A Labyrinth of Appointments Clause Issues in the Military Appellate Courts: Unpacking United States v. Ortiz and United States v. Dalmazzi

Abstract

United States v. Ortiz and United States v. Dalmazzi present two important constitutional Appointments Clause issues that may come before the Supreme Court in the next term. The first issue is whether military officers serving as judges on the United States Court of Military Commission Review (USCMCR) are “principal” officers under the Appointments Clause of the Constitution. If yes, the second issue is whether such officers’ principal status prohibits them from simultaneously serving as judges on the various armed services courts of appeals, including for the Air Force, Navy, and others. More broadly—and relevant beyond the military appellate court system—these questions implicate the as-yet-unanswered question of whether the Appointments Clause principal-inferior status of government officers who serve in multiple positions should be evaluated “holistically” across their offices, or instead independently for each office they hold. The Court of Appeals for the Armed Forces (CAAF) recently decided United States v. Ortiz on non-constitutional grounds, and the Supreme Court has asked for briefing on the constitutional issues in United States v. Dalmazzi. The issues in these cases are critical for two reasons. One reason is that the current military appellate court system sometimes utilizes the same officer-judges serving on multiple courts at the same time. A second reason is that a Supreme Court determination that military appellate judges serving on the USCMCR are principal officers may also constitutionally preclude military officers from serving on that court. To explore whether USCMCR judges are constitutionally prohibited from simultaneously serving on an armed service court of appeal, this paper provides a brief summary of the relevant facts and background law surrounding United States v. Ortiz in Part I and presents the parties’ constitutional arguments in Part II. In Part III, the paper evaluates Ortiz’ statutory argument that Colonel Mitchell’s presidential appointment to the USCMCR pursuant to 10 U.S.C. § 950f(b)(3) makes him ineligible to serve on the AFCCA. In Part IV, this paper then evaluates the constitutional arguments in concluding that simultaneous service on the USCMCR and armed service courts of appeal does not violate the Appointments Clause. This is because USCMCR judges are not principal officers and, even if they were, no other officer on an armed service court of appeal supervises or directs them. More broadly, in section IV.B.2, this paper suggests that courts should review the principal-officer status of officers serving in multiple positions “holistically”: If, in any one position, an officer is “supervised and directed” by another officer, that officer should be considered an inferior officer for purposes of all positions the officer holds.