OCTOBER TERM, 1996
Syllabus
EDMOND
v. UNITED STATES
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ARMED
FORCES
No. 96-262. Argued February 24, 1997-Decided May 19, 1997*
The Coast Guard Court of Criminal Appeals (formerly the Coast
Guard Court of Military Review) hears appeals from the decisions of
courtsmartial, and its decisions are subject to review by the
United States Court of Appeals for the Armed Forces. Under Article
66(a) of the Uniform Code of Military Justice (UCMJ), its judges
may be commissioned officers or civilians. During the times here
relevant, the court had two civilian members, both of whom were
originally assigned to the court by the General Counsel of the
Department of Transportation. In anticipation of the possible
invalidation of these assignments under the Appointments Clause,
Art. II, § 2, cl. 2, the Secretary of Transportation issued a
memorandum "adopting" the General Counsel's earlier judicial
assignments as appointments of his own. In
Ryder v.
United States, 515 U. S. 177, this Court
overturned a conviction that had been affirmed, before the
secretarial appointments, by a Coast Guard Court of Military Review
panel that included both civilian members, as it was conceded that
the judges had not been validly appointed pursuant to the
Appointments Clause. The present case concerns the validity of six
convictions that were affirmed by the Coast Guard Court of Criminal
Appeals (or its predecessor), with one or both civilian judges
participating, after the secretarial appointments. The Court of
Appeals for the Armed Forces affirmed the convictions, relying on
its holding on remand in
Ryder that the Secretary's
appointments were valid and cured the defect that had previously
existed.
Held: The judicial appointments at issue are valid. Pp.
655-666.
(a) Congress has authorized the Secretary to appoint civilian
members of the Coast Guard Court of Criminal Appeals. Petitioners'
argument that those appointments are invalid because the Secretary
lacks the power under 49 U. S. C. § 323(a) to appoint Coast Guard
judges is rejected. Although § 323(a) does not specifically mention
such judges, its plain language authorizes the Secretary to
"appoint and fix the pay of officers and employees of the
Department." This Court rejects peti-
*Together with Lazenby v. United States; Leaver v. United
States; Leonard v. United States; Nichols v. United States; and
Venable v. United States, also on certiorari to the same court (see
this Court's Rule 12.4).
652
Syllabus
tioners' assertion that § 323(a) is a default statute superseded
by express language in Article 66(a) of the UCMJ giving the Judge
Advocate General of each military branch exclusive authority to
appoint Court of Criminal Appeals judges. Conspicuously absent from
Article 66(a) is any mention of "appointment." Instead, the statute
refers only to judges "who are
assigned to a Court of
Criminal Appeals" (emphasis added). The fact that this Court found
the distinction to be significant in
Weiss v.
United
States, 510 U. S.
163, 171-172, suggests that Article 66(a) concerns not the
appointment of judges, but only their assignment. A contrary
interpretation of Article 66(a) would render it unconstitutional,
for under the Appointments Clause Congress could not give Judge
Advocates General power to "appoint" even inferior officers of the
United States. Pp. 655-658.
(b) The Secretary's authorization to appoint civilian Court of
Criminal Appeals judges is constitutional. The Appointments Clause
gives the President the exclusive power to select principal
officers by and with the advice and consent of the Senate, but
authorizes Congress to "vest the Appointment of ... inferior
Officers ... in the Heads of Departments." Despite the importance
of the responsibilities the judges in question bear, they are
"inferior Officers" under the Clause. Generally speaking, "inferior
officers" are officers whose work is directed and supervised at
some level by others who were appointed by Presidential nomination
with the Senate's advice and consent. See,
e. g., ch.
4, §§ 1, 2, 1 Stat. 28. Supervision of the work of Coast Guard
Court of Criminal Appeals judges is divided between the General
Counsel of the Department of Transportation (who is subordinate to
the Secretary) and the Court of Appeals for the Armed Forces. See
Arts. 66(f), 67(a), UCMJ. Significantly, these judges have no power
to render a final decision on behalf of the United States unless
permitted to do so by other Executive officers, and hence they are
inferior within the meaning of Article II.
Morrison v.
Olson, 487 U.
S. 654, 671-672, and
Freytag v.
Commissioner,
501 U. S. 868,
distinguished. Pp. 658-666.
45 M. J. 19 (first judgment), 44 M. J. 273 (second, third,
fifth, and sixth judgments), and 44 M. J. 272 (fourth judgment),
affirmed.
SCALIA, J., delivered the opinion of the Court, in which
REHNQUIST, C. J., and STEVENS, O'CONNOR, KENNEDY, THOMAS, GINSBURG,
and BREYER, JJ., joined, and in which SOUTER, J., joined as to
Parts I and II. SOUTER, J., filed an opinion concurring in part and
concurring in the judgment,
post, p. 666.
Alan B. Morrison argued the cause for petitioners. With
him on the briefs was
Allen Lotz.
653
Malcolm L. Stewart argued the cause for the United States. With
him on the brief were Acting Solicitor General Dellinger, Deputy
Solicitor General Dreeben, Douglas N. Letter, Nancy E. McFadden,
Paul M. Geier, Peter
J. Plocki, and Frank R. Levi.
JUSTICE SCALIA delivered the opinion of the Court.
We must determine in this case whether Congress has authorized
the Secretary of Transportation to appoint civilian members of the
Coast Guard Court of Criminal Appeals, and if so, whether this
authorization is constitutional under the Appointments Clause of
Article II.
I
The Coast Guard Court of Criminal Appeals (formerly known as the
Coast Guard Court of Military Review) is an intermediate court
within the military justice system. It is one of four military
Courts of Criminal Appeals; others exist for the Army, the Air
Force, and the Navy-Marine Corps. The Coast Guard Court of Criminal
Appeals hears appeals from the decisions of courts-martial, and its
decisions are subject to review by the United States Court of
Appeals for the Armed Forces (formerly known as the United States
Court of Military Appeals).l
Appellate military judges who are assigned to a Court of
Criminal Appeals must be members of the bar, but may be
commissioned officers or civilians. Art. 66(a), Uniform Code of
Military Justice (UCMJ), 10 U. S. C. § 866(a). During the times
relevant to this case, the Coast Guard Court of Criminal Appeals
has had two civilian members, Chief Judge Joseph H. Baum and
Associate Judge Alfred F. Bridgman, Jr. These judges were
originally assigned to serve on the court by the General Counsel of
the Department of Transportation,
1 The names of the Courts of Military Review and of the United
States Court of Military Appeals were changed, effective October 5,
1994, by Pub. L. 103-337, § 924, 108 Stat. 2831.
654
who is, ex officio, the Judge Advocate General of the Coast
Guard, Art. 1(1), UCMJ, 10 U. S. C. § 801(1). Subsequent events,
however, called into question the validity of these
assignments.
In
Weiss v.
United States, 510 U. S. 163 (1994), we
considered whether the assignment of commissioned military officers
to serve as military judges without reappointment under the
Appointments Clause was constitutional. We held that military trial
and appellate judges are officers of the United States and must be
appointed pursuant to the Appointments Clause.
Id., at 170.
We upheld the judicial assignments at issue in
Weiss because
each of the military judges had been previously appointed by the
President as a commissioned military officer, and was serving on
active duty under that commission at the time he was assigned to a
military court. We noted, however, that "allowing civilians to be
assigned to Courts of Military Review, without being appointed
pursuant to the Appointments Clause, obviously presents a quite
different question."
Id., at 170, n. 4.
In anticipation of our decision in
Weiss, Chief Judge
Baum sent a memorandum to the Chief Counsel of the Coast Guard
requesting that the Secretary, in his capacity as a department
head, reappoint the judges so the court would be constitutionally
valid beyond any doubt. See
United States v.
Senior,
36 M. J. 1016, 1018 (C. G. C. M. R. 1993). On January 15, 1993, the
Secretary of Transportation issued a memorandum "adopting" the
General Counsel's assignments to the Coast Guard Court of Military
Review "as judicial appointments of my own." The memorandum then
listed the names of "[t]hose judges presently assigned and
appointed by me," including Chief Judge Baum and Judge Bridgman.
Addendum to Brief for Petitioners A6.
Two Terms ago, in
Ryder v.
United States, 515 U. S. 177 (1995), we
considered the validity of a conviction that had been affirmed by a
panel of the Coast Guard Court of Military Review, including its
two civilian members, before the
655
secretarial appointments of January 15, 1993. The Government
conceded that the civilian judges of the Court of Military Review
had not been appointed pursuant to the Appointments Clause, see
Brief for United States in
Ryder v.
United States, O.
T. 1994, No. 94-431, p. 9, n. 9, but argued that Ryder's conviction
should be affirmed notwithstanding this defect. We disagreed,
holding that Ryder was "entitled to a hearing before a properly
appointed panel of" the Coast Guard Court of Military Review. 515
U. S., at 188. We did not consider the validity of convictions
affirmed by the court after the secretarial appointments.
Each of the petitioners in the present case was convicted by
court-martial. In each case the conviction and sentence were
affirmed, in whole or in part, by the Coast Guard Court of Criminal
Appeals (or its predecessor the Court of Military Review) after the
January 15, 1993, secretarial appointments. Chief Judge Baum
participated in each decision, and Judge Bridgman participated in
the appeals involving two of the petitioners. The Court of Appeals
for the Armed Forces affirmed the convictions, relying on its
holding on remand in
United States v.
Ryder, 44 M. J.
9 (1996), that the Secretary of Transportation's appointments were
valid and cured the defect that had previously existed. 45 M. J. 19
(1996); 44 M. J. 273 (1996); 44 M. J. 272 (1996). Petitioners
sought review in a consolidated petition pursuant to this Court's
Rule 12.4, and we granted certiorari, 519 U. S. 977 (1996).
II
Petitioners argue that the Secretary's civilian appointments to
the Coast Guard Court of Criminal Appeals are invalid for two
reasons: First, the Secretary lacks authority under 49 U. S. C. §
323(a) to appoint members of the court; second, judges of military
Courts of Criminal Appeals are principal, not inferior, officers
within the meaning of the Appointments Clause, and must therefore
be appointed by the
656
President with the advice and consent of the Senate. We consider
these contentions in turn.
Congress has established the Coast Guard as a military service
and branch of the Armed Forces that, except in time of war (when it
operates as a service within the Navy), is part of the Department
of Transportation. 14 U. S. C. §§ 1-3. The Secretary of
Transportation has broad authority over the Coast Guard, including
the power to "promulgate such regulations and orders as he deems
appropriate to carry out the provisions of [Title 14] or any other
law applicable to the Coast Guard," § 633. The Commandant of the
Coast Guard is required to "carry out duties and powers prescribed
by the Secretary of Transportation," and he "reports directly to
the Secretary." 49 U. S. C. § 108(b). Most relevant to the present
case, § 323(a) provides: "The Secretary of Transportation may
appoint and fix the pay of officers and employees of the Department
of Transportation and may prescribe their duties and powers."
Petitioners do not dispute that judges of the Coast Guard Court of
Criminal Appeals are officers of the Department of Transportation.
Thus, although the statute does not specifically mention Coast
Guard judges, the plain language of § 323(a) appears to give the
Secretary power to appoint them.
Petitioners argue, however, that § 323(a) is a default statute,
applicable only where Congress has not otherwise provided for the
appointment of specific officers. Petitioners contend that Article
66(a) of the UCMJ, 10 U. S. C. § 866(a), gives the Judge Advocate
General of each military branch exclusive authority to appoint
judges of his respective Court of Criminal Appeals. That provision
reads as follows:
"Each Judge Advocate General shall establish a Court of Criminal
Appeals which shall be composed of one or more panels, and each
such panel shall be composed of not less than three appellate
military judges .... Appellate military judges who are assigned to
a Court of
657
Criminal Appeals 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. The Judge Advocate General shall
designate as chief judge one of the appellate military judges of
the Court of Criminal Appeals established by him. The chief judge
shall determine on which panels of the court the appellate judges
assigned to the court will serve and which military judge assigned
to the court will act as senior judge on each panel."
Were we to accept petitioners' interpretation of Article 66(a)
as providing for the "appointment" of Court of Criminal Appeals
judges, their argument that Congress intended it to be the
exclusive means of appointment might prove persuasive. Ordinarily,
where a specific provision conflicts with a general one, the
specific governs.
Busic v.
United States, 446 U. S. 398, 406
(1980). Conspicuously absent from Article 66(a), however, is any
mention of the "appointment" of military judges. Instead, the
statute refers to judges "who are
assigned to a Court of
Criminal Appeals" (emphasis added). The difference between the
power to "assign" officers to a particular task and the power to
"appoint" those officers is not merely stylistic. In
Weiss,
we upheld the assignment of military officers to serve on military
courts because they had previously been "appointed" as officers of
the United States pursuant to the Appointments Clause, and because
Congress had not designated the position of a military judge as one
requiring reappointment. 510 U. S., at 176. We noted in
Weiss that Congress has consistently used the word "appoint"
with respect to military positions requiring a separate
appointment, rather than using terms not found within the
Appointments Clause, such as "assign": "Congress repeatedly and
consistently distinguished between an office that would require a
separate appointment and a position or duty to which one could be
'assigned' or 'detailed' by a superior
658
officer."
Id., at 172. We found it significant that the
sections of the UCMJ relating to military judges "speak explicitly
and exclusively in terms of 'detail' or 'assign'; nowhere in these
sections is mention made of a separate appointment."
Ibid.
This analysis suggests that Article 66(a) concerns not the
appointment of Court of Criminal Appeals judges, but only their
assignment.
Moreover, we see no other way to interpret Article 66(a) that
would make it consistent with the Constitution. Under the
Appointments Clause, Congress could not give the Judge Advocates
General power to "appoint" even inferior officers of the United
States; that power can be conferred only upon the President,
department heads, and courts of law. Thus, petitioners are asking
us to interpret Article 66(a) in a manner that would render it
clearly unconstitutional-which we must of course avoid doing if
there is another reasonable interpretation available.
NLRB
v.
Catholic Bishop of Chicago, 440 U. S. 490, 500
(1979);
Blodgett v.
Holden, 275 U. S. 142 (1927).
Petitioners respond that reading § 323(a) to permit the Secretary
to appoint Court of Criminal Appeals judges causes us unnecessarily
to reach the constitutional question whether those judges are
inferior officers under the Appointments Clause, since Congress may
vest only the appointment of inferior officers in a department
head. But a constitutional question confronted in order to
preserve, if possible, a congressional enactment is not a
constitutional question confronted unnecessarily.
We conclude that Article 66(a) does not give Judge Advocates
General authority to appoint Court of Criminal Appeals judges; that
§ 323(a) does give the Secretary of Transportation authority to do
so; and we turn to the constitutional question whether this is
consistent with the Appointments Clause.
III
The Appointments Clause of Article II of the Constitution reads
as follows:
659
"[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." U. S. Const., Art.
II, § 2, cl. 2.
As we recognized in
Buckley v.
Valeo, 424 U. S. 1, 125
(1976) (per curiam), the Appointments Clause of
Article II is more than a matter of "etiquette or protocol"; it is
among the significant structural safeguards of the constitutional
scheme. By vesting the President with the exclusive power to select
the principal (noninferior) officers of the United States, the
Appointments Clause prevents congressional encroachment upon the
Executive and Judicial Branches. See
id., at 128-131;
Weiss, supra, at 183-185 (SOUTER, J., concurring);
Freytag v.
Commissioner, 501 U. S. 868, 904, and
n. 4 (1991) (SCALIA, J., concurring). This disposition was also
designed to assure a higher quality of appointments: The Framers
anticipated that the President would be less vulnerable to
interest-group pressure and personal favoritism than would a
collective body. "The sole and undivided responsibility of one man
will naturally beget a livelier sense of duty, and a more exact
regard to reputation." The Federalist No. 76, p. 387 (M. Beloff ed.
1987) (A. Hamilton); accord, 3 J. Story, Commentaries on the
Constitution of the United States 374-375 (1833). The President's
power to select principal officers of the United States was not
left unguarded, however, as Article II further requires the "Advice
and Consent of the Senate." This serves both to curb Executive
abuses of the appointment power, see 3 Story,
supra, at
376377, and "to promote a judicious choice of [persons] for filling
the offices of the union," The Federalist No. 76, at 386-387.
660
By requiring the joint participation of the President and the
Senate, the Appointments Clause was designed to ensure public
accountability for both the making of a bad appointment and the
rejection of a good one. Hamilton observed:
"The blame of a bad nomination would fall upon the president
singly and absolutely. The censure of rejecting a good one would
lie entirely at the door of the senate; aggravated by the
consideration of their having counteracted the good intentions of
the executive. If an ill appointment should be made, the executive
for nominating, and the senate for approving, would participate,
though in different degrees, in the opprobrium and disgrace."
Id., No. 77, at 392.
See also 3 Story,
supra, at 375 ("If [the President]
should ... surrender the public patronage into the hands of
profligate men, or low adventurers, it will be impossible for him
long to retain public favour").
The prescribed manner of appointment for principal officers is
also the default manner of appointment for inferior officers.
"[B]ut," the Appointments Clause continues, "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." This provision, sometimes referred to as the
"Excepting Clause," was added to the proposed Constitution on the
last day of the Grand Convention, with little discussion. See 2 M.
Farrand, Records of the Federal Convention of 1787, pp. 627-628
(1911 ed.). As one of our early opinions suggests, its obvious
purpose is administrative convenience, see
United States v.
Germaine, 99 U.
S. 508, 510 (1879)-but that convenience was deemed to outweigh
the benefits of the more cumbersome procedure only with respect to
the appointment of "inferior Officers." Section 323(a), which
confers appointment power upon the Secretary of Transportation, can
constitutionally be
661
applied to the appointment of Court of Criminal Appeals judges
only if those judges are "inferior Officers."
Our cases have not set forth an exclusive criterion for
distinguishing between principal and inferior officers for
Appointments Clause purposes. Among the offices that we have found
to be inferior are that of a district court clerk,
Ex parte
Hennen, 13 Pet. 225, 258 (1839), an election supervisor,
Ex
parte Siebold, 100 U. S. 371, 397-398
(1880), a vice consul charged temporarily with the duties of the
consul,
United States v.
Eaton, 169 U. S. 331, 343
(1898), and a "United States commissioner" in district court
proceedings,
Go-Bart Importing Co. v.
United States,
282 U. S. 344,
352354 (1931). Most recently, in
Morrison v.
Olson,
487 U. S. 654
(1988), we held that the independent counsel created by provisions
of the Ethics in Government Act of 1978, 28 U. S. C. §§ 591-599,
was an inferior officer. In reaching that conclusion, we relied on
several factors: that the independent counsel was subject to
removal by a higher officer (the Attorney General), that she
performed only limited duties, that her jurisdiction was narrow,
and that her tenure was limited. 487 U. S., at 671-672.
Petitioners are quite correct that the last two of these
conclusions do not hold with regard to the office of military judge
at issue here. It is not "limited in tenure," as that phrase was
used in
Morrison to describe "appoint[ment] essentially to
accomplish a single task [at the end of which] the office is
terminated."
Id., at 672. Nor are military judges "limited
in jurisdiction," as used in
Morrison to refer to the fact
that an independent counsel may investigate and prosecute only
those individuals, and for only those crimes, that are within the
scope of jurisdiction granted by the special three-judge appointing
panel. See
Weiss, 510 U. S., at 192 (SOUTER, J.,
concurring). However,
Morrison did not purport to set forth
a definitive test for whether an office is "inferior" under the
Appointments Clause. To the contrary, it explicitly stated: "We
need not attempt here to decide ex-
662
actly where the line falls between the two types of officers,
because in our view [the independent counsel] clearly falls on the
'inferior officer' side of that line." 487 U. S., at 671.
To support principal-officer status, petitioners emphasize the
importance of the responsibilities that Court of Criminal Appeals
judges bear. They review those court-martial proceedings that
result in the most serious sentences, including those "in which the
sentence, as approved, extends to death, dismissal ... ,
dishonorable or bad-conduct discharge, or confinement for one year
or more." Art. 66(b)(1), UCMJ, 10 U. S. C. § 866(b)(1). They must
ensure that the courtmartial's finding of guilt and its sentence
are "correct in law and fact,"
id., Art. 66(c), § 866(c),
which includes resolution of constitutional challenges. And
finally, unlike most appellate judges, Court of Criminal Appeals
judges are not required to defer to the trial court's factual
findings, but may independently "weigh the evidence, judge the
credibility of witnesses, and determine controverted questions of
fact, recognizing that the trial court saw and heard the
witnesses."
Ibid. We do not dispute that military appellate
judges are charged with exercising significant authority on behalf
of the United States. This, however, is also true of offices that
we have held were "inferior" within the meaning of the Appointments
Clause. See,
e. g., Freytag v.
Commissioner, 501 U.
S., at 881-882 (special trial judges having "significan[t] ...
duties and discretion" are inferior officers). The exercise of
"significant authority pursuant to the laws of the United States"
marks, not the line between principal and inferior officer for
Appointments Clause purposes, but rather, as we said in
Buck
ley, the line between officer and nonofficer. 424 U. S., at
126.
Generally speaking, the term "inferior officer" connotes a
relationship with some higher ranking officer or officers below the
President: Whether one is an "inferior" officer depends on whether
he has a superior. It is not enough that other officers may be
identified who formally maintain a
663
higher rank, or possess responsibilities of a greater magnitude.
If that were the intention, the Constitution might have used the
phrase "lesser officer." Rather, in the context of a Clause
designed to preserve political accountability relative to important
Government assignments, we think it evident that "inferior
officers" are officers whose work is directed and supervised at
some level by others who were appointed by Presidential nomination
with the advice and consent of the Senate.
This understanding of the Appointments Clause conforms with the
views of the first Congress. On July 27, 1789, Congress established
the first Executive department, the Department of Foreign Affairs.
In so doing, it expressly designated the Secretary of the
Department as a "principal officer," and his subordinate, the Chief
Clerk of the Department, as an "inferior officer:
"Section 1. Be it enacted ... That there shall be an
Executive department, to be denominated the Department of Foreign
Affairs, and that there shall be a principal officer therein, to be
called the Secretary for the Department of Foreign Affairs, who
shall perform and execute such duties as shall from time to time be
enjoined on or intrusted to him by the President of the United
States, agreeable to the Constitution, relative to [matters
respecting foreign affairs]; and furthermore, that the said
principal officer shall conduct the business of the said department
in such manner as the President of the United States shall from
time to time order or instruct.
"Sec. 2. And be it further enacted, That there shall be
in the said department, an inferior officer, to be appointed by the
said principal officer, and to be employed therein as he shall deem
proper, and to be called the chief Clerk in the Department of
Foreign Affairs .... " Ch. 4, 1 Stat. 28.
664
Congress used similar language in establishing the Department of
War, repeatedly referring to the Secretary of that department as a
"principal officer," and the Chief Clerk, who would be "employed"
within the Department as the Secretary "shall deem proper," as an
"inferior officer." Ch. 7, 1 Stat. 49.
Supervision of the work of Court of Criminal Appeals judges is
divided between the Judge Advocate General (who in the Coast Guard
is subordinate to the Secretary of Transportation) and the Court of
Appeals for the Armed Forces. The Judge Advocate General exercises
administrative oversight over the Court of Criminal Appeals. He is
charged with the responsibility to "prescribe uniform rules of
procedure" for the court, and must "meet periodically [with other
Judge Advocates General] to formulate policies and procedure in
regard to review of court-martial cases." Art. 66(f), UCMJ, 10 U.
S. C. § 866(f). It is conceded by the parties that the Judge
Advocate General may also remove a Court of Criminal Appeals judge
from his judicial assignment without cause. The power to remove
officers, we have recognized, is a powerful tool for control.
Bowsher v.
Synar, 478 U. S. 714, 727
(1986);
Myers v.
United States, 272 U. S. 52 (1926).
The Judge Advocate General's control over Court of Criminal
Appeals judges is, to be sure, not complete. He may not attempt to
influence (by threat of removal or otherwise) the outcome of
individual proceedings, Art. 37, UCMJ, 10 U. S. C. § 837, and has
no power to reverse decisions of the court. This latter power does
reside, however, in another Executive Branch entity, the Court of
Appeals for the Armed Forces.2 That court reviews every decision of
the
2 Article 141 of the UCMJ, 10 U. S. C. § 941, states that the
Court of Appeals for the Armed Forces "is established under article
I of the Constitution," and "is located for administrative purposes
only in the Department of Defense." Although the statute does not
specify the court's "location" for nonadministrative purposes,
other provisions of the UCMJ make clear that it is within the
Executive Branch. The court reviews the judg-
665
Courts of Criminal Appeals in which: (a) the sentence extends to
death; (b) the Judge Advocate General orders such review; or (c)
the court itself grants review upon petition of the accused.
Id., Art. 67(a), §867(a). The scope of review is narrower
than that exercised by the Court of Criminal Appeals: so long as
there is some competent evidence in the record to establish each
element of the offense beyond a reasonable doubt, the Court of
Appeals for the Armed Forces will not reevaluate the facts.
Id., Art. 67(c), § 867(c);
United States v.
Wilson, 6 M. J. 214 (C. M. A. 1979). This limitation upon
review does not in our opinion render the judges of the Court of
Criminal Appeals principal officers. What is significant is that
the judges of the Court of Criminal Appeals have no power to render
a final decision on behalf of the United States unless permitted to
do so by other Executive officers.
Finally, petitioners argue that
Freytag v.
Commissioner, 501 U. S. 868 (1991),
which held that special trial judges charged with assisting Tax
Court judges were inferior officers and could be appointed by the
Chief Judge of the Tax Court, suggests that Court of Criminal
Appeals judges are principal officers. Petitioners contend that
Court of Criminal Appeals judges more closely resemble Tax Court
judges-who we implied (according to petitioners) were principal
officers-than they do special trial judges. We note initially that
Freytag does not hold that Tax Court judges are principal
officers; only the appointment of special trial judges was at issue
in that case. Moreover, there are two significant distinctions
between Tax Court judges and Court of Criminal Appeals judges.
First, there is no Execu-
ments of only military tribunals,
id., Art. 67, §867; its
judges must meet annually in committee with the Judge Advocates
General and two members appointed by the Secretary of Defense to
survey the operation of the military justice system,
id.,
Art. 146, § 946; and the President may remove its judges for
neglect of duty, misconduct, or mental or physical disability,
id., Art. 142(c), § 942(c).
666
Opinion of SOUTER, J.
tive Branch tribunal comparable to the Court of Appeals for the
Armed Forces that reviews the work of the Tax Court; its decisions
are appealable only to courts of the Third Branch. 26 U. S. C. §
7482. And second, there is no officer comparable to a Judge
Advocate General who supervises the work of the Tax Court, with
power to determine its procedural rules, to remove any judge
without cause, and to order any decision submitted for review.
Freytag does not control our decision here.
***
We conclude that 49 U. S. C. § 323(a) authorizes the Secretary
of Transportation to appoint judges of the Coast Guard Court of
Criminal Appeals; and that such appointment is in conformity with
the Appointments Clause of the Constitution, since those judges are
"inferior Officers" within the meaning of that provision, by reason
of the supervision over their work exercised by the General Counsel
of the Department of Transportation in his capacity as Judge
Advocate General and the Court of Appeals for the Armed Forces. The
judicial appointments at issue in this case are therefore
valid.
Accordingly, we affirm the judgment of the Court of Appeals for
the Armed Forces with respect to each petitioner.
It is so ordered.
JUSTICE SOUTER, concurring in part and concurring in the
judgment.
I join in Parts I and II of the Court's opinion and agree with
the reasoning in Part III insofar as it describes an important, and
even necessary, reason for holding judges of the Coast Guard Court
of Criminal Appeals to be inferior officers within the meaning of
the Appointments Clause, U. S. Const., Art. II, § 2, cl. 2. The
Court states that "[g]enerally speaking, the term 'inferior
officer' connotes a relationship [of supervision and direction]
with some higher
667
ranking officer or officers below the President: Whether one is
an 'inferior' officer depends on whether he has a superior."
Ante, at 662. The Court goes on to show that administrative
supervision of these judges by the Judge Advocate General of the
Coast Guard, combined with his power to control them by removal
from a case, establishes that the intermediate appellate judges
here have the necessary superior. With this conclusion I agree, but
unlike the Court I am not prepared to decide on that basis alone
that these judges are inferior officers.
Because the term "inferior officer" implies an official
superior, one who has no superior is not an inferior officer. This
unexceptionable maxim will in some instances be dispositive of
status; it might, for example, lead to the conclusion that United
States district judges cannot be inferior officers, since the power
of appellate review does not extend to them personally, but is
limited to their judgments. See
In re Sealed Case,
838 F.2d
476, 483 (CADC), rev'd
sub nom. Morrison v.
Olson, 487 U.
S. 654 (1988) (suggesting that "lower federal judges ... are
principal officers" because they are "not subject to personal
supervision," 838 F. 2d, at 483); cf.
ante, at 665.
It does not follow, however, that if one is subject to some
supervision and control, one is an inferior officer. Having a
superior officer is necessary for inferior officer status, but not
sufficient to establish it. See,
e. g.,
Morrison v.
Olson, 487 U. S., at 654, 722 ("To be
sure, it is not a
sufficient condition for 'inferior'
officer status that one be subordinate to a principal officer. Even
an officer who is subordinate to a department head can be a
principal officer") (SCALIA, J., dissenting). Accordingly, in
Morrison, the Court's determination that the independent
counsel was "to some degree 'inferior'" to the Attorney General,
see
id., at 671, did not end the enquiry. The Court went on
to weigh the duties, jurisdiction, and tenure associated with the
office,
id., at 671-672, before concluding that the
independent counsel was an infe-
668
Opinion of SOUTER, J.
rior officer. Thus, under
Morrison, the Solicitor General
of the United States, for example, may well be a principal officer,
despite his statutory "inferiority" to the Attorney General. See,
e. g., 28 U. S. C. § 505 (directing Presidential
appointment, with the advice and consent of the Senate, of a
Solicitor General to "assist the Attorney General in the
performance of his duties"). The mere existence of a "superior"
officer is not dispositive.
In this case, as the Court persuasively shows, the Judge
Advocate General has substantial supervisory authority over the
judges of the Coast Guard Court of Criminal Appeals. As the Court
notes, the Judge Advocate General prescribes rules of procedure for
the Court of Criminal Appeals, formulates policies for review of
court-martial cases, and is authorized to remove judges from their
judicial assignments without cause. See
ante, at 664. While
these facts establish that the condition of supervision and control
necessary for inferior officer status has been met, I am wary of
treating them as sufficient to demonstrate that the judges of the
Court of Criminal Appeals are actually inferior officers under the
Constitution.
In having to go beyond the Court's opinion to decide that the
criminal appeals judges are inferior officers, I do not claim the
convenience of a single sufficient condition, and, indeed, at this
stage of the Court's thinking on the matter, I would not try to
derive a single rule of sufficiency. What is needed, instead, is a
detailed look at the powers and duties of these judges to see
whether reasons favoring their inferior officer status within the
constitutional scheme weigh more heavily than those to the
contrary. Having tried to do this in a concurring opinion in
Weiss v.
United States, 510 U. S. 163, 182
(1994), I will not repeat the essay. See
id., at 192194
(reviewing the
Morrison factors, including tenure,
jurisdiction, duties, and removal; concluding that because it is
"hard to say with any certainty" whether Courts of Military Review
judges should be considered principal or inferior of-
669
ficers, deference to the political branches' judgment is
appropriate). Here it is enough to add that after the passage of
three Terms since writing in
Weiss, I am unrepentant. I
therefore join not only in the Court's conclusion that the
necessary supervisory condition for inferior officer status is
satisfied here, but in the Court's ultimate holding that the judges
of the Coast Guard Court of Criminal Appeals are inferior officers
within the meaning of the Appointments Clause.
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