Although government appeals from the Court of Appeals for the Armed Forces appear to present a conflict between a servicemember and the executive branch, the Court’s characterization of the military justice system in Edmond raised the possibility that these appeals in fact represent an executive challenge to executive action, in violation of the separation of powers and Article III. This Comment uses the evolving nature of the military justice system as a lens for examining the Court’s jurisprudence on the adverseness requirement of Article III and the bar on intrabranch litigation. The recent decision in Ortiz v. United States, while not directly addressing this issue, serves to reconcile these doctrines by framing the work of the CAAF as closer to that of a civilian court than an executive branch entity. Furthermore, the analysis in Ortiz indicates a broader willingness in the Court’s military justice jurisprudence to take a functionalist approach to separation of powers concerns, minimizing the significance of original understanding and the unitary executive theory in favor of amore pragmatic, modern view of military discipline.If you know of other articles in the law reviews, please send links. H/T to Don Rehkopf, a voracious reader of the professional literature, for this one.
Thursday, December 31, 2020
Government appeals from CAAF decisions
Andrea Nishi, Ortiz and the Problem of Intrabranch Litigation, 120 Colum. L. Rev. Forum 118 (May 21, 2020). She concludes: