Are Bankruptcy Judges Unconstitutional? An Appointments Clause Challenge

Abstract:     
The Appointments Clause permits Congress to opt out of the Article II procedure of presidential nomination and Senate advice and consent by vesting the appointment of inferior officers in the President alone, in the Courts of Law, or in the Heads of Departments. Congress exercised this option when it vested the power to appoint bankruptcy judges in the U.S. Courts of Appeals, implicitly categorizing these judges as inferior officers and thereby exposing a potential Achilles heel. Although the Courts of Law have appointed bankruptcy adjudicators since the earliest bankruptcy laws, this Article advances the position that bankruptcy judges have gradually and over time accrued tenure, safeguards against removal, expansive jurisdiction and duties that are incompatible with inferior officer status under the balancing approach of Morrison v. Olson. Accordingly, they are not amenable to being opted out of advice and consent and they must be appointed pursuant to the default Article II procedure. The appointments of present bankruptcy judges are consequently suspect and their judgments and orders are of questionable validity.

An Article II challenge has escaped the attention of academic commentators and (largely) that of the courts. Resolution of the challenge will require the Supreme Court to clarify its Appointments Clause jurisprudence. This Article argues that the Court's pronouncements on inferior officers in Morrison and Edmond v. United States are irreconcilable. Which authority controls likely would dictate the outcome of any challenge. Accordingly, the Court must either acknowledge that Justice Scalia's majority opinion in Edmond has overruled its landmark decision in Morrison or declare unconstitutional the present method of appointing bankruptcy judges. Thus, the challenge could be potentially similar in scale to the Court's 1982 Marathon decision, which struck down on separation-of-powers grounds the bankruptcy courts' key jurisdictional provision.

Beyond charting a roadmap to the challenge, the Article suggests legislative remedies that could save bankruptcy judges from an Appointments Clause challenge. But, were the Court to resolve the challenge by abandoning Morrison in favor of Edmond, the Article suggests two policy implications: bankruptcy judges could be granted Article III tenure while retaining their present methods of appointment and all inferior court Article III judges could be appointed in the same manner.

Number of Pages in PDF File: 64

Keywords: bankruptcy, judges, appointments clause, separation of powers, checks and balances

JEL Classification: K10, K30, K40

Accepted Paper Series