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Ortiz v. United States

United States Supreme Court

June 22, 2018

KEANU D. W. ORTIZ, PETITIONER
v.
UNITED STATES

          Argued January 16, 2018

          ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

         Syllabus

         Congress has long provided for specialized military courts to adjudicate charges against service members. Today, courts-martial hear cases involving crimes unconnected with military service. They are also subject to several tiers of appellate review, and thus are part of an integrated "court-martial system" that resembles civilian structures of justice. That system begins with the court-martial itself, a tribunal that determines guilt or innocence and levies punishment, up to lifetime imprisonment or execution. The next phase occurs at one of four appellate courts: the Court of Criminal Appeals (CCA) for the Army, Navy-Marine Corps, Air Force, or Coast Guard. They review decisions where the sentence is a punitive discharge, incarceration for more than one year, or death. The Court of Appeals for the Armed Forces (CAAF) sits atop the court-martial system. The CAAF is a "court of record" composed of five civilian judges, 10 U.S.C. §941, which must review certain weighty cases and may review others. Finally, 28 U.S.C. §1259 gives this Court jurisdiction to review the CAAF's decisions by writ of certiorari.

         Petitioner Keanu Ortiz, an Airman First Class, was convicted by a court-martial of possessing and distributing child pornography, and he was sentenced to two years' imprisonment and a dishonorable discharge. An Air Force CCA panel, including Colonel Martin Mitchell, affirmed that decision. The CAAF then granted Ortiz's petition for review to consider whether Judge Mitchell was disqualified from serving on the CCA because he had been appointed to the Court of Military Commission Review (CMCR). The Secretary of Defense had initially put Judge Mitchell on the CMCR under his statutory authority to "assign [officers] who are appellate military judges" to serve on that court. 10 U.S.C. §950f(b)(2). To moot a possible constitutional problem with the assignment, the President (with the Senate's advice and consent) also appointed Judge Mitchell to the CMCR pursuant to §950f(b)(3). Shortly thereafter, Judge Mitchell participated in Ortiz's CCA appeal.

         Ortiz claimed that Judge Mitchell's CMCR appointment barred his continued CCA service under both a statute and the Constitution. First, he argued that the appointment violated §973(b)(2)(A), which provides that unless "otherwise authorized by law," an active-duty military officer "may not hold, or exercise the functions of," certain "civil office [s]" in the federal government. Second, he argued that the Appointments Clause prohibits simultaneous service on the CMCR and the CCA. The CAAF rejected both grounds for ordering another appeal.

         Held:

1. This Court has jurisdiction to review the CAAF's decisions. The judicial character and constitutional pedigree of the court-martial system enable this Court, in exercising appellate jurisdiction, to review the decisions of the court sitting at its apex.
An amicus curiae, Professor Aditya Bamzai, argues that cases decided by the CAAF do not fall within Article Ill's grant of appellate jurisdiction to this Court. In Marbury v. Madison, 1 Cranch 137, Chief Justice Marshall explained that "the essential criterion of appellate jurisdiction" is "that it revises and corrects the proceedings in a cause already instituted, and does not create that cause." Id., at 175. Here, Ortiz's petition asks the Court to "revise and correct" the latest decision in a "cause" that began in and progressed through military justice "proceedings." Unless Chief Justice Marshall's test implicitly exempts cases instituted in a military court, the case is now appellate.
There is no reason to make that distinction. The military justice system's essential character is judicial. Military courts decide cases in strict accordance with a body of federal law and afford virtually the same procedural protections to service members as those given in a civilian criminal proceeding. The judgments a military tribunal renders "rest on the same basis, and are surrounded by the same considerations[, as] give conclusiveness to the judgments of other legal tribunals." Ex parte Reed, 100 U.S. 13, 23. Accordingly, such judgments have res judicata and Double Jeopardy effect. The jurisdiction and structure of the court-martial system likewise resemble those of other courts whose decisions this Court reviews. Courts-martial try service members for garden-variety crimes unrelated to military service, and can impose terms of imprisonment and capital punishment. Their decisions are also subject to an appellate process similar to the one found in most States. And just as important, the constitutional foundation of courts-martial is not in the least insecure. See Dynes v. Hoover, 20 How. 65, 79. The court-martial is older than the Constitution, was recognized and sanctioned by the Fram-ers, and has been authorized here since the first Congress. Throughout that history, courts-martial have operated as instruments of military justice, not mere military command. They are bound, like any court, by the fundamental principles of law and the duty to adjudicate cases without partiality.
Bamzai argues that the Court lacks jurisdiction because the CAAF is not an Article III court, but is instead in the Executive Branch. This Court's appellate jurisdiction, however, covers more than the decisions of Article III courts. This Court can review proceedings of state courts. See Martin v. Hunter's Lessee, 1 Wheat. 304. It can also review certain non-Article III judicial systems created by Congress. In particular, the Court has upheld its exercise of appellate jurisdiction over decisions of non-Article III territorial courts, see United States v. Coe, 155 U.S. 76, and it has uncontroversially exercised appellate jurisdiction over non-Article III District of Columbia courts, see Palmore v. United States, 411 U.S. 389. The non-Article III court-martial system stands on much the same footing as territorial and D. C. courts. All three rest on an expansive constitutional delegation, have deep historical roots, and perform an inherently judicial role. Thus, in Palmore, this Court viewed the military, territories, and District as "specialized areas having particularized needs" in which Article III "give[s] way to accommodate plenary grants of power to Congress." Id., at 408.
Bamzai does not provide a sufficient reason to divorce military courts from territorial and D. C. courts when it comes to defining this Court's appellate jurisdiction. He first relies on the fact that territorial and D. C. courts exercise power over discrete geographic areas, while military courts do not. But this distinction does not matter to the jurisdictional inquiry. His second argument focuses on the fact that the CAAF is in the Executive Branch. In his view, two of the Court's precedents-Ex parte Vallandigham, 1 Wall. 243, and Mar-bury, 1 Cranch 137-show that the Court may never accept appellate jurisdiction from any person or body within that branch. As to Vallandigham, that case goes to show only that not every military tribunal is alike. Unlike the military commission in Vallandigham, which lacked "judicial character," 1 Wall., at 253, the CAAF is a permanent court of record established by Congress, and its decisions are final unless the Court reviews and reverses them. As to Marbury, James Madison's failure to transmit William Marbury's commission was not a judicial decision by a court. Here, by contrast, three constitutionally rooted courts rendered inherently judicial decisions. Pp. 5-19.
2. Judge Mitchell's simultaneous service on the CCA and the CMCR violated neither §973(b)(2)(A) nor the Appointments Clause. Pp. 19-25.
(a)The statutory issue turns on two interlocking provisions. Section 973(b)(2)(A) is the statute that Ortiz claims was violated here. It prohibits military officers from "hold[ing], or exercis[ing] the functions of," certain "civil office [s]" in the federal government, "[e]xcept as otherwise authorized by law." Section 95Of(b) is the statute that the Government claims "otherwise authorize [s]" Judge Mitchell's CMCR service, even if a seat on that court is a covered "civil office." It provides two ways to become a CMCR judge. Under §950f(b)(2), the Secretary of Defense "may assign" qualified officers serving on a CCA to be judges on the CMCR. Under §950f(b)(3), the President (with the Senate's advice and consent) "may appoint" persons- whether officers or civilians is unspecified-to CMCR judgeships.
Ortiz argues that Judge Mitchell was not "authorized by law" to serve on the CMCR after his appointment because §950f(b)(3) makes no express reference to military officers. In the circumstances here, however, the express authorization to assign military officers to the CMCR under §950f(b)(2) was the only thing necessary to exempt Judge Mitchell from §973(b)(2)(A). Once the Secretary of Defense placed Judge Mitchell on the CMCR pursuant to §950f(b)(2), the President's later appointment made no difference. It did not negate the Secretary's earlier action, but rather ratified what the Secretary had already done. Thus, after the appointment, Judge Mitchell served on the CMCR by virtue of both the Secretary's assignment and the President's appointment. And because §950f(b)(2) expressly authorized the Secretary's assignment, Judge Mitchell's CMCR service could not run afoul of §973(b)(2)(A)'s general rule. Pp. 20-23.
(b) Ortiz also raises an Appointments Clause challenge to Judge Mitchell's simultaneous service on the CCA and the CMCR. That Clause distinguishes between principal officers and inferior officers. CCA judges are inferior officers. Ortiz views CMCR judges as principal officers. And Ortiz argues that, under the Appointments Clause, a single judge cannot serve as an inferior officer on one court and a principal officer on another. But the Court has never read the Appointments Clause to impose rules about dual service, separate and distinct from methods of appointment. And if the Court were ever to apply the Clause to dual-officeholding, it would not start here. Ortiz does not show how Judge Mitchell's CMCR service would result in "undue influence" on his CCA colleagues. Pp. 23-25.

76 M. J. 125 and 189, affirmed.

          KAGAN, J., delivered the opinion of the Court, in which ROBERTS, C. J., and Kennedy, Thomas, Ginsburg, Breyer, and Sotomayor, JJ., joined. THOMAS, J., filed a concurring opinion. ALITO, J., filed a dissenting opinion, in which GORSUCH, J., joined.

          OPINION

          KAGAN JUSTICE.

         This case is about the legality of a military officer serving as a judge on both an Air Force appeals court and the Court of Military Commission Review (CMCR). The petitioner, an airman convicted of crimes in the military justice system, contends that the judge's holding of dual offices violated a statute regulating military service, as well as the Constitution's Appointments Clause. The Court of Appeals for the Armed Forces (CAAF) rejected those claims, and we granted a petition for certiorari. We hold first that this Court has jurisdiction to review decisions of the CAAF, even though it is not an Article III court. We then affirm the CAAF's determination that the judge's simultaneous service was lawful.

         I

         In the exercise of its authority over the armed forces, Congress has long provided for specialized military courts to adjudicate charges against service members. Today, trial-level courts-martial hear cases involving a wide range of offenses, including crimes unconnected with military service; as a result, the jurisdiction of those tribunals overlaps substantially with that of state and federal courts. See Solorio v. United States, 483 U.S. 435, 436 (1987); United States v. Kebodeaux, 570 U.S. 387, 404 (2013) (ALITO, J., concurring in judgment). And courts-martial are now subject to several tiers of appellate review, thus forming part of an integrated "court-martial system" that closely resembles civilian structures of justice. United States v. Denedo, 556 U.S. 904, 920 (2009); see Weiss v. United States, 510 U.S. 163, 174 (1994).

         That system begins with the court-martial itself, an officer-led tribunal convened to determine guilt or innocence and levy appropriate punishment, up to lifetime imprisonment or execution. See 10 U.S.C. §§816, 818, 856a. The next phase of military justice occurs at one of four appellate courts: the Court of Criminal Appeals (CCA) for the Army, Navy-Marine Corps, Air Force, or Coast Guard. Those courts, using three-judge panels of either officers or civilians, review all decisions in which the sentence imposed involves a punitive discharge, incarceration for more than one year, or death. See §§866(a)-(c). Atop the court-martial system is the CAAF, a "court of record" made up of five civilian judges appointed to serve 15-year terms. §941; see §§942(a)-(b). The CAAF must review certain weighty cases (including those in which capital punishment was imposed), and may grant petitions for review in any others. See §867. Finally, this Court possesses statutory authority to step in afterward: Under 28 U.S.C. §1259, we have jurisdiction to review the CAAF's decisions by writ of certiorari.

         Petitioner Keanu Ortiz's case has run the gamut of this legal system. Ortiz, an Airman First Class in the Air Force, was charged with knowingly possessing and distributing child pornography, in violation of the Uniform Code of Military Justice. A court-martial found Ortiz guilty as charged and imposed a sentence of two years' imprisonment and a dishonorable discharge. On appeal, an Air Force CCA panel, including Colonel Martin Mitchell, summarily affirmed the court-martial's decision. The CAAF then granted Ortiz's petition for review to consider whether Judge Mitchell was disqualified from serving on the CCA, thus entitling Ortiz to an appellate do-over.

         That issue arose from Judge Mitchell's simultaneous service on the CMCR. Congress created the CMCR as an appellate tribunal to review the decisions of military commissions, particularly those operating in Guantanamo Bay.[1] The Secretary of Defense put Judge Mitchell on that court shortly after he became a member of the CCA, under a statutory provision authorizing the Secretary to "assign [officers] who are appellate military judges" to serve on the CMCR as well. 10 U.S.C. §950f(b)(2). Around the same time, a military-commission defendant argued to the Court of Appeals for the D. C. Circuit that the Appointments Clause requires the President and Senate (rather than the Secretary) to place judges on the CMCR. The D. C. Circuit avoided resolving that issue, but suggested that the President and Senate could "put [it] to rest" by appointing the very CMCR judges whom the Secretary had previously assigned. In re al-Nashiri, 791 F.3d 71, 86 (2015). The President decided to take that advice, and nominated each of those judges-Mitchell, among them- under an adjacent statutory provision authorizing him to "appoint, by and with the advice and consent of the Senate," CMCR judges. §950f(b)(3). The Senate then confirmed those nominations. About a month later, Judge Mitchell-now wearing his CCA robe-participated in the panel decision rejecting Ortiz's appeal.

         In Ortiz's view, Judge Mitchell's appointment to the CMCR barred his continued service on the CCA under both a statute and the Constitution. First, Ortiz invoked 10 U.S.C. §973(b). That statute, designed to ensure civilian preeminence in government, provides that unless "otherwise authorized by law," an active-duty military officer like Judge Mitchell "may not hold, or exercise the functions of," certain "civil office[s]" in the Federal Government. §973(b)(2)(A). According to Ortiz, a CMCR judgeship is a covered civil office, and no other law allowed the President to put Mitchell in that position: Thus, his appointment to the CMCR violated §973(b). See Brief in Support of Petition Granted in No. 16-0671 (CAAF), pp. 17-22. And the proper remedy, Ortiz argued, was to terminate Judge Mitchell's military service effective the date of his CMCR appointment and void all his later actions as a CCA judge-including his decision on Ortiz's appeal. See ibid. Second and independently, Ortiz relied on the Appointments Clause to challenge Judge Mitchell's dual service. See id., at 27-40. The premise of his argument was that CMCR judges are "principal officers" under that Clause, whereas CCA judges (as this Court has held) are "inferior officers." Edmond v. United States, 520 U.S. 651, 666 (1997). Ortiz claimed that the Appointments Clause prohibits someone serving as a principal officer on one court (the CMCR) from sitting alongside inferior officers on another court (the CCA). Because Judge Mitchell had done just that, Ortiz concluded, the CCAs ruling on his appeal could not stand.

         The CAAF rejected both grounds for ordering another appeal. See 76 M. J. 189 (2017). In considering the statutory question, the court chose not to decide whether §973(b) precluded Judge Mitchell from serving on the CMCR while an active-duty officer. Even if so, the CAAF held, the remedy for the violation would not involve terminating the judge's military service or voiding actions he took on the CCA. See id., at 192. Turning next to the constitutional issue, the CAAF "s[aw] no Appointments Clause problem." Id., at 193. Even assuming Judge Mitchell was a principal officer when sitting on the CMCR, the court held, that status in no way affected his service on the CCA: "When Colonel Mitchell sits as a CCA judge, he is no different from any other CCA judge." Ibid. The CAAF thus upheld the CCAs affirmance of Ortiz's convictions.

         This Court granted Ortiz's petition for certiorari to consider whether either §973(b) or the Appointments Clause prevents a military officer from serving, as Judge Mitchell did, on both a CCA and the CMCR. 582 U.S. ___ (2017). We now affirm the decision below.[2]

         II

         We begin with a question of our own jurisdiction to review the CAAF's decisions. Congress has explicitly authorized us to undertake such review in 28 U.S.C. §1259. See ibid. ("Decisions of the [CAAF] may be reviewed by the Supreme Court by writ of certiorari"). Both the Federal Government and Ortiz view that grant of jurisdiction as constitutionally proper. But an amicus curiae, Professor Aditya Bamzai, argues that it goes beyond what Article III allows. That position is a new one to this Court: We have previously reviewed nine CAAF decisions without anyone objecting that we lacked the power to do so.[3] Still, we think the argument is serious, and deserving of sustained consideration. That analysis leads us to conclude that the judicial character and constitutional pedigree of the court-martial system enable this Court, in exercising appellate jurisdiction, to review the decisions of the court sitting at its apex.

         Bamzai starts with a proposition no one can contest- that our review of CAAF decisions cannot rest on our original jurisdiction. Brief for Aditya Bamzai as Amicus Curiae 11. Article III of the Constitution grants this Court original jurisdiction in a limited category of cases: those "affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party." §2, cl. 2. That list, of course, does not embrace Ortiz's case, or any other that the CAAF considers. And ever since Mar-bury v. Madison, 1 Cranch 137 (1803), this Court has recognized that our original jurisdiction cannot extend any further than the cases enumerated: If Congress attempts to confer more on us, we must (as Chief Justice Marshall famously did, in the pioneer act of judicial review) strike down the law. Id., at 174-180. As a result, Bamzai is right to insist that §1259 could not authorize this Court, as part of its original jurisdiction, to hear military cases like Ortiz's.

         The real issue is whether our appellate jurisdiction can cover such cases. Article Ill's sole reference to appellate jurisdiction provides no apparent barrier, but also no substantial guidance: Following its specification of this Court's original jurisdiction, Article III says only that in all "other Cases" that the Constitution comprehends (including cases, like this one, involving federal questions), "the supreme Court shall have appellate Jurisdiction, both as to Law and Fact." §2, cl. 2. The Constitution's failure to say anything more about appellate jurisdiction leads Bamzai to focus on Chief Justice Marshall's opinion in Marbury. See Brief for Bamzai 2-4, 12-14. In that case (as you surely recall), William Marbury petitioned this Court-without first asking any other-to issue a writ of mandamus to Secretary of State James Madison directing him to deliver a commission. After holding (as just related) that the Court's original jurisdiction did not extend so far, Chief Justice Marshall also rejected the idea that the Court could provide the writ in the exercise of its appellate jurisdiction. "[T]he essential criterion of appellate jurisdiction," the Chief Justice explained, is "that it revises and corrects the proceedings in a cause already instituted, and does not create that cause." 1 Cranch, at 175. Marbury's petition, Chief Justice Marshall held, commenced the cause-or, to use the more modern word, the case; hence, it was not a matter for appellate jurisdiction. Bamzai contends that the same is true of Ortiz's petition.

         On any ordinary understanding of the great Chief Justice's words, that is a surprising claim. Ortiz's petition asks us to "revise and correct" the latest decision in a "cause" that began in and progressed through military justice "proceedings." Ibid. Or, as the Government puts the point, this case fits within Chief Justice Marshall's standard because "it comes to th[is] Court on review of the Court of Appeals for the Armed Forces' decision, which reviewed a criminal proceeding that originated in [a] court[] -martial." Tr. of Oral Arg. 47-48. So this Court would hardly be the first to render a decision in the case. Unless Chief Justice Marshall's test implicitly exempts cases instituted in a military court-as contrasted, for example, with an ordinary federal court-the case is now appellate.[4]

         The military justice system's essential character-in a word, judicial-provides no reason to make that distinction. Accord post, at 6-8 (THOMAS, J., concurring). Each level of military court decides criminal "cases" as that term is generally understood, and does so in strict accordance with a body of federal law (of course including the Constitution). The procedural protections afforded to a service member are "virtually the same" as those given in a civilian criminal proceeding, whether state or federal. 1 D. Schlueter, Military Criminal Justice: Practice and Procedure §1-7, p. 50 (9th ed. 2015) (Schlueter). And the judgments a military tribunal renders, as this Court long ago observed, "rest on the same basis, and are surrounded by the same considerations[, as] give conclusiveness to the judgments of other legal tribunals." Ex parte Reed, 100 U.S. 13, 23 (1879). Accordingly, we have held that the "valid, final judgments of military courts, like those of any court of competent jurisdiction[, ] have res judicata effect and preclude further litigation of the merits." Schlesinger v. Councilman, 420 U.S. 738, 746 (1975). In particular, those judgments have identical effect under the Double Jeopardy Clause. See Grafton v. United States, 206 U.S. 333, 345 (1907).

         The jurisdiction and structure of the court-martial system likewise resemble those of other courts whose decisions we review. Although their jurisdiction has waxed and waned over time, courts-martial today can try service members for a vast swath of offenses, including garden-variety crimes unrelated to military service. See 10 U.S.C. §§877-934; Solorio, 483 U.S., at 438-441; supra, at 1-2. As a result, the jurisdiction of those tribunals overlaps significantly with the criminal jurisdiction of federal and state courts. See Kebodeaux, 570 U.S., at 404 (ALITO, J., concurring in judgment). The sentences meted out are also similar: Courts-martial can impose, on top of peculiarly military discipline, terms of imprisonment and capital punishment. See §818(a); post, at 6 (THOMAS, J., concurring) ("[T]hese courts decide questions of the most momentous description, affecting even life itself (quotation marks and ellipses omitted)). And the decisions of those tribunals are subject to an appellate process-what we have called an "integrated system of military courts and review procedures"-that replicates the judicial apparatus found in most States. Councilman, 420 U.S., at 758. By the time a case like Ortiz's arrives on our doorstep under 28 U.S.C. §1259, it has passed through not one or two but three military courts (including two that can have civilian judges).

         And just as important, the constitutional foundation of courts-martial-as judicial bodies responsible for "the trial and punishment" of service members-is not in the least insecure. Dynes v. Hoover, 20 How. 65, 79 (1858). The court-martial is in fact "older than the Constitution," 1 Schlueter §1-6(B), at 39; the Federalist Papers discuss "trials by courts-martial" under the Articles of Confederation, see No. 40, p. 250 (C. Rossiter ed. 1961). When it came time to draft a new charter, the Framers "recog-ni[zed] and sanction[ed] existing military jurisdiction," W. Winthrop, Military Law and Precedents 48 (2d ed. 1920) (emphasis deleted), by exempting from the Fifth Amendment's Grand Jury Clause all "cases arising in the land or naval forces." And by granting legislative power "[t]o make Rules for the Government and Regulation of the land and naval Forces," the Framers also authorized Congress to carry forward courts-martial. Art. I, §8, cl. 14. Congress did not need to be told twice. The very first Congress continued the court-martial system as it then operated. See Winthrop, supra, at 47. And from that day to this one, Congress has maintained courts-martial in all their essentials to resolve criminal charges against service members. See 1 Schlueter §1-6, at 35-48.

         Throughout that history, and reflecting the attributes described above, courts-martial have operated as instruments of military justice, not (as the dissent would have it) mere "military command," post, at 18 (opinion of ALITO, J.). As one scholar has noted, courts-martial "have long been understood to exercise 'judicial' power," of the same kind wielded by civilian courts. Nelson, Adjudication in the Political Branches, 107 Colum. L. Rev. 559, 576 (2007); see W. De Hart, Observations on Military Law 14 (1859) (Military courts are "imbued or endowed with the like essence of judicial power" as "ordinary courts of civil judicature"); accord post, at 6-8 (THOMAS, J., concurring). Attorney General Bates, even in the middle of the Civil War, characterized a court-martial "proceeding, from its inception, [a]s judicial," because the "trial, finding, and sentence are the solemn acts of a court organized and conducted under the authority of and according to the prescribed forms of law." Runkle v. United States, 122 U.S. 543, 558 (1887) (quoting 11 Op. Atty. Gen. 19, 21 (1864)). Colonel Winthrop-whom we have called the "Blackstone of Military Law," Reid v. Covert, 354 U.S. 1, 19, n. 38 (1957) (plurality opinion)-agreed with Bates. He regarded a court-martial as "in the strictest sense" a "court of law and justice"-"bound, like any court, by the fundamental principles of law" and the duty to adjudicate cases "without partiality, favor, or affection." Winthrop, supra, at 54.[5]

         Despite all this, Bamzai claims that "Marbury bars th[is] Court from deciding" any cases coming to us from the court-martial system. Brief for Bamzai 3. He begins, much as we did above, by explaining that under Marbury the Court can exercise appellate jurisdiction only when it is "supervising an earlier decision by a lower court." Brief for Bamzai 13. The next step is where the argument gets interesting. The CAAF, Bamzai contends, simply does not qualify as such a body (nor does any other military tribunal). True enough, "the CAAF is called a 'court'"; and true enough, it decides cases, just as other courts do. Id., at 3; see id., at 28. But the CAAF, Bamzai notes, is "not an Article III court," id., at 3 (emphasis added): As all agree, its members lack the tenure and salary protections that are the hallmarks of the Article III judiciary, see 10 U.S.C. §§942(b), (c). Congress established the CAAF under its Article I, rather than its Article III, powers, and Congress located the CAAF (as we have previously observed) within the Executive Branch, rather than the judicial one. See §941; Edmond, 520 U.S., at 664, and n. 2. Those facts, in Bamzai's view, prevent this Court from exercising appellate jurisdiction over the CAAF. "For constitutional purposes," Bamzai concludes, the members of the CAAF "stand on equal footing with James Madison in Marbury." Brief for Bamzai 4. (With variations here and there, the dissent makes the same basic argument.)

         But this Court's appellate jurisdiction, as Justice Story made clear ages ago, covers more than the decisions of Article III courts. In Martin v. Hunter's Lessee, 1 Wheat. 304 (1816), we considered whether our appellate jurisdiction extends to the proceedings of state courts, in addition to those of the Article III federal judiciary. We said yes, as long as the case involves subject matter suitable for our review. Id., at 338-352. For our "appellate power," Story wrote, "is not limited by the terms of [Article III] to any particular courts." Id., at 338. Or again: "[I]t will be in vain to search in the letter of the [C]onstitution for any qualification as to the tribunal" from which a given case comes. Ibid. The decisions we review might come from Article III courts, but they need not.

         The same lesson emerges from two contexts yet more closely resembling this one-each involving a non-Article III judicial system created by Congress. First, in United States v. Coe, 155 U.S. 76 (1894), this Court upheld the exercise of appellate jurisdiction over decisions of federal territorial courts, despite their lack of Article III status. We observed there that the Constitution grants Congress broad authority over the territories: to "make all needful Rules and Regulations respecting" those areas. Art. IV, §3, cl. 2; see Coe, 155 U.S., at 85. And we recognized that Congress, with this Court's permission, had long used that power to create territorial courts that did not comply with Article III. See ibid. Chief Justice Marshall had held such a court constitutional in 1828 even though its authority was "not a part of that judicial power which is defined in the 3d article." American Ins. Co. v. 356 Bales of Cotton, 1 Pet. 511, 546 (1828); see Coe, 155 U.S., at 85 (describing that opinion as having "settled" that Article III "does not exhaust the power of Congress to establish courts"). The exception to Article III for territorial courts was thus an established and prominent part of the legal landscape by the time Coe addressed this Court's role in reviewing their decisions. And so the Court found the issue simple. "There has never been any question," we declared, "that the judicial action of [territorial courts] may, in accordance with the Constitution, be subjected to [our] appellate jurisdiction." Id., at 86.

         Second, we have routinely, and uncontroversially, exercised appellate jurisdiction over cases adjudicated in the non-Article III District of Columbia courts.[6] Here too, the Constitution grants Congress an unqualified power: to legislate for the District "in all Cases whatsoever." Art. I, §8, cl. 17. Under that provision, we long ago determined, "Congress has the entire control over the [D]istrict for every purpose of government," including that of "organizing a judicial department." Kendall v. United States ex rel. Stokes, 12 Pet. 524, 619 (1838). So when Congress invoked that authority to create a set of local courts, this Court upheld the legislation-even though the judges on those courts lacked Article III protections. See Palmore v. United States, 411 U.S. 389, 407-410 (1973). We relied on the Constitution's "plenary grant[] of power to Congress to legislate with respect to" the national capital. Id., Sit 408. And several years later, we referred as well to the "historical consensus" supporting congressional latitude over the District's judiciary. Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 70 (1982) (plurality opinion); see id., at 65, n. 16. To be sure, we have never explicitly held, as we did in the territorial context, that those same considerations support our appellate jurisdiction over cases resolved in the D. C. courts. But some things go unsaid because they are self-evident. And indeed, even Bamzai readily acknowledges that this Court can review decisions of the D. C. Court of Appeals. See Brief for Bamzai 23, 25.

         The non-Article III court-martial system stands on much the same footing as territorial and D. C. courts, as we have often noted. The former, just like the latter, rests on an expansive constitutional delegation: As this Court early held, Article I gives Congress the power-"entirely independent" of Article III-"to provide for the trial and punishment of military and naval offences in the manner then and now practiced by civilized nations." Dynes, 20 How., at 79; see supra, at 9. The former has, if anything, deeper historical roots, stretching from before this nation's beginnings up to the present. See supra, at 9. And the former, no less than the others, performs an inherently judicial role, as to substantially similar cases. See supra, at 8-11. So it is not surprising that we have lumped the three together. In Palmore, the Court viewed the military, territories, and District as a triad of "specialized areas having particularized needs" in which Article III "give[s] way to accommodate plenary grants of power to Congress." 411 U.S., at 408. And in Northern Pipeline, the plurality said of all three that "a constitutional grant of power [as] historically understood" has bestowed "exceptional powers" on Congress to create courts outside Article III. 458 U.S., at 66, 70.[7] Given those well-understood connections, we would need a powerful reason to divorce military courts from territorial and D. C. courts when it comes to defining our appellate jurisdiction.

         And Bamzai fails to deliver one. His initial attempt relies on a simple fact about territorial and D. C. courts: They exercise power over "discrete geographic areas." Brief for Bamzai 23. Military courts do not; they instead exercise power over discrete individuals-i.e., members of the armed forces. So Bamzai gives us a distinction: places vs. people. What he does not offer is a good reason why that distinction should matter in our jurisdictional inquiry-why it is one of substance, rather than convenience. He mentions that the territorial and D. C. courts are "functional equivalents of state courts." Id., at 24; see Tr. of Oral Arg. 33, 35. But for starters, that could be said of courts-martial too. As we have described, they try all the "ordinary criminal offenses" (murder, assault, robbery, drug crimes, etc., etc., etc.) that state courts do. Kebo-deaux, 570 U.S., at 404 (ALITO, J., concurring in judgment); see supra, at 1-2, 9. And more fundamentally, we do not see why geographical state-likeness, rather than historical cowr£-likeness, should dispose of the issue. As we have shown, the petition here asks us to "revise [] and correct[] the proceedings in a cause already instituted" in a judicial system recognized since the founding as competent to render the most serious decisions. Marbury, 1 Cranch, at 175; see supra, at 8-11. That should make the case an appeal, whether or not the domain that system covers is precisely analogous to, say, Alabama.

         So Bamzai tries another route to cleave off military courts, this time focusing on their location in the Executive Branch. See Brief for Bamzai 26-30. Bamzai actually never says in what branch (if any) he thinks territorial and D. C. courts reside. But he knows-because this Court has said-that the CAAF is an "Executive Branch entity." Edmond, 520 U.S., at 664, and n. 2; see supra, at 12. And in Bamzai's view, two of our precedents show that we may never accept appellate jurisdiction from any person or body within that branch. See Brief for Bamzai 2-4. The first case he cites is Ex parte Vallandigham, 1 Wall. 243 (1864), in which the Court held that it lacked jurisdiction over decisions of a temporary Civil War-era military commission. See id., at 251-252. The second is Marbury itself, in which the Court held (as if this needed repeating) that it lacked jurisdiction to review James Madison's refusal to deliver a commission appointing William Marbury a justice of the peace. See 1 Cranch, at 175-176; supra, at 7.

         As to the first, Vallandigham goes to show only that not every military tribunal is alike. The commission the Court considered there was established by General Ambrose Burnside (he of the notorious facial hair) for a time-limited, specialized purpose-to try persons within the military Department of Ohio (Burnside's then-command) for aiding the Confederacy. See 1 Wall., at 243-244. And the General kept firm control of the commission (made up entirely of his own field officers): After personally ordering Vallandigham's arrest, he (and he alone) also reviewed the commission's findings and sentence. See id., at 247-248; J. McPherson, Battle Cry of Freedom 596-597 (1988). This Court therefore found that the commission lacked "judicial character." 1 Wall., at 253. It was more an adjunct to a general than a real court-and so we did not have appellate jurisdiction over its decisions.[8] But the very thing that Burnside's commission lacked, the court-martial system-and, in particular, the CAAF (whose decision Ortiz asks us to review)-possesses in spades. Once again, the CAAF is a permanent "court of record" created by Congress; it stands at the acme of a firmly entrenched judicial system that exercises broad jurisdiction in accordance with established rules and procedures; and its own decisions are final (except if we review and reverse them). See supra, at 1-2, 8-11.[9] That is "judicial character" more than sufficient to separate the CAAF from Burnside's commission, and align it instead with territorial and D. C. (and also state and federal) courts of appeals.

         And the differences between the CAAF's decisions and James Madison's delivery refusal should have already leaped off the page. To state the obvious: James Madison was not a court, either in name or in function. He was the Secretary of State-the head of a cabinet department (and, by the way, the right arm of the President). Likewise, Madison's failure to transmit Marbury's commission was not a judicial decision; it was an enforcement action (though in the form of non-action), pertaining only to the execution of law. As Chief Justice Marshall saw, Secretary Madison merely triggered the case of Marbury v. Madison; he did not hear and resolve it, as a judicial body would have done. See 1 Cranch, at 175. The Chief Justice's opinion thus cleanly divides that case from this one, even if both (as Bamzai notes) formally involve executive officers. Here, three constitutionally rooted courts, ending with the CAAF, rendered inherently judicial decisions- just as such tribunals have done since our nation's founding. In reviewing, "revis[ing, ] and correcting]" those proceedings, as Ortiz asks, we do nothing more or different than in generally exercising our appellate jurisdiction. Ibid.

         But finally, in holding that much, we say nothing about whether we could exercise appellate jurisdiction over cases from other adjudicative bodies in the Executive Branch, including those in administrative agencies. Our resolution of the jurisdictional issue here has rested on the judicial character, as well as the constitutional foundations and history, of the court-martial system. We have relied, too, on the connections that our cases have long drawn between that judicial system and those of the territories and the District. If Congress were to grant us appellate jurisdiction over decisions of newer entities advancing an administrative (rather than judicial) mission, the question would be different-and the answer not found in this opinion.

         III

         We may now turn to the issues we took this case to decide. Recall that Ortiz seeks a new appeal proceeding before the Air Force CCA, based on Judge Mitchell's participation in his last one. See supra, at 2-4. Ortiz's challenge turns on Judge Mitchell's simultaneous service on another court, the CMCR. Originally, the Secretary of Defense had assigned Judge Mitchell to sit on that court. Then, to moot a possible constitutional problem with Judge Mitchell's CMCR service, the President (with the Senate's advice and consent) appointed Judge Mitchell as well. A short time later, Judge Mitchell ruled on Ortiz's CCA appeal. Ortiz contends that doing so violated both a federal statute and the Appointments Clause. We disagree on both counts.

         A

         The statutory issue respecting Judge Mitchell's dual service turns on two interlocking provisions. The first is §973(b)(2)(A)-the statute Ortiz claims was violated here. As noted earlier, that law-in the interest of ensuring civilian preeminence in government-prohibits active-duty military officers like Judge Mitchell from "hold[ing], or exercis[ing] the functions of," certain "civil office [s]" in the Federal Government, "[e]xcept as otherwise authorized by law." See supra, at 4. The second is §950f(b)-a statute the Government claims "otherwise authorize [s]" Judge Mitchell's service on the CMCR, even if a seat on that court is a covered "civil office." As also noted above, §950f(b) provides two ways to become a CMCR judge. See supra, at 3. Under §950f(b)(2), the Secretary of Defense "may assign" qualified officers serving on a CCA to "be judges on the [CMCR]" as well. And under §950f(b)(3), the President (with the Senate's advice and consent) "may appoint" persons-whether officers or civilians is unspecified-to CMCR judgeships.

         Against that statutory backdrop, Ortiz claims that Judge Mitchell became disqualified from serving on the CCA the moment his presidential appointment to the CMCR became final. See Brief for Petitioners 39-42. Notably, Ortiz has no statutory objection to Judge Mitchell's simultaneous service on those courts before that date-when he sat on the CMCR solely by virtue of the Secretary of Defense's assignment. See id., at 40. Nor could he reasonably lodge such a complaint, for §950f(b)(2), in no uncertain terms, "otherwise authorize[s]" the Secretary to place a military judge on the CMCR- thus exempting such an officer from §973(b)(2)(A)'s prohibition. But in Ortiz's view, the provision in §950f(b)(3) for presidential appointments contains no similar authorization, because it makes no "express[] or unambiguous[]" reference to military officers. Id., at 20. And so, Ortiz concludes, §973(b)(2)(A)'s general rule must govern.

         In the circumstances here, however, the authorization in §950f(b)(2) was the only thing necessary to exempt Judge Mitchell from the civil office-holding ban-not just before but also after his presidential appointment. That provision, as just noted, unambiguously permitted the Secretary of Defense to place Judge Mitchell on the CMCR, even if such a judgeship is a "civil office." See supra, at 20. And once that happened, the President's later appointment of Judge Mitchell made not a whit of difference. Nothing in §950f (or any other law) suggests that the President's appointment erased or otherwise negated the Secretary's earlier action. To the contrary, that appointment (made for purposes of protecting against a constitutional challenge, see supra, at 3) merely ratified what the Secretary had already done. The nomination papers that the President submitted to the Senate reflect that fact. They sought confirmation of Judge Mitchell's appointment as a CMCR judge "[i]n accordance with [his] continued status as [a CMCR] judge pursuant to [his] assignment by the Secretary of Defense[, ] under 10 U.S.C. Section 95Of(b)(2)." 162 Cong. Rec. S1474 (Mar. 14, 2016). So after the Senate approved the nomination, Judge Mitchell served on the CMCR by virtue of both the Secretary's assignment and the President's appointment. And because §950f(b)(2) expressly authorized the Secretary's assignment, Judge Mitchell's service on the CMCR could not run afoul of §973(b)(2)(A)'s general rule.[10]

         Ortiz argues in response that the President's appointment demanded its own clear authorization because only that appointment put Judge Mitchell into a "new office." Reply Brief 7. According to Ortiz, an officer who receives a secretarial assignment to the CMCR "exercise[s] additional duties"-but he does not hold a second position. Tr. of Oral Arg. 13. A presidential appointment alone, he says, effects that more dramatic change. And Ortiz contends that §973(b)(2)(A)'s rule cares about that difference. That law, Ortiz says, requires a legislative authorization when, and only when, a service member receives a whole new office-which is to say here when, and only when, the President appoints a judge to the CMCR. See Tr. of Oral Arg. 4-5 (stating that §973(b)(2)(A) "prohibit[s] military officers from holding [civil offices] absent express congressional authorization, while generally allowing military officers to be assigned to exercise the duties of such positions").

         But that argument is contrary to §973(b)(2)(A)'s text, as well as to the purposes it reflects. The statute draws no distinction between secretarial assignees and presidential appointees, nor between those who exercise the duties of an office and those who formally hold it. True enough, we have sometimes referred to §973(b)(2)(A) as a rule about dual "office-holding," see supra, at 21, 22, n. 10-but that is mere shorthand. In fact, §973(b)(2)(A)'s prohibition applies broadly, and uniformly, to any military officer who "hold[s], or exercise[s] the functions of," a covered civil office. And the "except as otherwise authorized" caveat applies in the same way-to "hold[ing]" and "exercis[ing]" alike. So the very distinction that Ortiz relies on, the statute rejects: Indeed, the law could not be clearer in its indifference. That is because Congress determined that military officers threaten civilian preeminence in government by either "hold[ing]" or "exercis[ing] the functions of" important civil offices. Except ... if Congress decides otherwise and says as much.

         And once again, here Congress did exactly that. Judge Mitchell became a CMCR judge, while remaining in the military, because of a secretarial assignment that Congress explicitly authorized. See supra, at 20-21. After his presidential appointment, he continued on the same court, doing the same work, in keeping with the same congressional approval. Even supposing he obtained a "new office" in the way Ortiz says, that acquisition is of no moment. With or without that formal office, Judge Mitchell "h[e]ld, or exercise[d] the functions of," a CMCR judgeship, and so was subject to ยง973(b)(2)(A)'s ban. But likewise, with or without that formal office, Judge Mitchell could receive permission from Congress to do the job-that is, to ...


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