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Q: please cite case law holding the Commissioner of Internal Revenue must be commissioned by the President, pursuant to the Commissions Clause in the US Constitution

A:

The question of whether the Commissioner of Internal Revenue requires a Presidential Commission under the Commissions Clause (Article II, Section 3) involves the intersection of that clause with the Appointments Clause (Article II, Section 2, Clause 2).

The Commissions Clause states that the President "shall Commission all the Officers of the United States." Because the Commissioner of Internal Revenue is a "superior officer" (or at least a non-inferior officer whose appointment is established by statute), the following legal framework and case law address the necessity of that commission.

1. Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803)

While not specific to the IRS, this is the foundational case for the Commissions Clause. Chief Justice Marshall held that the commission is the "conclusive evidence" of a Presidential appointment.

• The Holding: For officers appointed by the President with the advice and consent of the Senate, the signing of the commission is the final act of appointment.
• Relevance: It establishes that the commission is not a mere formality but the legal act that completes the appointment process for Officers of the United States.

2. United States v. Le Baron, 60 U.S. (19 How.) 73 (1856)

The Supreme Court clarified that the transmission of the commission is a separate event from the appointment itself, but affirmed the necessity of the commission for the officer to legally hold the station.

• The Holding: "When a person has been nominated to an office by the President, confirmed by the Senate, and his commission has been signed by the President, and the seal of the United States affixed to it by the Secretary of State, the appointment is complete."

3. Statutory Authority: 26 U.S.C. § 7803

While case law interprets the Constitution, the specific office of the Commissioner is governed by the Internal Revenue Code.

• Section 7803(a)(1)(A) states: "There shall be in the Department of the Treasury a Commissioner of Internal Revenue who shall be appointed by the President, by and with the advice and consent of the Senate."
• Because this statute designates the Commissioner as an officer appointed by the President and confirmed by the Senate, they fall squarely under the mandatory "shall Commission" language of Article II, Section 3.

4. Direct Case References to the Commissioner

There is limited modern litigation challenging the existence of the Commissioner's commission because it is a standard executive branch procedure. However, the following cases discuss the validity of the Commissioner's authority:

• Mainbeam v. United States, 2006-2 USTC ¶50,565: Taxpayers often challenge the "delegation of authority." Courts consistently hold that as long as the Commissioner is properly appointed (which includes the commission process), their sub-delegation of authority to IRS agents is valid.
• Young v. Commissioner, T.C. Memo. 2003-6: The Tax Court has repeatedly rejected "frivolous" arguments that the IRS has no authority, noting that the Commissioner is a de jure officer of the United States.

Summary of the Legal Logic

1. The Appointments Clause: Requires "Officers of the United States" to be appointed by the President (26 U.S.C. 7803 confirms this is the method for the Commissioner).

2. The Commissions Clause: Explicitly mandates that the President "shall Commission all the Officers of the United States."

3. Conclusion: Per Marbury, the Commissioner is not legally vested with the powers of the office until the President performs the final act of signing the commission.