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Freytag v. Commissioner (90-762), 501 U.S. 868 (1991)
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90-762 -- OPINION v. COMMISSIONER

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Wash- ington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.

No. 90-762

FREYTAG, et al., PETITIONERS v.COMMISSIONER OF INTERNAL REVENUE

[June 27, 1991]

Justice Blackmun delivered the opinion of the Court.

The leading Framers of our Constitution viewed the princi- ple of separation of powers as the central guarantee of a just government. James Madison put it this way: "No political truth is certainly of greater intrinsic value or is stamped with the authority of more enlightened patrons of liberty." The Federalist No. 47, p. 324 (J. Cooke ed. 1961). In this litiga- tion, we must decide whether the authority that Congress has granted the chief judge of the United States Tax Court to appoint special trial judges transgresses our structure of sep- arated powers. We answer that inquiry in the negative.

I By the Tax Reform Act of 1969, 951, 83 Stat. 730, 26 U.S.C. 7441 Congress "established, under article I of the Constitution of the United States, a court of record to be known as the United States Tax Court." It also empowered the Tax Court to appoint commissioners to assist its judges. 958, 83 Stat. 734. By the Tax Reform Act of 1984, 464(a), 98 Stat. 824, the title "commissioner" was changed to "special trial judge." By 463(a) of that Act, 98 Stat. 824, and by 1556(a) of the Tax Reform Act of 1986, 100 Stat. 2754, Con- gress authorized the chief judge of the Tax Court to appoint and assign these special trial judges to hear certain specifi- cally described proceedings and "any other proceeding which the chief judge may designate." 26 U.S.C. 7443A(a) and (b). The Tax Court presently consists of 19 judges ap- pointed to 15-year terms by the President, by and with the advice and consent of the Senate. 26 U.S.C. 7443(a), (b), and (e).

II This complex litigation began with determinations of fed- eral income tax deficiencies against the several petitioners, who had deducted on their returns approximately $1.5 billion in losses allegedly realized in a tax shelter scheme. [n.1] When petitioners sought review in the Tax Court in March 1982, their cases were assigned to Tax Court Judge Richard C. Wilbur. Trial began in 1984. Judge Wilbur became ill in November 1985, and the chief judge of the Tax Court as- signed Special Trial Judge Carleton D. Powell to preside over the trial as evidentiary referee, with the proceedings video- taped. App. 2. When Judge Wilbur's illness forced his re- tirement and assumption of senior status effective April 1, 1986, the cases were reassigned, with petitioners' specified consent, Brief for Petitioners 8; Tr. of Oral Arg. 10, to Judge Powell for preparation of written findings and an opinion. App. 8, 12-14. The judge concluded that petitioners' tax shelter scheme consisted of sham transactions and that peti- tioners owed additional taxes. The chief judge adopted Judge Powell's opinion as that of the Tax Court. 89 T. C. 849 (1987). [n.2]

Petitioners took an appeal to the Court of Appeals for the Fifth Circuit. It affirmed. 904 F. 2d 1011 (1990). Peti- tioners did not argue to the Court of Appeals, nor do they argue here, that the Tax Court is not a legitimate body. Rather, they contended that the assignment of cases as com- plex as theirs to a special trial judge was not authorized by 7443A, and that this violated the Appointments Clause of the Constitution, Art. II, 2, cl. 2. The Court of Appeals ruled that because the question of the special trial judge's au- thority was "in essence, an attack upon the subject matter ju- risdiction of the special trial judge, it may be raised for the first time on appeal." 904 F. 2d, at 1015 (footnote omitted). The court then went on to reject petitioners' claims on the merits. It concluded that the Code authorized the chief judge of the Tax Court to assign a special trial judge to hear petitioners' cases and that petitioners had waived any con- stitutional challenge to this appointment by consenting to a trial before Judge Powell. Id., at 1015, n. 9.

We granted certiorari, --- U. S. --- (1991), to resolve the important questions the litigation raises about the Con- stitution's structural separation of powers.

III Section 7443A(b) of the Internal Revenue Code specifically authorizes the chief judge of the Tax Court to assign four cat- egories of cases to special trial judges: "(1) any declaratory judgment proceeding," "(2) any proceeding under section 7463," "(3) any proceeding" in which the deficiency or claimed overpayment does not exceed $10,000, and "(4) any other proceeding which the chief judge may designate." In the first three categories, the chief judge may assign the special trial judge not only to hear and report on a case but also to decide it. 7443A(c). In the fourth category, the chief judge may authorize the special trial judge only to hear the case and prepare proposed findings and an opinion. The ac- tual decision then is rendered by a regular judge of the Tax Court.

Petitioners argue that adjudication by the special trial judge in this litigation exceeded the bounds of the statutory authority that Congress has conferred upon the Tax Court. Despite what they concede to be the "sweeping language" of subsection (b)(4), Brief for Petitioners 6, petitioners claim that Congress intended special trial judges to preside over only the comparatively narrow and minor matters covered by subsections (b)(1), (2), and (3).

The plain language of 7443A(b)(4) surely authorizes the chief judge's assignment of petitioners' cases to a special trial judge. When we find the terms of a statute unambiguous, judicial inquiry should be complete except in rare and excep- tional circumstances. Demarest v. Manspeaker, --- U. S. ---, --- (1991) (slip op. 6). Subsection (b)(4) could not be more clear. It states that the chief judge may assign "any other proceeding" to a special trial judge for duties short of "mak[ing] the decision." The subsection's text contains no limiting term that restricts its reach to cases that are minor, simple, or narrow, as petitioners urge. We have stated that courts "are not at liberty to create an exception where Con- gress has declined to do so." Hallstrom v. Tillamook County, 493 U.S. 20, --- (1989) (slip op. 5).

Nothing in the legislative history contradicts the broad sweep of subsection (b)(4)'s language. In proposing to au- thorize the chief judge to assign "any other proceeding" to the special trial judges, the Committee on Ways and Means stated that it intended "to clarify" that any other proceeding could be assigned to special trial judges "so long as a Tax Court judge must enter the decision." H. R. Rep. No. 98- 432, pt. 2, p. 1568 (1984). The Report goes on to explain:

The Conference Report "follows the House Bill," H. R. Conf. Rep. No. 98-861, p. 1127 (1984), and, like the House Report, indicates that Congress knowingly removed the jurisdictional requirement of a maximum amount in dispute in order to ex- pand the authority of special trial judges to hear but not to decide cases covered by subsection (b)(4).

Petitioners appear not to appreciate the distinction be- tween the special trial judges' authority to hear cases and prepare proposed findings and opinions under subsection (b) (4) and their lack of authority actually to decide those cases, which is reserved exclusively for judges of the Tax Court. [n.3] Because they do not distinguish between hearing a case and deciding it, petitioners advance two arguments that, it seems to us, miss the mark.

Petitioners first argue that the legislative history notes that the amendment to what is now 7443A was merely a "technical" change and cannot be read to transfer dispositive power to special trial judges. Petitioners are correct that the 1984 amendment neither transferred decisional power nor altered the substantive duties of the special trial judges. Congress has limited the authority of special trial judges to enter decisions to the narrow category of cases set forth in subsections (b)(1), (2), and (3). The scope of the special trial judges' authority to hear and decide cases, however, has lit- tle, if any, relevance to the category of cases that the special trial judges may hear but not decide.

Since the enactment of the Revenue Act of 1943, 503, 58 Stat. 72, the Tax Court has possessed authority to appoint commissioners to assist it in particular cases. Special trial judges and their predecessors, the commissioners, have been authorized for almost a half century to hear any case before the Tax Court in the discretion of its chief judge. In prac- tice, before 1984, special trial judges often heard and re- ported on large and complex cases. Accordingly, when Con- gress adopted subsection (b)(4), it codified the chief judge's discretion to assign cases like petitioners' to a special trial judge for hearing and preparation of a report. The 1984 amendment was "technical" in light of the historical develop- ment of the special trial judge's role; the technical nature of the amendment, however, does not alter the wide-ranging ef- fect of the statutory text's grant of authority to the chief judge to assign "any other proceeding" within the Tax Court's jurisdiction to a special trial judge.

Petitioners also argue that the phrase "any other proceed- ing" is a general grant of authority to fill unintended gaps left by subsections 7443A(b)(1), (2), and (3). Reading subsection (b)(4) as a catch-all provision, petitioners argue that its mean- ing must be limited to cases involving a small amount of money because any other interpretation would render the limitations imposed by subsections (b)(1), (2), and (3) a nul- lity. In support of this argument, petitioners rely on this Court's decision in Gomez v. United States, 490 U.S. 858 (1989).

We held in Gomez that the Federal Magistrates Act's gen- eral grant of authority allowing magistrates to "be assigned such additional duties as are not inconsistent with the Con- stitution and laws of the United States," 28 U.S.C. 636(b) (3), did not permit a magistrate to supervise juror voir dire in a felony trial over a defendant's objection. In so holding, we explained:

"When a statute creates an office to which it assigns spe- cific duties, those duties outline the attributes of the office. Any additional duties performed pursuant to a general authorization in the statute reasonably should bear some relation to the specified duties." 490 U. S., at 864.

In the Magistrates Act, the list of specifically enumerated du- ties followed the general grant of authority and provided the outlines for the scope of the general grant. Unlike the Mag- istrates Act, 7443A explicitly distinguishes between the categories of cases enumerated in subsections (b)(1), (2), and (3), which are declaratory judgment proceedings and cases involving $10,000 or less, and the category of "any other pro- ceeding" found in subsection (b)(4).

The lesser authority exercised by special trial judges in proceedings under subsection (b)(4) also prevents that sub- section from serving as a grant of general authority to fill any gaps left in the three preceding subsections. Special trial judges may hear and decide declaratory judgment proceed- ings and the limited-amount cases. A special trial judge, however, cannot render the final decision of the Tax Court in a case assigned under subsection (b)(4). If the cases that special trial judges may hear, but not decide, under subsec- tion (b)(4) are limited to the same kind of cases they could hear and decide under the three preceding subsections, then subsection (b)(4) would be superfluous. Our cases consist- ently have expressed "a deep reluctance to interpret a statu- tory provision so as to render superfluous other provisions in the same enactment." Pennsylvania Public Welfare Dept. v. Davenport, --- U. S. ---, --- (1990) (slip op. 8). See also Automobile Workers v. Johnson Controls, Inc., --- U. S. ---, --- (1991) (slip op. 12). The scope of subsection (b)(4) must be greater than that of subsections (b)(1), (2), and (3).

We conclude that subsection (b)(4) permits the chief judge to assign any Tax Court proceeding, regardless of complexity or amount, to a special trial judge for hearing and the prepa- ration of proposed findings and written opinion. The stat- ute's language, structure, and history permit no other conclusion.

IV This construction of 7443A raises a constitutional issue to which we now must turn. Petitioners submit that if subsec- tion (b)(4) permits a special trial judge to preside over the trial of any Tax Court case, then the statute violates the Ap- pointments Clause of the Constitution, Art. II, 2, cl. 2. According to petitioners, a special trial judge is an "Officer" of the United States who must be appointed in compliance with the Clause. The Clause reads:

"He [the President] . . . shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law; but the Congress may by Law vest the Appoint- ment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments."

Thus, the Constitution limits congressional discretion to vest power to appoint "inferior officers" to three sources: the President alone, the Heads of Departments, and "the Courts of Law." Petitioners argue that a special trial judge is an "inferior Officer," and also contend that the chief judge of the Tax Court does not fall within any of the Constitution's three repositories of the appointment power.

A We first address the Government's argument that petition- ers have waived their right to challenge the constitutional propriety of 7443A. The Commissioner contends that peti- tioners waived this right not only by failing to raise a timely objection to the assignment of their cases to a special trial judge, but also by consenting to the assignment.

The roots of the separation-of-powers concept embedded in the Appointments Clause are structural and political. Our separation-of-powers jurisprudence generally focuses on the danger of one Branch's aggrandizing its power at the expense of another Branch. See Mistretta v. United States, 488 U.S. 361, 382 (1989). The Appointments Clause not only guards against this encroachment but also preserves another aspect of the Constitution's structural integrity by prevent- ing the diffusion of the appointment power.

The Commissioner correctly notes that petitioners gave their consent to trial before the special trial judge. This Court in the past, however, has exercised its discretion to consider nonjurisdictional claims that had not been raised below. See Grosso v. United States, 390 U.S. 62, 71-72 (1968); Glidden Co. v. Zdanok, 370 U.S. 530, 535-536 (1962); Hormel v. Helvering, 312 U.S. 552, 556-560 (1941). Glidden expressly included Appointments Clause objections to judicial officers in the category of nonjurisdictional struc- tural constitutional objections that could be considered on ap- peal whether or not they were ruled upon below:

"And in Lamar v. United States, 241 U.S. 103, 117-118, the claim that an intercircuit assignment . . . usurped the presidential appointing power under Art. II, 2, was heard here and determined upon its merits, despite the fact that it had not been raised in the District Court or in the Court of Appeals or even in this Court until the filing of a supplemental brief upon a second request for re- view." Glidden, 370 U. S., at 536 (Harlan, J., announc- ing the judgment of the Court).

Like the Court in Glidden, we are faced with a constitu- tional challenge that is neither frivolous nor disingenuous. The alleged defect in the appointment of the special trial judge goes to the validity of the Tax Court proceeding that is the basis for this litigation. It is true that, as a general mat- ter, a litigant must raise all issues and objections at trial. But the disruption to sound appellate process entailed by en- tertaining objections not raised below does not always over- come what Justice Harlan called "the strong interest of the federal judiciary in maintaining the constitutional plan of separation of powers." Ibid. We conclude that this is one of those rare cases in which we should exercise our discretion to hear petitioners' challenge to the constitutional authority of the special trial judge.

In reaching this conclusion, we note that we are not per- suaded by the Commissioner's request that this Court defer to the Executive Branch's decision that there has been no legislative encroachment on presidential prerogatives under the Appointments Clause in connection with 7443A. Ac- cording to the Commissioner, the structural interests impli- cated in this litigation are those of the Executive Branch, which can be expected to look out for itself. It is claimed, accordingly, that there is no need for this Court to be con- cerned about protecting the separation-of-powers interests at stake here.

We are not persuaded by this approach. The Commis- sioner, we believe, is in error when he assumes that the in- terest at stake is the Executive's own appointment power. The structural principles embodied in the Appointments Clause do not speak only or even primarily of Executive pre- rogatives simply because they are located in Article II. The Appointments Clause prevents Congress from dispensing power too freely; it limits the universe of eligible recipients of the power to appoint. Because it articulates a limiting prin- ciple, the Appointments Clause does not always serve the Executive's interests. For example, the Clause forbids Con- gress from granting the appointment power to inappropriate members of the Executive Branch. Neither Congress nor the Executive can agree to waive this structural protection. "The assent of the Executive to a bill which contains a provi- sion contrary to the Constitution does not shield it from judi- cial review." INS v. Chadha, 462 U.S. 919, 942, n. 13 (1983). The structural interests protected by the Appoint- ments Clause are not those of any one Branch of government but of the entire Republic.

B We turn to another preliminary issue in petitioners' Ap- pointments Clause challenge. Petitioners argue that a spe- cial trial judge is an "inferior Officer" of the United States. If we disagree, and conclude that a special trial judge is only an employee, petitioners' challenge fails, for such "lesser functionaries" need not be selected in compliance with the strict requirements of Article II. Buckley v. Valeo, 424 U.S. 1, 126, n. 162 (1976).

The Commissioner, in contrast to petitioners, argues that a special trial judge assigned under 7443A(b)(4) acts only as an aide to the Tax Court judge responsible for deciding the case. The special trial judge, as the Commissioner charac- terizes his work, does no more than assist the Tax Court judge in taking the evidence and preparing the proposed find- ings and opinion. Thus, the Commissioner concludes, spe- cial trial judges acting pursuant to 7443A(b)(4) are employ- ees rather than "Officers of the United States."

"[A]ny appointee exercising significant authority pursuant to the laws of the United States is an `Officer of the United States,' and must, therefore, be appointed in the manner pre- scribed by 2, cl. 2, of [Art. II]." Buckley, 424 U. S., at 126. The two courts that have addressed the issue have held that special trial judges are "inferior Officers." The Tax Court so concluded in First Western Govt. Securities, Inc. v. Commissioner, 94 T. C. 549, 557-559 (1990), and the Court of Appeals for the Second Circuit in Samuels, Kramer & Co. v. Commissioner, 930 F. 2d 975, 985 (1991), agreed. Both courts considered the degree of authority exercised by the special trial judges to be so "significant" that it was incon- sistent with the classifications of "lesser functionaries" or employees. Cf. Go-Bart Importing Co. v. United States, 282 U.S. 344, 352-353 (1931) (United States commissioners are inferior officers). We agree with the Tax Court and the Second Circuit that a special trial judge is an "inferior Offi- cer" whose appointment must conform to the Appointments Clause.

The Commissioner reasons that special trial judges may be deemed employees in subsection (b)(4) cases because they lack authority to enter a final decision. But this argument ignores the significance of the duties and discretion that spe- cial trial judges possess. The office of special trial judge is "established by Law," Art. II, 2, cl. 2, and the duties, sal- ary, and means of appointment for that office are specified by statute. See Burnap v. United States, 252 U.S. 512, 516- 517 (1920); United States v. Germaine, 99 U.S. 508, 511-512 (1879). These characteristics distinguish special trial judges from special masters, who are hired by Article III courts on a temporary, episodic basis, whose positions are not estab- lished by law, and whose duties and functions are not delin- eated in a statute. Furthermore, special trial judges per- form more than ministerial tasks. They take testimony, conduct trials, rule on the admissibility of evidence, and have the power to enforce compliance with discovery orders. In the course of carrying out these important functions, the spe- cial trial judges exercise significant discretion.

Even if the duties of special trial judges under subsection (b)(4) were not as significant as we and the two courts have found them to be, our conclusion would be unchanged. Under 7443A(b)(1), (2), and (3), and (c), the chief judge may assign special trial judges to render the decisions of the Tax Court in declaratory judgment proceedings and limited- amount tax cases. The Commissioner concedes that in cases governed by subsections (b)(1), (2), and (3), special trial judges act as inferior officers who exercise independent au- thority. But the Commissioner urges that petitioners may not rely on the extensive power wielded by the special trial judges in declaratory judgment proceedings and limited- amount tax cases because petitioners lack standing to assert the rights of taxpayers whose cases are assigned to special trial judges under subsections (b)(1), (2), and (3).

This standing argument seems to us to be beside the point. Special trial judges are not inferior officers for purposes of some of their duties under 7443A, but mere employees with respect to other responsibilities. The fact that an inferior officer on occasion performs duties that may be performed by an employee not subject to the Appointments Clause does not transform his status under the Constitution. If a special trial judge is an inferior officer for purposes of subsec- tions (b)(1), (2), and (3), he is an inferior officer within the meaning of the Appointments Clause and he must be prop- erly appointed.

C Having concluded that the special trial judges are "inferior Officers," we consider the substantive aspect of petitioners' Appointments Clause challenge. The principle of separation of powers is embedded in the Appointments Clause. Its rel- evant language bears repeating: "[T]he Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments." Congress clearly vested the chief judge of the Tax Court with the power to appoint spe- cial trial judges. An important fact about the appointment in this case should not be overlooked. This case does not in- volve an "interbranch" appointment. Cf. Morrison v. Olsen, 487 U.S. 654, 675-677 (1988). However one might classify the chief judge of the Tax Court, there surely is nothing in- congruous about giving him the authority to appoint the clerk or an assistant judge for that court. See id., at 676. We do not consider here an appointment by some officer of inferior officers in, for example, the Department of Commerce or De- partment of State. The appointment in this case is so obvi- ously appropriate that petitioners' burden of persuading us that it violates the Appointments Clause is indeed heavy.

Although petitioners bear a heavy burden, their challenge is a serious one. Despite Congress' authority to create of- fices and to provide for the method of appointment to those offices, "Congress' power . . . is inevitably bounded by the express language of Article II and unless the method it pro- vides comports with the latter, the holders of those offices will not be `Officers of the United States.' " Buckley, 424 U. S., at 138-139 (discussing Congress' power under the Necessary and Proper Clause).

The "manipulation of official appointments" had long been one of the American revolutionary generation's greatest grievances against executive power, see G. Wood, The Cre- ation of The American Republic 1776-1787, p. 79 (1969) (Wood), because "the power of appointment to offices" was deemed "the most insidious and powerful weapon of eigh- teenth century despotism." Id., at 143. Those who framed our Constitution addressed these concerns by carefully hus- banding the appointment power to limit its diffusion. Al- though the debate on the Appointments Clause was brief, the sparse record indicates the Framers' determination to limit the distribution of the power of appointment. The Constitu- tional Convention rejected Madison's complaint that the Ap- pointments Clause did "not go far enough if it be necessary at all": Madison argued that "Superior Officers below Heads of Departments ought in some cases to have the appointment of the lesser offices." 2 Records of the Federal Convention of 1787, pp. 627-628 (M. Farrand rev. 1966). The Framers un- derstood, however, that by limiting the appointment power, they could ensure that those who wielded it were accountable to political force and the will of the people. Thus, the Clause bespeaks a principle of limitation by dividing the power to ap- point the principal federal officers -- Ambassadors, Ministers, Heads of Departments, and Judges -- between the Executive and Legislative Branches. See Buckley, 424 U. S., at 129-131. Even with respect to "inferior officers," the Clause allows Congress only limited authority to devolve appoint- ment power on the President, his Heads of Departments, and the Courts of Law.

With this concern in mind, we repeat petitioners' central challenge: Can the chief judge of the Tax Court constitution- ally be vested by Congress with the power to appoint? The Appointments Clause names the possible repositories for the appointment power. It is beyond question in this litigation that Congress did not intend to grant to the President the power to appoint special trial judges. We therefore are left with three other possibilities. First, as the Commissioner urges, the Tax Court could be treated as a department with the chief judge as its head. Second, as the Amicus suggests, the Tax Court could be considered one of "the Courts of Law." Third, we could agree with petitioners that the Tax Court is neither a "Department" nor a "Court of Law." Should we agree with petitioners, it would follow that the ap- pointment power could not be vested in the chief judge of the Tax Court.

We first consider the Commissioner's argument. Accord- ing to the Commissioner, the Tax Court is a department be- cause for 45 years before Congress designated that court as a "court of record" under Article I, see 7441, the body was an independent agency (the predecessor Board of Tax Appeals) within the Executive Branch. Furthermore, the Commis- sioner argues that 7441 simply changed the status of the Tax Court within that Branch. It did not remove the body to a different Branch or change its substantive duties.

The Commissioner "readily" acknowledges that "the Tax Court's fit within the Executive Branch may not be a perfect one." Brief for Respondent 41. But he argues that the Tax Court must fall within one of the three Branches and that the Executive Branch provides its best home. The reasoning of the Commissioner may be summarized as follows: (1) The Tax Court must fit into one of the three Branches; (2) it does not fit into either the Legislative Branch or the Judicial Branch; (3) at one time it was an independent agency and therefore it must fit into the Executive Branch; and (4) every component of the Executive Branch is a department.

We cannot accept the Commissioner's assumption that every part of the Executive Branch is a department the head of which is eligible to receive the appointment power. The Appointments Clause prevents Congress from distributing power too widely by limiting the actors in whom Congress may vest the power to appoint. The Clause reflects our Framers' conclusion that widely distributed appointment power subverts democratic government. Given the inexora- ble presence of the administrative state, a holding that every organ in the Executive Branch is a department would multi- ply indefinitely the number of actors eligible to appoint. The Framers recognized the dangers posed by an excessively dif- fuse appointment power and rejected efforts to expand that power. See Wood, at 79-80. So do we. For the chief judge of the Tax Court to qualify as a "Head of a Depart- ment," the Commissioner must demonstrate not only that the Tax Court is a part of the Executive Branch but also that it is a department.

We are not so persuaded. This Court for more than a cen- tury has held that the term "Department" refers only to " `a part or division of the executive government, as the Depart- ment of State, or of the Treasury,' " expressly "creat[ed]" and "giv[en] . . . the name of a department" by Congress. Germaine, 99 U. S., at 510-511. See also Burnap, 252 U. S., at 515 ("The term head of a Department means . . . the Secretary in charge of a great division of the executive branch of the Government, like the State, Treasury, and War, who is a member of the Cabinet"). Accordingly, the term "Heads of Departments" does not embrace "inferior commissioners and bureau officers." Germaine, 99 U. S., at 511.

Confining the term "Heads of Departments" in the Ap- pointments Clause to executive divisions like the Cabinet- level departments constrains the distribution of the appoint- ment power just as the Commissioner's interpretation, in contrast, would diffuse it. The Cabinet-level departments are limited in number and easily identified. Their heads are subject to the exercise of political oversight and share the President's accountability to the people.

Such a limiting construction also ensures that we interpret that term in the Appointments Clause consistently with its interpretation in other constitutional provisions. In Germaine, see 99 U. S., at 511, this Court noted that the phrase "Heads of Departments" in the Appointments Clause must be read in conjunction with the Opinion Clause of Art. II, 2, cl. 1. The Opinion Clause provides that the Presi- dent "may require the Opinion, in writing, of the principal Of- ficer in each of the Executive Departments," and Germaine limited the meaning of "Executive Department" to the Cabi- net members.

The phrase "executive departments" also appears in 4 of the Twenty-fifth Amendment, which empowers the Vice President, together with a majority of the "principal officers of the executive departments," to declare the President "un- able to discharge the powers and duties of his office." U. S. Const., Amdt. 25, 4. The Amendment was ratified Febru- ary 10, 1967, and its language, of course, does not control our interpretation of a prior constitutional provision, such as the Appointments Clause. [n.4] Nevertheless, it is instructive that the hearings on the Twenty-fifth Amendment confirm that the term "department" refers to Cabinet-level entities:

"[O]nly officials of Cabinet rank should participate in the decision as to whether presidential inability exists. . . . The intent . . . is that the Presidential appointees who direct the 10 executive departments named in 5 U.S.C. 1 [now codified as 101], or any executive department established in the future, generally considered to com- prise the President's Cabinet, would participate . . . in determining inability." H. R. Rep. No. 203, 89th Cong., 1st Sess., 3 (1965).

Treating the Tax Court as a "Department" and its chief judge as its "Head" would defy the purpose of the Appoint- ments Clause, the meaning of the Constitution's text, and the clear intent of Congress to transform the Tax Court into an Article I legislative court. The Tax Court is not a "Department."

Having so concluded, we now must determine whether it is one of the "Courts of Law," as Amicus suggests. Petition- ers and the Commissioner both take the position that the Tax Court cannot be a "Court of Law" within the meaning of the Appointments Clause because, they say, that term is limited to Article III courts. [n.5]

The text of the Clause does not limit "the Courts of Law" to those courts established under Article III of the Constitu- tion. The Appointments Clause does not provide that Con- gress can vest appointment power only in "one supreme Court" and other courts established under Article III, or only in tribunals that exercise broad common-law jurisdiction. Petitioners argue that Article II's reference to "the Courts of Law" must be limited to Article III courts because Article III courts are the only courts mentioned in the Constitution. It of course is true that the Constitution "nowhere makes reference to `legislative courts.' " See Glidden, 370 U. S., at 543. But petitioners' argument fails nevertheless. We agree with petitioners that the Constitution's terms are illu- minated by their cognate provisions. This analytic method contributed to our conclusion that the Tax Court could not be a department. Petitioners, however, underestimate the im- portance of this Court's time-honored reading of the Con- stitution as giving Congress wide discretion to assign the task of adjudication in cases arising under federal law to leg- islative tribunals. See, e. g., American Ins. Co. v. Canter, 1 Pet. 511, 546 (1828) (the judicial power of the United States is not limited to the judicial power defined under Art. III and may be exercised by legislative courts); Williams v. United States, 289 U.S. 553, 565-567 (1933) (same).

Our cases involving non-Article III tribunals have held that these courts exercise the judicial power of the United States. In both Canter and Williams, this Court rejected arguments similar to the literalistic one now advanced by pe- titioners, that only Article III courts could exercise the judi- cial power because the term "judicial Power" appears only in Article III. In Williams, this Court explained that the power exercised by some non-Article III tribunals is judicial power:

"The Court of Claims . . . undoubtedly . . . exercises ju- dicial power, but the question still remains -- and is the vital question -- whether it is the judicial power defined by Art. III of the Constitution.

"That judicial power apart from that article may be conferred by Congress upon legislative courts . . . is plainly apparent from the opinion of Chief Justice Mar- shall in American Insurance Co. v. Canter . . . dealing with the territorial courts. . . . [T]he legislative courts possess and exercise judicial power . . . although not conferred in virtue of the third article of the Constitu- tion." 289 U. S., at 565-566.

We cannot hold that an Article I court, such as the Court of Claims in Williams or the territorial court of Florida in Canter can exercise the judicial power of the United States and yet cannot be one of the "Courts of Law."

Nothing in Buckley v. Valeo contradicts this conclusion. While this Court in Buckley paraphrased the Appointments Clause to allow the appointment of inferior officers "by the President alone, by the heads of departments, or by the Judi- ciary," 424 U. S., at 132, we did not hold that "Courts of Law" consist only of the Article III judiciary. The appoint- ment authority of the "Courts of Law" was not before this Court in Buckley. Instead, we were concerned with whether the appointment of Federal Elections Commission- ers by Congress was constitutional under the Appointments Clause.

The narrow construction urged by petitioners and the Commissioner also would undermine longstanding practice. "[F]rom the earliest days of the Republic," see Northern Pipeline Construction Co. v. Marathon Pipe Line Co., 458 U.S. 50, 64 (1982), Congress provided for the creation of leg- islative courts and authorized those courts to appoint clerks, who were inferior officers. See, e. g., In re Hennen, 13 Pet. 230 (1839). Congress' consistent interpretation of the Ap- pointments Clause evinces a clear congressional understand- ing that Article I courts could be given the power to appoint. Because " `traditional ways of conducting government . . . give meaning' to the Constitution,' " Mistretta, 488 U.S, at 401, quoting Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S., at 610 (concurring opinion), this longstanding interpre- tation provides evidence that Article I courts are not pre- cluded from being "Courts of Law" within the meaning of the Appointments Clause.

Having concluded that an Article I court, which exercises judicial power, can be a "Court of Law," within the meaning of the Appointments Clause, we now examine the Tax Court's functions to define its constitutional status and its role in the constitutional scheme. See Williams, 289 U. S., at 563-567. The Tax Court exercises judicial, rather than executive, legislative, or administrative power. It was es- tablished by Congress to interpret and apply the Internal Revenue Code in disputes between taxpayers and the Gov- ernment. By resolving these disputes, the court exercises a portion of the judicial power of the United States.

The Tax Court exercises judicial power to the exclusion of any other function. It is neither advocate nor rulemaker. As an adjudicative body, it construes statutes passed by Con- gress and regulations promulgated by the Internal Revenue Service. It does not make political decisions.

The Tax Court's function and role in the federal judicial scheme closely resemble those of the federal district courts, which indisputably are "Courts of Law." Furthermore, the Tax Court exercises its judicial power in much the same way as the federal district courts exercise theirs. It has author- ity to punish contempts by fine or imprisonment, 26 U.S.C. 7456(c); to grant certain injunctive relief, 6213(a); to order the Secretary of the Treasury to refund an overpayment de- termined by the court, 6512(b)(2); and to subpoena and ex- amine witnesses, order production of documents, and admin- ister oaths, 7456(a). All these powers are quintessentially judicial in nature.

The Tax Court remains independent of the Executive and Legislative Branches. Its decisions are not subject to re- view by either the Congress or the President. Nor has Congress made Tax Court decisions subject to review in the federal district courts. Rather, like the judgments of the district courts, the decisions of the Tax Court are appealable only to the regional United States Courts of Appeals, with ultimate review in this Court. The Courts of Appeals, more- over, review those decisions "in the same manner and to the same extent as decisions of the district courts in civil actions tried without a jury." 7482(a). This standard of review contrasts with the standard applied to agency rulemaking by the Courts of Appeals under 10(e) of the Administrative Procedure Act, 5 U.S.C. 706(2)(A). See Motor Vehicle Mfrs. Ass'n v. State Farm Mutual Auto Ins. Co., 463 U.S. 29, 43-44 (1983).

The Tax Court's exclusively judicial role distinguishes it from other non-Article III tribunals that perform multiple functions and provides the limit on the diffusion of appoint- ment power that the Constitution demands. Moreover, since the early 1800s, Congress regularly granted non-Article III territorial courts the authority to appoint their own clerks of court, who, as of at least 1839, were "inferior Officers" within the meaning of the Appointments Clause. See In re Hennen, 13 Pet., at 258. Including Article I courts, such as the Tax Court, that exercise judicial power and perform ex- clusively judicial functions among the "Courts of Law" does not significantly expand the universe of actors eligible to re- ceive the appointment power.

The judgment of the Court of Appeals is affirmed.

It is so ordered.

Notes

1 At oral argument, counsel for petitioners described the litigation in this way:

"This is a tax case with implications for up to 3,000 taxpayers and a bil- lion and a half in alleged tax deficiencies, and it involved one of the longest trials below in the tax court's history -- 14 weeks of evidence, complex fi- nancial testimony, 9,000 pages of transcripts, 3,000-plus exhibits." Tr. of Oral Arg. 3.

Counsel also stated petitioners' primary position:

"In other words, just to put our point succinctly, Congress did not and could not have intended special trial judges in large, complex, multiparty, multimillion dollar tax shelter cases -- alleged tax shelter cases such as this one -- Congress did not and could not have intended such cases to be in ef- fect decided by the autonomous actions of a special trial judge." Id., at 17.

2 Petitioners place some emphasis on the facts that Special Trial Judge Powell filed his proposed findings and opinion with the Tax Court on Octo- ber 21, 1987; that on that day the chief judge issued an order reassigning the litigation to himself for disposition, App. 15; and that on that same day the chief judge adopted the opinion of Judge Powell. Brief for Petitioners 8-9. Indeed, the opinion, including its appendix, covers 44 pages in the Tax Court Reports. At oral argument, however, counsel observed that Judge Powell "sometime in the preceding 4 months had filed a report with the Chief Judge of the tax court." Tr. of Oral Arg. 11. In any event, this chronology does not appear to us to be at all significant. The chief judge had the duty to review the work of the special trial judge, and there is nothing in the record disclosing how much time he devoted to the task. As chief judge he was aware of the presence of the several cases in the court and the magnitude of the litigation. The burden of proof as to any nega- tive inference to be drawn from the time factor rests on petitioners. We are not inclined to assume "rubber stamp" activity on the part of the chief judge.

3 Petitioners also argue that the deferential standard with which Tax Court Rule 183 requires a Tax Court judge to review the factual findings of a special trial judge allows the latter not only to hear a case but effectively to resolve it. This point is not relevant to our grant of certiorari, which concerned the question whether the assignment of petitioners' cases to a special trial judge was authorized by 26 U.S.C. 7443A(b)(4). Accord- ingly, we say no more about this new argument than to note that under 7443A(c), a special trial judge has no authority to decide a case assigned under subsection (b)(4).

4 Because the language of the Twenty-fifth Amendment does not bind our interpretation of the Appointments Clause, the fact that the Amend- ment strictly limits the term "Department" to those departments named in 5 U.S.C. 101 does not provide a similar limitation on the term "De partment" within the meaning of the Appointments Clause. We do not address here any question involving an appointment of an inferior officer by the head of one of the principal agencies, such as the Federal Trade Commission, the Securities Exchange Commission, the Federal Energy Regulatory Commission, the Central Intelligence Agency, and the Federal Reserve Bank of St. Louis.

5 The Commissioner has not been consistent in this position. Indeed, when the present litigation was in the Fifth Circuit, the Government advo- cated that the Tax Court is one of the "Courts of Law." Brief for Appellee 47-51. It abandoned that position in the later case of Samuels, Kramer & Co. v. Commissioner, 930 F. 2d 975 (CA2 1991), and there urged that the Tax Court was a "Department." Brief for Appellee 34-48.