Edmond v. United States – Oral Argument – February 24, 1997

Media for Edmond v. United States

Audio Transcription for Opinion Announcement – May 19, 1997 in Edmond v. United States

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William H. Rehnquist:

We’ll hear argument now in Number 96-262, Jon Edmond v. United States.

Mr. Morrison.

Alan B. Morrison:

Mr. Chief Justice, and may it please the Court:

The question presented by this case is whether the civilian judges of the Courts of Criminal Appeal of the Coast Guard were properly appointed.

In actuality, there are two questions: 1) did the Secretary of Transportation have the statutory authority to make the appointment, and 2) if he did, is it constitutional for him to have done so because the officers are principal offices rather than inferior officers.

Congress first provided for civilian appellate judges in the armed services in 1950, with the passage of the Uniform Code of Military Justice, in particular, Article 66(a).

It was available to all of the armed services, but the legislative history is clear that it was intended principally for the use of the Coast Guard.

Until 1993, the Coast Guard used civilian judges and, like all of the other military judges who were appointed to the military appellate panels, they were appointed, as they were for the other armed services, by the person known as the Judge Advocate General of the armed services, which in the case of the Coast Guard is the general counsel of the Transportation Department, and before that the general counsel of the Treasury Department.

William H. Rehnquist:

There’s a Judge Advocate General for each branch, is there not?

Alan B. Morrison:

That is correct.

In the Transportation Department… there is no one in the Coast Guard.

That position by statute is the–

General–

Alan B. Morrison:

–general counsel of the Department of Transportation.

In 1993, the Court of Military Review for the Coast Guard, as it was then known, recognized that there were serious Appointments Clause problems with respect to the civilian members of the Coast Guard Court of Military Review.

The problem arose because the Judge Advocate General is clearly not one of those listed persons in the Appointments Clause and therefore cannot constitutionally be designated as an appointing officer even for inferior officers.

As part of its opinion in a case called Senior, the Coast Guard Court of Military Review asked the Secretary of Transportation to “reappoint” all of the civilian judges, and he did that.

In fact, he did that for all of the judges of the Coast Guard Court of Military Review, and although he did not cite 49 U.S.C. section 323(a), or, in fact, any other provision, that is the statute on which the Government relies, and the first question presented is, is that reliance justified?

The Government recognizes that, despite the broad language of section 323(a), it cannot be used if there is another statute that provides for another method of appointment for this particular office or any other.

The question in this case arises because Article 66(a) does not use the word, appointment.

It uses… it used initially establish, and then constitute, but the history is clear that from 1950 until 1993, it was the Judge Advocate General who actually did the appointing for the civilians.

The Government says because the word appointment wasn’t used we should not–

William H. Rehnquist:

–Well, Article 66 speaks in terms of assigning, doesn’t it, not appointing?

Alan B. Morrison:

–Yes.

Well, it first talks about constitute and establish, and then it uses the word assignment.

That is correct, Your Honor.

The Government argues from that that it should not be treated as an alternative method of appointment.

The first answer we have to that is that it has been construed by the agencies all across the military from 1950 to 1993 as providing the appointment power.

Indeed, there is no other provision of law that would allow the appointment of civilian judges in the Coast Guard.

There certainly was nothing from 1950 to 1968… ’66, when the Coast Guard was transferred from the Treasury Department–

William H. Rehnquist:

But there weren’t any civilian judges in the other branches, were there?

Alan B. Morrison:

–Yes, there were, Your Honor.

There were also in the Navy.

The Navy had a number of them.

William H. Rehnquist:

For how long?

Alan B. Morrison:

It’s in note 2 of my brief, Your Honor.

I’ll–

William H. Rehnquist:

Well, I’ll pick it up.

Alan B. Morrison:

–Yes.

And it’s also recognized in the Weiss opinion as well.

Sandra Day O’Connor:

Well, the Coast Guard is the only place where civilian judges are now used–

Alan B. Morrison:

That is correct.

Sandra Day O’Connor:

–at the present time, and I guess… I mean, even if 866(a) were invalid, you still… as long as they are inferior officers you could look to 49 U.S. Code 323(a), I suppose, for the Coast Guard, for appointment by the Secretary of Transportation.

Alan B. Morrison:

Well, that gets to our… that is the question, Your Honor, whether you can, and the Coast Guard–

Sandra Day O’Connor:

Well, I just thought there was a fall-back statute, so until you get to whether they’re principal or inferior officers, I’m not sure you can address your first question.

Alan B. Morrison:

–No, Your Honor, I think not.

I think that the question of whether 323(a) is a fall-back statute or not is very much of an open question, and we first suggest that 66(a) has been treated as though it were an Appointment Clause in all of the armed… in all of the armed service appointment statutes, in all of the armed services, including the Coast Guard, and the history is absolutely clear that it has been construed that way, for there is no other source of appointment.

But–

Sandra Day O’Connor:

Well, let me ask you this, which gets further into this principal or inferior business.

How many military officers are there at present, more than 250,000 and some?

Alan B. Morrison:

–That’s correct, Your Honor.

I… that is about correct.

I don’t know for sure, but it’s in that order of–

Sandra Day O’Connor:

And are all of those people principal officers?

Alan B. Morrison:

–No, Your Honor.

No.

Alan B. Morrison:

I don’t believe so.

It’s never–

Sandra Day O’Connor:

So as far as you’re–

Alan B. Morrison:

–been tested.

Sandra Day O’Connor:

–concerned, if one of those military officers is reassigned to a principal office, then it would require a new appointment and confirmation?

Alan B. Morrison:

No, Your Honor.

The Appointment Clause requires a method of appointment.

In… under our constitutional scheme, every inferior officer of the United States could be appointed by the President with the advice and consent of the Senate.

The Congress is given the option to make a law that provides for one of three alternative methods of appointment, but the fact that somebody is appointed by the President with the advice and consent of the Senate does not make them, by that alone, a principal officer, but–

Sandra Day O’Connor:

But you do… you accept Weiss, in other words.

Alan B. Morrison:

–I have no choice, Your Honor.

Sandra Day O’Connor:

You aren’t suggesting any invalidity there?

Alan B. Morrison:

Yes… yes, Your Honor.

Now, the Government seems to say that under the scheme that they have devised using 323(a) to rescue them… and by the way, Justice O’Connor, there was a very simple solution in 1993 when this problem was recognized.

All the Government had to do at that point was to ask the President of the United States to appoint the civilian judges with the advice and consent of the Senate, and the problem would have been cured prospectively at that point, so–

Ruth Bader Ginsburg:

Mr. Morrison, isn’t that a bit much, when you think of all of the ALJ’s, all of the people who perform comparable functions, the trial people at the tax court, and to take this officer, as important as his job is, and to say that this intermediate appellate judge is a principal officer–

Alan B. Morrison:

–Well, I’ll be glad to turn to that question, Your Honor.

First, let me… our principal focus on the principal officer point is twofold.

One is that these judges have very, very broad powers of review, and second that they have practical finality.

That latter characteristic distinguishes them from the trial judges that Your Honor was talking about, the ALJ’s, all of whose decisions are reviewable as of right.

Judges’ decisions by the Coast Guard Court of Military Review and of the other armed services are reviewable on a discretionary basis only, certiorari, in essence, to the Court of Appeals for the Armed Forces, and less than 4 percent of those cases get taken.

Antonin Scalia:

–Excuse me.

You say ALJ’s are reviewable as–

Alan B. Morrison:

Of right.

The decisions–

Antonin Scalia:

–Are routinely and automatically reviewed?

I’m not–

Alan B. Morrison:

–As of right, Your Honor.

Yes, that is correct.

Certainly in all of the examples that the Government cites on pages 26 and 27 of its brief, and obviously there may be some ALJ some place whose decisions are not, but my understanding of the basic structure of the APA is that every person who is dissatisfied with the decision by the ALJ can at least go to an agency head and in most cases to a court of law as of right, in contradistinction to this case, in which the reviews are entirely discretionary.

William H. Rehnquist:

–But these people you say are principal officers are assigned by the general counsel of the Coast Guard, who is not a principal officer.

Isn’t that a strange world?

Alan B. Morrison:

It certainly is, Your Honor.

Sorry, you mean the military officers, or the civilians, because–

Both.

Alan B. Morrison:

–As far as the military officers are concerned, they may be assigned by the general counsel, but under Weiss, under this Court’s decision in Weiss, the Court held that there was no separate appointment required for them.

David H. Souter:

But on your theory they jump from being, some of them at least, inferior officers to superior officers based on the general counsel’s appointment, or assignment, rather.

All of them do.

All of them do, unless–

Alan B. Morrison:

All of the appellate judges, yes.

We’re not talking about trial judges here.

–Well, but–

Alan B. Morrison:

They may well be… it is entirely possible for various officers in the military to reach certain points in which they may be principal officers.

That is, for instance, somebody could be a high-ranking person that could be a principal officer in the military.

Without knowing what the duties are, I couldn’t tell for sure.

I would say the likelihood is not great, but there are probably not very many in the Coast Guard, other than the Commandant of the Coast Guard.

David H. Souter:

–As I understand your theory, what you do have to say on your theory is that those who are not at the superior level by virtue of their military appointments as such suddenly become superior officers by virtue of this assignment to sit on a court.

Alan B. Morrison:

That is correct, Your Honor, and that is… but that is constitutionally acceptable, as this Court held in Weiss, because they were appointed as principal officers along the way.

Antonin Scalia:

We didn’t hold that in Weiss.

We left open the… as I recall, Justice Souter wrote that that question was involved, but as I recall the opinion for the Court never addressed it.

Alan B. Morrison:

It said as I… we’re talking about civilian–

Antonin Scalia:

I’m talking about the problem of having a requirement for the appointment of superior… of principal officers which can be evaded by simply having an inferior officer reassigned to a task that is the task of a principal officer, never appointing that inferior officer by the method set forth in the Constitution.

That’s a real problem, isn’t it?

I mean, I think it’s a real problem.

Alan B. Morrison:

–Well, I think it is, but my burden today is a more limited burden, which is for the civilians who were never appointed by the President with the advice and consent of the Senate to positions in the Coast Guard, that they cannot be reassigned or anything by the Judge Advocate General to these positions.

Antonin Scalia:

Well, of course–

–But–

–It goes to the heart of your whole contention, because it goes to the question of whether it is reasonable to interpret 66 as you ask us to interpret it, as being an authorization to appoint these people.

Alan B. Morrison:

No, Your Honor, I… well, we know for a fact that… and I don’t believe the Government disputes this.

From 1950 until 1993, Article 66 was the only provision relied upon for the appointment of civilians to the Courts of Military Review for the Coast Guard and for the Navy, which is the only two services that had them, and so insofar as that fact is concerned, it’s not disputed.

I would say, however, if the Court agrees with me on my first issue… that is, on the first, the statutory construction issue, the Court need not reach this constitutional question.

It simply says, the Secretary of Transportation, construing the statutes together, does not have the authority in part because it produces a series of results with regard to the courts of military review that don’t make any sense.

Ruth Bader Ginsburg:

Mr. Morrison, but we do know that Congress wanted to have these tribunals, and… including civilians.

If we take your interpretation of the statute, then we are demolishing what Congress wanted.

Ruth Bader Ginsburg:

If we take the Government’s view that 323… is that what it is +/?

can supplement 66, then we save what Congress plainly wanted to do, so why doesn’t the statutory argument turn against you?

Alan B. Morrison:

Well, we have two rules of construction in conflict.

One is to try to save the statute, as Your Honor has just suggested.

The other is to try to avoid the constitutional question, which I have suggested also comes into effect here.

But there is another way, of course, to have saved this statute, which is to have had the President of the United States make these appointments in January 1993, instead of going through the short-cut of having the Secretary of Transportation do it, because under the Constitution the President has the power to appoint all officers of the United States with the advice and consent of the Senate.

The only time he does not have that power is when Congress expressly by law takes it away from him and gives it in a valid law to somebody else.

Since the law as applied to civilians in the Coast Guard… appointments by the Judge Advocate General… was not a valid law, the President’s residual power would come forward.

Antonin Scalia:

But the President’s resid… you make it sound as though this was totally within the control of the executive, but it wasn’t, because the President’s power is the power to appoint by and with the advice and consent of the Senate, not alone.

Alan B. Morrison:

That is correct, Your Honor.

So–

Alan B. Morrison:

I agree with that.

Antonin Scalia:

–It’s a little harder than you make it.

It would be–

Alan B. Morrison:

Well, not… I think probably not, Your Honor, as a practical matter.

There are two judges at this point in the Coast Guard.

The President says, these people have been serving.

He reappoints them.

There are problems with appointment, but I don’t think this would come within–

William H. Rehnquist:

–It would be a fairly unusual provision, though, for the office to be filled by presidential appointment with advice and consent of the Senate for officials of… this far down the ladder.

Alan B. Morrison:

–Well, I don’t know that that’s… I view them as comparable to people in the… as tax court judges, Your Honor, and tax court judges are appointed by the President with the advice and consent of the Senate.

There are various administrative boards whose members are appointed by the President with the advice and consent of the Senate.

There would, of course, be one anomaly, which is that you would have some people who are chosen by the President and other people who are chosen either by JAG or the Secretary of Transportation.

That’s what we’re concerned about here.

If the Government’s view is upheld, we have a situation in which some of the members of the Coast Guard Court of Criminal Appeals will be appointed by the President… by the JAG, selected, assigned, chosen by the JAG, if I may use neutral terms… others will be appointed by the Secretary of Transportation.

Article 66(a) specifically says that the chief judge of each of these courts of military appeals are to be appointed by the JAG.

William H. Rehnquist:

Does Article 66 use the word appointed there?

Alan B. Morrison:

It says chosen I believe, Your Honor.

William H. Rehnquist:

Well, that’s quite different from appointed.

Alan B. Morrison:

Well, in this–

William H. Rehnquist:

It can mean… chosen can mean selecting from someone who already holds the office.

Designated.

Alan B. Morrison:

–Designated.

I beg your pardon.

William H. Rehnquist:

Well, that’s even further from appointed.

Alan B. Morrison:

Yes, except that in this case if you look at the appointing memorandum here it appoints and as far as I can tell designates Chief Judge Baum as the… this is in our appendix at A7… I’m sorry, at A6.

He has… the Secretary of Transportation has designated Chief Judge Baum, the only civilian, as the chief judge of the court.

That is contrary to what the statute says.

Similarly, the statute… we have a situation, supposing a vacancy now occurs on the Coast Guard court.

It’s one of the military officers who are regularly and routinely reassigned.

The question then becomes, who gets to fill this vacancy?

Does the JAG get to fill it by assignment, or does the Secretary get to fill it by appointment?

The next thing we would know, we would have a larger number of civilian judges.

I say this not because it’s an insuperable problem, but it creates a situation which seems to be very different from what’s created by the statute here.

Antonin Scalia:

Well, it’s not insuperable at all, given that the JAG has to do what the Secretary tells him.

Alan B. Morrison:

Well, Your Honor, that’s not entirely true.

Antonin Scalia:

Any power given to the JAG, unless it’s expressly or implicitly limited to him alone, is certainly exercisable by the Secretary, is it not?

Alan B. Morrison:

Well, the JAG is independently… general counsel is appointed by the President with the advice and consent of the Senate, and I don’t think that the general counsel of the Transportation Department could be removed by the Secretary of Transportation if the President wanted to keep him.

Antonin Scalia:

It’s not a question of removing him.

It’s a question of the Secretary saying, I know that this function is assigned to you, but you are my subordinate, and I am going to exercise this function directly myself.

Can’t that be done?

Alan B. Morrison:

Well, I think that’s the question, but it’s by no means clear that that’s correct, and the reason I say that is because there are other things about this statute which suggest that although Congress didn’t use the word exclusively here, that it did intend for the JAG’s to be in charge of the process.

As this Court recognized–

Antonin Scalia:

Sure, and it intends, for example, in the Justice Department for the subordinate heads of the divisions to do what they want, but doesn’t the Attorney General have the power to direct them to do it the way he wants?

Alan B. Morrison:

–Your Honor–

Antonin Scalia:

Even though it sets forth their duties?

That’s Andrew Jackson and the Bank of the United States.

Alan B. Morrison:

–Yes.

Yes, sir.

Well, that’s right, except that as I suggested… he said he would fire his Secretary till he finds one that agrees with him.

Alan B. Morrison:

Here, I suggest to you that the general counsel cannot necessarily be fired by the Secretary of Transportation because the general counsel is a presidential appointee.

But there’s an important set of reasons why I would say that the Justice Department analogy doesn’t apply, other than the fact that there are no specific duties listed for most high-ranking officials in the Justice Department.

It simply says there shall be 11 Assistant Attorneys Generals who shall carry out the duties.

Here, in Article 66, I believe the fair reading is that Congress has constructed a system in which they are taking the control over the workings of the courts of military review, or now courts of criminal appeal, out of the line authority.

That is, from the Secretary of Defense, Secretary of Transportation, and put the control in the lawyers.

That is to prevent what this Court recognized in Weiss was the possibility of improper command influence, and this shows up in the selection of the chief judge, in the fact that the… by the JAG, by the fact that the JAG designates who shall sit on what panels, by the fact that the rules for the courts of military review are decided by the JAG’s, and that the JAG’s are regularly scheduled to meet on practices and procedures.

This is more than simply interstitial law-making.

This is, in our view, a deliberate decision by the congress to say, for whatever reason… and I suggest that there are many good ones relating to command influence… we want the JAG’s rather than the departmental heads to be involved in this process.

Stephen G. Breyer:

Well, suppose they wanted the JAG’s… Congress passed a statute and said, we want the JAG’s to do all the appointing.

We want them to.

That’s their job.

And one day somebody walked into Congress and said, you know, you’ve made a little mistake here, because unfortunately under the Constitution the civilian person doesn’t have a presidential appointment, and you’ve got to give the power to the Secretary to appoint him.

So Congress says, ah, great idea.

We’ll say he can be appointed by the Secretary of the Treasury.

That cures it, right?

Alan B. Morrison:

That is correct, Your Honor.

Stephen G. Breyer:

All right, and they say, you know, it could come up again, so why don’t we pass our statute in general form and just say the Secretary of the Treasury can appoint officers, and that would cure it, I guess.

He’s an officer.

Alan B. Morrison:

Well–

Stephen G. Breyer:

And then somebody says, you know, you don’t have to.

You already did.

Alan B. Morrison:

–Well–

Stephen G. Breyer:

I mean, that’s the difficulty I’m having, because I don’t see… the statute there certainly would be okay as a curative statute.

Alan B. Morrison:

–Well, that–

Stephen G. Breyer:

It would certainly be okay as a specific curative statute.

Alan B. Morrison:

–There’s no question about that.

Stephen G. Breyer:

You could put the specific word in general form, and if somebody points out you already have the statute you don’t need to pass it.

Alan B. Morrison:

My submission is that this general statute should not be applied here because it doesn’t make any sense.

It’s not… in the words that this Court used just recently in the Robinson v. Shell Oil case in part 2A of its opinion, even were the plain language to apply, the result must also be consistent and coherent and workable, and I suggest to you that implying the authorization for the Secretary of Transportation to make the appointment here runs up against that problem, and therefore you should construe this not to do so.

William H. Rehnquist:

But why?

William H. Rehnquist:

Well, how much implying are you doing when the statute says the Secretary of Transportation may appoint and fix the pay of officers and employees of the Department of Transportation?

Alan B. Morrison:

Well, I misspoke, Your Honor.

Let me suggest this.

I said at the beginning, and the Government doesn’t dispute it, that if there is another specific statutory scheme for appointment of other officers, as there is… for instance, there’s a general counsel in the Department of Transportation… that the Secretary of Transportation could not use this residual power of appointment whether the person is an inferior officer or not, and I–

William H. Rehnquist:

And what is your authority for that, the… a specific statute governs–

Alan B. Morrison:

–Yes.

William H. Rehnquist:

–in preference–

Alan B. Morrison:

Yes.

William H. Rehnquist:

–But certainly there can be situations in which more than one statute apply, can’t there?

Alan B. Morrison:

Yes, and the question is, did Congress intend to allow this to apply, given the lengths to which they went in Article 66(a)?

Now, there are two advantages in accepting this approach.

Number 1 is, it sends the matter back to Congress so that Congress can look at this and say, now, which makes sense?

Which system do we want to have?

Because the legislative history is clear that Congress has never focused on the Appointments Clause–

David H. Souter:

Well, Congress can do that if you lose the case.

Alan B. Morrison:

–Yes, Your Honor.

David H. Souter:

Congress can say, gee, we passed a fall-back statute that covers this, and maybe we don’t want to cover it again, and the advantage is that you do not for reasons of appointment formality disrupt a great many things that have been done, so why not let Congress have its crack at it on a different contingency?

Alan B. Morrison:

That gets me to my second submission, Your Honor, and that is that it avoids the constitutional question, to which I’d now like to return.

As I said before, my two principal arguments on the constitutional issue are that the broad range of review that the judges of the courts of criminal appeal have, they have an enormous power.

They review every single conviction of every… any significance in the military.

Every bad conduct discharge, every confinement for a year or more appeal as of right to these courts.

As the court of military appeals said in 1990 in the Cole case, this is an awesome plenary power of de novo review of facts and law.

There is an unusually broad power of review of facts.

As Article 66, quoted on page 3 of our brief, says, judges may weigh evidence, judge the credibility of witnesses, and determine controverted issues, questions of fact, recognizing the trial court had the opportunity to see and hear the witnesses.

That’s an extraordinary power of review, far broader than the judges of the court of appeals have in our Federal criminal system.

William H. Rehnquist:

Well, but it’s no broader than the authority of a district court to review the findings of a special master, is it?

Alan B. Morrison:

Well, I would say that that is correct.

District judges, of course, I believe are principal officers, Your Honor.

The Government has never suggested otherwise.

But the second… and the second reason is the question of finality, and that gets me to my Freytag point, which is that in Freytag this Court ruled that the chief judge of the tax court had the authority to appoint inferior officers, and in my view, implicit in that decision was a recognition that the judges of the tax court had to be principal officers, for otherwise you would have a system in which inferior officers were appointing other inferior officers, precisely the diffusion of power and accountability the Appointment Clause–

Ruth Bader Ginsburg:

There are some differences–

Alan B. Morrison:

–There are, Your Honor.

Ruth Bader Ginsburg:

–and for example there’s a fixed tenure for tax court judges that doesn’t exist here.

Alan B. Morrison:

Yes, Your Honor.

The Government makes a point of that.

My view on that is that the tenure question is most important with respect to the office rather than the office-holder.

Surely, for example, if the Secretary of Transportation for the last 40 years had had terms… the Secretary of Transportation serves at the will of the President.

If we could show that he was only there for a year or two each time before there was a turnover, nobody would say they aren’t principal officers.

David H. Souter:

Well, but the trouble, Mr. Morrison is, if you’re going to make the accountability point, on your theory the inferior military officer becomes a superior officer merely on the designation of the Judge Advocate General, and there is no accountability at all for that.

Congress never gets a look at it.

Alan B. Morrison:

Your Honor, I lost that issue in Weiss, and I’m not here to reargue it again today.

I’ll reserve the remainder of my time if I may.

If you ask a question, Your Honor, I’ll be–

William H. Rehnquist:

Very well, Mr. Morrison.

Mr. Stewart, we’ll hear from you.

Malcolm L. Stewart:

Mr. Chief Justice, and may it please the Court:

The appointment at issue in this case satisfied the requirements of the Constitution and was consistent with the pertinent statutes.

Judges on the Coast Guard Court of Criminal Appeals are inferior officers whose appointment may properly be vested in the head of a Department.

The judges are removable by an executive branch official subordinate to the President, their decisions are subject to review by the Court of Appeals for the Armed Forces, and their jurisdiction is confined to a narrow class of cases.

Second, the appointment was consistent with the relevant statutes.

The Department of Transportation Act, 49 U.S.C. 323 (a), authorizes the Secretary to appoint officers within the Department.

Nothing in Article 66 of the UCMJ divests the Secretary of that authority for the courts to give–

Are–

Malcolm L. Stewart:

–For the courts to give the Judge Advocate General exclusive power to select members of the courts of criminal appeals.

Anthony M. Kennedy:

–Are Coast Guard officers appointed in the same manner as the officers of other services?

Malcolm L. Stewart:

Yes, they are.

They’re appointed by the President and confirmed by the Senate, and as with officers in the other branches a separate appointment is required for a promotion to a higher rank.

Anthony M. Kennedy:

So the… 323 does not apply to Coast Guard officers.

Malcolm L. Stewart:

That’s correct, 323(a) does not give the Secretary of Transportation authority to appoint commissioned officers in the Coast Guard.

Anthony M. Kennedy:

Mr.–

Anthony M. Kennedy:

–Even though… and is that because there’s another specific statute that supervenes it?

Malcolm L. Stewart:

That’s correct.

There’s a specific statute that not only is addressed particularly to the office in question, but that provides an inconsistent method of appointment.

Sandra Day O’Connor:

Mr. Stewart, you were giving several reasons why you say these officers are inferior, and yet in one sense they do have more power than even a normal court of appeals judge in the Federal system would have, insofar as they make de novo fact-finding and so forth.

Malcolm L. Stewart:

It’s correct that with respect to the scope of review in cases falling within their jurisdiction a court of criminal appeals may engage in de novo fact-finding as opposed to the clearly erroneous standard that would apply in the civilian courts.

In other respects, however, the powers of the courts of criminal appeals are more limited.

First, and perhaps most obviously, the courts of criminal appeals hear cases falling within a narrow class of jurisdiction, in contrast to Article III courts of appeals, who can hear the full range of civil and criminal cases.

Antonin Scalia:

That makes the difference whether you’re inferior or not, whether what you’re given control of is insignificant or not?

I find that… I don’t know.

Malcolm L. Stewart:

We certainly don’t claim that that’s dispositive, but in Morrison–

Antonin Scalia:

I don’t see why it has any relevance.

I mean, if I’m made an ambassador to a really tiny, itsy-bitsy country, am I not a principal officer?

Malcolm L. Stewart:

–Well, with respect to ambassadors, obviously the Constitution specifically identifies that as an office that must be appointed by the President and confirmed by the Senate, but we take your point that there may be officers who exercise power in a limited area.

Antonin Scalia:

If I’m appointed as an independent counsel for a little tiny offense, am I not a principal officer, as–

Malcolm L. Stewart:

No.

The Court held in Morrison that it’s an inferior officer rather than a principal officer.

David H. Souter:

–One thing, in the court in question here, the Coast Guard court does sit in review on officers who were themselves appointed by the President and confirmed by the Senate.

That seems to me a very substantial function.

This court can review the court martial of an officer, can it not?

Malcolm L. Stewart:

That’s correct, but again in terms of the limited nature of the jurisdiction of the Coast Guard Court of Criminal Appeals, it’s limited not simply in the sense that it hears only a small category of cases, but in the sense that the only people potentially subject to its jurisdiction are individuals who have chosen to join a specialized society knowing that they are to be governed by different rules.

We would also say that while the Coast Guard Court of Criminal Appeals may engage in de novo fact-finding, in other respects its review of court martial decisions is more limited than that which would prevail in the Article III system.

Antonin Scalia:

I’m less concerned about what it can do to those below it than I am concerned with what those above it can do to it.

What is the finality of the determinations made by this court?

Malcolm L. Stewart:

Well, there are–

Antonin Scalia:

To what extent is it subject, in other words, to control by some superior officer?

Malcolm L. Stewart:

–Well, all of its decisions are subject to review by the Court of Appeals for the Armed Forces.

There are two categories of cases as to which the Court of Appeals for the Armed Forces exercises mandatory review.

Those are cases in which the Coast Guard Court of Criminal Appeals has affirmed sentence of death, and cases in which the Judge Advocate General of the service certifies the case for review by the Court of Appeals for the Armed Forces.

The Government as a practical matter may insist upon further review by the Court of Appeals for the Armed Forces.

Antonin Scalia:

So in any case, any case can be mandatorily reviewable so long as the JAG wants it reviewed, isn’t that right?

Malcolm L. Stewart:

That’s correct.

With respect to other cases, cases not involving a sentence of death and cases in which the JAG does not certify, the defendant may petition for review.

It is essentially like a cert process where the Court of Appeals for the Armed Forces–

Sandra Day O’Connor:

If review is had, is it de novo review of facts–

Malcolm L. Stewart:

–It is not de novo–

–and law?

Malcolm L. Stewart:

–It is not de novo review of facts.

In that limited sense the court of criminal appeals may issue a decision which is not effectively subject to reversal by–

Sandra Day O’Connor:

Should that enter the balance on whether we think it’s an inferior officer?

Malcolm L. Stewart:

–I think it enters the balance, but I think the more important point is that in ensuring the practical subordinacy of the court of criminal appeals within the military justice system, the important point is that the Court of Appeals for the Armed Forces may review all questions of law, and the court of criminal appeals is subordinate not simply in the sense that it is subject to reversal in an individual case, but in the sense that it is obligated to follow the precedents laid down by the Court of Appeals for the Armed Forces in prior cases.

Sandra Day O’Connor:

Now, the Navy used to also have civilian judges.

Malcolm L. Stewart:

Up to, I believe the early seventies.

Sandra Day O’Connor:

And under what statutory authority were they properly employed–

Malcolm L. Stewart:

I think–

Sandra Day O’Connor:

–under your theory?

Malcolm L. Stewart:

–I think under our theory they were not properly employed, and under our theory the civilian judges who served on the Coast Guard Court of Criminal Appeals prior to the Secretary’s January ’93 memorandum were not properly employed.

Indeed, we conceded as much in Ryder.

Sandra Day O’Connor:

And do you take the position that the Secretary of Transportation here could designate his authority to some lower officer or employee?

Malcolm L. Stewart:

The question of delegation of Appointments Clause authority is a complicated one.

My understanding is that that is currently being considered by others within the Department of Justice, so I would hesitate–

Sandra Day O’Connor:

Well, you cite United States v. Hartwell, which might deal with that very question.

Do you rely on it for that authority?

Malcolm L. Stewart:

–Well, Hartwell dealt with something different from delegation.

That is, by delegation we would envision a system in which a Secretary said to a subordinate official, you may exercise my authority to appoint a particular official without further review from me.

What happened in Hartwell was different.

The individual officer appointed in Hartwell was appointed by the Assistant Secretary with the express approval of the Secretary, so–

Sandra Day O’Connor:

Well, isn’t it a little difficult to see how delegation could survive under the Appointments Clause?

Malcolm L. Stewart:

–I think there would certainly be concerns about whether the accountability was preserved.

On the other hand, it’s also true that most powers that are conferred upon Department heads may be delegated to subordinates.

In any event, the Secretary has not purported to delegate his 323(a) authority in this case.

Malcolm L. Stewart:

Instead, he issued a memorandum stating that he was adopting the JAG’s assignments as appointments of his own.

And to return to the point I was making earlier, in some respects the court of criminal appeals’ review of court martial decisions is more limited than that which would occur in an Article III court in the criminal context.

That is, under the Sentencing Reform Act, a court of appeals within the Federal system may hear a Government appeal from a district court sentencing determination and may determine that the sentence was not harsh enough.

In the military justice system, by contrast, Article 66 makes it clear that the review of the court of criminal appeals is limited to the sentence as entered by the court martial and approved by the convening authority.

Sandra Day O’Connor:

Now, are you essentially adopting the position that Justice Souter did in his separate concurring opinion in Weiss?

Malcolm L. Stewart:

Well, we conceded in… the Government conceded in Weiss at oral argument and we would concede here that if judges on the Coast Guard Court of Criminal Appeals were principal officers, there would be a substantial constitutional question as to the status not only of the civilian judges but as… but of the military judges as well.

Sandra Day O’Connor:

Well, couldn’t you give me an easier, shorter answer?

Do you agree with Justice Souter’s concurrence in Weiss, yes or no?

Malcolm L. Stewart:

We are not prepared to concede that the appointment would necessarily be invalid.

That is, if this Court were to hold that judges on the Coast Guard Court of Criminal Appeals–

Sandra Day O’Connor:

Excuse me.

I thought Justice Souter took the position they were inferior officers.

Malcolm L. Stewart:

–Oh, yes, we definitely agree with that.

Sandra Day O’Connor:

And you agree with that?

Malcolm L. Stewart:

Yes, that’s correct.

Now, with respect to the statutory question–

Antonin Scalia:

What you don’t agree with is that it would be unconstitutional to allow the assignment of an inferior officer to the position… to do a function performed by principal officers?

Malcolm L. Stewart:

–We’re not prepared to concede at this point that an inferior officer who was appointed by the President with Senate confirmation… we’re not going to concede as a categorical matter that that person could not be shifted to a principal office.

If we lose this case on the Appointments Clause question we would–

I see.

Malcolm L. Stewart:

–look at the opinion and see what it said.

Antonin Scalia:

One who happened to have been appointed that way.

Malcolm L. Stewart:

That’s correct.

Yes, I see.

Malcolm L. Stewart:

With respect to the statutory question, we want to make clear the Government is not arguing that Congress, in passing the Department of Transportation Act, specifically contemplated that the Secretary’s authority would be used with respect to civilian judges on the Coast Guard Court of Criminal Appeals.

In our view, that’s simply not the correct question.

The question first is whether section 323(a) by its terms authorizes the Secretary to act, and we think it’s clear that it does.

Section 323(a) says specifically that the Secretary of Transportation may appoint officers and employees within the Department.

There’s no question that a judge on the Coast Guard Court of Criminal Appeals is an officer within the Department of Transportation, and so the real question is, does Article 66 of the UCMJ divest the Secretary of the authority that he would otherwise possess with respect to these civilian judges, and we think for two reasons that it shouldn’t be read that way.

First, Article 66 doesn’t use the word appoint.

Malcolm L. Stewart:

It says the Judge Advocate General can establish a court of criminal appeals, refers to judges assigned to that court, but there’s no plain language that would suggest that the Judge Advocate General makes appointments at all, let alone that he is the sole appointing authority.

With respect to one point made by the petitioners, in our view the legislative history makes clear and this Court’s opinion in Weiss makes clear that the point of vesting this authority in the Judge Advocate General was to remove the matter from the influence of the commanding officer who convened the court martial, not to remove the decision from the control of the Secretary of Transportation and, indeed, if Congress’ purpose were to make it impossible for the Secretary of Transportation to influence the assignment process, it would have been bizarre to give assignment authority to–

Stephen G. Breyer:

But is it true… but I take it that nobody ever thought about this problem at all in Congress, so we’re not… it’s just totally imaginary to think what they were thinking.

They weren’t thinking anything, and the… on this point, and so I think the argument is that just as you responded to Justice Kennedy you said, well, look, the Secretary under this clause doesn’t appoint officers of the Coast Guard, does he?

Malcolm L. Stewart:

–No, that’s–

Stephen G. Breyer:

No, because there’s another provision for that.

He says, well, read this provision.

What this provision fairly read says is that the JAG was going to do the appointing, and just as the officer of the Coast Guard provision is… everybody understood that, and they know that this general catch-all doesn’t apply to that, so everybody here understood that the JAG would do the appointing, and so the catch-all doesn’t apply to that, either.

Why do one and not the other, and it can’t just be a technicality of the definiteness of the language.

He says, look really to the reality of how the thing was working.

Malcolm L. Stewart:

–Well, the–

Stephen G. Breyer:

What’s your response to that?

Malcolm L. Stewart:

–The definiteness of the language is one point, but I think what we would say is even more important is that the JAG is a subordinate official within the Department of Transportation who is subject by statute to the Secretary’s control and who could be directed by the Secretary to assign a particular individual to the court of criminal appeals.

And therefore while it would… it would obviously disrupt the statutory scheme for the Secretary of Transportation to purport to appoint commissioned officers within the Coast Guard, because that would subvert in a very practical way the process that Congress had established for making people a part of the Coast Guard, since the Secretary could, in any event, direct the JAG to assign a particular individual to the court of criminal appeals, there’s no practical disruption–

Well–

Malcolm L. Stewart:

–by saying that the Secretary can exercise that authority himself.

William H. Rehnquist:

–Doesn’t the statute pertain to commissioning of Coast Guard officers read the same way?

Aren’t they appointed by the President and confirmed by the Senate the same way other officers are?

Malcolm L. Stewart:

That’s correct.

Antonin Scalia:

Mr. Stewart, isn’t it, beyond that, your position that to read the language here, which does not say appoint, to mean appoint the civilian officers… the civilian judges would be unconstitutional?

Is that not… unless you think the JAG is the head of a Department.

You don’t think he’s the head of a Department, do you?

Malcolm L. Stewart:

That’s correct.

But the JAG certainly could not assign civilian judges to the court without an appointment from someone else, so–

Antonin Scalia:

So essentially petitioner is asking that 66(a) be interpreted, although it doesn’t say it explicitly, in a fashion that is unconstitutional.

Malcolm L. Stewart:

–I think that’s correct, in a fashion that’s unconstitutional and also in a fashion that would subvert Congress’ intention that the services, and particularly the Coast Guard, should be able to use civilian judges.

That is I think… one important point is that to the–

Stephen G. Breyer:

I think his point was that you… how far do you go in stretching 323 in order to rescue a scheme that would be unconstitutional if you didn’t stretch 323?

Malcolm L. Stewart:

–I mean, with respect, we agree with the Chief Justice that it’s not a stretch.

Article 323(a) says categorically that the Secretary of Transportation may appoint officers and employees within the Department.

Malcolm L. Stewart:

The only remotely difficult question is not whether 323(a) applies by its terms, but whether Article 66 takes away the authority that was otherwise conferred, and we think it’s important to point out that to the extent that we can hazard an educated guess as to what Congress anticipated, neither side in this case is arguing that the system should work in precisely the manner that Congress expected.

That is, probably Congress expected that the JAG’s would be solely responsible for placing individuals on the courts of criminal appeals, but it surely expected that the pool of potential judges would include all civilians who were members of the bar of a Federal court, or the highest court of the State, and we know that it can’t work that way.

We can’t have both sole authority in the JAG and that pool of judges, and therefore it can’t be a dispositive objection to our theory that Congress didn’t anticipate that it would work that way.

To the extent that Congress’ expectations are relevant at all, the more accurate question is, which approach preserves more of what Congress wanted than the other one, and we think it would clearly have been more important to Congress that the potential pool of judges remain the same, rather than that the authority be lodged in the Judge Advocate General rather than the Secretary, because the Secretary in any event could direct the JAG to appoint… to assign whatever individuals he wanted.

If there are no further questions–

William H. Rehnquist:

Thank you, Mr. Stewart.

Mr. Morrison, you have 3 minutes remaining.

Alan B. Morrison:

I’d just like to add to Mr. Stewart’s response to Justice O’Connor’s question about the de novo review.

In addition, the Court of Appeals for the Armed Forces cannot review sentences in the same way that the courts of criminal appeals can do, and so that’s an additional power that extends beyond it.

For better or for worse, the Constitution creates only two categories of officers of the United States.

They must either be principal officers or inferior officers and, thus, if the Court reads 323(a) the way that Mr. Stewart suggests, the Court must then face the constitutional question of whether on balance these officers are more like principal officers or more like inferior officers.

We believe that the comparisons with the courts are the most relevant comparisons, and that compared with the judges of the tax court and other similar judges, these judges, who deal not simply with money but with liberty and life in some cases, are sufficiently important… they’re sufficient–

Ruth Bader Ginsburg:

On that subject, Mr. Morrison, do I understand your argument to be that prospectively, if you’re right… I know that you have a client concern… because there is the important liberty interest that you describe, all of the judges of this tribunal would be military and none would be civilian?

Alan B. Morrison:

–I… if I understand your… until Congress could correct it, that is correct, Your Honor.

They would have to be civilian.

So–

Alan B. Morrison:

Unless the President… as I said before, the President–

Ruth Bader Ginsburg:

–If you prevail then, of course, there’s one result for your clients, but the result for the system is that unless and until Congress does something further, all of the judges must be military people.

Alan B. Morrison:

–No, Your Honor, that is not correct.

As I said before, the President could step in tomorrow and send these nominations to the Senate, and as soon as they were confirmed, that would be constitutionally sufficient, because under the Appointments Clause the President has the ultimate fall-back authority to make these appointments and to cure the constitutional defect.

So the question then is, under this choice that the Court must make if it agrees with the Government’s submission on 323(a), are they more like principal officers or are they more like inferior officers and we believe that, given their wide-ranging powers and the practical finality of their decisions, the balance favors principal rather than inferior officers.

If the Court has no further questions–

William H. Rehnquist:

Thank you, Mr. Morrison.

The case is submitted.