Subject:  FREYTAG v. COMMISSIONER, Syllabus



 
    NOTE: Where it is feasible, a syllabus (headnote) will be released, as
is being done in connection with this case, at the time the opinion is
issued.  The syllabus constitutes no part of the opinion of the Court but
has been prepared by the Reporter of Decisions for the convenience of the
reader.  See United States v. Detroit Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES


Syllabus


FREYTAG et al. v. COMMISSIONER OF
INTERNAL REVENUE


certiorari to the united states court of appeals for the fifth circuit

No. 90-762.  Argued April 23, 1991 -- Decided June 27, 1991

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. MDRV 7443A(a), and to assign to them certain
specified proceedings, 15 7443A(b)(1), (2), and (3), and "any other
proceeding which the chief judge may designate," MDRV 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, MDRV 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 MDRV 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. 4-8.

    2. Section 7443A does not transgress the structure of separation of
powers embodied in the Appointments Clause.  Pp. 8-23.

    (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
may be considered, even though petitioners consented to the assignment.
See Glidden Co. v. Zdanok, 370 U. S. 350, 535-536.  Pp. 9-11.

    (b) A special trial judge is an "inferior Officer" whose appointment
must conform to the Appointments Clause.  Such a judge acts as an in ferior
officer who exercises independent authority in cases governed by subsection
(b)(1), (2), and (3).  The fact that in subjection (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. 11-13.

    (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 "Department" refers only to executive divisions like
Cabinet-level departments.  United States v. Germaine, 99 U. S. 508,
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. 13-19.

    (d) An Article I court, which exercises judicial power, can be a "Court
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 leg islative tribunals,
see, e. g., American Ins. Co. v. Canter, 1 Pet. 511, 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., In re Hennen, 13 Pet. 230.  Pp. 19-21.

    (e) The Tax Court is a "Court 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. 21-23.

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 in the
judgment, in which O'Connor, Kennedy, and Souter, JJ., joined.

------------------------------------------------------------------------------




Subject: 90-762 -- OPINION, FREYTAG v. COMMISSIONER

 


NOTICE: This opinion is subject to formal revision before publication in
the preliminary print of the United States Reports.  Readers are requested
to notify the Reporter of Decisions, Supreme Court of the United States,
Washington, D. C. 20543, of any typographical or other formal errors, in
order that corrections may be made before the preliminary print goes to
press.
SUPREME COURT OF THE UNITED STATES


No. 90-762



THOMAS FREYTAG, et al., PETITIONERS v.
COMMISSIONER OF INTERNAL REVENUE


on writ of certiorari to the united states court of appeals for the fifth
circuit

[June 27, 1991]



    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, MDRV 951, 83 Stat. 730, 26 U. S. C. MDRV
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.  MDRV 958, 83 Stat. 734.  By the Tax Reform Act of 1984, MDRV
464(a), 98 Stat. 824, the title "commissioner" was changed to "special
trial judge."  By MDRV 463(a) of that Act, 98 Stat. 824, and by MDRV
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 described proceedings and "any other
proceeding which the chief judge may designate."  26 U. S. C. 15 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.  26 U. S. C. 15 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. {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 owed additional taxes.  The chief judge adopted Judge Powell's
opinion as that of the Tax Court.  89 T. C. 849 (1987). {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 MDRV
7443A, and that this violated the Appointments Clause of the Constitution,
Art. II, MDRV 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.
    We granted certiorari, --- U. S. --- (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.  MDRV 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 MDRV 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, --- U. S. ---, --- (1991) (slip op. 6).  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 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, --- (1989) (slip op. 5).
    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. {3}  Because they do not distinguish between hearing a 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 MDRV 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, MDRV 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 judge's 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.
    Petitioners also argue that the phrase "any other proceeding" is a
general grant of authority to fill unintended gaps left by subsections
7443A(b)(1), (2), and (3).  Reading subsection (b)(4) as a catch-all
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. MDRV 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 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, MDRV 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, 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
Public Welfare Dept. v. Davenport, --- U. S. ---, --- (1990) (slip op. 8).
See also Automobile Workers v. Johnson Controls, Inc., --- U. S. ---, ---
(1991) (slip op. 12).  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 MDRV 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,
MDRV 2, cl. 2.  According to petitioners, a special trial judge is an
"Officer" 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
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 Officer," 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 Government's argument that petitioners have waived
their right to challenge the constitutional propriety of MDRV 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, 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, 71-72
(1968); Glidden Co. v. Zdanok, 370 U. S. 530, 535-536 (1962); Hormel v.
Helvering, 312 U. S. 552, 556-560 (1941).  Glidden expressly included
Appointments Clause objections to judicial officers in the category of
nonjurisdictional structural 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, 117-118, the claim that an
intercircuit assignment . . . usurped the presidential appointing power
under Art. II, MDRV 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 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 MDRV 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.
    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, 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 Officer" 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, 126, n.
162 (1976).
    The Commissioner, in contrast to petitioners, argues that a special
trial judge assigned under MDRV 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 trial judges acting
pursuant to MDRV 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 MDRV 2, cl. 2, of [Art.
II]."  Buckley, 424 U. S., at 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, 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
Officer" 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, MDRV 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, 516517 (1920); United
States v. Germaine, 99 U. S. 508, 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, 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 15 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
limitedamount 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 limitedamount 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 MDRV 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 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. Olsen, 487 U. S.
654, 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
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 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
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 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 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 "Department" nor a "Court 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.
    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
MDRV 7441, the body was an independent agency (the predecessor Board of Tax
Appeals) within the Executive Branch.  Furthermore, the Commissioner argues
that MDRV 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, at 79-80.  So do we.
For the chief judge of the Tax Court to qualify as a "Head of a
Department," the Commissioner must demonstrate not only that the Tax 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 "Department" 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 510-511.  See also Burnap, 252 U. S., at
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 511.
    Confining the term "Heads of Departments" in the Appointments Clause to
executive divisions like the Cabinetlevel 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 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, MDRV 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 Department" to
the Cabinet members.
    The phrase "executive departments" also appears in MDRV 4 of the
Twenty-fifth Amendment, which empowers the Vice 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."  U. S. Const., Amdt. 25, MDRV 4.  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. {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 MDRV 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
"Department" 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" 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
"Head" 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
"Department."
    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 "Court of Law" within the
meaning of the Appointments Clause because, they say, that term is limited
to Article III courts. {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 543.
But petitioners' argument fails nevertheless.  We 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., American Ins. Co. v.
Canter, 1 Pet. 511, 546 (1828) (the judicial power of the United States is
not limited to the judicial power defined under Art. III and may be
exercised by legislative courts); Williams v. United States, 289 U. S. 553,
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 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 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 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 Construction Co. v. Marathon Pipe Line
Co., 458 U. S. 50, 64 (1982), Congress provided for the creation of
legislative courts and authorized those courts to appoint clerks, who were
inferior officers.  See, e. g., In re Hennen, 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 401, quoting
Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S., at 610 (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 "Court 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 563-567.  The Tax Court exercises judicial, rather
than 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.
MDRV 7456(c); to grant certain injunctive relief, MDRV 6213(a); to order
the Secretary of the Treasury to refund an overpayment determined by the
court, MDRV 6512(b)(2); and to subpoena and examine witnesses, order
production of documents, and administer oaths, MDRV 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."  MDRV 7482(a).  This standard of
review contrasts with the standard applied to agency rulemaking by the
Courts of Appeals under MDRV 10(e) of the Administrative Procedure Act, 5
U. S. C. MDRV 706(2)(A).  See Motor Vehicle Mfrs. Ass'n v. State Farm
Mutual Auto Ins. Co., 463 U. S. 29, 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 1800s, 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 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.
 
 
 
 
 
------------------------------------------------------------------------------
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.

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.

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.
MDRV 7443A(b)(4).  Accordingly, we say no more about this new argument than
to note that under MDRV 7443A(c), a special trial judge has no authority to
decide a case assigned under subsection (b)(4).

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. MDRV 101 does not provide a similar limitation on the term "De partment"
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 Exchange Commission, the Federal Energy Regulatory Commission,
the Central Intelligence Agency, and the Federal Reserve Bank of St.
Louis.

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 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 34-48.





Subject: 90-762 -- CONCUR, FREYTAG v. COMMISSIONER

 


    SUPREME COURT OF THE UNITED STATES


No. 90-762



THOMAS FREYTAG, et al., PETITIONERS v.
COMMISSIONER OF INTERNAL REVENUE


on writ of certiorari to the united states court of appeals for the fifth
circuit

[June 27, 1991]



    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. MDRV 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 Art. II, MDRV 2, cl. 2, of
the 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,
MDRV 2, cl. 2?"  498 U. S. --- (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 9-11.
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 petitioner's constitutional
claim.  Ante, at 10.  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 the 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 nonjuris dictional 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 --- (slip op., at 3-4) (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. {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, 444
(1944); see also United States v. Socony-Vacuum Oil Co., 310 U. S. 150,
238-239 (1940).  Forfeiture {2} is "not a mere technicality and is
essential to the orderly administration of justice."  9 C. Wright & A.
Miller, Federal Practice and Procedure MDRV 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, 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 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 Board of Examiners in Optometry, 374 U. S. 424, 432-433
n. 12 (1963) (First Amendment); Levine v. United States, 362 U. S. 610, 619
(1960) (Sixth Amendment).  Nor it is 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, 17-18 (1951); Mansfield, C. & L. M. R. Co. v. Swan,
111 U. S. 379, 382 (1884); Capron v. Van Noorden, 2 Cranch 126, 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 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, Ltd. v. Compagnie des Bauxites de Guinee, 456 U. S. 694, 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, sections 1 and 2) "notions
of consent and waiver cannot be dispositive."  Id., at 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, MDRV 2."  478
U. S., at 850-851. {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 10, 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 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 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. ---, --- (1991) (slip op., at 7).  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, 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, 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. ---
(1991); Opdyke Investment Co. v. Detroit, 883 F. 2d 1265, 1276 (CA6 1989)
(same); Interface Group, Inc. v. 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 10, 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," ante, at 10.  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 extends not merely to "frivolous" and "disingenuous" challenges,
but even to "[t]he most basic rights of criminal defendants."  Peretz,
post, at --- (slip op., at 12).  Here petitioners expressly consented to
the special trial judge.  Under 26 U. S. C. MDRV 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 10, 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, MDRV 2, cl. 2.
I agree with the Court that a special trial judge is an "inferior Officer"
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 "Court of Law" within the meaning of this
provision.  I would find the appointment valid because the Tax Court is a
"Department" 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" 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 "Court 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 19.  This is no doubt true, but
irrelevant.  It is equally true that Article I, MDRV 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, MDRV 1; it has never been relied on for establishment of any
other tribunals."  Glidden Co. v. Zdanok, 370 U. S., at 543 (Opinion of
Harlan, J.); see also 3 J. Story, Commentaries on the Constitution of the
United States MDRV 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, 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,
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, MDRV 1, whose judges
serve during good behavior with undiminishable salary.  Art. III, MDRV 1.
See Glidden Co. v. Zdanok, supra, at 543 (Opinion of Harlan, J.); United
States v. Mouat, 124 U. S. 303, 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 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 Appointment Clause's limitation to Article III
tribunals was adopted with calculation and forethought, faithfully
implementing a considered political theory for the appointment of
officers.
    The Framers' experience with post-revolutionary selfgovernment had
taught them that combining the power to create offices with the power to
appoint officers was a recipe for legislative corruption. {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, MDRV 6, cl. 2.  See Buckley, 424 U.
S., at 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 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, p. 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 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, MDRV 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, MDRV 1.  Without this, "the separation of the 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, MDRV 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 Construction Co. v. Marathon Pipe Line Co., 458 U. S. 50, 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 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, MDRV 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 Art. III."  Ante, at 20.  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 Court a "Court 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 20.  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, 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, 12 Wheat. 19, 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, 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. 15 554, 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.
MDRV 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 States, as it may deem proper."
Murray's Lessee, supra, at 284.  See also Ex Parte Bakelite Corp., 279 U.
S. 438, 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, 749
(1986) (Stevens, J., concurring in judgment).  Cf. INS v. Chadha, 462 U. S.
919, 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 Colony
Trust Co. v. Commissioner, 279 U. S. 716, 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. MDRV 1100
(1952 ed.), and continued to perform the same function.  As an executive
agency, it possessed many of the accoutrements the Court considers "quin
tessentially judicial," ante, at 22.  It administered oaths, for example,
and subpoenaed and examined witnesses, 26 U. S. C. MDRV 1114 (1952 ed.);
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," 26
U. S. C. MDRV 1141(a) (1952 ed.).  This Court continued to treat it as an
administrative agency, akin to the Federal Communications Commission (FCC)
or the National Labor Relations Board.  See Dobson v. Commissioner, 320 U.
S. 489, 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, 478 U.
S. 714, 729 (1986), 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 National Labor Relations Board,
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 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).
    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 20-22.  Those courts have nothing to do with the issue before us.
{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 Ins.
Co. v. Canter, 1 Pet. 511, 546 (1828) (Marshall, C. J.) (emphasis added).


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, 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 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 21.  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, MDRV 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.
    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 make it a "Department" 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 petitioner's 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, 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 17 (emphasis added); by the
Court's observation that "[t]he Cabinet-level departments are limited in
number and easily identified," ante, at 17; and by its reliance upon the
fact that in the 25th Amendment "the term `department' refers to
Cabinet-level entities," ante, at 18.  Elsewhere, however, the Court
seemingly disclaims Cabinet status as the criterion, see ante, at 18, n. 4,
and says that the term "Department" means "executive divisions like the
Cabinet-level departments," ante, at 17 (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 defintion of "department" in 5 U. S. C. MDRV 101, ante, at 18
(quoting H. R. Rep. No. 203, 89th Cong., 1st Sess., 3  (1965)), but this
hint is cancelled by a footnote making it clear that "Cabinet-like"
character, whatever it is, is not "strictly limit[ed]" by that provision,
ante, at 18, 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 Federal Communications Commission, which the Court
also appears willing to consider such a "great division," ibid., 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 17 --
namely, independent regulatory agencies such as the Federal Trade
Commission and Securities Exchange Commission, ante, at 18, n. 4.  Indeed,
lest any conceivable improbability be excluded, the Court even reserves the
right to consider as a "Department" 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. 15 302,
304 & 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 "Department"
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 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."  MDRV 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 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. MDRV 155(f) (FCC -- Managing Director); 15 U. S. C.
MDRV 78d(b) (Securities and Exchange Commission -- "such officers . . . as
may be necessary"); 15 U. S. C. MDRV 42 (Federal Trade Commission --
Secretary); 7 U. S. C. MDRV 4a(c) (Commody 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, MDRV 2) are the same as the
"Departments" in the Appointments Clause.  See Germaine, supra, at 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, 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 Art. II, MDRV 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 make-up 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, 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 "Department,"
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 socalled "independent regulatory
agencies" such as the Federal Communications Commission and the Federal
Trade Commission) permitting appointment of inferior officers by the agency
head may not insure the 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 12-16, supra, 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 "Court of Law"
artificially defined as the Court defines it is even less resistent 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.)  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, MDRV 2.
*  *  *
    For the above reasons, I concur in the judgment that the decision below
must be affirmed.
 
 
 
 
 
 

------------------------------------------------------------------------------
1
    I have no quarrel with the Court's decision to entertain petitioner's
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
---, n. 8 (1991) (slip op., at 14, n. 8).

2
    The Court uses the term "waive" instead of "forfeit," see ante at 9-11.
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, 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,
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, 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.

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,
38 (1952).

4
    The Court apparently thinks that the Appointments Clause was designed
to check executive despotism.  Ante, at 14-15.  This is not what we said in
Buckley v. Valeo, 424 U. S. 1, 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, 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, MDRV 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.

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 580-581, see also, D. Currie, Federal Courts, at
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").
