In addressing the constitutionality of the trial judges' appointment, the Court in Freytag stated as follows:
This Court for more than a century has held that the term "Department" refers only to "`a part or division of the executive government, as the Department of State, or of the Treasury,' " expressly "creat[ed]" and "giv[en] . . . the name of a department" by Congress. Germaine, 99 U. S., at 510-511. See also Burnap, 252 U. S., at 515 ("The term head of a Department means . . . the Secretary in charge of a great division of the executive branch of the Government, like the State, Treasury, and War, who is a member of the Cabinet"). Accordingly, the term "Heads of Departments" does not embrace "inferior commissioners and bureau officers." Germaine, 99 U. S., at 511.
Confining the term "Heads of Departments" in the Appointments Clause to executive divisions like the Cabinet- level departments constrains the distribution of the appointment power just as the Commissioner's interpretation, in contrast, would diffuse it. The Cabinet-level departments are limited in number and easily identified. Their heads are subject to the exercise of political oversight and share the President's accountability to the people.
Such a limiting construction also ensures that we interpret that term in the Appointments Clause consistently with its interpretation in other constitutional provisions. In Germaine, see 99 U. S., at 511, this Court noted that the phrase "Heads of Departments" in the Appointments Clause must be read in conjunction with the Opinion Clause of Art. II, 2, cl. 1. The Opinion Clause provides that the President "may require the Opinion, in writing, of the principal Officer in each of the Executive Departments," and Germaine limited the meaning of "Executive Department" to the Cabinet members.
The phrase "executive departments" also appears in 4 of the Twenty-fifth Amendment, which empowers the Vice President, together with a majority of the "principal officers of the executive departments," to declare the President "unable to discharge the powers and duties of his office." U. S. Const., Amdt. 25, 4. The Amendment was ratified February 10, 1967, and its language, of course, does not control our interpretation of a prior constitutional provision, such as the Appointments Clause. Nevertheless, it is instructive that the hearings on the Twenty-fifth Amendment confirm that the term "department" refers to Cabinet-level entities:
"[O]nly officials of Cabinet rank should participate in the decision as to whether presidential inability exists. . . . The intent . . . is that the Presidential appointees who direct the 10 executive departments named in 5 U.S.C. 1 [now codified as 101], or any executive department established in the future, generally considered to comprise the President's Cabinet, would participate . . . in determining inability." H. R. Rep. No. 203, 89th Cong., 1st Sess., 3 (1965).
Treating the Tax Court as a "Department" and its chief judge as its "Head" would defy the purpose of the Appointments Clause, the meaning of the Constitution's text, and the clear intent of Congress to transform the Tax Court into an Article I legislative court. The Tax Court is not a "Department."