This is great stuff. Thank you for taking the time. Sorry about the Scalia thing; I wrote that comment at 5am and was looking at (and misreading) the Oyez interface, which is wretched.
The two questions it looks like your comment broaches are:
* Is an appointment to the FISC by an appointed Article III judge so different as to approach the difference between a civilian and military appointment? If not, appointment without Senate consent likely passes muster with SCOTUS.
* Are FISC judges in any way supervised in a manner similar to the way that Coast Guard Court of Criminal Appeals judges are supervised by the Judge Advocate General of the Coast Guard? If so, they'd qualify as "inferior officers" regardless of the distinction between Federal circuit courts and the FISC.
I don't know the answer to either question, but my guess is that regarding the former the answer is "yes, the duties of a FISC judge are substantially similar to (in fact a small subset of) the duties of a general Article III judge", and my guess to the latter is "no, the supervisory role Roberts has over the FISC judges isn't meaningful enough to qualify them as inferior officers under Article II".
My guess is that a yes on either question makes it more likely than not that the USG would prevail in arguing that the FISC is an Article III court, though I still think the issue is murky.
The last couple of days have been quite an education on this. Thanks again!
The two questions it looks like your comment broaches are:
* Is an appointment to the FISC by an appointed Article III judge so different as to approach the difference between a civilian and military appointment? If not, appointment without Senate consent likely passes muster with SCOTUS.
* Are FISC judges in any way supervised in a manner similar to the way that Coast Guard Court of Criminal Appeals judges are supervised by the Judge Advocate General of the Coast Guard? If so, they'd qualify as "inferior officers" regardless of the distinction between Federal circuit courts and the FISC.
I don't know the answer to either question, but my guess is that regarding the former the answer is "yes, the duties of a FISC judge are substantially similar to (in fact a small subset of) the duties of a general Article III judge", and my guess to the latter is "no, the supervisory role Roberts has over the FISC judges isn't meaningful enough to qualify them as inferior officers under Article II".
My guess is that a yes on either question makes it more likely than not that the USG would prevail in arguing that the FISC is an Article III court, though I still think the issue is murky.
The last couple of days have been quite an education on this. Thanks again!