Is the Tax Court Constitutional? (10/16/13)

My fellow tax procedure bloggers over at the Procedurally Taxing Blog have posted this item.  Potential Storm Over Removal Power of Tax Court Judges (Procedurally Taxing Blog 10/16/13), here.  It is not often that credible (not necessarily the same as winnable or persuasive) constitutional issues are presented in tax cases, so maybe we should savor them when they come along.  This particular issue is interesting.  I cannot speak to whether it is winnable or persuasive.

So what is it about?  The specific argument is in the context of the statute permitting the president to remove a Tax Court judge for cause.  See Section 7443(f), here. Quoting from a law review article (co-authored by a colleague), the complaint seems to be:

This cross-branch removal power confers upon the President a power to control those officers and threatens the independent exercise of the judicial power. This mixing of judicial and executive authorities violates a basic separation-of-powers maxim and courts the attendant danger of tyranny (citations omitted).

The Government argues that there is a judicial-type role for the Tax Court outside Article III, which could include the power to terminate judges for cause.

In conclusion, the blog states:

The government is urging the DC Circuit to adopt a rationale that that the majority declined to adopt in Freytag [a prior case about the role of Special Trial Judges in the Tax Court], that is, Justice Scalia’s approach that the Tax Court is not exercising judicial power in the constitutional sense of the term.  If the DC Circuit reaches the issue, we may see the Supreme Court once again wrestling with the fundamental nature of the Tax Court’s place in our governmental system.

Well, I probably have muddied the issue up, so I will quit.  At least, I hope readers can ask the right questions even if I don't provide the answers.

I wonder, though, whether there is a straightforward larger issue here.  The issue may be presented in a type of syllogism.  The Constitution exclusively vests judicial power Article III courts.  The Tax Court, which is not an Article III court, exercises judicial power.  It is, therefore, unconstitutional.

And, I think there have to be issues swirling around all of this.  If the Tax Court is really exercising Executive Branch authority rather than Judicial Authority, are the everyday judicial authority analogs used for the Tax Court's role appropriate.  For example, is it appropriate to treat, on appeal, Tax Court decisions the same as district court judgments -- e.g., review for clear error.  Alternatively, since Tax Court decisions are authority in other cases, should the review be a type of Chevron review?  I know you are asking by now what, exactly, am I smoking?  Well, nothing, but I do think I need a cup of coffee.

Addendum 10/16/13 6:30 pm: