Must a CAAF judge be a U.S. citizen

Probably serendipity, but the question has come up about a citizenship requirement for a CAAF judge.

The court is located within the Executive Branch of government as an Article I, U. S. Constitution court (despite early proposals for it to be an Article III court with the judges appointed accordingly.) The Congress creates the court and prescribes its jurisdiction and scope of authority under the make rules (for the government and regulation of the land and naval forces) clause of Article I, sec. 8., U. S. CONST.

The Senate gives its advice and consent on the appointment of the court’s judges because they are “officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law.” Article II, sec. 2. U. S. CONST. Nothing in these constitutional provisions requires that a judge of the CAAF be a citizen. The Constitution only requires that  the President must be a “natural born citizen.” Citizens of the U. S. at the time of the Constitution’s adoption are age barred.

The CAAF judges do have to take the standard oath to support and defend the Constitution. I’m not sure this is or should be a bar to a non-citizen being appointed because they are not required to swear an oath of allegiance to the United States; a requirement of citizenship. One colleague observes that Article VI, cl. 2. U. S. CONST. requires the oath of support of the Constitution from executive branch appointees. He then observes that while the Constitution mentions the term "citizen" many times, a requirement of citizenship is not thereby imposed on the person taking the oath.

So now to the statutory qualifications of executive branch officeholders. The CRS has a useful monograph on the subject. Henry B. Hogue, Statutory Qualifications for Executive Branch Positions. Congressional Research Service, 9 September 2015.

---

In practice, it has not been unusual for Congress to mandate that appointees to certain positions meet specified requirements. Some statutory qualification provisions, like those for the FEMA Administrator, require that appointees have certain experience, skills, or educational backgrounds that are associated with competence. Other qualification provisions address a variety of characteristics, such as citizenship status, residency, or, for the purpose of maintaining political balance on regulatory boards, political party affiliation. Congress has used such statutory provisions selectively; most executive branch positions do not have them.

Article 142, UCMJ, 10 U.S.C. § 942, does not expressly require citizenship for the court's appointment. Congress has added two qualifications that may be affected by the citizenship question: the requirement to be properly admitted to practice law and the restriction on regular component retirees.

It has limited the power of nomination by providing that the office may be held only by a resident of the United States; of a State; of a particular State; of a particular district; of a particular territory; of the District of Columbia; of ​a particular foreign country.

Myers v. United States, 272 U.S. 52, 1926 U.S. LEXIS 35 (1926) (Brandeis, J., dissenting) (emphasis added). 

Hogue, at Appendix A-1, lists various offices and their qualifications—some require citizenship and others are silent like Article 142, UCMJ. Essentially, expresio unius est exclusion alterius at work in that the Framers knew and the Congress knows when and how it wants to insert a citizenship requirement.

I continue to think then that citizenship is not required of all appointed to the U. S. Court of Appeals for the Armed Forces. Note the qualification. A retired officer of the Reserve component may be appointed as can a retired officer of the Regular component who has been retired for more than seven years at the time of the appointment. Article 142(b)(4), UCMJ, 10 U.S.C. 942(b)(4). Judge Darden, one of the first judges was a retiree as was Judge Wiss (a Reserve component officer). But, what do you have to be to hold a commission in the United States armed forces?

A citizen (natural born or through naturalization)!

There is yet one more step in the inquiry about lawfully imposed citizenship requirement to be appointed to CAAF.

A CAAF judge must be admitted to a "federal court or the highest court in a state" as a prerequisite for appointment. Article 142(b)(3), UCMJ, 10 U.S.C. § 942(b)(3). Each state has its own requirements for admission to the bar and to practice. In the Commonwealth of Virginia, to be admitted, you must be a citizen or non-citizen lawfully admitted with the right to work in the United States. (No, I do not know the effect of DACA and I have not done the research to know if other states have a citizenship requirement--anyone know?) 

More practically, how does the Administration deal with the citizenship question if at all? A question to which I do not know the answer. I have no idea whether any inquiry is made during the nomination process about citizenship. It is possible the DoD Office of the General Counsel makes a point of that and asks or perhaps citizenship is assumed and so no questions are asked. I can say that when DoD solicits recommendations for a CAAF appointment no mention is made of a citizenship requirement.

AN UPDATE

Appellant, a resident alien, was denied permission to take the Connecticut bar examination solely because of a citizenship requirement imposed by a state court rule, which the state courts upheld against applicant's constitutional challenge.
​
Held: Connecticut's exclusion of aliens from the practice of law violates the Equal Protection Clause of the Fourteenth Amendment. Classifications based on alienage, being inherently suspect, are subject to close judicial scrutiny, and here the State through appellee bar committee has not met its burden of showing the classification to have been necessary to vindicate the State's undoubted interest in maintaining high professional standards. Pp. 413 U. S. 722-729.

 In re Griffiths, 413 U.S. 717 (1973).

In the realm of the truly esoteric for a CAAF judicial appointment, it was brought to my attention a California case of note.

In In  re Sergio C. Garcia,  58 Cal.4th 440, 315 P.3d 117 (Cal. 2014), the Supreme Court of California had before it whether an "undocumented immigrant" could apply for and be admitted to the bar. The court found that,

​"For all of the foregoing reasons, we conclude there is no state law or state public policy that would justify precluding undocumented immigrants, as a class, from obtaining a law license in California."

Cheers, P.C.