"CAAF is a tribunal constituted by Congress as an executive branch entity. It is not an Article III court. Although its constitutional foundation as a judicial body is firmly established, CAAF does not have the judicial Power to rule that laws are unconstitutional. It is emphatically the province and duty of the judicial branch to say what the law is."
10 Comments
Cloudesley Shovell
2/8/2021 04:18:05 pm
That was in interesting brief. A reservation I have is that I wonder if it doesn't argue too much. First off, is it really a sole duty and power of the Art. III judiciary to determine the constitutionality of laws? Wasn't that something the Article III courts arrogated to themselves in Marbury v. Madison? In other words, is it really part of the constitution, or simply long practice?
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1984
2/8/2021 09:39:51 pm
Interesting. The elephant in the room has always been;
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Cloudesley Shovell
2/9/2021 07:58:58 am
1984 (heh)--
1984
2/10/2021 05:22:27 pm
"with the only restraint being the ballot box"
AD2
2/9/2021 06:31:59 am
1984- so you are in the “Marbury v. Madison was wrongly decided” camp? Fairly sure that ship has sailed.
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1984
2/10/2021 06:19:04 pm
Yep. And I know. But that does not mean I don't long for that ship to turn around.
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Dan Maurer
2/9/2021 04:42:16 pm
to comments made by CS: I agree with your rebuttal of 1984's comments, but one point of clarification: it is not accurate to label CAAF as an "executive branch agency." It is, as SCOTUS has long held, an Executive branch function and organ created under Article I authority, But that's not all it is. In Ortiz v United States (2018), Amici made a "novel" argument that SCOTUS had no appellate jdx over CAAF because CAAF itself was not a judicial organ at all -- that it was tantamount, in practice and historically, to nothing more than a non-binding advisory admin board subordinate to the POTUS. In refuting this, the Court noted the following characteristics about the "integrated court-martial system" that includes CAAF at its apex: the "res judicata" effect of its decisions, Double Jeopardy protections, multiple instances in which the Court refers to its processes as "judicial," that courts-martial are "instruments of military justice, not mere 'military command,'" that
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1984
2/11/2021 12:36:26 am
"a novel legal theory that Marbury was wrongly decided"
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Cloudesley Shovell
2/12/2021 11:05:57 am
Mr. Maurer: Point well taken. Military courts are somewhat unique given Congress' power to regulate the land and naval forces, but they could create an Art III court system for the military if they wanted to. I am not a big fan of aggregating legislative, judicial, and executive powers in Article I agencies, departments, entities, or whatever label may be used, but here we are.
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Jr
2/17/2021 05:02:48 am
Seems nonsensically to me. The Constitution is part of the law of the land, that it takes precedence over a conflicting statue is no more strange (in principle) than a court applying a later statue that repeals an earlier. Article III courts don't really have a special power to strike down statues, they just have a general power to interpret the law, including the Constitution.
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