Re: Dale, your 861 argument fails every time - Rayner


"Shyster1040" <Shyster1040@xxxxxxxxxxxxxxxxx> wrote in message news:712d11e700b0a374950316ac2becef57@xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx 
What branch of the federal government does the Tax Court reside in?  Funny
you should ask.

I, like many here, would probably have presumed that, since it is an
Article I court, and since the "judicial power" of the United States can
apparently only be exercised by judges who have life tenure under Article
III, Sec. 1 of the Constitution - which the Tax Court judges do not - that
the Tax Court would be a department in the executive branch.

I, like others here, would also be wrong, at least so long as current
Supreme Court precedent stands.  See Freytag v. Commissioner, 501 U.S. 868
(1991).  unfortunately, the majority of the Court it that opinion did not
seem to sure themselves, and consoled themselves with concluding that the
Tax Court is a "Court of Law" as that term is used in the Appointments
Clause, Article II, Sec. 2, cl. 2 of the Constitution.  By implication it
would appear that the Tax Court is in the Judicial Branch, because (a) it
is independent of the Executive and the Legislative Branches, Freytag, 501
U.S. at 891, (b) it exercises judicial rather than legislative, executive
or administrative power, and does so exclusively, Freytag, 501 U.S. at
890-1, and (c) the judicial power of the United States may be exercised by
non-Article III courts, Freytag, 501 U.S. at 889-90.  If a governmental
entity exercises solely adjudicative power that is identical with
"judicial power," if the exercise of the judicial power is restricted to
entities within the Judicial Branch, and if the Judicial Branch can
contain entities that are not Article III courts, then the Tax Court must
be in the Judicial Branch of the government, although not an Article III
court.

Other than that, since the majority in Freytag had already discounted the
possibility of the Tax Court being in the Executive Branch, Freytag, 501
U.S. at 886-7; since it is not in the Legislative Branch because it
exercises adjudicative powers, which cannot be exercised by the
Legislative Branch, see INS v. Chadha, 462 U.S. 919, 964 et seq. (1983)(J.
Powell, concurring); it could only be in some phantom Fourth Branch,
called, for lack of a better term, the "Courts of Law."

If that doesn't sound flimsy to you, I don't know what would.  A much
better resolution of the matter is that provided by Justice Scalia's
concurrence in the result.  See Freytag, 501 U.S. at 892 et seq.  Under J.
Scalia's construction, the Tax Court would have been treated as a
Department within the Executive Branch.  Since executive agencies may
exercise adjudicative power, putting the Tax Court there would not pose
any insuperable problems.

Thus, from a technical viewpoint of the Constitution, it would make more
logical sense to put the Tax Court into the Executive Branch; however, the
Supreme Court has, apparently, put it into the Judicial Branch, where it
will remain until another Supreme Court decides otherwise (or until
Congress gets its act together and converts the Tax Court into a full
Article III court, something that should have been done ages ago).

So, the answer to your question is: it's in the Judicial Branch.

You know, I've been following this argument not because I believe Dale has a case, but rather because the legal positions are of interest to me. Before you came along, there was mostly this talking past each other between MacDonald & Eastman. But now, you've provided the exact kinds of analysis that I was searching for. At every turn, you've slammed dunked Eastman. Not that it wasn't obvious that his positions were silly, but you've provided the legal analysis which proves it.

Well done. Keep it up. 

.

Relevant Pages

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