Terms of office for military judges

James Madison

Congress finally got around to requiring terms of office for all military judges in the Military Justice Act of 2016. The Supreme Court held in Weiss v. United States, 510 U.S. 163 (1994), that due process does not require fixed terms for these judges. Against that backdrop, consider this language from the concurring opinion of Judges Robert L. Wilkins and Judith W. Rogers in PHH Corp. v. Consumer Financial Protection Bureau (D.C. Cir. Jan. 31, 2018) (en banc):

From the time of the Constitution’s enactment, the Framers recognized that adjudication poses a special circumstance. Even James Madison, one of strongest and most articulate proponents “for construing [Article II] to give the President the sole power of removal in his responsibility for the conduct of the executive branch,” Myers v. United States, 272 U.S. 52, 117 (1926) (citation omitted), acknowledged the “strong reasons why” an executive officer who adjudicates disputes “between the United States and particular citizens . . . should not hold his office at the pleasure of the Executive branch of the Government.” 1 ANNALS OF CONG. 611-12 (1789) (Joseph Gales ed., 1834) (statement of James Madison). Consistent with Madison’s view, the Supreme Court has held that the evaluation of removal restrictions for an officer “will depend upon the character of the office.” Humphrey’s Executor v. United States, 295 U.S. 602, 631 (1935). As a result, the scrutiny of a removal restriction for an officer “with no duty at all related to either the legislative or judicial power,” differs from that of an officer who “perform[s] other specified duties as a legislative or as a judicial aid,” as the latter “must be free from executive control,” id. at 627-28. The Court continued:

We think it plain under the Constitution that illimitable power of removal is not possessed by the President in respect of officers of the character of those just named. The authority of Congress, in creating quasi legislative or quasi judicial agencies, to require them to act in discharge of their duties independently of executive control cannot well be doubted; and that authority includes, as an appropriate incident, power to fix the period during which they shall continue, and to forbid their removal except for cause in the meantime. For it is quite evident that one who holds his office only during the pleasure of another cannot be depended upon to maintain an attitude of independence against the latter’s will.

Id. at 629.

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