Petition for Writ of Certiorari — Leiker v. United States

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No. 93-

93-893 a7 |

In THE DFEICE O£ THE CLERK

Supreme Court of the Uni ei Ptates

OCTOBER TERM, 1993

DaARRICK B. LEIKER, U.S. Arr Force,

Petitioner

Vv.

THE UNITED STATES OF AMERICA,

Respondent

AND OTHER CASES

Petition for a Writ of Certiorari to the

United States Court of Military Appeals

PETITION FOR A WRIT OF CERTIORARI

JAY LINDSEY COHEN

Lieutenant Colonel,

United States Air Force

Chief, Appellate Defense Division

Counsel of Record

JOEL R. REIFMAN

Captain, United States Air Force

Appellate Defense Counsel

- AIR FORCE LEGAL SERVICES AGENCY

172 Luke Avenue, Room 208

Bolling AFB, DC 20332-5113

(202) 767-1562

QUESTIONS PRESENTED

1. May the Judge Advocate General of an Armed

Force, who is not authorized to make appointments under

the Appointments Clause of the Constitution, appoint

commissioned officers to serve as trial and military ap-

pellate judges, on the theory that their appointment as

commissioned officers already satisfies the Appointments

Clause for both their judicial and non-judicial duties?

2. Does the Due Process Clause of the Fifth Amend-

ment require that, in peacetime, military trial and appel-

late judges be appointed to their judicial duties for fixed

terms?

LISTING OF PARTIES PURSUANT TO RULE 24.1(b)

DARRICK B. LEIKER, United States Air Force

USCMA Dkt No. 68050/AF

GLENN F. ACTON, United States Air Force

USCMA Dkt No. 67886/AF

RALF E. JACKSON, United States Air Force

USCMA Dkt No. 681 14/AF

ROGELIO A. J OHNSON, United States Air Force

USCMA Dkt No. 67310/AF

STUART A. MAXWELL, United States Air Force

USCMA Dkt No. 68354/AF

KEVIN A. FRENCH, United States Air Force

USCMA Dkt No. 930534/AF,

Petitioners

TABLE OF CONTENTS

SECT eC Ono ne TC

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CONSTITUTIONAL PROVISIONS AND STATUTES

SITY iscsi acted dlienccinsanepethneduumstestibieiesvessdnssabcessonstons

STATEMENT OF THE CASE .W20.22.....222.2.2......ecceneeeeese

1. Institutional Framework _.......................................

RRA tates ta laiiccasalichaapeepaeabsiemenauderhdadieiacanetunssidaicantichemeei

II. THE DUE PROCESS VIOLATION __....

I Tahaan cdesieinendigunisiesiankinasvsmemaitite iscusonibaan

APPENDIX A

(Decision of the U.S. Court of Military Appeals—

ae ch senmiciemnsaneeiadeidhiamntddian

APPENDIX B

(Unpublished Decision of the U.S. Navy-Marine

Corps Court of Military Review—Weiss) —...............

APPENDIX C

(Decision of the U.S. Court of Military Appeals—

Cee fae abipneaeniioagnoanens

APPENDIX D

(Decision of the U.S. Court of Military Appeals—

Leiker) ........ Coe Le ERLE PO ETI ROLE

86a

TABLE OF CONTENTS—Continued

APPENDIX EF

(Decision of the U.S. Air Force Court of Military

Review—Leiker) anaeninaasintnetesashintibicniendidhadisnsles sist...

APPENDIX F

(Decision of the U.S. Court of Military Appeals—

TI mies nertaaasnenccsincis ase a es.

APPENDIX G

(Decision « the U. S. Court of Military Appeals—

APPENDIX H

(Decision of the U.S. Court of Military Appeals—

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APPENDIX I

(Decision of the U.S. Court of Military Appeals—

NT i erncitiseaiianesepcsoua oe,

APPENDIX J

(Decision of the U.S. Court of Military Appeals—

a a ee

APPENDIX K

(Relevant provisions of Uniform Code of Military

Justice, Articles 6, 16, 26 and 66, 10 U.S.C.

$§ 806, 816, 826 and sa | EON: Edd. San

APPENDIX L

(Rule for Courts-Martial 1002, Manual for Courts-

Pe EE vectra

Page

95a

102a

121a

133a

138a

147a

179a

TABLE OF AUTHORITIES

Cases: Page

Buckley v. Valeo, 424 U.S. 1 (1976) (per curiam)... 9,11

Dettinger v. United States, 7, M.J. 216 (C.M.A.

MII wicidninieeageeceaaduicidenahieciata thd is cde ae 7

Freytag v. Commissioner, 111 S. Ct. 2631 (1991) ..2, 11, 12

Matthews v. Eldridge, 424 U.S. 319 (1976) ............. 19,17

Medina v. California, 112 S. Ct. 2572 (1992) ..._.... 10, 17

Middendorf v. Henry, 425 U.S. 25 (1976) ............... 15,17

Palmore v. United States, 411 U.S. 389 (1973) _._.... 10

Rostker v. Goldberg, 453 U.S. 57 (1981)... 15

Shoemaker v. United States, 147 U.S. 282 (1893) passim

Solorio v. United States, 483 U.S. 485 (1987) _...... 6,11

Tumey v. Ohio, 274 U.S. 510 (1927) .......0. 18

United States v. Brown, 28 M.J. 470 (C.M.A.

) AIRTEL aA PYF en Cork hn 7

United States v. Cole, 31 M.J. 270 (C.M.A.

| _, RE ASEM ES AEN a ke Merona: 7

United States v. Graf, 35 M.J. 450 (C.M.A.

TREE PONE ST Ss Mel eC ele EP passim

United States v. Maharajh, 28 M.J. 797

fo act 8 neers eee e 7

United States v. Ohrt, 28 M.J. 301 (C.M.A.

BEE eecthcieniecstoihaidiecn ince 6,7

United States v. Raddatz, 447 U.S. 667 (1980) -....... 17

United States v. Rice, 36 M.J. 264 (C.M.A.

|S AI SAUTE RI Ss Pe PE APNE usd SPS A TR dls ee 3

United States ex rel Toth v. Quarles, 350 U.S. 11

LL: Sea IN NCE OAD Oe aT Only AND 10

United States v. Weiss, 36 M.J. 224 (C.M.A. 1992),

cert. granted, 61 U.S. L.W. 3783 (May 24,

(| RET NADER ECR” 3 WA a ey Aen bE passim

Watson v. McCoffer, 782 F.2d 143 (10th Cir.

DU iid ede oe dn ee eS 16

Constitutional Provisions:

ee Cree: ec Os Or er | passim

ee em OREM NS passim

Statutes:

or or 6 CRC Cee 4

UCaes art. 18, 10 U.S.C. $618 i. 6

TABLE OF AUTHORITIES—Continued

Page

UCM art. 19, 10 SO tic 7

UCM art. 26, 10 US.C.§82600000 0 3,6

UCM art. 48, 10 US.C.§ 848.00 7

UCM] art. 66, 10 oo, , lta a 3, 5,8

UCM] art. 142, 10 U.S.C. i 5

10 U.S.C.A. § 867a (Supp.1998).00 2

28 U.S.C.A. § 1259 (3) (Supp.1993).00 2

Regulations:

Manual for Courts-Martial, United States, 1984,

Rule for Courts-Martial OEE spade 7

Miscellaneous:

William H. Cooke, Courts-Martial: The Third

System in American Criminal Law, 1978 So. Il.

elgg Eee Ray 6

Francis A. Gilligen & Frederic I Lederer, Court-

Martial Procedure CEU OED ssnietsssintetaiie we 6

In THE

Supreme Court of the Wuited States

OCTOBER TERM, 1993

No. 93-

DarrRICK B. Lerxer, U.S. Arr Force.*

7 Petitioner

THE UNITED STATES OF AMERICA,

Respondent

AND OTHER CASES

Petition for a Writ of Certiorari to the

United States Court of Military Appeals

PETITION FOR A WRIT OF CERTIORARI!

The petitioners, Darrick B. Leiker, et al., respectfully

pray that a writ of certiorari issue to review the judgment

and opinion of the United States Court of Military Ap-

peals entered in this proceeding.

OPINIONS BELOW

The opinion of the United States Court of Military

Appeals, United States v. Weiss, 36 M.J. 224 (C.M.A.

1992). cert. granted, 61 U.S.L.W. 3783 (May 24,

1993), is reprinted as Appendix A at App. la. The un-

* Full listing of parties to this proceeding appears on page ii.

1 This petition incorporates essentially the same brief which was

submitted by U.S. Navy counsel in Weiss v. United States, No. 92-

1482, and by U.S. Army counsel in Barkley v. United States, No.

92-1646.

Published decision of the United States Navy-Marine

Corps Court of Military Review, United States v. Weiss,

No. 89-4189 (N.M.C.M.R. Jan. 31, 1992), is reprinted

as Appendix B at App. 85a.

Published decision of the United States Air Force Court

of Military Review, in United States v. Leiker, ACM

No. 28899, (A.F.C.M.R. 19 March 1992). is reprinted

4S Appendix E at App. 95a. The opinion of the United

States Court of Military Appeals, United States v. Rice,

36 M.J. 264 (C.M.A. 1993), is reprinted as Appendix

C at App. 86a.

JURISDICTION

The decisions of the Court of Military Appeals were

rendered between September 10, 1993 and September 30,

2631, 2638-40 (1991).

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED

The Appointments Clause, U.S. Const. Art. II, § 2,

Cl. 2 provides:

The President . . . shall nominate, and by and with

the Advice and Consent of the Senate, shall appoint

Ambassadors, other Public Ministers and Consuls,

Judges of the Supreme Court, and all other officers

of the United States, whose Appointments are not

herein otherwise Provided for, and which shall be

established by Law: but the Congress may by Law

vest the Appointment of such inferior Officers, as

they think Proper, in the President alone, in the

Courts of Law, or in the Heads of Departments,

eee

The Fifth Amendment provides:

No person shall be . . . deprived of life, liberty, or

property, without due process of law.

The relevant provisions of the Uniform Code of Mili-

tary Justice, Article 6, 16, 26 and 66, 10 U.S.C. §§ 806,

816, 826, and 866, are set forth in Appendix K, Pet.

App. at 179a, Rule for Courts-Martial 1002, Manual for

Courts-Martial, 1984, is set forth in Appendix L, Pet.

App. at 184a.

STATEMENT OF THE CASE

This is a consolidated petition representing interested

service members of varying ranks from the Air Force,

whose court-martial convictions were affirmed by the

Court of Military Appeals between September 10, 1993

and September 30, 1993. In United States v. Leiker, 37

MJ. 418 (C.M.A. 1993), the judicial appointment and

due process issues were expressly raised at the Court of

Military Appeals. The Court of Military Review granted

review of these issues, and rendered adverse summary dis-

positions in light of United States v. Weiss, 36 M.J. 224

(C.M.A. 1992) (Appendix A). In United States v. Max-

well, No. 68354/AF (C.M.A. September 28, 1993),

petitioner Maxwell raised the due process issue at the

Court of Military Appeals; however, that court refused

to grant review on the issue in accordance with United

States v. Rice, 36 M.J. 264 (C.M.A. 1993) (Appendix

C). Petitioner Maxwell and the remaining petitioners

raise the judicial appointment issue pursuant to the juris-

dictional statement herein, infra p. 2. Each case herein

is factually distinct, and all raised other issues which are

not the subject of this petition.”

Subsequent to the Court of Military Appeals’ decision

in Weiss, that Court acknowledged in United States v.

2 Where, in the appendices the individual orders of the Court of

Military Appeals refer to a particular issue number, that issue rep-

resents the judicial appointment question.

Rice, 36 M.J. 264 (C.M.A. 1993) (Appendix C) that

there were over 200 cases pending wherein the trial and

appellate military judges were challenged because they

were not appointed in accordance with the United States

Constitution, Art. II, § 2, cl. 2. In Rice, the Court of

Military Appeals recognized the possibility of a grant of

certiorari and relief by this Court, and, if so, afforded

petitioners the opportunity for further relief. This peti-

tion adopts and incorporates the same argument as set

forth in Weiss, infra (No. 92-1482).

Like United States v. Weiss, this petition raises two

closely related questions which go to the heart of judicial

independence for military trial judges who preside over

courts-martial and for military appellate judges who re-

view convictions. All military trial judges and almost

all appellate military judges are commissioned officers

and lawyers on active duty in their services. Unlike

judges appointed under Article I or Article III, military

judges are not appointed by the President with the ad-

vice and consent of the Senate. Nor are they appointed

by the President alone, the head of a department, or a

court of law composed of Article I or III judges. Instead,

military judges are selected and appointed by the Judge

Advocate General of their service, who is the senior uni-

formed lawyer in each armed service in charge of all

military legal personnel, and who is responsible for the

overall supervision of military justice matters. See Uni-

form Code of Military Justice art. 6(a), 10 U.S.C.

§ 806(a) (1988). Moreover, the Judge Advocates Gen-

eral who appoint military judges have absolute and un-

reviewable discretion to remove or transfer them out of

their judicial assignments, and those judges lack protec-

tion if their decisions do not suit their Judge Advocate

General. Accordingly, the method of appointment to

judicial service in the Armed Forces violates the Appoint-

ments Clause, and the lack of any fixed term for those

judicial offices violates the Due Process Clause of the

Fifth Amendment.

1. Institutional Framework.

Under Article I of the Constitution, Congress has estab-

listed a three-tier system of military courts. At the top

is the Court of Military Appeals, which has five civilian

judges appointed by the President with the advice and

consent of the Senate for fixed terms. Uniform Code of

Military Justice art. 142, 10 U.S.C.A. § 942 (West. Supp.

1992). The appointments and tenure of those judges are

not at issue.

Below the Court of Military Appeals are four Courts of

Military Review, one each for the Army, Air Force, Coast

Guard, and Navy-Marine Corps. Presently, there are ap-

proximately 35 appellate military judges, who may be

either military officers or civilians, all of whom are ap-

pointed by the Judge Advocate General of their service.

In addition, for each service’s Court of Military Review,

where petitioners’ cases were heard, the respective Judge

Advocate General, or, the respective Assistant Judge Ad-

vocate General signs and submits the judges’ annual fit-

ness reports, which are used to decide promotions, duty

assignments, and Susceptibility to involuntary early re-

tirement. Although these courts are permanent courts,

located in the Washington, D.C. area, none of the judges

is appointed to a fixed term of Office. Uniform Code of

Military Justice art. 66(a), 10 U.S.C. § 866(a) (1988).

The Courts of Military Review are typically divided into

three-member panels, each with their detailed rules to

manage and regulate dockets and the attorneys who prac-

tice before them. Absent waiver by an accused, the

Courts of Military Review are required to review all

Cases in which a death sentence, confinement of one year

Or more a dismissal, or a bad-conduct or dishonorable

discharge is adjudged. Uniform Code of Military Justice

art. 66(b), 10 U.S.C. § 866(b) (1988).

Military trial judges preside at special courts-martial

and, if qualified, at general courts-martial.* Trial judges

3 Currently, there are approximately 95 judges from all of the

services who are certified to preside at general courts-martial.

must be military officers, all of whom have been appointed

as military officers by the President with the advice and

consent of the Senate. However, their selection and ap-

pointment as a judge is made by the Judge Advocate

General of their service. Like appellate judges, the trial

judges have no fixed terms of office. Uniform Code of

Military Justice art. 26(a)-(c), 10 U.S.C. § 826(a)-(c)

(1988). Military trial judges are assigned to a circuit and

are supervised by a Circuit Chief Judge, who in turn

reports to and is supervised by the Chief Judge of the

Trial Judiciary of the respective service.

Each armed force assigns military judges as and when

it sees fit. Judges often serve a two-, three- or four-year

assignment. However, a judicial assignment can be termi-

nated at any time through decertification as a judge or by

transfer to other duties at the discretion of the Judge

Advocate General of the judge’s armed force.*

A court-martial can try any offense committed by a

member of the armed services regardless of when or where

the offense took place, who the victim was, what was done,

or why it was done—the sole requirement is that the ac-

cused was on active duty in the military at the time of the

offense. Solorio v. United States, 483 U.S. 435 (1987).

A general court-martial may impose sentences that include

death, imprisonment for life or term of years, total for-

feiture of pay and allowances, and/or a dishonorable or

bad-conduct discharge (or dismissal for officers). 10

U.S.C. § 818 (1988). A bad-conduct or dishonorable

discharge carries a permanent stigma, and it can have an

adverse impact on civilian job opportunities, as well as on

certain government-provided benefits. See United States

4 William H. Cook, Courts-Martial: The Third System in Ameri-

can Criminal Law, 1978 So. Ill. U. L. Rev. 1, 17-18; 1 Francis A.

Gilligan & Frederic I. Lederer, Court-Martial Procedure 14-31.00,

at 518-19 (1991). The Judge Advocate General does not issue the

actual orders for a transfer, but there is no doubt that, for all

military lawyers, including military trial and appellate judges, he

controls their actual duty assignments.

v. Ohrt, 28 M.J. 301 (C.M.A. 1989): United States v.

Maharajh, 28 M.J. 797 (A.F.C.M.R. 1989). Special

courts-martial may impose up to six months of confine-

ment, and/or forfeiture of up to two-thirds pay per month

for six months, and/or a bad conduct discharge. Uniform

Code of Military Justice art. 19, 10 U.S.C. § 819 (1988).

Military trial judges are, for all practical purposes, the

equivalent of United States District Judges and Magistrate

Judges who preside over criminal trial in federal district

courts. The drafters of the Uniform Code of Military

Justice wanted military judges to be “real judges” as com-

monly understood in the American legal tradition. United

States v. Graf, 35 M.J. 450, 465 (1992). The military

trial judge has far-ranging discretionary powers, including

the power to “rule on all interlocutory questions and all

questions of law raised during the court-martial,” to “[i]n-

Struct the members [the jury] on questions of law and

procedure which may arise,” to “promulgate and enforce

rules of court,” and to “exercise contempt power.” Uni-

form Code of Military Justice art. 48, 10 U.S.C. § 848

(1988). If the accused elects a bench trial, a general

court-martial judge has even more discretion than does a

district judge because the court-martial trial judge is not

bound by the Federal Sentencing Guidelines. See United

States v. Brown, 28 M.J. 470, 474 n.3 (C.M.A. 1989):

see generally Manual for Courts-Martial, United States.

1984, Rule for Courts-Martial 1002.

Courts of Military Review exercise all of the traditional

powers of appellate courts including those under the All

Writs Act. See Dettinger v. United States, 7 M.J. 216

(C.M.A. 1979). Additionally, these courts exercise an

“awesome, plenary, de novo power of review[.]” United

States v. Cole, 31 M.J. 270, 272 (C.M.A. 1990). Thus,

a court “[mJay affirm only such findings of guilty and the

sentence . . . as it finds correct in law and fact... . [I]t

may weigh the evidence, judge the credibility of witnesses,

and determine controverted questions of fact[.]” Uniform

Code of Military Justice art. 66(c), 10 U.S.C. § 866(c)

(1988).

2. Rulings of the Court of Military Appeals.

The Court of Military Appeals exercised its discretion-

ary jurisdiction to consider petitioners’ claims that the

manner in which the trial and appellate military judges in

their cases were appointed violated the Appointments

Clause of the Constitution, and that failure to appoint

those judges to fixed terms of office denied petitioners’

liberty without due process. See Pet. App. 2a n.1. Several

days before it heard argument in Weiss, the Court of

Military Appeals issued an opinion rejecting the due proc-

ess claim. United States v. Graf, 35 M.J. 450 (C.M.A.

1992).° Then, on December 24, 1992, a sharply divided

court rejected petitioner Weiss’ Appointments Clause

argument and affirmed the Navy-Marine Corps Court’s

decision.

In order to garner three votes, the majority below

needed two separate and largely inconsistent rationales.

Judge Gierke, writing the lead opinion for himself and

Judge Cox, agreed that Congress may establish a military

justice system, but that Congress cannot declare an ex-

emption for military judges from the Appointments Clause.

Therefore, Judge Gierke held that military judges are offi-

cers who must be appointed in accordance with the Ap-

pointments Clause, either by the President with the advice

and consent of the Senate, by the President alone, by a

Head of Department, or by a Court of Law. Pet. App.

5a. This proposition was endorsed by four of the court’s

five judges. Pet. App. 21a, 36a, 77a.

Judge Gierke then held that the Appointments Clause

is satisfied when a military officer is commissioned by the

5 A petition for writ of certiorari in Graf was filed on December

29, 1992 (No. 92-1102), and it is incorporated by reference. In the

interest of completeness, this petition will summarize the Graf deci-

sion, as well as the reasons for granting review of the Due Process

issue.

President with the advice and consent of the Senate, be-

cause military judges are simply military officers with legal

training. Relying on Shoemaker v. United States, 147

U.S. 282 (1893), Judge Gierke first ruled that Congress

had not created a “new office” when “Law Officers” be-

came “Military Judges” in the Military Justice Act of

1968 and thus no new appointment was necessary. Alter-

natively, he concluded that, if a new office had been cre-

ated, the duties of the military judge were “germane” to

those duties already required of a military officer with

legal training: “The principle we glean from Shoemaker

is that Congress may create a new office and give a

military officer the duties of that office without making a

new appointment necessary, if the duties are germane[.]”

Pet. App. 8a.

Judge Crawford eschewed the opinion of Judge Gierke,

and concurred only in the result. In her view the appoint-

ment of military judges need not comply with the Ap-

pointments Clause at all because of the special deference

given to Congress when it regulates the land and naval

forces. Her opinion does not mention Buckley v. Valeo,

424 U.S. 1, 132 (1976) (per curiam), in which this

Court held that no class or type of officer is excluded

from the reach of the Appointments Clause because of

the special nature of their office or the plenary power of

Congress over the subject area. Additionally, Judge Craw-

ford reached her conclusion even though the Department

of Justice (appearing as an amicus below, urging affirm-

ance) disavowed that position in both its brief (Brief at

10) and at oral argument.

Chief Judge Sullivan and Judge Wiss each filed dissent-

ing opinions rejecting the arguments in both of the major-

ity opinions. The dissenters found no broad exemption

to the strictures of the Appointments Clause based on the

judges’ status as military officers or military lawyers. Pet.

App. 37a, 74a. Chief Judge Sullivan stressed the water-

shed events of the Military Justice Act of 1968 which for

the first time created a “professional judiciary” in the

military. Pet. App. 58a. (italics in original). He recog-

nized that what had occurred was no mere transfer of

duties, but was a clear break from past practice by creat-

ing the new offices of military trial and appellate judge.

Judge Wiss disagreed with the lead opinion’s application

of Shoemaker to this case, in particular its assertion that

the assignment of specific and highly responsible judicial

duties as a military judge is “germane to some nebulous

notion of duties of legally trained military officers in gen-

eral,” i.e., to the duties of the entire Judge Advocate Gen-

eral’s Corps from which military judges are chosen. Pet.

App. 83a.

The court did not revisit Graf where it had overruled

Graf’s due process objection to the lack of fixed terms of

office for military judges for two reasons. First, Graf re-

jected the balancing test set forth in Matthews v. Eldridge,

424 U.S. 319 (1976), which had long been used to re-

solve Fifth Amendment due process claims. Instead, the

court used the less exacting Fourteenth Amendment due

process standard enunciated in Medina v. California, 112

S. Ct. 2572 (1992), which involved review of a state

criminal conviction. Second, Graf treated dicta from

United States ex rel. Toth v. Quarles, 350 U.S. 11 (1955),

and Palmore v. United States, 411 U.S. 389 (1973), as

approving the lack of fixed terms of office, and announced

a new rule that military judges could not be removed in

retaliation for their judicial decisions. Nowhere did the

Court of Military Appeals suggest that military necessity

precludes fixed terms for military judges generally, let

alone for those who sit on the Courts of Military Review

in the Washington, D.C. area or for courts-martial like

these that are held in peacetime.

REASONS FOR GRANTING THE WRIT

This petition, like United States v. Weiss, seeks to

establish minimum standards for the appointment of mili-

tary judges and their retention in office for a fixed term.

It does not seek to have the Uniform Code of Military

Justice or the military justice system mirror that of Article

III courts. Rather, it seeks to ensure that the separation

of powers requirements embodied in the Appointments

Clause, and the notions of fundamental fairness embodied

in the Due Process Clause, are available to those tried by

courts-martial. Taken alone, either the Appointments

Clause or the Due Process violation would seriously un-

dermine the fairness of the military justice system, but

occurring together they call into question whether anyone

in the armed forces can receive the minimal level of

judicial independence that every justice system requires.

I. THE APPOINTMENTS CLAUSE VIOLATION

Not since Solorio v. United States, 483 U.S. 435, 107

S.Ct. 2924 (1987), has an appeal presented ques-

tions of such fundamental importance to the institu-

tional integrity and viability of the military justice

system as does this one. Pet. App. 72a (Wiss, J.,

dissenting).

The Appointments Clause precludes Congress from

placing the power to appoint inferior officers in anyone

other than the President alone, the Courts of Law, or the

Heads of Departments. U.S. Const. Art. IT, § 2. Cl. 2.

Freytag v. Commissioner, 111 §S. Ct. 2631, 2642 (1991).

There can be little doubt that military judges, who exercise

extraordinary authority and discretion, are Officers of the

United States and are subject to the Appointments Clause.

See Buckley v. Valeo, 424 U.S. 1, 126 (1976) (per

curiam). No judge of the Court of Military Appeals dis-

agreed with that proposition except Judge Crawford and

her position was specifically disavowed by the Department

of Justice.

There is considerable force to the argument that mili-

tary appellate judges are “superior” or “principal” officers,

in which case the President must appoint them with the

advice and consent of the Senate. But in any event, both

military trial and appellate judges are at least inferior

officers, and so they must be appointed either by the

President, the Head of a Department, or by a Court of

Law. No court has held that military judges are appointed

to their judicial offices by any of the authorities listed in

the Appcintments Clause; the only question is whether

their appointment as military judges, after they have been

duly appointed as military officers, must be made by one

of the authorities set forth in the Appointments Clause.

The Appointments Clause preserves “the Constitution’s

structural integrity by preventing the diffusion of the ap-

pointment power.” Freytag, 111 S. Ct. at 2638. As the

Court reasoned in Freytag:

The Appointments Clause prevents Congress from

dispensing power too freely; it limits the universe of

eligible recipients of the power to appoint. Because

it articulates a limiting principle, the Appointments

Clause does not always serve the Executive’s inter-

ests. For example, the Clause forbids Congress from

granting the appointment power to inappropriate

members of the Executive Branch. Neither Congress

nor the Executive can agree to waive this structural

protection. . . . The structural interests protected by

the Appointments Clause are not those of any one

Branch of government but of the entire Republic.

Freytag, 111 S. Ct. at 2639 (emphasis added).°

8 A predictable consequence of having appointments made by an

intermediate official, such as the Judge Advocate General, instead

of by persons authorized by the Appointments Clause, is the homo-

geneity of the judges of the Courts of Military Review. Thus, the

35 current appellate judges include only two women and one African-

American. The only two civilians sit on the five-member Coast

Guard Court.

Relying on Shoemaker, two Court of Military Appeals

judges found that the Appointments Clause had been

satisfied because all military judges are commissioned

officers of the Armed Forces, having been nominated by

the President and confirmed by the Senate, although they

have not been appointed to their judicial positions in that

manner. Apparently recognizing that a presidential ap-

pointment had some limits—a Deputy Secretary of De-

fense could not simply move over to become the Assistant

Attorney General for Antitrust or a Member of the Equal

Employment Opportunity Commission—the opinion also

concluded that there was no new office created when Con-

gress amended the Uniform Code of Military Justice in

1968 to create the positions of military trial and appellate

judges because the new positions were simply continua-

tions of the old ones, with some modest changes. Even

if that assessment were correct, and petitioners agree

with the dissenters that it is not, that would at most al-

low those who were in a judicial position in 1968—the

“incumbent[s]” in Shoemaker’s words (147 U.S. at 301)

—to continue in office without a new appointment.

Stated another way, Shoemaker can at most solve the

problem for those who were already serving in judicial

positions in 1968, not for those who were yet to be ap-

pointed as judges, let alone those who were not yet mili-

tary lawyers.

As a fall-back Judges Gierke and Cox argued that,

under Shoemaker, Congress can add duties to an existing

office without requiring that the person then in office be

reappointed, so long as the “new” duties are “germane”

to the “old” ones of that office. What they overlook is

that Shoemaker arose in a one-time situation where Con-

gress had added duties to persons who were already in

offices to which they had been properly appointed. But

there would never be a problem for future occupants of

those offices since they would be appointed to positions

encompassing both the “new” and “old” duties. How-

ever, for military judgeships, the problem is repeated

whenever a non-judge military lawyer replaces a military

judge who retires or is transferred to a new assignment.

Even if Shoemaker allowed those who were serving as

“law officers” in 1968 to continue in the new office of

military judge, those who became military judges there-

after would fail to meet Shoemaker’s “germaneness” test.

The duties and powers of military judges, including all

of those involved in petitioners’ cases, are so different

from those of prosecutor, defense counsel, or legal ad-

visor to a command—which is what most military law-

yers do before they become military judges—that there is

not simply an addition of a related duty, as in Shoe-

maker, but a substitution of a new job, with entirely new

functions, for an old one. Surely, no one would contend

that the two civilians on the Coast Guard Court of Mili-

tary Review could be plucked from civilian life, even if

they were administrative law judges working for the fed-

eral government, and placed on that Court without meet-

ing the requirements of the Appointments Clause; the

result should be no different from any other military

judge, whether at the trial or appellate level. Similarly,

no one would assume that a member of the staff of the

Genera! Counsel of the National Labor Relations Board

could simply be “assigned” the additional duties of ad-

ministrative law judge at that agency without satisfying

the requirements of the Appointments Clause, yet that is

the effect of the ruling below. Indeed, as both Buckley

and Freytag make clear, it is the function that the indi-

vidual is performing that is decisive in determining

whether the Appointments Clause applies at all, and

under that analysis there can be no question that military

judges must be separately appointed because their func-

tions differ so markedly from those performed by other

military lawyers. At the very least, these quite expansive

extensions of Shoeniaker raise serious questions that this

Court should address.

The decision below rests on even shakier ground be-

cause the decisive vote was cast by Judge Crawford. She

implicitly rejected an extension of Shoemaker in favor

of a much more sweeping rationale: that the Appoint-

ments Clause does not apply at all to military judges,

although her rationale would lead to the conclusion that

the Clause does not apply to any appointments in the

Armed Forces. Her ruling conflicts with, but does not

even attempt to distinguish, Buckley, which made clear

that there are no subject-matter exemptions from the

Appointments Clause based on Congress’s interest in, or

plenary power over, particular subject areas. Judge

Crawford’s rationale also conflicts with decisions like

Rostker v. Goldberg, 453 U.S. 57 (1981), and Midden-

dorf v. Henry, 425 U.S. 25 (1976), which stand for the

proposition that there are no wholesole exemptions from

the Constitution simply because the case involves military

affairs. Indeed, so extreme is Judge Crawford’s ruling

that the Department of Justice, which appeared below as

an amicus in support of respondent, specifically rejected

that position in its brief and at oral argument. It is

highly unlikely that Judge Crawford would have taken

the far more expansive route to affirming petitioner’s con-

victions if she had been willing to accept the rationale

put forward by Judge Gierke. Thus, if her “deference to

Congress” analysis is in error—as it clearly seems to be—

there were three votes to overturn petitioner’s convictions,

and it should be respondent, not petitioners seeking

certiorari.

In this case it is not simply that the Judge Advocates

General, who appoint military judges, are not listed in the

Appointments Clause, but they are the supervisors of all

military lawyers who practice in military courtrooms, in-

cluding all of those who prosecute criminal cases on be-

half of the United States. In addition, the Judge Advo-

cates General, or the Assistant Judge Advocates General,

write the annual fitness reports of the members of each

respective service’s Court of Military Review, which are

then used to decide the appellate judges’ promotions,

future duty assignments, and susceptibility to involuntary

early retirement. Indeed, the Due Process implications

of this particular appointment arrangement raise inde-

pendent concerns that strongly reinforce the Appoint-

ments Clause objections.

The validity of the appointment of military judges

under the Appointments Clause is a significant constitu-

tiunal question which the Court should address imme-

diately. The 2-1-2 division within the Court of Military

Appeals attests to the serious debate on the merits of the

issues. A split in the circuits is unlikely ever to arise,

because the question has been fully and fairly litigated

and resolved by the military justice system, thus poten-

tially insulating it from review on habeas corpus. See

generally, Watson v. McCoffer, 782 F.2d 143, 145 (10th

Cir.), cert. denied, 476 U.S. 1184 (1986). In any event,

as it did in Freytag, this Court should grant review now

to resolve the dispute as promptly as possible.

II. THE DUE PROCESS VIOLATION

The reasons this Court should grant review on the

second question presented are set out in the previously-

filed Graf petition and are only summarized below. But

first, it is worth noting that, although the two questions

presented arise under different constitutional provisions,

the defects involve common concerns of accountability

and fundamental fairness to an accused. Noncompliance

with each of the provisions is magnified by the lack of

compliance with the other, such that there is a synergistic

impact on the accused’s rights. To further compound the

problem, the Judge Advocate General can both appoint

and remove military trial and appellate judges, yet he is

also responsible for supervising the efficient working of

the service’s military justice system, including its

prosecutors.

The lower court’s application of Medina’s Fourteenth

Amendment due process analysis to a federal Fifth

Amendment due process claim is ample reason to hear

the case. Indeed, in Medina this Court left open the cor-

rectness of one of its prior decisions—United States v.

Raddatz, 447 U.S. 667, 677 (1980)—which had applied

Matthews v. Eldridge to a due process challenge to a

federal criminal conviction. Petitioners believe that re-

spect for state legislative judgments and concerns of fed-

eralism, which loom so large in Medina, have no place

where federal Due Process rights are at issue, but the

uncertainty created by Medina underscores the need for

this Court to settle an issue that only it can resolve. In

that regard we also note that the concerns about over-

turning specific judgments made by state legislatures

(Medina), or with those made by Congress for the

Armed Forces, Middendorf v. Henry, 425 U.S. 25, 44

(1976), are inapplicable here because there is no evi-

dence that in 1968, when Congress established the offices

of military trial and appellate judge, it gave any thought

to terms of office, let alone specifically legislated to pre-

clude them.

Certainly, in time of war or other serious exigency,

military necessity may require some adjustments regard-

ing the tenure of trial judges, although not for the appel-

late judges who comprise the four Courts of Military Re-

view, which sit permanently in the Washington, D.C.

area. Moreover, neither the government nor the Court

of Military Appeals has sought to justify the lack of any

fixed term of office on grounds of military necessity. In-

stead, the Court of Military Appeals relied on other al-

leged protections against improper retaliation against

military judges for unpopular decisions—some of which

it first announced in Graf—although none of them can

be invoked by an accused, even if they were actually, as

opposed to theoretically, available to the judges them-

selves. But even if those protections served to prevent

naked retaliation, they cannot possibly guard against the

more subtle and virtually undetectable problems of ad-

verse or “faint praise” fitness reports that can have sig-

nificant impacts on promotions, future assignments, and

susceptibility for involuntary early retirement for all mili-

tary judges.

At bottom, the Court of Military Appeals fell woe-

fully short of justifying a massive exception to the

generally-accepted principle of American jurisprudence,

as reflected in such due process cases as Tumey v. Ohio,

274 U.S. 510 (1927), and in the nearly universal fact

that state ;udges have fixed terms of office, such that

judicial independence for those who preside at criminal

trials and hear criminal appeals is an absolute minimum

protection for the accused. The due process issue alone

is sufficiently important to warrant plenary consideration

by this Court, especially because the terms of office of a

military judge can be cut short by a military officer who

is the ultimate superior of both the judge and the

prosecutor.

CONCLUSION

For the reasons stated, this Court should grant review

in order to bring the military courts-martial system in line

with accepted principles of American jurisprudence, and

ensure that trials by court-martial are conducted in a

fair and impartial manner.

Respectfully submitted,

JAY LINDSEY COHEN

Lieutenant Colonel,

United States Air Force

Chief, Appellate Defense Division

Counsel of Record

JOEL R. REIFMAN

Captain, United States Air Force

Appellate Defense Counsel

AIR FORCE LEGAL SERVICES AGENCY

172 Luke Avenue, Room 208

Bolling AFB, DC 20332-5113

(202) 767-1562

APPENDICES

APPENDIX A

U.S. COURT OF MILITARY APPEALS

No. 67,869

NMCM 89 4189

UNITED STATES,

Appellee,

Eric A WEISS,

Private U.S. Marine Corps,

Appellant.

Argued Oct. 6, 1992

Decided Dec. 21, 1992

For appellant: Commander Philip D. Cave, JAGC,

USN (argued); Captain Dwight H. Sullivan, USMC and

Lieutenant Franklin J. Foil, JAGC, USNR (on brief).

For appellee: Lieutenant Commander Lawrence W.

Muschamp, JAGC USN (argued); Colonel T.G. Hess,

USMC (on brief).

Amici Curiae on behalf of appellant: Colonel Malcolm

H. Squires, Lieutenant Colonel James H. Weise, Major

James M. Heaton (on brief)—For Defense Appellate Di-

vision, USA. Robert B. Weintraub, Joan E. Goldberg,

Todd Gaziano (on brief)—For the Committee on Mili-

tary Justice and Military Affairs, Association of the Bar

of the City of New York.

Amici Curiae on behalf of appellee: Thomas E. Booth

(argued); Robert S. Mueller (on brief)—For the United

States Department of Justice. Lieutenant Commander

Charles J. Bennardini (argued)—For Appellate Govern-

ment Division, USCG. Colonel Richard L. Purdon, Lieu-

tenant Colonel Jeffery T. Infelise, Captain Jane M.E.

Peterson (on brief)—For Appellate Government Divi-

sion, USAF. Colonel Dayton M. Cramer, Major Joseph

C. Swetnam, Captain Donna L. Bartlett, Captain Samuel

J. Smith, Jr. (on brief)—For Government Appellate Di-

vision, USA.

Opinion

GIERKE, Judge:

A military judge sitting as a special court-martial con-

victed appellant, consistent with his pleas, of stealing a

racquetball glove from the base exchange, in violation of

Article 121, Uniform Code of Military Justice, 10 USC

§ 931. The approved sentence provides for a bad-conduct

discharge, confinement and partial forfeitures for 3

months. The Court of Military Review affirmed the find-

ings and sentence in an unpublished opinion dated Jan-

uary 31, 1992.

This Court granted review of the following issue: *

WHETHER APPELLANT’S COURT-MARTIAL

LACKED JURISDICTION WHERE THE MILI-

TARY JUDGE WAS DESIGNATED IN VIOLA-

TION OF THE APPOINTMENTS CLAUSE OF

1 We also granted review of the following issue:

WHETHER THE COURT-MARTIAL WHICH TRIED THIS

CASE HAD JURISDICTION WHERE THE MILITARY

JUDGE WAS NOT APPOINTED TO A FIXED TERM OF

OFFICE, AND WHETHER THE NAVY-MARINE CORPS

COURT OF MILITARY REVIEW HAD POWER TO REVIEW

AND AFFIRM THIS CASE WHERE ITS JUDGES WERE

NOT APPOINTED TO A FIXED TERM OF OFFICE.

This issue was resolved adversely to appellant in United States v.

Graf, 35 MJ 450 (CMA 1992).

THE CONSTITUTION, AND WHETHER THE

NAVY-MARINE CORPS COURT OF MILITARY

REVIEW WAS WITHOUT POWER TO REVIEW

THIS CASE WHERE ITS JUDGES WERE DES-

IGNATED IN VIOLATION OF THE APPOINT-

MENTS CLAUSE OF THE CONSTITUTION.

Appellant argues that military judges must be nomi-

nated by the President and confirmed by the Senate as

military judges. The Government argues that military

judges already have been nominated and confirmed as

military officers, that military officers traditionally have

performed judicial duties, and that military officers need

not receive an additional appointment to perform judicial

duties. We hold that the Constitution does not require

that a military officer who meets the qualifications of

Article 26, UCMJ, 10 USC § 826, receive a second ap-

pointment to perform the duties of a military judge.

Likewise, we hold that a military officer meeting the

qualifications of Article 66, UCMJ, 10 USC § 866, need

not receive a second appointment to perform the duties

of an appellate military judge.

I. Appointment of Officers of the United States

Article II, § 2, para. 2, clause 2 of the Constitution—

the Appointments Clause—provides that the President

shall nominate, and by and with the Advice and Con-

sent of the Senate, shall appoint Ambassadors, other

public Ministers and Consuls, Judges of the supreme

Court, and all other Officers of the United States,

whose Appointments are not herein otherwise pro-

vided for, and which shall be established by Law;

but the Congress may by Law vest the Appointment

of such inferior officers, as they think proper, in the

President alone, in the Courts of Law, or in the

Heads of Departments.

The purpose of the Appointments Clause is twofold:

(1) it protects the prerogative of the President from

congressional encroachment on his power to appoint his

subordinates; and (2) “it limits the universe of eligible

recipients of the power to appoint.” Freytag v. Commis-

sioner of Internal Revenue, 501 USS. , lll

S.Ct. 2631, 2639, 115 L.Ed.2d 764 (1991). Appellant

argues that this second purpose, a limitation on the power

to appoint, is violated by Articles 26 and 66 because they

vest the appointment power in the Judge Advocate Gen-

eral rather than the President, the Courts of Law, or

the head of a department.

The first question we must address is whether the Ap-

pointments Clause is applicable to the military justice

system. Government counsel have not disputed this ap-

plicability of the Appointments Clause. Counsel for the

United States Coast Guard, appearing as amicus curiae,

argue that the Appointments Clause does not apply to

the military justice system because that system is created

pursuant to the plenary power of Congress “[t]o make

Rules for the Government and Regulation of the land and

naval Forces,” U.S. Const. art. I, § 8, cl. 14, and that the

Supreme Court grants great deference to Congress in the

exercise of that power. See United States v. Kovac, 36

MJ 521, 522-23 (CGCMR 1992); United States v. Prive,

35 MJ 569, 573-77 (CGCMR 1992).

We agree that “[j]udicial deference . . . is at its

apogee” when the authority of Congress to govern the

land and naval forces is challenged. Solorio v. United

States, 483 U.S. 435, 447, 107 S.Ct. 2924, 2931, 97

L.Ed.2d 364 (1987). Nevertheless, congressional author-

ity to raise, support, and govern the armed forces is

separate from the authority to appoint Officers of the

United States. Judicial deference is granted only to the

former, a legislative power conferred by Article I of the

Constitution. The appointment of Officers of the United

States is an Executive power, conferred by Article II and

controlled by the Appointments Clause, from which the

armed forces are not exempt, either expressly or by im-

plication.

In Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46

L.Ed.2d 659 (1976), the Supreme Court held that the

plenary power of Congress over federal election practices

did not exempt members of the Federal Election Commis-

sion from the Appointments Clause. The Supreme Court

explained:

The position that because Congress has been given

explicit and plenary authority to regulate a field of

activity, it must therefore have the power to appoint

those who are to administer the regulatory statute is

both novel and contrary to the language of the Ap-

pointments Clause. Unless their selection is else-

where provided for, all Officers of the United States

are to be appointed in accordance with the Clause.

_. . No class or type of officer is excluded because

of its special functions.

Id. at 132, 96 S.Ct. at 688. Thus, we are compelled to

conclude that, while Congress may determine how the

military justice system will operate, it may not exempt

those who will operate it from the Appointments Clause.

Accordingly, we hold that the Appointments Clause is

applicable to the military justice system.

The next question is whether the duties imposed on

military judges by Articles 26 and 66 must be performed

by an Officer of the United States, as that term is used

in the Appointments Clause. Appellant contends, and we

agree, that judicial duties may be performed only by

“Officers of the United States,” appointed in a manner

consistent with the Appointments Clause. See Freytag v.

C.1.R., 501 US. . 111 S.Ct. 2631, 115 L.Ed.2d 764

(1991) (special trial judges of Tax Court); Go-Bart Im-

porting Co. v. United States, 282 U.S. 344, 51 S.Ct. 153,

75 L.Ed. 374 (1931) (United States commissioners). See

also Buckley v. Valeo, 424 U.S. at 126, 96 S.Ct. at 685

(“[A]ny appointee exercising significant authority pur-

suant to the laws of the United States is an ‘Officer of the

United States,’ and must, therefore, be appointed” in

accordance with the Appointments Clause. ).

All military trial judges and most appellate military

judges are commissioned officers of their respective armed

forces. Commissioned officers of the armed forces are

“Officers of the United States.” See Wood v. United

States, 107 U.S. 414, 417, 2 S.Ct. 551, 554, 27 L.Ed. 542

(1883). All regular officers of the military services are

appointed by the President and confirmed by the Senate.

See 10 USC § 531; see also 14 USC §§ 211 and 212

regarding appointment of regular Coast Guard officers.

Reserve officers above the grade of major/lieutenant com-

mander are appointed by the President and confirmed by

the Senate. See 10 USC §§ 593 and 5912. Active duty

military officers are appointed and confirmed again upon

each promotion to a grade above pay grade 0-3. See 10

USC § 624 (promotion of active-duty regular and reserve

Officers of the Army, Air Force, Navy, and Marine

Corps).

If judicial duties may be performed only by Officers

of the United States, and military officers are Officers of

the United States, the next question is whether military

officers may perform judicial duties without a new “judi-

cial” appointment. In Shoemaker v. United States, 147

U.S. 282, 13 S.Ct. 361, 37 L.Ed. 170 (1893), the Su-

preme Court had occasion to consider the nature and

scope of the office held by military officers. The Supreme

Court held that two military officers, the Chief of En-

gineers and the Engineer Commissioner for the District

of Columbia, did not require second appointments as

members of a commission created by Congress to select

land for Rock Creek Park in the District of Columbia,

survey it, map it, and determine the just compensation

to be paid by the United States upon its condemnation.

Justice Shiras explained:

LLL

As, however, the two persons whose eligibility is

questioned were at the time of the passage of the act

and of their action under it officers of the United

States who had been theretofore appointed by the

President and confirmed by the Senate, we do not

think that, because additional duties, germane to the

offices already held by them, were devolved upon

them by the act, it was necessary that they should be

again appointed by the President and confirmed by

the Senate.

He went on to define “germane” broadly, observing:

It is true that it may be sometimes difficult to say

whether a given duty, devolved by statute upon a

named officer, has regard to the civil or military serv-

ice of the United States. Wales v. Whitney, 114 US.

564, 569 [5 S.Ct. 1050, 1052, 29 L.Ed.277 (1885) ];

Smith v. Whitney, 116 U.S. 167, 179, 181 [6 S.Ct.

570, 576, 577, 29 L.Ed. 601 (1886)]. But, in the

present case, the duty which the military officers in

question were called upon to perform cannot fairly be

said to have been dissimilar to, or outside of the

sphere of, their official duties.

147 US. at 301, 13 S.Ct. at 391.

Appellant argues that “the offices already held by them”

were the specific offices of Chief of Engineers and En-

gineer Commissioner for the District of Columbia, and not

the underlying office of military officer. A careful read-

ing of Shoemaker requires that we reject that argument

for two reasons. First, Shoemaker specidically referred

to “the duty which the military officers . . . were called

upon to perform.” (Emphasis added.) Second, the two

cases cited in Shoemaker both dealt with the scope of

military duties in general, not the specific duties of the

positions held by the military officers. Wales addressed

the question whether the medical duties of the Navy

Surgeon General were “military” as opposed to “civil”

duties. Smith addressed the issue whether the fiscal du-

ties of the Navy Paymaster-General were of a civil or

military nature.

The principle we glean from Shoemaker is that Con-

gress may create a new office (e.g., Rock Creek Park

Commissioner) and give a military officer the duties of

that office without making a new appointment necessary,

if the new duties are “germane” to the military duties

of that officer. Applied to this case, it means that a second

“judicial” appointment is not required if: (1) Congress

did not create a new “office”; or (2) Congress created

a new ollice, but the duties of that office are “germane”

to the duties of the military officer detailed to perform

them. A second appointment would be required if Con-

gress created a new office and the duties of that office were

not germane to the duties of the military officer detailed

to perform them.

II. Military Judges

A court-martial is a temporary court, called into ex-

istence by a military order and dissolved when its purpose

is accomplished. See Arts. 22, 23, and 24, UCMJ, 10

USC §§ 822, 823, and 824, respectively (prescribing who

may convene courts-martial). Its constitutional origin is

based on the congressional authority to govern the armed

forces set out in Article 1, § 8, clause 14. As Colonel

Winthrop explains, “Courts-martial of the United States,

although their legal sanction is no less than that of the

federal courts, being equally with these authorized by

the Constitution, are, unlike these, not a portion of the

Judiciary of the United States, and are thus not included

among the ‘inferior’ courts which Congress ‘may from

time to time ordain and establish.” W. Winthrop, Mili-

tary Law and Precedents 49 (2d ed. 1920 Reprint).

Military judges perform duties prescribed by statute

and the executive order when detailed to a specific court-

martial. See Art. 26; Exec. Order No. 12473, April 13,

1984, 49 Fed.Reg. 17,152 (promulgating the new Manual

for Courts-Martial); RCM 801-1011, 1102, 1104, Manual

for Courts-Martial, United States, 1984. Military judges

have no inherent judicial authority separate from a court-

martial to which they have been detailed. When they act,

they do so as a court-martial, not as a military judge.

Until detailed to a specific court-martial, they have no

more authority than any other military officer of the

same grade and rank. To the extent that they perform

judicial duties such as authorizing searches and reviewing

pretrial confinement, their authority is not inherent but

is either delegated or granted by executive order. See

Mil.R.Evid 315(d)(2), Manual, supra (military judge

may authorize searches if authorized by regulations of

Secretary of Defense or Secretary concerned); RCM

305(g) (military judge may release from confinement);

RCM 305(i)(2) and RCM 305(j) (military judge may

review propriety of pretrial confinement).

To resolve the granted issue with respect to military

judges, we must answer two questions: (1) Did Article

26 create a new office of “military judge”?; and (2) If so,

are the duties of thhe new office germane to the duties of

the military officer detailed as a military judge of a gen-

eral court-martial or special court-martial?

A. New Office

After examining the history and evolution of the mili-

tary judge, set out in greater detail below, we conclude

that Congress did not create a new “office” when it en-

acted: the Articles of War (AW) in 1920 (requiring

that a “law member” be detailed to every general court-

martial—AW 8) or the Uniform Code of Military Jus-

tice of 1950 (requiring detail of a “law officer” to every

general court-martial—Art. 26, 50 USC § 590); or the

Uniform Code of Military Justice of 1968 (redesignating

the law officer as the military judge—Art. 26, 10 USC

§ 826).

10a

As the position of military judge has evolved, the mili-

tary judge has acquired virtually all the duties previ-

ously performed by the president and members of a court-

martial. Prior to the 1920 amendments to the Articles of

War, the president of a court-martial, who usually was

not a lawyer, presided over the trial. See para. 89,

Manual for Courts-Martial, U.S. Army, 1917. In 1920.

AW 8 was amended to require that a “law member” be

detailed to general courts-martial in the Army. 41 Stat.

787, 788. AW 31 was amended in 1920 to transfer some

duties of the president to the law member. It also pro-

vided that the law member ruled finally on questions of

admissibility of evidence but could be overruled by a

majority of the court members on other interlocutory

questions. Until 1951, the Navy and Coast Guard con-

tinued the pre-1920 practice of using non-lawyers to pre-

side over courts-martial and decide interlocutory ques-

tions. See $$ 381 and 370, Naval Courts and Boards,

1937; para. 385(t), Manual for Courts-Martial, U.S.

Coast Guard, 1949 at 134.

When the Uniform Code of Military Justice, Pub.L. No.

81-506, 64 Stat. 108, codified in 50 USC §§ 551-736, re-

codified in 10 USC §§ 801-940 (1956), became effective

in May 1951, the law member was redesignated as the law

officer and additional duties were transferred from the

president of the court to the law officer. All military serv-

ices were required to “appoint” a law officer to general

courts-martial. See Art. 26. Nonlawyers continued to

preside over special courts-martial, Art. 51, UCMJ, 50

USC § 626, recodified in 10 USC § 851 (1956). This

changed when the Military Justice Act of 1968, Pub.L.

No. 90-632, § 2(9), 82 Stat. 1335, 1336, became effective

in August 1969.

The Military Justice Act of 1968 changed the title of

the law officer to military judge, in order to increase his

stature, and transferred more duties from the president

of the court-martial to the military judge. See Art. 26, 82

lla

Stat. 1336. Since the Act merely transferred authority

and duties from one official of the court-martial to an-

other and renamed the law officer, it did not create a new

office. As the Supreme Court explained in Shoemaker,

“It cannot be doubted, and it has frequently been the case,

that Congress may increase the power and duties of an

existing office without thereby rendering it necessary that

the incumbent should be again nominated and appointed.”

147 USS. at 301, 13 S.Ct. at 391.

The Military Justice Act of 1968 also amended Article

16, UCMJ, 10 USC § 816, to authorize an accused to re-

quest trial by a court-martial composed of only a military

judge. 82 Stat. 1335. When trying a case without mem-

bers, the military judge sits as one-member court-

martial. A one-member court-martial was not new to

military justice. See Art. 16(3), UCMJ, 50 USC § 576

(1950), recodified in 10 USC §$ 816(3) (1956) (sum-

mary court-martial); AW 7 (1916) (summary court-

martial); Art. 64(b), Articles for the Government of the

Navy (AGN) (1909) (deck court). When sitting as a

one-member general court-martial or special court-

martial, the military judge’s authority is derived from

the court-martial to which he is detailed, not from his

status as a military judge. His authority is limited to

that of the court-martial to which he has been detailed,

and he may act only with respect to the cases referred to

that court-martial. We conclude that the amendment of

Article 16 did not create a new Office but merely altered

the composition of general courts-martial and special

courts-martial.

2In United States v. Graf, supra, this Court said, in dicta, id.

at 455, that Congress “created” the military judge and the Courts

of Military Review by enacting the Military Justice Act of 1968.

We did not intend this imprecise dicta to hold that Congress created

a new “office” in 1969, when the Act became effective.

Contrary to a dissenter’s assertion that this view demeans military

judges at 260 (Wiss, J., dissenting), we believe that our opinion

merely recognizes the awesome life-and-death authority traditionally

entrusted to military officers.

12a

Likewise, the amendment of Article 39(a), UCMJ, 10

USC § 839(a), effective in 1969, authorizing the mili-

tary judge to hold sessions outside the presence of the

members to dispose of interlocutory motions, arraign the

accused, receive pleas, and dispose of other procedural

matters not requiring the presence of the members, did

not create a new Office. The purpose and effect of Article

39(a) was to avoid wasting the time of the members by

requiring them to sit idly by while the military judge dis-

posed of legal and procedural issues. S.Rep. No. 1601,

90th Cong., 2d Sess. 10 (1968), U.S.Code Cong. & Ad-

min. News 1968, 4501. Article 39(a) did not confer new

duties on the military judge; it merely authorized him to

discharge those duties without wasting the time of the

court members.

Since a new office was not created by the Military Jus-

tice Act of 1968, a second “judicial” appointment was not

necessary for military judges. Accordingly, we hold that

the military judge in appellant’s case was not appointed

in violation of the Appointments Clause.

B. Germane Duties

Assuming, arguendo, that a new office was created at

some time during the evolution of the military judge, the

result is the same, because the duties of the military

judge are the same as those traditionally performed by

military officers serving as members of courts-martial. As

such, they are germane to the duties of a legally trained

military officer. Shoemaker v. United States, 147 US.

282, 13 S.Ct. 361. Just as the duties of a Rock Creek

Park Commissioner were germane to the duties of a mili-

tary engineer, presiding over courts-martial is clearly ger-

mane to the duties of a military lawyer. Accordingly, a

new appointment would not be required even if a new

office was created.

eer eR.

13a

Ill. Appellate Military Judges

In order to resolve the granted issue with respect to

appellate military judges, we must address three ques-

tions: (1) Did Congress create a new office?; (2) If

Congress created a new office, are the duties of that office

germane to the duties of the military officer detailed to

perform them?; and (3) What is the significance of the

provision in Article 66(a) authorizing civilian members

on boards of review and their successors, the Courts of

Military Review?

A. New Office.

Appellant contends that Congress established a new

office by creating an intermediate appellate court for each

service. We hold that a new office was created when

boards of review were established.

Prior to 1920, there were no appellate military courts.

Appellate review of courts-martial was accomplished by

a hierarchy of reviewing, supervisory, and confirming au-

thorities, all of whom were military commanders, cabinet

officers, or the President. In 1920, the Articles of War,

applicable only to the Army, were amended by enact-

ment of AW 5014, which mandated: “The Judge Ad-

vocate General shall constitute, in his office, a board of

review consisting of not less than three officers of the

Judge Advocate General’s Department.” The board of

review was required to examine every record of trial in-

volving a sentence which required “anproval or confir-

mation by the President.” Furthermore, “execution of

any . . . sentence of a general court-martial involving

the penalty of death, dismissal not suspended, dishonor-

able discharge not suspended, or confinement in a peni-

tentiary,” required review by the board of review and the

Judge Advocate General. If the Judge Advocate General

disagreed with the decision of the board of review, the

record would be transmitted to the Secretary of War

for the action of the President. AW 501%. On the other

hand, special courts-martial and summary courts-martial

14a

6 ks a

were reviewed only by the officer appointing the court.

AW 36 (1920). After the 1948 amendments of the Ar-

ticles of War, effective February 1, 1949, certain Army

and Air Force general court-martial cases were reviewed

by a board of review, a Judicial Council composed of

three general officers of the Judge Advocate General’s

Corps, and the Judge Advocate General. See AW 50

(1948).

Prior to_1951, a Navy general court-martial was re-

viewed by “the commander of the fleet or officer ordering

the court.” 53d AGN (1934). A summary court-martial

(the counterpart of the modern special court-martial)

was reviewed “by the officer ordering the court... and

by his immediate superior in command.” 32d AGN. A

sentence “extending to the loss of life, or to the dis-

missal of a commissioned or warrant officer” required

confirmation by the President. 53d AGN. A deck court

(the counterpart to the modern summary court-martial)

was reviewed by the officer who ordered it. AGN 64(d).

Reviewing authorities were required to examine juris-

dictional issues, the legal sufficiency of the pleadings, ob-

jections to evidence, and the legal sufficiency of the evi-

dence. See, e.g., § 472, Naval Courts and Boards, 1937.

Prior to 1951, a Coast Guard deck court was reviewed

“by the officer ordering” it and then was forwarded to

Coast Guard Headquarters, where it was “reviewed for

legality . . . with the same force and effect as though an

appeal had been taken.” The Commandant of the Coast

Guard was authorized to take whatever action “the in-

terests of justice and equity may require.” The accused

had a “right to appeal to the Secretary of the Treasury

from a decision of a deck court.” Arts. 31 and 36,

Manual for Courts-Martial, U.S. Coast Guard, 1949. All

other courts-martial were reviewed by the Secretary of

the Treasury, and the President in the case of dismissal

of an officer. 14 USC § 564(d) (1949); Art. 140, Man-

ual, USCG, supra. No Coast Guard court-martial could

15a

impose a sentence exceeding a discharge, confinement for

5 years, forfeiture, and reduction. 14 USC § 564(b) and

(c); see Art. 50, Manual, USCG, supra.

After the Uniform Code of Military Justice became

effective in 1951, convening authorities in all services re-

tained the authority and responsibility to review the rec-

ord of trial for legal sufficiency. See Art. 64, 50 USC

§ 651, recodified in 10 USC § 864 (1956) (“[T]he con-

vening authority shall approve only such findings of

guilty, and the sentence or such part or amount of the

sentence, as he finds correct in law and fact. . . Agi P

The 1950 Code made boards of review mandatory for

the Navy, Marine Corps, and Coast Guard. They were

already mandatory for the Army by virtue of AW 50%,

enacted in 1920. This AW was made applicable to the

Air Force by 62 Stat. 1014 (1948), codified in 5 USC

§ 627k (1948). Article 66(a) (1950) mandated:

The Judge Advocate General of each of the armed

forces shall constitute in his office one or more boards

of review, each composed of not less than three offi-

cers or civilians, each of whom shall be a member

of the bar of a Federal court or of the highest court

of a State of the United States.

Effective in 1969, Article 66(a) was revised to its

present languxge, as follows:

Each Judge Advocate General shall establish a Court

of Military Review which shall be composed of one

or more panels, and each such panel shall be com-

posed of not less than three appellate military judges.

_. . Appellate military judges who are assigned to

a Court of Military Review may be commissioned

officers or civilians, each of whom must be a member

of a bar of a Federal court or of the highest court of

a State....

Boards of Review were a new entity, created by Con-

gress for the Army in 1920, the Air Force in 1948, and

16a

the Naval services in 1951. For the first time, there

was a level of formal appellate review beyond the officer

who convened the general court-martial. Also, for the

first time, a permanent military tribunal was established,

as compared to courts-martial which are temporary en-

tities. Article 66 vested no discretion in the Judge Ad-

vocates General; boards of review were mandatory. We

are Satisfied that Congress, acting indirectly through the

Judge Advocates General, created a new office by estab-

lishing boards of review. Cf. Dettinger v. United States,

7 MJ 216 (CMA 1979) (Congress, acting through Judge

Advocate General, created Court of Military Review).

Unlike the Court of Military Appeals, created in 1950

as an instrument of civilian oversight imposed upon the

military services, the boards of review were intended as

military tribunals constituted by competent military au-

- thority from within each service. The mandate to each

Judge Advocate General to “constitute” boards of review

was consistent with the traditional practice of vesting the

authority and responsibility for constituting military tri-

bunals in military officers and giving them the authority

to appoint the members.

That Congress intended the boards of review to be tri-

bunals of a different nature from the Court of Military

Appeals is apparent both from the language of the stat-

utes creating them and the legislative history. The stat-

utes first creating the Court of Military Appeals used

traditional language for creating a civilian Article I

court: “There is hereby established a Court of Military

Appeals. .. .” Art. 67(a)(1), 64 Stat. 129 (1950). In

1969 the provision was amended to read: “There is a

United States Court of Military Appeals established un-

der article I of the Constitution of the United States... .”

Finally, in Article 141, 10 USC § 941 (1989) Congress

described the Court’s status as foilows: “There is a

court of record known as the United States Court of

Military Appeals. The court is established under article

I of the Constitution.” This is virtually the identical

sill abated

17a

language used by Congress to create other Article I

courts. See 26 USC § 7441 (“There is hereby established,

under article I of the Constitution of the United States,

a court of record to be known as the United States Tax

Court.”); 38 USC § 7251 (“There is hereby established,

under Article I of the Constitution of the United States,

a court of record to be known as the United States Court

of Veterans Appeals.”). The language creating the boards

of review was substantially different: “The Judge Ad-

vocate General of each of the armed forces shall con-

stitute in his office one or more boards of review. . . .”

50 USC § 653 (1950), recodified in 10 USC § 866

(1956).

This difference in language was not accidental. Indeed,

in 1966, Senator Sam Ervin held hearings on a bill to

establish a Court of Military Review in each service

which would have been appointed by the service secre-

tary and whose judges, both military and civilian, would

have served for a fixed term of office. That bill used

language similar to the organic statutes for the Court of

Military Appeals, the Tax Court, and the Court of Vet-

erans Appeals. It would have amended Article 66(a) to

read: “There is established for each military depart-

ment an appellate court. . . .- Each such court is a court

of record and shall be known as the Court of Military

Review for the military department for which it is es-

tablished.” Joint Hearings before the Subcomm. on Con-

stitutional Rights of the Senate Judiciary Comm. and the

Special Subcomm. of the Senate Armed Services Comm.,

89th Cong., 2d Sess. 497-98 (1966). The bill was not

enacted. Two years later, Article 66(a) in its present

form was enacted.

The Senate Hearings on the 1950 Code reveal the in-

tent of the drafters to use military expertise on the

boards of review. The following exchange between Sen-

ator Kefauver and Professor Morgan is instructive:

18a

SENATOR KEFAUVER.... May I ask at this

point, was there any difference of opinion on the part

of the committee or extensive discussion as to whether

each service should have its own reviewing section?

MR. MORGAN. No; the committee was unani-

mous on that, so far as the board of review is con-

cerned.

The notion was that each service would know more

about the customs of the service, and all that sort of

thing, and that the Judge Advocate General of that par-

ticular service would be the man that would be most

competent to handle that thing from the point of view

of this board of review, because the board of review,

now, has very extensive powers.

Hearings on S.857 and H.R. 4080 Before a Subcomm.

of the Senate Armed Services Comm., 81st Cong., Ist

Sess. 42 (1949).

The amendments enacted in 1968 to Article 66(a) did

not change the character or authority of the boards of

review but merely completed the evolution by calling them

what they were: appellate courts composed of appellate

military judges. ‘The legislative history of the 1968

amendment reflects that the redesignation of boards of

review as a Court of Military Review was only a name

change, designed to enhance the stature of the board of

review by calling it a court and calling its members

judges. This change was consistent with redesignating

law officers as military judges. See S.Rep. No. 1601, 90th

Cong., 2d Sess. 3, 14 (1968); The Army Lawyer: A

History of The Judge Advocate General’s Corps, 1775-

1975 at 247 (U.S. Gov’t Printing Office). Certain or-

ganizational changes were mandated to improve efficiency

and protect the independence of appellate military judges;

but no new authority was conferred, no new duties im-

posed, and no new appointment procedures for appellate

military judges were established.

19a

B. Germane Duties

Turning the second question, we observe that military

officers traditionally have been responsible for legal re-

view of court-martial convictions in their capacities as

reviewing and supervisory authorities. Prior to the crea-

tion of boards of review, military commanders were re-

sponsible for the legal review of courts-martial convened

by them or their subordinates. See 53d AGN (1934)

(record reviewed by “commander of the fleet or officer

ordering the court”); 32d AGN (1934) (summary court-

martial reviewed by “officer ordering the court” and “his

immediate superior in command”); AW 46 and 47 (1920)

(record reviewed by convening authority); para. 35, Man-

ual for Courts-Martial, U.S. Coast Guard, 1949 (deck

court reviewed by Commandant of Coast Guard); § 472,

Naval Courts and Boards, 1937 (commander reviewing

the record must examine jurisdictional issues, legal suf-

ficiency of pleadings, objections to evidence, and legal

sufficiency of evidence).

A cadre of legally trained officers existed in each of

the services prior to 1920. The language of Article of

War 50% and Article 66 of the Code reflect that Con-

gress had this cadre of legally trained officers in mind

when boards of review were first created in 1920 and ex-

tended to all the services in 1951. Congress considered

the duties of the boards of review not only germane to

military duties, but particularly appropriate for military

lawyers. We hold that the duties of the newly-created

boards of review were “germane” to the duties of the

legally trained military officers contemplated by AW 501%

and Article 66 of the Code; therefore, we hold that a

second judicial appointment is unnecessary.

C. Civilian Members

Turning finally to the significance of the provision for

civilian members, the legislative history of Article 66(a)

reflects that the historical antecedent of the boards of re-

view created by Article 66(a) was the Army board of

20a

review, composed of military officers, which was created

by AW 50%. The provision for civilian members was

not included in AW 50%, but was added to Article 66(a)

at the request of the Coast Guard. During the 1949

hearings on the proposed Uniform Code of Military Jus-

tice, Mr. Larkin explained the provision for civilian mem-

bers as follows:

Well, they were included initially at the request of

the Coast Guard—not that it be worded this specific

way but the Coast Guard does have civilian lawyers

working in their court-martial procedures during

peacetime, and they feel they are very competent.

They don’t have an unusually large number of offi-

cers in their review, and they wanted to be free if

they desired to appoint a civilian lawyer working

for the Coast Guard to a board of review. This was

the easiest way to make that provision.

Hearings on H.R. 2498 before a Subcomm. of the House

Armed Services Comm., 81st Cong. Ist Sess. 1189

(1949), reprinted in Index and Legislative History, Uni-

form Code of Military Justice (1950).

In appellant’s case we need not decide whether Con-

gress inadvertently exceeded its authority by vesting the

powers of an “Officer of the United States” in civilians

who had not been appointed in accordance with the Ap-

pointments Clause, because no civilians participated in

the appellate review of his case. We regard the pro-

vision for civilian members of boards of review and their

successors, the Courts of Military Review, as severable

from the remainder of Article 66(a). Congress had two

purposes in enacting Article 66(a). The primary pur-

pose was to make boards of review mandatory for all

services. The secondary purpose was to accommodate

the Coast Guard by authorizing civilian members on

boards of review. Where a statute attempts to accom-

plish two or more objects, it may be valid as to one and

2la

invalid as to others, as long as its purpose can be ac-

complished by the valid part and is not dependent upon

or conditioned by the invalid part. Sutherland Stat.

Const. § 44.07 at 503.04 (4th Ed.1986 Revision ).

D. Conclusion

Applying the Shoemaker analysis to appellant’s case,

we hold that appellate military judges need not be re-

appointed to perform judicial duties because judicial

duties are “germane” to the offices already held by them

as legally trained commissioned officers of their respec-

tive armed forces. Accordingly, we hold that appoint-

ment of the appellate military judges who reviewed ap-

pellant’s case was consistent with the Appointments

Clause.

We have not addressed the desirability of a legisla-

tive requirement that trial and appellate military judges

be specifically appointed as judges by the President, a

Court of Law, or the Head of a Department, and we

consider it inappropriate to do so. Congress has the

power to require a second “judicial” appointment if con-

sidered desirable. Congress considered such a measure

in 1966 but did not enact it. We decide only that a sec-

ond “judicial” appointment was not constitutionally re-

quired for the trial and appellate judges involved in

appellant’s case. As we stated in United States v. Hender-

son, 34 MJ 174, 178 (CMA 1992), “As a court... we

are not involved in the merits of . . . policy. We interpret

statutes, and we can strike them down only when they

violate the Constitution.”

The decision of the United States Navy-Marine Corps

Court of Military Review is affirmed.

Judge COX concurs.

22a

CRAWFORD, Judge (concurring in the result):

The lead opinion has put forward a thoughtful and

well-reasoned analysis of how Article II, section 2, para-

graph 2, clause 2, of the United States Constitution is

not violated by the present manner of selecting military

judges. However, I part ways with the underlying prem-

ise of the lead opinion that the Appointments Clause

applies to the selection of a military judiciary and there-

fore can only concur in the result.

In concluding that the Appointments Clause does not

apply either to selection of military trial or military appel-

late judges, one of necessity must engage in both an

historical and a contemporary analysis of the Constitu-

tion and its Appointments Clause. In applying both ap-

proaches, the intentions of the Framers can be determined

from documents that are available. See, e.g., 4 P. Kur-

land & R. Lerner, The Founders’ Constitution (hereafter

Kurland) (1987); J. Harris, The Advice and Consent

of the Senate (hereafter Harris) 25-30 (1953).

A. The Historical Approach

At the time of the Constitutional Convention in Phil-

adelphia from late May to mid-September 1787, no

thought was given to how the Appointments Clause should

be applied to military trial and appellate judges. Kurland,

supra at 28-38. Two major themes dominated the debates

which shaped the Appointments Clause. First, those who

opposed a strong executive resisted giving the chief execu-

tive the nomination authority over the national judiciary

without some sort of Council to screen the appointment

process. Second, those who opposed a strong legislature

feared that if the appointment authority was given to the

legislative branch, the appointment of a national judiciary

would fall into the hands of certain factions. Harris, supra

at 25-30.

At the time of these debates there was no military

jud‘ciary in place, that function being served by military

tt et i i el

23a

officers. There was, however, a great deal of debate and

attention paid to a federal civilian judiciary as evidenced

by Alexander Hamilton’s discussions in The Federalist

Papers, Nos. 78 through 83.’ Thus, historically, the

Founding Fathers gave no explicit consideration to in-

cluding a military judiciary within the ambit of the

Appointments Clause.

B. The Contemporary Approach

A contemporay approach to reviewing our Constitu-

tion and its provisions looks at the intent of the Fram-

ers and the interests and values they meant to protect.

1No. 78, “A VIEW OF THE CONSTITUTION OF THE JUDI-

CIAL DEPARTMENT IN RELATION TO THE TENURE OF

GOOD BEHAVIOR,” wherein Hamilton discusses “the doctrine of

judicial review,” stating: “Whenever a particular statute contra-

venes the Constitution, it will be the duty of the judicial tribunals

to adhere to the latter and disregard the former.”

No. 79, “A FURTHER VIEW OF THE JUDICIAL DEPART-

MENT IN RELATION TO THE PROVISIONS FOR THE SUP-

PORT AND RESPONSIBILITY OF THE JUDGES,” wherein

Hamilton expresses “[t]houghts on the salary, tenuve, accountabil-

ity, and age of judges.”

No. 80, “A FURTHER VIEW OF THE JUDICIAL DEPART-

MENT IN RELATION TO THE EXTENT OF ITS POWERS,”

wherein “Hamilton traces the outlines of the judicial power.”

No. 81, "A FURTHER VIEW OF THE JUDICIAL DEPART-

MENT IN RELATION TO THE DISTRIBUTION OF ITS AU-

THORITY,” wherein Hamilton “states the case for a distinct,

learned, independent Supreme Court, then speculates on the rela-

tions of the Supreme Court to the lower courts.”

No. 82, “A FURTHER VIEW OF THE JUDICIAL DEPART-

MENT IN REFERENCE TO SOME MISCELLANEOUS QUES-

TIONS,” wherein Hamilton discusses “the relations of the federal

and State courts.”

No. 83, “A FURTHER VIEW OF THE JUDICIAL DEPART-

MENT IN RELATION TO THE TRIAL BY JURY,” wherein

“Hamilton attempts . . . to quiet the fears of” some with a discus-

sion “of this ancient ‘palladium of free government.’ ”

The Federalist Papers, xxx-xxxi (A. Hamilton, J. Madison, J. Jay)

(C. Rossiter 1961).

24a

A contemporary reading of the Constitution is important

because as John Marshall stated: “[I]t is a constitu-

tion we are expounding.” McCulloch v. Maryland, 17

U.S. (4 Wheat.) 316, 407, 4 L.Ed. 579 (1819). The

Constitution is a living document and “states or ought to

state not rules for the passing hour, but principles for an

expanding future,” B. Cardozo, The Nature of the Judi-

cial Process 83 (Yale Univ. Press 1921), and “a prin-

ciple to be vital must be capable of wider application than

the mischief which gave it birth.” Weems vy. United

States, 217 U.S. 349, 373, 30 S.Ct. 544, 551, 54 L.Ed.

793 (1910).

Utilizing a contemporary analysis I start by asking

what interests and values were meant to be protected

by the Appointments Clause. It is undisputed that the

Appointments Clause was designed as a series of checks

and balances between the Executive and Legislative

Branches on the creation and filling of offices. Kurland,

supra, 424 U.S. at 33. The Framers were concerned

with a division of power to prevent one branch from be-

coming more powerful than the other.

The debates among the Framers over appointments

authority in general and judicial appointments in _par-

ticular bear out their desire for checks and balances as

well as for qualified appointees. Edmund Randolph of

Virginia argued that if appointment authority was in the

legislative branch, this “generally resulted from cabal,

from personal regard, or some other consideration than a

title derived from the proper qualifications.” Whereas

George Mason, also of Virginia, argued that, if the ap-

pointment to the judiciary was with the executive, it was

“a dangerous prerogative. It might even give him an in-

fluence over the Judiciary department itself.” /d. at 33.

Alexander Hamilton of New York thought that giving

the Senate approval authority over nominations would

be a check on the “spirit of favoritism of the President”

and would work against the appointment of unqualified

25a

individuals or individuals selected because of a family

connection or personal attachment. Harris, supra at 28.

Hamilton argued that to empower the legislature with

appointment authority would just lead to “intrigue and

cabal.” Id. Cf. Kurland, supra at 31. Nathaniel J.

Ghorum (also spelled Gorham in some texts) of Massa-

chusetts thought it best that the Executive be respon-

sible for appointment because “he will be careful to look

through all the States for proper characters.” Jd. at 31.

To prevent dependency on a single individual making

the appointment, some Framers thought it best to have

the Senate vote on the appointments. Others were con-

cerned that a Senate vote would mean too “much fetter-

ing [in] the Senate.” Jd. at 32. Eventually the Framers

settled on appointments by the executive with the advice

and consent of the Senate.

In defense of the appointment power enunciated in

the Constitution, Alexander Hamilton in The Federalist

No. 66 commented as follows on how the appointment

power would work:

It will be the office of the president to nominate.

and with the advice and consent of the senate to

appoint. There will of course be no exertion of

choice on the part of the senate. They may defeat

one choice of the executive, and oblige him to make

another: but they cannot themselves choose—they

can only ratify or reject the choice, he may have

made. They might even entertain a preference to

some other person, at the very moment they were

assenting to the one proposed; because there might

be no positive ground of opposition to him; and they

could not be sure, if they withheld their assent, that

the subsequent nomination would fall upon their own

favourite, or upon any other person in their estima-

tion more meritorious than the one rejected. Thus

it could hardly happen that the majority of the sen-

ate would feel any other complacency towards the

object of an appointment, than such, as the appear-

26a

ances of merit, might inspire, and the proofs of the

want of it, destroy.

The Federalist: A Collection of Essays Written in

Favour of The New Constitution, vol. II at 218-19 (J.

and A. McLean, New York, 1788) (hereafter cited as

McLean).

Thus the interests and values of providing for the

Selection of officers, including judicial officers, based on

merit and dividing power between the executive and leg-

islative branches gave birth to the Appointments Clause.

The question remains whether, in order to protect those

interests and values, it is necessary to select military

trial and appellate judges pursuant to the Appointments

Clause. In order to answer that question we must also

examine the additional interests and values unique to

national security and military matters which the Fram-

ers sought to protect. In so doing we can determine

whether these other factors justify treating the military

judiciary different from the federal civilian judiciary and

thereby render the Appointments Clause inapplicable to

military judges.

C. Analysis

Because of national security interests and concerns

for unforeseen military exigencies, it was the intent of

the Framers to vest great authority over these matters

in Congress. L. Tribe, American Constitutional Law

353-56 (2d ed. 1988). They accomplished this in the

Constitution through the enumerated powers of Article

I, Section 8, Clauses 11 through 16 and 18. Under the

enumerated powers, Congress has the power to “raise

and support Armies” (cl. 12); “provide and maintain

a Navy” (cl. 13); “make Rules for the Government and

Regulation of the land and naval Forces” (cl. 14); and

“make all laws that are . . . . necessary and proper” (cl.

18).

The rationale for this approach by the Framers is

found in Alexander Hamilton’s Federalist No. 23:

27a

The authorities essential to the care of the com-

mon defence are these—to raise armies—to build and

equip fleets—to prescribe rules for the government

of both—to direct their operations—to provide for

their support. These powers ought to exist without

limitation: Because it is impossible to foresee or

define the extent and variety of national exigencies,

and the correspondent extent and variety of the

means which may be necessary to satisfy them.‘*'

The circumstances that endanger the safety of na-

tions are infinite; and for this reason, no constitu-

tional shackles can wisely be imposed on the power

to which the care of it is committed. This power

ought to be coextensive with all the possible com-

binations of such circumstances; and ought to be un-

der the direction of the same councils, which are

appointed to preside over the common defense.

* Bs * *

Whether there ought to be a federal government

intrusted with the care of the common defence is a

question, in the first instance, open to discussion;

but the moment it is decided in the affirmative, it

will follow, that that government ought to be cloathed

with all the powers requisite to the complete execu-

tion of its trust. And unless it can be shewn, that

the circumstances which may affect the public safety

are reducible within certain determinate limits; un-

less the contrary of this position can be fairly and

rationally disputed, it must be admitted as a neces-

sary consequence, that there can be no limitation of

that authority, which is to provide for the defense

and protection of the community, in any matter es-

sential to its efficacy; that is, in any matter essen-

tial to the formation, direction or support of the

NATIONAL FORCES.

McLean, supra, vol. I at 144-45 (some emphasis '*!

added).

28a

This view was underscored by James Madison in The

Federalist No. 41:

But was it necessary to give an INDEFINITE

POWER of raising TROOPS, as well as providing

fleets; and of maintaining both in PEACE, as well

as in WAR?

The answer to these questions has been too far

anticipated, in another place, to admit an extensive

discussion of them in this place. The answer indeed

seems to be so obvious and conclusive as scarcely to

justify such a discussion in any place. With what

colour of propriety could the force necessary for de-

fence, be limited by those who cannot limit the force

of offence? If a federal Constitution could chain the ©

ambition, or set bounds to the exertions of all other

nations, then indeed might it prudently chain the

discretion of its own government, and set bounds to

the exertions for its own safety. |

McLean, supra, vol. II at 39. |

Yet the Framers, mindful of the new nation’s fears

regarding establishment of a standing armed force in

peacetime, S. Padover, To Secure These Blessings 203-08

(1962), did not propose to give the new executive and

legislature this great authority without some limitation.

Article I, Section 8, Clause 12, gives Congress the au-

thority to “raise and support Armies” but also provides

that “no Appropriation of Money to that Use shall be

for a longer Term than two Years.” In The Federalist

No. 26, Alexander Hamilton puts forth a spirited defense

of this clause that limits appropriations for military pur-

poses to two Years:

The legislature of the United States will be obliged

by this provision, once at least in every two years,

to deliberate upon the propreity of keeping a mili-

tary force on foot: to come to a new resolution on

the point; and to declare their sense of the matter,

ieee

29a

by a formal vote in the face of their constituents.

They are not at liberty to vest in the executive de- |

partment permanent funds for the support of an

army; if they were even incautious enough to be

willing to repose in it so improper a confidence. As

the spirit of party, in different degrees, must be

expected to infect all political bodies, there will be

no doubt persons in the national legislature willing

enough to arraign the measures and criminate the

views of the majority. The provision for the sup-

port of a military force will always be a favourable

topic for declamation. As often the question

comes forward, the public attention will be roused

and attracted to the subject, by the party in opposi-

tion: And if the majority should be really disposed ~

to exceed the proper limits, the community will be

warned of the danger, and will have an opportunity

of taking measures to guard against it. Independent

of parties in the national legislature itself, as often

as the period of discussion arrived, the state legisla-

tures, who will always be not only vigilant, but sus-

picious and jealous guardians of the rights of the

citizens, against incroachments from the federal gov-

ernment, will constantly have their attention awake

to the conduct of the national rulers, and will be

ready enough, if any thing improper appears to sound

the alarm to the people, and not only to be the

VOICE, but, if necessary, the ARM of their dis-

content.

McLean supra, vol. I at 165-66.

An examination of the military judiciary, although

similar to its civilian counterpart in the importance and

scope of its duties, also reveals marked dissimilarities

from a civilian judiciary because of the ever-existent po-

tential for military exigencies. “Military exigencies” is

not a term of art; our armed forces are not a garrison

force. In the past 4 years alone, our military men and

women have deployed to Panama in Operation Just Cause

30a

and to Southwest Asia in Operations Desert Shield and

Desert Storm. In addition, they have participated in the

humanitarian mission to aid Kurdish refugees, Operation

Provide Comfort, following Operation Desert Storm. Even

as this opinion is being released, our troops are serving

in Somalia as part of a relief effort called Operation

Restore Hope.

These missions require worldwide deployment and the

need for instant mobility and flexibility in assignments,

including military judge assignments. Military judges

must try cases in combat environments, and, due to the

potential for military judge casualties, replacements must

be available at a moment’s notice. The ever-expanding

role of the military only underscores the wisdom of our

Founding Fathers in entrusting Congress with the au-

thority and responsibility for providing for its day-to-

day operations.*

In carrying out its enumerated responsibilities Congress

has paid careful attention to the military justice system.

Starting in 1950 with the adoption of the Uniform Code

of Military Justice, Congress has been very active in ex-

panding the status and power of the military judge. In

1950, Congress provided for the law officer who was the

forerunner of the military trial judge. See Pub.L. No.

81-506, 64 Stat. 117. In the Military Justice Act of

1968, Pub.L. No. 90-632, 82 Stat. 1335, Congress pro-

vided for military judges (at 1336) and the Courts of

Military Review (at 1341). See generally Cox, The

Army, The Courts, and The Constitution: The Evo-

lution of Military Justice, 118 Mil.L.Rev. 1 (1987);

2 For example if during Desert Shield/Storm a scud missile hit

a barracks housing one or more judges from the services, replace-

ments would be needed immediately. A service Judge Advocate

General looking for qualified individual might select an individual

from the Court of Military Review. Likewise, if there was a heavy

case load before the Court of Military Review, for example, a series

of classified cases, the Judge Advocate General should have the flex-

ibility of assigning a trial judge not involved with those cases to

theh appellate court.

a casein

31a

Criminal Law Note: An Ongoing Trend: Expanding the

Status and Power of the Military Judge, The Army Law-

yer 23 (Dept. of the Army Pamphlet 27-50-239, Octo-

ber 1992).

In addition to his or her constitutional role as Com-

mander-in-Chief, U.S. Const. art. II, § 2, the President

has a specific role for military justice matters. Pursuant

to its authority under the Constitution, Congress, through

Article 36(a), Uniform Code of Military Justice, 10

USC § 836(a) (1979), has given the President the au-

thority to prescribe “[p]retrial, trial, and post-trial pro-

cedures, including modes of proof, for . . . [trials by]

courts-martial.” Based on this delegation of authority

from Congress, the President has by Executive Order set

forth many rules in the Manual for Courts-Martial,

United States, 1984, that pertain to the authority of the

military judge. See generally 1 F. Gilligan and F. Lederer,

Court-Martial Procedure 514-56 (1991).

In fulfilling its responsibilities, Congress has been mind-

ful of the interests sought to be protected by the Ap-

pointments Clause. First, with respect to selection of

qualified individuals to serve as military judges, Con-

gress has determined that these assignments be made

by the Judge Advocate General of each service who has

direct responsibility for military justice within his or her

respective service. Congress has implicitly recognized

3 Article 26(c), Uniform Code of Military Justice, 10 USC

§ 826(c), provides: “The military judge of a general court-martial

shall be designated by the Judge Advocate General, or his designee,

of the armed force of which the military judge is a member... .”

Article 66(a), UCMJ, 10 USC § 866(a), provides: “Each Judge

Advocate General shall establish a Court of Military Review which

shall be composed of one or more panels, and each such panel shall

be composed of not less than three appellate military judges.”

See also Morgan, The Background of the Uniform Code of Mili-

tary Justice, 6 Vand.L.Rev. 169 (1953); Comments, Military Jus-

tice and the Constitution—Improvements Offered by the New Uni-

form Code of Military Justice, 29 Tex.L.Rev. 651 (1951).

32a

that the Judge Advocates General are uniquely situated

to determine which oflicers are best qualified within their

respective services to serve as both trial and appellate

judges. Moreover, these same individuals have by neces-

sity great flexibility to make these assignments * quickly

in a combat environment where casualties or other exigen-

cies may affect the military judiciary.

Second, with respect to establishing a system of checks

and balances between the "xecutive and Legislative

branches, it is difficult to see how the present system of

assigning military judges jeopardizes that delicate bal-

ance. If anything, the creation by Congress in 1951 of

the United States Court of Military Appeals, a federal

civilian court subject to the Appointments Clause, which

reviews decisions of the military judiciary, more than

satisfies any concerns in that regard. See 64 Stat. 129.

Additionally, effective August 1, 1984, Congress provided

in Article 67(h)(1), UCMJ, 10 USC § 867(h)(1), now

Article 67a, UCMJ, 10 USC § 867a (1989), that deci-

sions of our Court are reviewable by the Supreme Court

of the United States by writ of certiorari, Military Jus-

tice Act, Pub.L. No. 98-209, § 10(c)(2), 97 Stat. 1393,

1406, thereby providing the ultimate check on judicial

decisions of the military justice system.

If there is dissatisfaction with the military justice sys-

tem as it exists today, it can be changed or modified

by the majoritarian process. That is, the elected repre-

sentatives of Congress, in consultation with the Execu-

* Article 6(a), UCMJ, 10 USC § 806 (a), states:

The assignment for duty of judge advocates of the Army, Navy,

Air Force, and Coast Guard shall be made upon the recom-

mendation of the Judge Advocate General of the armed force

of which they are members. The assignment for duty of judge

advocates of the Marine Corps shall be made by direction of

the Commandant of the Marine Corps. The Judge Advocate

General or senior members of his staff shall make frequent in-

spections in the field in supervision of the administration of

military justice.

33a

tive branch, have the power to make any necessary

changes. But this Court must not, by judicial fiat, im-

pose the procedures intended for a federal civilian ju-

diciary upon the military under the guise of the Con-

stitution. To do so would be to ignore the constitutional

deference given to Congress by our Founding Fathers

because of the realities and practicalities of national se-

curity exigencies.

D. Special Deference

Based on the intent of the Framers, the Constitution,

and Federal statute, the Supreme Court has given great

deference to the authority of Congress and the President

in military matters. The Supreme Court has repeatedly

recognized the power of Congress to provide for military

justice. Judge Grace in United States v. Prive, 35 MJ

569, 573-74 (CGCMR 1992), has listed some of those

decisions as follows:

Dynes v. Hoover, 61 U.S. (20 How.) 65, 79, 15 L.Ed.

838 (1858) (“These provisions show that Congress has

the power to provide for the trial and punishment of

military and naval offenses in the manner then and now

practiced by civilized nations... .”).

Ex parte Milligan, 71 U.S. (4 Wall.) 2, 123, 18 L.Ed.

281 (1866) (“Congress has declared the kinds of trial

[for offenses by soldiers] and the manner in which they

shall be conducted... .”).

Parker v. Levy, 417 U.S. 733, 743, 94 S.Ct. 2547,

2555, 41 L.Ed.2d 439 (1974) (“This Court has long

recognized that the military is, by necessity, a specialized

society separate from civilian society. . . . [T]he military

has, again by necessity, developed laws and traditions of

its own during its long history.” )

Schlesinger v. Councilman, 420 U.S. 738, 757, 95 S.Ct.

1300, 1313, 43 L.Ed.2d 591, 609 (1975) (“The laws

and traditions governing [military] discipline have a long

34a

history; . . . they are founded on unique military exi-

gencies as powerful now as in the past. Their contem-

porary vitality repeatedly has been recognized by Con-

gress.”’)

Northern Pipeline Construction Co. v. Marathon Pipe

Line Co., 458 U.S. 50, 66, 102 S.Ct. 2858, 2869, 73

L.Ed.2d 598 (1982) (“[T]he exercise by Congress and

the Executive of the power to establish and administer

courts-martial . . . involves a constitutional grant of power

tha: has been historically understood as giving the polit-

ical Branches of Government extraordinary control over

the precise subject matter at issue.” )

In United States v. Prive, supra 35 M.J. at 576, Judge

Grace summarized the effect of these decisions on the

present issue by paraphrasing a statement from North-

ern Pipeline as follows:

[T]hese precedents [of the Supreme Court] “rep-

resent no broad departure from the constitutional

command that” appointments must be made in ac-

cordance with the Appointments Clause. Rather,

they reduce to a narrow situation not subject to that

command, that “recogniz[es] a circumstance in

which the grant of power to the Legislative and

Executive Branches was historically and constitution-

ally so exceptional that the congressional assertion

of power” to designate military judges outside of the

provisions of the Appointments Clause “was con-

sistent with, rather than threatening to, the con-

stitutional mandate of separation of powers.”

See 458 U.S. at 64, 102 S.Ct. at 2868 (emphasis added).

Judge Grace also relied on this statement from Solorio

v. United States, 483 U.S. 435, 447, 107 S.Ct. 2924,

2931, 97 L.Ed.2d 364 (1987):

Decisions of this Court after O’Callahan [v.

Parker, 395 U.S. 258, 89 S.Ct. 1683, 23 L.Ed.2d

291 (1969)] have also emphasized that Congress

35a

has primary responsibility for the delicate task of

balancing the rights of servicemen against the needs

of the military. As we recently reiterated, “[j]udicial

deference . . . is at its apogee when legislative action

under the congressional authority to raise and sup-

port armies and make rules and regulations for their

governance is challenged.’ ”

(Emphasis added and citations omitted. )

I agree with the Coast Guard Court of Military Re-

view and “conclude that Congress, in legislating for the

land and naval forces, may provide for the designation

of judges within the military justice system in a man-

ner not provided for in the Appointments Clause of the

Constitution.” 35 MJ at 577.

36a

SULLIVAN, Chief Judge (dissenting) :

I respectfully disagree with the lead opinion and Judge

Crawford's separate opinion in this case. In my view the

Constitution speaks clearly on the granted issue, and we

are duty-bound to follow its supreme command. U.S.

Const. art. VI. Military judges, both trial and appellate,

are “inferior Officers” of the United States and must be

appointed to their offices by “the President alone,” or by

this Court or one of the other “Courts of Law,” or by the

Secretary of Defense or one of the other “Heads of De-

partments.” Art. II, § 2, para. 2, cl. 2. See Freytag v.

Commissioner of Internal Revenue, 501 U.S. , lll

S.Ct. 2631, 115 L.Ed.2d 764 (1991). Appellant’s mili-

tary judges were not so appointed, but their status as de

facto appointees might preclude reversal of his convic-

tion. See Northern Pipeline Construction Co. v. Mara-

thon Pipe Line Co., 458 U.S. 50, 88, 102 S.Ct. 2858,

2880, 73 L.Ed.2d 598 (1982); Buckley v. Valeo, 424

U.S. 1, 142-43, 96 S.Ct. 612, 693, 46 L.Ed.2d 659

(1976). Nevertheless, I must dissent to the majority's

simple affirmance of this case. /d.

More particularly, I do not believe that Congress’ broad

power to make rules for the land and naval forces under

Article I, § 8, clause 14 of the Constitution is unlimited

such that the Appointments Clause can be considered per

se inapplicable to military justice legislation. See generally

Mistretta v. United States, 488 U.S. 361, 382, 109 S.Ct.

647, 660, 102 L.Ed.2d 714 (1989). (Even Congress’

primary duty to make laws is limited by the constitutional

prohibition against an ex post facto Law—e.g., Art. I,

§ 9, para. 3). A contrary opinion in my view is extremely

dangerous in that it upsets the delicate system of checks

and balances provided in our Constitution to ensure the

American way of government.

I also would hold that commissioning and promoting

military officers by the President by and with the advice

and consent of the Senate does not obviate the need for

37a

additional constitutional appointments of such persons

for higher or more responsible offices both within and

without the military department (/.e., military trial judge

or appellate judge). There is no blanket “commissioned

officer” exception to the Appointments Clause written in

the Constitution, and the decision of the Supreme Court

in Shoemaker v. United States, 147 U.S. 282, 13 S.Ct.

361, 37 L.Ed. 170 (1893), should not be broadly ex-

tended to create one for military officers who are simply

“legally trained.” In sum, consistent with my judicial

philosophy of spurning judicial legislation, I also must

reject the judicial constitution-making accomplished by

the lead opinion in this case.

The Granted Issue

The issue raised by appellate defense counsel and

granted review by this Court is as follows:

WHETHER APPELLANT'S COURT-MARTIAL

LACKED JURISDICTION WHERE THE MILI-

TARY JUDGE WAS DESIGNATED IN VIOLA-

TION OF THE APPOINTMENTS CLAUSE OF

THE CONSTITUTION, AND WHETHER THE

NAVY-MARINE CORPS COURT OF MILITARY

REVIEW WAS WITHOUT POWER TO REVIEW

THIS CASE WHERE ITS JUDGES WERE DES-

IGNATED IN VIOLATION OF THE APPOINT-

MENTS CLAUSE OF THE CONSTITUION.

In this regard, I note that the judge in this trial was

Major Edward F. Pesik, Jr., United States Marine Corps.

He was certified in accordance with Article 26(b), Uni-

form Code of Military Justice, 10 USC § 826(b): sworn

in accordance with Article 42(a), UCMJ, 10 USC § 842

(a); and detailed to this case." The appellate military

1 Appelleant represents without opposition that Major Pesik was

a “General Court-Martial qualified” judge and the Sierra Judicial

Circuit’s Chief Military Judge.

38a

judges in this case were Senior Judge James A. Frever,

a Navy Captain; Senior Judge Richard A. Strickland. a

Marine Colonel; and Judge James E. Orr. a Navy Cap-

tain. These judges constituted Panel No. | of the Court

of Military Review, and they reviewed appellate’s case

in accordance with that court’s internal rules.

The issue of law raised by appellate defense counsel

and granted by this Court focuses on the “designat[ion]”

of the military judge who tried his case and the “desig-

natf{ion]” of the military appellate judges who heard his

appeal. Appellant does not contend that these designa-

tions were accomplished in violation of the Uniform Code

of Military Justice. Instead, he contends that they were

not accomplished in accordance with the Appointments

Clause of the United States Constitution. Art. II, § 2,

para. 2, cl. 2. Relying heavily on the recent Supreme

Court decision in Freytag v. C.1.R., supra, he asserts that

military judges “are ‘Officers of the United States’” who

must be “appointed as such by the President, the Courts

of Law, or the Head of a Department.” Final Brief at

10. Finally, he asserts that the designation of these mili-

tary judges by the Judge Advocate General of the Navy

fails to satisfy this constitutional appointment standard.

The Statutes Establishing The Military Judge

A necessary step in resolving the granted issue is to

understand the statutes which create the military trial

and appellate judges and provide for persons to fill these

judicial positions. At the outset I note that Congress

has not expressly provided that a person be “appointed”

a military trial judge or appellate judge. However, in

the version of the Uniform Code of Military Justice en-

acted in 1950, Congress did provide for “appoint[ment]”

of a law officer, the statutory predecessor of the military

judge, by appropriate convening authorities. See Art.

26(a), UCMS, 50 USC § 590(a), recodified in 10 USC

39a

§ 826(a) (1956). Furthermore, in the 1950 Code, Con-

gress provided for “appoint[ment]” of judges of this

Court “by the President, by and with the advice and

consent of the Senate.” Art. 67(a), UCMJ, 50 USC

$ 654(a), recodified in 10 USC § 867(a) (1956); see

Art. 152(b)(1), USMJ, 10 USC § 942(b)(1) (1989).

Despite Congress’ obvious familiarity with the appoint-

ment terminology, it chose to create the military judge

and provide for filling this government position with

somewhat less direct language.’

I first note that, since 1969, Article 26(b) had pro-

vided that “[a] military judge shall be a commissioned

officer of the armed forces.” 10 USC § 531 further

provides:

§ 531. Original appointments of commissioned of-

ficers

(a) Original appointments in the grades of second

lieutenant through colonel in the Regular Army,

Regular Air Force, and Regular Marine Corps and

in the grades of ensign through captain in the Regu-

lar Navy shall be made by the President, by and

with the advice and consent of the Senate.

(Emphasis added.) See also 10 USC § 593 (appointment

in reserves in commissioned grades below lieutenant col-

onel and commander by President alone).

2 What is an “appointment” for purposes of the Appointments

Clause in a substantial constitutional question concerning separa-

tion of powers which implicates all three branches of our Govern-

ment. See Marbury v. Madison, 5 U.S. (1 Cranch) 187, 155, 2 L.Ed.

60 (1803). See generally Buckley v. Valeo, 424 U.S. 1, 122-24, 96

S.Ct. 612, 46 L.Ed.2d 659 (1976). Moreover, in Auffmordt v. Hed-

den, 137 U.S. 310, 327, 11 S.Ct. 103, 108, 34 L.Ed. 674 (1890), the

Supreme Court clearly held that Congress’ use of the word “select”

rather than “appoint” was but one factor to be considered in deter-

mining whether the Appointments Clause applied. Finally, in Shoe-

maker v. United States, 147 U.S. 282, 13 S.Ct. 361, 37 L.Ed. 170

(1893), the Supreme Court impliedly held that designation of

officers for additional duty requires compliance in some manner

with the Appointments Clause.

40a

The qualifications for original appointment are also

statutorily established:

§ 532. Qualifications for original appointment as a

commissioned officer

(a) Under regulations prescribed by the Secretary

of Defense, an original appointment as a commis-

sioned officer (other than as a commissioned warrant

officer) in the Regular Army, Regular Navy, Regular

Air Force, or Regular Marine Corps may be given

only to a person who—

(1) is a citizen of the United States;

(2) is able to complete 20 years of active commis-

sioned service before his fifty-fifth birthday;

(3) is of good moral character;

(4) is physicaily qualified for active service; and

(5) has such other special qualifications as the Sec-

retary of the military department concerned may

prescribe by regulation.

Article 26(b) (1969) also provides that a military

judge must be “a member of the bar of a Federal court

or a member of the bar of the highest court of a State.”

This requirement for legal training is somewhat less strin-

gent than the requirement for detail as trial counsel or

defense counsel at a general court-martial. See Art. 27(b),

UCMJ, i0 USC § 827(b), which states:

(b) Trial counsel or defense counsel detailed for

a general court-martial—

(1) must be a judge advocate who is a graduate

of an accredited law school or is a member of the

bar of a Federal court or of the highest court of a

State; or must be a member of the bar of a Federal

court or of the highest court of a State; and

(2) must be certified as competent to perform

such duties by the Judge Advocate General of the

armed force of which he is a member.

(Emphasis added. )

4la

I next note that Article 26(b) (1969) provides that

a military judge must be “certified to be qualified for

duty as a military judge by the Judge Advocate General

of the armed force of which such military judge is a

member.” The standards for certification are not pro-

vided by statute, and there is no statutory requirement

that a military judge be designated a member of the

Judge Advocate General’s Corps or a Marine Corps judge

advocate. However, as a practical matter, military judges

to be certified as qualified normally would have experi-

ence as a trial or defense counsel under Article 27(b).

This statute alternatively requires designation as a “judge

advocate.”

In fact, the military judge who presided over this

court-martial was a Marine judge advocate. See NAVMC

P-1005, Officers on Active Duty in the Marine Corps at

1-43 (1 Oct.1989, 48th Rev.). 10 USC § 5587a provides:

§ 5587a. Regular Marine Corps: judge advocates

With the approval of the Secretary of the Navy,

any regular officer on the active-duty list of the

Marine Corps who is qualified under section 827(b)

of this title may, upon his application, be designated

as a judge advocate.

(Emphasis added. )

Moreover, two of the appellate military judges who

heard his appeal before the Court of Military Review

were members of the Navy Judge Advocate General’s

Corps. 10 USC § 5150 provides:

§ 5150. Staff corps of the Navy

(a) The staff corps of the Navy are—

(1) the Medical Corps;

(2) the Dental Corps;

42a

(3) the Judge Advocate General’s Corps;

(4) the Chaplain Corps; and

(5) such other staff corps as may be established

by the Secretary of the Navy under subsection

(b).

(b)(1) The Secretary of the Navy may establish

staff corps of the Navy in addition to the Medical

Corps, the Dental Corps, the Judge Advocate Gen-

eral’s Corps, and the Chaplain Corps. The Secretary

may designate commissioned officers in, and may

assign members to, any such staff corps.

(Emphasis added. )

As indicated above, designation as a judge advocate

does not determine where or when a commissioned officer

serves this duty. Article 6, UCMJ, 10 USC § 806 (1984),

further comments on the assignment for duty of judge

advocates, as follows:

$ 806. Art. 6. Judge advocates and legal officer

(a) The assignment for duty of judge advocates

of the Army, Navy, Air Force, and Coast Guard

shall be made upon the recommendation of the Judge

Advocate General of the armed force of which they

are members. The assignment for duty of judge ad-

vocates of the Marine Corps shall be made by direc-

tion of the Commandment of the Marine Corps. The

Judge Advocate General or senior members of his

staff shall make frequent inspections in the field in

supervision of the administration of military justice.

(Emphasis added.) The legislative history makes clear

that Congress intended the Judge Advocate General of

each service to play a substantial initiating role in the

assignment process while reserving to military personnel

43a

authorities the final say.* See Hearings on H.R. 2498

Before a Subcomm. of the House Armed Services Comm.,

8ist Cong., Ist Sess. 898-901 (1949), reprinted in Index

and Legislative History, Uniform Code of Military Justice

(1950).

Article 26(c) (1969) also provides that a “military

judge of a general court-martial shall be designated by

the Judge Advocate General, or his designee, of the armed

force of which the military judge is a member for detaii

in accordance with regulations prescribed under subsec-

tion (a).” (Emphasis added.) The language of desig-

nation is not new (10 USC § 8067) and generally refers

to “a special duty classification.” See 1967 U.S.Code

Cong. & Admin. News 2113, 2114. Again the actual

310 USC § 5013(g) provides: ,

(g) The Secretary of the Navy may—

(1) assign, detail, and prescribe the duties of members of

the Navy and Marine Corps and civilian personnel of the De-

partment of the Navy;

(2) change the title of any officer or activity of the Depart-

ment of the Navy not prescribed by law; and

(3) prescribe regulations to carry out his functions, power.

and duties under this title.

10 USC $5131 creates the Bureau of Naval Personnel and 10 USC

§ 5132 empowers it as follows:

§ 5132. Bureaus: distribution of business; orders; records;

expenses

(a) Except as otherwise provided by law, the business of the

executive part of the Department of the Navy shall be dis-

tributed among the bureaus of the Secretary of the Navy con-

siders expedient and proper.

(b) Each bureau shall perform its duties under the authority

of the Secretary, and its orders are considered as coming from

the Secretary.

of its records and accounts.

(d) Each bureau shall furnish to the Secretary estimates for

its specific, general, and contingent expenses.

For members of the Marine Corps, these powers are vested in the

Commandant of the Marine Corps. See 10 USC § 5043(e) (3).

44a

assignment of a designated military judge to Navy-Marine

Corps Trial Judiciary is impliedly left to military person-

nel authorities. See SECNAVINST 5813.6C (13 April

1979).*

Finally, Article 26(a) (1969), in providing for detail-

ing military judges to hear particular cases, states:

(a) A military judge shall be detailed to each

general court-martial. Subject to regulations of the

Secretary concerned, a military judge may be de-

tailed to any special court-martial. The Secretary

concerned shall prescribe regulations providing for

the manner in which military judges are detailed for

such courts-martial and for the persons who are au-

thorized to detail military judges for such courts-

martial. The military judge shall preside over each

open session of the court-martial to which he has

been detailed.

(Emphasis added.) As noted in United States v. Graf,

35 MJ 450 (CMA 1992), these regulations provide that

# 6. Organization. The Navy-Marine Corps Trial Judiciary is

a naval activity as that term is defined in [U.S. Navy Regula-

tions, 1973]. It is composed of the Office of the Chief Judge

of the Navy-Marine Corps Trial Judiciary and such Judicial

Circuits and their Branch Offices as may be established by the

Judge Advocate General. The Judge Advocate Geenral may

also establish Judicial Areas, each consisting of two or more

Judicial Circuits, for the purpose of providing an intermediate

level of supervision within the Trial Judiciary. Expansion of

the Navy-Marine Corps Trial Judiciary will come from cur-

rent manpower resources as determined by the Chief of Naval

Operations, the Commandant of the Marine Corps, and the

Judge Advocate General, acting in coordination. The Marine

Corps Special Court-Martial Judiciary is disestablished, and its

members are members of the Navy-Marine Corps Trial Ju-

dicary.

* * * *

8. Authority Over Organization, Functions and Administra-

tion. The Judge Advocate General is authorized to organize,

administer, assign, and reassign functions to the Navy-Marine

Corps Trial Judiciary and personne] attached thereto in accord-

ance with [10 USC § 826 et. seq.].

45a

detailing will be accomplished by the Chief Judge, the

circuit military judge, or the circuit military judge’s des-

ignee. See §§0120a(1) (1987); 0130a(1) (1990),

Manual of the Judge Advocate General of the Navy.

In sum, the President and the Senate make a person a

commissioned officer; the Secretary of the Navy makes

that commissioned officer a judge advocate; the Judge

Advocate General qualifies and classifies that judge ad-

vocate as a military judge; the Chief of Naval Personnal

or the Commandant of the Marine Corps assigns him a

duty station; and the Secretary of the Navy provides

regulations for his detail to a particular case within that

duty assignment.

Constitutional Tension

In view of these empowering statutes, it is now ap-

propriate to turn to the United States Constitution. See

Dynes v. Hoover, 61 U.S. (20 How.) 65, 61 U.S. 65, 15

L.Ed. 838 (1858). Article I, § 8 of the Constitution

provides:

The Congress shall have Power

* * . -

To raise and support Armies, but no Appropria-

tion of Money to that Use shall be for a longer Term

than two years.

To provide and maintain a Navy;

To make Rules for the Government and Regula-

tion of the land and naval Forces[.]

In addition, I note that this same section of the Con-

stitution further provides:

The Congress shall have Power

* * * *

46a

To constitute Tribunals inferior to the supreme

Court;

* * * *

To make all Laws which shall be necessary and

proper for carrying into Execution the foregoing

Powers, and all other Powers vested by this Con-

stitution in the Government of the United States,

or in any Department or Officer thereof.

Clearly, these constitutional grants of authority are suf-

ficient to provide for the above-noted statutory establish-

ment of a military justice system with military trial

and appellate judges. See Solorio v. United States, 483

U.S. 435, 441, 107 S.Ct. 2924, 2928, 97 L.Ed.2d 364

(1987); Schlesinger v. Councilman, 420 U.S. 738, 757-

58, 95 S.Ct. 1300, 1313, 43 L.Ed.2d 591 (1975). See

also Rostker v. Goldberg, 453 U.S. 57, 65-66, 101 S.Ct.

2646, 2652, 69 L.Ed.2d 478 (1981).

I also note the operative provisions of the Constitu-

tion which appellant asserts are applicable to the ap-

pointment of military judges. Article II states in per-

tinent part:

Section 2. The President shall be Commander in

Chief of the Army and Navy of the United States... .

[H]e shall nominate, and by and with the Advice

and Consent of the Senate, shall appoint Ambas-

sadors, other public Ministers and Consuls, Judges

of the supreme Court, and all other Officers of the

United States, whose Appointments are not herein

otherwise provided for and which shall be established

by Law: but the Congress may by Law vest the

Appointment of such inferior Officers, as they think

proper, in the President alone, in the Courts of Law,

or in the Heads of Departments.

(Emphasis added.) Article II further states:

47a

Section 3. He shall . . . take Care that the Laws

be faithfully executed, and shall Commission all the

Officers of the United States.

(Emphasis added. )

In view of these provisions of the Constitution, three

distinct but nonetheless related issues are raised which

this Court must decide. First, can Congress create the

position of military judge and provide for its filling un-

der Article I, § 8 of the Constitution without regard to

the Appointment Clause of Article II, § 2 of the Con-

stitution? (See Parts IV and V, below.) Assuming it

cannot, what does Article II, § 2 of the Constitution re-

quire for a proper constitutional appointment to the

office of military judge? (See Part VI below.) Finally,

does the statutory system of designation/detail provided

by Congress for military judges meet the above constitu-

tional requirements? (See Part VII below.)

The Scope of the Constitutional Power of

Congress in Military Justice

It is beyond cavil that Congress has extremely broad

powers to legislate in military matters generally and

military justice matters in particular. Moreover, it is

also quite clear that the Supreme Court has afforded

great deference to Congress’ decisions in this regard.

The Coast Guard Court of Military Review has exhaus-

tively summarized the relevant Supreme Court cases sup-

porting these assertions in its decision in United States

v. Prive, 35 MJ 569, 573-75 (1992).

Despite these pronouncements, the Supreme Court has

also made very clear that its deference to Congress in

military matters is not absolute. Rostker v. Goldberg,

supra, 453 U.S. at 67-68, 101 S.Ct. at 2653, states:

None of this is to say that Congress is free to dis-

regard the Constitution when it acts in the area of

48a

military affairs. In that area, as any other, Con-

gress remains subject to the limitations of the Due

Process Clause, see Ex parte Milligan, [71 U.S. (]

4 Wall.[)] 2, 18 L.Ed. 281 (1866); Hamilton v.

Kentucky Distilleries & Warehouse Co., 251 USS.

146, 156 [40 S.Ct. 106, 108, 64 L.Ed. 194] (1919),

but the tests and limitations to be applied may differ

because of the military context. We of course, do not

abdicate our ultimate responsibility to decide the con-

Stitutional question, but simply recognize that the

Constitution itself requires such deference to con-

gressional choice. See Columbia Broadcasting Sys-

tem, Inc. v. Democratic National Committee, 412

U.S. [94] at 103 [93 S.Ct. 2080, 2087, 36 L.Ed.2d

772 (1973)]. In deciding the question before us we

must be particularly careful not to substitute our

judgment of what is desirable for that of Congress,

or our own evaluation of evidence for a reasonable

evaluation by the Legislative Branch.

Moreover, in Middendorf v. Henry, 425 U.S. 25, 96

S.Ct. 1281, 47 L.Ed.2d 556 (1976), the Supreme Court

had earlier held that Congress’ military justice powers

were not totally independent of the rest of the Constitu-

tion. According to then-Justice Rehnquist:

We recognize that plaintiffs, who have either been

convicted or are due to appear before a summary

court-martial, may be subjected to loss of liberty

or property, and consequently are entitled to the due

process of law guaranteed by the Fifth Amendment.

However, whether this process embodies a right

to counsel depends upon an analysis of the interests

of the individual and those of the regime to which he

is subject. Wolff v. McDonnell, 418 U.S. 539, 556,

94 S.Ct. 2963, 2976, 41 L.Ed.2d 935 (1974).

In making such an analysis, we must give par-

ticular deference to the determination of Congress,

made under its authority to regulate the land and

49a

naval forces, U.S. Const., Art. I, § 8, that counsel

should not be provided in summary courts-martial.

As we held in Burns v. Wilson, 346 U.S. 137, 140,

73 S.Ct. 1045, 1047, 97 L.Ed. 1508 (1953):

“{T]he rights of men in the armed forces must

perforce be conditioned to meet certain overrid-

ing demands of discipline and duty, and the civil

courts are not the agencies which must deter-

mine the precise balance to be struck in this

adjustment. The Framers especially entrusted

that task to Congress.” (Footnote omitted. )

425 U.S. at 43, 96 S.Ct. at 1291. See also Solorio v.

United States, 483 U.S. at 451 n.18, 107 S.Ct. at 2933

n.18.

A question remains, however, whether Congress’ power

to make rules for the government and regulation of the

Army and Navy is also limited or restricted by Article

II, § 2, paragraph 2, clause 2 of the Constitution. The

Coast Guard Court of Military Review in United States

v. Prive, supra, has held that the Framers of the Con-

stitution did not intend to include Congress’ military

justice power within the scope of the appointment clause.

Relying on Northern Pipeline Construction Co. v. Mara-

thon Pipe Line Co., 458 U.S. at 63-70, 102 S.Ct. at 2867-

71, it asserts that the military justice system is one of

those “narrow situations . . . in which the grant of

power to the Legislative and Executive Branches was

historically and constitutionally so exceptional that the

congressional assertion of a power to create legislative

courts was consistent with, rather than threatening to,

the constitutional mandate of separation of powers.” /d.

at 64, 102 S.Ct. at 2868 (plurality opinion). See 35

MJ at 575-76.

I disagree with the Coast Guard Court of Military Re-

view for several reasons. First, the Supreme Court in

Northern Pipeline held that the bankruptcy courts were

50a

not legislative courts properly excepted from compliance

with the requirements of Article Iil of the Constitu-

tion. While it stated that courts-martial created by Con-

gress under Article I, § 8 of the Constitution were legis-

lative courts, and thus were not affected by Article III

of the Constitution, it went no further. The additional

leap taken by the Coast Guard Court of Military Review

in extending this decision into the area of Article II and

the Appointments Clause in disregard of the plain lan-

guage of the Constitution is simply not justified. See

Mimmack v. United States, 97 U.S. 426, 437, 24 L.Ed.

1067 (1878); see also Wood v. United States, 107 U.S.

414, 417, 2 S.Ct. 551, 554, 27 L.Ed. 542 (1883); Blake

v. United States, 103 U.S. 227, 232, 26 L.Ed. 462

(1881); 30 Op.Atty.Gen. 177, 180 (1913); 4 Op.Atty.

Gen. 603, 610 (1847). See generally 4 P. Kurland and

R. Lerner, The Founders’ Constitution, 31-38, 98 (1987).

Second, the principle of separation of powers disputed

in Northern Pipeline was between the congressional and

judicial branches of our government. However, the Su-

preme Court in Northern Pipeline clearly recognized that

the Constitution’s exceptional plenary grant of power

over the Nation’s armed forces was to both the Legisla-

tive and Executive Branches of our Government. /d.

458 US. at 71, 102 S.Ct. at 2871. Accordingly, the ratio

dec.dendi employed by the Supreme Court in Northern

Pipeline cannot be logically applied to a dispute between

branches of the government which both historically and

constitutionally share that very power. See generally E.

Corwin, The President: Office and Powers (1787-1984)

at 296 (Sth rev. ed. 1984).

Finally, the Supreme Court in Freytag v. C.1.R., 501

US. , 111 S.Ct. 2631, clearly recognized two con-

cerns of the Framers of the Constitution in adopting the

Appointments Clause of the Constitution. Justice Black-

mun said:

The roots of the separation-of-powers concept em-

bedded in the Appointments Clause are structural

S5la

and political. Our separation-of-powers jurisprudence

generally focuses on the danger of one Branch’s ag-

grandizing its power at the expense of another

Branch. See Mistretta v. United States, 488 US.

361, 382, 109 S.Ct. 647, 659, 102 L.Ed. 2d 714

(1989). The Appointments Clause not only guards

against this encroachment but alsu preserves another

aspect of the Constitution's structural integrity by

preventing the diffusion of the appointment power.

Id. 501 U.S. at , 111 S.Ct. at 2638 (emphasis

added).

More particularly, he later said:

We cannot accept the Commissioner’s assumption

that every part of the Executive Branch is a depart-

ment the head of which is eligible to receive the -ap-

pointment power. The Appointment Clause prevents

Congress from distributing power too widely by limit-

ing the actors in whom Congress may vest the power

to appoint. The Clause reflects our Framers’ con-

clusion that widely distributed appointment power

subverts democratic government. Given the inexor-

able presence of the administrative state, a holding

that every organ in the Executive Branch is a depart-

ment would multiply indefinitely the number of actors

eligible to appoint. The Framers recognized the

dangers posed by an excessively diffuse appointment

power and rejected efforts to expand that power.

See Wood, at 79-80. So do we. For the chief

judge of the Tax Court to qualify as a “Head of

a Department,” the Commissioner must demonstrate

not only that the Tax Court is a part of the Execu-

tive Branch but also that it is a department.

Id. at . 111 S.Ct. at 2642 (emphasis added). This

constitutional concern with Congress’ excessive diffusion

of the Executive’s appointing power is simply not ad-

dressed by the Northern Pipeline rationale.

. iis

52a

The Scope of the Constitutional Power of the

Executive to Appoint Inferior Officers

of the United States

The next inquiry concerns the actual scope of the

Presidential appointment power. The general adage is

that Congress creates the offices and the President ap-

points the necessary officers to fill them. See generally

L. Tribe, Amer.can Constitutional Law 244 (2d ed. 1988)

However, the words of the Constitution more particularly

narrow the positions in the Federal government which are

included within the constitutional appointment process.

Article II of the Constitution states:

Section 1. The executive Power shall be vested in

a President of the United States of America. ...

Section 2. The President shall be Commander in

Chief of the Army and Navy of the United States. . ..

He shall have Power, by and with the Advice and

Consent of the Senate, to make Treaties, provided

two thirds of the Senators present concur; and he

shall nominate, and by and with the Advice and Con-

sent of the Senate, shall appoint Ambassadors, other

public Ministers and Consuls, Judges of the supreme

Court, and all other Officers of the United States,

whose Appointments are not herein otherwise pro-

vided for, and which shall be established by Law:

but the Congress may by Law vest the Appointment

of such inferior Officers, as they think proper, in the

President alone, in the Courts of Law, or in the

Heads of Departments.

The President shall have Power to fill up all Va-

cancies that may happen during the Recess of the

Senate, by granting Commissions which shall expire

at the End of their next Session,

53a

Section 3. He shall . . . take Care that the Laws

be faithfully executed, and shall Commission all the

Officers of the United States.

(Emphasis added. )

In light of these provisions, the first question which

arises is who are “all other Officers of the United States”

or “such inferior Officers, as they think proper” within

the meaning of Article II of the Constitution. The Su-

preme Court in United States v. Germaine, 99 U.S. 508,

510, 25 L.Ed. 482 (1879), defined such officers as “all

persons who can be said to hold an office under the gov-

ernment about to be established under the Constitution.

.’ (Emphasis added. ) More recently, the Supreme

Court spoke particularly on the office holders who could

be considered “Officers of the United States,” as follows:

We think that the term “Officers of the United

States” as used in Art. II, defined to include “all

persons who can be said to hold an office under the

government” in United States v. Germaine, supra,

is a term intended to have substantive meaning. We

think its fair import is that any appointee exercising

significant authority pursuant to the laws of the

United States is an “Officer of the United States,”

and must, therefore, be appointed in the manner pre-

scribed by § 2, cl. 2, of that Article.

Buckley v. Valeo, 424 U.S. at 125-26, 96 S.Ct. at 685

(emphasis added). See Freytag v. C.I.R., 501 U.S. at

, 111 S.Ct. at 2640. In this light, a critical question

in this case is whether a military judge is an Officer of

the United States.

I note that this Court most recently in United States

v. Graf, 35 MJ 450, 465 (CMA 1992), and United States

v. Mabe, 33 MJ 200 (CMA 1991), analyzed the statutes

and regulations concerning the military judge and con-

cluded that “the Uniform Code of Military Justice con-

templates that a military judge be a real judge as com-

monly understood in the American legal tradition.” 35

54a

MJ at 465. In addition, I note that in Freytag v. C.I.R.,

supra, the Supreme Court expressly held that a special

trial judge established by Congress “as an aide to [a]

Tax Court judge” is “an ‘inferior Officer’ whose appoint-

ment must conform to the Appointments Clause.” 501

US. at , 111 S.Ct. at 2640.

The Supreme Court in Freytag articulated its reason-

ing for reaching this conclusion, as follows:

The Commissioner reasons that special trial judges

may be deemed employees in subsection (b) (4) cases

because they lack authority to enter a final decision.

But this argument ignores the significance of the

duties and discretion that special trial judges possess.

The office of special trial judge is “established by

Law,” Art. II, § 2, cl. 2, and the duties, salary, and

means of appointment for that office are specified

by statute. See Burnap v. United States, 252 U.S.

512, 516-517, 40 S.Ct. 374, 376-377, 64 L.Ed. 692

(1920); United States v. Germaine, 99 U.S. 508,

511-512, 25 L.Ed. 482 (1879). These characteris-

tics distinguish special trial judges from special

masters, who are hired by Article HII courts on a

temporary, episodic basis, whose positions are not

established by law, and whose duties and functions

are not deiineated in a statute. Furthermore, special

trial judges perform more than ministerial tasks.

They take testimony, conduct trials, rule on the ad-

missibility of evidence, and have the power to enforce

compliance with discovery orders. In the course of

carrying out these important functions, the special

trial judges exercise significant discretion.

Even if the duties of special trial judges under

subsection (b)(4) were not as significant as we and

the two courts have found them to be, our conclusion

would be unchanged. Under §§ 7443A(b)(1), (2).

and (3), and (c), the chief judge may assign special

trial judges to render the decisions of the Tax Court

in declaratory judgment proceedings and limited-

55a

amount ‘tax cases. The Commissioner concedes that

in cases governed by subsections (b)(1), (2), and

(3), special trial judges act as inferior officers who

exercise independent authority.

501 USS. at _ 111 S.Ct. at 2640 (emphasis added).

The position of military judge is established by law.

See Arts. 26 and 66, UCMJ, 10 USC §§ 826 and 866,

respectively. The duties and functions of a person in

this position are also established by statute. See Arts.

26, 39, 51, and 66, UCMJ, 10 USC §§ 826, 839, 851,

and 866, respectively. The Code authorizes military judges

to hear and determine motions on various pretrial, trial,

and posttrial matters (see Art. 39(a)); rule on all ques-

tions of law and interlocutory questions at courts-martial

(Art. 51(b)); and impose Federal convictions up to and

including life in prison, punitive separations from the

service, and substantial financial penalties (Arts. 16(1)

(B) and 18, UCMJ, 10 USC §§ 816(1)(B) and 818, re-

spectively). A judge sitting with court members also in-

structs them on the various matters necessary to reach

appropriate findings and sentences, even in capital cases

where a servicemember’s life is at stake. (Art. 51(c)).

These are not ministerial tasks but judicial ones calling

for the exercise of significant discretion. See United

States v. Graf, 35 MJ 450; United States v. Cole, 31 MJ

270, 272 (CMA 1990). Finally, judges exercise inde-

pendent authority. Art. 37, UCMJ, 10 USC § 837. See

United States v. Graf, supra. In my view, the military

judges and appellate military judges are “Officers of the

United States,” as provided for in Article II, § 2 of the

Constitution.

The Constitutional Requirements for a

Valid Appointment

My next inquiry concerns the particular requirements

provided in the Constitution for a valid appointment of

56a

“Officers of the United States.” The answer to this ques-

tion in large part depends on whether a military judge

is one of “all other Officers of the United States” or is

one of the “inferior Officers” generally denominated in

Article II, § 2. See United States v. Germaine, 99 U.S.

508, 509-10, 25 L.Ed. 482 (1879). See generally R.

Rotunda, J. Nowak, and J. Young, Treatise on Constitu-

tional Law: Substance and Procedure § 9.4 at 504-05

(1986). In light of the Supreme Court’s characterization

of a special tax court judge as an inferior officer in

Freytag v. C.1.R., supra, 1 have no reservation in con-

cluding that a military trial judge and military appetiate

judge are “inferior Officers” of the United States within

the meaning of Article IT, § 2. See also Buckley v. Valeo,

424 US. 1, 96 S.Ct. 612.

In this light a military judge need not be appointed

by the President by and with the Advice and Consent of

the Senate. However, it is required that he be appointed

by “the President alone,” a Court of Law, or a Head of

a Department. Freytag v. C.I.R., supra. Nevertheless,

the lead opinion and the Navy-Marine Corps Court of

Military Review in United States v. Coffman, 35 MJ 591

(1992), have held that this constitutional requirement

is satisfied by a military officer’s earlier commission and

succeeding promotions by the President with the Advice

and Consent of the Senate. Relying on Shoemaker v.

United States, supra, they assert that no further appoint-

ment by the President, a Court of Law, or a Head of

a Department is required to permit a “legally trained”

military officer to constitutionally assume the office of

military trial or appellate judge.*

The Navy-Marine Corps Court of Military Review

articulated its rationale for its holding in Coffman as

follows:

5 This argument on its face fails to justify appointment of civil-

ians to the Court of Military Review as authorized by Article 66,

Uniform Code of Military Justice, 10 USC § 866.

57a

Assuming arguendo that [the Appointments Clause]

applies to military judges, the fact is that all military

judges must be commissioned officers of the armed

forces of the United States and, as such, have by law

already been appointed by the President. Art. 26(b),

UCMJ, 10 U.S.C. § 826(b); 10 U.S.C. §§ 101(4),

101(15), 531, 593, 624, 5001(6), 5912. Depend-

ing upon grade, component, and presence on the

active-duty list, some of these commissioned officers

by law must also have had their appointments con-

firmed by and with the advice and consent of the

Senate. 10 U.S.C. §§ 531, 593, 624, 5912. All

military judges must be lawyers. Art. 26(b), UCMJ,

10 U.S.C. § 826(b). The duties these commissioned

officers are detailed to perform as military judges

are within the sphere of their official duties and are

germane to the office they already hold. A second

appointment from the President to a commissioned

officer to perform the duties of a military judge iS

simply not required. Cf. Shoemaker v. United States,

147 U.S. 282, 299-301, 13 S.Ct. 361, 390-391, 37

L.Ed. 170, 185 (1892) (Army officers (engineers )

were not required to obtain a second appointment

to perform duties on a commission created by Con-

gress to acquire lands for a park). Accordingly, we

conclude the appellant’s first assignment of error is

also without merit.

35 MJ at 592.

The lead opinion more particularly posits two reasons

why no further constitutional appointment of military

judges is required by the Appointments Clause. First,

it concludes that the office of military judge is not a

“new office.” so no additional appointment is required

under Shoemaker v. United States, supra. Assuming it

is a new office, the opinion holds that the germaneness of

its duties to those duties previously performed by “legally

trained military officers” also precludes the need for a

second appointment under Shoemaker. 1 disagree.

58a

The lead opinion concedes that a military judge is an

Officer of the United States. Moreover, it noes that the

new powers of this officer were previously shared by the

mefabers of a court-martial, its president, and its law

officer. Thus, Congress did not increase the power and

duties of “an existing office” but created a new office to

which these powers were transferred. It is the removal

of these powers and duties from commissioned military

officers, not their addition thereto, which renders inappo-

site the lead opinion’s no-“new-office” argument.

I also find that the lead opinion grossly misapprehends

the nature of the duties of a military judge and his con-

tribution to military justice. The creation of the military

judge in 1969 was a watershed event because it introduced

for the first time, statutorily, a professional judiciary at

courts-martial.° S.Rep. No. 1601, 90th Cong., 2d Sess. 3,

6 The establishment of the military judge was not the only change

accomplished by the legislation of 1968. Also, for the first time

in the history of American military justice, a service-member could

be tried and sentenced by a single military officer without court

members in serious non-capital cases. Art. 16(c)(B), UCMJ, 10

USC § 816(1) (B). See H. Moyer, Justice and The Military § 2-620

at 5386 (1972); Douglass, The Judicialization of Military Courts,

22 Hast. L.J. 213, 220 (1971). in -

Representative Philbin commented on the reason for this bill as

follows:

The need for this bill has become acute because of the in-

creased size of our Armed Forces resulting from the military

activity in Southeast Asia. Besides the savings in time and

manpower afforded by the bill, the bill provides meaningful

benefits and protections to the accused.

The enactment of this legislation will permit the procedure

for trials by special and general courts-martial to conform more

closely with the procedure used in the trial of criminal cases

in the U.S. district courts and will enhance the prestige and

effectiveness of the law officer, whose name is changed by the

bill to “military judge,” so that his judicial statute and author-

ity in the courtroom will more closely approximate that of a

civilian trial judge. The bill allows the military judge to rule

finally on certain procedural matters, such as motions for find-

59a

14 (1968). See Ervin, The Military Justice Act of 1968,

45 Mil.L.Rev. 77, 83, 88-91 (1969). See generally Ross,

The Military Justice Act of 1968: Historical Background,

ings of not guilty, on which he now may be overruled by the

court members who are untrained in the law. The bill provides

for pretrial and posttrial sessions to be held by the military

judge without the presence of the court panel for the purpose

of deciding procedural questions. The bill provides for trial in

special and general court-martial by a military judge alone

without court members if the accused requests and the request

is approved by the military judge. These last two provisions

are expected to save innumerable man-hours of line officers who

would otherwise be required to be in attendance at courts-

martial, as well as improving the internal efficiency of the jus-

tice system.

¥* * * *

The enactment of this bill will be the most significant advance

in the field of military justice since the enactment of the Uni-

form Code of Military Justice in 1951.

114 Cong.Rec. 30563-64 (1968) (emphasis added).

Representative Bennett, a central figure in the development of

this legislation, made this statement regarding the 1968 legislation:

The need for this bill has become acute because of the in-

creased size of our Armed Forces resulting from our present

military activity in Vietnam. The bill provides meaningful

benefits and protections to the accused, as well as streamlining

procedures. The bill contains the following provisions, which

are designed to increase the fairness of the military justice

system: First, the accused must be afforded the right to be

defended by a qualified lawyer at special courts-martial—here-

tofore such a right only existed in the case of general courts-

martial; second, before a bad conduct discharge can be adjudged

at a special court-martial, the accused must be represented by

a qualified lawyer and the proceedings must be conducted by a

“military judge’—a term I will discuss below—except where

physical conditions or military exigencies prevent one from

being obtained; third, the bill extends the time in which the

accused can petition for a new trial from 1 to 2 years; and

fourth, an accused faced with trial at summary court-martial

can object to such an informal trial, at which time the con-

vening authority must bring charges at a special or general

court-martial or dismiss them.

The enactment of H.R. 15971 will permit the procedure for

trials in the military to conform more closely to the procedures

60a

23 JAG.J. 125 (1969). In this context, a holding that

this office is new is an understatement.

Turing to the lead opinion’s “germane duties” ration-

ale, I also find its application in the present case un-

acceptable. Shoemaker v. United States, supra, is an ex

ception to normal Appointments Clause practice, and a

very narrow one at that. The lead opinion’s extension

of that case beyond its facts to permit the blanket in-

vesting of “legally trained” military officers with the office

of military judge without compliance with the Appoint-

used in the Federal courts. The bill also enhances the prestige

and effectiveness of the law officer, whose name is changed to

“military judge.” The role of the “military judge” wiil closely

approximate that of a civilian trial judge: he will rule finally

on certain procedural matters and will hold open pretrial and

posttrial sessions without the presence of the court for the

purpose of deciding procedural questions. An accused can re-

quest a special and general court-martial by a “military judge”

alone.

The bill changes the name of the intermediate appellate

agencies in the military from boards of review to courts of

military review. The bill requires that the judges of thiese

courts and of courts-martial be part of an independent ju-

diciary. In addition, the bill authorizes a military form of

release on bail \ 2nding appeal, the need for which has been

pointed out in several recent cases.

The importance of this legislation cannot be overstated. It

is particularly needed in Victnam, as has been pointed out by

General Westmoreland; for under the bill line officers will be

free from the necessity of serving as court members in many

cases; and many previously wasted man-hours will be saved

because of streamlined procedures.

I think it is most significant that the House of Representa-

tives, which fathered the Uniform Code of Military Justice, also

initiated the action on this legislation and now has the oppor-

tunity to put the capstone on it. The enactment of H.R. 15971

will be the most significant advance in the field of military

justice since enactment of the Uniform Code of Military Justice.

I heartily recommend the House approve the Senate amend-

ments.

114 Cong.Rec. 30565 (1968) (emphasis added).

6la

ments Clause is simply unprecedented. Strictly speaking,

such an approach might be appropriate only if the “legally

trained” military officers also held a specific presidentially

appointed military justice office such as the Judge Ad-

vocate General of the Navy. See 10 USC § 5148.’ Other-

wise, the lead opinion’s general-duties analysis, at least

in my view, constitutes judicial activism.

In Shoemaker, the Supreme Court considered the devo-

lution of additional duties not on commissioned military

officers in general or on commissioned military engineer-

ing officers. Instead, they devolved on military officers

already holding a specific military or civilian office re-

quiring a presidential appointment. See Thain, Legis-

lative History of General Staff of the Army of the United

States 3, 485 (1901). See generally Hoeppel v. United

States, 85 F.2d 237, 241 (D.C.Cir.1936). One Rock

Park Creek Commission member who was a military offi-

cer had been previously appointed by the President to the

7 Neither of the two cases cited in Shoemaker v. United States, 147

U.S. 282, 301, 13 S.Ct. 361, 391, 37 L.Ed. 170 (1893), supports

a “commissioned officer” exception to the Appointments Clause or

its general-military-duty rationale as created by the lead opinion.

The petitioner in Smith v. Whitney, 116 U.S. 167, 6 S.Ct. 570,

29 L.Ed. 601 (1886), was an officer of the Navy who was later

appointed by the President by and with the consent of the Senate,

as the “chief of the bureau of provisions and clothing and pay-

master general in the department of the navy, with the relative

The petition in Wales v. Whitney, 114 U.S. 564,-5 S.Ct. 1050,

29 L.Ed. 577 (1885), was an officer in the Navy who was later

appointed by the President, by and with the consent of the Senate

as “chief of the bureau of medicine and surgery in the department

of the navy,” which office carried the additional title of “surgeon

general of the navy.” Id. at 569, 5 S.Ct. at 1052. See 10 USC

§ 5137, Historical and Revision Notes, R.S. 421 and 426.

The Supreme Court’s holding that these military officers could be

court-martialed for offenses under the Articles for the Government

of the Navy does not logically suggest that an additional presi-

dential appointment was not required for their assumption of their

more particular civil or military offices.

62a

Office of the Chief of Engineers of the United States

Army. See R.S. §§ 1094, 1151, and 1193 (1878), and

17 Op. Atty. Gen. 2, 3 (1881); see generally 1 Stat. 749

(1799) and 20 Stat. 151, § 13 (1878); see also 10 USC

§ 3036 (1956). The second, also a military officer, had

previously been “detailed” by the President as the Engi-

neer Commissioner for the District of Columbia. See Ch.

180 § 2, 20 Stat. 103 (1878); 26 Stat. 1113 (1890); see

also 10 USC § 3534 (1956). Thus, the additional “ger-

mane” duty of membership on the Rock Creek Park

Commission cannot be simply said to have generally de-

volved on a diffused pool of commissioned officers or

commissioned officers with engineering training.

Second, the Shoemaker decision makes clear that this

extraordinary application of the Appointments Clause

rests on a conclusion that the new additional duties are

“germane to the offices already held by them.” 147 US.

at 301, 13 SCt. at 391. More particlularly, the Supreme

Court there said:

It is true that it may be sometimes difficult to say

say whether a given duty, devolved by statute upon

a named officer, has regard to the civil or military

service of the United States. Wales v. Whitney, 114

U.S. 564, 569, 5 S.Ct. 1050 [1052]; Smith v. Whit-

ney, 116 U.S. 167, 179, 181, 6 S.Ct. 570 [576,

577]. But, in the present case, the duty which the

military officers in question were called upon to per-

form cannot fairly be said to have been dissimilar to,

or outside of the sphere of, their official duties.

147 U.S. at 301, 13 S.Ct. at 391 (emphasis added). The

additional duties as a member of the Rock Creek Park

Commission were particularly related to the military offi-

cers’ office as Chief of Engineers of the United States

Army and office as Engineer Commissioner for the Dis-

trict of Columbia. Clearly neither duty as engineer nor

training as an engineer sufficed.

63a

Appellate government counsel and various amici have

also asserted that the duties of a military judge are “ger-

mane” to the various powers of a commissioned officer

under the Uniform Code of Military Justice. These in-

clude the power to “quell quarrels, frays, and disorders”

(Art. 7(c), UCMJ, 10 USC § 807(c)); make arrests

(Art. 9(b), UCMJ, 10 USC § 809(b)); serve as an

investigating officer (Art. 32, UCMJ, 10 USC § 832);

impose non-judicial punishments (Art. 15, UCMJ, 10

USC § 815); and serve as court-martial members at special

courts-martial without a military judge (Art. 25(a),

UCMSJ, 10 USC § 825(a)). I do not consider a military

judge’s judicial duties similar to or within the sphere of

the general military justice responsibilities of a line officer.

Moreover, the latter duties are collateral and irregular

and, therefore, also lack the specificity-of-office considered

in Shoemaker.

Finally, the available lower court decisions applying

Shoemaker simply do not support a broad military com-

mission-promotion exception to the Appointments Clause

for legally trained officers. The Court of Appeals for the

Eleventh Circuit applied Shoemaker in the context of the

“Investigating Committee of the Judicial Council of

Eleventh Circuit.” See In the Matter of Certain Com-

plaints Under Investigation, 783 F.2d 1488 (11th Cir.

1986). It noted that the members of this committee were

sitting federal judges already appointed by the President

who were later selected for service on this judicial com-

mittee by the Chief Judge of the Circuit. It held:

Their selection for service on the Committee does

not gain them new positions in any meaningful sense;

to the contrary, service on a committee of the judicial

council, when called upon, is merely an outgrowth

of their existing responsibilities. See Shoemaker v.

United States, 147 U.S. 282, 301, 13 S.Ct. 361, 391,

37 L.Ed. 179 (1893) (a statutory expansion of the

functions of an existing position does not create a

64a

new office requiring re-appointment, at least where

the newly-added duties are “germane” to eixsting

functi

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