OCTOBER TERM, 1993
Syllabus
WEISS
v. UNITED STATES
CERTIORARI TO THE UNITED STATES COURT OF MILITARY APPEALS
No. 92-1482. Argued November 3, 1993-Decided January 19,
1994*
After courts-martial sentenced petitioners Weiss and Hernandez,
United States Marines, on their pleas of guilty to offenses under
the Uniform Code of Military Justice (UCMJ), their convictions were
affirmed by the Navy-Marine Corps Court of Military Review in
separate appeals. In affirming Weiss' conviction, the Court of
Military Appeals rejected his contentions, first, that military
trial and appellate judges have no authority to convict because the
method of their appointment by the various Judge Advocates General
under the UCMJ violates the Appointments Clause, U. S. Const., Art.
II, § 2, cl. 2, and, second, that such judges' lack of a fixed term
of office violates the Fifth Amendment's Due Process Clause. Based
on this decision, the court summarily affirmed Hernandez'
conviction.
Held:
1. The current method of appointing military judges does not
violate the Appointments Clause, which,
inter alia, requires
the President to appoint "Officers of the United States" with the
advice and consent of the Senate. All of the military judges
involved in these cases were already commissioned military officers
when they were assigned to serve as judges, and thus they had
already been appointed pursuant to the Clause. The position of
military judge is not so different from other positions to which an
officer may be assigned that Congress has by implication required a
second appointment under the Clause before the officer may
discharge judicial duties. The fact that the UCMJ requires military
judges to possess certain qualifications, including membership in a
state or federal bar, does not in itself indicate a congressional
intent to create a separate office, since special qualifications
are needed to fill a host of military positions. Moreover, the
UCMJ's explicit and exclusive treatment of military judges as
officers who must be "detailed" or "assigned" by a superior officer
is quite different from Congress' treatment of a number of
top-level positions in the military hierarchy, such as Chairman of
the Joint Chiefs of Staff, for which a second appointment under the
Clause is expressly required. Nor does the Clause by its own
*Together with
Hernandez v.
United States, also on
certiorari to the same court (see this Court's Rule 12.2).
164
Syllabus
force require a second appointment.
Buckley v.
Valeo, 424 U. S.
1, and subsequent decisions simply do not speak to this
question. The present case is also distinguishable from
Shoemaker v.
United States, 147 U. S. 282. Even
assuming,
arguendo, that the "germaneness" principle set
forth in
Shoemaker, id., at 300-301, applies to the present
situation, no second appointment is necessary because the role of
military judge is "germane" to that of military officer: By
contrast to civilian society, nonjudicial military officers play a
significant part in the administration of military justice; and, by
the same token, the position of military judge is less distinct
from other military positions than the office of full-time civilian
judge is from other offices in civilian society. Pp. 169-176.
2. The lack of a fixed term of office for military judges does
not violate the Due Process Clause. Neither
Mathews v.
Eldridge, 424
U. S. 319, nor
Medina v.
California, 505 U. S. 437, provides a
due process analysis that is appropriate to the military context,
in which judicial deference to Congress' determinations is at its
apogee. Rather, the appropriate standard is that found in
Middendorfv. Henry, 425 U. S. 25, 44: whether
the factors militating in favor of fixed terms are so
extraordinarily weighty as to overcome the balance struck by
Congress. The historical fact that military judges in the
Anglo-American system have never had tenure is a factor that must
be weighed in this calculation. Moreover, the applicable provisions
of the UCMJ, and corresponding regulations, sufficiently insulate
military judges from the effects of command influence. Thus, since
neither history nor current practice supports petitioners'
assumption that a military judge who does not have a fixed term
lacks the independence necessary to ensure impartiality,
petitioners have fallen far short of satisfying the applicable
standard. Pp. 176-181.
36 M. J. 224 and 37 M. J. 252, affirmed.
REHNQUIST, C. J., delivered the opinion of the Court, in which
BLACKMUN, STEVENS, O'CONNOR, KENNEDY, SOUTER, and GINSBURG, JJ.,
joined, and in which SCALIA and THOMAS, JJ., joined as to Parts I
and II-A. SOUTER, J., filed a concurring opinion,
post, p.
182. GINSBURG, J., filed a concurring opinion,
post, p. 194.
SCALIA, J., filed an opinion concurring in part and concurring in
the judgment, in which THOMAS, J., joined,
post, p.195.
Alan B. Morrison argued the cause for petitioners. With him on
the briefs were Philip D. Cave, Dwight H. Sullivan, Eugene R.
Fidell, and Ronald W Meister.
Solicitor General Days argued the cause for the United
States. With him on the brief were
Acting Assistant At-
165
torney General Keeney, Deputy Solicitor General Bryson, Paul
J. Larkin, Jr., Thomas E. Booth, Theodore G. Hess, and
Albert Diaz. t
CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.
We must decide in these cases whether the current method of
appointing military judges violates the Appointments Clause of the
Constitution, and whether the lack of a fixed term of office for
military judges violates the Fifth Amendment's Due Process Clause.
We conclude that neither constitutional provision is violated.
Petitioner Weiss, a United States Marine, pleaded guilty at a
special court-martial to one count of larceny, in violation of
Article 121 of the Uniform Code of Military Justice (UCMJ or Code),
10 U. S. C. § 921. He was sentenced to three months of confinement,
partial forfeiture of pay, and a bad-conduct discharge. Petitioner
Hernandez, also a Marine, pleaded guilty to the possession,
importation, and distribution of cocaine, in violation of Article
112a, UCMJ, 10 U. S. C. § 912a, and conspiracy, in violation of
Article 81, UCMJ, 10 U. S. C. § 881. He was sentenced to 25 years
of confinement, forfeiture of all pay, a reduction in rank, and a
dishonorable discharge. The convening authority reduced Hernandez'
sentence to 20 years of confinement.
The Navy-Marine Corps Court of Military Review, in separate
appeals, affirmed petitioners' convictions. The Court of Military
Appeals granted plenary review in petitioner Weiss' case to address
his contention that the judges in his case had no authority to
convict him because their appointments violated the Appointments
Clause, and their lack of a
tBriefs of
amici curiae urging reversal were filed for
the American Civil Liberties Union et al. by
David B. Isbell,
John Vanderstar, David H. Resnicoff, Steven R. Shapiro, and
Arthur B. Spitzer; and for the United States Air Force
Appellate Defense Division by
Robert I. Smith, Jay L. Cohen,
and
Frank J. Spinner.
166
fixed term of office violated the Due Process Clause. Relying on
its recent decision in
United States v.
Graf, 35 M.
J. 450 (1992), cert. pending, No. 92-1102, in which the court
unanimously held that due process does not require military judges
to have a fixed term of office, the court rejected Weiss' due
process argument. 36 M. J. 224, 235, n. 1 (1992). In a splintered
decision, the court also rejected petitioner's Appointments Clause
challenge.
Two of the five judges concluded that the initial appointment of
military trial and appellate judges as commissioned officers is
sufficient to satisfy the Appointments Clause.
Id., at
225-234 (plurality opinion). A separate appointment before taking
on the duties of a military judge is unnecessary, according to the
plurality, in part because the duties of a judge in the military
justice system are germane to the duties that military officers
already discharge.
Ibid. One judge concurred in the result
only, concluding that the Appointments Clause does not apply to the
military.
Id., at 234-240 (opinion of Crawford, J.). The
other two judges dissented separately. Both stressed the
significant changes brought about by the Military Justice Act of
1968, particularly the duties added to the newly created office of
military judge, and both concluded that the duties of a military
judge are sufficiently distinct from the other duties performed by
military officers to require a second appointment. See
id.,
at 240-256 (Sullivan, C. J., dissenting), and
id., at
256-263 (Wiss, J., dissenting).
The Court of Military Appeals accordingly affirmed petitioner
Weiss' conviction. Based on its decision in
Weiss, the
court, in an unpublished opinion, also affirmed petitioner
Hernandez' conviction. Judgt. order reported at 37 M. J. 252
(1993). Weiss and Hernandez then jointly petitioned for our review,
and we granted certiorari. 508 U. S. 939 (1993).
It will help in understanding the issues involved to review
briefly the contours of the military justice system and the role of
military judges within that system. Pursuant to Ar-
167
ticle I of the Constitution, Congress has established three
tiers of military courts. See U. S. Const., Art. I, §8, cl. 14. At
the trial level are the courts-martial, of which there are three
types: summary, special, and general. The summary court-martial
adjudicates only minor offenses, has jurisdiction only over
servicemembers, and can be conducted only with their consent. It is
presided over by a single commissioned officer who can impose up to
one month of confinement and other relatively modest punishments.
Arts. 16(3), 20, UCMJ, 10 U. S. C. §§ 816(3), 820.
The special court-martial usually consists of a military judge
and three court-martial members,l although the Code allows the
members to sit without a judge, or the accused to elect to be tried
by the judge alone. Art. 16(2), UCMJ, 10 U. S. C. § 816(2). A
special court-martial has jurisdiction over most offenses under the
UCMJ, but it may impose punishment no greater than six months of
confinement, three months of hard labor without confinement, a
bad-conduct discharge, partial and temporary forfeiture of pay, and
a reduction in grade. Art. 19, UCMJ, 10 U. S. C. § 819. The general
court-martial consists of either a military judge and at least five
members, or the judge alone if the accused so requests. Art. 16(1),
UCMJ, 10 U. S. C. §816(1). A general court-martial has jurisdiction
over all offenses under the UCMJ and may impose any lawful
sentence, including death. Art. 18, UCMJ, 10 U. S. C. § 818.
The military judge, a position that has officially existed only
since passage of the Military Justice Act of 1968, acts as
presiding officer at a special or general court-martial. Art. 26,
UCMJ, 10 U. S. C. § 826. The judge rules on all legal questions,
and instructs court-martial members regarding the law and
procedures to be followed. Art. 51, UCMJ,
1 Court-martial members may be officers or enlisted personnel,
depending on the military status of the accused; the members'
responsibilities are analogous to, but somewhat greater than, those
of civilian jurors. See Art. 25, UCMJ, 10 U. S. C. § 825.
168
10 U. S. C. §851. The members decide guilt or innocence and
impose sentence unless, of course, the trial is before the judge
alone.
Ibid. No sentence imposed becomes final until it is
approved by the officer who convened the courtmartial. Art. 60,
UCMJ, 10 U. S. C. § 860.
Military trial judges must be commissioned officers of the Armed
Forces 2 and members of the bar of a federal court or a State's
highest court. Art. 26, UCMJ, 10 U. S. C. § 826. The judges are
selected and certified as qualified by the Judge Advocate General
of their branch of the Armed Forces.3 They do not serve for fixed
terms and may perform judicial duties only when assigned to do so
by the appropriate Judge Advocate General. While serving as judges,
officers may also, with the approval of the Judge Advocate General,
perform other tasks unrelated to their judicial duties.
Ibid. There are approximately 74 judges currently certified
to preside at general and special courtsmartial. An additional 25
are certified to preside only over special courts-martial.
At the next tier are the four Courts of Military Review, one
each for the Army, Air Force, Coast Guard, and NavyMarine Corps.
These courts, which usually sit in threejudge panels, review all
cases in which the sentence imposed is for one or more years of
confinement, involves the dismissal of a commissioned officer, or
involves the punitive discharge of an enlisted service member. Art.
66, UCMJ, 10 U. S. C. § 866. The courts may review
de novo
both factual and legal findings, and they may overturn convictions
and sentences.
Ibid.
2 All commissioned officers are appointed by the President, with
the advice and consent of the Senate. 10 U. S. C. § 531.
3 The Judge Advocate General for each service is the principal
legal officer for that service. See 10 U. S. C. §3037 (Army), §5148
(Navy-Marine Corps), §8037 (Air Force); Art. 1(1), UCMJ, 10 U. S.
C. §801(1) (Coast Guard).
169
Appellate judges may be commissioned officers or civilians, but
each must be a member of a bar of a federal court or of a State's
highest court.
Ibid. The judges are selected and assigned to
serve by the appropriate Judge Advocate General.
Ibid. Like
military trial judges, appellate judges do not serve for a fixed
term. There are presently 31 appellate military judges.
Atop the system is the Court of Military Appeals, which consists
of five civilian judges who are appointed by the President, with
the advice and consent of the Senate, for fixed terms of 15 years.
Arts. 67, 142, UCMJ, 10 U. S. C. §§ 867, 942 (1988 ed., Supp. IV).
The appointment and tenure of these judges are not at issue
here.
I
The Appointments Clause of Article II of the Constitution
reads as follows:
"[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.
We begin our analysis on common ground. The parties do not
dispute that military judges, because of the authority and
responsibilities they possess, act as "Officers" of the United
States. See
Freytag v.
Commissioner, 501 U. S. 868 (1991)
(concluding special trial judges of Tax Court are officers);
Buckley v.
Valeo, 424 U. S. 1, 126 (1976)
("[A]ny appointee exercising significant authority pursuant to the
laws of the United States is an 'Officer of the United States,' and
must,
170
therefore, be appointed in the manner prescribed by [the
Appointments Clause]"). The parties are also in agreement, and
rightly so, that the Appointments Clause applies to military
officers. As we said in
Buck ley, "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 (emphasis in original).
It follows that those serving as military judges must be
appointed pursuant to the Appointments Clause. All of the military
judges involved in these cases, however, were already commissioned
officers when they were assigned to serve as judges,4 and thus they
had already been appointed by the President with the advice and
consent of the Senate.5 The question we must answer, therefore, is
whether these officers needed another appointment pursuant to the
Appointments Clause before assuming their judicial duties.
Petitioners contend that the position of military judge is so
different from other positions to which an officer may be assigned
that either Congress has, by implication, required a second
appointment, or the Appointments Clause, by constitutional command,
requires one. We reject both of these arguments.
Petitioners' argument that Congress by implication has required
a separate appointment is based in part on the fact that military
judges must possess certain qualifications, in-
4 The constitutionality of the provision allowing civilians to
be assigned to Courts of Military Review, without being appointed
pursuant to the Appointments Clause, obviously presents a quite
different question. See Art. 66(a), UCMJ, 10 U. S. C. § 866(a). It
is not at issue here.
5 Although the record before us does not contain complete
information regarding the military careers of the judges involved
in these cases, it is quite possible that they had been appointed
more than once before being detailed or assigned to serve as
military judges. This is because 10 U. S. C. § 624 requires a new
appointment by the President, with the advice and consent of the
Senate, each time a commissioned officer is promoted to a higher
grade--e.
g., if a captain is promoted to major, he must
receive another appointment.
171
cluding membership in a state or federal bar. But such special
qualifications in themselves do not, we believe, indicate a
congressional intent to create a separate office. Special
qualifications are needed to perform a host of military duties; yet
no one could seriously contend that the positions of military
lawyer or pilot, for example, are distinct offices because officers
performing those duties must possess additional qualifications.
Petitioners' argument also ignores the fact that Congress has
not hesitated to expressly require the separate appointment of
military officers to certain positions. An additional appointment
by the President and confirmation by the Senate is required for a
number of top-level positions in the military hierarchy, including:
the Chairman and Vice Chairman of the Joint Chiefs of Staff, 10 U.
S. C. §§ 152, 154; the Chief and Vice Chief of Naval Operations,
§§5033, 5035; the Commandant and Assistant Commandant of the Marine
Corps, §§ 5043, 5044; the Surgeons General of the Army, Navy, and
Air Force, §§3036, 5137,8036; the Chief of Naval Personnel, § 5141;
the Chief of Chaplains, § 5142; and the Judge Advocates General of
the Army, Navy, and Air Force, §§3037, 5148,8037.
With respect to other positions, however, Congress has spoken
quite differently. The Deputy and Assistant Chiefs of Staff for the
Army, for example, are "general officers
detailed to these
positions." § 3035 (emphasis added). The Chief of Staff of the
Marine Corps and his assistants are "detailed" to those positions
by the Secretary of the Navy. § 5045. Commissioned officers "may be
detailed for duty" with the American Red Cross by the appropriate
military Secretary. § 711a. Secretaries of military departments
"may assign or detail members of the armed forces" to be inspectors
of buildings owned or occupied abroad by the United States. § 713.
The Secretary of the Navy "may assign" enlisted members of the Navy
to serve as custodians of foreign embassies and consulates. § 5983.
And the Pres-
172
ident may "detail" officers of the Navy to serve as
superintendents or instructors at nautical schools. This
contrasting treatment indicates rather clearly that 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
officer.
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. Section 826(a) provides that a military judge shall be
"detail[edJ" to each general court-martial, and may be "detail[edJ"
to any special court-martial. The military judge of a general
court-martial must be designated by the Judge Advocate General, or
his designee, § 826(c), but the appropriate Service Secretary
prescribes by regulation the manner in which military judges are
detailed for special courts-martial, and what persons are
authorized to so detail them. Section 866, in turn, provides that
military appellate judges shall be "assigned to a Court of Military
Review." The appropriate Judge Advocate General designates a chief
judge for each Court of Military Review, and the chief judge
determines "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 the senior judge on each
panel."
Ibid. (emphasis added).
Congress' treatment of military judges is thus quite different
from its treatment of those offices, such as Chairman of the Joint
Chiefs of Staff, for which it wished to require a second
appointment before already-commissioned officers could occupy them.
This difference negates any permissible inference that Congress
intended that military judges should receive a second appointment,
but in a fit of absentmindedness forgot to say so.
Petitioners' alternative contention is that even if Congress did
not intend to require a separate appointment for a mili-
173
tary judge, the Appointments Clause requires such an appointment
by its own force. They urge upon us in support of this contention
our decisions in
Buckley v.
Valeo, 424 U. S. 1 (1976),
Freytag v.
Commissioner, 501 U. S. 868 (1991), and
Morrison v.
Olson, 487 U. S. 654 (1988).
These decisions undoubtedly establish the analytical framework upon
which to base the conclusion that a military judge is an "officer
of the United States"-a proposition to which both parties agree.
But the decisions simply do not speak to the issue of whether, and
when, the Appointments Clause may require a second appointment.
The lead and dissenting opinions in the Court of Military
Appeals devoted considerable attention to, and the parties before
us have extensively briefed, the significance of our opinion in
Shoemaker v.
United States, 147 U. S. 282 (1893).
There Congress had enacted a statute establishing a commission to
supervise the development of Rock Creek Park in the District of
Columbia. Three of the members were appointed by the President with
the advice and consent of the Senate, but the remaining two members
were the Chief of Engineers of the Army and the Engineer
Commissioner of the District of Columbia. Both of the latter were
already commissioned as military officers, but it was contended
that the Appointments Clause required that they again be appointed
to their new positions. The Court rejected the argument,
saying:
"[T]he argument is, that while Congress may create an office, it
cannot appoint the officer; that the officer can only be appointed
by the President with the approval of the Senate .... As, however,
the two persons whose eligibility is questioned were at the time of
the passage of the act ... 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
174
that they should be again appointed by the President and
confirmed by the Senate. 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."
Id., at 300-301.
The present cases before us differ from
Shoemaker in
several respects, at least one of which is significant for purposes
of Appointments Clause analysis. In
Shoemaker, Congress
assigned new duties to two existing offices, each of which was held
by a single officer. This no doubt prompted the Court's description
of the argument as being that "while Congress may create an office,
it cannot appoint the officer." By looking to whether the
additional duties assigned to the offices were "germane," the Court
sought to ensure that Congress was not circumventing the
Appointments Clause by unilaterally appointing an incumbent to a
new and distinct office. But here the statute authorized an
indefinite number of military judges, who could be designated from
among hundreds or perhaps thousands of qualified commissioned
officers. In short, there is no ground for suspicion here that
Congress was trying to both create an office and also select a
particular individual to fill the office. Nor has Congress effected
a "diffusion of the appointment power," about which this Court
expressed concern in
Freytag, supra, at 878.
Even if we assume,
arguendo, that the principle of
"germaneness" applies to the present situation, we think that
principle is satisfied here. By enacting the Uniform Code of
Military Justice in 1950, and through subsequent statutory changes,
Congress has gradually changed the system of military justice so
that it has come to more closely resemble the civilian system. But
the military in important respects remains a "specialized society
separate from civilian society,"
Parker v.
Levy,
417 U. S. 733,
743 (1974). Although military
175
judges obviously perform certain unique and important functions,
all military officers, consistent with a long tradition, play a
role in the operation of the military justice system.
Commissioned officers, for example, have the power and duty to
"quell quarrels, frays, and disorders among persons subject to [the
UCMJ] and to apprehend persons subject to [the UCMJ] who take part
therein." Art. 7(c), UCMJ, 10 U. s. C. § 807(c). Commanding
officers can impose nonjudicial disciplinary punishment for minor
offenses, without the intervention of a court-martial, which
includes correctional custody, forfeiture of pay, reduction in
grade, extra duties, restriction to certain limits, and detention
of pay. Art. 15, UCMJ, 10 U. s. C. § 815. A commissioned officer
may serve as a summary court-martial or a member of a special or
general court-martial. When acting as a summary courtmartial or as
the president of a special court-martial without a military judge,
this officer conducts the proceedings and resolves all issues that
would be handled by the military judge, except for challenge for
cause against the president of a special court-martial without a
military judge. Art. 51, UCMJ, 10 U. S. C. §851. Convening
authorities, finally, have the authority to review and modify the
sentence imposed by courts-martial. Art. 60, UCMJ, 10 U. S. C.
§860. Thus, by contrast to civilian society, nonjudicial military
officers play a significant part in the administration of military
justice.
By the same token, the position of military judge is less
distinct from other military positions than the office of fulltime
civilian judge is from other offices in civilian society. As the
lead opinion in the Court of Military Appeals noted, military
judges do not have any "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." 36 M. J., at
228. Military
176
appellate judges similarly exercise judicial functions only when
they are "assigned" to a Court of Military Review. Neither military
trial nor appellate judges, moreover, have a fixed term of office.
Commissioned officers are assigned or detailed to the position of
military judge by a Judge Advocate General for a period of time he
deems necessary or appropriate, and then they may be reassigned to
perform other duties. Even while serving as military trial judges,
officers may perform, with the permission of the Judge Advocate
General, duties unrelated to their judicial responsibilities. Art.
26(c), UCMJ, 10 U. S. C. § 826(c). Whatever might be the case in
civilian society, we think that the role of military judge is
"germane" to that of military officer.
In sum, we believe that the current scheme satisfies the
Appointments Clause. It is quite clear that Congress has not
required a separate appointment to the position of military judge,
and we believe it equally clear that the Appointments Clause by its
own force does not require a second appointment before military
officers may discharge the duties of such a judge.
II
Petitioners next contend that the Due Process Clause requires
that military judges must have a fixed term of office. Petitioners
recognize, as they must, that the Constitution does not require
life tenure for Article I judges, including military judges. See
United States ex rel. Toth v.
Quarles, 350 U. S. 11, 17 (1955).
Nor does the trial by an Article I judge lacking life tenure
violate an accused's due process rights. See
Palmore v.
United States, 411 U. S. 389, 410
(1973). Petitioners thus confine their argument to the assertion
that due process requires military judges to serve for some fixed
length of time-however short.
Congress, of course, is subject to the requirements of the Due
Process Clause when legislating in the area of military affairs,
and that Clause provides some measure of protection to defendants
in military proceedings. See
Rostker v.
Gold-
177
berg, 453 U.
S. 57, 67 (1981);
Middendorf v.
Henry, 425 U. S. 25, 43 (1976).
But in determining what process is due, courts "must give
particular deference to the determination of Congress, made under
its authority to regulate the land and naval forces, U. S. Const.,
Art. I, § 8."
Ibid. Petitioners urge that we apply the due
process analysis established in
Mathews v.
Eldridge,
424 U. S. 319,
334-335 (1976). The Government contends that
Medina v.
California, 505 U. S. 437 (1992),
supplies the appropriate analytical framework.
Neither
Mathews nor
Medina, however, arose in the
military context, and we have recognized in past cases that "the
tests and limitations [of due process] may differ because of the
military context."
Rostker, supra, at 67. The difference
arises from the fact that the Constitution contemplates that
Congress has "plenary control over rights, duties, and
responsibilities in the framework of the Military Establishment,
including regulations, procedures, and remedies related to military
discipline."
Chappell v.
Wallace, 462 U. S. 296, 301
(1983). Judicial deference thus "is at its apogee" when reviewing
congressional decisionmaking in this area.
Rostker, supra,
at 70. Our deference extends to rules relating to the rights of
service members: "Congress has primary responsibility for the
delicate task of balancing the rights of servicemen against the
needs of the military .... [WJe have adhered to this principle of
deference in a variety of contexts where, as here, the
constitutional rights of servicemen were implicated."
Solorio v.
United States, 483 U. S. 435, 447448
(1987).
We therefore believe that the appropriate standard to apply in
these cases is found in
Middendorf, supra, where we also
faced a due process challenge to a facet of the military justice
system. In determining whether the Due Process Clause requires that
servicemembers appearing before a summary court-martial be assisted
by counsel, we asked "whether the factors militating in favor of
counsel at summary courts-martial are so extraordinarily weighty as
to
178
overcome the balance struck by Congress." 425 U. S., at 44. We
ask the same question here with respect to fixed terms of office
for military judges.
It is elementary that "a fair trial in a fair tribunal is a
basic requirement of due process."
In re Murchison, 349 U.
S. 133, 136 (1955). A necessary component of a fair trial is an
impartial judge. See
ibid.; Tumey v.
Ohio, 273 U. S. 510, 532
(1927). Petitioners, however, do not allege that the judges in
their cases were or appeared to be biased. Instead, they ask us to
assume that a military judge who does not have a fixed term of
office lacks the independence necessary to ensure impartiality. N
either history nor current practice, however, supports such an
assumption.
A
Although a fixed term of office is a traditional component of
the Anglo-American civilian judicial system, it has never been a
part of the military justice tradition. The early English military
tribunals, which served as the model for our own military justice
system, were historically convened and presided over by a military
general. No tenured military judge presided. See Schlueter, The
Court-Martial: An Historical Survey, 87 Mil. L. Rev. 129, 135,
136-144 (1980).
In the United States, although Congress has on numerous
occasions during our history revised the procedures governing
courts-martial, it has never required tenured judges to preside
over courts-martial or to hear immediate appeals therefrom.6 See W.
Winthrop, Military Law and Precedents
6 Congress did create a nine-member commission in 1983 to
examine,
inter alia, the possibility of providing tenure for
military judges. Military Justice Act of 1983, Pub. L. 98-209, §
9(b), 97 Stat. 1393, 1404-1405 (1983). The commission published its
report a year later, in which it recommended against providing a
guaranteed term of office for military trial and appellate judges.
See D. Schlueter, Military Criminal Justice: Practice and Procedure
33-34, and nn. 86, 87 (3d ed. 1992) (listing members of commission
and describing report). Congress has taken no further action on the
subject.
179
21-24, 953-1000 (2d ed. 1920) (describing and reprinting the
Articles of War, which governed court-martial proceedings during
the 17th and 18th centuries); F. Gilligan & F. Lederer, 1
Court-Martial Procedure 11-24 (1991) (describing 20thcentury
revisions to Articles of War, and enactment of and amendments to
UCMJ). Indeed, as already mentioned, Congress did not even create
the position of military judge until 1968. Courts-martial thus have
been conducted in this country for over 200 years without the
presence of a tenured judge, and for over 150 years without the
presence of any judge at all.
B
As the Court of Military Appeals observed in
Graf, 35 M.
J., at 462, the historical maintenance of the military justice
system without tenured judges "suggests the absence of a
fundamental fairness problem." Petitioners in effect urge us to
disregard this history, but we are unwilling to do so. We do not
mean to say that any practice in military courts which might have
been accepted at some time in history automatically satisfies due
process of law today. But as Congress has taken affirmative steps
to make the system of military justice more like the American
system of civilian justice, it has nonetheless chosen not to give
tenure to military judges. The question under the Due Process
Clause is whether the existence of such tenure is such an
extraordinarily weighty factor as to overcome the balance struck by
Congress. And the historical fact that military judges have never
had tenure is a factor that must be weighed in this
calculation.
A fixed term of office, as petitioners recognize, is not an end
in itself. It is a means of promoting judicial independence, which
in turn helps to ensure judicial impartiality. We believe the
applicable provisions of the UCMJ, and corresponding regulations,
by insulating military judges from the effects of command
influence, sufficiently preserve judicial impartiality so as to
satisfy the Due Process Clause.
180
Article 26 places military judges under the authority of the
appropriate Judge Advocate General rather than under the authority
of the convening officer. 10 U. s. C. § 826. Rather than
exacerbating the alleged problems relating to judicial
independence, as petitioners suggest, we believe this structure
helps protect that independence. Like all military officers,
Congress made military judges accountable to a superior officer for
the performance of their duties. By placing judges under the
control of Judge Advocates General, who have no interest in the
outcome of a particular courtmartial, we believe Congress has
achieved an acceptable balance between independence and
accountability.
Article 26 also protects against unlawful command influence by
precluding a convening authority or any commanding officer from
preparing or reviewing any report concerning the effectiveness,
fitness, or efficiency of a military judge relating to his judicial
duties.
Ibid. Article 37 prohibits convening authorities
from censuring, reprimanding, or admonishing a military judge "with
respect to the findings or sentence adjudged by the court, or with
respect to any other exercise of its or his functions in the
conduct of the proceeding." 10 U. S. C. §837. Any officer who
"knowingly and intentionally fails to enforce or comply" with
Article 37 "shall be punished as a court-martial may direct." Art.
98, UCMJ, 10 U. S. C. §898. The Code also provides that a military
judge, either trial or appellate, must refrain from adjudicating a
case in which he has previously participated, Arts. 26(c), 66(h),
UCMJ, 10 U. S. C. §§ 826(c), 866(h), and the Code allows the
accused to challenge both a courtmartial member and a court-martial
judge for cause, Art. 41, UCMJ, 10 U. S. C. § 841. The Code also
allows the accused to learn the identity of the military judge
before choosing whether to be tried by the judge alone, or by the
judge and court-martial members. Art. 16, UCMJ, 10 U. S. C. §
816.
181
The entire system, finally, is overseen by the Court of Military
Appeals, which is composed entirely of civilian judges who serve
for fixed terms of 15 years. That court has demonstrated its
vigilance in checking any attempts to exert improper influence over
military judges. In
United States v.
Mabe, 33 M. J.
200 (1991), for example, the court considered whether the Judge
Advocate General of the Navy, or his designee, could rate a
military judge based on the appropriateness of the judge's
sentences at courts-martial. As the court later described: "We held
[in
Mabe] that the existence of such a power in these
military officers was inconsistent with Congress' establishment of
the military 'judge' in Article 26 and its exercise violated
Article 37 of the Code."
Graf, 35 M. J., at 465. And in
Graf, the court held that it would also violate Articles 26
and 37 if a Judge Advocate General decertified or transferred a
military judge based on the General's opinion of the
appropriateness of the judge's findings and sentences.
Ibid.7
The absence of tenure as a historical matter in the system of
military justice, and the number of safeguards in place to ensure
impartiality, lead us to reject petitioners' due process challenge.
Petitioners have fallen far short of demonstrating that the factors
favoring fixed terms of office are so extraordinarily weighty as to
overcome the balance achieved by Congress. See
Middendorf,
425 U. S., at 44.
For the reasons stated, we reject the petitioners' Appointments
Clause and Due Process Clause attacks on the judges who convicted
them and those who heard their appeals. The judgments of the Court
of Military Appeals are accordingly
Affirmed.
7This added limitation on the power of the Judge Advocates
General to remove military judges refutes petitioners' contention
that Judge Advocates General have unfettered discretion both to
appoint and remove military judges.
182
JUSTICE SOUTER, concurring.
I join the Court's opinion on the understanding that military
judges, like ordinary commissioned military officers, are "inferior
officers" within the meaning of the Appointments Clause. Because
these cases would raise a far more difficult constitutional
question than the one the Court today decides if, as petitioners
argue, military judges were "principal officers," I write
separately to explain why I conclude that they are not.
I
Under the Appointments Clause, the President "shall nominate,
and by and with the Advice and Consent of the Senate, shall
appoint" all "Officers of the United States" (or "principal
officers," as we have called them, see
Morrison v.
Olson, 487 U.
S. 654, 670 (1988);
Buckley v.
Valeo, 424 U. S. 1, 132 (1976)).
Art. II, § 2. "[B]ut 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."
Ibid.
Military officers performing ordinary military duties are
inferior officers, and none of the parties to this case contends
otherwise. Though military officers are appointed in the manner of
principal officers, no analysis permits the conclusion that each of
the more than 240,000 active military officers (see Department of
Defense, Military Manpower Statistics 18 (Mar. 31, 1993) (Table 9))
is a principal officer. See
Morrison v.
Olson, supra,
at 670-673 (outlining criteria for determining Appointments Clause
status of a federal officer). Congress has simply declined to adopt
the less onerous appointment process available for inferior
officers.
The Uniform Code of Military Justice authorizes the Judge
Advocate General of the relevant branch of the Armed Forces to
select as a military judge any commissioned military officer who
meets certain qualifications going to legal knowledge and
experience. See
ante, at 168. If, as peti-
183
tioners argue, military judges were principal officers, this
method of choosing them from among the ranks of inferior officers
would raise two constitutional questions. As to military officers
who received their commissions before Congress created the post of
military judge in 1968, the question would be whether the duties of
a principal officer may be assigned to an existing multiperson
inferior office, so that some of the office's occupants, at the
choice of a lower level Executive Branch official, will serve in
new principal-officer positions. And as to officers who received
their commissions after 1968 and whose appointments therefore
included the potential for service as military judge, the question
would be whether a multiperson office may be created in which
individuals will occupy, again at the choice of a lower level
Executive Branch official, either inferior-officer or
principal-officer positions.
The Appointments Clause requires each question to be answered in
the negative. "The Constitution, for purposes of appointment, very
clearly divides all its officers into two classes,"
United
States v.
Germaine, 99 U. S. 508, 509 (1879),
and though Congress has broad power to create federal offices and
assign duties to them, see
Myers v.
United States,
272 U. S. 52,
128-129 (1926), it may not, even with the President's assent,
disregard the Constitution's distinction between principal and
inferior officers. It may not, in particular, dispense with the
precise process of appointment required for principal officers,
whether directly or "by indirection."
Springer v.
Philippine Islands, 277 U. S. 189,202 (1928).
Accordingly, I find it necessary to consider the status of military
judges under the Appointments Clause but, first, to explain why the
Appointments Clause's origins and purposes support my reading of
its text.
A
In framing an Appointments Clause that would ensure "a judicious
choice" of individuals to fill the important offices
184
of the Union, The Federalist No. 76, p. 510 (J. Cooke ed. 1961)
(A. Hamilton), the delegates to the Philadelphia Convention could
draw on their experiences with two flawed methods of appointment.
They were aware of the prerevolutionary "'manipulation of official
appointments'" by the Crown and its colonial governors, "one of the
American revolutionary generation's greatest grievances against
executive power."
Freytag v.
Commissioner, 501 U. S. 868, 883 (1991)
(quoting G. Wood, The Creation of The American Republic 1776-1787,
p. 79 (1969)). They were also aware of the postrevolutionary abuse
by several state legislatures which, in reaction, had been given
the sole power of appointment; by the time of the Convention the
lodging of exclusive appointing authority in state legislatures
"'had become the principal source of division and faction in the
states.'"
Freytag, supra, at 904, and n. 4 (SCALIA, J.,
concurring in part and concurring in judgment) (quoting Wood,
supra, at 407).
With error and overcorrection behind them, the Framers came to
appreciate the necessity of separating at least to some degree the
power to create federal offices (a power they assumed would belong
to Congress) from the power to fill them, and they came to see good
reason for placing the initiative to appoint the most important
federal officers in the single-person presidency, not the
multimember Legislature. But the Framers also recognized that
lodging the appointment power in the President alone would pose
much the same risk as lodging it exclusively in Congress: the risk
of "a[n] incautious or corrupt nomination." 2 M. Farrand, Records
of the Federal Convention of 1787, p. 43 (rev. ed. 1937) (J.
Madison) (hereinafter Farrand). Just as the Appointments Clause's
grant to the President of the power to nominate principal officers
would avert legislative despotism, its requirement of Senate
confirmation would serve as an "excellent check" against
Presidential missteps or wrongdoing.
185
The Federalist No. 76,
supra, at 513.1 Accord, 3 J.
Story, Commentaries on the Constitution of the United States 374377
(1833) (The President will be more likely than "a large
[legislative] body" to make appointments whose "qualifications are
unquestioned, and unquestionable"; but because
1 Hamilton's Federalist Papers writings contain the most
thorough contemporary justification for the method of appointing
principal officers that the Framers adopted. See The Federalist
Nos. 76 and 77, pp. 509-521. Hamilton was clear that the President
ought initially to select principal officers and that the President
was therefore rightly given the sole power to nominate:
"The sole and undivided responsibility of one man will naturally
beget a livelier sense of duty and a more exact regard to
reputation. He will on this account feel himself under stronger
obligations, and more interested to investigate with care the
qualities requisite to the stations to be filled, and to prefer
with impartiality the persons who may have the fairest pretentions
to them."
Id., No. 76, at 510-511.
Hamilton also left no doubt that the role of ultimate approval
assigned to the Senate was vital:
"To what purpose then require the co-operation of the Senate? I
answer, that the necessity of their concurrence would have a
powerful, though in general a silent operation. It would be an
excellent check upon a spirit of favoritism in the President, and
would tend greatly to prevent the appointment of unfit characters
from State prejudice, from family connection, from personal
attachment, or from a view to popularity."
Id., at 513.
The same notes were struck in the Constitutional Convention,
where Hamilton was actually the first to suggest that both the
President and the Senate be involved in the appointments process.
See 1 Farrand 128; J. Harris, The Advice and Consent of the Senate
21 (1953). For example, Gouvernor Morris, who was among those
initially favoring vesting exclusive appointment power in the
President, see 2 Farrand 82, 389, ultimately defended the
assignment of shared authority for appointment on the ground that
"as the President was to nominate, there would be responsibility,
and as the Senate was to concur, there would be security."
Id., at 539. See also 4 J. Elliot, Debates on the Federal
Constitution 134 (1891) (James Iredell in North Carolina ratifying
convention) ("[T]he Senate has no other influence but a restraint
on improper appointments .... [The Appointments Clause provides] a
double security"). See generally Harris,
supra, at 17-26
(summarizing debates in the Constitutional Convention and in the
ratifying conventions).
186
exclusive Presidential appointment power "may be abused," the
Appointments Clause provides the "salutary check" of Senate
confirmation, and "[t]he consciousness of this check will make the
president more circumspect, and deliberate in his nominations for
office").
In the Framers' thinking, the process on which they settled for
selecting principal officers would ensure "judicious" appointments
not only by empowering the President and the Senate to check each
other, but also by allowing the public to hold the President and
Senators accountable for injudicious appointments. "[T]he
circumstances attending an appointment [of a principal officer],
from the mode of conducting it, would naturally become matters of
notoriety," Hamilton wrote; "and the public would be at no loss to
determine what part had been performed by the different actors."
The Federalist No. 77, at 517. As a result,
"[t]he 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."
Ibid.
The strategy by which the Framers sought to ensure judicious
appointments of principal officers is, then, familiar enough: the
Appointments Clause separates the Government's power but also
provides for a degree of intermingling, all to ensure
accountability and "preclude the exercise of arbitrary power."
Myers v.
United States, 272 U. S., at 293 (Brandeis,
J., dissenting).
The strict requirements of nomination by the President and
confirmation by the Senate were not carried over to the appointment
of inferior officers. A degree of flexibility was
187
thought appropriate in providing for the appointment of officers
who, by definition, would have only inferior governmental
authority. See 2 Farrand 627. But although they allowed an
alternative appointment method for inferior officers, the Framers
still structured the alternative to ensure accountability and check
governmental power: any decision to dispense with Presidential
appointment and Senate confirmation is Congress's to make, not the
President's, but Congress's authority is limited to assigning the
appointing power to the highly accountable President or the heads
of federal departments, or, where appropriate, to the courts of
law.
B
If the structural benefits the Appointments Clause was designed
to provide are to be preserved, the Clause must be read to forbid
the two ways in which the benefits can be defeated. First, no
branch may aggrandize its own appointment power at the expense of
another. See
Buckley v.
Valeo, 424 U. S., at 128-129.
Congress, for example, may not unilaterally fill any federal
office; and the President may neither select a principal officer
without the Senate's concurrence, nor fill any office without
Congress's authorization.2
2 While it is true that "the debates of the Constitutional
Convention, and the Federalist Papers, are replete with expressions
of fear that the Legislative Branch of the National Government will
aggrandize itself at the expense of the other two branches,"
Buckley v.
Valeo, 424 U. S. 1, 129 (1976),
the Framers also expressed concern over the threat of expanding
Presidential power, including specifically in the context of
appointments. See,
e. g., 1 Farrand 101 (G. Mason);
id., at 103 (B. Franklin). Indeed, the Framers added
language to both halves of the Appointments Clause specifically to
address the concern that the President might attempt unilaterally
to create and fill federal offices. See C. Warren, The Making of
the Constitution 642 (1937) (discussing references in the
Appointments Clause to principal offices "'established by Law,'"
and to the power of appointing inferior officers which" 'Congress
may by law'" vest as specified). No doubt, Article 1's assignment
to Congress of the power to make laws makes the Legislative Branch
the most likely candidate for encroaching on the power of the
others. But Article II gives the President means
188
Second, no branch may abdicate its Appointments Clause duties.
Congress, for example, may not authorize the appointment of a
principal officer without Senate confirmation; nor may the
President allow Congress or a lower level Executive Branch official
to select a principal officer.3
To be sure, "power is of an encroaching nature" and more likely
to be usurped than surrendered. The Federalist No. 48, at 332 (J.
Madison). For this reason, our Appointments Clause cases (like our
separation-of-powers cases generally) have typically addressed
allegations of aggrandizement rather than abdication. See,
e.
g., Buckley v.
Valeo, supra; Springer v.
Philippine
Islands, 277 U.
S. 189 (1928);
Shoemaker v.
United States,
147 U. S. 282
(1893).4 Nevertheless,
of his own to encroach, and indeed we have been forced to
invalidate Presidential attempts to usurp legislative authority, as
the
Buckley Court recognized: "The Court has held that the
President may not execute and exercise legislative authority
belonging only to Congress."
Buckley, supra, at 123 (citing
Youngstown Sheet &
Tube Co. v.
Sawyer,
343 U. S. 579
(1952)).
3 In
Freytag v.
Commissioner, 501 U. S. 868, 884
(1991), we observed that in the Appointments Clause the Framers
limited the "diffusion" of the appointment power in order to
"ensure that those who wielded it were accountable to political
force and the will of the people."
Id., at 884. Depending on
the means used to circumvent the Appointments Clause, "diffusion"
can implicate either the anti-aggrandizement or the antiabdication
principle. If the full Congress creates a principal office and
fills it, for example, it has adopted a more diffuse and less
accountable mode of appointment than the Constitution requires; and
it has violated the bar on aggrandizement. Cf. The Federalist No.
77, at 519 (explaining that the House of Representatives is too
numerous a body to be involved in appointments). And if Congress,
with the President's approval, authorizes a lower level Executive
Branch official to appoint a principal officer, it again has
adopted a more diffuse and less accountable mode of appointment
than the Constitution requires; this time it has violated the bar
on abdication.
4 The theme of abdication has not been entirely absent, however.
In
Morrison v.
Olson, 487 U. S. 654 (1988), the
Court considered a challenge to a law authorizing appointment of an
independent counsel by a threejudge panel and without Senate
confirmation. Though the law was
189
"[t]he structural interests protected by the Appointments Clause
are not those of anyone branch of Government but of the entire
Republic," and "[n]either Congress nor the Executive can agree to
waive thee] structural protection[s]" the Clause provides.
Freytag, 501 U. S., at 880. The Appointments Clause forbids
both aggrandizement and abdication.5
C
If military judges were principal officers, the method for
selecting them, which is prescribed in legislation adopted by
adopted by Congress and signed by the President, the Court said
that the law would nevertheless violate the Appointments Clause if
the independent counsel were a principal officer. See
id.,
at 671. If the independent counsel were such an officer, the law
would represent an impermissible abdication by both Congress and
the President of their Appointments Clause duties.
5 Cf.
J. W Hampton, Jr., &
Co. v.
United States, 276 U. S. 394, 406 (1928)
(Taft, C. J.) ("[I]t is a breach of the National fundamental law if
Congress gives up its legislative power and transfers it to the
President, or to the Judicial branch, or if by law it attempts to
invest itself or its members with either executive power or
judicial power"). As Chief Justice Taft's remark suggests, the
ready analogy to the Appointments Clause's antiabdication principle
is what has been called "nondelegation doctrine." The Court has
unanimously invalidated legislation in which Congress delegated "to
others the essential legislative functions with which it is ...
vested,"
A. L. A. Schechter Poultry Corp. v.
United
States, 295 U. S.
495, 529 (1935);
id., at 553-554 (Cardozo, J.,
concurring), and it has read other statutes narrowly to avoid
annulling them as excessive abdications of constitutional
responsibility, see
Industrial Union Dept., AFL-CIO v.
American Petroleum Institute, 448 U. S. 607, 646 (1980)
(plurality opinion);
National Cable Television Assn., Inc.
v.
United States, 415 U. S. 336, 342
(1974). See also
Industrial Union Dept., supra, at 672-676
(REHNQUIST, J., concurring in judgment) (discussing limits on the
delegation of Congress's legislative power). Nondelegation doctrine
has been criticized. But see J. Ely, Democracy and Distrust 131-134
(1980) (distinguishing nondelegation doctrine from less defensible
theories invoked to strike down New Deal legislation). Barring
Appointments Clause abdication strikes me as plainly less
problematic, however, because the text of the Constitution
describes with precision the nature of the branches' appointments
powers.
190
Congress and signed by the President, would amount to an
impermissible abdication by both political branches of their
Appointments Clause duties. Military officers commissioned before
1968, though they received Presidential appointment and Senate
confirmation, were chosen to fill inferior offices that did not
carry the possibility of service as a military judge. If military
judges were principal officers, the Military Justice Act of 1968
would have authorized the creation and filling of principal offices
without any Presidential nomination or Senate confirmation to that
principal office, or indeed to any principal office at all. Such a
process would preclude the President, the Senate, and the public
from playing the parts assigned to them, parts the Framers thought
essential to preventing the exercise of arbitrary power and
encouraging judicious appointments of principal officers.
The office to which military officers have been appointed since
enactment of the 1968 Act includes the potential for service as a
military judge. But that would be a sufficient response to
petitioners' Appointments Clause objection only if military judges
were inferior officers. Otherwise, the method for selecting
military judges even from the ranks of post-1968 commissioned
officers would reflect an abdication of the political branches'
Appointments Clause duties with respect to principal officers.
Admittedly, the degree of abdication would not be as extreme as in
the prior setting, for the President and Senate are theoretically
aware that each officer nominated and confirmed may serve as a
military judge. Judging by the purposes of the Appointments Clause,
however, this difference is immaterial. It cannot seriously be
contended that in confirming the literally tens of thousands of
military officers each year the Senate would, or even could,
adequately focus on the remote possibility that a small number of
them would eventually serve as military
191
judges.6 And the method for appointing military judges allows
the President no formal role at all in the selection of the
particular individuals who will actually serve in those positions.
This process likewise deprives the public of any realistic ability
to hold easily identifiable elected officials to account for bad
appointments. Thus while, as the Court explains, see
ante,
at 171-172, Congress has certainly attempted to create a single
military office that includes the potential of service as a
military judge, I believe the Appointments Clause forbids the
creation of such a single office that combines inferior- and
principal-officer roles, thereby disregarding the special treatment
the Constitution requires for the appointment of principal
officers. For these reasons, if military judges were principal
officers, the current scheme for appointing them would raise a
serious Appointments Clause problem indeed, as the Solicitor
General conceded at oral argument. See Tr. of Oral Arg. 30-31.
D
The argument that military judges are principal officers is far
from frivolous. It proceeds by analogizing military judges to
Article III circuit and district judges, who are principal
officers,7 and to Article I Tax Court judges, who
Frey-
6Writing in 1953, one observer pointed out that if each of the
49,956 nominations for military office sent to the Senate in 1949
"were considered for one minute ... , it would require 832 hours to
pass upon the nominations [or] an average of more than 5 hours each
day that the Senate is in session." Harris, Advice and Consent of
the Senate, at 331. This observer concluded that "Senate
confirmation of military and naval officers has become for all
practical purposes an empty formality."
Ibid.
7 It is true that the Court has never so held and that the
Constitution refers to the lower federal courts as "inferior
Courts." Art. III, § 1. But from the early days of the Republic
"[t]he practical construction has uniformly been that [judges of
the inferior courts] are not ... inferior officers," 3 J. Story,
Commentaries on the Constitution 456, n. 1 (1833), and I doubt many
today would disagree. In
Freytag, indeed, the Court as-
192
tag suggests are principal officers too (since,
Freytag held, Tax Court judges may appoint inferior
officers). In terms of the factors identified in
Morrison v.
Olson as significant to determining the Appointments Clause
status of a federal officer, the office of military judge 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." 487 U. S., 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, within the scope of the jurisdiction granted by the
special three-judge appointing court. See
ibid. Over the
cases before them, military judges would seem to be no more
"limited [in] duties" than lower Article III or Tax Court judges.
Id., at 671. And though military judges are removable, the
same is true of "most (if not all) principal officers in the
Executive Branch."
Id., at 716 (SCALIA, J., dissenting)
(emphasis deleted).
The argument that military judges are principal officers,
however, is not without response. Since Article I military judges
are much more akin to Article I Tax Court judges than lower Article
III judges, the analogy to Tax Court judges proves nothing if Tax
Court judges are inferior officers, which they may be. The history
that justifies declaring the judges of "inferior" Article III
courts to be principal officers is not available for Tax Court
judges, and though
Freytag holds that the Tax Court is a
"Cour[t] of Law" that can appoint inferior officers, it may be that
the Appointments
sumed that lower federal judges were principal officers. See 501
U. S., at 884 (listing "ambassadors, ministers, heads of
departments, and judges" as principal officers). But see Shartel,
Federal Judges-Appointment, Supervision, and Removal-Some
Possibilities Under the Constitution, 28 Mich. L. Rev. 485, 499-529
(1930) (arguing that lower federal judges should, and
constitutionally can, be appointed by the Chief Justice).
193
Clause enVISIOns appointment of some inferior officers by other
inferior officers.
But even if Tax Court judges are principal officers, military
trial judges compare poorly with them, because not only the legal
rulings of military trial judges but also their factfinding and
sentencing are subject to
de novo scrutiny by the Courts of
Military Review. See 10 U. S. C. § 866(c). Though the powers of
Court of Military Review judges are correspondingly greater, they
too are distinguishable from Tax Court judges. First, Tax Court
judges are removable only for cause, see 26 U. S. C. § 7443(f),
while Court of Military Review judges may be freely "detail[edJ" by
the relevant Judge Advocate General to nonjudicial assignments.8
See
ante, at 171-172. Second, Tax Court judges serve fixed
15-year terms, see 26 U. S. C. § 7443(e), while Court of Military
Review judges have no fixed term of office and typically serve for
far less than 15 years.9 See Brief for Petitioners 5 (military
judges "often serve terms of two, three, or four years").
"The line between 'inferior' and 'principal' officers is one
that is far from clear,"
Morrison, 487 U. S., at 671, and
though there is a good deal of force to the argument that military
judges, at least those on the Courts of Military Review, are
principal officers, it is ultimately hard to say with any certainty
on which side of the line they fall. The Court
8 According to the Government, "[t]he [Uniform Code of Military
Justice] and the services' implementing regulations are carefully
structured to ensure that military judges are independent and
impartial." Brief for United States 42. This is offered to repel
petitioners' due process claim, but it strengthens petitioners'
Appointments Clause position. It does not strengthen it enough,
however, for the fact remains that military judges are removable
for a broad array of reasons.
9 According to the Government, "military judges have the
equivalent of tenure in the form of stable tours of duty."
Id., at 31. Again, though offered as a defense to
petitioners' due process challenge, this aids petitioners'
Appointments Clause argument. The fact remains, however, that the
statute provides no fixed term of office for military judges.
194
has never decided how to resolve doubt in this area; the
Morrison Court did not address this issue since it
understood the independent counsel to be "clearly" an inferior
officer.
Ibid. Forced to decide now, I agree with the
approach offered by then-Judge Ginsburg in her Court of Appeals
opinion in the independent-counsel case. "Where ... the label that
better fits an officer is fairly debatable, the fully rational
congressional determination surely merits ... tolerance."
In re
Sealed Case, 838 F.2d
476, 532 (CAD C) (dissenting opinion), rev'd
sub nom.
Morrison v.
Olson, 487 U. S. 654 (1988).
Since the chosen method for selecting military judges shows that
neither Congress nor the President thought military judges were
principal officers, and since in the presence of doubt deference to
the political branches' judgment is appropriate, I conclude that
military judges are inferior officers for purposes of the
Appointments Clause.
II
Because the limits the Appointments Clause places on the
creation and assignment of duties to inferior offices are respected
here, for the reasons the Court and JUSTICE SCALIA give, and on the
understanding that the Court addresses only the Appointments
Clause's limits regarding inferior officers, I join the Court's
opinion.
JUSTICE GINSBURG, concurring.
The care the Court has taken to analyze petitioners' claims
demonstrates once again that men and women in the Armed Forces do
not leave constitutional safeguards and judicial protection behind
when they enter military service. Today's decision upholds a system
of military justice notably more sensitive to due process concerns
than the one prevailing through most of our country's history, when
military justice was done without any requirement that legally
trained officers preside or even participate as judges.
Nevertheless, there has been no peremptory rejection of
petitioners' pleas.
195
Instead, the close inspection reflected in the Court's opinion
confirms:
"[I]t is the function of the courts to make sure, in cases
properly coming before them, that the men and women constituting
our Armed Forces are treated as honored members of society whose
rights do not turn on the charity of a military commander .... A
member of the Armed Forces is entitled to equal justice under law
not as conceived by the generosity of a commander but as written in
the Constitution .... " Winters v. United States, 89
S. Ct. 57, 59-60, 21 L. Ed. 2d 80, 84 (1968) (Douglas, J., in
chambers).
See also
Frontiero v.
Richardson, 411 U. S. 677 (1973);
Harmon v.
Brucker, 355 U. S. 579 (1958);
Crawford v.
Cushman, 531 F.2d
1114 (CA2 1976).
JUSTICE SCALIA, with whom JUSTICE THOMAS joins, concurring in
part and concurring in the judgment.
I think the Appointments Clause issue requires somewhat more
analysis than the Court provides, and the Due Process Clause issue
somewhat less.
I
As to the former: The Court states that these cases differ from
Shoemaker v.
United States, 147 U. S. 282 (1893),
because, after the passage of the Military Justice Act of 1968,
military judges could be selected from "hundreds or perhaps
thousands of qualified commissioned officers,"
ante, at 174,
so that there is no concern (as there was in
Shoemaker,
where a single incumbent held the office whose duties were
enlarged) that "Congress was trying to both create an office and
also select a particular individual to fill the office,"
ante, at 174. That certainly distinguishes
Shoemaker,
but I do not see why it leads to the Court's conclusion that
therefore "germaneness" analysis need not be conducted here
as it was in
196
Opinion of SCALIA, J.
Shoemaker (though the Court proceeds to conduct it
anyway,
ante, at 174-176).
Germaneness analysis must be conducted, it seems to me, whenever
that is necessary to assure that the conferring of new duties does
not violate the Appointments Clause. Violation of the Appointments
Clause occurs not only when (as in
Shoemaker) Congress may
be aggrandizing
itself (by effectively appropriating the
appointment power over the officer exercising the new duties), but
also when Congress,
without aggrandizing itself, effectively
lodges appointment power in any person other than those whom the
Constitution specifies. Thus, "germaneness" is relevant whenever
Congress gives power to confer new duties to anyone other than the
few potential recipients of the appointment power specified in the
Appointments Clause-i.
e., the President, the Courts of Law,
and Heads of Departments.
The Judge Advocates General are none of these. Therefore, if
acting as a military judge under the Military Justice Act of 1968
is nongermane to serving as a military officer, giving Judge
Advocates General the power to appoint military officers to serve
as military judges would violate the Appointments Clause, even if
there were "hundreds or perhaps thousands" of individuals from whom
the selections could be made. For taking on the nongermane duties
of military judge would amount to assuming a new "Offic[e]" within
the meaning of Article II, and the appointment to that office would
have to comply with the strictures of Article II. I find the
Appointments Clause not to have been violated in the present case,
only because I agree with the Court's dictum that the new duties
are germane. *
*The further issues perceptively discussed in JUSTICE SOUTER'S
concurrence-namely, whether the Appointments Clause permits
conferring principal-officer responsibilities upon an inferior
officer in a manner other than that required for the appointment of
a principal officer (and, if not, whether the responsibilities of a
military judge are those of a principal officer)-were in my view
wisely avoided by the Court, since they were
197
II
With respect to the Due Process Clause challenge, I think it
neither necessary nor appropriate for this Court to pronounce
whether "Congress has achieved an acceptable balance between
independence and accountability,"
ante, at 180. As today's
opinion explains, a fixed term of office for a military judge "has
never been a part of the military justice tradition,"
ante,
at 178. "Courts-martial ... have been conducted in this country for
over 200 years without the presence of a tenured judge,"
ante, at 179. Thus, in the Military Justice Act of 1968 the
people's elected representatives achieved a "balance between
independence and accountability" which, whether or not "acceptable"
to five Justices of this Court, gave members of the military at
least as much procedural protection, in the respects at issue here,
as they enjoyed when the Fifth Amendment was adopted and have
enjoyed ever since. That is enough, and to suggest otherwise
arrogates to this Court a power it does not possess.
"[A] process of law, which is not otherwise forbidden, must be
taken to be due process of law, if it can show the sanction of
settled usage both in England and in this country .... [That
which], in substance, has been immemorially the actual law of the
land ... is due process of law." Hurtado v.
California, 110 U. S. 516, 528
(1884).
inadequately presented and not at all argued. The Petition for
Certiorari said only: "There is considerable force to the argument
that military 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, .... " Pet. for
Cert. 12. The only reference in petitioners' brief was the
statement that "if military judges are principal officers, it is an
even more serious transgression of the purposes of the Appointments
Clause to have their original commissions substitute for an
appointment to a principal office." Brief for Petitioners 15. As
JUSTICE SOUTER'S opinion demonstrates, the issues are complex; they
should be resolved only after full briefing and argument.
198
Opinion of SCALIA, J.
As sometimes ironically happens when judges seek to deny the
power of historical practice to restrain their decrees, see,
e.
g., Burnham v.
Superior Court of Cal., County of Marin,
495 U. S. 604,
637-639 (1990) (Brennan, J., concurring in judgment), the present
judgment makes no sense except as a consequence of historical
practice. Today's opinion finds "an acceptable balance between
independence and accountability" because the Uniform Code of
Military Justice "protects against unlawful command influence by
precluding a convening authority or any commanding officer from
preparing or reviewing any report concerning the effectiveness,
fitness, or efficiency of a military judge relating to his judicial
duties"; because it "prohibits convening authorities from
censuring, reprimanding, or admonishing a military judge ' ... with
respect to any ... exercise of ... his functions in the conduct of
the proceeding'''; and because a Judge Advocate General cannot
decertify or transfer a military judge "based on the General's
opinion of the appropriateness of the judge's findings and
sentences."
Ante, at 180, 181. But no one can suppose that
similar protections against improper influence would suffice to
validate a state criminal-law system in which felonies were tried
by judges serving at the pleasure of the Executive. I am confident
that we would not be satisfied with mere formal prohibitions in the
civilian context, but would hold that due process demands the
structural protection of tenure in office, which has been
provided in England since 1700, see J. H. Baker, An Introduction to
English Legal History 145-146 (2d ed. 1979), was provided in almost
all the former English colonies from the time of the Revolution,
see Ziskind, Judicial Tenure in the American Constitution: English
and American Precedents, 1969 S. Ct. Rev. 135, 138-147, and is
provided in all the States today, see National Center for State
Courts, Conference of State Court Administrators, State Court
Organization 1987, pp. 271-302 (1988). (It is noteworthy that one
of the grievances recited against King George III in the
Declaration of Independence was that "[h]e
199
has made Judges dependent on his Will alone, for the tenure of
their offices.")
Thus, while the Court's opinion says that historical practice is
merely "a factor that must be weighed in [the] calculation,"
ante, at 179, it seems to me that the Court's judgment today
makes the fact of a differing military tradition utterly
conclusive. That is as it should be: "[N]o procedure firmly rooted
in the practices of our people can be so 'fundamentally unfair' as
to deny due process of law."
Pacific Mut. Life Ins.
Co. v.
Has lip, 499 U. S. 1, 38 (1991)
(SCALIA, J., concurring).
For these reasons, I concur in Parts I and II-A and concur in
the judgment.
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