United States v. Lane

UNITED STATES, Appellee
v.
Charles M. LANE, Airman First Class
U.S. Air Force, Appellant
No. 05-0260
Crim. App. No. S30339
United States Court of Appeals for the Armed Forces
Argued November 8, 2005
Decided September 20, 2006
GIERKE, C.J., delivered the opinion of the Court, in which
EFFRON, BAKER, and ERDMANN, JJ., joined. CRAWFORD, J., filed a
dissenting opinion.
Counsel
For Appellant: Major Andrew S. Williams (argued); Colonel
Carlos L. McDade and Lieutenant Colonel Craig S. Cook (on
brief); Lieutenant Colonel Mark R. Strickland.
For Appellee: Major Michelle M. Lindo McCluer (argued);
Lieutenant Colonel Robert V. Combs, Lieutenant Colonel Gary F.
Spencer, and Major John C. Johnson (on brief); Captain C. Taylor
Smith.
Amici Curiae for Appellant: Arthur W. S. Duff, Esq. (argued);
Jonathan D. Hacker, Esq., Garrett W. Wotkyns, Esq., Arthur B.
Spitzer, Esq., Eugene R. Fidell, Esq., Stephen A. Saltzburg,
Esq., and J. Abraham Sutherland (law student)(on brief) – for
the American Civil Liberties Union of the National Capital Area
and the National Institute of Military Justice.
Military Judge: Gregory E. Pavlik
This opinion is subject to revision before final publication.
United States v. Lane, No. 05-0260/AF
Chief Judge GIERKE delivered the opinion of the Court.
Pursuant to Article 66(a), Uniform Code of Military Justice
(UCMJ),1 the Judge Advocate General of the Air Force assigns
appellate judges to the United States Air Force Court of
Criminal Appeals.2 The Judge Advocate General of the Air Force
assigned a Member of Congress, Senator Lindsey O. Graham, who
was also a lieutenant colonel in the United States Air Force
Standby Reserve at the time, as an appellate judge on the Air
Force Court of Criminal Appeals. At the lower court, Appellant
unsuccessfully challenged Senator Graham’s sitting on the panel
that affirmed his conviction and sentence.3
The Incompatibility Clause of the Constitution provides
that “no Person holding any Office under the United States,
shall be a Member of either House during his Continuance in
Office.”4 The issue before this Court is whether the assignment
of a Member of Congress to the Air Force Court of Criminal
Appeals is proper under the Constitution.5 For the reasons set
forth below, we conclude that a Member of Congress may not hold
the office of appellate judge on a Court of Criminal Appeals.
1
10 U.S.C. § 866(a) (2000).
2
Pursuant to Article 66(a), UCMJ, the Judge Advocate General of
each service (Air Force, Army, Coast Guard, and Navy) has
established a service Court of Criminal Appeals.
3
United States v. Lane, 60 M.J. 781 (A.F. Ct. Crim. App. 2004).
4
U.S. Const. art. I, § 6, cl. 2.
5
Appellant expressly stated that he is not challenging Senator
Graham’s service in the military in general or his status as a
Standby Reservist in particular, and we do not address those
issues.
2
United States v. Lane, No. 05-0260/AF
FACTS
At a special court-martial composed of a military judge
sitting alone, Appellant was convicted, pursuant to his plea, of
wrongful use of cocaine, in violation of Article 112a, UCMJ.6
The military judge sentenced Appellant to a bad-conduct
discharge, confinement for 135 days, and reduction to the lowest
enlisted grade. The convening authority approved the sentence
after modifying the confinement to a period of four months
pursuant to a pretrial agreement.
The Air Force Court of Criminal Appeals reviewed the case
pursuant to Article 66(b), UCMJ.7 Under Article 66(c), UCMJ, the
Court of Criminal Appeals conducts a de novo review of the
record in such cases for legal sufficiency, factual sufficiency,
and sentence appropriateness.8
Senator Graham served on the panel of the Court of Criminal
Appeals that reviewed Appellant’s case. Senator Graham is an
officer in the United States Air Force Standby Reserve.9
Pursuant to applicable regulations, he has been designated as a
“key employee” assigned to the Active Status List within the
Standby Reserve, where he is eligible to participate in reserve
6
10 U.S.C. § 912a (2000).
7
Article 66(b), UCMJ, provides for review by a court of criminal
appeals for cases in which the sentence extends to death, a
punitive separation, or confinement for one year or more.
8
See United States v. Cole, 31 M.J. 270, 272 (C.M.A.
1990)(referring to the Article 66(c), UCMJ, power of the lower
court as an “awesome, plenary, de novo power of review”).
9
See 10 U.S.C. §§ 10141(a), 12301(a), 12306 (2000).
3
United States v. Lane, No. 05-0260/AF
training activities without pay, earn retirement points, and
compete for promotion.10 Appellant moved to disqualify Judge
Graham on several grounds, citing, inter alia, the
Incompatibility Clause of the Constitution of the United States.
The lower court denied the motion and affirmed the findings and
the sentence.11 Appellant has renewed his challenge to Judge
Graham in his appeal to this Court.
I. STANDING
Initially, we must address whether Appellant has standing
to assert this claim of constitutional error. The present case
is similar to Ryder v. United States,12 in which the Supreme
Court upheld a military petitioner’s right to challenge “the
composition of the Coast Guard Court of Military Review while
his case was pending before that court on direct review.”13 In
Ryder, the petitioner presented a constitutional claim based on
the Appointments Clause of Article II of the Constitution.14 The
10
Dep’t of Defense Dir. (DODD) 1200.7, Screening the Ready
Reserve Enclosure 2 (Nov. 18, 1999); DODD 1235.9, Management of
the Standby Reserve 4.2.1 (Feb. 10, 1998).
11
Lane, 60 M.J. at 794.
12
515 U.S. 177 (1995).
13
Id. at 182. The Coast Guard Court of Military Review is now
the Coast Guard Court of Criminal Appeals.
14
Id. at 180. The relevant provision of the Appointments Clause
states:
[The President] shall nominate, and by and with the Advice
and Consent of the Senate, shall appoint Ambassadors, other
public Ministers and Consuls, Judges of the supreme Court,
and all other Officers of the United States, whose
Appointments are not herein otherwise provided for, and
4
United States v. Lane, No. 05-0260/AF
Supreme Court stated, “[O]ne who makes a . . . challenge to the
constitutional validity of the appointment of an officer who
adjudicates his case is entitled to a decision on the merits of
the question and whatever relief may be appropriate if a
violation indeed occurred.”15 In the present case, as in Ryder,
Appellant also has raised a jurisdictional objection that the
lower court is not properly constituted. Appellant’s position
arises from the assignment of a Member of Congress as an
appellate judge on the lower court and his participation on the
panel that decided Appellant’s case. We conclude Appellant has
standing under Ryder.
The Government contends that Appellant lacks standing to
challenge the panel in his case because he has not suffered an
injury to a legally protected interest. Contrary to the
Government’s assertion, the constitutionality of the assignment
of a person to serve as a judge on a Court of Criminal Appeals
is not an abstract question. The fact that a Member of Congress
sat as a judge in this criminal case relates to the rights and
liberties of a specific individual, Appellant. The direct
liberty implications for Appellant make this case distinct from
which shall be established by Law: but the Congress may by
Law vest the Appointment of such inferior Officers, as they
think proper, in the President alone, in the Courts of Law,
or in the Heads of Departments.
U.S. Const. art. II, § 2, cl. 2.
15
Ryder, 515 U.S. at 182-83.
5
United States v. Lane, No. 05-0260/AF
other abstract circumstances where the Incompatibility Clause
might be implicated. Consistent with the Supreme Court position
in Ryder, Appellant is entitled to a decision as to the
constitutional validity of the appointment of an officer who
adjudicated his case.16
The Government also contends that Appellant lacks standing
because Incompatibility Clause determinations are the sole
province of Congress. In support of this contention, the
Government asserts that the Incompatibility Clause constitutes
qualification for congressional service, not a disqualification
from executive branch service, making it a nonjusticiable
political question. The Government further asserts that, in any
case, Congress would not find a violation because service in the
Standby Reserve does not make a person an officer of the United
States.
The issue before us is not whether the duties of a person
in the Standby Reserve, in the abstract, are of sufficient
significance to constitute an office of the United States for
purposes of qualification to serve as a Member of Congress under
the Incompatibility Clause. The issue before us is whether a
criminal conviction and sentence, which by statute can be
sustained only by an affirmative appellate decision, may be
16
See id.6
United States v. Lane, No. 05-0260/AF
reviewed by an appellate judge who simultaneously serves as a
Member of Congress.
Under the Government’s theory of standing, no citizen could
cite the Incompatibility Clause in challenging a governmental
decision bearing directly on the life, liberty, or property of
the citizen. Members of Congress could serve as the heads of
departments and regulatory agencies, simultaneously
participating in the passage of legislation and in the execution
of the laws. A person against whom such a law was executed,
under the Government’s theory, could not challenge the
participation of Members of Congress in the enforcement and
adjudication of rights under such laws. Under such a regime,
the structural integrity of the Constitution would rest on a
gravely weakened foundation. We reject all of the Government’s
arguments that Appellant lacks standing and proceed to the
merits of this appeal.
II. BACKGROUND
A. SUPREME COURT PRECEDENT REAFFIRMING THE PRINCIPLE OF
SEPARATION OF POWERS
In Buckley v. Valeo,17 the Supreme Court emphasized the
significance of the bedrock constitutional principle of
separation of powers as this principle applies to the
appointment and assignment of persons holding federal office.
17
424 U.S. 1 (1976).
7
United States v. Lane, No. 05-0260/AF
In Buckley, the plaintiffs challenged the appointment of the
Federal Election Commission members on separation of powers
grounds. “The Court agreed with them and held that the
appointment of four members of the commission by Congress,
rather than the President, violated the Appointments Clause.”18
In doing so, the Supreme Court reaffirmed the vital role of
the separation of powers constitutional principle stating that
“The principle of separation of powers was not simply an
abstract generalization in the minds of the Framers: it was
woven into the document that they drafted in Philadelphia in the
summer of 1787.”19
In Buckley, the Supreme Court also analyzed and relied on
related constitutional threads “woven into the document” tied to
the principle of separation of powers –- the Appointments Clause
and the Ineligibility and Incompatibility Clauses.20
Importantly, the Supreme Court explained the close relationship
among these clauses.21
After reviewing the primary sources of legislative,
executive, and judicial powers, the Supreme Court observed:
18
Ryder, 515 U.S. at 183 (explaining Buckley, 424 U.S. at 143).
19
Buckley, 424 U.S. at 124.
20
Id. The Ineligibility Clause provides: “No Senator or
Representative shall, during the Time for which he was elected,
be appointed to any civil Office under the Authority of the
United States, which shall have been created, or the Emoluments
whereof shall have been [i]ncreased during such time . . . .”
U.S. Const. art. I, § 6, cl. 2.
21
Buckley, 424 U.S. at 124.
8
United States v. Lane, No. 05-0260/AF
“The further concern of the Framers of the Constitution with
maintenance of the separation of powers is found in the so-
called ‘Ineligibility’ and ‘Incompatibility’ Clauses contained
in Art. I, § 6 . . . .”22 The Supreme Court observed that these
“cognate provisions” provided the context for interpreting the
Appointments Clause of the Constitution.23
The Supreme Court in Buckley generally defined and thereby
identified those federal government positions to which the
Appointments Clause pertains. The Supreme Court observed that
the term “Officers of the United States” includes “all persons
who can be said to hold an office under the Government.”24 The
Supreme Court also stated that “any appointee exercising
significant authority pursuant to the laws of the United States
is an ‘Officer of the United States’” under the Appointments
Clause.25
B. SUPREME COURT PRECEDENT APPLYING THESE PRINCIPLES TO JUDGES
APPOINTED TO A COURT OF CRIMINAL APPEALS
The Supreme Court applied these principles in a trilogy of
Appointments Clause cases involving the assignment of persons to
sit as judges on the Courts of Criminal Appeals.26 In so doing,
22
Id.
23
Id.
24
Id. at 125-26 (quoting United States v. Germaine, 99 U.S. 508,
509-10 (1879)).
25
Id. at 126.
26
Weiss v. United States, 510 U.S. 163, 167-76 (1994); Ryder,
515 U.S. at 179-88; Edmond v. United States, 520 U.S. 651, 653-
66 (1997).
9
United States v. Lane, No. 05-0260/AF
the Supreme Court precedent defines and explains the status of
judges on the Courts of Criminal Appeals.
In Weiss v. United States, the Supreme Court stated that
military judges, including appellate judges, are “Officers” of
the United States who “must be appointed pursuant to the
Appointments Clause.”27 The Supreme Court held that presidential
nomination and Senate confirmation of a person as a military
officer would satisfy the Appointments Clause with respect to
the assignment of such an officer to the military judiciary.28
In Ryder, the second case, the Supreme Court addressed the
assignment of two civilians by the General Counsel of the
Department of Transportation to serve as judges on the Coast
Guard Court of Military Review (now the Coast Guard Court of
Criminal Appeals).29 During direct review, the servicemember had
challenged the composition of the panel that reviewed his case
under Article 66, UCMJ, on the ground that the civilian members
had not been appointed by the President, a court of law, or the
head of a department, as required by the Appointments Clause.30
The Supreme Court agreed, implicitly applying the pertinent
reasoning of Weiss that judges on the Courts of Criminal Appeals
are officers who must be appointed under the Appointments
Clause. The Court concluded that the constitutional violation
27
510 U.S. at 170.
28
Id. at 176.
29
515 U.S. at 179.
30
Id. at 180.
10
United States v. Lane, No. 05-0260/AF
could not be cured by according de facto validity to the actions
of the civilian judges.31
After noting that the Appointments Clause “is a bulwark
against one branch aggrandizing its power at the expense of
another,” the Supreme Court added: “[B]ut it is more: it
‘preserves another aspect of the Constitution’s structural
integrity by preventing the diffusion of the appointment
power.’”32 The Supreme Court also noted that it would not invoke
the de facto officer doctrine in a case involving “basic
constitutional protections designed for the protection of
litigants.”33 In the course of rejecting the government’s
contention that any error in the appointment of these appellate
judges was harmless, the Supreme Court emphasized the unique
powers of intermediate courts under Article 66, UCMJ, including
their “broad[] discretion to review claims of error, revise
factual determinations, and revise sentences.”34
In the third case, Edmond, the Supreme Court considered the
assignment of civilian judges at the Coast Guard Court of
Criminal Appeals after appointment by the head of a department,
the Secretary of Transportation.35 The Supreme Court held that
appointment by a department head met the terms of the inferior
31
Id. at 188.
32
Id. at 182 (quoting Freytag v. Commissioner, 501 U.S. 868, 878
(1991)).
33
Id. (quoting Glidden Co. v. Zdanok, 370 U.S. 530, 536 (1962)).
34
Id. at 187.
35
520 U.S. at 653.
11
United States v. Lane, No. 05-0260/AF
officers provision of the Appointments Clause, and that the
Constitution did not require presidential appointment and Senate
confirmation of these judges.36 The Supreme Court emphasized
that treatment of the judges on the Courts of Criminal Appeals
as “inferior officers” reflected the applicable supervisory
hierarchy, including review by our Court.37 The Supreme Court
took the opportunity to underscore the significant authority
exercised by judges on the Courts of Criminal Appeals as
“Officers of the United States”: “We do not dispute that
military appellate judges are charged with exercising
significant authority on behalf of the United States. This,
however, is also true of offices that we have held were
‘inferior’ within the meaning of the Appointments Clause.”38 The
Supreme Court added: “The exercise of ‘significant authority
pursuant to the laws of the United States’ marks, not the line
between principal and inferior officer for Appointments Clause
purposes, but rather, as we said in Buckley, the line between
officer and non-officer.”39
III. DISCUSSION
Appellant asserts that the participation of a Member of
Congress as an appellate judge in this case violates the
Incompatibility Clause of the United States Constitution that
36
Id.37
Id. at 662.
38
Id. at 662 (citing Freytag, 501 U.S. at 881-82).
39
Id. (citing Buckley, 424 U.S. at 126).
12
United States v. Lane, No. 05-0260/AF
provides: “no Person holding any Office under the United
States, shall be a Member of either House during his Continuance
in Office.”40 The Supreme Court has noted that “The Constitution
thereby . . . prohibits Members of Congress from holding other
offices through [this] limitation, the Incompatibility Clause.”41
In Buckley, the Supreme Court reaffirmed the principle of
separation of powers and the operation of both the Appointments
Clause and the Incompatibility Clause to bolster this
principle.42 As to the Appointments Clause, the Supreme Court
stated it is critical to the structural integrity of the
Constitution, not a mere form of “etiquette or protocol.”43
Addressing the Incompatibility Clause, the Supreme Court stated
that “The further concern of the Framers of the Constitution
with maintenance of the separation of powers is found in the so-
called ‘Ineligibility’ and ‘Incompatibility’ Clauses . . . .”44
Indeed, “the Incompatibility Clause plays a vital role in
our constitutional scheme . . . by . . . reinforcing the
separation of powers.”45 Further, “the Incompatibility Principle
has become one of the five great distinguishing structural
40
U.S. Const. art. I, § 6, cl. 2.
41
Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208,
210 (1974).
42
Buckley, 424 U.S. at 124.
43
Id. at 125.
44
Id. at 124.
45
See Stephen G. Calabresi & Joan L. Larsen, One Person, One
Office: Separation of Powers or Separation of Personnel?, 79
Cornell L. Rev. 1048 (1994).
13
United States v. Lane, No. 05-0260/AF
features of our constitutional system, along with checks and
balances, separation of powers, bicameralism, and federalism.”46
We review the assignment of judges to the Courts of
Criminal Appeals in the context of pertinent Supreme Court
precedents addressing the Appointments Clause, described in
Section II, supra. The Supreme Court has instructed “that the
Constitution’s terms are illuminated by their cognate
provisions.”47 In view of the close relationship between the
Appointments Clause and the Incompatibility Clause as “cognate
provisions,”48 the precedents developed under the Appointments
Clause provide the appropriate framework for interpreting the
Incompatibility Clause.
In the Appointments Clause cases discussed in Section II,
supra, the Supreme Court emphasized that an appellate judge
serving on a Court of Criminal Appeals exercises significant
authority on behalf of the United States in adjudicating the
rights of servicemembers. In that capacity, a judge on a Court
of Criminal Appeals holds an “office under the government” that
must be filled by an “Officer of the United States” under the
Appointments Clause.49
In the context of the Incompatibility Clause -– a “cognate
provision” –- the term “office” should be given the same
46
Id.
47
Freytag, 501 U.S. at 889.
48
See Buckley, 424 U.S. at 124.
49
See id. at 125-26 (citations and question marks omitted).
14
United States v. Lane, No. 05-0260/AF
meaning. Accordingly, the Incompatibility Clause –- which
prohibits a Member of Congress from “holding any Office under
the United States” -– precludes a Member from serving as an
appellate judge on a Court of Criminal Appeals –- an “office”
that must be filled by an “Officer of the United States.”
The present problem before this Court is the judge’s
simultaneous service as a Member of Congress and an appellate
judge. The fundamental principle of separation of powers is the
key to analyzing the relationship among branches of government
as they apply to a citizen. The structure of the Constitution
provides for separate and shared powers among the branches.50
This separation of powers was forged in the hard-earned lesson
from history that executive, legislative, and judicial powers
should not reside in one hand.51 One of the purposes served by
the separation of powers is that a military accused will not be
judged by a Member of Congress. Service by a Member of Congress
performing independent judicial functions runs afoul of the
fundamental constitutional principle of separation of powers.
The present case does not require us to determine the
qualification of an individual to serve as a Member of Congress;
nor does it require us to define the scope of the standing of
citizens in general to litigate the relationship between
50
See Loving v. United States, 517 U.S. 748, 756-57 (1996).
51
See id. at 756 (“Even before the birth of this country,
separation of powers was known to be a defense against
tyranny.”).
15
United States v. Lane, No. 05-0260/AF
congressional service and membership in the Reserves.52 Military
status simply is not an issue. The foregoing principles apply
equally to all who would act as judges on the Court of Criminal
Appeals, whether as a civilian or as a military officer.
In this case, a Member of Congress is serving in a position
that requires the exercise of judicial power to affirmatively
find beyond a reasonable doubt that an accused committed a
criminal offense, that there is no prejudicial error, and that
the sentence is lawful and appropriate.53 A position that
requires the exercise of those powers is an office of the United
States and cannot be filled by a person who simultaneously
serves as a Member of Congress. We conclude that Appellant has
a right in such a proceeding to have his case decided by a judge
who is not then a Member of Congress.
CONCLUSION
Like the servicemember in Ryder, Appellant in the present
case properly challenged the constitutionality of the assignment
of a person to serve on the panel reviewing his case.54 The
legal defect here is in the assignment of a Member of Congress
to be a judge on the Air Force Court of Criminal Appeals. The
assignment of a Member of Congress to serve in such an office
violated the Incompatibility Clause, a provision essential to
52
See Schlesinger, 418 U.S. at 213.
53
See Article 66(c), UCMJ.
54
See Ryder, 515 U.S. at 182-83; Calabresi & Larsen, supra note
45, at 1157 n.12.
16
United States v. Lane, No. 05-0260/AF
the structural integrity of the Constitution. As a result, the
panel was not properly constituted. Only a properly constituted
appellate panel can complete the review required by Article 66,
UCMJ. Therefore, as in Ryder, the unconstitutional assignment
at issue here invalidates the decision of the court below.55 The
proceedings at the lower court are invalid and void.56
DECISION
The decision of the United States Air Force Court of
Criminal Appeals is set aside. The record of trial is returned
to the Judge Advocate General of the Air Force for a new review
by the United States Air Force Court of Criminal Appeals.
55
Ryder, 515 U.S. at 188.
56
See id.17
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CRAWFORD, Judge (dissenting):
I respectfully dissent from the majority’s conclusion that
the proceedings at the lower court are invalid and void for the
following reasons. First, assuming Appellant has standing, the
majority’s holding that the assignment of a Member of Congress
who is a Standby Reserve officer to a panel of the lower court
violates the Incompatibility and Ineligibility Clauses in
Article I, Section 6 of the United States Constitution is
inconsistent with the text, history, tradition, and precedent of
the clauses. Second, assuming a constitutional error, that
error was harmless beyond a reasonable doubt. Finally, assuming
a constitutional violation, the majority’s holding should be
applied prospectively. See Buckley v. Valeo, 424 U.S. 1, 142
(1976); Northern Pipeline Construction Co. v. Marathon Pipe Line
Co., 458 U.S. 50, 87-88 (1982) (plurality opinion), superseded
by statute, Bankruptcy Amendments and Federal Judgeship Act of
1984, Pub. L. No. 98-353, 98 Stat. 333; Cipriano v. City of
Houma, 395 U.S. 701, 706 (1969); Allen v. State Board of
Elections, 393 U.S. 544, 572 (1969).
Pursuant to his pleas, Appellant was convicted of
wrongfully using cocaine in violation of Article 112a, Uniform
Code of Military Justice (UCMJ), 10 U.S.C. § 912a (2000). After
an extensive discussion under Rule for Courts-Martial (R.C.M.)
910, and this Court’s precedent, see United States v.
United States v. Lane, No. 05-0260/AF
Redlinski, 58 M.J. 117 (C.A.A.F. 2003), the military judge
accepted the plea and sentenced Appellant to a bad-conduct
discharge, 135 days of confinement, and reduction to the lowest
enlisted grade. Pursuant to the pretrial agreement, the
convening authority approved the sentence but reduced the
confinement to four months. During the appellate process,
Appellant has had every opportunity to show actual prejudice or
seek to disqualify Senator Graham on the basis of R.C.M. 902 and
has not done so.
TEXT, HISTORY, TRADITION, AND PRECEDENT
A. Introduction
The Constitution sets up a governmental structure with
three branches of government to serve as a check on each other
because of their distinctive organizations, responsibilities,
and procedures. This principle of separation of powers,
recognized in United States v. Scheffer, 523 U.S. 303, 311-12
(1998), permits the government to operate efficiently and
preserves the initiative of those serving in the various
branches and the right of ordinary citizens in exercising their
right to vote.
Over time, from one generation to the next, the
Constitution has come to earn the high respect and
even, as Madison dared to hope, the veneration of the
American people. . . . The document sets forth, and
rests upon, innovative principles original to the
American experience, such as federalism; a proven
balance in political mechanisms through separation of
2
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powers; specific guarantees for the accused in
criminal cases; and broad provisions to secure
individual freedom and preserve human dignity. These
doctrines and guarantees are central to the American
experience and remain essential to our present-day
self-definition and national identity.
Roper v. Simmons, 543 U.S. 551, 578 (2005).
The checks and balances set forth below ensure that Senator
Graham’s position as an appellate judge is not incompatible with
being a Member of Congress and does not interfere with the
separation of powers between the executive, legislative, and
judicial branches.
B. Text
The Ineligibility and Incompatibility Clauses in Article I,
Section 6 of the Constitution provide as follows: “[n]o Senator
. . . shall . . . be appointed to any civil Office under the
Authority of the United States” and “no Person holding any
Office under the United States shall be a Member of either
House.”1 Do the terms “civil Office” or “Office under the United
States” include a trial or appellate judge in the military?
1
No Senator or Representative shall, during the Time for which
he was elected, be appointed to any civil Office under the
Authority of the United States, which shall have been created,
or the Emoluments whereof shall have been encreased [sic]
during such time [commonly called the Ineligibility Clause or
Emoluments Clause]; and no Person holding any Office under the
United States, shall be a Member of either House during his
Continuance in Office.
U.S. Const. art. I, § 6, cl. 2.
3
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Certainly, the plain meaning of these clauses ensures that
the branches of government remain structurally independent and
that a Member of Congress is not in control of an executive
branch as in a parliamentary system government. These clauses
do not prohibit Senator Graham from serving both as a Standby
Reserve officer and appellate judge on the United States Air
Force Court of Criminal Appeals. Nor does the history of the
text preclude Senator Graham’s position as an appellate judge.
The Constitution appears to be exclusive in defining these
responsibilities and powers permitting a balance and excluding
one decision maker from usurping another’s power. These powers
do not fit into neat categories, but the Constitution is
designed to secure, so far as possible, that the separation of
powers boundary lines are not crossed. “While the Constitution
diffuses power the better to secure liberty, it also
contemplates that practice will integrate the dispersed powers
into a workable government.” Youngstown Sheet & Tube Co. v.
Sawyer, 343 U.S. 579, 635 (1952).
C. History
The Journal of the Federal Convention was to be secret and
William Jackson, Secretary, was required to destroy all scraps
of paper. The notes of each member were turned over to him and
the record was created. 1 The Records of the Federal Convention
of 1787, at xi-xxv (Max Farrand ed., Yale Univ. Press 1966).
4
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These notes, which the majority ignores, help in interpreting
the intent of the drafters of these relevant provisions of the
Constitution.
The original clauses in Article I, Section 6 of the
Constitution were put forth by Edmond Randolph and “Res[olve]d
that members of the First Branch of the National Legislature
ought to be . . . ineligible to any office established by a
particular State, or under the authority of the United States
. . . during a term of service, and for the space of its
expiration.” 1 Farrand, supra, at 20. The members were
concerned about the President rewarding members of the
legislature with official posts. See id. at 386. James Madison
was concerned with the unnecessary creation of offices. Id.
Alexander Hamilton stated:
Our prevailing passions are ambition and interest; and
it will ever be the duty of a wise government to avail
itself of those passions, in order to make them
subservient to the public good for these ever induce
us to action. Perhaps a few men in a state, may, from
patriotic motives, or the display of their talents, or
to reap the advantage of public applause, step
forward; but if we adopt the clause (ineligibility),
we destroy the motive.
Id. at 381.
The Incompatibility Clause ensures separation of the
branches and prevents one branch from rewarding another
branch by giving it an appointment within that branch.
Generally, the Incompatibility Clause is designed to
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prevent full-time positions under certain circumstances,
not part-time positions. But such simultaneous holding of
legislative and executive office does not:
present an insuperable difficulty. . . . In the face
of this provision the President might still constitute
a cabinet council out of the chairmen of the principal
congressional committees and then put his own powers
and those of the heads of departments at the disposal
of this council.
Edward S. Corwin, The President, Office and Powers 1787-1957
14 (Randall W. Bland et al. eds., 5th ed. 1984); see also Harold
J. Laski, The American Presidency, Interpretation 70-110 (1940);
M. J. C. Vile, Politics in the USA 195-200 (1970). The drafters
thought that the simultaneous holding of offices by a Member of
Congress would be permissible either as the head of an executive
department or cabinet and being a Member of Congress with the
right of attendance but not the right to vote. Such a Member
could participate in Congressional debate. Corwin, supra, at
296.
D. Tradition
The Incompatibility Clause was not designed to prevent
Members of Congress from being members of the militia, the
National Guard, or the Reserves. See Schlesinger v. Reservist
Comm. to Stop the War, 418 U.S. 208, 210 n.2 (1974). If
Professor Corwin is right that there may be “cabinet councils,”
then the Incompatibility Clause was not written to prevent a
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Member of Congress from examining a defendant’s case as a
Standby Reserve officer, either working for points, or on two
weeks of active duty. See Corwin, supra at 14. Senator
Graham’s commission was not created after he became a Member of
Congress. How Senator Graham’s career in the Air Force began
and how it progressed demonstrates why the Incompatibility
Clause does not apply. After graduation from the University of
South Carolina School of Law, Senator Graham entered active duty
and served as a judge advocate between January 1982 until August
1988 when he was transferred to the Air Force Reserve. Lane, 60
M.J. at 782; Project Vote Smart, http://www.vote-
smart.org/bio.php?can_id=CNIP7869 (last visited Sept. 11, 2006).
He then served in the Air National Guard from 1989 to 1994 and
transferred back to the Air Force Reserve in 1995 where he has
served to the present time. Lane, 60 M.J. at 782. There is no
evidence that Senator Graham did not appear at various sessions
of Congress or that he has taken positions that would be
incompatible with his position as an appellate judge. If
Senator Graham cannot perform his duties as a Senator, the
selection process of standing for election may serve as a
discriminator.
In addition to a majority exercising the ballot box,
Article I, Section 5 of the Constitution provides that “[e]ach
House may determine the Rules of its Proceedings [and] punish
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its Members for disorderly Behaviour . . . .” This provides
congressional oversight.
If Congress thought there was a potential violation by
Senator Graham, they were free to take action. See U.S. Const.
art. II, § 2, cl. 2. Over the last few months, they have not.
If a Member of Congress does hold an incompatible office, action
has been taken against them when they sought to hold full-time
positions during the Civil War. See Cong. Globe, 37th Cong., 2d
Sess. 343-44 (1862). But when the Member resigned his
commission before entering the Senate, no further action was
taken. Id. at 344. Neither the text nor history of the
Ineligibility and Incompatibility Clauses precludes Senator
Graham from sitting as an appellate judge, but does precedent?
E. Precedent
The President has the authority to nominate individuals to
be federal officers who should be confirmed “with the Advice and
Consent of the Senate.” U.S. Const. art. II, § 2, cl. 2. That
same provision provides that Congress has a role and that role
is creating other officers “established by Law.” Id. Congress
may also vest the authority to appoint inferior officers with
the President and other department heads. Id. The role of
Congress and the President in appointing officers, including
inferior officers, has been the subject of litigation in cases
decided by this Court and reviewed by the Supreme Court. See,
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United States v. Lane, No. 05-0260/AF
e.g., Edmond v. United States, 520 U.S. 651 (1997); Ryder v.
United States, 515 U.S. 177 (1995).
“Officers of the United States” as used in the Appointments
Clause applies at least to commissioned officers and is not the
same as “civil Office under the Authority of the United States”
or “Office under the United States.” Edmond, 520 U.S. at 656-66(reappointment not needed because judges were “Officers of the
United States”); see also Weiss v. United States, 510 U.S. 163,
172-76 (1994); Ryder, 515 U.S. at 180-85.
We should not expand Edmond, Ryder, and Weiss beyond what
they hold. None of these cases cited by the majority has
addressed the Incompatibility or Ineligibility Clauses in
Article I. A number of the cases cited address presidential and
congressional authority under the Appointments Clause. In
Edmond, the Supreme Court held that military judges are inferior
officers appropriately appointed by the President and do not
have to be reappointed to serve as a trial or appellate judge.
520 U.S. at 656-66. While appointed by the Judge Advocate
General, they may not be subject to unlawful command influence.
Weiss, 510 U.S. at 180. The Supreme Court reemphasized that the
Court of Appeals for the Armed Forces and the Courts of Criminal
Appeals are Article I courts. Edmond, 520 U.S. 664 n.2. In
Weiss, the Supreme Court held that commissioned officers did not
need a reappointment under the Appointments Clause to serve as
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United States v. Lane, No. 05-0260/AF
military judges. 510 U.S. at 172-76. The Supreme Court also
held that the Due Process Clause did not require fixed terms of
office for military judges. Id. at 177-81. In Ryder, the
Supreme Court again addressed the Appointments Clause and held
that a civilian member of the Coast Guard Court of Military
Review was not properly appointed to that court. 515 U.S. at
180-88. In a reexamination of the Coast Guard Court of Criminal
Appeals in Edmond, the Supreme Court indicated that the judges
of that court were inferior officers who could be appointed by
the Secretary of Transportation. 520 U.S. at 666.
Both Edmond and Weiss imply that being a military judge,
which is an “inferior office,” is not an “Office under the
Authority of the United States” under the Ineligibility Clause
or “holding any Office under the United States” under the
Incompatibility Clause. While the framers gave little guidance
as to “inferior” and “principal” officers, the Supreme Court did
give more guidance as to the clauses in Edmond. 520 U.S. at
660-61. In Freytag v. Commissioner, 501 U.S. 868, 881 (1991),
the Supreme Court held that special trial judges were officers,
albeit inferior officers, because their positions were
“established by law” under Article II, Section II, Clause 2 of
the Constitution, and their duty salaries and appointments were
specified by statute. See also United States v. Germaine, 99
U.S. 508, 511-12 (1879). Edmond dealt with the question of
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United States v. Lane, No. 05-0260/AF
whether military judges required Senate confirmation because the
judges were considered to be inferior officers rather than
principal officers even though long-standing tradition was
otherwise. 520 U.S. at 655-66. The Supreme Court concluded
that military trial judges did not have to be confirmed by the
Senate. Id.Who may appoint inferior officers and who are heads of
departments are entirely different questions than the issue
presented here. Justice Scalia explained in Edmond:
Generally speaking, the term “inferior officer” connotes a
relationship with some higher ranking officer or officers
below the President: whether one is an “inferior officer”
depends on whether he has a superior. It is not enough
that other officers may be identified who formally maintain
a higher rank, or possess responsibilities of a greater
magnitude.
520 U.S. at 662-63. The Supreme Court made clear in Edmond that
inferior officers are officers whose work is directed and
supervised at some level by others who are appointed by
presidential nomination with the advice and consent of the
Senate. Id. at 659-63. The majority reads too much into these
opinions without focusing on their text, history, and precedent.
There is no indication in the UCMJ, including Article 67,
UCMJ, 10 U.S.C. § 867 (2000), that appointing a Member of
Congress to be a trial judge or an appellate judge is forbidden.
In fact, Congress may well desire the synergism that would
result from having a Member of Congress serving as a trial or
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appellate judge in the military justice system. Many reservists
have served in the federal judiciary and state judiciary
examining administrative actions by the services and have even
reviewed some criminal cases, for example, Judge Haldane Robert
Mayer, United States Court of Appeals for the Federal Circuit,
and Judge James Leo Ryan, United States Court of Appeals for the
Sixth Circuit, members of the Reserves. No federal court has
precluded those reviews. The action by the majority would
prevent Members of Congress as policy makers from obtaining a
critical prospective on national security and the operation of
the military justice system. To hold that these inferior
officers and individuals who have been commissioned, and are
reviewing cases for points and not pay, have somehow advanced to
principal officers that violate the Incompatibility or
Ineligibility Clauses reads far too much into Supreme Court
practice and the language of the Constitution.
To rely on the Incompatibility Clause to disqualify Senator
Graham expands precedent and overlooks the practice of
appointing members of the Senate to serve on diplomatic or semi-
diplomatic missions. See Corwin, supra, at 86. It also
undermines the practice of Members of Congress being members of
the Reserves, National Guard, and militia. The office held by
Senator Graham existed prior to his serving on the appellate
court.
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HARMLESS BEYOND A REASONABLE DOUBT
If there was a violation of the Incompatibility Clause,
Appellant has not established any actual adverse impact on his
findings or sentence. Both the Congress in enacting Article 45,
UCMJ, 10 U.S.C. § 845 (2000), and the President in promulgating
R.C.M. 910, have designed a system much more protective than the
federal or state system to ensure that a truly knowing and
voluntary plea was obtained in this case. Thus, any error here
would be harmless beyond a reasonable doubt.
PROSPECTIVE RULE
If relief is to be granted, it should be granted
prospectively and not to all cases on direct review. Griffith
v. Kentucky, 479 U.S. 314, 321-22 (1987). The efficient
operation of the military justice system is important for
maintaining good order and discipline in the armed forces. In a
number of cases the Supreme Court has recognized the public
interest in avoiding retroactive invalidation of actions by
public officials. The Supreme Court has avoided retroactive
application of decisions that challenge the appointment of
officers or the exercise of their power. Buckley, 424 U.S. at
142 (Appointments Clause violation); Northern Pipeline
Construction Co., 458 U.S. at 87-88 (plurality opinion holding
the unconstitutional grant of authority to bankruptcy judges did
not invalidate prior acts); Cipriano, 395 U.S. at 706 (declining
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United States v. Lane, No. 05-0260/AF
to invalidate municipal bonds issued by unconstitutionally
elected body). While a trial should be free of constitutional
violations, when, as in this case, an accused has shown no
prejudice, there is no requirement for a readjudication of the
findings or sentence. The judges on the Courts of Criminal
Appeals are an integral part of the military justice system and
the failure to demonstrate any meaningful likelihood of
prejudice requires affirmance of the court below. Article
59(a), UCMJ, 10 U.S.C. § 859(a) (2000).
CONCLUSION
Assuming standing, the assignment of Senator Graham as an
appellate judge is not inconsistent with the text, history,
tradition, and precedent of the Incompatibility and
Ineligibility Clauses. Thus, I respectfully dissent.
14