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11/16/2017

Will Baude on Supreme Court Jurisdiction over Military Appeals [Updated]
Michael Ramsey

At Volokh Conspricay, Will Baude: Supreme Court jurisdiction over the Court of Appeals for the Armed Forces.  He asks: "Does the Supreme Court have jurisdiction to directly review decisions of the Court of Appeals for the Armed Forces at all?"  Maybe not:

In a recent amicus brief in another case, Virginia law professor Aditya Bamzai argued not. The Constitution says that the Supreme Court’s jurisdiction in cases arising under federal law is appellate, not original. And according to no less an authority than Marbury v. Madison, Congress cannot move any cases from the court’s appellate jurisdiction to the original jurisdiction. This means that the Supreme Court can directly review the CAAF only if the case is an appeal, which in Bamzai’s view (and mine) means that the Supreme Court has jurisdiction only if the CAAF is truly a court, in the constitutional sense.

Bamzai argued that the CAAF is not a court, in the constitutional sense, but is a part of the executive branch, staffed by executive-branch appointees who are not given the tenure and protections of Article III. In a blog post responding to Bamzai last year, [Professor Steve] Vladeck argued that CAAF was in fact a court.

I am inclined to agree with Bamzai that the CAAF is not a court, for reasons that I will elaborate on eventually in a paper on so-called legislative courts. But in a nutshell, I think that a court, in the constitutional sense, must be a body that exercises the judicial power of some government and that the CAAF does not exercise any government’s judicial power. (For instance, federal courts exercise “the judicial power of the United States.” State courts exercise “the judicial power” of their respective states. Etc. CAAF falls into none of these categories.)

UPDATE:  Professor Bamzai emails: "Unbeknownst to Will at the time he wrote the post, I have filed a brief in support of neither party in the case currently pending before the Supreme Court."  The brief is posted on SSRN (here).  Here is the abstract: 

This amicus brief in support of neither party [in Dalmazzi et al. v. United States] explains why the Supreme Court lacks jurisdiction to review cases from the Court of Appeals for the Armed Forces ("CAAF"). Though called a "court" by statute, the CAAF is located for constitutional purposes within the Executive Branch and does not exercise the "judicial Power" of the United States or of any sovereign. Chief Justice Marshall's opinion in Marbury v. Madison makes it clear that this Court cannot exercise "appellate Jurisdiction" under Article III directly from an officer of the Executive Branch. There is no basis in law or logic to distinguish between a single officer (James Madison in Marbury) and a body composed of multiple officers (the CAAF), even if the latter is designated a "court" by statute. Accordingly, the Court's exercise of jurisdiction over cases directly from the CAAF violates Article III. The brief canvasses a number of precedents in this area arising from cases involving military commissions, the Court of Federal Claims, petitions for writs of habeas corpus, the Court of Customs and Patent Appeals, and administrative agencies.