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Opinion analysis: Court rejects “dual-officeholding” challenge to military conviction

Today the Supreme Court ruled that the simultaneous service of military officers on both the criminal courts of appeals (CCAs) for the armed forces and the United States Court of Military Commission Review (CMCR) does not violate a longstanding rule that bars active-duty military officers from holding a second job that requires presidential nomination and Senate confirmation – sometimes known as the “dual-officeholding ban.” The decision means that the conviction of Keanu Ortiz, who served as an Airman First Class in the U.S. Air Force, will stand.

The dispute now before the court arose after Ortiz was convicted by a military court-martial of knowingly possessing and distributing child pornography, sentenced to two years in prison and dishonorably discharged. He appealed to the Air Force CCA, where his conviction was upheld by a panel that included Colonel Martin Mitchell, who approximately a month earlier had been confirmed to serve as a judge on the CMCR.

The U.S. Court of Appeals for the Armed Forces (CAAF) then agreed to hear Ortiz’s case, along with those of several other servicemembers, including Nicole Dalmazzi and Laith Cox. It concluded that Dalmazzi’s and Cox’s cases were moot because President Barack Obama had not signed the CMCR commission for the judges in question until after the CCAs had released the decisions in their cases. But in Ortiz’s case, the CAAF concluded that, even if the judges’ simultaneous service on the CCA and CMCR did violate the law, that violation would not affect either the judges’ authority to sit on the CCA or the servicemembers’ convictions. The only effect, the CAAF ruled, would be on the judges’ appointments to the CMCR.

The Supreme Court agreed to hear the servicemembers’ cases last year and heard oral argument in January. Today, by a vote of 7-2, the justices rejected Ortiz’s challenge. The justices began with a question that neither Ortiz nor the federal government had asked them to address: Whether the Supreme Court has the authority to review appeals from the CAAF at all. Both sides in the case had agreed that it does, but a “friend of the court” brief filed by University of Virginia law professor Aditya Bamzai had argued that it does not, and so the justices – wanting to assure themselves that they did indeed have jurisdiction – took the relatively rare step of asking Bamzai to participate in the oral argument.

Today the justices rejected Bamzai’s theory. In an opinion by Justice Elena Kagan, the court reasoned that there is no reason to treat the military court system any differently from other U.S. court systems. Among other things, the majority noted, the military system generally operates the same way as other U.S. courts, defendants in the military system enjoy the same kinds of procedural protections and the military courts’ rulings have the same effect as those of other U.S. courts. Indeed, Kagan observed, not only is the idea of a military court-martial firmly grounded in the U.S. Constitution, but it is “in fact older” than the Constitution itself.

It does not matter, Kagan explained, that Congress established the CAAF using its powers under Article I of the Constitution, which gives Congress power to establish what are sometimes called legislative courts, and that it put the CAAF in the executive branch rather than the judiciary. The Supreme Court has long recognized, Kagan continued, that its own appellate jurisdiction “covers more than the decisions of Article III courts,” the traditional federal courts – for example, by reviewing decisions of federal courts in U.S. territories and of courts in the District of Columbia. At the same time, Kagan made clear that today’s decision applies only to the CAAF, emphasizing that “we say nothing about whether we could exercise appellate jurisdiction over cases from other adjudicative bodies in the Executive Branch.”

Kagan then made relatively short work of Ortiz’s contention that Mitchell’s simultaneous service on the CCA and CMCR breached the dual-officeholding ban. The simultaneous service did not violate federal law, the court ruled, because federal law expressly allowed the secretary of defense to appoint Mitchell to the CMCR; once that happened, it didn’t matter that the president later nominated him to the CMCR to ward off a constitutional challenge on the ground that the Constitution requires the president to nominate, and the Senate to confirm, judges on the CMCR.

The court also rebuffed Ortiz’s suggestion that the simultaneous service ran afoul of the Constitution’s appointments clause, which provides that the president “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint” the “Officers of the United States,” while Congress can give the power to appoint “inferior Officers” to the president, the courts, or federal department heads. Ortiz interpreted this clause to mean that a judge like Mitchell could not “serve as an inferior officer on one court and a principal officer on another.” But Kagan disagreed, writing that the Supreme Court has never read the appointments clause that way. Even if it had, she continued, it would not do so here, when Mitchell was serving as a judge in two different systems without “any overlapping jurisdiction,” eliminating any prospect that service in one could somehow influence the other. The decision was the end of the road for Ortiz’s appeal, as well as those of Dalmazzi and Cox, whose cases were dismissed.

Justice Samuel Alito dissented, in an opinion joined by Justice Neil Gorsuch. He would have held that the court lacked the authority to review Ortiz’s case because it came to the justices from the CAAF. “If Congress wants us to review CAAF decisions,” Alito wrote, “it can convert that tribunal into an Article III court or it can make CAAF decisions reviewable first in a lower federal court,” “with additional review available here. But as long as the CAAF retains its current status as an Executive Branch entity, Congress cannot give our Court jurisdiction to review its decisions directly,” he concluded.

This post was originally published at Howe on the Court.

Recommended Citation: Amy Howe, Opinion analysis: Court rejects “dual-officeholding” challenge to military conviction, SCOTUSblog (Jun. 22, 2018, 3:47 PM),