The Appointments Clause--again

Readers may be aware of the litigation some years ago challenging the assignment of military trial and appellate judges, in court-martial cases.  Weiss v. United States, 510 U.S. 163 (1994), immediately comes to mind.  But that was not the only case to get a U.S. Supreme Court hearing.  Lawfare blog reminds of another Edmonds v. United States, 520 U.S. 651 (1997).

[On 10 February] a three-judge panel of the D.C. Circuit (Henderson, Rogers, & Pillard, JJ.) is set to hear oral argument in In re al-Nashiri, the latest in a long-line of pre-trial disputes arising out of the Guantánamo military commission proceedings against Abd Al-Rahim Hussein Muhammed al-Nashiri,. . .  

More than any of the other cases before the commissions, Nashiri’s has been beset from the outset with unique (and uniquely thorny) substantive and jurisdictional questions . . .But the questions the D.C. Circuit is being asked to answer next Tuesday are not limited to Nashiri’s case at all. Instead, Nashiri raises whether the D.C. Circuit has the power to issue a writ of mandamus to the intermediate Court of Military Commission Review (CMCR), and, if so, whether the means by which CMCR judges have been appointed violate the Appointments Clause or Commander-in-Chief Clause ofArticle II. In the process, Nashiri is, in many ways, a referendum on the CMCR—and, as such, a potentially critical moment for both the legitimacy and future of the Guantánamo military commissions. . . . 

Superficially, at least, this looks a lot like the well-established structure of the Courts of Criminal Appeals (“CCAs”)—the intermediate appellate courts in the court-martial system. And in Edmond v.United States, the Supreme Court blessed this structure based upon its conclusion that CCA judges are “inferior officers” for purposes of the Appointments Clause. Thus, some of its judges could be appointed by Executive Branch officials other than the President (in Edmond, the Secretary of Transportation); while others could be serving military officers (who had already been nominated by the President and confirmed by the Senate). And a separate Supreme Court decision—Weiss v. United States—held that there’s no Appointments Clause problem with “reassigning” military officers to serve as CCA judges because serving as a CCA judge was “germane” to the duties of a military officer, in general.

The problem, Nashiri argues, is that, unlike their CCA counterparts, CMCR judges are not inferior officers for purposes of the Appointments Clause. Rather, they are more analogous to judges of the Court of Appeals for the Armed Forces (CAAF), who Justice Scalia strongly implied in Edmond to be “principal officers,” because, among other things, their decisions are not reviewable by other Executive Branch officers (see especially footnote 2 of Edmond and the accompanying text).