Stacy Lindstedt (Oppenheimer Wolff & Donnelly LLP) has posted Developing the Duffy Defect: A Reasoned Approach to Identifying Which Government Workers are Constitutionally Required to be Appointed (Missouri Law Review, Fall 2011) on SSRN. Here is the abstract:
In 2007 Professor John Duffy wrote a brief article questioning whether administrative patent judges are constitutional officers and therefore subject to the Appointments Clause. A litigant latched onto the argument and challenged the validity of eight years of Board of Patent Appeals and Interferences determinations. Congress eventually enacted a patch to provide for the appointment of patent judges but the “Duffy Defect” didn’t stop there. Other scholars have stepped in to question the constitutionality of various government actors from Bankruptcy Judges to the Pay Czar. The United States Tax Court decided the most recent Appointments Clause challenge when a taxpayer questioned whether IRS Appeals personnel who perform Collection Due Process hearings or their managers must be appointed. Given the broad powers of the current administrative state these questions are bound to become common challenges to agency action and have strong potential to halt the Federal government unless legislative action is taken proactively.
The Constitution provides little guidance on the characteristics that define an officer, noting only that an office must be “established by Law.” The Supreme Court has added that an officer is one who exercises “significant authority pursuant to the laws of the United States.” This Article attempts to define those phrases in a robust manner that preserves the separation of powers and political accountability. It first reviews the Appointments Clause, its history and purposes, and relevant legal precedent. To lend the reader context, it summarizes the current Collection Due Process procedures and describes the power held by the IRS Appeals Office. The Article then analyzes the Tax Court’s holding, concluding that the Tax Court offers Congress a blueprint to avoid the Appointments Clause. The Article suggests an alternative framework for evaluating officer status and determines that IRS personnel should be appointed. The Article concludes with a consideration of the effects of such a holding in the context of our current government structure and political state.
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