A "JUDICIAL" SYSTEM IN THE EXECUTIVE BRANCH: ORTIZ V. UNITED STATES AND THE DUE PROCESS IMPLICATIONS FOR CONGRESS AND CONVENING AUTHORITIES
"Abstract: In Ortiz v. United States, 138 S. Ct. 2165 (2018), the majority described the military court-martial system (a commander-controlled process for adjudicating criminal complaints) as judicial in character. It reached this conclusion over Justice Alito's dissent, which took a diametrically opposed view by describing the system as an Executive Branch entity that could not exercise judicial power. The conflict between these two views is nothing new as they have been at the center of a debate about the fundamental nature of courts-martial for more than a century. Since Congress legislates consistent with Justice Alito's executive view, a rift between the Legislative and Judicial Branches is now apparent. This gives rise to a question about the constitutionality of the court-martial framework under the Uniform Code of Military Justice (UCMJ): does the current commander-controlled process comply with the requirements of due process? The answer to this question is especially relevant in today's political environment where members of Congress, operating under an executive view of courts-martial, pressure senior military leaders to produce convictions in sexual assault cases. Therefore, this Article examines the due-process question, concluding that there is an argument that the UCMJ's court-marital [sic] framework may not meet constitutional muster. In reaching this conclusion this Article highlights the type of structural reform that is necessary to ensure due-process compliance."