Monday, March 9, 2015
Brant Hellwig (Dean (as of July 1, 2015), Washington & Lee) presents The Constitutional Nature of the United States Tax Court at Indiana today as part of its Tax Policy Colloquium hosted by Leandra Lederman:
Is the United States Tax Court part of the Executive Branch of Government? One would expect that question would be capable of being definitively answered without considerable difficulty. And as recently expressed by the Court of Appeals for the District of Columbia Circuit, that indeed is the case. In the course of addressing a challenge to the ability of the President to remove a judge of the Tax Court for cause on separation of powers grounds, the D.C. Circuit rejected the premise that the removal power implicated two branches of government: “The Tax Court exercises Executive authority as part of the Executive Branch.” [Kuretski v. Commissioner]
This article will examine the Kuretski decision, using this case as a vehicle to examine the constitutional nature of the Tax Court.
To provide the background for this endeavor, the article will briefly trace the evolution of the United States Tax Court before reviewing the Supreme Court’s decision in Freytag. While the Kuretski decision may be nominally compatible with the Freytag decision—indeed, the D.C. Circuit describes its decision as being supported by Freytag—the article will explain that the Kuretski decision is best viewed as an endorsement of the four-Justice concurring opinion issued in Freytag and an implicit invitation for the current Supreme Court to formally adopt it. After analyzing the Kuretski decision, the article will contemplate alternate conclusions regarding the Tax Court’s place in the constitutional scheme of government.