Developing the Duffy Defect: Identifying Which Government Workers are Constitutionally Required to Be Appointed

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 enacted a patch to provide for the appointment of patent judges, but the Duffy Defect did not stop there. Other scholars have questioned the constitutionality of various government actors from Bankruptcy Judges to the Pay Czar. The United States Tax Court dealt with a recent Appointments Clause challenge when a taxpayer questioned whether Internal Revenue Service (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 the IRS Appeals Office holds. The Article analyzes the Tax Court\u27s 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 environment