UNITED STATES, Appellee, v. Charles M. LANE, Airman First Class, U.S. Air Force, Appellant.
No. 05-0260. Crim.App. No. S30339.
U.S. Court of Appeals for the Armed Forces.
Argued Nov. 8, 2005. Decided Sept. 20, 2006.
For Appellant: Major Andrew S. Williams (argued); Colonel Carlos L. McDade and Lieutenant Colonel Craig S. Cook (on brief); Lieutenant Colonel Mark R. Strickland.
For Appellee: Major Michelle M. Lindo McCluer (argued); Lieutenant Colonel Robert V. Combs, Lieutenant Colonel Gary F. Spencer, and Major John C. Johnson (on brief); Captain C. Taylor Smith.
Amici Curiae for Appellant: Arthur W.S. Duff (argued); Jonathan D. Hacker, Garrett W. Wotkyns, Arthur B. Spitzer, Eugene R. Fidell, Stephen A. Saltzburg, and J. Abraham Sutherland (law student)(on brief)--for the American Civil Liberties Union of the National Capital Area and the National Institute of Military Justice.
Pursuant to
The Incompatibility Clause of the Constitution provides that “no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.”4 The issue before this Court is whether the assignment of a Member of Congress to the Air Force Court of Criminal Appeals is proper under the Constitution.5 For the reasons set forth below, we conclude that a Member of Congress may not hold the office of appellate judge on a Court of Criminal Appeals.
FACTS
At a special court-martial composed of a military judge sitting alone, Appellant was convicted, pursuant to his plea, of wrongful use of cocaine, in violation of
The Air Force Court of Criminal Appeals reviewed the case pursuant to
Senator Graham served on the panel of the Court of Criminal Appeals that reviewed Appellant‘s case. Senator Graham is an officer in the United States Air Force Standby Reserve.9 Pursuant to applicable regulations, he has been designated as a “key employee” assigned to the Active Status List within the Standby Reserve, where he is eligible to participate in reserve training activities without pay, earn retirement points, and compete for promotion.10 Appellant moved to disqualify Judge Graham on several grounds, citing, inter alia, the Incompatibility Clause of the Constitution of the United States. The lower court denied the motion and affirmed the findings and the sentence.11 Appellant has renewed his challenge to Judge Graham in his appeal to this Court.
I. STANDING
Initially, we must address whether Appellant has standing to assert this claim of constitutional error. The present case is
The Government contends that Appellant lacks standing to challenge the panel in his case because he has not suffered an injury to a legally protected interest. Contrary to the Government‘s assertion, the constitutionality of the assignment of a person to serve as a judge on a Court of Criminal Appeals is not an abstract question. The fact that a Member of Congress sat as a judge in this criminal case relates to the rights and liberties of a specific individual, Appellant. The direct liberty implications for Appellant make this case distinct from other abstract circumstances where the Incompatibility Clause might be implicated. Consistent with the Supreme Court position in Ryder, Appellant is entitled to a decision as to the constitutional validity of the appointment of an officer who adjudicated his case.16
The Government also contends that Appellant lacks standing because Incompatibility Clause determinations are the sole province of Congress. In support of this contention, the Government asserts that the Incompatibility Clause constitutes qualification for congressional service, not a disqualification from executive branch service, making it a nonjusticiable political question. The Government further asserts that, in any case, Congress would not find a violation because service in the Standby Reserve does not make a person an officer of the United States.
The issue before us is not whether the duties of a person in the Standby Reserve, in the abstract, are of sufficient significance to constitute an office of the United States for purposes of qualification to serve as a Member of Congress under the Incompatibility Clause. The issue before us is whether a criminal conviction and sentence, which by statute can be sustained only by an affirmative appellate decision, may be reviewed by an appellate judge who simultaneously serves as a Member of Congress.
Under the Government‘s theory of standing, no citizen could cite the Incompatibility Clause in challenging a governmental decision bearing directly on the life, liberty, or property of the citizen. Members of Congress could serve as the heads of departments and regulatory agencies, simultaneously participating in the passage of legislation and in the execution of the laws. A person against whom such a law was executed, under the Government‘s theory, could not challenge the participation of Members of Congress in the enforcement
II. BACKGROUND
A. SUPREME COURT PRECEDENT REAFFIRMING THE PRINCIPLE OF SEPARATION OF POWERS
In Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976),17 the Supreme Court emphasized the significance of the bedrock constitutional principle of separation of powers as this principle applies to the appointment and assignment of persons holding federal office. In Buckley, the plaintiffs challenged the appointment of the Federal Election Commission members on separation of powers grounds. “The Court agreed with them and held that the appointment of four members of the commission by Congress, rather than the President, violated the Appointments Clause.”18
In doing so, the Supreme Court reaffirmed the vital role of the separation of powers constitutional principle stating that “The principle of separation of powers was not simply an abstract generalization in the minds of the Framers: it was woven into the document that they drafted in Philadelphia in the summer of 1787.”19
In Buckley, the Supreme Court also analyzed and relied on related constitutional threads “woven into the document” tied to the principle of separation of powers--the Appointments Clause and the Ineligibility and Incompatibility Clauses.20 Importantly, the Supreme Court explained the close relationship among these clauses.21
After reviewing the primary sources of legislative, executive, and judicial powers, the Supreme Court observed: “The further concern of the Framers of the Constitution with maintenance of the separation of powers is found in the so-called ‘Ineligibility’ and ‘Incompatibility’ Clauses contained in Art. I, § 6....” 22 The Supreme Court observed that these “cognate provisions” provided the context for interpreting the Appointments Clause of the Constitution.23
The Supreme Court in Buckley generally defined and thereby identified those federal government positions to which the Appointments Clause pertains. The Supreme Court observed that the term “Officers of the United States” includes “all persons who can be said to hold an office under the Government.”24 The Supreme Court also stated that “any appointee exercising significant authority pursuant to the laws of the United States is an ‘Officer of the United States’ under the Appointments Clause.”25
B. SUPREME COURT PRECEDENT APPLYING THESE PRINCIPLES TO JUDGES APPOINTED TO A COURT OF CRIMINAL APPEALS
The Supreme Court applied these principles in a trilogy of Appointments Clause cases involving the assignment of persons to sit as judges on the Courts of Criminal Appeals.26 In so doing, the Supreme Court
In Weiss v. United States, the Supreme Court stated that military judges, including appellate judges, are “Officers” of the United States who “must be appointed pursuant to the Appointments Clause.”27 The Supreme Court held that presidential nomination and Senate confirmation of a person as a military officer would satisfy the Appointments Clause with respect to the assignment of such an officer to the military judiciary.28
In Ryder, the second case, the Supreme Court addressed the assignment of two civilians by the General Counsel of the Department of Transportation to serve as judges on the Coast Guard Court of Military Review (now the Coast Guard Court of Criminal Appeals).29 During direct review, the servicemember had challenged the composition of the panel that reviewed his case under
After noting that the Appointments Clause “is a bulwark against one branch aggrandizing its power at the expense of another,” the Supreme Court added: “[B]ut it is more: it ‘preserves another aspect of the Constitution‘s structural integrity by preventing the diffusion of the appointment power.’ ”32 The Supreme Court also noted that it would not invoke the de facto officer doctrine in a case involving “basic constitutional protections designed for the protection of litigants.”33 In the course of rejecting the government‘s contention that any error in the appointment of these appellate judges was harmless, the Supreme Court emphasized the unique powers of intermediate courts under
In the third case, Edmond, the Supreme Court considered the assignment of civilian judges at the Coast Guard Court of Criminal Appeals after appointment by the head of a department, the Secretary of Transportation.35 The Supreme Court held that appointment by a department head met the terms of the inferior officers provision of the Appointments Clause, and that the Constitution did not require presidential appointment and Senate confirmation of these judges.36 The Supreme Court emphasized that treatment of the judges on the Courts of Criminal Appeals as “inferior officers” reflected the applicable supervisory hierarchy, including review by our Court.37 The Supreme Court took the opportunity to underscore the significant authority exercised by judges on the Courts of Criminal Appeals as “Officers of the United States“: “We do not dispute that military appellate judges are charged with exercising significant authority on behalf of the United States. This, however, is also true of offices that we have held were ‘inferior’ within the meaning of the Appointments Clause.”38 The Supreme Court added: “The exercise of ‘significant authority pursuant to the laws of the United States’ marks, not the
III. DISCUSSION
Appellant asserts that the participation of a Member of Congress as an appellate judge in this case violates the Incompatibility Clause of the United States Constitution that provides: “no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.”40 The Supreme Court has noted that “The Constitution thereby prohibits Members of Congress from holding other offices through [this] limitation, the Incompatibility Clause.”41
In Buckley, the Supreme Court reaffirmed the principle of separation of powers and the operation of both the Appointments Clause and the Incompatibility Clause to bolster this principle.42 As to the Appointments Clause, the Supreme Court stated it is critical to the structural integrity of the Constitution, not a mere form of “etiquette or protocol.”43 Addressing the Incompatibility Clause, the Supreme Court stated that “The further concern of the Framers of the Constitution with maintenance of the separation of powers is found in the so-called ‘Ineligibility’ and ‘Incompatibility’ Clauses....” 44
Indeed, “the Incompatibility Clause plays a vital role in our constitutional scheme ... by reinforcing the separation of powers.”45 Further, “the Incompatibility Principle has become one of the five great distinguishing structural features of our constitutional system, along with checks and balances, separation of powers, bicameralism, and federalism.”46
We review the assignment of judges to the Courts of Criminal Appeals in the context of pertinent Supreme Court precedents addressing the Appointments Clause, described in Section II, supra. The Supreme Court has instructed “that the Constitution‘s terms are illuminated by their cognate provisions.”47 In view of the close relationship between the Appointments Clause and the Incompatibility Clause as “cognate provisions,”48 the precedents developed under the Appointments Clause provide the appropriate framework for interpreting the Incompatibility Clause.
In the Appointments Clause cases discussed in Section II, supra, the Supreme Court emphasized that an appellate judge serving on a Court of Criminal Appeals exercises significant authority on behalf of the United States in adjudicating the rights of servicemembers. In that capacity, a judge on a Court of Criminal Appeals holds an “office under the government” that must be filled by an “Officer of the United States” under the Appointments Clause.49
In the context of the Incompatibility Clause--a “cognate provision“--the term “office” should be given the same meaning. Accordingly, the Incompatibility Clause--which prohibits a Member of Congress from “holding any Office under the United States“--precludes a Member from serving as an appellate judge on a Court of Criminal Appeals--an “office” that must be filled by an “Officer of the United States.”
The present problem before this Court is the judge‘s simultaneous service as a Member of Congress and an appellate judge. The
The present case does not require us to determine the qualification of an individual to serve as a Member of Congress; nor does it require us to define the scope of the standing of citizens in general to litigate the relationship between congressional service and membership in the Reserves.52 Military status simply is not an issue. The foregoing principles apply equally to all who would act as judges on the Court of Criminal Appeals, whether as a civilian or as a military officer.
In this case, a Member of Congress is serving in a position that requires the exercise of judicial power to affirmatively find beyond a reasonable doubt that an accused committed a criminal offense, that there is no prejudicial error, and that the sentence is lawful and appropriate.53 A position that requires the exercise of those powers is an office of the United States and cannot be filled by a person who simultaneously serves as a Member of Congress. We conclude that Appellant has a right in such a proceeding to have his case decided by a judge who is not then a Member of Congress.
CONCLUSION
Like the servicemember in Ryder, Appellant in the present case properly challenged the constitutionality of the assignment of a person to serve on the panel reviewing his case.54 The legal defect here is in the assignment of a Member of Congress to be a judge on the Air Force Court of Criminal Appeals. The assignment of a Member of Congress to serve in such an office violated the Incompatibility Clause, a provision essential to the structural integrity of the Constitution. As a result, the panel was not properly constituted. Only a properly constituted appellate panel can complete the review required by
DECISION
The decision of the United States Air Force Court of Criminal Appeals is set aside. The record of trial is returned to the Judge Advocate General of the Air Force for a new review by the United States Air Force Court of Criminal Appeals.
CRAWFORD, Judge (dissenting).
I respectfully dissent from the majority‘s conclusion that the proceedings at the lower court are invalid and void for the following reasons. First, assuming Appellant has standing, the majority‘s holding that the assignment of a Member of Congress who is a Standby Reserve officer to a panel of the lower court violates the Incompatibility and Ineligibility Clauses in Article I, Section 6 of the United States Constitution is inconsistent with the text, history, tradition, and precedent of the clauses. Second, assuming a constitutional error, that error was harmless beyond a reasonable doubt. Finally, assum
Pursuant to his pleas, Appellant was convicted of wrongfully using cocaine in violation of
TEXT, HISTORY, TRADITION, AND PRECEDENT
A. Introduction
The Constitution sets up a governmental structure with three branches of government to serve as a check on each other because of their distinctive organizations, responsibilities, and procedures. This principle of separation of powers, recognized in United States v. Scheffer, 523 U.S. 303, 311-12, 118 S.Ct. 1261, 140 L.Ed.2d 413 (1998), permits the government to operate efficiently and preserves the initiative of those serving in the various branches and the right of ordinary citizens in exercising their right to vote.
Over time, from one generation to the next, the Constitution has come to earn the high respect and even, as Madison dared to hope, the veneration of the American people.... The document sets forth, and rests upon, innovative principles original to the American experience, such as federalism; a proven balance in political mechanisms through separation of powers; specific guarantees for the accused in criminal cases; and broad provisions to secure individual freedom and preserve human dignity. These doctrines and guarantees are central to the American experience and remain essential to our present-day self-definition and national identity. Roper v. Simmons, 543 U.S. 551, 578, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005).
The checks and balances set forth below ensure that Senator Graham‘s position as an appellate judge is not incompatible with being a Member of Congress and does not interfere with the separation of powers between the executive, legislative, and judicial branches.
B. Text
The Ineligibility and Incompatibility Clauses in Article I, Section 6 of the Constitution provide as follows: “[n]o Senator ... shall ... be appointed to any civil Office under the Authority of the United States” and “no Person holding any Office under the United States shall be a Member of either House.”1 Do the terms “civil Office” or “Office under the United States” include a trial or appellate judge in the military?
Certainly, the plain meaning of these clauses ensures that the branches of government remain structurally independent and that a Member of Congress is not in control
The Constitution appears to be exclusive in defining these responsibilities and powers permitting a balance and excluding one decision maker from usurping another‘s power. These powers do not fit into neat categories, but the Constitution is designed to secure, so far as possible, that the separation of powers boundary lines are not crossed. “While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government.” Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635, 72 S.Ct. 863, 96 L.Ed. 1153 (1952).
C. History
The Journal of the Federal Convention was to be secret and William Jackson, Secretary, was required to destroy all scraps of paper. The notes of each member were turned over to him and the record was created. 1 The Records of the Federal Convention of 1787, at xi-xxv (Max Farrand ed., Yale Univ. Press 1966). These notes, which the majority ignores, help in interpreting the intent of the drafters of these relevant provisions of the Constitution.
The original clauses in Article I, Section 6 of the Constitution were put forth by Edmond Randolph and “Res[olve]d that members of the First Branch of the National Legislature ought to be ... ineligible to any office established by a particular State, or under the authority of the United States ... during a term of service, and for the space of its expiration.” 1 Farrand, supra, at 20. The members were concerned about the President rewarding members of the legislature with official posts. See id. at 386. James Madison was concerned with the unnecessary creation of offices. Id. Alexander Hamilton stated:
Our prevailing passions are ambition and interest; and it will ever be the duty of a wise government to avail itself of those passions, in order to make them subservient to the public good for these ever induce us to action. Perhaps a few men in a state, may, from patriotic motives, or the display of their talents, or to reap the advantage of public applause, step forward; but if we adopt the clause (ineligibility), we destroy the motive.
Id. at 381.
The Incompatibility Clause ensures separation of the branches and prevents one branch from rewarding another branch by giving it an appointment within that branch. Generally, the Incompatibility Clause is designed to prevent full-time positions under certain circumstances, not part-time positions. But such simultaneous holding of legislative and executive office does not:
present an insuperable difficulty .... In the face of this provision the President might still constitute a cabinet council out of the chairmen of the principal congressional committees and then put his own powers and those of the heads of departments at the disposal of this council.
Edward S. Corwin, The President, Office and Powers 1787-1957 14 (Randall W. Bland et al. eds., 5th ed.1984); see also Harold J. Laski, The American Presidency, Interpretation 70-110 (1940); M.J.C. Vile, Politics in the USA 195-200 (1970). The drafters thought that the simultaneous holding of offices by a Member of Congress would be permissible either as the head of an executive department or cabinet and being a Member of Congress with the right of attendance but not the right to vote. Such a Member could participate in Congressional debate. Corwin, supra, at 296.
D. Tradition
The Incompatibility Clause was not designed to prevent Members of Congress from being members of the militia, the National Guard, or the Reserves. See Schlesinger, 418 U.S. at 210 n. 2, 94 S.Ct. 2925. If Professor Corwin is right that there may be “cabinet councils,” then the
In addition to a majority exercising the ballot box, Article I, Section 5 of the Constitution provides that “[e]ach House may determine the Rules of its Proceedings [and] punish its Members for disorderly Behaviour....” This provides congressional oversight.
If Congress thought there was a potential violation by Senator Graham, they were free to take action. See
E. Precedent
The President has the authority to nominate individuals to be federal officers who should be confirmed “with the Advice and Consent of the Senate.”
“Officers of the United States” as used in the Appointments Clause applies at least to commissioned officers and is not the same as “civil Office under the Authority of the United States” or “Office under the United States.” Edmond, 520 U.S. at 656-66, 117 S.Ct. 1573 (reappointment not needed because judges were “Officers of the United States“); see also Weiss v. United States, 510 U.S. 163, 172-76, 114 S.Ct. 752, 127 L.Ed.2d 1 (1994); Ryder, 515 U.S. at 180-85, 115 S.Ct. 2031.
We should not expand Edmond, Ryder, and Weiss beyond what they hold. None of these cases cited by the majority has addressed the Incompatibility or Ineligibility Clauses in Article I. A number of the cases cited address presidential and congressional authority under the Appointments Clause. In Edmond, the Supreme Court held that military judges are inferior officers appropriately appointed by the President and do not have to be reappointed to serve as a trial or appellate judge. 520 U.S. at 656-66, 117 S.Ct. 1573. While appointed by the Judge Advocate General, they may not be subject to unlawful command influence. Weiss, 510 U.S. at 180, 114 S.Ct. 752. The Supreme
Both Edmond and Weiss imply that being a military judge, which is an “inferior office,” is not an “Office under the Authority of the United States” under the Ineligibility Clause or “holding any Office under the United States” under the Incompatibility Clause. While the framers gave little guidance as to “inferior” and “principal” officers, the Supreme Court did give more guidance as to the clauses in Edmond. 520 U.S. at 660-61, 117 S.Ct. 1573. In Freytag v. Commissioner, 501 U.S. 868, 881, 111 S.Ct. 2631, 115 L.Ed.2d 764 (1991), the Supreme Court held that special trial judges were officers, albeit inferior officers, because their positions were “established by law” under Article II, Section II, Clause 2 of the Constitution, and their duty salaries and appointments were specified by statute. See also United States v. Germaine, 99 U.S. 508, 511-12, 25 L.Ed. 482 (1879). Edmond dealt with the question of whether military judges required Senate confirmation because the judges were considered to be inferior officers rather than principal officers even though long-standing tradition was otherwise. 520 U.S. at 655-66, 117 S.Ct. 1573. The Supreme Court concluded that military trial judges did not have to be confirmed by the Senate. Id.
Who may appoint inferior officers and who are heads of departments are entirely different questions than the issue presented here. Justice Scalia explained in Edmond:
Generally speaking, the term “inferior officer” connotes a relationship with some higher ranking officer or officers below the President: whether one is an “inferior officer” depends on whether he has a superior. It is not enough that other officers may be identified who formally maintain a higher rank, or possess responsibilities of a greater magnitude.
520 U.S. at 662-63, 117 S.Ct. 1573. The Supreme Court made clear in Edmond that inferior officers are officers whose work is directed and supervised at some level by others who are appointed by presidential nomination with the advice and consent of the Senate. Id. at 659-63, 117 S.Ct. 1573. The majority reads too much into these opinions without focusing on their text, history, and precedent.
There is no indication in the UCMJ, including
To rely on the Incompatibility Clause to disqualify Senator Graham expands precedent and overlooks the practice of appointing members of the Senate to serve on diplomatic or semi-diplomatic missions. See Corwin, supra, at 86. It also undermines the practice of Members of Congress being members of the Reserves, National Guard, and militia. The office held by Senator Graham existed prior to his serving on the appellate court.
HARMLESS BEYOND A REASONABLE DOUBT
If there was a violation of the Incompatibility Clause, Appellant has not established any actual adverse impact on his findings or sentence. Both the Congress in enacting
PROSPECTIVE RULE
If relief is to be granted, it should be granted prospectively and not to all cases on direct review. Griffith v. Kentucky, 479 U.S. 314, 321-22, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987). The efficient operation of the military justice system is important for maintaining good order and discipline in the armed forces. In a number of cases the Supreme Court has recognized the public interest in avoiding retroactive invalidation of actions by public officials. The Supreme Court has avoided retroactive application of decisions that challenge the appointment of officers or the exercise of their power. Buckley, 424 U.S. at 142, 96 S.Ct. 612 (Appointments Clause violation); Northern Pipeline Construction Co., 458 U.S. at 87-88, 102 S.Ct. 2858 (plurality opinion holding the unconstitutional grant of authority to bankruptcy judges did not invalidate prior acts); Cipriano, 395 U.S. at 706, 89 S.Ct. 1897 (declining to invalidate municipal bonds issued by unconstitutionally elected body). While a trial should be free of constitutional violations, when, as in this case, an accused has shown no prejudice, there is no requirement for a readjudication of the findings or sentence. The judges on the Courts of Criminal Appeals are an integral part of the military justice system and the failure to demonstrate any meaningful likelihood of prejudice requires affirmance of the court below.
CONCLUSION
Assuming standing, the assignment of Senator Graham as an appellate judge is not inconsistent with the text, history, tradition, and precedent of the Incompatibility and Ineligibility Clauses. Thus, I respectfully dissent.
Notes
[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.