Brief of Professor Aditya Bamzai as Amicus Curiae in Support of Neither Party, Dalmazzi et al. v. United States

Abstract

This amicus brief in support of neither party explains why the Supreme Court lacks jurisdiction to review cases from the Court of Appeals for the Armed Forces (CAAF). Though called a court by statute, the CAAF is located for constitutional purposes within the Executive Branch and does not exercise the judicial Power of the United States or of any sovereign. Chief Justice Marshall's opinion in Marbury v. Madison makes it clear that the Supreme Court cannot exercise appellate Jurisdiction under Article III directly from an officer of the Executive Branch. There is no basis in law or logic to distinguish between a single officer (James Madison in Marbury) and a body composed of multiple officers (the CAAF), even if the latter is designated a court by statute. Accordingly, the Court's exercise of jurisdiction over cases directly from the CAAF violates Article III. The brief canvasses a number of precedents in this area arising from cases involving military commissions, the Court of Federal Claims, petitions for writs of habeas corpus, the Court of Customs and Patent Appeals, and administrative agencies.