear that "Cabinet-like"
character, whatever it is, is not "strictly limit[ed] by that
provision,"
ante at
501 U. S. 887,
n. 4. Its approving quotation of Burnap's reference to "a great
division of the executive branch" might invite the guess that
numerosity is the key -- but the Department of Education has fewer
than 5,000 employees, and the FCC, which the Court also appears
willing to consider such a "`great division,'"
ante at
501 U. S. 886,
fewer than 1,800.
See Employment and Trends as of March,
1991, Office of Personnel Management, Table 2. The Court reserves
the right to consider as "Cabinet-like," and hence as
"Departments," those agencies which, above all others, are at the
farthest remove from Cabinet status, and whose heads are
specifically designed not to have the quality that the Court
earlier thinks important, of being "subject to the exercise of
political oversight and shar[ing] the President's accountability to
the people,"
ante at
501 U. S. 886
-- namely, independent regulatory agencies such as the Federal
Trade Commission and the Securities and Exchange Commission,
ante at
501 U. S. 887,
n. 4. Indeed, lest any conceivable improbability be excluded, the
Court even reserves the right to consider as a "Departmen[t]" an
entity that is not headed by an officer of the United States -- the
Federal Reserve Bank of St. Louis, whose president is appointed in
none of the manners constitutionally permitted for federal
officers, but rather by a Board of Directors, two-thirds of whom
are elected by regional banks,
see 12 U.S.C. §§ 302, 304,
and 341. It is as impossible to respond to this random
argumentation as it is to derive a comprehensible theory of the
appointments power from it. I shall address, therefore, what was
petitioners' point, what I originally took to be the point of the
Court's opinion, and what is the only trace of a flesh-and-blood
point that subsists: the proposition that "Departmen[t]" means
"Cabinet-level agency."
There is no basis in text or precedent for this position. The
term "Cabinet" does not appear in the Constitution, the
Page 501 U. S. 917
Founders having rejected proposals to create a Cabinet-like
entity.
See H. Learned, The President's Cabinet 74-94
(1912); E. Corwin, The President 97, 238-240 (5th rev. ed.1984).
The existence of a Cabinet, its membership, and its prerogatives
(except to the extent the Twenty-fifth Amendment speaks to them),
are entirely matters of Presidential discretion. Nor does any of
our cases hold that "the Heads of Departments" are Cabinet members.
In
United States v. Germaine, 99 U. S.
508 (1879), we merely held that the Commissioner of
Pensions, an official
within the Interior Department, was
not the head of a department. And, in
Burnap, supra, we
held that the Bureau of Public Buildings and Grounds, a bureau
within the War Department, was not a department.
The Court's reliance on the Twenty-fifth Amendment is misplaced.
I accept that the phrase "the principal officers of the executive
departments" is limited to members of the Cabinet. It is the
structural composition of the phrase, however, and not the single
word "departments," which gives it that narrow meaning -- "the
principal officers" of the "executive departments" in gross, rather
than (as in the Opinions Clause) "the principal Officer in each of
the executive Departments," or (in the Appointments Clause) simply
"the Heads" (not "principal Heads") "of Departments."
The only history on the point also militates against the Court's
conclusion. The 1792 Congress passed an "Act to establish the
Post-Office and Post Roads within the United States," creating a
Postmaster General and empowering him to appoint "an assistant, and
deputy postmasters, at all places where such may be found
necessary." § 3, 1 Stat. 234. President Washington did not bring
the Postmaster into his Cabinet.
See Learned,
supra at 233-249. It seems likely that the Assistant
Postmaster General and Deputy Postmasters were inferior officers --
which means either that "the Heads of Departments" include
principal officers other than the Cabinet, or that the Second
Congress and President
Page 501 U. S. 918
Washington did not understand the Appointments Clause. In any
case, it is silly to think that the Second Congress (or any later
Congress) was supposed to
guess whether the President
would bring the new agency into his Cabinet in order to determine
how the appointment of its inferior officers could be made.
Modern practice as well as original practice refutes the
distinction between Cabinet and non-Cabinet agencies. Congress has
empowered non-Cabinet agencies to appoint inferior officers for
quite some time.
See, e.g., 47 U.S.C. § 155(f) (FCC --
managing director); 15 U.S.C. § 78d(b) (Securities and Exchange
Commission -- "such officers . . . as may be necessary"); 15 U.S.C.
§ 42 (Federal Trade Commission -- secretary); 7 U.S.C. § 4a(c)
(Commodity Futures Trading Commission -- general counsel). In fact,
I know of very few inferior officers in the independent agencies
who are appointed by the President, and of none who is appointed by
the head of a Cabinet department. The Court's interpretation of
"Heads of Departments" casts into doubt the validity of many
appointments and a number of explicit statutory authorizations to
appoint.
A number of factors support the proposition that "Heads of
Departments" includes the heads of all agencies immediately below
the President in the organizational structure of the Executive
Branch. It is quite likely that the "Departments" referred to in
the Opinions Clause ("The President . . . may require the Opinion,
in writing, of the principal Officer in each of the executive
Departments," Art. II, § 2) are the same as the "Departments" in
the Appointments Clause.
See Germaine, supra at
99 U. S. 511.
In the former context, it seems to me, the word must reasonably be
thought to include all independent establishments. The purpose of
the Opinions Clause, presumably, was to assure the President's
ability to get a written opinion on all important matters. But if
the "Departments" it referred to were only Cabinet departments,
Page 501 U. S. 919
it would not assure the current President the ability to receive
a written opinion concerning the operations of the Central
Intelligence Agency, an agency that is not within any other
department, and whose Director is not a member of the Cabinet.
This evident meaning -- that the term "Departments" means all
independent executive establishments -- is also the only
construction that makes sense of Article II, § 2's sharp
distinction between principal officers and inferior officers. The
latter, as we have seen, can by statute be made appointable by "the
President alone, . . . the Courts of Law, or . . . the Heads of
Departments." Officers that are not "inferior Officers," however,
must be appointed (unless the Constitution itself
specifies otherwise, as it does, for example, with respect to
officers of Congress) by the President, "
by and with the Advice
and Consent of the Senate." The obvious purpose of this scheme
is to make sure that all the business of the Executive will be
conducted under the supervision of officers appointed by the
President with Senate approval; only officers "inferior,"
i.e., subordinate, to those can be appointed in some other
fashion. If the Appointments Clause is read as I read it, all
inferior officers can be made appointable by their ultimate
(sub-Presidential) superiors; as petitioners would read it, only
those inferior officers whose ultimate superiors happen to be
Cabinet members can be. All the other inferior officers, if they
are to be appointed by an Executive official at all, must be
appointed by the President himself or (assuming cross-department
appointments are permissible) by a Cabinet officer who has no
authority over the appointees. This seems to me a most implausible
disposition, particularly since the makeup of the Cabinet is not
specified in the Constitution, or indeed the concept even
mentioned. It makes no sense to create a system in which the
inferior officers of the Environmental Protection Agency,
Page 501 U. S. 920
for example -- which may include,
inter alios, bureau
chiefs, the general counsel, and administrative law judges -- must
be appointed by the President, the courts of law, or the "Secretary
of Something Else."
In short, there is no reason, in text, judicial decision,
history, or policy, to limit the phrase "the Heads of Departments"
in the Appointments Clause to those officials who are members of
the President's Cabinet. I would give the term its ordinary
meaning, something which Congress has apparently been doing for
decades without complaint. As an American dictionary roughly
contemporaneous with adoption of the Appointments Clause provided,
and as remains the case, a department is "[a] separate allotment or
part of business; a distinct province, in which a class of duties
are allotted to a particular person. . . ." 1 N. Webster, American
Dictionary 58 (1828). I readily acknowledge that applying this word
to an entity such as the Tax Court would have seemed strange to the
Founders, as it continues to seem strange to modern ears. But that
is only because the Founders did not envision that an independent
establishment of such small size and specialized function would be
created. They chose the word "Departmen[t]," however, not to
connote size or function (much less Cabinet status), but separate
organization -- a connotation that still endures even in colloquial
usage today ("that is not my department"). The Constitution is
clear, I think, about the chain of appointment and supervision that
it envisions: principal officers could be permitted by law to
appoint their subordinates. That should subsist, however much the
nature of federal business or of federal organizational structure
may alter.
I must confess that, in the case of the Tax Court, as with some
other independent establishments (notably, the so-called
"independent regulatory agencies" such as the FCC and the Federal
Trade Commission) permitting appointment of inferior officers by
the agency head may not ensure the
Page 501 U. S. 921
high degree of insulation from congressional control that was
the purpose of the appointments scheme elaborated in the
Constitution. That is a consequence of our decision in
Humphrey's Executor v. United States, 295 U.
S. 602 (1935), which approved congressional restriction
upon arbitrary dismissal of the heads of such agencies by the
President, a scheme avowedly designed to made such agencies less
accountable to him, and hence he less responsible for them.
Depending upon how broadly one reads the President's power to
dismiss "for cause," it may be that he has no control over the
appointment of inferior officers in such agencies; and if those
agencies are publicly regarded as beyond his control -- a "headless
Fourth Branch" -- he may have less incentive to care about such
appointments. It could be argued, then, that much of the
raison
d'etre for permitting appointive power to be lodged in "Heads
of Departments,"
see supra at
501 U.S. 903-908, does not exist with
respect to the heads of these agencies, because they, in fact, will
not be shored up by the President, and are thus not resistant to
congressional pressures. That is a reasonable position -- though I
tend to the view that adjusting the remainder of the Constitution
to compensate for
Humphrey's Executor is a fruitless
endeavor. But, in any event, it is not a reasonable position that
supports the Court's decision today -- both because a "Cour[t] of
Law" artificially defined as the Court defines it is even
less resistant to those pressures, and because the
distinction between those agencies that are subject to full
Presidential control and those that are not is entirely unrelated
to the distinction between Cabinet agencies and non-Cabinet
agencies, and to all the other distinctions that the Court
successively embraces. (The Central Intelligence Agency and the
Environmental Protection Agency, for example, though not Cabinet
agencies or components of Cabinet agencies, are not "independent"
agencies in the sense of independence from Presidential
control.)
Page 501 U. S. 922
In sum, whatever may be the distorting effects of later
innovations that this Court has approved, considering the Chief
Judge of the Tax Court to be the head of a department seems to me
the only reasonable construction of Article II, § 2.
For the above reasons, I concur in the judgment that the
decision below must be affirmed.
[
Footnote 2/1]
I have no quarrel with the Court's decision to entertain
petitioners' statutory claim on the merits, as that claim was
resolved on the merits by the Court of Appeals.
See Virginia
Bankshares, Inc. v. Sandberg, post at
501 U. S.
1099, n. 8 (1991).
[
Footnote 2/2]
The Court uses the term "waive" instead of "forfeit,"
see
ante at
501 U. S.
878-880. The two are really not the same, although our
cases have so often used them interchangeably that it may be too
late to introduce precision. Waiver, the "intentional
relinquishment or abandonment of a known right or privilege,"
Johnson v. Zerbst, 304 U. S. 458,
304 U. S. 464
(1938), is merely one means by which a forfeiture may occur. Some
rights may be forfeited by means short of waiver,
see, e.g.,
Levine v. United States, 362 U. S. 610,
362 U. S. 619
(1960) (right to public trial);
United States v. Bascaro,
742 F.2d 1335, 1365 (CA11 1984) (right against double jeopardy),
cert. denied sub nom. Hobson v. United States, 472 U.S.
1017 (1985);
United States v. Whitten, 706 F.2d 1000,
1018, n. 7 (CA9 1983) (right to confront adverse witnesses),
cert. denied, 465 U.S. 1100 (1984), but others may not,
see, e.g., Johnson, supra, (right to counsel);
Patton
v. United States, 281 U. S. 276,
281 U. S. 312
(1930) (right to trial by jury). A right that cannot be waived
cannot be forfeited by other means (at least in the same
proceeding), but the converse is not true.
In this case, petitioners expressly consented to the Special
Trial Judge's role. As far as my analysis is concerned, however, it
would not matter if an even more inadvertent forfeiture were
involved -- that is, if petitioners had not even consented, but had
merely failed to object in timely fashion. I shall not try to
retain the distinction between waiver and forfeiture throughout
this opinion, since many of the sources I shall be using disregard
it.
[
Footnote 2/3]
Ironically enough, the categorical "no-waiver" rule that
petitioners propose would destroy the very parallelism between
administrative and judicial tribunals that
Schor sought to
achieve. For we have held that, in the administrative context, the
use of unauthorized personnel to conduct a hearing (a hearing
examiner not properly appointed pursuant to the Administrative
Procedure Act) would not justify judicial reversal of the agency
decision where no objection was lodged before the agency
itself:
"[W]e hold that the defect in the examiner's appointment was an
irregularity which would invalidate a resulting order if the
Commission had overruled an appropriate objection made during the
hearings. But it is not one which deprives the Commission of power
or jurisdiction, so that, even in the absence of timely objection,
its order should be set aside as a nullity."
United States v. L. A. Tucker Truck Lines, Inc.,
344 U. S. 33,
344 U. S. 38
(1952).
[
Footnote 2/4]
The Court apparently thinks that the Appointments Clause was
designed to check executive despotism.
Ante at
501 U. S.
883-884. This is not what we said in
Buckley v.
Valeo, 424 U. S. 1,
424 U. S. 129
(1976), and it is quite simply contrary to historical fact. The
quotations on which the Court relies describe abuses by the
unelected royal governors and the Crown, who possessed the power to
create and fill offices. The drafters of several early State
Constitutions reacted to these abuses by lodging the appointment
power in the legislature.
See, e.g., Va. Const. (1776)
(legislature appoints judges);
cf. Articles of
Confederation, Art. IX (Congress appoints courts and officers of
land forces). Americans soon learned, however, that,
"in a representative republic where the executive magistracy is
carefully limited . . . , it is against the enterprising ambition
of the [legislative] department that the people ought to indulge
all their jealousy and exhaust all their precautions."
The Federalist No. 48, P. 309 (J. Madison). Soon after the
revolution,
"[t]he appointing authority which in most constitutions had been
granted to the assemblies had become the principal source of
division and faction in the states."
G. Wood, The Creation of The American Republic, 1776-1787, P.
407 (1969). By 1780, States were reacting to these abuses by
reposing appointment authority in the executive.
See
Mass.Const., Part The Second, Chapter II, § 1, Art. IX (1780);
N.H.Const. (1784) (officers appointed by president and a council).
On legislative despotism,
see generally Wood,
supra, at 403-409. The Framers followed the lead of these
later Constitutions. The Appointments Clause is, intentionally and
self-evidently, a limitation on
Congress.
[
Footnote 2/5]
Sadly, the Court also relies on dicta in
Williams v. United
States, 289 U. S. 553
(1933), an opinion whose understanding of the principles of
separation of powers ought not inspire confidence, much less prompt
emulation. It includes, for example, the notion that all disputes
over which Article III provides jurisdiction can only be committed
to Article III courts,
id. at
289 U. S.
580-581;
see also D. Currie, Federal Courts
145-146 (1982) -- which would make the Tax Court unconstitutional.
Williams has been declared an "intellectual disaster" by
commentators. P. Bator, D. Meltzer, P. Miskin, & D. Shapiro,
Hart & Wechsler's The Federal Courts and The Federal System 468
(3d ed.1988); Bator, The Constitution as Architecture: Legislative
And Administrative Courts Under Article III, 65 Ind.L.J. 233,
242-243, n. 30 (1990) ("I could devote a whole lecture to the ways
in which [the reasoning of
Williams] is erroneous").