Ortiz and the Problem of Intrabranch Litigation

Abstract

Do government appeals from the Court of Appeals for the Armed Forces represent a justiciable case or controversy under Article III of the Constitution? This paper analyzes the Supreme Court’s jurisprudence on Article III’s adversity requirement, arguing that government appeals from the CAAF may represent a non-justiciable instance of intrabranch litigation. Part I provides background on the structure and history of the CAAF and introduces the problem posed by government appeals from this tribunal to the Supreme Court. Part II explores the Court’s jurisprudence, as well as current scholarship, on intrabranch litigation and the requirement of adverse parties. Finally, Part III turns to Ortiz v. United States to examine how the Court’s recent characterization of the military justice system may reconcile the doctrinal and theoretical issues presented in the preceding sections. Although the Court in Ortiz did not address this broader jurisdictional issue, the majority’s focus on the judicial nature of the CAAF may provide a path to finding a justiciable controversy in government appeals from the CAAF.