Initial Take on the Kuretski Language in the PATH Law

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In yesterday’s post summarizing some of the procedural provisions in PATH, I noted that the legislation in Section 441 (new Code Section 7441) includes a post-Kuretski “clarification” that the Tax Court is not an executive agency. In this brief post, guest poster Professor Bryan Camp offers his initial take on that provision. Les

I don’t see how the new Congressional language changes anything.  By that I mean I don’t see how the language affects what the Tax Court does, can do, will do, nor how its decisions are reviewed by Article III courts.  I don’t see how it affects what taxpayers do or what the Service does.  The language does, however, allow academics to write new articles!

Of course the Tax Court is not an “agency” of the Executive branch.  Agencies exercise a blend of rulemaking and adjudication.  The Tax Court just adjudicates.  It’s a court.  As the Supreme Court said in Freytag, the Tax Court performs a judicial function.  Specifically, it’s an Article I court established by Congress per the Necessary and Proper Clause as part of Congress’ exercise of the taxing power.

As the D.C. Cir. opinion in Kuretski pointed out, just because Congress created the Court by exercising Article I powers and not by exercising Article III powers does not make the Tax Court part of the “Legislative branch” because it does not perform the functions of writing statutes.  And, since it was NOT created per the requirements of Article III, it’s not part of the “Judicial branch” and it does not perform the function of exercising “judicial power” which is a term of constitutional art.

So the Kuretski court decided the Tax Court had to be “located” within the Executive branch.  Congress now just says it is not an “agency” within the Executive branch and is “independent” of the Executive branch.

So the Tax Court is not an Independent Agency (whatever that means, as recently discussed).  So let’s call it an “Independent Court” (whatever that means, as I am sure will be discussed ad nauseum).   Hell, let’s just call it a “Banana.”

“Where” it is located in some organizational chart is not relevant to what powers it can exercise or how it fits into the constitutional distribution of powers.  What IS relevant is whether the Tax Court’s powers impermissibly entrench on some branch’s powers.  And whether it does THAT depends on what its powers ARE and THIS language does not affect those powers.


The debate about the constitutional placement of the Tax Court reflects, in part, a larger debate about the nature of the structural Constitution.  First, there are the Trinitarians.  They read Articles I, II, and III as creating solid walls between the three great Departments of government, sort of like three big offices.  You gots your Legislative office here, your Executive office there, and your Judicial office over there there.  Just as a human cannot physically be in more than one office at once, neither can any governmental entity “be” in more than one of those rooms, nor can any person be an “official” of more than one office.  So every governmental entity and governmental employee must be in one room or another.

Next up are the Unitarians.  They see the Constitution as building a Great Room, not three offices separated by walls.  In the Great Room are three power centers: legislative, executive, and judicial.  There are no walls but each group of governmental actors has its own work space and own function.  There is plenty of room to build new cubicles and the key idea is that no working group take over what another working group is supposed to be doing.  It is not so important where each cubicle is physically located in the room as it is what each occupant is doing.

Finally, there are the Fourth Branchers.  They use a more organic metaphor: the tree.  Yes, you’ve all heard of the Three Branches of Government.  These folks take that metaphor and suggest that there is room on the Constitutional trunk for new little branches to grow.  So “Independent Agencies” can be seen as “fourth” branches.  Not only do they not fit comfortably in any of the three “offices” as conceived of by the Trinitarians, they also combine functions (rulemaking and adjudication) and so cannot be easily located in the Great Room of the Unitarians.

I think under any of these models, this language does no work change.  Some Trinitarians on an Administrative Law listserv have suggested that this language will ensure that when OTHER federal statutes refer to “Executive Agencies” those statutes will now be more obviously inapplicable to the Tax Court than before.  But they agree with me that this language does not (or should not) impact what the Tax Court does or how it performs its function of adjudicating disputes between taxpayers and the Service.

The language changes nothing except to now create busy work for a lot of folks who should not have to waste their time on it.



  1. Very well written piece, thank-you for your insights.

  2. As indicated by its own legislative history, the new sentence added to section 7441 is an attempt to respond to the Kuretski opinion. Yet, I agree with Bryan Camp that the sentence probably does little — and it certainly doesn’t resolve the issue that was really involved in the Kuretski case — the constitutionality of the President’s removal power over Tax Court judges at section 7443(f).

    The Supreme Court opinions on which the taxpayers in Kuretski relied are Bowsher v. Synar and Freytag — which opinions clearly fall into the Unitarian category of separation of powers jurisprudence as defined by Professor Camp.

    In Bowsher, a Congressional removal power over a Congressional employee, the Comptroller General, was held to violate separation of powers because Congress had, by statute, just given that employee certain Executive powers, as well. A person holding Legislative powers was ruled incapable of also holding a removal power over a person holding Executive powers.

    In Freytag, the Supreme Court held that the Tax Court exercised a portion of the Judicial Power of the United States — to the exclusion of Executive or Legislative powers — so the Tax Court was a “Court[] of Law” authorized to appoint inferior officers (Special Trial Judges) under the Constitution’s Appointments Clause.

    Although the Kuretskis in their briefs pointed out that the Tax Court might more properly be considered part of the Judicial Branch or Legislative Branch, the Kuretskis also argued that it did not matter if the Tax Court was even still located in the Executive Branch. Under Bowsher and Freytag, since the President clearly exercises a portion of the Executive Power, and the Tax Court exercises a portion of the Judicial Power, there is a separation of powers problem if the President can remove a Tax Court judge.

    The D.C. Circuit — taking what Professor Camp would call a Trinitarian approach — stated that the Tax Court is not in Art. III, since its judges lack life-time tenure, and is not in the Legislative Branch, since it does no legislating. Thus, by process of elimination, the Tax Court must be part of the Executive Branch. The D.C. Cir. felt that there can never be a problem of intrabranch removal power. The court’s analysis completely failed to discuss the argument the Kuretskis made that it did not matter in which branch the Tax Court was located, there was still a problem with the existence of section 7443(f).

    Perhaps by making a clear statement that the Tax Court is independent of the Executive Branch, the new sentence added to section 7441 will help undermine the D.C. Circuit’s holding in Kuretski. But, the real problem is not addressed: a person holding one power possessing removal authority over a person exercising a different power.

    Professor Camp’s post suggests that he is not a Unitarian. From what I have read of Supreme Court separation of powers opinions, it is clear the justices themselves have differing views, some being Unitarian, others being Trinitarian. The problem is that Freytag and Bowsher are the most on point holdings of the Court that inform the issue presented in Kuretski, and the Supreme Court has not overruled those opinions. It is not the place of a lower court to ignore or ideologically distinguish Supreme Court precedents. If the Supreme Court wants to overrule Freytag and Bowsher, that is its prerogative, not the D.C. Circuit’s.

    I wish that Congress had simply mooted this whole issue by repealing section 7443(f), regardless of where the Tax Court is located. In that sense, this legislation is a great opportunity lost.

    • A couple of points worth mentioning, Carl.

      First, the new language does not make it “clear” at all that the ” Tax Court is independent of the Executive Branch” (as you put it). That was the point of my post. The new language just says the Tax Court is not an “agency” of the Executive Branch. Big whoop. Neither is the Court of Federal Claims.

      Second, the language attack a phantom menace. No court that I know of has held that the Tax Court is an Executive Branch “agency.” Yes, I know what the legislative history says here. But one really has to beware of legislative history because it is sometimes simply wrong about what existing law is. Here, for example, the JTC Report erroneously characterizes the holding of Kuretski as being “that the Tax Court is an independent Executive Branch agency.” See JCX-144-15 at p. 259. That is not what the DC Circuit opinion says. The opinion says that “the Tax Court exercises its authority as part of the Executive Branch” and therefore presidential removal of a Tax Court judge would not constitute inter-branch removal. I challenge you or anyone else to find language in Kuretski that says the Tax Court is an Article I “agency.” It’s a court.

      So this language is an (over?)-reaction to a mis-perceived holding. As such, it works no change in the law. That was my only basic point.

      • Bryan,

        I agree with your statement that the people who drafted the statute (at least by a reading of the legislative history) failed to read the D.C. Cir.’s Kuretski opinion properly. That opinion nowhere calls the Tax Court an agency. But, I did not call the Tax Court an agency in my post, either. I know what Kuretski really says.

        I am puzzled by your saying that the legislation does not clearly make the Tax Court independent of the Executive Branch. The new sentence added to section 7441 reads: “The Tax Court is not an agency of, and shall be independent of, the executive branch of the Government.”. The second part of that sentence effectively reads that the Tax Court shall be independent of the Executive Branch. Now, one can quibble about what being “independent of” means, since it might just mean that the Tax Court is some sort of independent entity (i.e., not under the control of), but still part of the Executive Branch — e.g., like the FCC or SEC. However, I was only repeating the statute as written. I was not getting into what the effect of the language was for Constitutional purposes.

        Indeed, I am not sure that Congress can by legislation locate the Tax Court in any particular place for constitutional purposes — other than outside Art. III, since Congress has not given its judges life tenure. But, I guess, being myself what you would call a Unitarian, I have no problem in defining the Judicial Branch to include more than Art. III judges. Still, it makes little difference to my analysis where the Tax Court is properly located for constitutional purposes, since in Freytag, the Supreme Court held that the Tax Court exercises a portion of the Judicial Power of the United States. In Boswher, the question was one of separation of powers, not Branches or the Branch in which the Comptroller was located.

  3. Do those who take positions about how a secular governments works, or should work, really describe themselves as either “Unitarian” or “Trinitarian”?

    • Some resist. But resistance is futile, doncha know.

      Seriously, I’ve used those terms for so long in teaching administrative law that I cannot now remember whether I made them up or stole them from someone else. They are a gloss on Peter Strauss’ seminal articles: (1) The Place of Agencies in Government: Separa­tion of Powers and the Fourth Branch, 84 Colum.L.Rev. 573 (1984). (ABA Administrative Law Section award, 1985); and (2) Formal and Functional Approaches to Separa­tion of Pow­ers Ques­tions – A Foolish Incon­sistency? 72 Cornell L.Rev. 488 (1987). Both well worth your time if this subject interests you.

  4. Glenn Tanner says

    I am unable to reconcile where Congress has written specific language that the Tax Court is an Article III Court?
    Barring that, the Court’s can make references as to what type of Court the Tax Court is, which is what has happened in all the past decisions.
    One can freely disagree, but one cannot point to specific codified law stated by Congress.
    Thank you.

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