Supreme Court

A New Draft: "Adjudication Outside Article III"

A new draft article on so-called "non-Article III courts" with implications for the pending case of Dalmazzi v. United States.


The Supreme Court has 14 cases left to decide this term, one of which is Dalmazzi v. United States. I have posted about Dalmazzi before, but in a nutshell the case concerns both the legality of various appointments to the military appeals courts, and a tricky question of appellate jurisdiction: whether the Supreme Court can take appellate jurisdiction over a case from the Court of Appeals for the Armed Forces. The question is tricky because the Court of Appeals for the Armed Forces is a so-called "non-Article III court," called a court but not staffed by judges who meet Article III's requirements of life tenure and guaranteed compensation.

My pondering this and other questions that I teach in Federal Courts led me to write an article about these entities, and last week I finally posted a draft on SSRN. Here is the abstract:

Article III requires federal courts that exercise federal jurisdiction to be given life tenure and undiminished compensation, limiting Congress's ability to influence the judiciary. But from the beginning, we have accepted certain forms of adjudication outside Article III – state courts, most obviously, but also territorial courts, non-judicial adjudication of public rights, and military tribunals. The question is why.

This article attempts to provide an answer. By uniting Article III and the separation of powers principles underlying the Due Process Clause, this article argues that there are three (and only three) forms of adjudication permissible outside of Article III: (1) Those that exercise the "judicial power" of some other government; (2) those that do not authorize deprivations of life, liberty, or property; and (3) those that are for some reason an exception to normal due process requirements.

Territorial courts (like state courts) fall into the first category. Public rights adjudication falls into the second. Military tribunals fall into the third. Taken together, these categories fit into the text and structure of the Constitution and provide an explanation for our longest standing practices. They point towards limiting principles, and provide answers to many structural and procedural questions about non-Article III adjudication, including the question of appellate jurisdiction currently pending before the Supreme Court in Dalmazzi v. United States.

In the article, I argue that there should be no appellate jurisdiction over a military tribunal like the CAAF, because it is not a court in the constitutional sense. It is a part of the executive branch, unlike territorial courts which exercise the "judicial power" of their respective territories. But we will find out any day now—maybe even tomorrow—whether the Supreme Court agrees.

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  1. 1. Why can the Supreme Court have appellate jurisdiction over state courts whose judges don’t have life tenure? Why does the fact that it’s a different jurisdiction matter?

    2. Why isn’t the military effectively a different jurisdiction? After all, there are explicit exceptions for the military in the Constitution for e.g. the grand jury right.

    1. State courts exercise the “judicial power” of their respective states (as many of the state constitutions say explicitly), so they are courts in the constitutional sense.

      Military “courts” are constitutional, but they are a form of executive power.

      1. Which means they’re ignoring the Constitutional grant of authority to the Supreme Court.

        The Framers didn’t want the United States to even have a standing army, so the provisions for military courts aren’t spelled out in the Constitution. On the other hand, Article III definitely included all cases of Admiralty.

        From a separation-of-powers perspective, the USSC should clearly have appellate authority over military courts, even in cases where the Congress attempts to strip that authority away.

        The legislative branch is about the future… what laws should we make? The executive branch is about right now… how do we react to (situation or crisis)? And the judicial branch is about the past… how do we redress these injustices. Show me the executive who makes absolutely no mistakes, and you can dispanse with the judiciary’s role. Until then, no such luck.

        1. “Article III definitely included all cases of Admiralty”

          Admiralty does not mean jurisdiction over the navy or navy court martial tribunals, rather it is the civil law of the sea.

          1. Bob, try to keep up.
            Admiralty law does not derive naturally from national sovereignty. It applies, expressly, in places where no national sovereignty does not. At the Founding, there was a rich body of Admiralty law, already existent, and yet the Founders placed it under the aegis of the US Supreme Court.

            So follow the logic that was presented to you. The Founders did not expressly place military law under USSC jurisdiction. There are multiple theories as to why this is so. One is that the Founders did not intend military law to fall under their aegis, instead intending that to fall to the Executive, as commander-in-chief. My theory is that the Founders did not explicitly address military law in the Article III grant of authority to the USSC because they did not intend there to be any. The Founders intentionally placing limits on Congress’ authority to keep a standing military suggests this. That they granted authority over Admiralty law (how US flagged vessels interact with vessels of other nations on the seas in peacetime) also suggests that they intended actions during wartime to be subject to USSC appellate review.

            You may disagree with my conclusions, but try to keep criticism of my analysis to only those claims I’ve made, ‘K?

      2. That doesn’t make sense Will. The Constitution is clear that Congress makes the Law(s) concerning the military just as Congress make the Law(s) concerning the federal courts. The Uniform Code of Military Justice (UCMJ) is federal law while the Manual for Courts-Martial (MCM) is the “rule book” for implementing the UCMJ. Are you really saying the SCOTUS has no say over Congressional law?

        1. Added: Also, the military has always recognized that SCOTUS has appellate authority over final determinations deriving from the UCMJ court system.

        2. ” The Constitution is clear that Congress makes the Law(s) concerning the military just as Congress make the Law(s) concerning the federal courts.”

          The argument as I saw it is that military justice falls under the executive, as commander-in-chief, and ultimately the impeachment power if abused. I don’t agree, but that’s a rational argument based on Constitutional text.
          I fall on the other side, that “judicial power” means “judicial power”, and thus at least appellate review of all government actions.

      3. And what about territorial courts? If they exercise the judicial power of the territories, then courts-martial exercise the judicial power of the U.S. military.

        why can not the military be considered a territory in this context?

  2. It seems to me to be difficult to argue that a tribunal that has the power to try infamous crimes and impose the death penalty as punishment isn’t exercising judicial power of some sort. It’s not an article III Court, but I don’t think the only two possible alternatives are article III court or no judicial power exercised.

  3. A very good article. I would point out one apparent error: in the last sentence of the first paragraph on page 46 it says, “It was a mistake to extent the logic of territorial courts to it, and it is not a court in the constitutional sense.”

    I believe you wanted to say ” It was a mistake to EXTEND the logic…”, or the sentence needs a more significant revision. One or the other.

  4. If a military court exercises no Judicial power, how can it impose punishments like imprisonment or death? Yet its power to try capital and infamous crimes is mentioned in the constitution.

    Why couldn’t Congress simply create Article I courts to do everything, thereby depriving the Supreme Court of appellate jurisdiction?

    I think the inexorable conclusion is that the power to try capital and infamous crimes and impose punishments like death and imprisonment is a judicial power; military courts exercise this power. The Constitution and long tradition exempt them from the usual requirements of a civilian judicial tribunal. But the fact that they have the power to try crimes and the power of life and death, makes them judicial enough in nature that the Supreme Court can review their decisions if Congress authorizes it.

  5. This line of argument would imply that the Supreme court would lack jurisdiction to review military tribunals that try enemy combatants for terrorism and war crimes.

    1. Even if Congress granted jurisdiction.

  6. Not sure why this is a big question.

    The Uniform Code of Military Conduct (UCMJ, which Congress passes), addresses this.

    The UCMJ Article 141. Status. states: There is a court of record known as the United States Court of Military Appeals. The court is established under Article 1 of the Constitution. The court is located for administrative purposes only in the Department of Defense.

    If the court is established under the authority of Congress IAW the US Constitution, then it has to follow that the Supreme Court will have appellate jurisdiction.

    1. Typo: Uniform Code of Military Justice (UCMJ)

      1. Also, see this brief.…..States.pdf

        This Court upheld the exercise of appellate jurisdiction
        over non-Article III territorial courts in United
        States v. Coe
        , 155 U.S. 76 (1894). The Court explained
        that Congress’s plenary authority to “make all needful
        Rules and Regulations respecting the Territory or
        other Property belonging to the United States,” U.S.
        Const. Art. IV, ? 3, Cl. 2, authorizes it to establish nonArticle
        III “legislative courts” for the territories. Coe,
        155 U.S. at 85; see American Ins. Co. v. 356 Bales of
        , 26 U.S. (1 Pet.) 511, 546 (1828). And the Court
        concluded that “the judicial action of all inferior courts established by Congress may, in accordance with the
        Constitution, be subjected to the appellate jurisdiction
        of the supreme judicial tribunal of the government.”
        Coe, 155 U.S. at 86.

        Coe is on point.

        1. That also explains why the military has always recognized SCOTUS as having appellate jurisdiction to review final decisions from the UCMJ established United States Court of Military Appeals. This is similar to the way federal courts derive from Congressional law yet SCOTUS has appellate jurisdiction over them as well as territorial courts.

    2. “The court is established under Article 1 of the Constitution.”

      That could be phrased better. Art. I gives Congress the power “To constitute Tribunals inferior to the supreme Court.” So there need not be tension between article I and article III.

      But I presume, of course, that they’re referring to the military clauses of Art. I, not the judicial clause.

    3. Congress (almost) certainly has the power to create a court that would adjudicate violations of the UCMJ. But if it did so, the judges of that court would be entitled to “hold their offices during good behaviour, and [to], at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.” U.S. Const. art. III, ? 1.

      1. And, if those Article III condition applied, so would the other, and the USSC would also have appellate authority over the court.
        The Constitution grants Congress the authority to create inferior courts as Congress shall deem necessary… but the USSC AND such courts, not the USSC OR those courts, can exercise the judicial power. So if those other courts have any judicial power, they fall under the USSC’s purview, by plain reading of the Constitution.

  7. Highly unlikely the Supreme Court says it lacks jurisdiction. Letting someone other than the Nazgul have the last word on some matter is not in the Court’s tradition or maximizing power.

    1. “Letting someone other than the Nazgul have the last word on some matter is not in the Court’s tradition or maximizing power.”

      Of all the branches of the US federal government, only Congress lacks a tradition of maximizing it’s power.

      1. Congress has a couple of instances of trying to maximimze its power with regard to the other federal branches, and a great body of work expanding its power with regard to the states’. (Some of it by amendment, even.)

  8. So how do the FISA courts fit in to your scheme Will?

  9. Professor Baude,

    I am unclear from your article whether your section on the military courts is merely descriptive or if you agree with the precedent.

    I, myself, have issues with Dynes v Hoover in reading the various provisions they do to be unconnected to Article III. I agree that Congress can enact the MCJ and agree in general that Court Martials are permissible and not Article III Courts. But I view their decision as incorrect as to the proper punishments that the Cour Martial can mete out. In my view the proper readings of those clauses allows for more business type punishments (demotions, pay decrease, change in job or location, etc.) but not for deprivations of life and liberty like say incarceration. The only exception would be that detention is permissible when allowing freedom is impractical and they cannot be reasonably be transferred back to the states for punishment in an Article III court (like if it is an active war zone and they can’t get transport). That detention would be similar to pretrial detention in that it is not punitive. Then if the government wishes it can try the soldier in an Article III court to pursue further punishment.

    That system would provide for governance of the military but not deprive the soldier of the proper safeguards that the separation of power provides. It seems more consistent to me, as well, in giving meaning to the constitution as a whole in both text and structure, rather than reading there to be some vague exception.

  10. (Continued)

    The current system is even more troublesome when you realize that the Judge, jury, prosecutor, and likely defense attorney all share the same boss. The selection of jurors also seems to run against the Sixth Amendment. We’d laugh if a civilian or the state tried to claim of jury of you peers can lawfully be restricted to only those that have the same job as you, and yet that is what Courts Martial do.

    Admittedly, I can’t say I’ve done a historical analysis on the origins of Courts Martial or this exception so perhaps there is founding error evidence to support the reading, but the Court first answering it 70 years after the founding generally wouldn’t be enough to prove that is what the Constitution says to originalist.

    I guess this long winded comment is merely a lead to ask if you agree with the current reading or think it needs further evaluation and maybe be revisited?

    1. I don’t think the point is court martial, where a body of officers judge a member of the military. The real question is when the military exerts authority over civilians, such as curfew or trial and punishment of looters in a conflict zone.

      Soldiers who enlist voluntarily subject themselves to the provisions of the UCMJ, including those provisions that are more restrictive than the corresponding Constitutional law for civilians. It’s long-established that people can waive rights guaranteed to them by the Constitution.

      1. Article III isn’t a right it’s a structure of government. That isn’t waivable. Rights also can’t be generally waived, they need to be specifically waived so to the extent this runs against the 6th Amendment merely volunteering isn’t enough of a waiver. It should also be noted that no precedent relies on the voluntary nature of the current armed forces. They applied and would in the future if it occurs to those that were drafted in.

        As for your authority over civilians hasn’t it been pretty clearly held that you can’t be tried in a military court as a civilian if the civilian courts are up and running? I’m not sure what you are getting at.

        1. “Article III isn’t a right it’s a structure of government. That isn’t waivable.”

          You absolutely can waive your right to an Article III adjudication, and then have that waiver honored by an Article III court.

          ” merely volunteering isn’t enough of a waiver.”
          It’s spelled out in the enlistment contract, and, back when I was an enlistee, they also covered it in classroom training at Basic Military Training. If you don’t want to be searched, don’t enter the military installation. Of course, you live and work on the military installation, and not showing up is considered desertion. But you absolutely do not have to be subject to search of your person, effects, and/or vehicle because the Constitution protects you.

          “As for your authority over civilians hasn’t it been pretty clearly held that you can’t be tried in a military court as a civilian if the civilian courts are up and running?”
          Explain how this would be applied if the military had you, continued to hold you while denying holding you, and did not give you any access to an Article III court? Refer to the Military Commissions Act of 2006 as many times as needed.

          Also note the traditional penalty for being caught looting.

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