Bankruptcy

Are Bankruptcy Judges Unconstitutional?

By Bob Lawless

The title to this post is the question asked by former colleague, Professor Tuan Samahon (UNLV), in  an article just posted to SSRN: "Are Bankruptcy Judges Unconstitutional? An Appointments Clause Challenge." Click here to view the abstract or download the full version. Bankruptcy judges are appointed by the U.S. Courts of Appeals, but Article II of the U.S. Constitution allows only "inferior officers" to bypass presidential appointment and Senate confirmation. Samahon's article explores whether bankruptcy judges are "inferior officers." A taste from the abstract:

Although the Courts of Law have appointed bankruptcy adjudicators since the earliest bankruptcy laws, this Article advances the position that bankruptcy judges have gradually and over time accrued tenure, safeguards against removal, expansive jurisdiction and duties that are incompatible with inferior officer status under the balancing approach of Morrison v. Olson. Accordingly, they are not amenable to being opted out of advice and consent and they must be appointed pursuant to the Article II procedure. The appointments of present bankruptcy judges are consequently suspect and their judgments and orders are of questionable validity.

An Article II challenge has escaped the attention of academic commentators and (largely) that of the courts. Resolution of the challenge will require the Supreme Court to clarify its Appointments Clause jurisprudence This Article argues that the Court's pronouncements on inferior officers in Morrison and Edmond v. United States are irreconcilable. Which authority controls would (likely) dictate the outcome of any challenge. . . .

Samahon examines alternative interpretations of the relevant Supreme Court precedents and includes bankruptcy judges are suspect under some of these different interpretations but not others. Samahon's analysis is careful and balanced. Also, for the skeptics out there, he has an answer to why the issue has not been raised previously. He has laid out a road map for any litigant frustrated with a bankruptcy court to challenge the court's constitutional authority. The article is well worth a look.

Full post as published by Credit Slips on March 20, 2008 (boomark / email).