Officers Under the Appointments Clause

Abstract

Much ink has been spilled, and many keyboards worn, debating the definition of “Officers of the United States” under the Appointments Clause of Article II, Section 2, Clause 2 of the U.S. Constitution.  Most recently, this debate has focused on the denizens of the Office of Appeals of the Internal Revenue Service (IRS).  In Tucker I , the U.S. Tax Court faced the question of whether the settlement officers, appeals officers, and appeals team managers (collectively, IRS hearing officers) within the Office of Appeals are Officers or mere employees. In Tucker II , the U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit) faced the same question on appeal. Both courts sided with the IRS in holding that none of the above are Officers.  Although it hardly seems controversial to agree with the Tax Court and D.C. Circuit when the U.S. Supreme Court denies certiorari in the case, remarkably, all previous scholarship disputes the outcome of the Tucker decisions. This Article will defend that outcome as a proper application of Supreme Court precedent.