CAAF heard arguments in United States v. Begani this morning, a case challenging the extension of court-martial jurisdiction over retired active duty personnel. The argument ran nearly an hour with University of Texas School of Law Professor Steve Vladeck arguing that Congress exceeded its authority under the Make Rules Clause when it made active duty retirees subject to court-martial jurisdiction under the UCMJ. Vladeck was matched by MAJ Clayton L. Wiggins, USMC, who deftly argued the case for the government, arguing that the longstanding extension of court-martial jurisdiction over retirees passed constitutional muster.
As CAAFLog readers might remember, Vladeck prevailed on this claim this past November in Larabee v. Braithwaite, a habeas corpus action brought in the D.C. District Court. In striking down UCMJ jurisdiction over retirees, Judge Leon held:
Congress has not shown on the current record why the exercise of [court-martial] jurisdiction over all military retirees is necessary to good order and discipline. Indeed, the Government points to no clear statements by members of Congress upon passing the Uniform Code of Military Justice that explain the necessity of subjecting all military retirees to court-martial jurisdiction. Because the Supreme Court has consistently emphasized that court-martial jurisdiction should be narrowly circumscribed ... I must conclude that in the absence of a principled basis promoting good order and discipline, Congress's present exercise of court-martial jurisdiction over all members of the Fleet Marine Corps Reserve is unconstitutional.
Suffice it to say that at argument this morning, some of the judges on CAAF took umbrage at Judge Leon's willingness to split with military law precedents that had until recently been reasonably settled inside the court-martial system.
While CAAF appears poised to split with Judge Leon, creating a rare military/civilian circuit split, the judges struggled to identify a clear standard for determining the outer constitutional limits on who Congress may include within the "Land and Naval forces" for the purposes of court-martial jurisdiction. Vladeck argued that a functional approach was necessary, one that weighed the extent of an individual's contribution to good order and discipline. Wiggins, for his part, argued for a more formal test, one that gave Congress considerable deference in determining who should be treated as a member of the armed forces.
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