Interbranch Removal and the Court of Federal Claims: "Agencies in Drag"

By Flynn, James Anglin | The Yale Law Journal, October 2015 | Go to article overview

Interbranch Removal and the Court of Federal Claims: "Agencies in Drag"


Flynn, James Anglin, The Yale Law Journal


Last summer, the D.C. Circuit upheld a statute that gives the President the power to remove judges of the United States Tax Court. (1) Kathleen and Peter Kuretski, a taxpayer couple, had challenged the constitutionality of that provision, alleging that it granted an executive official the impermissible interbranch power to remove officials of the judicial branch. Resolving decades of tension about the constitutional status of these Article I courts, the D.C. Circuit held that the Tax Court is an executive branch entity, and thus the President may constitutionally exercise intrabranch removal power over its judges.

But when one door closes, another opens. This Comment demonstrates that what seems like a straightforward attempt to save the Tax Court from constitutional peril has dangerous implications elsewhere in the federal system. Courts should apply Kuretski with a careful eye toward these collateral effects--in particular, Kuretski's effects on the United States Court of Federal Claims (CFC). Unlike the Tax Court judges, judges of the CFC are removable not by the President but rather by the judges of the Court of Appeals for the Federal Circuit. This Comment argues that under the Supreme Court's removal jurisprudence and Kuretski's analysis, that removal provision is invalid.

In Part I, I examine the relevant historical doctrine leading up to and including Kuretski. In Part II, I argue that Kuretski's reasoning applies to the CFC and that, as a result, the CFC is an executive branch entity. In Part III, I conclude that the interbranch removal of CFC judges by the Federal Circuit violates separation-of-powers principles: it is both unconstitutional and normatively undesirable.

1. KURETSKI AND COMPANY

The Tax Court and the CFC are similar in many ways: both are congressionally designated as Article I courts (2) with judges appointed by the President, (3) confirmed by the Senate, (4) and removable for cause. (5) But the two courts differ in an important way: Tax Court judges are removable by the President, (6) whereas CFC judges are removable by the Federal Circuit. (7) The causes for which a CFC judge can be removed are broad: "incompetency, misconduct, neglect of duty, engaging in the practice of law, or physical or mental disability." (8) Removal of a CFC judge requires "a full specification of the charges," (9) "an opportunity to be heard," (10) and a majority vote by the judges of the Federal Circuit. (11)

In their challenge to the Tax Court removal provision, the taxpayers in Kuretski relied primarily on two Supreme Court decisions, Bowsher v. Synar (12) and Freytag v. Commissioner. (13) In Bowsher, the Court held that Congress could not reserve itself interbranch removal power over a then-executive official, the Comptroller General. (14) Then, in Freytag, the Court upheld the Chief Judge of the Tax Court's power to appoint special trial judges, finding that the Tax Court exercises "a portion of the judicial power of the United States. " (15) Taking as premises that interbranch removal violates the separation of powers and that the President and Tax Court reside in separate branches, the Kuretskis urged the D.C. Circuit to find that these holdings combined to render [section] 7443(f) an impermissible grant of interbranch removal power. (16)

Not so, said Judge Srinivasan of the D.C. Circuit, in an opinion for a unanimous panel. (17) Judge Srinivasan saved the President's [section] 7443(f) removal power by reading the Court's holding in Freytag quite narrowly, avoiding a potential parade of horribles. (18) Cabining Freytag to the Appointments Clause (19) context, the D.C. Circuit determined that though the Tax Court is a "Court[] of Law" for appointments purposes, it is nevertheless an executive branch entity. (20) So situated, [section] 7443(f) provides for "intra--not inter--branch removal" by the President. (21)

It is not my endeavor to critique the reasoning or result in Kuretski. …

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