Blackmun (and Scalia) at the Bat: The Court's Separation-of-Powers Strike Out in Freytag
13 Pages Posted: 16 May 2012 Last revised: 1 Jun 2012
Date Written: October 1, 2011
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."
Keywords: Appointments Clause, separation of powers, removal power, tax court, armed forces, legislative courts
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