Freytag v. Commissioner of Internal Revenue, 501 U.S. 868 (1991), is a United States federal court case in which the Supreme Court of the United States decided the characteristics of inferior officers of the United States for the purposes of the Appointments Clause.^[1]

The case concerned the appointment method of special trial judges of the United States Tax Court. The Court was unanimous in its conclusion that special trial judges were inferior officers under the Appointments Clause, rather than mere employees, because of the characteristics of their office and that their appointment was constitutional. Positions constitute inferior officers when the position (1) is established by law and (2) exercises significant authority (3) involving significant discretion.

The division between the majority, led by Justice Harry Blackmun, and the concurrence, led by Justice Antonin Scalia, centered on the status of the Tax Court itself. Under the Appointments Clause, inferior officers may only be appointed by the President, Heads of Departments, or the Courts of Law. The majority determined the Tax Court, which exercises power as an Article I court was a "Court of Law" for the purpose of the Appointments Clause and was thus constitutional. The concurrence, however, would have held "Courts of Law" are limited to traditional Article III courts. Instead, the concurrence would have permitted the appointments under the view that the Tax Court is a "Head of a Department".

Under the Tax Reform Act of 1969, the United States Congress established the United States Tax Court as an Article I court and charged it with adjudicating disputes over federal income tax. The judges of the Tax Court were to be appointed by the President, by and with the advice and consent of the Senate, to serve a term of 15 years. By amendments in 1984, Congress authorized the Chief Judge of the Tax Court to appoint and assign special trial judges to hear such cases as the Chief Judge may designate.

Thomas Freytag and several other defendants were charged by the Commissioner of Internal Revenue with using a tax shelter scheme to avoid paying approximately $1.5 billion in taxes. The defendants petitioned to the Tax Court to review the Commissioner's determination. Their case was assigned by the Chief Judge of the Tax Court to a special trial judge with the consent of the defendants. The special trial judge upheld the Commissioner's decision and the Chief Judge subsequently adopted the opinion as that of the Tax Court itself.

The defendants appeals the decision to the United States Court of Appeals for the Fifth Circuit, arguing the appointment of a special trial judge violated the Appointments Clause found in Article II of the United States Constitution, which provides that inferior officers of the United States may be appointed by the "Courts of Law". The defendants asserted the Courts of Law referenced in the Appointments Clause includes only Article III judges, such as federal district judges, and not the Article I judges like the Chief Judge of the Tax Court.

The Fifth Circuit rejected the defendant's arguments and affirmed the Tax Court's decision, ruling the statute authorized the appointment.^[2] Further, the defendants had waived any constitutional challenge to the appointment by consent to the assignment.