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Blackmun (and Scalia) at the Bat: The Court's Separation-of-Powers Strike Out in Freytag


Tuan Samahon


Villanova University - School of Law

October 1, 2011

Nevada Law Journal, Vol. 12, 2012
Villanova Law/Public Policy Research Paper No. 2012-2015

Abstract:     
This contribution to the "worst Supreme Court cases" symposium examines Erwin Griswold's role in the litigation of Freytag v. Commissioner and the majority's holding that the U.S. Tax Court is a part of "the Courts of Law." The Author concludes that the Freytag majority created the risk of a further separation-of-powers challenge to the Tax Court predicated on the President's qualified power to remove tax court judges (26 U.S.C. sec. 7443(f)), officers who per Freytag exercise "the judicial power of the United States." Assuming, arguendo, the Tax Court judges do exercise "the judicial power of the United States" (and not executive power), Congress impermissibly granted to the President a cross-branch power to remove these judges. The Author argues that even a qualified power to remove affords a degree of control, and an executive's qualified power to remove a judicial officer represents an executive's power to control to some degree the exercise of judicial power. In this context, the article considers newly released presidential archival sources on the non-transparent "resignation" of Judge Albert Fletcher of the U.S. Court of Military Appeals as, in effect, a precipitated but disguised removal "for cause."

The Author also offers a critique of Scalia's concurring opinion. It suggests that although an officer's attributes are necessary for the proper characterization of the exercise of power (whether legislative, executive or judicial), they are not alone sufficient to characterize the same. Instead, some resort must be made to some definition or conception of what is encompassed within the scope of "the judicial power of the United States."

Number of Pages in PDF File: 13

Keywords: Appointments Clause, separation of powers, removal power, tax court, armed forces, legislative courts

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Date posted: May 16, 2012 ; Last revised: June 1, 2012

Suggested Citation

Samahon, Tuan, Blackmun (and Scalia) at the Bat: The Court's Separation-of-Powers Strike Out in Freytag (October 1, 2011). Nevada Law Journal, Vol. 12, 2012; Villanova Law/Public Policy Research Paper No. 2012-2015. Available at SSRN: http://ssrn.com/abstract=2059355

Contact Information

Tuan Samahon (Contact Author)
Villanova University - School of Law ( email )
299 N. Spring Mill Road
Villanova, PA 19085
United States
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