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Argument analysis: Justices debate the dual-officeholding ban and jurisdiction over military courts

The Supreme Court heard oral argument today in the case of several members of the armed forces, who were convicted by military courts-martial of offenses ranging from the relatively minor (wrongful use of a controlled substance) to the serious (sexual misconduct). They appealed to the military courts of criminal appeals (CCAs), where their convictions were upheld by panels that included judges who also had been confirmed as judges on the United States Court of Military Commission Review (CMCR), which hears appeals from military commissions. They argue that they are entitled to new hearings before the CCA because the judges’ simultaneous service on the CCA and CMCR runs afoul of a longstanding rule sometimes known as the “dual-officeholding ban,” which bars active-duty military officers from holding a second government job that requires presidential nomination and Senate confirmation. After over 70 minutes of oral argument, the justices seemed likely to rule against the service members and in favor of the government – if they reach the merits of the service members’ challenge at all.

The federal law enacting the dual-officeholding ban prohibits military officers from holding or exercising the functions of a “civil office” requiring a presidential nomination and Senate confirmation “except as otherwise authorized by law.” Arguing for the United States, assistant to the U.S. solicitor general Brian Fletcher told the justices that the service members face three insurmountable obstacles to a new hearing. First, he maintained, the dual-officeholding ban does not apply to this case because a position as a judge on the CMCR is not a “civil office.” There is no dispute, he said, that judges on the CCAs hold military offices, rather than civil ones, and judges on the CMCR play roles similar to CCA judges – judging violations of the law by defendants convicted in military courts.

Brian H. Fletcher, assistant to the solicitor general (Art Lien)

Justice Stephen Breyer seemed to agree. He asked law professor Stephen Vladeck, who argued on behalf of the service members, the same question: Why is a judgeship on the CMCR a civil office when the CMCR judges serve military functions?

Vladeck countered that a judge on the CMCR does not serve a “classic military function.” Indeed, he pointed out, appellate review of rulings by military commissions was not available until 2005. Moreover, even the secretary of war – who, he suggested, performs a quintessentially military function – was historically regarded as holding a civil office.

To prevail, Fletcher continued, the service members would also have to show that Congress had not authorized military officers to sit on the CMCR. And that’s all that matters, Fletcher emphasized, for purposes of interpreting the dual-officeholding ban – how a judge comes to have a position on the CMCR is irrelevant. Congress gave such authorization, Fletcher contended, when it provided two ways for judges to be placed on the CMCR: The president can appoint judges (with Senate approval) to the court, or military officers who already serve as appellate judges on military courts can be assigned to the CMCR by the secretary of defense. Although the military judges at issue in this case were appointed to the CMCR by the president, Fletcher explained, the fact that military officers can also be assigned is enough to constitute the necessary congressional authorization. In fact, he continued, the four judges in this case had all been initially assigned to the CMCR; their later appointments simply ratified their existing jobs.

Vladeck pushed back, stressing that the “heart” of the case lies in the distinction between the two methods – assignments and appointments – that Congress enacted to put judges on the CMCR. The fact that Congress provided for military judges to be assigned to the CMCR must mean, Vladeck told the justices, that it did not intend for them to be appointed.

Stephen I. Vladeck for petitioners (Art Lien)

The final question confronting the court on the merits of the service members’ challenge is one of remedy: Even if the judges’ simultaneous service on the CMCR and the CCAs violated the dual-officeholding ban, does that entitle the service members to new hearings before the CCA, or does it instead just mean that the judges’ appointments to the CMCR are invalid?

Vladeck insisted that the service members should get new hearings because, if the dual-officeholding ban has been violated, the CMCR judges would no longer be members of the military and could not serve on the CCAs. Justice Ruth Bader Ginsburg suggested that the judges’ involuntary separation from the military would be a particularly harsh punishment, and she asked Vladeck sternly, “What about the idea of fair notice to people who have devoted their lives to military service and then are drummed out?”

Fletcher told the justices that the service members’ convictions would still stand because another part of the dual-officeholding law, known as the “savings clause,” indicates that the ban would not invalidate actions taken by “an officer in furtherance of assigned official duties.” Responding to a question from Chief Justice John Roberts, Fletcher assured the court that the federal government would act to fix any problems created by the dual officeholding, but that the “drastic remedy” of expelling someone from the military was not necessary.

Professor Aditya Bamzai (Art Lien)

Fletcher sat down without using all of his 30 minutes of argument time, having faced relatively few questions about the merits of the service members’ challenge. Assuming that the justices get that far, that’s a good sign for the government. But Fletcher faced more, and tougher, questions about whether the court has the authority to hear the service members’ cases at all. The government and the service members agree that it does, but a University of Virginia law professor, Aditya Bamzai, argued today that it does not. Bamzai told the justices that the court can only review decisions by the U.S. Court of Appeals for the Armed Forces (CAAF), which heard the service members’ appeals from the CCAs, if those decisions are “appeals.” But because the CAAF is part of the executive branch, he concludes, it does not exercise real judicial power.

The justices struggled with the broader implications of Bamzai’s assertion throughout the oral argument. Breyer outlined the problem in a question for Vladeck, telling him that there are “many adjudicatory bodies in the executive branch”: How, he asked, do we draw a line that will allow us to hear appeals from the CAAF, but not from other entities such as the National Labor Relations Board or the Securities and Exchange Commission? There were no clear-cut answers to Breyer’s question; a decision on both the jurisdictional issue and, if necessary, the dual-officeholding ban is expected by summer.

This post was originally published at Howe on the Court.

Recommended Citation: Amy Howe, Argument analysis: Justices debate the dual-officeholding ban and jurisdiction over military courts, SCOTUSblog (Jan. 16, 2018, 4:46 PM),