Steven Larrabee v. Carlos Del Toro

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 22, 2021 Decided August 2, 2022
No. 21-5012
STEVEN M. LARRABEE,
APPELLEE
v.
CARLOS DEL TORO, IN HIS OFFICIAL CAPACITY AS SECRETARY
OF THE NAVY, AND UNITED STATES,
APPELLANTS
Appeal from the United States District Court
for the District of Columbia
(No. 1:19-cv-00654)
Cynthia A. Barmore, Attorney, U.S. Department of
Justice, argued the cause for appellants. With her on the briefs
were Brian M. Boynton, Acting Assistant Attorney General,
and Sharon Swingle, Attorney.
Stephen I. Vladeck argued the cause for appellee. With him
on the brief was Eugene R. Fidell.
A. Richard Ellis was on the brief for amicus curiae
National Institute of Military Justice in support of appellee.
Joshua E. Kastenberg and J. Wesley Moore, pro se, were
on the brief for amici curiae in support of appellee.
2
Before: TATEL, ∗ RAO, and WALKER, Circuit Judges.
Opinion for the Court filed by Circuit Judge RAO. +
Opinion concurring in part and dissenting in part filed by
Circuit Judge TATEL.
RAO, Circuit Judge: Steven Larrabee, a member of the
Fleet Marine Corps Reserve, pleaded guilty at a court-martial
to the sexual assault of a civilian. In this collateral challenge to
his sentence, Larrabee argues that the statutory grant of military
jurisdiction over Fleet Marine Reservists exceeds Congress’
authority to “make Rules for the Government and Regulation
of the land and naval Forces,” U.S. CONST. art. I, § 8, cl. 14
(“Make Rules Clause”), and that his “case[]” did not “aris[e] in
the land and naval forces,” id. amend. V (“Grand Jury Clause”).
The district court held for Larrabee. We now reverse.
Whether a person may be subjected to court-martial
jurisdiction turns “on one factor: the military status of the
accused.” Solorio v. United States, 483 U.S. 435, 439 (1987).
Based on the Supreme Court’s precedents interpreting the
Make Rules Clause as well as the original meaning of that
Clause, we hold that a person has “military status” if he has a
formal relationship with the military that includes a duty to
obey military orders. As a Fleet Marine Reservist, Larrabee
was “actually [a] member[] or part of the armed forces,” and
therefore amenable to military jurisdiction under the Make
Rules Clause. United States ex rel. Toth v. Quarles, 350 U.S.
∗
Circuit Judge TATEL assumed senior status after this case was
argued and before the date of this opinion.
+
Circuit Judge WALKER joins the majority opinion as to all except
Part III.
3
11, 15 (1955). We also hold that the Fifth Amendment’s Grand
Jury Clause did not separately bar Larrabee’s court-martial.
I.
A.
The Fleet Marine Corps Reserve is one part of the Marine
Corps, alongside the Regular Marine Corps and the Marine
Corps Reserve. 1 10 U.S.C. § 8001(a)(2). Its name
notwithstanding, the Fleet Marine Reserve is not a “reserve
component” of the armed forces. See id. § 10101 (listing the
military’s reserve components). Marine Corps reservists are
part-time soldiers who maintain civilian jobs but who are
trained like full-time troops and who may be ordered into
active-duty service, if necessary. Id. §§ 10102, 12301(a)–(b).
Membership in the Fleet Marine Reserve, by contrast, is a de
facto retirement status for those who have previously served in
active duty. See United States v. Begani, 81 M.J. 273, 275
(C.A.A.F. 2021) (recognizing that after a Marine’s transfer to
the Fleet Marine Reserve, “for all intents and purposes, he [has]
retired”) (cleaned up). A Marine becomes eligible to transfer
into the Fleet Marine Reserve after serving in active duty for at
least twenty years. 10 U.S.C. § 8330(b). After thirty total years
of service, he is then formally retired. 2 Id. § 8331(a); see also
id. § 8326(a). At any time after completing his required years
of service—whether he is in active duty, a Fleet Marine
1
The Fleet Marine Reserve was 15,600 strong at the time of oral
argument.
2
By statute, Fleet Marine Reservists and formally retired Marines
have similar rights and responsibilities. They are entitled to the same
amount of pay, see 10 U.S.C. §§ 8326(c)(2), 8330(c)(1), and are both
subject to ongoing service duties, see id. § 688(a)–(c). In this
opinion, we use the term “military retiree” in its formal sense, to refer
to persons on Marine Corps’ retired lists.
4
Reservist, or a retiree—a Marine may request to be discharged,
which results in a “[c]omplete severance from all military
status.” MARINE CORPS ORDER 1900.16, SEPARATION AND
RETIREMENT MANUAL ¶ 1002.20 (2019) [hereinafter MCO
1900.16].
During the window between active duty and formal
retirement, members of the Fleet Marine Reserve receive
“retainer pay,” calculated based on their rank and years of
service at the time of transfer. 10 U.S.C. §§ 8330(c)(1), 8333.
They are also subject to ongoing military duties. In times of
war or national emergency or “when otherwise authorized by
law,” Fleet Marine Reservists “may be ordered … to active
duty without [their] consent” for the duration of the crisis, and
up to six months thereafter. Id. § 8385(a). In peacetime, they
agree to serve for up to twelve months in any two-year period,
see id. § 688(a), (b)(3), (e)(1), and may be ordered into “active
duty for training” for up to two months in any four-year period,
id. § 8385(b). Finally, they must comply with administrative
reporting requirements—they must inform the military if they
change addresses, for instance—and are subject to restrictions
on foreign employment.
Under the Uniform Code of Military Justice (“UCMJ”),
Fleet Marine Reservists may be court-martialed. Id.
§ 802(a)(6). Congress has given the military courts jurisdiction
over the Fleet Marine Reserve since 1925. See Act of Feb. 28,
1925, §§ 2, 10, Pub. L. No. 68-512, 43 Stat. 1080, 1080–81,
1083.
B.
The facts in this case are undisputed. After twenty years in
active-duty service, Larrabee transferred to the Fleet Marine
Reserve. He began working as a civilian employee on his
former base in Iwakuni, Japan, and moonlighting as a manager
5
at two local bars near the base. After a late night of drinking,
Larrabee sexually assaulted an inebriated and unconscious
bartender and filmed the encounter on his cell phone. His
victim, the wife of an active-duty Marine, reported the assault
to Military Police, who obtained the video from Larrabee’s
phone. The victim’s husband was immediately reassigned to a
posting in the United States. Larrabee was charged with
“sexual assault” and “indecent recording” under the UCMJ.
See 10 U.S.C. §§ 920(b), 920c(a)(2). He pleaded guilty at a
court-martial and was sentenced to ten months’ confinement
and a dishonorable discharge.
Larrabee appealed to the Navy-Marine Corps Court of
Criminal Appeals (“CCA”), arguing, as relevant here, that the
UCMJ provision authorizing court-martial jurisdiction over
members of the Fleet Marine Reserve, 10 U.S.C. § 802(a)(6),
was unconstitutional. Military retirees, he argued, are not part
of “the land and naval Forces” that Congress may place under
the jurisdiction of courts-martial. U.S. CONST. art. I, § 8, cl. 14.
The CCA had recently held that personnel “in a retired status
remain members of the land and Naval forces who may face
court-martial,” United States v. Dinger, 76 M.J. 552, 557 (N-
M. Ct. Crim. App. 2017) (cleaned up), so it “summarily
reject[ed]” Larrabee’s challenge as well, United States v.
Larrabee, 2017 WL 5712245, at *1 n.1 (N-M. Ct. Crim. App.
Nov. 28, 2017). The Court of Appeals for the Armed Forces
(“CAAF”) summarily upheld his conviction without reaching
the constitutional question at issue here. United States v.
Larrabee, 78 M.J. 107 (C.A.A.F. 2018) (mem.), cert. denied,
139 S. Ct. 1164 (2019).
His direct appeals exhausted, Larrabee brought this
collateral challenge to his sentence in the District Court for the
District of Columbia. He argued that Section 802(a)(6) is
facially unconstitutional because a Fleet Marine Reservist is
6
“for all practical purposes a civilian” and therefore not subject
to regulation under the Make Rules Clause. See U.S. CONST.
art. I, § 8, cl. 14. In the alternative, even if the Fleet Marine
Reserve is part of the “land and naval Forces,” Larrabee
insisted his court-martialing was still unconstitutional under
the Fifth Amendment’s Grand Jury Clause because his “case[]”
did not “aris[e] in the land or naval forces.” Id. amend. V
(requiring grand jury indictments for all “capital[] or otherwise
infamous” crimes, “except in cases arising in the land or naval
forces, or in the Militia”). Under the Grand Jury Clause,
Larrabee argued, the military may not court-martial a retiree
for an offense that bears “no connection to the armed forces.”
Since he was accused of committing civilian crimes against a
civilian on private property, the court-martial’s exercise of
jurisdiction in his case was unconstitutional.
After both parties moved for judgment on the pleadings,
the district court held for Larrabee. See Larrabee v.
Braithwaite, 502 F. Supp. 3d 322, 333 (D.D.C. 2020). The
central question, the court explained, was “one of status,
namely, whether the accused in the court-martial proceeding is
a person who can be regarded as falling within the term ‘land
and naval Forces.’” Id. at 328 (quoting Kinsella v. United
States ex rel. Singleton, 361 U.S. 234, 241 (1960)). Fleet
Marine Reservists were part of the “land and naval Forces,” the
court reasoned, only if subjecting them to court-martial
jurisdiction was “necessary to maintain good order and
discipline” within the military’s ranks. Id. at 331. Because
“trial by military court-martial ‘was intended to be only a
narrow exception to the normal and preferred method of trial
in courts of law,’” the court held the government bore the
burden of showing why subjecting persons in the Fleet Marine
Reserve to court-martial jurisdiction was necessary. Id. at 327(quoting Reid v. Covert, 354 U.S. 1, 21 (1957) (plurality
opinion)).
7
The government offered two reasons why subjecting Fleet
Marine Reservists to court-martial jurisdiction was necessary
to preserve military order and discipline, but the district court
was persuaded by neither. First, the government argued that
because they may be ordered into active duty “without [their]
consent,” 10 U.S.C. § 8385(a), Fleet Marine Reservists remain
a part of the nation’s fighting forces. Subjecting them to court-
martial jurisdiction was therefore essential to uphold order in
the military’s ranks. As the district court pointed out, however,
under current military regulations “retirees are highly unlikely
to be recalled.” Larrabee, 502 F. Supp. 3d at 331. Congress has
extended court-martial jurisdiction over Marine Corps
reservists only in narrow circumstances but has subjected
members of the Fleet Marine Reserve to court-martial at all
times. That discrepant treatment was fatal to any military
necessity argument, in the court’s view.
Second, the government argued that Fleet Marine
Reservists’ “retainer pay represents reduced compensation for
[their] current part-time services,” but the court found this
inaccurate because “military retirement benefits actually
represent deferred pay for past services,” and irrelevant
because the receipt of a military pension was not, standing
alone, sufficient to place a person in the “land and naval
Forces.” Id. at 330. Soldiers’ dependents are entitled to military
benefits, and military contractors are often paid by the military,
but neither class of persons may be court-martialed. Id. at 330–
31 (citing Covert, 354 U.S. at 23, and McElroy v. United States
ex rel. Guagliardo, 361 U.S. 281, 286 (1960), respectively).
Finding none of the government’s arguments persuasive, the
court held Section 802(a)(6) facially unconstitutional and did
not reach Larrabee’s as-applied challenge. The government
timely appealed.
8
II.
Our review of the district court’s judgment on the
pleadings is de novo. Jones v. Dufek, 830 F.3d 523, 525 (D.C.
Cir. 2016). The authority of a federal court to collaterally
review a jurisdictional challenge to a conviction by court-
martial is long established. See In re Grimley, 137 U.S. 147,
150 (1890) (“It cannot be doubted that the civil courts may in
any case inquire into the jurisdiction of a court-martial, and if
it appears that the party condemned was not amenable to its
jurisdiction, may discharge him from the sentence.”). That
authority persists even where the court-martial’s sentence was
not custodial, or if the plaintiff is no longer in military custody.
See Sanford v. United States, 586 F.3d 28, 32 (D.C. Cir. 2009)
(“[F]ederal courts have jurisdiction to review the validity of
court-martial proceedings brought by non-custodial
plaintiffs.”) (cleaned up); Schlesinger v. Councilman, 420 U.S.
738, 749–53 (1975) (reading the UCMJ and 28 U.S.C. § 1331to permit non-habeas collateral attacks against court-martial
judgments that are allegedly “void”).
Faced with a constitutional challenge to a military court’s
sentence, we must assess whether the military courts properly
exercised jurisdiction in Larrabee’s case. See Grisham v.
Hagan, 361 U.S. 278, 279–80 (1960) (giving no deference to a
court-martial’s finding that it had jurisdiction over the
accused); Guagliardo, 361 U.S. at 282–84 (same); Singleton,
361 U.S. at 235–36 (same); Covert, 354 U.S. at 3–5 (same).
“[W]hether the Constitution requires Article III courts to try
[certain] offenses,” or whether they may be tried in a different
forum, “is a structural question of subject matter jurisdiction”
subject to “de novo review” in this court. Al Bahlul v. United
States, 840 F.3d 757, 760 n.1 (D.C. Cir. 2016) (en banc)
(Kavanaugh, J., concurring). Our jurisdiction cannot be
circumscribed by the decisions of Article I courts, because the
9
Constitution’s structure of separated powers requires the
Article III courts to exercise “judicial Power” independently of
the other departments. U.S. CONST. art. III; cf. Marbury v.
Madison, 5 U.S. (1 Cranch) 137, 180 (1803). We therefore
proceed to consider whether the exercise of court-martial
jurisdiction over Larrabee was constitutional.
III.
At the outset, we address the government’s argument that
this court must defer to Congress in determining whether Fleet
Marine Reservists are properly subject to court-martial
jurisdiction under the Make Rules Clause. 3 Because “any
expansion of court-martial jurisdiction … necessarily
encroaches on the jurisdiction of federal courts set up under
Article III of the Constitution,” Toth, 350 U.S. at 15, we cannot
simply defer to Congress’ decision to extend court-martial
jurisdiction over Fleet Marine Reservists. Such extension is
constitutional only if Fleet Marine Reservists “can be regarded
as falling within the term ‘land and naval Forces,’” Singleton,
361 U.S. at 241—a question that turns on “the military status
of the accused,” Solorio, 483 U.S. at 439.
When confronted with a UCMJ provision allowing court-
martial jurisdiction over a class of persons, the Supreme Court
has repeatedly declined to defer to Congress. See, e.g.,
3
The government has argued that Larrabee was properly subject to
court-martial jurisdiction because Section 802(a)(6) is consistent
with the Make Rules Clause. This case therefore does not implicate
the jurisdiction of courts-martial in theaters of war. In that distinct
context, given “the extraordinary circumstances present in an area of
actual fighting,” courts-martial may try both civilians and military
personnel. Covert, 354 U.S. at 33. That power stems not from
Congress’ authority under the Make Rules Clause, but “must rest on
the Government’s ‘war powers.’” Id.10
Guagliardo, 361 U.S. at 283–87 (giving no deference to
Congress’ determination that civilian military contractors may
be court-martialed); Covert, 354 U.S. at 19–23 (same, for
servicemembers’ dependents); Toth, 350 U.S. at 19–23 (same,
for former servicemembers). Instead the Court has asked
whether the accused was “actually [a] member[] or part of the
armed forces,” or else was a “civilian[] … entitled to have the
benefit of safeguards afforded those tried in the regular courts
authorized by Article III.” Toth, 350 U.S. at 15, 23. Although
Congress maintains “plenary” authority under the Make Rules
Clause to determine which offenses may be punished by court-
martial, Solorio, 483 U.S. at 441, it does not possess the
anterior authority to define which persons may be
constitutionally court-martialed.
The government argues that this case is unique because
Congress has not only authorized the court-martialing of Fleet
Marine Reservists under the Make Rules Clause but has also
defined the Fleet Marine Reserve as part of the “armed forces”
pursuant to its authority under the Army and Navy Clauses. 10
U.S.C. §§ 101(a)(4), 8001(a)(2); U.S. CONST. art. I, § 8, cls.
12–13 (“Army and Navy Clauses”) (authorizing Congress to
“raise and support Armies” and “provide and maintain a
Navy”). Without question, Congress’ power to raise and
support the nation’s fighting forces is capacious and entitled to
substantial deference. See United States v. O’Brien, 391 U.S.
367, 377 (1968) (“The constitutional power of Congress to
raise and support armies and to make all laws necessary and
proper to that end is broad and sweeping.”). It follows, the
government argues, that if Congress raises a military force
pursuant to the Army and Navy Clauses, individuals in that
force are ipso facto in “the land and naval Forces” covered by
the Make Rules Clause.
11
The Supreme Court has recognized, however, that these
Clauses are not coextensive, noting that “there might be
circumstances where a person could be ‘in’ the armed services
for purposes of [the Make Rules Clause] even though he had
not formally been inducted into the military.” Covert, 354 U.S.
at 23; see also Guagliardo, 361 U.S. at 284–85 (citing Ex parte
Reed, 100 U.S. 13 (1879)). Because these Clauses are not
perfectly overlapping, it is not necessarily the case that if a
person is part of the forces Congress has raised under the Army
and Navy Clauses, he may be court-martialed under the Make
Rules Clause. The fact that Congress has chosen to define the
Fleet Marine Reserve as part of the armed forces is therefore
not sufficient to make its members constitutionally amenable
to court-martial.
The Supreme Court has not deferred to Congress’
judgments in this area, but instead has assessed whether a
person was actually in the armed forces, or instead was a
civilian. In Guagliardo, the Court indicated that if Congress
wanted to subject military contractors to court-martial
jurisdiction, it could draft them into the armed forces. See 361
U.S. at 286. For Congress to invoke its power under the Army
and Navy Clauses and label them part of the “land and naval
Forces” would not have been enough. Similarly, in Toth, the
Court held that Congress could not extend court-martial
jurisdiction over a former serviceman who had been discharged
from the army and returned to civilian life. See 350 U.S. at 22–
23. Nothing in Toth or its successor cases suggests that if
Congress had just defined the accused civilian as a member of
the “land and naval Forces,” the Court would have reached a
different result. Congress may not, through an act of legislative
bootstrapping, expand the scope of the Make Rules Clause by
defining (or redefining) its terms.
12
Contrary to the government’s assertions, Congress cannot
rely on the Necessary and Proper Clause “to extend military
jurisdiction to any group of persons beyond that class
described” in the Make Rules Clause. Covert, 354 U.S. at 20–
21; see also Toth, 350 U.S. at 22 (explaining that the Make
Rules Clause does not “deprive people of trials under Bill of
Rights safeguards, and we are not willing to hold that power to
circumvent those safeguards should be inferred through the
Necessary and Proper Clause”). As the Court has recognized,
“a statute cannot be framed by which a civilian can lawfully be
made amenable to the military jurisdiction in time of peace.”
Covert, 354 U.S. at 35 (quoting WILLIAM WINTHROP,
MILITARY LAW AND PRECEDENTS 107 (2d ed. 1920) (1886))
(cleaned up).
Congress’ authority under the Make Rules Clause is
circumscribed by Article III and the Grand Jury Clause, which
protect individual liberty interests. See id. at 21 (“Every
extension of military jurisdiction is an encroachment on the
jurisdiction of the civil courts, and, more important, acts as a
deprivation of the right to jury trial and of other treasured
constitutional protections.”). Because of the constitutional
interests at stake, we do not defer to Congress’ judgments about
the classes of persons who are within the “land and naval
Forces,” and thus subject to court-martial jurisdiction.
IV.
Whether Larrabee was constitutionally subjected to court-
martial jurisdiction turns “on one factor: the military status of
the accused.” Solorio, 483 U.S. at 439. Neither the Supreme
Court nor this court has spoken directly to the constitutional
question of whether Fleet Marine Reservists specifically, or
inactive-duty military retirees more generally, may be court-
martialed. The Court’s decisions interpreting the Make Rules
13
Clause, however, draw a consistent distinction between
civilians on the one hand and persons in the armed forces on
the other. “[I]f the language of [the Make Rules Clause] is
given its natural meaning, the power granted does not extend
to civilians[.] … The term ‘land and naval Forces’ refers to
persons who are members of the armed services and not to
[civilians].” Covert, 354 U.S. at 19–20 (cleaned up).
In each case in which the Court has found that the accused
was in “the land and naval Forces,” he had a formal
“relationship with the military and its institutions,” which made
him “actually [a] member[] or part of the armed forces.” Toth,
350 U.S. at 14–15. Soldiers in active-duty service, most
typically, may be subject to court-martial jurisdiction. Cf.
Dynes v. Hoover, 61 U.S. (20 How.) 65, 79 (1857). Such
active-duty personnel have been inducted into the military, are
in the chain of command, and are required to obey their
superiors’ orders. But the Court has also held that, in certain
narrow circumstances, the Constitution permits the court-
martialing of persons not presently in active-duty service—so
long as they have a particular kind of “relationship with the
military and its institutions.” Toth, 350 U.S. at 14.
The Court’s Make Rules Clause jurisprudence has been
shaped in response to a diverse range of cases in which a person
was court-martialed. What unites the decisions in these
different contexts is that the persons found to be properly
within “the land and naval Forces” had a formal relationship
with the military that included an obligation to obey military
orders.
In Reed, for instance, the Court held that a Navy
paymaster’s clerk was amenable to court-martial. 100 U.S. at
22. The clerk had never been formally inducted into the Navy
and so was not an active-duty servicemember. Nevertheless,
14
the clerk had agreed to serve on a naval vessel, binding
“himself to be subject to the laws and regulations for the
government of the navy and the discipline of the vessel,” and
had “take[n] an oath … to serve until discharged.” Id. at 19–
20, 22 (cleaned up). The clerk’s formal relationship with the
Navy was further confirmed by the fact that he was appointed
by the commander of the ship and could only be discharged in
the same way. He wore a uniform, had a fixed rank, and was
on the Navy’s payroll. Id. at 22. Finally, at the time of his court-
martialing, the clerk had not been discharged and so had an
ongoing obligation to obey the orders of the vessel’s
commander. Id. at 20. In light of these observations, the Court
concluded, “[i]f these officers are not in the naval service, it
may well be asked who are.” Id. at 22.
Similarly, in Kahn v. Anderson, the Court held that a group
of soldiers who had been court-martialed and sentenced to a
term of imprisonment remained amenable to court-martial for
crimes committed while in military custody. See 255 U.S. 1, 7–
8 (1921). The prisoners had argued that, as a result of their
initial conviction, they had “ceased to be soldiers and were no
longer subject to military law.” Id. at 7. Rejecting that
argument as “unsubstantial,” the Court held that “even if their
discharge as soldiers had resulted from the previous sentences
… it would be here immaterial, since, as they remained military
prisoners, they were for that reason subject to military law and
trial by court-martial for offenses committed during such
imprisonment.” Id. at 7–8 (citing Carter v. McClaughry, 183
U.S. 365, 383 (1902)). The prisoners had a legal relationship
with the armed forces, even if involuntary, because they were
“military prisoners undergoing punishment for previous
sentences.” Id. at 7. As the Court explained in Carter, because
military jurisdiction “attache[s]” at the time of a soldier’s
court-martialing, he remains under the military’s jurisdiction
until his release. 183 U.S. at 383. “Having [been] sentenced,
15
his status [is] that of a military prisoner” who must obey
military orders. Id. Therefore, “for offences committed during
his confinement he [is] liable to trial and punishment by court
martial.” Id.Congress also may authorize courts-martial to punish
those who disobey lawful draft orders. See Billings v.
Truesdell, 321 U.S. 542, 556 (1944) (“We have no doubt of the
power of Congress to enlist the manpower of the nation for
prosecution of the war and to subject to military jurisdiction
those who are unwilling, as well as those who are eager, to
come to the defense of their nation in its hour of peril.”). 4 From
the moment he is called to serve, a draftee becomes part of “the
land and naval Forces”—bound to the military by a legal duty
to serve, even if involuntarily. Cf. Houston v. Moore, 18 U.S.
(5 Wheat.) 1, 20 (1820) (“[I]f Congress had pleased so to
declare, a militia man, called into the service of the United
States, might have been held and considered as being
constructively in that service, though not actually so.”); Martin
v. Mott, 25 U.S. (12 Wheat.) 19, 33–34 (1827) (permitting the
court-martialing of a man who was ordered into militia service,
but refused to join). Even if he refuses to be inducted, a draftee
is a member of the armed forces and obliged to obey military
orders. Billings, 321 U.S. at 556.
The clerk in Reed, the prisoner in Kahn, and the draftee in
Billings each had a legal relationship to the military that
included an ongoing duty to obey military orders. For that
reason, they came within the scope of “the land and naval
Forces.”
4
Billings ultimately held that the courts-martial lacked jurisdiction
for statutory, not constitutional, reasons. See 321 U.S. at 556–58.
16
By contrast, in every case in which the Court has struck
down the exercise of court-martial jurisdiction over a class of
persons, the accused had no formal relationship with the
military and no ongoing obligation to obey military orders. In
Toth, for example, the Court made clear that servicemembers
who have been legally discharged and returned to civilian life
are not part of “the land and naval Forces.” See 350 U.S. at 22–
23. Although Toth was accused of committing a crime while a
servicemember, at the time of his arrest he had been discharged
and “had no relationship of any kind with the military.” Id. at
13. Whatever his prior relation to the military, the Make Rules
Clause did not permit a discharged soldier to be court-
martialed. “For given its natural meaning, the power granted
Congress ‘To make Rules’ to regulate ‘the land and naval
Forces’ would seem to restrict court-martial jurisdiction to
persons who are actually members or part of the armed
forces”—that is, persons who are in the armed forces at the
time of their court-martialing. Id. at 15. The Court explained
that the purpose of the military justice system would not be
impaired by “giving ex-servicemen the benefit of a civilian
court trial when they are actually civilians.” Id. at 22.
In a pair of successor cases, the Court extended Toth’s
basic logic to hold that servicemembers’ civilian dependents
may not be court-martialed. “The term ‘land and naval Forces’
refers to persons who are members of the armed services and
not to their civilian wives, children and other dependents.”
Covert, 354 U.S. at 19–20; see also Singleton, 361 U.S. at 248.
As the Court explained, the servicemembers’ dependents “had
never been members of the army, had never been employed by
the army, [and] had never served in the army in any capacity.”
Covert, 354 U.S. at 32. Although they often live with
servicemembers on military installations and receive military
benefits, they “do not lose their civilian status and their right to
a civilian trial” by virtue of those facts. Id. at 23.
17
Similarly, the Court has held that private military
contractors may not be court-martialed. Like discharged
soldiers and servicemembers’ dependents, the Constitution
“requires [the military’s] civilian employees to be afforded the
same right of trial by jury.” Grisham, 361 U.S. at 280. In
Guagliardo, the Court noted that private contractors could be
court-martialed if they had voluntarily bound themselves to the
military through procedures like those used by the paymaster’s
clerk in Reed, or if they had been “incorporate[d] … directly
into the armed services, either by compulsory induction or by
voluntary enlistment.” 361 U.S. at 286. But unless such action
were taken to bring them into a “military status,” private
contractors remained “civilians” outside the scope of the Make
Rules Clause. Id. at 287, 284.
The Court has declined to adopt a bright-line test to
distinguish between civilians and those within the “land and
naval Forces.” See Covert, 354 U.S. at 22 (“Even if it were
possible, we need not attempt here to precisely define the
boundary between ‘civilians’ and members of the ‘land and
naval Forces.’”). Nonetheless, its decisions construing the
scope of the Make Rules Clause, read together, suggest that a
person is part of the “land and naval Forces” and may be
subject to court-martial jurisdiction if he has a formal
relationship with the armed forces that includes a duty to obey
military orders. 5
5
A legal relationship to the military that includes an obligation to
obey military orders is sufficient for membership in “the land and
naval Forces.” Therefore, we need not decide whether such a
relationship is necessary for membership in “the land and naval
Forces.”
18
V.
The rule suggested by the Court’s caselaw is consistent
with our understanding of the original meaning of the Make
Rules Clause. The American “court-martial is in fact older than
the Constitution.” Ortiz v. United States, 138 S. Ct. 2165, 2175
(2018) (cleaned up). The Court has therefore often “undertaken
… the difficult task of interpreting [the Make Rules Clause] by
drawing upon English constitutional history.” Loving v. United
States, 517 U.S. 748, 760 (1996). The organization and
regulation of the eighteenth-century British military, as well as
an American court-martial proceeding at the end of the
Revolutionary War, suggest that at the Founding, the term
“land and naval Forces” was understood to encompass
inactive-duty personnel who remained obligated to obey
military orders, including orders to serve again if called. Such
inactive-duty soldiers, in other words, were regarded as having
“military status.”
We begin with the pre-Revolutionary example of “half-
pay officers.” In the seventeenth century, in recognition of
prior service, the British government began paying certain
officers a reduced salary in peacetime. See JOHN CHILDS, THE
BRITISH ARMY OF WILLIAM III, 1689–1702, at 70 (1987). Half-
pay officers were allowed to live otherwise ordinary civilian
lives but had to return to active-duty service if ordered. See
N.A.M. Rodger, Commissioned Officers’ Careers in the Royal
Navy, 1690–1815, 3 J. FOR MAR. RSCH. 85, 90–91 (2001). After
1714, all British officers became eligible to participate in this
system, which fed the rise of a burgeoning corps of officers
who made lifelong careers in the military. “By mid-century
long service had become the norm,” and the half-pay system
was a recognizable feature of British military culture. JOHN
BREWER, THE SINEWS OF POWER 56 (1989).
19
When compared to active-duty soldiers, half-pay officers’
connections to Britain’s armed forces were quite sparse. Aside
from their diminished pay, their only connection to the military
was their ongoing service obligation. 6 Nevertheless,
throughout the eighteenth-century, Parliament consistently
described these half-pay officers as part of “his Majesty’s land
forces and marines.” 9 Geo. 2 ch. 34, § 21; see also THE
ANNALS OF KING GEORGE, YEAR THE THIRD 153 (1718)
(describing funds appropriated for “Half-pay to the Officers of
the Land Forces and Marines disbanded” after the Jacobite
uprising of 1715). In 1758, Edmund Burke’s Annual Register
reported that Parliament had set aside funds for the “widows of
such reduced officers of the land forces and marines, as died
upon the establishment of half-pay.” 1 ANNUAL REGISTER 128
(Edmund Burke ed., 4th ed. 1764) (1758). Decades later, the
House of Commons directed one of its committees to estimate
the cost of “Half Pay and Allowances [for] the Reduced
Officers of His Majesty’s [North] American Forces” for the
coming year. 50 JOURNAL OF THE HOUSE OF COMMONS [1794–
95], at 84 (c. 1795).
Although British half-pay officers were recognized as
having military status, across the eighteenth century there was
considerable debate about whether these officers should be
subjected to the jurisdiction of peacetime courts-martial. Some
half-pay officers were court-martialed in the early 1700s under
the Mutiny Act adopted in 1689. See 1 JOHN MCARTHUR,
PRINCIPLES AND PRACTICE OF NAVAL AND MILITARY COURTS
MARTIAL 190 (1805) (“[O]fficers on half pay were originally
6
While all half-pay officers were in principle subject to recall,
“[o]fficers were retained on the list who were known to be incapable
and even insane because no other support for their old age was
available.” Rodger, 3 J. FOR MAR. RSCH. at 91. For such officers, the
half-pay system was a de facto retirement.
20
deemed, though not in actual service, to be subject to martial
law.”); cf. Loving, 517 U.S. at 761–65 (discussing the Mutiny
Act’s history). After realizing that the Act’s terms furnished
uncertain legal grounds for those proceedings, Parliament
amended the Act in 1748 to make clear that half-pay officers
were subject to court-martial jurisdiction. 7 22 Geo. 2 c. 5; see
1 MCARTHUR at 189–92; HARRIS PRENDERGAST, THE LAW
RELATING TO OFFICERS IN THE ARMY 25 (1855).
Soon thereafter, public opposition forced Parliament to
reverse course, and the Act’s jurisdiction-extending provision
was repealed. In 1785 the Court of Exchequer Chamber
weighed in, finding that half-pay officers did not come within
the scope of the Mutiny Act’s original terms. See 1 MCARTHUR
at 195–96; PRENDERGAST at 25; JOHN DELAFONS, A TREATISE
ON NAVAL COURTS MARTIAL 62–63 (1805). But that judicial
decision did not limit the legislature’s authority to subject half-
pay officers to military jurisdiction: one year later, Parliament
again amended the Mutiny Act to encompass half-pay officers
with brevet rank. See 1 MCARTHUR at 201. Thus, although it
was contested throughout the eighteenth century whether half-
pay officers should be legislatively subject to court-martial
7
The amendment provided:
And whereas it may be otherwise doubted, whether … the
reduced Officers of His Majesty’s Land Forces and
Marines on the British and Irish Establishment of Half Pay,
be within the Intent and Meaning of this Act, … it is hereby
enacted by the Authority aforesaid, That the … reduced
Officers of His Majesty’s Land Forces and Marines, on the
British and Irish Establishments of Half Pay, be at all
Times subject to all the Penalties and Punishments
mentioned in this Act.
22 Geo. 2 c. 5.
21
jurisdiction, it was beyond controversy that they were part of
Britain’s armed “forces” amenable to military jurisdiction. 8
The Americans who ratified the Constitution were familiar
with the structure of the British military generally, and with the
half-pay system specifically. Indeed, some of the Continental
Army’s most prominent leaders had been half-pay officers in
the years before independence—Charles Lee of Virginia, for
instance. See 1 PAPERS OF GEORGE WASHINGTON,
REVOLUTIONARY WAR SERIES 18 n.4 (Philander D. Chase ed.,
1985). During the Revolutionary War, the Continental
Congress pledged on more than one occasion that after
hostilities ceased, retired American officers would be given
half pay, just like their British counterparts. 9 See 11 JOURNALS
8
After oral argument, Larrabee directed us to an unpublished article
arguing that military retirees do not fall within the original meaning
of “the land and naval Forces” in the Make Rules Clause. See Marc
J. Emond, Can Grandpa Really be Court-Martialed? The
Constitutionality of Imposing Military Law upon Retired Personnel
(2022) (LL.M. dissertation, JAG Legal Ctr. & Sch.),
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4089746.
Emond argues that at the Founding, the American Articles of War
permitted only the court-martialing of active-duty personnel: those
Articles were modeled on the British Mutiny Act, and by 1787, the
Mutiny Act had not expressly authorized the court-martialing of half-
pay officers for over thirty years. See id. at 27–28. But given that
Parliament had subjected half-pay officers to court-martial
jurisdiction earlier in the eighteenth century, and that its authority to
do so was not disputed, the scope of the Founding-era Articles of
War is not dispositive of the Constitution’s original meaning. The
fact that Congress chose not to subject inactive-duty personnel to
court-martial jurisdiction does not settle whether Congress had the
authority to do so under the Make Rules Clause.
9
Because of the federal government’s financial difficulties after the
Revolutionary War, those plans did not ultimately materialize. The
22
OF THE CONTINENTAL CONGRESS, 1774–1789, at 502–03
(Worthington Chauncey Ford ed., 1908) [hereinafter
JOURNALS]; 18 id. at 960–61. In 1781, Congress directed the
Continental Army to place certain redundant officers in half-
pay status and to make them amenable to involuntary recall.
See 21 id. at 1180. The idea that an inactive-duty soldier might
be part of the Continental Army’s “forces” was therefore not
foreign to Founding-era Americans.
Indeed, a notable historical episode confirms that in the
early American Republic inactive-duty troops were understood
to be part of “the land and naval Forces.” 10 The Continental
Congress was authorized to “mak[e] rules for the government
of the said land and naval forces.” ARTICLES OF
CONFEDERATION of 1781, art. IX, para. 4. To be court-
martialed under the laws adopted by the Continental Congress,
therefore, a person had to belong to the “land and naval forces.”
Towards the end of the Revolutionary War, Congress elected
to furlough indefinitely most soldiers in the Continental Army,
with the understanding that they would be fully discharged
after a peace with Britain was concluded. See 24 JOURNALS at
269–71, 364–65, 390. Pursuant to that directive, in 1783
George Washington instructed his officers to furlough their
troops—to issue what were, in effect, conditional discharge
United States’ military retirement system dates from the mid-
nineteenth century, and Congress has subjected military retirees to
court-martial jurisdiction since that time. See J. Mackey Ives &
Michael J. Davidson, Court-Martial Jurisdiction over Retirees under
Articles 2(4) and 2(6): Time to Lighten Up and Tighten Up?, 175
MIL. L. REV. 1, 3–5, 11–12 (2003).
10
We owe this historical argument to Judge Maggs. See Begani, 81
M.J. at 284–85 (Maggs, J., concurring).
23
papers. 11 Between their furlough in June and their eventual
discharge in October, these troops were not in active-duty
service and were allowed to return indefinitely to civilian life.
See Alexander W. Armour, Revolutionary War Discharges, 21
WILLIAM & MARY Q. 344, 353–57 (1941); 25 JOURNALS at
702–03.
We know that these inactive-duty soldiers were part of the
“land and naval forces” because, while they were furloughed,
some were court-martialed. See Mary A.Y. Gallagher,
Reinterpreting the “Very Trifling Mutiny” at Philadelphia in
June 1783, 119 PENN. MAG. OF HIST. & BIOG. 3, 28 (1995). In
June 1783, a large contingent of them—angry they had not
been paid their full wages—staged a violent protest in
Philadelphia, forcing the Continental Congress to evacuate the
city. From Princeton, Congress directed the Army’s leadership
to take “immediate measures … to confine and bring to trial all
such persons belonging to the army as have been principally
active in the late mutiny.” 24 JOURNALS at 412–13. After
restoring order, some of them were court-martialed for
mutiny. 12 See 25 JOURNALS at 565–66.
Later, the Continental Congress intervened to pardon the
convicted soldiers. Id. While Congress knew that many of these
soldiers had received furloughs before the mutiny, it never
challenged the court-martial’s power to try them; indeed, it had
11
These papers provided: “The within CERTIFICATE shall not avail
the Bearer [of] a Discharge, until the Ratification of the definitive
Treaty of Peace; previous to which Time, and until Proclamation
thereof shall be made, He is to be considered as being on Furlough.”
Reprinted in Alexander W. Armour, Revolutionary War Discharges,
21 WILLIAM & MARY Q. 344, 354–55 (1941).
12
Under the Articles of War then in effect, only a “soldier or officer”
could be tried for mutiny. Articles of War of 1776, § 2, art. 3,
reprinted in 5 JOURNALS at 789.
24
ordered their trial. Henry Knox, the Secretary of War, voiced
no objection to the proceedings. See Begani, 81 M.J. at 285 n.2
(Maggs, J., concurring) (citing 33 JOURNALS at 666–67). And
in his later narration of the episode, John Marshall never
questioned the military tribunal’s jurisdiction. See 4 JOHN
MARSHALL, THE LIFE OF GEORGE WASHINGTON 614–18
(1805). Although these furloughed soldiers were not currently
in active duty, and would likely never serve again, Founding-
era observers evidently had no difficulty conceiving of them as
part of the “land and naval forces” whose members could be
court-martialed.
***
The scope of court-martial jurisdiction under the Articles
of Confederation incorporated the settled meaning of “land and
naval forces” that the revolutionaries inherited from their
experience as British subjects. Cf. Felix Frankfurter, Some
Reflections on the Reading of Statutes, 47 COLUM. L. REV. 527,
537 (1947) (“[I]f a word is obviously transplanted from another
legal source … it brings the old soil with it.”). In drafting the
Constitution, “the Framers recognized and sanctioned existing
military jurisdiction by exempting from the Fifth
Amendment’s Grand Jury Clause all ‘cases arising in the land
or naval forces’” and “by granting [Congress] power ‘to make
Rules for the Government and Regulation of the land and naval
Forces.’” Ortiz, 138 S. Ct. at 2175 (cleaned up). In other words,
those persons who were in the “land and naval forces” under
the Articles and who could therefore be court-martialed
remained so under the Constitution.
In eighteenth-century Britain and the post-revolutionary
United States, “the land and naval forces” comprehended not
only active-duty soldiers, but inactive-duty ones as well. Half-
pay officers were part of “his Majesty’s land forces and
25
marines” because they had a relationship with the military that
entailed an obligation to serve again, if called. The furloughed
soldiers court-martialed in Philadelphia were part of the
American “land and naval forces,” and for the same reason.
These historical examples confirm that a person who has a
formal relationship with the military that includes an obligation
to obey military orders is part of the “land and naval Forces,”
as that phrase was understood at the Founding. Because such
persons are “actually members or part of the armed forces,” the
Make Rules Clause permits Congress to subject them to court-
martial jurisdiction. Toth, 350 U.S. at 15.
VI.
Based on the foregoing, it is sufficient for a person to fall
within the “land and naval Forces” if he has a formal
relationship with the armed forces that includes a duty to obey
military orders. Applying that test of military status here, we
conclude that members of the Fleet Marine Reserve are a part
of the “land and naval Forces” and therefore that Larrabee’s
court-martial was constitutional.
A.
Larrabee voluntarily joined the Marine Corps in 1994. As
an active-duty Marine, he was unquestionably in the armed
forces and amenable to court-martial jurisdiction. After serving
in active duty for twenty years and attaining the rank of Staff
Sergeant, he elected to transfer to the Fleet Marine Reserve. In
practice he became a retiree, but he maintained a legal
relationship with the armed forces. As a Fleet Marine
Reservist, he assumed an obligation to obey, “without his
consent,” an order to reenter active-duty service during a “war
or national emergency declared by Congress,” a “national
emergency declared by the President,” or as “otherwise
authorized by law.” 10 U.S.C. § 8385(a); see also id. § 688(a)–
26
(b). These service obligations are central to the identity of the
Fleet Marine Reserve, whose basic “purpose … is to maintain
a ready manpower pool of trained Marines for recall and
mobilization.” MCO 1900.16 ¶ 7001.2. In addition to this duty
to reenter active service, if ordered, Larrabee was also
“required” to report to “active duty for training” for up to two
months in any four-year period. 10 U.S.C. § 8385(b). Finally,
he was subject to employment restrictions, as well as military
reporting requirements. 13
Through his membership in the Fleet Marine Reserve,
Larrabee had legally bound himself to the armed forces and
assumed a duty to obey military orders. He therefore had a
“military status” and was properly subject to court-martial
jurisdiction. Solorio, 483 U.S. at 439; see also Guagliardo, 361
U.S. at 287 (private military contractor lacked “military status”
and so could not be court-martialed); MCO 1900.16 ¶ 1002.20
(discharged soldiers, who may not be court-martialed under
Toth, lack “all military status”).
B.
This conclusion is consistent with the settled position of
the CAAF, which has long recognized military retirees as
amenable to court-martial. See Pearson v. Bloss, 28 M.J. 376,
379 (C.M.A. 1989) (upholding military jurisdiction over
retired personnel in the Air Force); United States v. Overton,
13
Our dissenting colleague maintains that until members of the Fleet
Marine Reserve are recalled to active duty, “their day-to-day lives
are equivalent to those of ordinary civilians.” Dissenting Op. 3. As a
practical matter, this is undoubtedly true. As a formal legal matter,
however, they continue to retain “military status,” even if not all the
responsibilities of active-duty servicemembers. In times of
emergency and war, Fleet Marine Reservists must answer the call to
serve, whereas civilians may choose to stay home.
27
24 M.J. 309, 311 (C.M.A. 1987) (same, for members of the
Fleet Marine Reserve). It reaffirmed that view last year in
United States v. Begani, holding that “retired members of the
armed forces”—including “members of the … Fleet Marine
Reserve”—are “part of the ‘land and naval Forces’” whose
members may be constitutionally court-martialed. 81 M.J. at
276, 279, cert. denied, 142 S. Ct. 711 (2021). In particular, the
CAAF’s decision rested on the fact that Begani, a naval Fleet
Reservist, (1) “receive[d] ongoing retainer pay” because he
was a “current member[] of the armed forces, though not on
active duty,” and (2) was “require[d] [to] maintain readiness
for future recall.” Id. at 278 (emphasis removed). We note also
that the only Article III court of appeals to have considered
whether military retirees may be court-martialed reached the
same result. See United States ex rel. Pasela v. Fenno, 167 F.2d
593, 595 (2d Cir. 1948) (holding that a naval Fleet Reservist
could be court-martialed and pointing to the fact that he
“remain[ed] subject to call to active duty”); cf. Hooper v.
United States, 326 F.2d 982, 986–87 (Ct. Cl. 1964) (similar).
C.
Our conclusion that Fleet Marine Reservists are in “the
land and naval Forces” is further reinforced by the fact that, in
other contexts not raising the constitutional question presented
here, the Supreme Court has recognized military retirees as part
of the nation’s armed forces. Barker v. Kansas, for instance,
concerned whether military retirees’ benefits should be taxed
as a pension for past service or as “current pay for current
services.” 503 U.S. 594, 600 (1992). In resolving that dispute,
the Court explicitly confirmed that “[m]ilitary retirees
unquestionably remain in the service and are subject to
restrictions and recall.” Id. at 599. In the similar case of
McCarty v. McCarty, the Court noted that “[t]he retired officer
remains a member of the Army, … continues to be subject to
28
the Uniform Code of Military Justice, … may forfeit all or part
of his retired pay if he engages in certain activities,” and
“remains subject to recall to active duty by the Secretary of the
Army at any time.” 453 U.S. 210, 221–22 (1981) (cleaned up).
In Kahn the Court flatly rejected the argument that, because
“retired officers” are not in the armed forces, they may not sit
on court-martial panels: “it is not open to question … that such
officers are officers in the military service of the United
States.” 255 U.S. at 6–7.
Indeed, as early as 1881, in United States v. Tyler, the
Court found that while retirees are “not required to perform full
service, they are [still] part of the army, and may be assigned
to such duty as the laws and regulations permit.” 105 U.S. 244,
245 (1881); cf. Thornley v. United States, 113 U.S. 310, 315
(1885) (“The point on which [Tyler] turned was … that an
officer of the army, though retired, was still in the service.”).
Finally, the Supreme Court and this court’s predecessor have
both affirmed court-martial sentences imposed on military
retirees without questioning the constitutionality of the military
proceedings. See United States v. Fletcher, 148 U.S. 84 (1893);
United States v. Page, 137 U.S. 673 (1891); Closson v. United
States ex rel. Armes, 7 App. D.C. 460 (1896).
As already noted, the Court has not squarely addressed
whether military retirees, such as members of the Fleet Marine
Reserve, may be court-martialed consistent with the
Constitution. Nevertheless, the Court’s consistent and repeated
acknowledgement that military retirees are properly regarded
as members of the armed forces, rather than civilians,
substantiates our conclusion that Fleet Marine Reservists fall
within the “land and naval Forces” governed by the Make
Rules Clause.
29
***
Because he maintained a relationship with the armed
forces and was obligated to obey military orders at the time of
his court-martialing, Larrabee was in “the land and naval
Forces” and constitutionally subject to court-martial
jurisdiction.
VII.
Larrabee offers five reasons why Fleet Marine Reservists
may not constitutionally be court-martialed. None are availing.
First, pointing to Singleton, Larrabee argues that we must
apply a flexible, functional test to determine whether members
of the Fleet Marine Reserve “can be regarded as falling within
the term ‘land and naval Forces.’” 361 U.S. at 241. The salient
constitutional question, in his view, is whether the person tried
at court-martial “has any authority or obligation to act in a
military capacity.” This inquiry requires a case-by-case
analysis of whether the accused possesses the “substantive
authorities or responsibilities … relevant to the preservation of
good order and discipline among troops in active service.”
Larrabee would have us consider factors such as: Can the
accused wear a uniform? Can he give orders? Must he obey
orders? Must he meet the military’s physical fitness
requirements? When all these factors are taken together,
Larrabee argues, Fleet Marine Reservists resemble civilians far
more than soldiers. A stand-alone duty to return to service, he
insists, is not enough to satisfy this functional test.
When determining the scope of “the land and naval
Forces,” the Supreme Court has never resorted to the kind of
complex multifactor test that Larrabee proposes. In the 1960s
the Court adopted a balancing test, akin to Larrabee’s, for
determining which offenses could be prosecuted at court-
30
martial. Under O’Callahan v. Parker, 395 U.S. 258 (1969),
courts were required to weigh a “myriad of factors … in
determining whether an offense is service connected,”
including the nature of the offense, the status of the victim, and
the location of the crime. Solorio, 483 U.S. at 448. The Court
has since squarely rejected that approach, holding that the
permissible scope of court-martial jurisdiction turns “on one
factor: the military status of the accused.” Id. at 439 (emphasis
added). To determine the status of a person tried at court-
martial, the Court has consistently analyzed whether he has a
legal relation to the military that entails an obligation to obey
military orders—or whether, by contrast, he is a “civilian[] …
entitled to [the] safeguards afforded … by Article III of the
Constitution.” Toth, 350 U.S. at 23. We therefore reject
Larrabee’s multifactor balancing test for differentiating
civilians from military personnel.
Second, relying on the district court’s analysis below,
Larrabee argues that even if Fleet Marine Reservists are in the
armed forces, that is not sufficient to permit their court-
martialing under the Make Rules Clause. Subjecting them to
the military courts’ jurisdiction, the district court held, must
also be “necessary to maintain good order and discipline” in
the ranks. Larrabee, 502 F. Supp. 3d at 331 (citing Toth, 350
U.S. at 22). Because members of the Fleet Marine Reserve are
unlikely to be recalled, the exercise of court-martial
jurisdiction over them is not necessary and so is
unconstitutional.
That objection misses the mark. In Toth, the Court did not
hold that persons in the armed forces may be court-martialed
only in cases of military necessity. Rather, it held that that an
ex-serviceman who is now a civilian may not be court-
martialed for crimes committed while in military service. In
reaching that conclusion, the Court rejected the suggestion that
31
the Necessary and Proper Clause could stretch the Make Rules
Clause to cover civilians who did not fall within the letter of
“the land and naval Forces.” See Toth, 350 U.S. at 21–22; see
also Covert, 354 U.S. at 20–21. And it noted in passing that
“[f]ree countries of the world have tried to restrict military
tribunals to the narrowest jurisdiction deemed absolutely
essential to maintaining discipline among troops in active
service.” Toth, 350 U.S. at 22. But this general statement
appeared in the context of the Court’s sharp distinction
between civilians and servicemembers. The Toth Court drew a
line between civilians receiving the full protections of Article
III and persons within the armed services subject to military
trial. Contrary to Larrabee’s claims, the Court did not impose
limits on court-martial jurisdiction over those persons who had
a “military status” and were actually within “the land and naval
Forces.”
Third, Larrabee and amici protest that members of the
Fleet Marine Reserve are subject to only one duty—namely, a
duty to return to active-duty service, if called—and that such a
self-standing duty is not enough, because a person may be
court-martialed only if he is legally obligated to obey more
than one military order. We fail to see why a servicemember
who must obey one order is less a part of “the land and naval
Forces” than his peer who must obey two. 14 Cf. id. at 17 (“[I]t
is the primary business of armies and navies to fight or be ready
to fight wars should the occasion arise.”) (emphasis added). In
any event, Larrabee’s repeated assertion that Fleet Marine
14
Our dissenting colleague agrees that “whether individuals are
subject to court-martial jurisdiction turns on their military status,”
but insists that “a recall order” is not “like any other military order.”
Dissenting Op. 1. The dissent does not explain why the scope of the
Make Rules Clause turns on the kind of military order to which a
person is subject, or why a legal obligation to serve if recalled is not
enough to place one in “the land and naval Forces.”
32
Reservists have only “one duty” fails to account for their
multiple military obligations, which include a duty to return to
service, if called, a duty to report to active duty for training in
peacetime, and a duty to comply with the military’s
employment and reporting regulations.
Fourth, Larrabee contends that if members of the Fleet
Marine Reserve fall within the scope of the Make Rules Clause,
then if Congress reauthorized a compulsory draft, every person
presently registered with the Selective Service would become
subject to court-martial—before they had ever been inducted
into the military, donned a uniform, or received an order. 15
Consistent with its authority under the Army and Navy
Clauses, Congress may require men on the Selective Service
list to serve in the military. See Arver v. United States, 245 U.S.
366, 377 (1918). Yet, while those who have been drafted may
be constitutionally court-martialed, the Court has never implied
that those yet to be drafted may also face military justice.
Before a Selective Service registrant has been ordered to serve,
he has no military status—no current “relationship with the
military and its institutions,” only a prospective one. Toth, 350
U.S. at 14; cf. Billings, 321 U.S. at 546 (affirming, in dicta, the
constitutionality of a statute that authorized military
jurisdiction over persons “lawfully called, drafted, or ordered
into [the armed forces] from the dates they are required by the
terms of the call, draft or order to obey the same”) (emphasis
added) (quoting Articles of War of 1920, Pub. L. No. 66-242,
art. 2(a), 41 Stat. 787, 787). Only after being ordered into
service does a draftee become part of “the land and naval
Forces” whose members may be court-martialed. See id. at 556.
Before being a drafted, by contrast, he has no ongoing
15
“[E]very male citizen of the United States … between the ages of
eighteen and twenty-six” is required to register with the Selective
Service. 50 U.S.C. § 3802(a).
33
relationship with the military that obliges him to obey military
orders. Larrabee’s reductio ad absurdum therefore fails to
show that Fleet Marine Reservists must fall outside of the Make
Rules Clause.
Finally, Larrabee argues that as a matter of policy, “there
is simply no good argument for why … military retirees need
to be subject to the UCMJ while they are retired.” Larrabee and
his amici point out that courts-martial lack many of the
constitutional protections afforded in Article III courts, and that
the UCMJ’s procedural safeguards are grants of legislative
grace and not guaranteed as a matter of constitutional right.
These features, however, are part of the established operation
of military justice under our Constitution. Cf. Parker v. Levy,
417 U.S. 733, 744 (1974) (“[T]he military constitutes a
specialized community governed by a separate discipline from
that of the civilian, and … the rights of men in the armed forces
must perforce be conditioned to meet certain overriding
demands of discipline and duty.”) (cleaned up).
Our dissenting colleague emphasizes the centrality of the
right to a trial by jury under our Constitution, Dissenting Op.
1–2, and we of course recognize the importance of the jury
system in the Article III courts. Nevertheless, it is not this court
that has extended court-martial jurisdiction, but Congress.
Although the judiciary must determine whether military
retirees like Larrabee actually have “military status,” the
question of whether subjecting them to court-martial
jurisdiction is wise or foolish is for the political branches to
decide. 16
16
As the Supreme Court has emphasized, “Congress has the primary
responsibility for the delicate task of balancing the rights of
servicemen against the needs of the military.” Solorio, 483 U.S. at
34
VIII.
Larrabee argues in the alternative that the Grand Jury
Clause separately barred his court-martial. He maintains that
an inactive-duty servicemember may not be tried by a military
tribunal for an offense that is unrelated to military order and
discipline, because such a “case[]” does not “aris[e] in the land
or naval forces.” U.S. CONST. amend. V. In his view, the
government therefore violated the Grand Jury Clause by court-
martialing him for the sexual assault of a civilian while he was
an inactive-duty Fleet Marine Reservist. We disagree.
The Supreme Court has already rejected this argument. In
Solorio, it categorically renounced the service-connection test
set out in O’Callahan, making clear that “the Constitution …
condition[s] the proper exercise of court-martial jurisdiction
over an offense on one factor: the military status of the
accused.” 483 U.S. at 439. Larrabee argues that Solorio did not
eliminate O’Callahan’s service-connection test requirement
for inactive-duty servicemembers, and that the Grand Jury
Clause requires one. But Solorio’s holding was not limited to
active-duty troops. Rather the Court held that, as a general
matter, “determinations concerning the scope of court-martial
jurisdiction over offenses committed by servicemen [are]
447. The Executive Branch also must balance these concerns in the
exercise of its prosecutorial discretion. The Army, for instance, has
historically adhered to a “policy that retired personnel subject to the
[UCMJ] will not be tried for any offenses by any military tribunal
unless extraordinary circumstances are present linking them to the
military establishment or involving them in conduct inimical to the
welfare of the nation.” 7 JUDGE ADVOCS. GEN., DIGEST OF OPINIONS
[1957–58] 108 (1958).
35
reserved for Congress” and are not to be second-guessed by
courts. 17 Id. at 440.
Moreover, as the Court explained in Covert, the Fifth
Amendment’s “exception … for ‘cases arising in the land or
naval forces’ was undoubtedly designed to correlate with the
power granted Congress to provide for the ‘Government and
Regulation’ of the armed services.” 354 U.S. at 22. In other
words, the Grand Jury Clause does not limit Congress’ powers
under the Make Rules Clause. Cf. Ex parte Milligan, 71 U.S.
2, 138 (1866) (Chase, C.J., concurring) (observing that the
Grand Jury Clause’s “exception [has] the same import and
effect as if the powers of Congress in relation to the
government of the army and navy and the militia had been
17
We note that even if some type of service connection were required
when the government seeks to court-martial an inactive-duty
servicemember, Larrabee was still properly subject to court-martial
jurisdiction. While his offenses were civilian in nature and
committed against a civilian on private property, they were
undoubtedly service-connected under O’Callahan. Indeed, it is
difficult to imagine how the sexual assault of a forward-deployed,
active-duty Marine’s wife by a retired Marine could not impair
military order and discipline. In fact, in this case it did: after
Larrabee’s assault came to light, his victim’s husband was reassigned
from Japan to the United States.
The facts in Solorio were very similar. There, a coastguardsman
was accused of sexually abusing the minor children of his fellow
coastguardsmen on private property. Before the case reached the
Supreme Court, the Court of Military Appeals (the CAAF’s
precursor) upheld the conviction under O’Callahan’s service-
connection test, reasoning that the sexual abuse of servicemembers’
civilian dependents has “a continuing effect on the victims and their
families and ultimately on the morale of any military unit or
organization to which the family member is assigned.” United States
v. Solorio, 21 M.J. 251, 256 (C.M.A. 1986); see also Solorio, 483
U.S. at 451 (Stevens, J., concurring in the judgment). So too here.
36
recited in the [Fifth] [A]mendment, and cases within those
powers had been expressly excepted from its operation”).
Congress’ authority to govern and regulate persons in the
armed forces is “plenary,” and Larrabee offers no compelling
reason why the Grand Jury Clause constrains that authority in
the case of inactive-duty troops. Solorio, 483 U.S. at 441.
As the text and structure of the two clauses confirm, the
scope of the Grand Jury Clause’s exception is coextensive with
that of the Make Rules Clause. Because Larrabee was in “the
land and naval Forces” at the time of his court-martialing, U.S.
CONST. art. I, § 8, cl. 14, his “case[] ar[ose] in the land or naval
forces,” U.S. CONST. amend. V.
***
Military trials are constitutional only for those who have a
military status. Because the exercise of court-martial
jurisdiction limits the constitutional protections of Article III
courts, we must independently determine whether a person is
in “the land and naval Forces” or is a civilian. The Supreme
Court’s precedents interpreting the Make Rules Clause, as well
as historical evidence from the Founding era, both indicate that
Congress may extend court-martial jurisdiction over a person
if he has a formal relationship with the military that includes a
duty to obey military orders. Larrabee had the requisite military
status because at the time of his arrest he was a member of the
Fleet Marine Reserve and was subject to ongoing military
duties. The judgment of the district court is therefore
Reversed.
TATEL, Circuit Judge, concurring in part and dissenting in
part: I agree with my colleagues about everything except what
matters most: their conclusion. I agree that whether individuals
are subject to court-martial jurisdiction turns on their military
status and that the unifying pattern in Supreme Court precedent
“is that the persons found to be properly within ‘the land and
naval Forces’ had a formal relationship with the military that
included an obligation to obey military orders.” Majority Op.
at 13. I also agree with Judge Rao that we owe Congress no
deference in interpreting the scope of the Make Rules Clause.
That said, I disagree that the type of order to which Larrabee is
potentially subject—a recall order summoning him from
civilian life to take up arms—is like any other military order.
By treating it as such, the court extends court-martial
jurisdiction not only to the Fleet Marine Corps Reserve, but
also to roughly two million military retirees. Because this
dramatic expansion of court-martial jurisdiction is beyond
what the Constitution allows and case law supports, I
respectfully dissent from that portion of the court’s opinion.
The court is of course correct that this case is about the
Make Rules Clause. But we must interpret that clause in the
context of the rest of the Constitution, which puts a heavy
thumb on the scale against extending court-martial jurisdiction.
The Constitution guarantees the right to juries not once, not
twice, but four times.
Article III: “The Trial of all Crimes, except in
Cases of Impeachment, shall be by Jury.”
Fifth Amendment: “No person shall be held to
answer for a capital, or otherwise infamous
crime, unless on a presentment or indictment of
a Grand Jury, except in cases arising in the land
or naval forces, or in the Militia, when in actual
service in time of War or public danger.”
2
Sixth Amendment: “In all criminal
prosecutions, the accused shall enjoy the right
to a speedy and public trial, by an impartial
jury.”
Seventh Amendment: “In Suits at common law
. . . the right of trial by jury shall be preserved.”
(Emphases added.)
By contrast, the Constitution has nothing at all to say about
court-martial jurisdiction. The Supreme Court inferred this
“very limited and extraordinary jurisdiction . . . from the
cryptic language in” the Make Rules Clause. Reid v. Covert,
354 U.S. 1, 21 (1957) (plurality opinion). Its justification for
allowing courts-martial is straightforward. As it explained in
United States ex rel. Toth v. Quarles, “[c]ourt-martial
jurisdiction sprang from the belief that within the military ranks
there is need for a prompt, ready-at-hand means of compelling
obedience and order.” 350 U.S. 11, 22 (1955). In Toth, the
Court held that a discharged soldier could not be court-
martialed because “[i]t is impossible to think that the discipline
of the Army is going to be disrupted, its morale impaired, or its
orderly processes disturbed, by giving ex-servicemen the
benefit of a civilian court trial when they are actually civilians.”
Id. Two years later, in Reid v. Covert, the court extended Toth
to military dependents who commit crimes on military bases,
holding that they too cannot be court-martialed because such
conduct bears even less on “the maintenance of order and
discipline in the armed forces than the conduct of” discharged
soldiers. 354 U.S. at 32; see also Kinsella v. United States ex
rel. Singleton, 361 U.S. 234, 248–49 (1960) (extending
Covert’s reasoning to noncapital offenses committed by
military dependents).
3
Surveying Supreme Court precedent, my colleagues point
out that only individuals with “a formal relationship with the
military that include[s] an obligation to obey military orders”
are “properly within ‘the land and naval Forces.’” Majority Op.
at 13. This makes sense given that the need for military order
and discipline is what justifies subjecting military personnel to
courts-martial. Individuals not subject to military orders are not
an “‘important’” part of the military “‘machinery’” that
depends on swift military justice to maintain good order and
discipline. McElroy v. United States ex rel. Guagliardo, 361
U.S. 281, 285 (1960) (quoting Ex parte Reed, 100 U.S. 13, 21–
22 (1879)).
Although the duty to obey military orders is a necessary
condition for court-martial jurisdiction, it does not follow that
the possibility of a recall order is sufficient to subject members
of the Fleet Marine Corps Reserve to such jurisdiction. If the
military issues an order recalling one or more members of the
Fleet Marine Corps Reserve, they will be reincorporated into
the military chain of command and subject to military
discipline and court-martial. But until then, their day-to-day
lives are equivalent to those of ordinary civilians. No need to
take my word for it. Ask the military, which routinely excludes
the Fleet Marine Corps Reserve from the requirements it deems
necessary to maintain the armed forces. Members of the Fleet
Marine Corps Reserve are unassigned to a specific command,
are ineligible for promotion, lack authority to issue binding
orders, may refer to their rank and wear their uniforms only
under limited conditions, need not participate in military
activities, need not maintain any level of physical fitness, and
may not serve on or refer charges to courts-martial. And
especially significant, although the Marine Corps requires all
“active and reserve component” members to be vaccinated
against COVID-19 because “a fully vaccinated force is a matter
of operational readiness and good order and discipline,” it has
4
not extended this requirement to members of the Fleet Marine
Corps Reserve. See MARADMINS 462/21 (Sept. 1, 2021)
(first quote); MARADMINS 612/21 (Oct. 23, 2021) (second
quote). The military itself obviously considers the Fleet Marine
Corps Reserve to lie outside the “force” where “good order and
discipline” are essential.
A recall order, then, functions as a gateway to military
status. The possibility of such an order certainly means that the
military status of members of the Fleet Marine Corps Reserve
could change, but not that they are currently part of the armed
forces. Before receiving any such order, they are entitled to all
jury rights guaranteed by the Constitution. “It is impossible to
think that the discipline of the [Marine Corps] is going to be
disrupted, its morale impaired, or its orderly processes
disturbed” by providing members of the Fleet Marine Corps
Reserve with an Article III jury trial. Toth, 350 U.S. at 22.
Neither English nor American history requires otherwise.
Like our Supreme Court, Blackstone observed that “[t]he
necessity of order and discipline in an army is the only thing
which can give [court-martial jurisdiction] countenance.” 1
William Blackstone, Commentaries *400. The Founders so
resented Britain’s curtailment of the right to jury trial that
military tribunals received special condemnation in the
Declaration of Independence, which denounced King
George III’s efforts “to render the Military independent of and
superior to the Civil power” and chastised the Crown “[f]or
depriving us in many cases, of the benefits of trial by jury.” The
Declaration of Independence para. 2 (U.S. 1776). Moreover,
regardless of the turbid history of how individuals like
members of the Fleet Marine Corps Reserve were treated prior
to 1789, see Majority Op. at 18–24, the Constitution enshrined
the right to trial by jury and curtailed the scope of courts-
martial. In sum, our history reveals a “deeply rooted and
5
ancient opposition . . . to the extension of military control over
civilians.” Covert, 354 U.S. at 33.
The implications of this case stretch far beyond Larrabee
and the Fleet Marine Corps Reserve. Millions of military
retirees are also subject to military recall. 10 U.S.C. § 688(b).
Indeed, as Larrabee’s counsel pointed out at oral argument,
under the court’s reasoning “nothing would stop the
Government from court-martialing a 90-year-old Korean War
veteran, who retired after being injured in the war, for
shoplifting a newspaper from his local supermarket.” Oral Arg.
33:55–34:10. The 200-plus retired generals and admirals who
spoke out against President Trump and the 120-plus now
speaking out against President Biden could likewise be court-
martialed. See 10 U.S.C. § 888 (subjecting military officers to
court-martial for “us[ing] contemptuous words against the
President”); Br. for Joshua E. Kastenberg & J. Wesley Moore
as Amicus Curiae in Support of Appellee at 22–23.
The Supreme Court has repeatedly warned of the dangers
of expanding court-martial jurisdiction. “Every extension of
military jurisdiction is an encroachment on the jurisdiction of
the civil courts, and, more important, acts as a deprivation of
the right to jury trial and of other treasured constitutional
protections.” Covert, 354 U.S. at 21; see also Toth, 350 U.S. at
15 (“[A]ny expansion of court-martial jurisdiction . . .
necessarily encroaches on the jurisdiction of federal courts . . .
where persons on trial are surrounded with more constitutional
safeguards than in military tribunals.”). As a result of today’s
decision, millions of Americans have lost one such
constitutional right.