Freytag v. Commissioner of Internal Revenue/Opinion of the Court

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Concurring Opinion

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.

* By the Tax Reform Act of 1969, § 951, 83 Stat. 730, 26 U.S.C. § 7441, Congress "established, under article I of the Constitution of the United States, a court of record to be known as the United States Tax Court." It also empowered the Tax Court to appoint commissioners to assist its judges. § 958, 83 Stat. 734. By the Tax Reform Act of 1984, § 464(a), 98 Stat. 824, the title "commissioner" was changed to "special trial judge." By § 463(a) of that Act, 98 Stat. 824, and by § 1556(a) of the Tax Reform Act of 1986, 100 Stat. 2754, Congress authorized the chief judge of the Tax Court to appoint and assign these special trial judges to hear certain specifically described proceedings and "any other proceeding which the chief judge may designate." 26 U.S.C. §§ 7443A(a) and (b). The Tax Court presently consists of 19 judges appointed to 15-year terms by the President, by and with the advice and consent of the Senate. 26 U.S.C. §§ 7443(a), (b), and (e).

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 § 7443A, and that this violated the Appointments Clause of the Constitution, Art. II, § 2, cl. 2. The Court of Appeals ruled that because the question of the special trial judge's authority was "in essence, an attack upon the subject matter jurisdiction of the special trial judge, it may be raised for the first time on appeal." 904 F.2d, at 1015 (footnote omitted). The court then went on to reject petitioners' claims on the merits. It concluded that the Code authorized the chief judge of the Tax Court to assign a special trial judge to hear petitioners' cases and that petitioners had waived any constitutional challenge to this appointment by consenting to a trial before Judge Powell. Id., at 1015, n. 9.

We granted certiorari, --- U.S. ----, 111 S.Ct. 781, 112 L.Ed.2d 844 (1991), to resolve the important questions the litigation raises about the Constitution's structural separation of powers.

Section 7443A(b) of the Internal Revenue Code specifically authorizes the chief judge of the Tax Court to assign four categories of cases to special trial judges: "(1) any declaratory judgment proceeding," "(2) any proceeding under section 7463," "(3) any proceeding" in which the deficiency or claimed overpayment does not exceed $10,000, and "(4) any other proceeding which the chief judge may designate." In the first three categories, the chief judge may assign the special trial judge not only to hear and report on a case but also to decide it. § 7443A(c). In the fourth category, the chief judge may authorize the special trial judge only to hear the case and prepare proposed findings and an opinion. The actual decision then is rendered by a regular judge of the Tax Court.

Petitioners argue that adjudication by the special trial judge in this litigation exceeded the bounds of the statutory authority that Congress has conferred upon the Tax Court. Despite what they concede to be the "sweeping language" of subsection (b)(4), Brief for Petitioners 6, petitioners claim that Congress intended special trial judges to preside over only the comparatively narrow and minor matters covered by subsections (b)(1), (2), and (3).

The plain language of § 7443A(b)(4) surely authorizes the chief judge's assignment of petitioners' cases to a special trial judge. When we find the terms of a statute unambiguous, judicial inquiry should be complete except in rare and exceptional circumstances. Demarest v. Manspeaker, --- U.S. ----, ----, 111 S.Ct. 599, 603, 112 L.Ed.2d 608 (1991). Subsection (b)(4) could not be more clear. It states that the chief judge may assign "any other proceeding" to a special trial judge for duties short of "mak[ing] the decision." The subsection's text contains no 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, ---, 110 S.Ct. 304, 309, 107 L.Ed.2d 237 (1989).

Nothing in the legislative history contradicts the broad sweep of subsection (b)(4)'s language. In proposing to authorize the chief judge to assign "any other proceeding" to the special trial judges, the Committee on Ways and Means stated that it intended "to clarify" that any other proceeding could be assigned to special trial judges "so long as a Tax Court judge must enter the decision." H.R.Rep. No. 98-432, pt. 2, p. 1568 (1984), U.S.Code Cong. & Admin.News 1984, pp. 697, 1198. 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), U.S.Code Cong. & Admin.News 1984, p. 1815, 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 § 7443A was merely a "technical" change and cannot be read to transfer dispositive power to special trial judges. Petitioners are correct that the 1984 amendment neither transferred decisional power nor altered the substantive duties of the special trial judges. Congress has limited the authority of special trial judges to enter decisions to the narrow category of cases set forth in subsections (b)(1), (2), and (3). The scope of the special trial judges' authority to hear and decide cases, however, has little, if any, relevance to the category of cases that the special trial judges may hear but not decide.

Since the enactment of the Revenue Act of 1943, § 503, 58 Stat. 72, the Tax Court has possessed authority to appoint commissioners to assist it in particular cases. Special trial judges and their predecessors, the commissioners, have been authorized for almost a half century to hear any case before the Tax Court in the discretion of its chief judge. In practice, before 1984, special trial judges often heard and reported on large and complex cases. Accordingly, when Congress adopted subsection (b)(4), it codified the chief judge's discretion to assign cases like petitioners' to a special trial judge for hearing and preparation of a report. The 1984 amendment was "technical" in light of the historical development of the special trial 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 sections 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, 109 S.Ct. 2237, 104 L.Ed.2d 923 (1989).

We held in Gomez that the Federal Magistrates Act's general grant of authority allowing magistrates to "be assigned such additional duties as are not inconsistent with the Constitution and laws of the United States," 28 U.S.C. § 636(b)(3), did not permit a magistrate to supervise juror voir dire in a felony trial over a defendant's objection. In so holding, we explained:

"When a statute creates an office to which it assigns specific duties, those duties outline the attributes of the office. Any additional duties performed pursuant to a general authorization in the statute reasonably should bear some relation to the specified duties." 490 U.S., at 864, 109 S.Ct., at 2241.

In the Magistrates Act, the list of specifically enumerated duties followed the general grant of authority and provided the outlines for the scope of the general grant. Unlike the Magistrates Act, § 7443A explicitly distinguishes between the categories of cases enumerated in subsections (b)(1), (2), and (3), which are declaratory judgment proceedings and cases involving $10,000 or less, and the category of "any other proceeding" found in subsection (b)(4).

The lesser authority exercised by special trial judges in proceedings under subsection (b)(4) also prevents that subsection from serving as a grant of general authority to fill any gaps left in the three preceding subsections. Special trial judges may hear and decide declaratory judgment proceedings and the limited-amount cases. A special trial judge, 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. ----, ----, 110 S.Ct. 2126, 2133, 109 L.Ed.2d 588 (1990). See also Automobile Workers v. Johnson Controls, Inc., --- U.S. ----, ----, 111 S.Ct. 1196, 1204, 113 L.Ed.2d 158 (1991). The scope of subsection (b)(4) must be greater than that of subsections (b)(1), (2), and (3).

We conclude that subsection (b)(4) permits the chief judge to assign any Tax Court proceeding, regardless of complexity or amount, to a special trial judge for hearing and the preparation of proposed findings and written opinion. The statute's language, structure, and history permit no other conclusion.

This construction of § 7443A raises a constitutional issue to which we now must turn. Petitioners submit that if subsection (b)(4) permits a special trial judge to preside over the trial of any Tax Court case, then the statute violates the Appointments Clause of the Constitution, Art. II, § 2, cl. 2. According to petitioners, a special trial judge is an "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.

We first address the Government's argument that petitioners have waived their right to challenge the constitutional propriety of § 7443A. The Commissioner contends that petitioners waived this right not only by failing to raise a timely objection to the assignment of their cases to a special trial judge, but also by consenting to the assignment.

The roots of the separation-of-powers concept embedded in the Appointments Clause are structural and political. Our separation-of-powers jurisprudence generally focuses on the danger of one Branch's aggrandizing its power at the expense of another Branch. See Mistretta v. United States, 488 U.S. 361, 382, 109 S.Ct. 647, 659, 102 L.Ed.2d 714 (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, 88 S.Ct. 709, 715, 19 L.Ed.2d 906 (1968); Glidden Co. v. Zdanok, 370 U.S. 530, 535-536, 82 S.Ct. 1459, 1464-1465, 8 L.Ed.2d 671 (1962); Hormel v. Helvering, 312 U.S. 552, 556-560, 61 S.Ct. 719, 721-723, 85 L.Ed. 1037 (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[, 36 S.Ct. 535, 539-540, 60 L.Ed. 912 (1916) ], the claim that an intercircuit assignment . . . usurped the presidential appointing power under Art. II, § 2, was heard here and determined upon its merits, despite the fact that it had not been raised in the District Court or in the Court of Appeals or even in this Court until the filing of a supplemental brief upon a second request for review." Glidden, 370 U.S., at 536, 82 S.Ct., at 1465 (Harlan, J., announcing the judgment of the Court).

Like the Court in Glidden, we are faced with a constitutional challenge that is neither frivolous nor disingenuous. The alleged defect in the appointment of the special trial judge goes to the validity of the Tax Court proceeding that is the basis for this litigation. It is true that, as a general matter, a litigant must raise all issues and objections at trial. But the disruption to sound appellate process entailed by entertaining objections not raised below does not always overcome what Justice Harlan called "the strong interest of the federal judiciary in maintaining the constitutional plan of separation of powers." Ibid. We conclude that this is one of those rare cases in which we should exercise our discretion to hear petitioners' challenge to the constitutional authority of the special trial judge.

In reaching this conclusion, we note that we are not persuaded by the Commissioner's request that this Court defer to the Executive Branch's decision that there has been no legislative encroachment on presidential prerogatives under the Appointments Clause in connection with § 7443A. According to the Commissioner, the structural interests implicated in this litigation are those of the Executive Branch, which can be expected to look out for itself. It is claimed, accordingly, that there is no need for this Court to be concerned about protecting the separation-of-powers interests at stake here.

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, 103 S.Ct. 2764, 2779, n. 13, 77 L.Ed.2d 317 (1983). The structural interests protected by the Appointments Clause are not those of any one Branch of government but of the entire Republic.

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, 96 S.Ct. 612, 685, n. 162, 46 L.Ed.2d 659 (1976).

The Commissioner, in contrast to petitioners, argues that a special trial judge assigned under § 7443A(b)(4) acts only as an aide to the Tax Court judge responsible for deciding the case. The special trial judge, as the Commissioner characterizes his work, does no more than assist the Tax Court judge in taking the evidence and preparing the proposed findings and opinion. Thus, the Commissioner concludes, special trial judges acting pursuant to § 7443A(b)(4) are employees rather than "Officers of the United States."

"[A]ny appointee exercising significant authority pursuant to the laws of the United States is an 'Officer of the United States,' and must, therefore, be appointed in the manner prescribed by § 2, cl. 2, of [Art. II]." Buckley, 424 U.S., at 126, 96 S.Ct., at 685. 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, 51 S.Ct. 153, 156-157, 75 L.Ed. 374 (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, § 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, 516-517, 40 S.Ct. 374, 376-377, 64 L.Ed. 692 (1920); United States v. Germaine, 99 U.S. 508, 511-512, 25 L.Ed. 482 (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 §§ 7443A(b)(1), (2), and (3), and (c), the chief judge may assign special trial judges to render the decisions of the Tax Court in declaratory judgment proceedings and limited-amount tax cases. The Commissioner concedes that in cases governed by subsections (b)(1), (2), and (3), special trial judges act as inferior officers who exercise independent authority. But the Commissioner urges that petitioners may not rely on the extensive power wielded by the special trial judges in declaratory judgment proceedings and limited-amount tax cases because petitioners lack standing to assert the rights of taxpayers whose cases are assigned to special trial judges under subsections (b)(1), (2), and (3).

This standing argument seems to us to be beside the point. Special trial judges are not inferior officers for purposes of some of their duties under § 7443A, but mere employees with respect to other responsibilities. The fact that an inferior officer on occasion performs duties that may be performed by an employee not subject to the Appointments Clause does not transform his status under the Constitution. If a special trial judge is an inferior officer for purposes of subsections (b)(1), (2), and (3), he is an inferior officer within the meaning of the Appointments Clause and he must be properly appointed.

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. Olson, 487 U.S. 654, 675-677, 108 S.Ct. 2597, 2610-2612, 101 L.Ed.2d 569 (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, 108 S.Ct., at 2611. 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, 96 S.Ct., at 691-692 (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, 96 S.Ct., at 687-688. 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 § 7441, the body was an independent agency (the predecessor Board of Tax Appeals) within the Executive Branch. Furthermore, the Commissioner argues that § 7441 simply changed the status of the Tax Court within that Branch. It did not remove the body to a different Branch or change its substantive duties.

The Commissioner "readily" acknowledges that "the Tax Court's fit within the Executive Branch may not be a perfect one." Brief for Respondent 41. But he argues that the Tax Court must fall within one of the three Branches and that the Executive Branch provides its best home. The reasoning of the Commissioner may be summarized as follows: (1) The Tax Court must fit into one of the three Branches; (2) it does not fit into either the Legislative Branch or the Judicial Branch; (3) at one time it was an independent agency and therefore it must fit into the Executive Branch; and (4) every component of the Executive Branch is a department.

We cannot accept the Commissioner's assumption that every part of the Executive Branch is a department the head of which is eligible to receive the appointment power. The Appointments Clause prevents Congress from distributing power too widely by limiting the actors in whom Congress may vest the power to appoint. The Clause reflects our Framers' conclusion that widely distributed appointment power subverts democratic government. Given the inexorable presence of the administrative state, a holding that every organ in the Executive Branch is a department would multiply indefinitely the number of actors eligible to appoint. The Framers recognized the dangers posed by an excessively diffuse appointment power and rejected efforts to expand that power. See Wood, 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, 40 S.Ct., at 376 ("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 Cabinet-level departments constrains the distribution of the appointment power just as the Commissioner's interpretation, in contrast, would diffuse it. The Cabinet-level departments are limited in number and easily identified. Their heads are subject to the exercise of political oversight and share the President's accountability to the people.

Such a limiting construction also ensures that we interpret that term in the Appointments Clause consistently with its interpretation in other constitutional provisions. In Germaine, see 99 U.S., at 511, this Court noted that the phrase "Heads of Departments" in the Appointments Clause must be read in conjunction with the Opinion Clause of Art. II, § 2, cl. 1. The Opinion Clause provides that the President "may require the Opinion, in writing, of the principal Officer in each of the Executive Departments," and Germaine limited the meaning of "Executive Department" to the Cabinet members.

The phrase "executive departments" also appears in § 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.C.onst., Amdt. 25, § 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 § 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), U.S.Code Cong. & Admin.News 1969, pp. 1645, 2027. 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, 82 S.Ct., at 1469. 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, 7 L.Ed. 242 (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, 53 S.Ct. 751, 754-755, 77 L.Ed. 1372 (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, 53 S.Ct., at 754-755.

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, 96 S.Ct., at 688, 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, 102 S.Ct. 2858, 2868, 73 L.Ed.2d 598 (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, 10 L.Ed. 138 (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, 109 S.Ct., at 669, quoting Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 610, 72 S.Ct. 863, 897, 96 L.Ed. 1153 (1952) (concurring opinion), this longstanding interpretation provides evidence that Article I courts are not precluded from being "Courts of Law" within the meaning of the Appointments Clause.

Having concluded that an Article I court, which exercises judicial power, can be a "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, 53 S.Ct., at 753-755. 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. § 7456(c); to grant certain injunctive relief, § 6213(a); to order the Secretary of the Treasury to refund an overpayment determined by the court, § 6512(b)(2); and to subpoena and examine witnesses, order production of documents, and administer oaths, § 7456(a). All these powers are quintessentially judicial in nature.

The Tax Court remains independent of the Executive and Legislative Branches. Its decisions are not subject to review by either the Congress or the President. Nor has Congress made Tax Court decisions subject to review in the federal district courts. Rather, like the judgments of the district courts, the decisions of the Tax Court are appealable only to the regional United States Courts of Appeals, with ultimate review in this Court. The Courts of Appeals, moreover, review those decisions "in the same manner and to the same extent as decisions of the district courts in civil actions tried without a jury." § 7482(a). This standard of review contrasts with the standard applied to agency rulemaking by the Courts of Appeals under § 10(e) of the Administrative Procedure Act, 5 U.S.C. § 706(2)(A). See Motor Vehicle Mfrs. Ass'n v. State Farm Mutual Auto Ins. Co., 463 U.S. 29, 43-44, 103 S.Ct. 2856, 2866-2867, 77 L.Ed.2d 443 (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. § 7443A(b)(4). Accordingly, we say no more about this new argument than to note that under § 7443A(c), a special trial judge has no authority to decide a case assigned under subsection (b)(4).

^4  Because the language of the Twenty-fifth Amendment does not bind our interpretation of the Appointments Clause, the fact that the Amendment strictly limits the term "Department" to those departments named in 5 U.S.C. § 101 does not provide a similar limitation on the term "Department" 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.

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).