Antonin Scalia

“ Officers that are not "inferior Officers," however, must be appointed (unless the Constitution itself specifies otherwise, as it does, for example, with respect to officers of Congress) by the President, "by and with the Advice and Consent of the Senate." The obvious purpose of this scheme is to make sure that all the business of the Executive will be conducted under the supervision of officers appointed by the President with Senate approval; only officers "inferior," i.e., subordinate, to those can be appointed in some other fashion. ”

“ In fact, however, there is every reason to believe that the Appointment Clause's limitation to Article III tribunals was adopted with calculation and forethought, faithfully implementing a considered political theory for the appointment of officers.
The Framers' experience with post-revolutionary self-government had taught them that combining the power to create offices with the power to appoint officers was a recipe for legislative corruption. [4] The foremost danger was that legislators would create offices with the expectancy of occupying them themselves. ”

“ The Tax Court is indistinguishable from my hypothetical Social Security Court. It reviews determinations by Executive Branch officials (the Internal Revenue Service) that this much or that much tax is owed-a classic executive function. For 18 years its predecessor, the Board of Tax Appeals, did the very same thing, see H. Dubroff, The United States Tax Court 47-175 (1979) , and no one suggested that body exercised "the judicial power." We held just the opposite:
"The Board of Tax Appeals is not a court. ”

“ It is true that Congress may commit the sorts of matters administrative law judges and other executive adjudicators now handle to Article III courts-just as some of the matters now in Article III courts could instead be committed to executive adjudicators. " [T] here are matters, involving public rights, which may be presented in such form that the judicial power is capable of acting on them, and which are susceptible of judicial determination, but which Congress may or may not bring within the cognizance of the courts of the United States, as it may deem proper." ”

“ The blanket rule that "argument [s] premised on the Constitution's structural separation of powers [are] not a matter of personal rights and therefore [are] not waivable," Brief for Petitioners 43-44, would erode this cardinal principle of sound judicial administration. It has no support in principle or in precedent or in policy.
As to principle: Personal rights that happen to bear upon governmental structure are no more laden with public interest (and hence inherently nonwaivable by the individual) than many other personal rights one can conceive of. ”

“ But the question before us here involves the effect of waiver not ex ante but ex post-its effect not upon right but upon remedy: Must a judgment already rendered be set aside because of an alleged structural error to which the losing party did not properly object? There is no reason in principle why that should always be so. It will sometimes be so-not, however, because the error was structural, but because, whether structural or not, it deprived the federal court of its requisite subject-matter jurisdiction. ”

“ But if the "Departments" it referred to were only Cabinet departments, it would not assure the current President the ability to receive a written opinion concerning the operations of the Central Intelligence Agency, an agency that is not within any other department, and whose Director is not a member of the Cabinet.
This evident meaning-that the term "Departments" means all independent executive establishments-is also the only construction that makes sense of Art. II, § 2's sharp distinction between principal officers and inferior officers. ”

“ In any case, it is silly to think that the Second Congress (or any later Congress) was supposed to guess whether the President would bring the new agency into his cabinet in order to determine how the appointment of its inferior officers could be made.
Modern practice as well as original practice refutes the distinction between Cabinet and non-Cabinet agencies. Congress has empowered non-Cabinet Agencies to appoint inferior officers for quite some time. ”

“ The power of the Legislature to appoint any other than their own officers departs too far from the Theory which requires a separation of the great Departments of Government. One of the best securities against the creation of unnecessary offices or tyrannical powers is an exclusion of the authors from all share in filling the one, or influence in the execution of the other. ”

“ When the Tax Court was statutorily denominated an "Article I Court" in 1969, its judges did not magically acquire the judicial power. They still lack life tenure; their salaries may still be diminished ”

“ When we granted certiorari, we asked the parties to brief and argue the following additional question: "Does a party's consent to have its case heard by a special tax judge constitute a waiver of any right to challenge the appointment of that judge on the basis of the Appointments Clause, Art. II, § 2, cl. 2?" 498 U.S. ----, 111 S.Ct. 781, 112 L.Ed.2d 844 (1991) .
Petitioners would have us answer that question "no" by adopting a general rule that "structural" constitutional rights as a class simply cannot be forfeited, and that litigants are entitled to raise them at any stage of litigation. ”

“ The Court reserves the right to consider as "Cabinet-like" and hence as "Departments" those agencies which, above all others, are at the farthest remove from Cabinet status, and whose heads are specifically designed not to have the quality that the Court earlier thinks important, of being "subject to the exercise of political oversight and shar [ing] the President's accountability to the people," ante, at 886-namely, independent regulatory agencies such as the Federal Trade Commission and Securities Exchange Commission, ante, at 887, n. ”

“ A right that cannot be waived cannot be forfeited by other means (at least in the same proceeding) , but the converse is not true.↑ Ironically enough, the categorical "no-waiver" rule that petitioners propose would destroy the very parallelism between administrative and judicial tribunals that Schor sought to achieve. ”

“ We said in that case that " [w] hen these Article III limitations are at issue" (referring not to all structural limitations of the Constitution, but only to those of Article III, sections 1 and 2) "notions of consent and waiver cannot be dispositive." Id., at 851, 106 S.Ct., at 3257. But the claim before us in Schor involved a particular sort of structural defect (a tribunal's exceeding its subject-matter jurisdiction) which, as I have just described, had traditionally been held nonwaivable on appeal in the context of Article III tribunals. ”

“ Ignorant, vicious, and prostituted characters are introduced into office; and some of those, who voted, and procured others to vote for them, are the first and loudest in expressing their astonishment, that the door of admission was ever opened to men of their infamous description. ”

“ Every member, who gives, on his account, a vote for his friend, will expect the return of a similar favor on the first convenient opportunity. In this manner, a reciprocal intercourse of partiality, of interestedness, of favoritism, perhaps of venality, is established ”

“ Like the President, the Judicial Branch was separated from Congress not merely by a paper assignment of functions, but by endowment with the means to resist encroachment-foremost among which, of course, are life tenure (during "good behavior") and permanent salary. These structural accoutrements not only assure the fearless adjudication of cases and controversies, see The Federalist Nos. ”

“ For these good and sufficient reasons, then, the federal appointment power was removed from Congress. The Framers knew, however, that it was not enough simply to define in writing who would exercise this power or that. "After discriminating . . . in theory, the several classes of power, as they may in their nature be legislative, executive, or judiciary, the next and most difficult task [was] to provide some practical security for each, against the invasion of the others." The Federalist No. ”

“ The Framers contemplated no other national judicial tribunals. "According to the plan of the convention, all judges who may be appointed by the United States are to hold their offices during good behavior. ”

“ The drafters of several early State Constitutions reacted to these abuses by lodging the appointment power in the legislature. See, e.g., Va. Const. (1776) (legislature appoints judges) ; cf. Articles of Confederation, Art. IX (Congress appoints courts and officers of land forces) . Americans soon learned, however, that "in a representative republic where the executive magistracy is carefully limited . . . it is against the enterprising ambition of the [legislative] department that the people ought to indulge all their jealousy and exhaust all their precautions." The Federalist No. ”

“ As we make clear in another case decided this very day, waiver generally extends not merely to "frivolous" and "disingenuous" challenges, but even to " [t] he most basic rights of criminal defendants." Peretz, --- U.S., at ----, 111 S.Ct., at 2669. Here petitioners expressly consented to the special trial judge. Under 26 U.S.C. § 7443A, the chief judge of that court has broad discretion to assign cases to special trial judges. Any party who objects to such an assignment, if so inclined, can easily raise the constitutional issue pressed today. ”

“ Having struggled to reach petitioners' Appointments Clause objection, the Court finds it invalid. I agree with that conclusion, but the reason the Court assigns is in my view both wrong and full of danger for the future of our system of separate and coequal powers.
" [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." Art. ”

“ Cohn, 455 U.S. 404, 414, 102 S.Ct. 1137, 1144, 71 L.Ed.2d 250 (1982) , we declined to reach a negative commerce-clause claim in litigation arising in the federal courts; we remanded the case for consideration of that issue by the Court of Appeals, "if it was properly raised below " (emphasis added) . The federal Courts of Appeals (even after Schor ) have routinely applied the ordinary rules of forfeiture to structural claims not raised below. See, e.g., United States v. Doremus, 888 F.2d 630, 633, n. 3 (CA9 1989) (separation of powers claims) , cert. ”