Interbranch removal and the Court of Federal Claims: 'agencies in drag'.

AuthorFlynn, James Anglin

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. (22) Rather, I take Kuretski's holding at face value and explore the grave dangers it raises for the removal provision that governs the Court of Federal Claims. (23) In their briefing, the Kuretskis held the CFC out as a constitutional exemplar and a counterpoint to the Tax Court. (24) Neither the government nor the court responded to this argument. Indeed, none of the actors took seriously the idea that it might be the CFC, not the Tax Court, that is subject to the kind of interbranch removal that causes constitutional concern.

  1. BRANCHING OUT

    In this Part, I apply Kuretski's analysis to the Court of Federal Claims to argue that the CFC, like the Tax Court, is an executive branch entity. The constitutional architecture behind the CFC has long been the subject of debate and legislation. (25) The present incarnation of the CFC, as an Article I trial court, resulted from the merger of the United States Court of Customs and Patent Appeals and the United States Court of Claims. (26) Congress expressed no strong constitutional or normative reasons for linking the two courts. One CFC judge has even indicated that the inclusion of the Court of Claims in the merger was "in part a reflection of a serendipity: both courts were housed in the same building." (27) Focused as it was on the simultaneous creation of the Federal Circuit, "Congress did not give sufficient attention to constitutional requirements in structuring the new Claims Court." (28) Beyond declaring the CFC to be "established under [A]rticle I," (29) Congress has given no indication of the Court of Claims's position among the branches.

    Some scholars declare all Article I courts to be executive agencies outright, (30) and so too Justice Scalia would have held in Freytag. (31) Others are more circumspect, venturing only that the line between Article I courts and executive agencies is blurry or spectral. (32) Both these courts and agencies are created under the Article I powers of Congress, (33) and their functions are often interchangeable. (34) More poetically, Professor Kenneth Karst explained this constitutional conundrum in haiku: "Legislative courts / Are but agencies in drag; / Glidden is but paint." (35) Indeed, Article I judges come with costumes: "They may even don robes and sit behind large desks. They may call their decisions 'orders.' They may, in fact, mimic federal courts to a great extent." (36) But despite their titles and trappings, the functions these officials serve remain executive in nature. (37)

    Even short of Justice Scalia's blanket recategorization, a functional, case-by-case analysis likewise reveals that the Court of Federal Claims is an executive branch agency. All cases before the CFC involve the government's determination of which of its claims will be paid. (38) "Every debtor must decide what claims to pay. Doing so is not an exercise of judicial power, even when the debtor takes account of the law and applies it to the claim." (39) Judicial robes cannot change the fact that the CFC's primary function is executive, akin to the role of a corporate treasurer: determining which debts to pay, when, and how.

    The CFC's origin story is telling on this point. Though Congress did not pay attention to the CFC's structure, (40) the Department of Justice, which drafted the plan, certainly did. The Assistant Attorney General in charge of devising the reorganization has stated that the Department "looked around for models elsewhere in the federal system, and [it] rather easily came upon the United Sstates [sic] Tax Court.... So the Tax Court was the model for the Claims Court." (41) The CFC was consciously designed to mirror structurally the Tax Court, which, as Kuretski held, is an executive branch entity.

  2. JUDGES JUDGING JUDGES

    Not all interbranch removal provisions are invalid, as the Supreme Court made clear in...

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