Wherefore Art Thou Tax Court? (6/29/26; 7/1/26)

In two cases today, the Court held that

• The general rule is that (i) the President can fire executive agency personnel at will even if the statute says that they can only be removed for cause or for some other similarly worded reason  Trump v. Slaughter, 609 U. S. ___ (2026) (stating the general rule); but
• An exception to the general rule in the case  of members of the Board of Governors of the Federal Reserve where the statute requires “for cause” removal. Trump v. Cook, 609 U. S. ____ (2026) (stating the exception).

The opinions may be viewed and downloaded here: Trump v. Slaughter, SC Slip Op. here and GS here; and Trump v. Cook, SC Slip Op. here and GS here. 

Of course, the general rule (concocted under the “unitary executive” theory) and the exception require a definition of an executive agency subject to the respective rule and exception. In other words, it is not clear that Cook states a single exception applicable to the Federal Reserve. 

In the tax world, the Tax Court is potentially implicated in this brouhaha. Consider the following statutory text:

26 U.S. Code § 7441 – Status
There is hereby established, under article I of the Constitution of the United States, a court of record to be known as the United States Tax Court. The members of the Tax Court shall be the chief judge and the judges of the Tax Court. The Tax Court is not an agency of, and shall be independent of, the executive branch of the Government.

26 U.S. Code § 7443 - Membership
* * * *
(f)Removal from office
Judges of the Tax Court may be removed by the President, after notice and opportunity for public hearing, for inefficiency, neglect of duty, or malfeasance in office, but for no other cause.

A strict textual reading of § 7441 specifically states that the Tax Court is not an executive body (agency in administrative law lingo). The President has the power to appoint Tax Court Judges, “by and with the advice and consent of the Senate, solely on the grounds of fitness to perform the duties of the office.”  § 7443(b). (That may suggest that politics should not be involved, but babies come in baskets (although politics is involved some of the Tax Court Judges are exceptional on the metric of “fitness to perform”).) Then, once the Senate has advised and consented, the President alone has the power to remove Tax Court Judges but only, to repeat, “after notice and opportunity for public hearing, for inefficiency, neglect of duty, or malfeasance in office, but for no other cause.”

Can a Taxpayer Obtain Relief in the Tax Court if the President’s Limited Power to Dismiss Tax Court Judges is Unconstitutional? (12/11/24)

I picked up some articles on a recently filed appellate brief in Myers v. Commissioner, T.C. # 2181-15W), from the Tax Court Order of Dismissal dated 5//24/24, here, (The Tax Court docket sheet is here.) The appeal is docketed as Myers v. Commissioner (D.C. Cir. No. 2181-15W) and Myers’ corrected opening brief is here. One of the articles is Anna Scott Farrell, Whistleblower Asks DC Circ. To Strike Tax Court Judge Shield, 2024 Law360 340-53 (12/5/24).

In Myers, the relevant events are:

1.   Myers, a whistleblower, filed his Tax Court petition late.

2.   The Tax Court dismissed the case due to the untimely filing.

3.   The D.C. Circuit reversed, ruling that the timing period was not jurisdictional and thus could be subject to equitable tolling.

4.   On remand, the Tax Court dismissed again, stating Myers did not demonstrate entitlement to equitable tolling.

Predicate Constitutional Claim: As his predicate argument on appeal, Myers urges that § 7443(f)’s requirement of “for cause” dismissal of Tax Court Judges violates the President’s Article II executive powers to dismiss without cause. The Tax Court rejected the argument, and now Myers raises it in the D.C. Circuit.

I focus on the Constitutional Claim. The substance of the argument turns upon the unsettled location of the Tax Court in the Constitutional structure. Is the Tax Court located in the legislative branch (§ 7441 says that it is “established, under article I of the Constitution of the United States”) or is it in the executive branch? (And my question below is does it matter in this case?)