In United States v. Begani, the CAAF held that members of the Fleet Reserve and Fleet Marine Corps Reserve (collectively Fleet Reservists) maintain a sufficient connection to the military to subject them to continuous UCMJ jurisdiction. This ruling, however, places the CAAF in direct conflict with the U.S. District Court for the District of Colombia (DDC), whose Larrabee v. Braithwaite decision found that Fleet Reservists did not maintain a sufficient connection to the military to subject them to continuous UCMJ jurisdiction.
Larrabee now awaits a ruling by the U.S. Court of Appeals for the District of Columbia (CADC). Should the CADC uphold the DDC’s holding, the Supreme Court will have to resolve this “circuit split.” And, if it does, Judge Maggs’ “originalist” concurrence in Begani, joined by Judge Hardy and Senior Judge Crawford, might have an outsized impact on the arguments.
In Larrabee, a Fleet Reservist convicted by a court-martial challenged the constitutionality of Article 2(a)(6), which subjects Fleet Reservists to continuous UCMJ jurisdiction. He contended that retired military personnel are not part of the “land and naval forces” and are therefore not subject to Congress’s Article I Make Rules power. Specifically, Larrabee argued that Fleet Reservists are not “realistically subject to involuntary recall” and have “no regular (or even irregular) military duties.”
The DDC agreed, finding that neither Fleet Reservists’ retainer pay nor eligibility for recall adequately demonstrates that members fall within the “land and naval forces.” Moreover, Congress failed to provide evidence that subjecting Fleet Reservists to continuing UCMJ jurisdiction promoted good order and discipline, and the fact that retired reservists are not subject to continuous UCMJ jurisdiction suggests that such jurisdiction over Fleet Reservists is not necessary. The court thus found that the “present exercise of court-martial jurisdiction over all” Fleet Reservists is unconstitutional, and it reversed Larrabee’s conviction.
Begani challenged his conviction on similar grounds. He originally lodged an equal protection challenge, arguing that subjecting Fleet Reservists but not retired reservists to continuous UCMJ jurisdiction violated the Fifth Amendment’s Equal Protection Clause. However, after the DDC decided Larrabee, the CAAF entertained the secondary question of whether Begani maintained a sufficient connection to the military to subject him to continuous UCMJ jurisdiction.
Unlike the DDC, the CAAF unanimously found that Fleet Reservists do have a sufficient connection to the military to be considered “land and naval forces.” The court noted that the Fleet Reserve is a component of the armed forces, and that Fleet Reservists are paid to be a part of that component.
Moreover, Fleet Reservists are subject to recall and must maintain military readiness. To facilitate this readiness, Congress determined that Fleet Reservists should remain subject to UCMJ jurisdiction; and courts should defer to that decision. Consequently, the CAAF upheld Begani's conviction.
Judge Maggs' Concurrence
Judge Maggs fully joined the Begani majority opinion, but he desired to address Begani’s two “originalist” arguments in greater detail.
First, Begani contended that, as an original matter, an individual must have ongoing military duties or authority to constitute part of the “land and naval forces.” To support his assertion, Begani pointed to the records of the Continental Congress. There, Congress offered “‘officers who shall continue in the service to the end of the war’ half-pay for life after their ‘reduction.’” Congress passed a similar law for officers in the “health department.” These acts, Begani suggested, demonstrate that individuals with no ongoing duties or authority could receive “post-duty compensation without military status.”
Addressing this argument, Judge Maggs noted that the early Congress distinguished between
“furloughed” and “dismissed” military members. Though furloughed members did not have any ongoing duties, they were subject to recall and remained part of the military. To emphasize this point, Judge Maggs pointed to soldiers furloughed between the cessation of the Revolutionary War and the Treaty of Paris. A month after Congress made these furloughs, “hundreds of these furloughed soldiers took part in a mutinous demonstration targeting Congress.” The Army charged several of the participants with mutiny under the Articles of War—an offense only military members could commit. This event, Judge Maggs
contended, demonstrates that individuals with no ongoing military authority or duties could be considered members of the armed forces.
Judge Maggs surveyed other historical sources as well. Dictionaries from the time provided no guidance. Neither did the Records of the Federal Convention, the state ratifying conventions, or the Federalist Papers. As he concluded, “I found nothing that specifically addressed the issue of whether the ‘land and naval Forces’ include only persons with ongoing duties.” And because no source contradicted the furlough evidence, Judge Maggs found that individuals could remain part of the “land and naval forces” without having ongoing duties or authority.
Next, Begani argued that the Fifth Amendment’s Grand Jury Clause barred his conviction. As he asserted, “[E]ven if [an individual] remains a member of the ‘land and naval forces’ for purposes of the Make Rules Clause, the dispute must still ‘arise in the land or naval forces’ for purposes of the Fifth Amendment’s Grand Jury Indictment Clause.” Because his crime took place after retirement from active duty, was not military-specific, and bore no connection to his active-duty service or future recall, the case did not “arise” in the naval forces. Consequently, the Fifth Amendment required indictment by grand jury.
In response, Judge Maggs compared the Grand Jury Clause’s exception for militia members with its exception for military personnel. The Grand Jury Clause contains a limited exception for militia members:
They may be tried without a grand jury indictment “when in actual service.” “Actual service,” Judge Maggs observed, means “ongoing duties.” In contrast, the clause does not subject its military member exception to an “actual service” requirement; instead, it provides a general exception. So long as an individual is a member of the military, then, his case “arises” in the land or naval forces regardless of whether he has ongoing duties.
Judge Maggs supported this textual analysis with historical evidence. For instance, three state constitutions distinguished between militiamen, who could not be subject to court-martial except when in actual service, and “those employed in the army or navy,” who could be subject to court-martial at any time. Two of these states’ ratifying conventions—Massachusetts and New Hampshire—also requested a constitutional amendment that required indictment by grand jury “except in such cases as may arise in the government and regulation of the land and naval forces,” again including no “actual service” requirement for military members. And when Congress drafted the Fifth Amendment, it chose not to include an “actual service” requirement for the armed forces, yet it provided one for the militia. Judge Maggs thus inferred that, “[g]iven the importance of the issue, this distinction must have been intentional and would have been seen as such.” The government, therefore, need not indict a member of the armed forces by grand jury, even if that member had no ongoing duties.
Should these cases reach the Supreme Court, several of the justices will likely look to the original meaning of the Make Rules Clause. Consequently, Judge Maggs’ survey of historical sources that rebut Begani’s originalist arguments might prove decisive should Larrabee or Begani fail to muster more evidence. In the meantime, all eyes are on the CADC. The parties’ briefs are in, and multiple amicus briefs have been filed, including one by the National Institute of Military Justice. Oral argument has been scheduled for October 22, 2021.
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