192
Souter, J., concurring
tag suggests are principal officers too (since, Freytag held, Tax Court judges may appoint inferior officers). In terms of the factors identified in Morrison v. Olson as significant to determining the Appointments Clause status of a federal officer, the office of military judge is not "limited in tenure," as that phrase was used in Morrison to describe "appoint-[ment] essentially to accomplish a single task [at the end of which] the office is terminated." 487 U. S., at 672. Nor are military judges "limited in jurisdiction," as used in Morrison to refer to the fact that an independent counsel may investigate and prosecute only those individuals, and for only those crimes, within the scope of the jurisdiction granted by the special three-judge appointing court. See ibid. Over the cases before them, military judges would seem to be no more "limited [in] duties" than lower Article III or Tax Court judges. Id., at 671. And though military judges are removable, the same is true of "most (if not all) principal officers in the Executive Branch." Id., at 716 (Scalia, J., dissenting) (emphasis deleted).
The argument that military judges are principal officers, however, is not without response. Since Article I military judges are much more akin to Article I Tax Court judges than lower Article III judges, the analogy to Tax Court judges proves nothing if Tax Court judges are inferior officers, which they may be. The history that justifies declaring the judges of "inferior" Article III courts to be principal officers is not available for Tax Court judges, and though Freytag holds that the Tax Court is a "Cour[t] of Law" that can appoint inferior officers, it may be that the Appointments
sumed that lower federal judges were principal officers. See 501 U. S., at 884 (listing "ambassadors, ministers, heads of departments, and judges" as principal officers). But see Shartel, Federal Judges—Appointment, Supervision, and Removal—Some Possibilities Under the Constitution, 28 Mich. L. Rev. 485, 499-529 (1930) (arguing that lower federal judges should, and constitutionally can, be appointed by the Chief Justice).
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