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06/30/2018

Aditya Bamzai on Ortiz v. United States
Michael Ramsey

At Lawfare, Aditya Bamzai (University of Virginia Law School): Reflections on Ortiz and the Structural Separation of Powers.  From the introduction: 

On [June 22], the Supreme Court released its opinion in Ortiz v. United States, a case in which I participated at oral argument as an amicus curiae in January of this year. In relevant part, Ortiz addressed the question whether the Supreme Court has Article III jurisdiction to issue writs of certiorari directly to the Court of Appeals for the Armed Forces (CAAF), an adjudicatory body that sits atop the military justice system for service members. Though called a court by statute, the CAAF (as everyone in the case agreed) is not an Article III tribunal with the Constitution’s life-tenure and salary protections for judges. Instead, it is housed within the executive branch and subject to presidential control—for example, through a provision allowing the president to remove its members for cause. The constitutional question in the case depended on whether these attributes have any impact on the Supreme Court’s ability to assert jurisdiction over, and to supervise, the CAAF directly, as it would any state court or any of the lower federal courts of appeals. I argued that the court lacked Article III jurisdiction. On Friday, the court held that it had jurisdiction. Justice Elena Kagan wrote the court’s opinion, Justice Clarence Thomas a concurring opinion and Justice Samuel Alito a dissent.

As an obscure (not to mention pre-tenure) professor, I was grateful, to say the least, that the justices gave two hoots about what I had to say on the subject of Article III. Now that the opinions are out, I’m doubly grateful that my argument drew reactions from three justices I deeply respect and admire. All that said, I disagree with the Supreme Court’s opinion. In the spirit of a full and frank exchange of ideas, I thought I would briefly explain why.

ALSO:  Professor Bamzai has posted The Attorney General and Early Appointments Clause Practice (93 Notre Dame Law Review 1501 (2018)) on SSRN.  Here is the abstract:

Among the structural provisions of the Constitution are a series of rules specifying the method by which the federal government will be staffed. One of those rules, contained in what is known as the Appointments Clause, establishes the procedures for appointing “all . . . Officers of the United States, whose Appointments are not . . . otherwise provided for” in the Constitution—requiring one mechanism (presidential appointment and senate confirmation) for “principal” officers and permitting a set of alternatives (appointment by the “President alone,” the “Courts of Law,” or the “Heads of Departments”) for “officers” who are considered “inferior.” The Clause has traditionally been understood to require these appointment procedures for a subset of federal government employees who meet some constitutional threshold that establishes their status as “officers,” rather than for all federal employees. In light of that understanding, the Clause naturally raises a question about the precise boundary between constitutional “officers” and other federal “employees”—a question that has recently been the subject of substantial litigation and extensive treatment within the executive branch and the scholarly literature.

The caselaw and the scholarly debate, however, have overlooked a significant source of early interpretations of the Clause: opinions construing the Clause written by the Attorneys General of the United States during the nation’s first century. Ever since the Judiciary Act of 1789, the Attorney General has been authorized “to prosecute and conduct all suits in the Supreme Court in which the United States shall be concerned, and to give his advice and opinion upon questions of law when required by the President of the United States.” Using this authority, several Attorneys General opined on the Clause’s meaning. This Article examines their heretofore-neglected opinions, specifically addressing the opinions’ treatment of the constitutional status of the “deputies” of “officers.”