Is it Unconstitutional for the Supreme Court to Hear Court-Martial Appeals?

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Is it Unconstitutional for the Supreme Court to Hear Court-Martial Appeals?

By Steve Vladeck

 

Monday, August 15, 2016 at 8:10 AM

According to a provocative new amicus brief filed by the Hoover Institution’s Adam White and UVA Law Professor Aditya Bamzai in opposition to certiorari in Akbar v. United States, a case challenging the constitutionality of the military death penalty (about whichI blogged at length in May), the answer is yes. In a nutshell, the brief argues, the judges of the US Court of Appeals for the Armed Forces (CAAF–the Article I appellate court that sits atop the court-martial system) are Executive Branch officers, and it’s well settled (thanks to Marbury v. Madison) that the Supreme Court lacks the constitutional authority to issue “original” writs directly to such officers–such as the writ of certiorari the Petitioner seeks in Akbar. Thus, the brief argues, the jurisdiction conferred upon the Supreme Court by Article 67a of the Uniform Code of Military Justice (UCMJ) and 28 U.S.C. § 1259 violates Article III, Section 2 of the Constitution–and so the petition in Akbar should be dismissed.