United States v. Andersen ( 2022 )

U NITED S TATES AIR F ORCE
C OURT OF C RIMINAL APPEALS
________________________
No. ACM 40000
________________________
UNITED STATES
Appellee
v.
Jayson D. ANDERSEN
Major (O-4), U.S. Air Force, Appellant
________________________
Appeal from the United States Air Force Trial Judiciary
Decided 19 April 2022
________________________
Military Judge: Bryon T. Gleisner.
Sentence: Sentence adjudged on 24 September 2020 by GCM convened
at Wright-Patterson Air Force Base, Ohio. Sentence entered by military
judge on 16 October 2020: Dismissal, confinement for 63 months, and a
reprimand.
For Appellant: Major Benjamin H. DeYoung, USAF; Major Eshawn R.
Rawlley, USAF.
For Appellee: Lieutenant Colonel Matthew J. Neil, USAF; Major Allison
R. Gish, USAF; Mary Ellen Payne, Esquire.
Before KEY, ANNEXSTAD, and MEGINLEY Appellate Military Judges.
Senior Judge KEY delivered the opinion of the court, in which Judge
ANNEXSTAD and Judge MEGINLEY joined.
________________________
PUBLISHED OPINION OF THE COURT
________________________
KEY, Senior Judge:
A military judge sitting as a general court-martial convicted Appellant, in
accordance with his pleas and pursuant to a plea agreement, of one specifica-
tion each of attempted indecent visual recording, indecent visual recording,
United States v. Andersen, No. ACM 40000
obstruction of justice, and viewing of child pornography. These specifications
respectively alleged violations of Articles 80, 120c, 131b, and 134, Uniform
Code of Military Justice (UCMJ), 10 U.S.C. §§ 880, 920c, 931b, 934.1 The mili-
tary judge sentenced Appellant to a dismissal, confinement for 63 months, and
a reprimand.
Appellant raises three assignments of error: (1) whether the military judge
erred by permitting a victim to deliver an unsworn impact statement via a pre-
recorded video; (2) whether the President exceeded his authority by not requir-
ing a written staff judge advocate recommendation in cases such as Appel-
lant’s; and (3) whether Congress unconstitutionally delegated its authority to
the President by permitting the President to determine “to what extent” provi-
sions of the UCMJ would apply in certain cases. We find no error materially
prejudicial to Appellant’s substantial rights and affirm the findings and sen-
tence.
I. BACKGROUND
In May 2019, Appellant attempted to use his mobile phone to record 11-
year-old EK as she tried on a swimsuit at a clothing store while her stepmother
continued shopping elsewhere in the store. Appellant—who had no relation-
ship with EK—did so by sliding his phone under the curtain in the fitting room
EK was using; she saw the phone and twice kicked it away. EK told her step-
mother what had happened after she left the fitting room. The local police
posted still images from the store’s security camera system on social media,
and Appellant was arrested after being identified as the perpetrator. Appellant
was released on bail, and in the ensuing investigation he confessed to not only
trying to record EK but to making approximately 50 surreptitious recordings
of other people in a similar manner.2 Appellant also confessed to storing the
recordings on a digital device, which he destroyed after he was first arrested
out of concern that the recordings would be found by law enforcement. Addi-
tionally, analysis of Appellant’s phone uncovered evidence Appellant had used
it to view child pornography.
1 The Article 120c and 134, UCMJ, specifications allege offenses occurring over date
ranges which spanned 1 January 2019—specifically from 2017 through mid-2019; as a
result, references to those punitive articles are to the Manual for Courts-Martial,
United States (2016 ed.). Unless otherwise specified, all other references to the UCMJ
and the Rules for Courts-Martial are to the Manual for Courts-Martial, United States
(2019 ed.).
2 During his providence inquiry, Appellant told the military judge that between 20 and
25 of these recordings were “successful” in capturing the subjects’ private areas.
2
United States v. Andersen, No. ACM 40000
II. DISCUSSION
A. EK’s Recorded Statement
1. Additional Background
After the Government rested during presentencing proceedings, trial coun-
sel provided the military judge with what she described as a ten-minute video
recording of EK’s “impact statement.” Trial counsel explained that EK’s
mother was not feeling well and that “it would be less stressful” if she and EK
did not come to the court-martial. Trial counsel added that EK had originally
planned to attend, but EK “was okay using the tape instead.” The military
judge had the video marked as a court exhibit and asked if the Defense had
any objection to it. In response, trial defense counsel asked for a brief recess so
they could consider whether or not to object. The military judge granted that
request, and when the court-martial reconvened, he again asked whether the
Defense objected, to which trial defense counsel replied, “No, Your Honor.” The
parties then discussed whether the video would be played in open court or if
the military judge would watch the video in his chambers; during that discus-
sion, trial defense counsel acknowledged they had previously seen the video.
In line with the Defense’s position, the video was played in open court.
In the video, EK recounts her experience in the fitting room and how she
tried “stomping” on Appellant’s phone in the hopes that she could grab it, but
Appellant would not let go. She also explains how she has become less trusting,
more fearful, and more protective of her siblings since the incident, and that
she thinks about the episode daily. During the video, an unidentified off-cam-
era male periodically guides EK (for example, the male asks EK how often she
thinks about the episode and whether it has impacted anything she does from
day to day), but the male never provides any substantive commentary. At no
point during Appellant’s court-martial did the Defense object to any aspect of
the video.
2. Law and Analysis
Appellant argues the military judge erred by admitting EK’s pre-recorded
statement. His theory is that Rule for Courts-Martial (R.C.M.) 1001(c) only
permits victim unsworn statements to be presented orally “in the presence of
the factfinder,” in written form, or both. He further argues the male voice in
the video likely belongs to trial counsel, and that the Government co-opted
EK’s rights in an effort to seek a higher sentence by assisting in—if not wholly
directing—the video. Appellant, however, has waived this issue.
When an appellant merely fails to object to the admission of evidence at
trial, the issue is forfeited; but when an appellant affirmatively states he has
no objection to the admission of evidence, the issue is waived and his right to
complain on appeal is extinguished. United States v. Davis, 79 M.J. 329, 331
3
United States v. Andersen, No. ACM 40000
(C.A.A.F. 2020); United States v. Ahern, 76 M.J. 194, 198 (C.A.A.F. 2017) (cit-
ing United States v. Campos, 67 M.J. 330, 332–33 (C.A.A.F. 2009)). Here, trial
defense counsel had seen the video and stated they had no objection to it even
after taking a short break to consider whether to object. Thus, trial defense
counsel did not merely fail to object at trial, they made the deliberate choice
not to do so and thereby affirmatively waived the matter by stating they had
no objection.
Pursuant to Article 66(d), UCMJ, we have the unique statutory responsi-
bility to affirm only such findings of guilty and so much of the sentence that is
correct and “should be approved.” 10 U.S.C. § 866(d). As a result, we retain the
authority to address errors raised for the first time on appeal despite waiver of
those errors at trial. See, e.g., United States v. Hardy, 77 M.J. 438, 442–43
(C.A.A.F. 2018). Having carefully considered Appellant’s alleged error and spe-
cifically noting Appellant does not allege any error with the substance of EK’s
comments in the video, we have determined we will leave his waiver intact.
Even if we were to conclude Appellant had forfeited, rather than waived,
this issue, we would conclude any error was harmless under the facts pre-
sented here. A victim’s right to be heard through an unsworn statement be-
longs solely to the victim or that victim’s designee. United States v. Barker, 77
M.J. 377, 378 (C.A.A.F. 2018). The comments made by the unidentified male
in the video were not EK’s own statements, but they were largely inconsequen-
tial in the context of the video as a whole, as the comments served to do little
more than orient EK to the general topics she discussed. There was no evidence
trial counsel played any role in producing the video, and the video lacked the
obvious incorporation of any message from anyone other than EK—oral or oth-
erwise. Moreover, the video is a single-take recording of EK sitting at a desk
and speaking directly to the camera; it is devoid of any music, photographs, or
other production elements calculated to evoke an emotional response. See
United States v. Edwards, __ M.J. __, No. 21-0245, 2022 CAAF LEXIS 283,
*23–24 (C.A.A.F. 14 Apr. 2022) (concluding the appellant was prejudiced by
allowing video of victim unsworn statement which trial counsel had produced
and which included music and photographs). Finally, trial counsel did not seek
to capitalize on the video during the Government’s sentencing argument and
instead only briefly referred to EK’s comments about being afraid when older
men look at her and not letting her siblings play near windows. Therefore, to
the extent the military judge committed plain error by permitting EK to be
heard via a recorded video statement in which someone else periodically asks
questions, the error was harmless in this case.
B. The Absence of a Staff Judge Advocate Recommendation
There is no written staff judge advocate recommendation in Appellant’s
record of trial. Appellant contends the President exceeded his authority by not
4
United States v. Andersen, No. ACM 40000
requiring such a recommendation in cases like Appellant’s, where at least one
offense is charged as occurring prior to 1 January 2019—the effective date of
the Military Justice Act of 2016 (MJA).3
1. Additional Background and Law
We review the question of proper completion of post-trial processing de
novo as a question of law. United States v. Zegarrundo, 77 M.J. 612, 614 (A.F.
Ct. Crim. App. 2018) (citing United States v. Kho, 54 M.J. 63, 65 (C.A.A.F.
2000)). In order to resolve this issue, we must first consider the enactment and
implementation of the MJA and its impacts on post-trial processing.
Prior to the MJA, Article 60, UCMJ, required convening authorities to take
action on every court-martial sentence—that is, the convening authority was
required to approve, disapprove, commute, or suspend the sentence in whole
or in part. Article 60(c)(2), UCMJ, 10 U.S.C. § 860(c)(2) (Manual for Courts-
Martial, United States (2016 ed.) (2016 MCM)). A different provision in the
same article required convening authorities to “obtain and consider the written
recommendation of his staff judge advocate or legal officer” prior to taking ac-
tion. Article 60(e), UCMJ, 10 U.S.C. § 860(e) (2016 MCM). The MJA, however,
transformed the convening authority’s post-trial responsibility to take action
from a mandatory act into a discretionary one and dispensed altogether with
the requirement to obtain a written legal recommendation. National Defense
Authorization Act for Fiscal Year 2017, Pub. L. No. 114-328, §§ 5321–22 (23
Dec. 2016) (FY17 NDAA).
Congress directed the President to prescribe regulations implementing the
MJA and legislated that the MJA would take effect no later than 1 January
2019. Id. at § 5542(a). Congress also directed the President to “prescribe in
regulations whether, and to what extent [the MJA] shall apply to a case in
which one or more actions under [the UCMJ] have been taken before the effec-
tive date of [the MJA].”4 Id. at § 5542(c)(1). The following year, as part of the
National Defense Authorization Act for Fiscal Year 2018, Congress directed
“clarifying amendments” be made to the MJA. Pub. L. No. 115-91, §§ 531–38
(12 Dec. 2017) (FY18 NDAA). One such amendment modified § 5542(c)(1) of
the FY17 NDAA. As modified, that provision directed to the President to pre-
3 The act is part of the National Defense Authorization Act for Fiscal Year 2017, Pub.
L. No. 114-328, §§ 5001–5542 (23 Dec. 2016) (FY17 NDAA).
4 Pursuant to § 5542(c)(1) of the FY17 NDAA, none of the Military Justice Act of 2016
provisions apply to cases referred to trial by court-martial before the amendments’ ef-
fective date, unless the act provides otherwise.
5
United States v. Andersen, No. ACM 40000
scribe regulations regarding “whether, and to what extent” the MJA would ap-
ply to cases in which a specification alleges the commission of an offense prior
to 1 January 2019. Id. at § 531(n)(1).
Just under four months after the FY18 NDAA was enacted, the President
signed Executive Order 13,825, designating 1 January 2019 as the effective
date of the MJA, thereby implementing a broad swath of amendments to the
Manual for Courts-Martial, to include the Rules for Courts-Martial covering
post-trial processing. 83 Fed. Reg. 9889, § 5 (8 Mar. 2018). Relevant here is the
fact one of those amendments did away with the requirement in R.C.M. 1106
for convening authorities to obtain written legal advice before taking action.
Instead, the new R.C.M. 1109(d)(2) requires convening authorities to consult
with the staff judge advocate or legal advisor “[i]n determining whether to take
action, or to decline taking action,” but does not require that consultation be
reduced to writing. The new R.C.M. 1109 also outlines the process for and lim-
itations on convening authorities deciding whether to take action or not.
Another provision of the executive order directs the version of Article 60,
UCMJ,
in effect on the date of the earliest offense of which the accused
was found guilty[ ] shall apply to the convening authority . . . to
the extent that Article 60: . . . requires action by the convening
authority on the sentence . . . or . . . authorizes the convening
authority to approve, disapprove, commute, or suspend a sen-
tence in whole or in part.
83 Fed. Reg. 9889 at 9890. Thus, the executive order seemingly called upon
convening authorities to affirmatively take action under the earlier version of
Article 60, UCMJ, in certain cases, even when such action would be taking
place after 1 January 2019. At the same time, the new version of R.C.M. 1109
would be in effect, which indicated convening authority action had become per-
missive instead of mandatory.
Significant litigation over both the legality and the meaning of this execu-
tive order provision ensued. See, e.g., United States v. Coffman, 79 M.J. 820 (A.
Ct. Crim. App. 2020); United States v. Aumont, No. ACM 39673, 2020 CCA
LEXIS 416 (A.F. Ct. Crim. App. 20 Nov. 2020) (en banc) (unpub. op.). Eventu-
ally the question of whether the provision required convening authorities to
affirmatively take action on cases involving specifications alleging pre-1 Janu-
ary 2019 offenses was decided by the United States Court of Appeals for the
Armed Forces (CAAF) in the case of United States v. Brubaker-Escobar, 81 M.J.
471, 473 (C.A.A.F. 2021) (per curiam). In that case, the CAAF concluded the
executive order “was a valid exercise of the President’s rulemaking authority,”
and that convening authorities in such cases must take action as required by
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United States v. Andersen, No. ACM 40000
the pre-MJA version of Article 60, UCMJ. Id. at 473. The CAAF further con-
cluded a convening authority’s failure to take action in cases referred after 1
January 2019 is a procedural error “test[ed] for material prejudice to a sub-
stantial right to determine whether relief is warranted.” Id. at 475 (quoting
United States v. Alexander, 61 M.J. 266, 269 (C.A.A.F. 2005)). The court rea-
soned that a failure to take action is no longer a jurisdictional error because
the new version of Article 66, UCMJ, 10 U.S.C. § 866, implemented by the MJA
provides the Courts of Criminal Appeals jurisdiction upon entry of judgment
by a military judge, as opposed to action by the convening authority. Id. at 474–
75.
2. Analysis
Appellant points to the fact the pre-MJA Article 60, UCMJ, required a writ-
ten recommendation from the staff judge advocate prior to convening authority
action, but the post-MJA R.C.M. 1109 does not. Appellant argues this incon-
sistency amounts to the President exceeding his authority by acting in a legis-
lative capacity—an authority vested in Congress under the Constitution. Spe-
cifically, Appellant contends that while the President could promulgate rules
to implement Article 60, UCMJ, the President was compelled to require adher-
ence to the entirety of Article 60, UCMJ, and not just portions of it. In other
words, Appellant argues the President could validly direct convening authori-
ties to affirmatively take action under the old Article 60, UCMJ, in cases alleg-
ing pre-1 January 2019 offenses, but he could not simultaneously relieve con-
vening authorities of the requirement to obtain written legal advice—a re-
quirement found in that same article.
Congress has assigned to the President authority to prescribe rules and
regulations relating to pretrial, trial, and post-trial procedures so long as such
rules and regulations are neither contrary to nor inconsistent with the UCMJ.
Article 36(a), UCMJ, 10 U.S.C. § 36(a). Pursuant to the FY17 NDAA, as
amended by the FY18 NDAA, Congress granted the President the authority to
issue regulations that define “whether, and to what extent” the MJA would
apply in cases such as Appellant’s.
We do not construe Executive Order 13,825 to be contrary to or inconsistent
with the UCMJ—instead, the portion of the order relevant here simply dictates
the timing of the implementation of the MJA’s amendments to the UCMJ in
certain cases. Congress expressly authorized the President to determine
“whether, and to what extent” those amendments would apply when pre-1 Jan-
uary 2019 offenses are involved, and we see nothing in the MJA or the two
defense authorization acts which could be read to require the President to only
issue regulations pertaining to entire UCMJ articles. A plain reading of the
phrase “to what extent” leads us to conclude Congress intended to give the
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United States v. Andersen, No. ACM 40000
President discretion to apply provisions of the UCMJ to such cases as the Pres-
ident saw fit. Had Congress intended to limit the President’s discretion in the
manner Appellant suggests, Congress could have explicitly done so within the
myriad of other directives found in the defense authorization acts, but Con-
gress did not. Therefore, we conclude Congress conferred broad discretion to
the Executive Branch to determine whether provisions of the MJA would apply
at all to cases with pre-1 January 2019 offenses, and—if so—which provisions
would apply and how.
Even if the President had exceeded his authority in effectively eliminating
the requirement for a written legal recommendation, we are hard-pressed to
identify any potential prejudice to Appellant. The convening authority had no
power to disapprove the findings or grant Appellant any clemency with respect
to the adjudged confinement and dismissal, leaving only the reprimand subject
to the convening authority’s discretion. Moreover, Appellant did not request
any specific relief from the convening authority—instead, he just asked for le-
niency. Since the most leniency the convening authority could grant was dis-
approval of Appellant’s reprimand, we are convinced Appellant was not preju-
diced by the lack of a written legal analysis on that point.
C. Congressional Delegation to the President
Notwithstanding the question of whether the President acted within the
limits of his authority under the FY17 and FY18 NDAAs, Appellant argues
Congress impermissibly delegated this authority to the President in the first
place. Appellant bases his argument on the premise that Congress’ grant of
authority to the President to decide “whether, and to what extent” the MJA
provisions would apply was so broad and unqualified that it amounted to Con-
gress abdicating its legislative role in violation of the so-called nondelegation
doctrine.
1. Law
The nondelegation doctrine basically espouses the principle that the sepa-
ration of powers in the United States Government “generally” prohibits Con-
gress from delegating its legislative power to either of the other two branches
of government. Mistretta v. United States, 488 U.S. 361, 371–72 (1989). The
doctrine does not, however, “prevent Congress from obtaining the assistance of
its coordinate [b]ranches.” Id. at 372. Such assistance is allowed so long as
Congress “lay[s] down by legislative act an intelligible principle” to which the
other branch is directed to conform. J.W. Hampton, Jr., & Co. v. United States,
276 U.S. 394, 409 (1928). The Supreme Court has recognized “Congress cannot
do its job absent an ability to delegate power under broad general directives.”
Mistretta, 488 U.S. at 373. As a result, the Court has found no violation of the
nondelegation doctrine when “Congress clearly delineates the general policy,
8
United States v. Andersen, No. ACM 40000
the public agency which is to apply it, and the boundaries of this delegated
authority.” Id. at 373–74 (quoting American Power & Light Co. v. SEC, 329
U.S. 90, 105 (1946)).
2. Analysis
Despite the doctrine’s prohibitive sounding name, the Supreme Court has
rarely relied on it to invalidate congressional action.5 For example, in the mil-
itary context, the Supreme Court found no violation of the doctrine where Con-
gress delegated to the President the authority to establish criminal penalties
and to define aggravating factors which permit death sentences. Loving v.
United States, 517 U.S. 748, 768–69 (1996). Indeed, the Supreme Court has
only twice invalidated laws based upon the doctrine, and both of those cases
were decided in 1935.6 This likely explains why Appellant largely supports his
argument by citing to the dissenting opinion in Gundy v. United States, 139 S.
Ct. 2116 (2019).
In Gundy, the Supreme Court considered whether the federal Sex Offender
Registration and Notification Act (SORNA) violated the doctrine insofar as the
act authorized the Attorney General to determine how the law would apply to
offenders convicted before the law’s enactment.7 Id. at 2122. A four-Justice plu-
rality concluded the delegation constitutionally permitted the Attorney Gen-
eral to resolve such issues as how to apply the law to “pre-Act” offenders who
had already been released from prison or who had never previously been re-
quired to register under a particular state’s then-existing scheme; that is, to
address “practical problems” in the implementation of the law as “a stopgap,
and nothing more.” Id. at 2124–25 (citing Reynolds v. United States, 565 U.S.
432, 440 (2012)). In reaching this conclusion, the Court considered the overall
purpose of the law and the fact that the law did not grant the Attorney General
limitless authority, but rather applied only to people who had committed their
offenses prior to the law’s enactment. Id. at 2126–27. The three-Justice dissent,
on the other hand, contended the Attorney General had been given “unfettered
discretion to decide which requirements to impose on which pre-Act offenders”
because Congress itself had been unable to reach consensus over how the law
5 See, e.g., Keith E. Whittington & Jason Iuliano, The Myth of the Nondelegation Doc-
trine, 165 U. Pa. L. Rev. 379 (2017).
6See A. L. A. Schechter Poultry Corp. v. United States, 295 U. S. 495 (1935); Panama
Refining Co. v. Ryan, 293 U. S. 388 (1935).
7 The purpose of the law was to provide consistent registration requirements across
the country in light of the wide disparities in state registration laws. Gundy, 139 S. Ct.
at 2121.
9
United States v. Andersen, No. ACM 40000
should apply to such offenders. Id. at 2143 (Gorsuch, J., dissenting). Mean-
while, Justice Alito concurred with the majority, but expressed a willingness
“to reconsider the approach we have taken for the past 84 years,” but he did
not wish to do so solely with respect to the issue at hand. Id. at 2130–31 (Alito,
J., concurring).8
We decline Appellant’s invitation to find in his favor based upon a dissent-
ing opinion. Instead, the Supreme Court’s opinion in Gundy compels a conclu-
sion adverse to Appellant’s position. We reach this determination in no small
part due to the similarity between the SORNA delegation and that found in
the MJA. In both cases, the delegations pertained to the applicability of new
legal provisions to people who found themselves subject to the laws on those
laws’ effective dates when some triggering event had already occurred.
In Gundy, the people at issue were those who had committed registerable
sex offenses prior to the law being passed, and the Attorney General was given
discretion to determine how to go about applying the new registration require-
ments to those offenders. In the instant case, some number of servicemem-
bers—like Appellant—had committed offenses prior to the MJA’s effective
date, but faced court-martial proceedings after that effective date. Similar to
the Attorney General in Gundy, the President was given discretion to deter-
mine how the new act’s provisions would apply to that discrete population of
servicemembers. In one sense, the delegation was broad in that it permitted
the President to choose which of the MJA’s extensive amendments to apply to
these servicemembers. But that broad discretion is sharply tempered by the
fact the only servicemembers in question are those who had committed of-
fenses—or had some action taken under the UCMJ—prior to 1 January 2019
and whose offenses were referred to trial after that date. Thus, the President
was generally only given the authority to determine which provisions of the
MJA would continue to apply in such cases after the 1 January 2019 effective
date passed.
The need to determine how to apply the MJA provisions to these “gap” cases
is not difficult to grasp, as court-martial processing—not to mention criminal
conduct—does not stop and start neatly at the end of calendar years. Building
some degree of flexibility into the implementation of the law was a virtual ne-
8 Justice Kavanaugh did not participate in the decision. Appellant notes that five
months after Gundy was decided, Justice Kavanaugh commented favorably on Justice
Gorsuch’s Gundy dissent when he concurred in a denial of certiorari in an unrelated
case, Paul v. United States, 140 S. Ct. 342 (2019). While that may be true, our task is
to apply the law and not to try and predict if or how the Supreme Court might chart
some new and different course in this arena.
10
United States v. Andersen, No. ACM 40000
cessity to mitigate the upheaval such a major revision of the UCMJ would en-
tail. But the question is not whether that goal was justified or not—the ques-
tion is whether Congress could constitutionally delegate the matter to the Pres-
ident. We answer that question in the affirmative.
As previously noted, Congress may permissibly obtain the assistance of the
Executive Branch so long as Congress sets out an “intelligible principle” guid-
ing that assistance. J.W. Hampton, Jr., & Co., 276 U.S. at 409. The “intelligible
principle” of Congress’ delegation here was simply to determine how to apply
the MJA amendments to the limited number of cases in which the convicted
offenses spanned 1 January 2019. The delegation did no more. It is true that
Congress did not provide the President with any guidance in the MJA itself on
how to make this determination, but context is important: the President is the
Commander in Chief of the armed forces, ultimately responsible for military
discipline.9 As the Supreme Court explained in Loving, “The delegated duty,
then, is interlinked with duties already assigned to the President by express
terms of the Constitution, and the same limitations on delegation do not apply
where the entity exercising the delegated authority itself possesses independ-
ent authority over the subject matter.’” 517 U.S. at 772 (quoting United States
v. Mazurie, 419 U.S. 544, 556–57 (1975)).
The changes enacted by the MJA pertain to the UCMJ and its implement-
ing rules and regulations, all found in the Manual for Courts-Martial. As the
preamble to the manual explains, “The purpose of military law is to promote
justice, to assist in maintaining good order and discipline in the armed forces,
to promote efficiency and effectiveness in the military establishment, and
thereby to strengthen the national security of the United States.” Manual for
Courts-Martial, United States, Preamble, pt. I-1, ¶ 3 (2019 ed.). Moreover, the
UCMJ itself is solely concerned with addressing criminal conduct committed
by servicemembers, further limiting the overall scope of the issue at hand.
Thus, the purpose of the MJA amendments, and by extension the President’s
implementation of them in his unique role as commander in chief, is to support
the execution of the military justice system as a function of national security.
In the end, the President was granted limited authority over a limited number
of cases for the limited purpose of implementing Congress’ amendments to the
UCMJ, and we see no support for the argument Congress’ delegation of this
authority was unconstitutional.
9 Justice Alito has remarked, “Courts-martial are older than the Republic and have
always been understood to be Executive Branch entities that help the President, as
Commander in Chief, to discipline the Armed Forces.” Ortiz v. United States, 138 S. Ct.
2165, 2190 (2018) (Alito, J., dissenting).
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United States v. Andersen, No. ACM 40000
Even as we come to this conclusion, we note that a contrary determination
would not provide Appellant with the written legal recommendation he seeks.
If Congress’ delegation was impermissible, then Appellant’s entire post-trial
processing would have fallen under the UCMJ as amended by the MJA, as that
processing occurred after 1 January 2019. Thus, Appellant would have been
entitled to neither affirmative convening authority action nor a written legal
recommendation, as both of those requirements are only found in the law as it
existed prior to that date.
III. CONCLUSION
The findings and sentence as entered are correct in law and fact, and no
error materially prejudicial to the substantial rights of Appellant occurred. Ar-
ticles 59(a) and 66(d), UCMJ, 10 U.S.C. §§ 859(a), 866(d). Accordingly, the find-
ings and sentence are AFFIRMED.
FOR THE COURT
CAROL K. JOYCE
Clerk of the Court
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