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CAAF hears jurisdictional challenge to court-martial jurisdiction over retirees

3/9/2021

2 Comments

 
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. 

Michel Paradis

LOAC Editor

2 Comments
Brenner M. Fissell
3/10/2021 11:10:53 am

Like Judge Maggs I struggle to ascertain what content there is at all to the “status test.” It may be an area of congressional supremacy. But that’s the Supreme Court’s fault. Apparently Founding Era materials are inconclusive with respect to the meaning of the land and naval forces clause. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3022012

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Donald G Rehkopf
3/10/2021 01:55:23 pm

If the concept of a "standing army" was an anathema to most of the Founders, it's dubious that they gave much (if any) thought to military "retirees" at the time. While I agree with the observation that "until recently [the issue had] been reasonably settled inside the court-martial system," that does not mean that this interpretation was/is correct. After all, until Copernicus and Galileo, most "scientists" thought that the Sun revolved around the Earth.

Further contraindicating the premise that there's some original or textualist approach that somehow guides the interpretative issue here, is the fact that Members of Congress themselves did not have retirement benefits (or "retired" status) until mid-twentieth century.

To complicate matters further, consider the fact that at the time of the Founding until the dawn of the 20th Century, common-law crimes were prosecuted by the civilian, federal or state, authorities, leaving virtually only "military offenses" under the Articles of War to be prosecuted at courts-martial. Thus, until the modern, expansive (if not over-expansive) era of comprehensive criminal liability as being subject to military jurisdiction, there was no occasion to even consider the topic of "jurisdiction" over military retirees for common-law crimes, e.g., Hennis.

With due respect to the abilities of Major Wiggins and his "deference" argument, that itself is historically suspect, as Prof. Levin's seminal article on the topic addresses: "THE DEFERENCE THAT IS DUE: RETHINKING THE JURISPRUDENCE OF JUDICIAL DEFERENCE TO
THE MILITARY," 35 Villanova L. Rev. 1009 (1990), available at: https://digitalcommons.law.villanova.edu/cgi/viewcontent.cgi?article=2729&context=vlr See also, O'Connor, "Statistics and the Military Deference Doctrine: a Response to Professor Lichtman," 66 Maryland L. Rev. 668 (2007), available at: https://digitalcommons.law.umaryland.edu/cgi/viewcontent.cgi?article=3303&context=mlr

Lastly, consider Prof. Fidell's perceptive analysis of the subject in, "Justice John Paul Stevens and Judicial Deference in Military Matters," 43 UCDavis L. Rev. 999 (2010), available at: https://lawreview.law.ucdavis.edu/issues/43/3/security/43-3_Fidell.pdf

I commend these sources [Gene Fidell needs no introduction to CAAFlog readers; John O'Connor (a former Marine JAG) was a frequent contributor to CAAFlog v.1] to anyone seriously interested in this issue.

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