« Are Payday Loans as Profitable as We Think? | Main | Asymmetric Paternalism »

Are Bankruptcy Judges Unconstitutional?

posted 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.


Would any of this argument not also apply to magistrates?

Hi John,

It could potentially apply to magistrate judges. See pp. 58-61 of the manuscript for a discussion of why the question of bankruptcy judges is more problematic than magistrate judges. The status of magistrate judges, as presently constituted, has not been definitively decided, but there is 9th Circuit dicta that they are "inferior officers" (the 1984 Pacemaker decision).

Tuan Samahon

We recently had a bogus decision in the DE Circuit Ct, where the Dist Ct Justice was promoted to the 3rd Circuit an order was issued that a Magistrate Justice would handle his cases except for 18 USC 158 and 1334 issues.

Ignoring that Order, desiring to clear the docket, the Magistrate (Thynge) dismissed case 05-830 by issuing a shotgun order to a man who had undergone brain surgery.

The clerk actually held up the "pro se" litigants brief and then a new Justice (now former Chief Justice of District Ct DE) affirmed the Magistrate's bogus Order and dismissed the pro se under Poulis, without a hearing.

To cover up the "faux pas" of sorts, the 3rd Cirucit (who has many justices bent on burying the case) remarked that the Fed R App Proc does not apply to the case (07-2360 3rd Cir).

It seems to me that what is Unconstitutional is the way rulings, in this new millenium, have become consistently arbitrary & capricious, being contrary to the Law, for the sake of veiled agendas that defy the Law on their premise, such as "Courting". (please see UCLA Law PRof book on "Courting Disaster" How Competition for Big Cases is Corrupting the Bankruptcy System).

There is a mindset out there, with the new age ability of the net, that is seeing how things "really" have worked behind closed doors for some time and now have blatant and flagrant abuses of the Constitution stating "overtly" that there are persons Above the Law.

What the Judicial bench needs, is not any argument of Constitution, as much as it needs humility and accountability to those that employ them. The American People.

The comments to this entry are closed.


Current Guests

Follow Us On Twitter

Like Us on Facebook

  • Like Us on Facebook

    By "Liking" us on Facebook, you will receive excerpts of our posts in your Facebook news feed. (If you change your mind, you can undo it later.) Note that this is different than "Liking" our Facebook page, although a "Like" in either place will get you Credit Slips post on your Facebook news feed.

News Feed



  • As a public service, the University of Illinois College of Law operates Bankr-L, an e-mail list on which bankruptcy professionals can exchange information. Bankr-L is administered by one of the Credit Slips bloggers, Professor Robert M. Lawless of the University of Illinois. Although Bankr-L is a free service, membership is limited only to persons with a professional connection to the bankruptcy field (e.g., lawyer, accountant, academic, judge). To request a subscription on Bankr-L, click here to visit the page for the list and then click on the link for "Subscribe." After completing the information there, please also send an e-mail to Professor Lawless (rlawless@illinois.edu) with a short description of your professional connection to bankruptcy. A link to a URL with a professional bio or other identifying information would be great.