Intriguing Amicus Filed in Begani

2/8/2021

"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."

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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?

Is the President, the head of the Article I executive branch, in fact required to enforce laws that he believes are unconstitutional? Must he wait for a judicial ruling? Can not the President simply refuse to enforce laws he considers unconstitutional? I got the impression from the brief that amicus made that argument, but perhaps I was reading too much into it.

So assuming amicus is correct, what is CAAF to do when confronted by what it sees as a patently unconstitutional issue? Does CAAF simply state, "Looks unconstitutional, but we're powerless to act, good luck getting Article III review" ? Could CAAF certify a question to an Article III court, say the Federal Circuit, and simply abate proceedings until it gets an answer? Do the constitutional rights of persons subject to the UCMJ really hinge upon collateral proceedings or the crapshoot of Supreme Court certiorari?

What if only certain circuits have declared something unconstitutional, but the Supreme Court has not yet ruled on the issue? Which "law" does CAAF apply?

I agree it's an intriguing brief. Perhaps there will be some back-channel lobbying to get the scope of CAAF's power in Article 67 expanded to match that of such esteemed Article I courts as the Veterans Claims Court.

Kind regards,
CS

1984

2/8/2021 09:39:51 pm

Interesting. The elephant in the room has always been;

If Article III courts gave themselves the power of judicial review, why can't Article I courts?

The simple answer, which answers both your inquiries is;

Article III courts never had the power to declare laws unconstitutional, and the executive branch cannot pick and choose which laws to enforce.

The Bill of Rights were created under the presumption that Congress would follow them and not have a third, unelected body issue a permanent edict declaring a law null and void.

Congress itself must determine whether the proposed law is constitutional.

Cloudesley Shovell

2/9/2021 07:58:58 am

1984 (heh)--

It is certainly a large elephant. I'm reminded of Lysander Spooner's critique of the Constitution:

“But whether the Constitution really be one thing, or another, this much is certain - that it has either authorized such a government as we have had, or has been powerless to prevent it. In either case it is unfit to exist.”

If Congress is the sole judge of the scope of its power, with the only restraint being the ballot box, then I suppose Spooner has a point. If that's the case, why bother writing anything down at all?

I'm more of the view that without some agreement between all three branches on any particular exercise of gov't power, the gov't cannot act. First, Congress has to make some law (regrettably, a function it has largely delegated to Article I administrative agencies). Then the President has to agree to execute it or enforce it, and finally, the judiciary has to agree that what the other two branches did is permissible.

In the simple case of a criminal statute, first there's gotta be a law. Next, the executive branch needs to enforce it, which it often does not do, prosecutorial discretion being a widely recognized and accepted thing. And finally, one must obtain a conviction via due process of law in the courts. Without all three branches agreeing, nothing happens.

So back to the issue at hand. CAAF is Article I, an executive branch agency. If CAAF declines to enforce a law on whatever grounds, including deciding that a law cannot be enforced under the Constitution, that looks to me like the executive branch deciding to follow the law--the Constitution being, after all, the supreme law of the land. It seems to me we would truly live in Camelot (a very silly place) if persons who have sworn to "preserve, protect, and defend the Consitution of the United States" are nonetheless bound, as amicus argues, to enforce a law contrary to the Constitution one is sworn to "preserve, protect, and defend."

Kind regards,
CS

1984

2/10/2021 05:22:27 pm

"with the only restraint being the ballot box"

Well, better a ballot box than an unelected Judge expanding or voiding the law. No system is perfect, but to me the legislature has the ultimate say to what the law should be.

But you bring up a good point. There are times where the constitutionality, or lack thereof, a law is not readily apparent. Additionally the courts need to decide the interpretation of the law, although that has been expanded to judicial review.

What's the solution? I think having the Courts suggest changes in the law, and then sending those changes to the most numerous legislature for approval (or disproval) would work.

I discovered later, that Thomas Jefferson had the selfsame thought comparing our system with Spain's.

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.

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.

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
while courts-martial and CAAF are not Art III courts, neither are state courts nor federal territorial courts and SCOTUS has full appellate jurisdiction over those too...likewise, CAAF is 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)." So, while I think we're on the same page, I want to be sure that nobody labors under the misapprehension that CAAF is in the same family of adjudicative admin bodies scattered throughout the rest of the Executive Branch - the Ortiz Court explicitly distinguished them at the end of the opinion's Part II.

...as to 1984's belief that Congress and Congress alone determines what is or is not "constitutional," I'm not sure there's any useful counter other than to ask what part of Con Law 1 did he or she actually attend? If 1984 has a novel legal theory that Marbury was wrongly decided, and has a nonfrivolous argument for whether the SCOTUS serves any valid Constitutional purpose and should still exist if it was wrongly decided, then 1984 should present that argument in full...not simply and conclusively imply that Art III judicial review is wrong at the tail end of his/her post. To1984's conclusion that the Bill of Rights was enacted under a "presumption" that Congress would not violate them? I'm sure that's inconsistent with everything we know the Framers wrote, said, or did. That's like saying that snow shovels and de-icing salt were invented "under the presumption" that mother nature will provide for temperate weather each day of the year, everywhere. If that's the presumption, why the protection? (a silly retort, perhaps, but I write this after yet another major snowfall has kept me from Starbucks...)

1984

2/11/2021 12:36:26 am

"a novel legal theory that Marbury was wrongly decided"

The U.S. Constitution does not explicitly give the American judiciary the power of judicial review. Every lawyer knows this. And no, it is not "novel" in the sense of being new.

You seem to imply that SCOTUS would cease to exist, or have no purpose if it did not routinely strike laws down, or expand them. I put this to you; SCOTUS was doing fine before Mayberry v. Madison.

But we need not guess. As it turns out there are many different countries, with various forms (or not) of judicial review;

In France judicial review must take place in the abstract (i.e., in the absence of an actual case or controversy) and before promulgation (i.e., before a challenged law has taken effect). In other countries (e.g., Austria, Germany, South Korea, and Spain) courts can exercise judicial review only after a law has taken effect, though they can do so either in the abstract or in concrete cases. Systems of constitutional judicial review also differ in the extent to which they allow courts to exercise it...but in some countries (e.g., France, Germany, New Zealand, and South Africa) only specialized constitutional courts can hear such claims.

Seems to me, those countries are doing just fine without unelected Judges issuing permanent edicts.

"I'm sure that's inconsistent with everything we know the Framers wrote, said, or did."

Yes, Madison and Hamilton both advocated for Judicial review in the Federalist papers. However, others like Thomas Jefferson did not agree. Also there is this from The Heritage Foundation;

Although The Federalist affirms the power of judicial review—and hence the role of the judiciary as a check on the other branches—it does not present this as the first or most important function of the courts. Moreover, The Federalist does not support the vast implications of judicial review as including a power to decide the great moral issues of the times and to adjust the Constitution to trends in public opinion. Finally, The Federalist lends no aid to the belief that the Supreme Court is the ultimate interpreter of constitutional meaning, unanswerable for its interpretations to any authority but itself.

Of course, two guys opinion on Judicial Review does not mean squat. What does is the text of the Constitution, which as stated above does not grant this power.

"the Bill of Rights was enacted under a "presumption" that Congress would not violate them"

I went a little backwards because this is the point I wanted to emphasis. To paraphrase Mel Gibson in The Patriot;

An unelected Judge can trample a man's rights as easily as an elected legislature can.

Would you like me to go down a list of cases were SCOTUS was clearly wrong, and made unconstitutional decisions?

Ah, now you realize that cases like Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857), Plessy v. Ferguson, Buck v. Bell, Korematsu v. United States exist.

Or how about Helvering v. Davis (1937)? Not tyrannical enough for you? Or let's go a little bit more modern. NFIB v. Sebelius (2012)? Or do you like the idea of the Court saying anything can be a tax?

Of course Congress said it first. However, the difference is one can be reversed, and the other becomes binding precedent for ever. Or at least until the "Supremes" decide they were wrong.

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.

As for 1984, you certainly have some interesting ideas. I think it would be great fun to sit down with you with a cigar or two and a bottle of whisky and debate away. I'm sure we would agree on some things, disagree on others, and generally make great headway in solving all the problems of the world, at least until the whisky runs out.

Kind regards,
CS

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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Intriguing Amicus Filed in Begani

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