SUPREME COURT OF THE UNITED STATES
KEANU D. W. ORTIZ, PETITIONER v.
on writ of certiorari to the united states court of appeals for the armed forces
[June 22, 2018]
Justice Alito, with whom Justice Gorsuch joins, dissenting.
I begin with a story that is familiar to students of constitutional law. After his Federalist Party was defeated in the pivotal election of 1800, outgoing President John Adams attempted to fill the Federal Judiciary with individuals favored by his party. The Senate confirmed Adams’s nominees, and Adams diligently signed their commissions and sent them to the Secretary of State, one John Marshall, so that the Great Seal could be affixed and the commissions could be delivered. Most of the commissions were promptly sealed and dispatched, but a few were left behind, including the commission of William Marbury, who had been nominated and confirmed as a justice of the peace for the District of Columbia.
After Thomas Jefferson was sworn in as the Nation’s third President, he was furious about Adams’s eleventh-hour judicial appointments,[1
] and his Secretary of State, James Madison, made a fateful decision. Evaluating the facts and the law as he saw them, Madison concluded that he was under no legal obligation to deliver the commissions that had been left in Marshall’s office, and he decided not to do so.
Outraged, Marbury filed suit directly in our Court, asking that Madison be ordered to deliver his commission. But we dismissed his case, holding, among other things, that it did not fall within our “appellate jurisdiction.” Marbury
, 1 Cranch 137, 175–176, 180 (1803). Why? Because “appellate jurisdiction” means jurisdiction to review “the proceedings in a cause [i.e.,
a case] already instituted” in another court. Id
., at 175. Madison was an Executive Branch officer, not a court, and therefore Marbury’s dispute with Madison did not become a “cause” or case until it was brought before this Court. As a result, review of Madison’s decision did not fall within our “appellate” jurisdiction. Id.,
That conclusion was straightforward enough. But suppose that Madison’s decisionmaking process had been more formal. Suppose that he had heard argument about his legal obligations—and perhaps even testimony about Marbury’s qualifications. (After all, President Jefferson reappointed some of Adams’s nominees, but not Marbury.[2
]) Or suppose Madison had convened an Executive Branch committee to make an initial determination. Suppose that this entity was labeled the “Court of Commission Review.” Suppose that the members wore robes and were called judges, held their meeting in a courthouse, and adopted court-like procedures. With all these adornments, would Madison’s decision have fallen within our appellate jurisdiction? Would Marbury
have come out the other way?
The answer is no, and the reason is the same as before. Our appellate jurisdiction permits us to review one thing: the lawful exercise of judicial
power. Lower federal courts exercise the judicial power of the United States. State courts exercise the judicial power of sovereign state governments. Even territorial courts, we have held, exercise the judicial power of the territorial governments set up by Congress. Executive Branch officers, on the other hand, cannot lawfully exercise the judicial power of any
sovereign, no matter how court-like their decisionmaking process might appear. That means their decisions cannot be appealed directly to our Court.
We have followed this rule for more than two centuries. It squarely resolves this case. Courts-martial are older than the Republic and have always been understood to be Executive Branch entities that help the President, as Commander in Chief, to discipline the Armed Forces. As currently constituted, military tribunals do not comply with Article III, and thus they cannot exercise the Federal Government’s judicial power. That fact compels us to dismiss Ortiz’s petition for lack of jurisdiction.
Today’s decision is unprecedented, and it flatly violates the unambiguous text of the Constitution. Although the arguments in the various opinions issued today may seem complex, the ultimate issue is really quite simple. The Court and the concurrence say that Congress may confer part of the judicial power of the United States on an entity that is indisputably part of the Executive Branch. But Article III of the Constitution vests “[t]he Judicial Power of the United States”—every single drop of it—in “one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish” in compliance with that Article. A decision more contrary to the plain words of the Constitution is not easy to recall.
Under Article III of the Constitution, the judicial power of the United States may be vested only in tribunals whose judges have life tenure and salary protection. §1. “There is no exception to this rule in the Constitution.” Benner
, 9 How. 235, 244 (1850); Oil States Energy Services, LLC
v. Greene’s Energy Group, LLC
, 584 U. S. ___, ___ (2018) (slip op., at 5–6); Stern
564 U. S. 462, 503 (2011); Martin
v. Hunter’s Lessee
, 1 Wheat. 304, 330–331 (1816) (Story, J.).
The Court of Appeals for the Armed Forces (CAAF) is not such a tribunal. Its judges serve 15-year terms and can be removed by the President for cause. 10 U. S. C. §§942(b), (c). As the majority acknowledges, the CAAF is an Executive Branch entity, and as such, it cannot be vested with the judicial power conferred by Article III. If the CAAF were
to do something that either amounts to or requires the exercise of judicial power, it would be unconstitutional.
After specifying the only institutions that may exercise the judicial power of the United States, Article III defines the permissible scope of the jurisdiction of this Court. Article III allows us to exercise both “original” and “appellate” jurisdiction. Our original jurisdiction is limited to “Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party,” §2, so it is obvious that Ortiz’s case does not fall within our original jurisdiction. But what about our appellate jurisdiction? If we directly reviewed a decision of the CAAF, would that be an exercise of “appellate” review in the sense meant by Article III? The answer is no.
The understanding of appellate jurisdiction embodied in Article III has deep roots. Blackstone explained that a “court of appeal” has jurisdiction only to “reverse or affirm the judgment of the inferior courts
.” 3 W. Blackstone, Commentaries on the Laws of England 411 (1768) (Blackstone) (emphasis added). Echoing Blackstone, we have held that our appellate jurisdiction permits us to act only as “[a] supervising Court, whose peculiar province it is to correct the errors of an inferior Court.” Cohens
v. Vir- ginia
, 6 Wheat. 264, 396 (1821) (Marshall, C. J.). And we have reiterated that “[a]n appellate jurisdiction necessarily implies some judicial determination, some judgment, decree, or order of an inferior tribunal, from which an appeal has been taken.” The Alicia
, 7 Wall. 571, 573 (1869); Webster
, 10 How. 54, 55 (1850); 3 J. Story, Commentaries on the Constitution of the United States §916, p. 652 (1833) (Story).
Those principles make it easy to understand what Marbury
meant when it held
that “[i]t is the essential criterion of appellate jurisdiction, that it revises and corrects the proceedings in a cause already instituted, and does not create that cause.” 1 Cranch, at 175. The cause (or case) must have been created previously, somewhere else. And as Blackstone suggested, what “creates” a “case” in the relevant sense—that is, what transforms a dispute into a “case” that an appellate court has jurisdiction to resolve—is the prior submission of the dispute to a tribunal that is lawfully vested with judicial power.
We held exactly that not long after Marbury
, and in a decision no less seminal. A dispute “becomes a case” for purposes of Article III, we held, only when it “assume[s] such a form that the judicial power
is capable of acting
on it. That power is capable of acting only when the subject is submitted to it
by a party who asserts his rights in the form prescribed by law. It then
becomes a case.” Osborn
v. Bank of United States
, 9 Wheat. 738, 819 (1824) (Marshall, C. J.) (emphasis added). Hence, in order to create a “case” that Article III permits us to review on appeal, a litigant must have first “submitted” the dispute to another tribunal that was “capable” of exercising the “judicial power” of the government to which the tribunal belongs. As discussed, Executive Branch tribunals cannot fill that essential role.
We reiterated this principle in Cohens
, another foundational precedent of the Marshall Court. “To commence a suit,” Chief Justice Marshall explained, “is to demand something by the institution of process in a Court of justice
.” 6 Wheat., at 408 (emphasis added). Courts of justice are those tribunals “erected by” the sovereign and properly vested with the sovereign’s own “power of judicature.” 1 Blackstone 257 (1765). When the sovereign is the Federal Government, that means only courts established under Article III, for only those courts may exercise the judicial power of the United States. See Cohens
at 405; The Federalist No. 78, pp. 469–472 (C. Rossiter ed. 1961) (“the courts of justice” are those described in Article III).
This view of appellate jurisdiction explains why, in Martin
v. Hunter’s Lessee
, Justice Story declared that “if . . . congress should not establish [inferior Article III] courts, the appellate jurisdiction of the supreme court would have nothing to act upon, unless it could act upon cases pending in the state courts.” 1 Wheat., at 339–340. Without decisions of Article III courts or state courts to review, our appellate jurisdiction would have lain idle—but not
because there were no Executive Branch tribunals, like the CAAF, deciding federal questions. To the contrary, executive agencies have “conduct[ed] adjudications”—often taking “ ‘judicial’ forms”—“since the beginning of the Republic.” Arlington
569 U. S. 290, 304–305, n. 4 (2013); Freytag
501 U. S. 868, 910 (1991) (Scalia, J., concurring in part and concurring in judgment); see generally J. Mashaw, Creating the Administrative Constitution 34–35 (2012).
Such Executive Branch adjudications, however, do not give rise to “cases” that Article III grants us appellate jurisdiction to review, precisely because officers of the Executive Branch cannot lawfully be vested with judicial power. That is why Chief Justice Marshall declared, without qualification, that “[a] mandamus to an officer
[of the Executive Branch] is held to be the exercise of original jurisdiction; but a mandamus to an inferior court
of the United States, is in the nature of appellate jurisdiction.” Ex parte Crane
, 5 Pet. 190, 193 (1831) (emphasis added). Time has not sown doubts about the truth of that rule. E.g., Verizon Md. Inc.
v. Public Serv. Comm’n of Md.
535 U. S. 635, 644, n. 3 (2002) (“judicial review of executive action, including determinations made by a state administrative agency,” involves the exercise of federal court’s “original jurisdiction” rather than its “appellate jurisdiction,” which covers only “state-court judgments”); L. Jaffe, Judicial Control of Administrative Action 263, n. 5 (1965).
We have taken this same approach when deciding whether we may assert appellate jurisdiction to review the decision of a state tribunal: We look to state law to see whether the tribunal in question was eligible to receive the State’s judicial power. E.g., Betts
316 U. S. 455, 458–460 (1942); cf. Chicago, R. I. & P. R. Co.
346 U. S. 574, 578–579 (1954) (federal courts cannot exercise removal jurisdiction—which is appellate in nature, Martin
at 349—while a dispute is still in state “administrative” proceedings; removal is proper only after “the jurisdiction of the state district court is invoked”); Verizon Md.
This understanding of appellate jurisdiction bars our review here. The dispute between Ortiz and the Federal Government has been presented to four tribunals: the initial court-martial, the Air Force Court of Criminal Appeals, the CAAF, and this Court. Each of those tribunals belongs to a branch of the Federal Government. Yet only one of them—our Court—is capable, under the Constitution, of exercising the Government’s judicial power. Thus, the dispute between Ortiz and the Federal Government did not become an Article III “case” until Ortiz petitioned our Court to hear it. That means our present adjudication—no less than our adjudication of the dispute between Marbury and Madison—lacks “the essential criterion of appellate jurisdiction.” 1 Cranch, at 175.
The majority does not question this framework; indeed, it acknowledges that, per Marbury
, we can assert jurisdiction here only if the dispute before us blossomed into an Article III “case” before it landed at our doorstep. Ante,
at 6–7. Curiously, however, the majority basically proceeds as though Marbury
were our last word on the subject. Ante,
at 6–8. That is simply not right. As discussed, our foundational precedents expressly delineate the prerequisites to the formation of a constitutional case: The dispute must, at a minimum, have been previously presented to and decided by a tribunal lawfully vested with the judicial power of the government to which it belongs. Nothing of the sort occurred here; traversing a series of “proceedings” internal to the Executive Branch, ante,
at 7, does not count. And while there undoubtedly are differences between this case and Marbury
, even some that “lea[p] off the page,” ante,
at 18, those distinctions are irrelevant to our jurisdiction. The dispositive common ground is that, just as in Marbury
, we are here asked to resolve a dispute that has been presented only to Executive Branch officers. The present dispute thus lies beyond the “peculiar province” of our appellate jurisdiction to review. Cohens
, 6 Wheat., at 396.
If there were any doubt that Article III forbids us to take appeals directly from the Executive Branch, two centuries of precedent—almost all of it overlooked by the majority—would put those doubts to rest.
First consider the history of our relationship with the Court of Claims. Congress established that court in 1855 to adjudicate claims against the United States. §1, 10 Stat. 612. Congress provided the court’s judges with life tenure and salary protection, just as Article III requires. Ibid.
The Court of Claims was a court of record, and it followed all the procedures—and possessed all the ancillary powers (subpoena, contempt, etc.)—that one would expect to find in a court of justice. §§3–7,
765–766. Its decisions had preclusive effect, and were appealable directly to our Court. §§7, 5, id
., at 766. If the court rendered judgment for a claimant, however, the Secretary of the Treasury could partially revise its decision by modifying the amount of the judgment to be paid (though not the court’s legal conclusion that the claimant was in the right). §14, id
., at 768.
Under principles as old as Hayburn’s Case
, 2 Dall. 409 (1792), a court whose judgments are not self-executing no more complies with Article III than a tribunal whose judges are not life tenured. For that reason alone, we dismissed for lack of jurisdiction the first time a party appealed a Court of Claims decision directly to our Court. Gordon
v. United States
, 2 Wall. 561 (1865), 117 U. S. Appx. 697 (1864). It did not even matter that the court’s decision in that case had been against
the claimant, and was thus immune from revision, and would have been fully binding if we had affirmed. All that mattered was that the Court of Claims, like the CAAF, lacked an attribute that Article III makes prerequisite to the vesting of judicial power. Id.,
at 704. In words that apply as much here, we said that “the so-called judgments of the Court of Claims . . . could not be deemed an exercise of judicial power, and could not, therefore, be revised by this court.” In re Sanborn
148 U. S. 222, 224 (1893). It was irrelevant how much the Court of Claims otherwise “resemble[d] . . . courts whose decisions we review.” Ante,
The story does not end there, however. In 1866 Congress did something it has never done with respect to courts-martial: It brought the Court of Claims into compliance with Article III by repealing the provision that made some of its decisions revisable by the Treasury Secretary. Ch. 19, §1,
9. We began hearing appeals from it “immediately.” United States
119 U. S. 477, 478 (1886). We now were able to “accep[t] appellate jurisdiction over what was, necessarily, an exercise of the judicial power which alone
[we] may review.” Glidden Co.
370 U. S. 530, 554 (1962) (plurality opinion) (citing Marbury
, at 174–175; emphasis added).
Next consider our practice in entertaining petitions for writs of habeas corpus.
Four years after Marbury
, we reaffirmed its core holding in Ex parte Bollman
, 4 Cranch 75 (1807) (Marshall, C. J.). Two men were taken into federal custody, and their confinement was approved by an Article III court. United States
, 24 F. Cas. 1189, 1190, 1196 (No. 14,622) (CC DC 1807). They then petitioned our Court for a writ of habeas corpus. Applying Marbury
, we held that the jurisdiction “which the court is now asked to exercise is clearly appellate
. It is the revision of a decision of an inferior court.” 4 Cranch, at 101.
with Ex parte Barry
, 2 How. 65 (1844) (Story, J.), and In re Metzger
, 5 How. 176 (1847). In Barry
, the petitioner sought relief in this Court without first presenting his claim to an inferior federal court or a state court, and so Justice Story explained that “[t]he case, then, is one avowedly and nakedly for the exercise of original jurisdiction by this court,” and was required to be dismissed. 2 How., at 65. In Metzger
, “the district judge” had “heard and decided” the lawfulness of the petitioner’s custody, but the judge had done so only “at his chambers
, and not in court.” 5 How., at 191 (emphasis added). His judgment was not provisional, like some early Court of Claims decisions—but his status as a judge at chambers was still fatal to our jurisdiction. In a technical sense, a judge at chambers “exercises a special authority” distinct from the judicial power vested by Article III—which meant that the Constitution would permit us to review his decision in “[t]he exercise of an original jurisdiction only.” Id.,
Finally, and especially pertinent here, we have adhered to the Marbury
principle in the many instances in our Court’s history in which we have been asked to review the decision of a military tribunal. First, in Ex parte Vallandigham
, 1 Wall. 243 (1864), an Ohio resident had been tried and sentenced by a military commission, and its decision became final after being approved up the chain of command. Vallandigham sought relief directly from our Court, without first petitioning a lower federal court. We held that we lacked jurisdiction. Id.,
at 254. The military commission, like the CAAF, was not one of the “courts of the United States” established under Article III, id.,
at 251, and thus it could not exercise the judicial power of the Federal Government, but could exercise only “a special authority,” id.,
at 253—just like the Court of Claims, and just like a judge at chambers. Given that fact, we held it was “certain” that any review of its decisions could take place only in the exercise of our original, and not appellate, jurisdiction. Id.,
at 251–252. And despite what the majority seems to think, see ante,
at 17, n. 8, in Vallandigham
that the military tribunal had “judicial character” in the sense that it had “the authority . . . to examine, to decide and sentence,” but—in the same breath—we affirmed the crucial point, namely, that such character “ ‘is not judicial . . . in the sense in which judicial power
is granted to the courts of the United States.’ ” 1 Wall., at 253 (emphasis added).
with a pair of decisions we issued shortly thereafter. In Ex parte Milligan
, 4 Wall. 2 (1866), and Ex parte Yerger
, 8 Wall. 85 (1869), we again were asked to grant relief to petitioners who, just like Vallandigham (and just like Ortiz), were in custody under orders of a non-Article III military tribunal. But unlike Vallandigham and Ortiz, Milligan and Yerger first sought relief in a lower federal court. Milligan
at 107–108; Yerger
, 8 Wall., at 102–103. That fact made all the difference—again, because of the rule that we possess, “under the Constitution, an appellate jurisdiction, to be exercised only in the revision of judicial decisions.” Id.,
at 97. The decisions of non-Article III military courts do not qualify.
Similarly, after World War II we received “more than a hundred” habeas petitions from individuals in the custody of “various American or international military tribunals abroad,” almost none of whom had “first sought [relief ] in a lower federal court.” R. Fallon, J. Manning, D. Meltzer, & D. Shapiro, Hart and Wechsler’s The Federal Courts and the Federal System 292 (7th ed. 2015). Consistent with Marbury
, we denied review in every one. Fallon, supra,
at 292–293. Thus, while it is surely true that “not every military tribunal is alike” in all respects, ante,
at 17, before today, they were at least alike in this respect: Their decisions could not be reviewed directly here.
The unbroken line of authorities discussed above vividly illustrates the nature and limits of our appellate jurisdiction as defined in Article III. Today’s decision cannot be squared with those authorities, and the majority barely even tries. The majority says not a word about the Court of Claims, even though that tribunal surely had sufficient “court-likeness,” ante,
at 16 (emphasis deleted), to come within the scope of our appellate jurisdiction under today’s test. Nor does the majority acknowledge the slew of on-point habeas decisions—save for Vallandigham
, which it waves away by emphasizing irrelevant factual details (like the commanding officer’s facial hair). Despite its running refrain that the CAAF displays a “judicial character
at 6 (emphasis added); see also ante,
at 8, 18, 19, the majority simply never comes to grips with the substance of our holdings: We may not hear an appeal directly from any tribunal that has not been lawfully vested with judicial power
. That rule directly covers the CAAF, and it bars our review.
Having said very little about a large body of controlling precedent, the majority says very much about the fact that we have long heard appeals directly from territorial courts and the courts of the District of Columbia. Ante,
at 12–16. The majority claims to be looking for a “powerful reason” why our appellate jurisdiction should treat courts-martial any differently. Ante,
at 15. A careful reading of our decisions shows that we have a good reason ready at hand—one that is fully consistent with Marbury
The reason, as I explain below, is this: Congress enjoys a unique authority to create governments for the Territories and the District of Columbia and to confer on the various branches of those governments powers that are distinct from the legislative, executive, and judicial power of the United States. Thus, for example, the courts of the District of Columbia exercise the judicial power of the District, not that of the United States. The courts of the United States Virgin Islands exercise the judicial power of that Territory, not the judicial power of the United States. By contrast, the CAAF and other military tribunals are indisputably part of the Executive Branch of the Government of the United States. They exercise the power of the United States, not that of any other government, and since they are part of the Executive, the only power that they may lawfully exercise is executive, not judicial. Unless they are removed from the Executive Branch and transformed into Article III courts, they may not exercise any part of the judicial power of the United States. Nor need they exercise judicial power to carry out their functions, as we have always understood.
We have long said that Congress’s authority to govern the Territories and the District of Columbia stems as much from its inherent sovereign powers as it does from specific constitutional provisions in Articles IV and I. Sere
, 6 Cranch 332, 336–337 (1810) (Marshall, C. J.); American Ins. Co.
v. 356 Bales of Cotton
, 1 Pet. 511, 546 (1828) (Marshall, C. J.); Late Corp. of Church of Jesus Christ of Latter-day Saints
v. United States
136 U. S. 1, 42 (1890); see also Art. IV, §3, cl. 2 (Territories); Art. I, §8, cl. 17 (District). Perhaps reflecting that view, the founding generation understood—and for more than two centuries, we have recognized—that Congress’s power to govern the Territories and the District is sui generis
in one very specific respect: When exercising it, Congress is not bound by the Vesting Clauses of Articles I, II, and III.
The Vesting Clauses impose strict limits on the kinds of institutions that Congress can vest with legislative, executive, and judicial power. See generally Department of Transportation
v. Association of American Railroads
, 575 U. S. ___, ___–___ (2015) (Thomas, J., concurring in judgment) (slip op., at 2–3). Those limits apply when Congress legislates in every other area, including when it regulates the Armed Forces. See Loving
v. United States
517 U. S. 748, 767–768, 771–774 (1996) (Article I nondelegation doctrine applies to congressional regulation of courts-martial). But it has been our consistent view that those same limits do not apply when Congress creates institutions to govern the Territories and the District. As we said in Benner
, 9 How. 235, 242 (1850), territorial governments set up by Congress “are not organized under the Constitution, nor subject to its complex distribution of the powers of government, as the organic law; but are the creations, exclusively, of the legislative department.” Congress may therefore give territorial governments “a legislative, an executive, and a judiciary, with such powers as it has been their will to assign to those departments.” Sere
at 337. That is why we have often repeated that “[i]n legislating for [the Territories], Congress exer- cises the combined powers of the general, and of a state government.” American Ins. Co.
at 546; Palmore
v. United States
411 U. S. 389, 403 (1973). Just as the Vesting Clauses do not constrain the States in organizing their own governments, Dreyer
187 U. S. 71, 84 (1902), those Clauses do not constrain Congress in organizing territorial governments.
Thus, unlike any of its other powers, Congress’s power over the Territories allows it to create governments in miniature, and to vest those governments with the legislative, executive, and judicial powers, not of the United States, but of the Territory itself. For that reason we have upheld delegations of legislative, executive, and judicial power to territorial governments despite acknowledging that each one would be incompatible with the Vesting Clauses of the Federal Constitution if those Clauses applied. See, e.g., Dorr
v. United States
195 U. S. 138, 153 (1904) (territorial legislature); Cincinnati Soap Co.
v. United States
301 U. S. 308, 322–323 (1937); Snow
v. United States
, 18 Wall. 317, 321–322 (1873) (territorial executive); American Ins. Co.
(territorial courts); Sere
v. United States ex rel. Stokes
, 12 Pet. 524, 619 (1838); Keller
v. Potomac Elec. Power Co.
261 U. S. 428, 442–443 (1923).
The Framers evidently shared this view. Thus, James Madison took it for granted that Congress could create “a municipal legislature” for the District of Columbia, The Federalist No. 43, at 272–273, something that would otherwise violate the Vesting Clause of Article I, which prohibits Congress from delegating legislative powers to any other entity, Wayman
, 10 Wheat. 1, 42–43 (1825) (Marshall, C. J.). And Justice Story declared, without hesitation, that “[w]hat shall be the form of government established in the territories depends exclusively upon the discretion of congress. Having a right to erect a territorial government, they may confer on it such powers, legislative, judicial, and executive, as they may deem best.” 3 Story §667, at 478.
The upshot is that it is only
when Congress legislates for the Territories and the District that it may lawfully vest judicial power in tribunals that do not conform to Article III. And that, in turn, explains why territorial courts and those of the District—exercising the judicial power of their respective governments—may have their decisions appealed directly here. We said as much in United States
155 U. S. 76, 86 (1894), where we explained that because
Congress’s “power of government . . . over the Territories . . . includes the ultimate executive, legislative, and judicial power, it follows that the judicial action of all inferior courts established by Congress may, in accordance with the Constitution, be subjected to [our] appellate jurisdiction.”
The rule of appellate jurisdiction we recognized in Coe
is identical to the rule we have applied ever since Marbury
: Our appellate jurisdiction is proper only if the underlying decision represents an exercise of judicial power lawfully vested in the tribunal below. Territorial courts and those of the District of Columbia have such power; the CAAF does not, and cannot be given it so long as it fails to comply with Article III. That is reason enough to treat these tribunals differently.[3
The majority responds to this conclusion by suggesting, albeit without much elaboration, that just as the Constitution gives Congress the “exceptional” power to confer non-Article III judicial power on the courts of the Territories and the District of Columbia, the Constitution also gives Congress the “exceptional” power to vest military tribunals with non-Article III judicial power. See ante,
at 15, and n. 7. But the Vesting Clauses are exclusive, which means that the Government’s judicial power is not shared between Article II and Article III. See supra,
at 3–4 (collecting cases); see also, e.g., Arlington
, 569 U. S., at 304–305, n. 4; Ex parte Randolph
, 20 F. Cas. 242, 254 (No. 11,558) (CC Va. 1833) (Marshall, C. J.) (those whose “offices are held at the pleasure of the president . . . are, consequently, incapable of exercising any portion of the judicial power”); Association of American Railroads
, 575 U. S., at ___, ___ (Thomas, J., concurring in judgment) (slip op., at 2, 9); B&B Hardware, Inc.
v. Hargis Industries, Inc.
, 575 U. S. ___, ___ (2015) (Thomas, J., dissenting) (slip op., at 11). And neither the majority nor the concurrence ever explains how the Constitution’s various provisions relating to the military, through their penumbras and emanations, can be said to produce a hybrid executive-judicial power that is nowhere mentioned in the Constitution’s text, that is foreclosed by its structure, and that had gone almost entirely unnoticed before today.
Thus, to make the majority’s argument parallel to the argument regarding the courts of the Territories and the District of Columbia, the majority would have to argue that the military, like the governments of the Territories and the District, is somehow not part of the Federal Government—“not organized under the Constitution, . . . as the organic law,” Benner
, 9 How., at 242—but is a government unto itself. To set out that argument, however, is to expose its weakness, for nothing could be more antithetical to the Constitution and to our traditional understanding of the relationship between the military and civilian authority. The military is not an entity unto itself, separate from the civilian government established by the Constitution. On the contrary, it is part of the Executive Branch of the Government of the United States, and it is under the command of the President, who is given the power of Commander in Chief and is ultimately answer- able to the people.
To appreciate the constitutional status of military tribunals, it is helpful to recall their origins. Courts-martial are older than the Republic, and they have always been understood to be an arm of military command exercising executive power, as opposed to independent courts of law exercising judicial power. Blackstone declared that the court-martial system of the British Empire was based solely on “the necessity of order and discipline” in the military. 1 Blackstone 400. Indeed, Blackstone explained that courts-martial exercise a “discretionary power” to “inflict” “punishment . . . extend[ing] to death itself,” which was “to be guided by the directions of the crown,” in express contrast to “the king’s courts” which dispense “justice according to the laws of the land.” Id.,
at 402, 400. The crown’s “extensive” power over the military—exercised, in part, through courts-martial—was “executive power.” Id.,
at 408. Many others have echoed the point. Thus, “[a]t the time of our separation [from Britain], . . . a court-martial . . . was not a judicial body. Its functions were not judicial functions. It was but an agency of the power of military command to do its bidding.” Ansell, Military Justice, 5 Cornell L. Q. 1, 6 (1919).
When the United States declared its independence and prepared for war with Britain, the leaders of the new Nation were deeply impressed by the British court-martial system and sought to replicate it. John Adams, who in 1776 drafted the Continental Articles for the Government of the Army, was convinced that it would be “in vain” for the American patriots to seek “a more complete system of military discipline” than the existing British model. 3 The Works of John Adams 68 (C. Adams ed. 1851). He and Thomas Jefferson therefore proposed adopting “the British articles of war, totidem verbis
at 68–69. The Continental Congress agreed. Id.,
at 69. And when the Constitution and the Bill of Rights were adopted, no one suggested that this required any alteration of the existing system of military justice. On the contrary, as the majority recounts, the First Congress continued the existing articles of war unchanged. Ante,
at 10. Courts-martial fit effortlessly into the structure of government established by the Constitution. They were instruments of military command. Under the Constitution, the President, as the head of the Executive Branch, was made the Commander in Chief. Art. II, §2. So the role of the courts-martial was to assist the President in the exercise of that command authority.
The ratification of the Constitution and the Bill of Rights did naturally raise some constitutional questions. For example, founding-era courts-martial adjudicated a long list of offenses, some carrying capital punishment, including for crimes involving homicide, assault, and theft. American Articles of War of 1776, §13, in 2 W. Winthrop, Military Law and Precedents 1495–1498 (2d ed. 1896) (Winthrop); see also, e.g.,
American Articles of War of 1806, Arts. 39, 51, 54, in id.,
at 1514–1516. In civilian life, a person charged with similar offenses was entitled to protections, such as trial by jury, that were unavailable in courts-martial. Moreover, the Constitution entitled such persons to judicial
process—which courts-martial, lacking the necessary structural attributes of Article III courts, could not afford. So how could they try serious crimes, including even capital offenses?
The simple answer goes back to the fundamental nature of courts-martial as instruments of command. As Blackstone recognized, the enforcement of military discipline, an essential feature of any effective fighting force, was viewed as an executive
prerogative. It represented the exercise of the power given to the President as the head of the Executive Branch and the Commander in Chief and delegated by him to military commanders. Thus, adjudications by courts-martial are executive decisions; courts-martial are not courts; they do not wield judicial power; and their proceedings are not criminal prosecutions within the meaning of the Constitution. As we explained in Milligan
, the need to maintain military order required those serving in the military to surrender certain rights that they enjoyed in civilian life and to submit to discipline by the military command. Although Milligan
confirmed the general rule that “it is the birthright of every American citizen” to have the Federal Government adjudicate criminal charges against him only in an Article III court, 4 Wall., at 119, 122, we also stated that “[e]very one connected with” “the military or naval service . . . while thus serving, surrenders his right to be tried by the civil courts,” id.,
at 123. That is why the historical evidence strongly suggests that the provisions of the Bill of Rights were not originally understood to apply to courts-martial. See Prakash, The Sweeping Domestic War Powers of Congress, 113 Mich. L. Rev. 1337, 1346 (2015); Wiener, Courts-Martial and the Bill of Rights: The Original Practice II, 72 Harv. L. Rev. 266, 290–291, 294 (1958); see also 1 Winthrop 54, 241, 430, 605; Milligan
at 137–138 (Chase, C. J., concurring in judgment).[4
Due to reforms adopted in the recent past, it is possible today to mistake a military tribunal for a regular court and thus to forget its fundamental nature as an instrument of military discipline, but no one would have made that mistake at the time of the founding and for many years thereafter. Notwithstanding modest reforms in 1874, a court-martial continued into the 20th century to serve “primarily as a function or instrument of the executive department to be used in maintaining discipline in the armed forces. It was therefore not a ‘court,’ as that term is normally used.” Schlueter, The Court-Martial: An Historical Survey, 87 Mil. L. Rev. 129, 150–153, 154–155 (1980). Hence, Colonel Winthrop—whom we have called “the ‘Blackstone of Military Law,’ ” Reid
354 U. S. 1, 19, n. 38 (1957) (plurality opinion)—echoed the original Blackstone in describing courts-martial as “simply instrumentalities of the executive power
, provided by Congress for the President as Commander-in-chief, to aid him in properly commanding the army and navy and enforcing discipline therein.” 1 Winthrop 54.
Indeed, Brigadier General Samuel T. Ansell, who served as acting Judge Advocate General from 1917 to 1919, groused that the American system at the time of World War I was still “basically . . . the British system as it existed at the time of the separation,” and described it as one “arising out of and regulated by the mere power of Military Command rather than Law.” Ansell, 5 Cornell L. Q., at 1. Around the same time, Edmund Morgan—who would later help draft the Uniform Code of Military Justice (UCMJ)—declared it “too clear for argument that the principle at the foundation of the existing system is the supremacy of military command. To maintain that principle, military command dominates and controls the proceeding from its initiation to the final execution of the sentence. While the actual trial has the semblance of a judicial proceeding and is required to be conducted pursuant to the forms of law, . . . [i]n truth and in fact, . . . courts-martial are exactly what Colonel Winthrop has asserted them to be.” Morgan, The Existing Court-Martial System and the Ansell Army Articles, 29 Yale L. J. 52, 66 (1919).
For instance, until 1920 the President and commanding officers could disapprove a court-martial sentence and order that a more severe one be imposed instead, for whatever reason. We twice upheld the constitutionality of this practice, Swaim
v. United States,
165 U. S. 553, 564–566 (1897); Ex parte Reed
100 U. S. 13, 20, 23 (1879), which was widely used during World War I, see Wiener, supra,
at 273. Similarly, until 1920 it was permissible for the same officer to serve as both prosecutor and defense counsel in the same case. West, A History of Command Influence on the Military Judicial System, 18 UCLA L. Rev. 1, 14 (1970). Congress discontinued such practices by statute, but through the end of World War II, courts-martial remained blunt instruments to enforce discipline. Schlueter, supra,
at 157–158; see also West, supra,
at 8, n. 18.
It is precisely because Article II authorizes the President to discipline the military without invoking the judicial power of the United States that that the Constitution has always been understood to permit courts-martial to operate in the manner described above. Thus, in Dynes
, 20 How. 65, 79 (1858), we said that the Constitution makes clear that the Government’s power to “tr[y] and punis[h]” military offenses “is given without any connection between it and the 3d article of the Constitution defining the judicial power of the United States; indeed, that the two powers are entirely independent of each other.”
Moreover, the principle that the Government need not exercise judicial power when it adjudicates military offenses accords with the historical understanding of the meaning of due process. In the 19th century, it was widely believed that the constitutional guarantee of due process imposed the rule that the Government must exercise its judicial power before depriving anyone of a core private right. See generally Nelson, Adjudication in the Political Branches, 107 Colum. L. Rev. 559, 562, 568–569, and n. 42 (2007); e.g., Cohen
, 22 Cal. 293, 318 (1863) (“The terms ‘due process of law’ have a distinct legal signification, clearly securing to every person . . . a judicial trial . . . before he can be deprived of life, liberty, or property”); Murray’s Lessee
v. Hoboken Land & Improvement Co.
, 18 How. 272, 275, 280 (1856) (similar). Yet for most of our history we held that “[t]o those in the military or naval service of the United States the military law is due process.” Reaves
219 U. S. 296, 304 (1911); United States ex rel. French
259 U. S. 326, 335 (1922); see also Milligan
, 4 Wall., at 138 (Chase, C. J., concurring in judgment) (“the power of Congress, in the government of the land and naval forces and of the militia, is not at all affected by the fifth or any other amendment”); Wiener, 72 Harv. L. Rev., at 279 (in the history of courts-martial, “of due process of law as a constitutional concept, there is no trace”); cf. 1 Blackstone 403–404 (explaining the basic due process rights soldiers surrender upon entering the army).
This understanding of the power wielded by military tribunals parallels our current jurisprudence regarding the authority of other Executive Branch entities to adjudicate disputes that affect individual rights. An exercise of judicial power may be necessary for the disposition of private rights, including the rights at stake in a criminal case. B&B Hardware
, 575 U. S., at ___–___ (Thomas, J., dissenting) (slip op., at 12–13); see also Wellness Int’l Network, Ltd.
, 575 U. S. ___, ___ (2015) (Thomas, J., dissenting) (slip op., at 6). But the adjudication of public rights does not demand the exercise of judicial power. Id.,
at ___–___ (slip op., at 6–7). Similarly, enforcement of military discipline is not a function that demands the exercise of judicial power, either. Dynes
; Murray’s Lessee
In short, military offenses are “exceptions” to Article III in the same way that true public rights disputes are exceptions to Article III: the Federal Government can adjudicate either one without exercising its judicial power. This means that when Congress assigns either of these functions to an Executive Branch tribunal—whether the Patent Trial and Appeal Board, the Court of Claims, or the CAAF—that does not imply that the tribunal in question is exercising judicial power. And the point holds notwithstanding the undoubted fidelity to “the rule of law” that such officers bring to their tasks. Ante,
at 11, n. 5. Contrary to the majority’s odd suggestion, acting “in strict compliance with legal rules and principles” is not a uniquely judicial virtue. Ibid.
The most basic duty of the President and his subordinates, after all, is to “take Care that the Laws be faithfully executed
.” Art. II, §3 (emphasis added). Hence, acting with fidelity to law is something every executive officer is charged with doing, but those officers remain executive
officers all the same. For that reason, and in light of the history recounted above, the majority’s suggestion that “[t]he military justice system’s essential character” is “judicial,” and has been “maintained” as such since the “very first Congress,” ante,
at 8, 10, simply does not square with the actual operation of the court-martial system or the consensus view of its place in our constitutional scheme.
In response to this history, the majority tries to enlist Colonel Winthrop as an ally, ante,
at 10–11, and n. 5, but Winthrop had a firmer grasp than the majority on the distinction between functions that can be described as “judicial” in a colloquial sense and functions that represent an exercise of “judicial power” in the constitutional sense. Thus, while Winthrop observed that courts-martial resemble constitutional courts in certain respects, he made those observations “[n]otwithstanding
that the court-martial is only an instrumentality of the executive power having no relation or connection, in law, with the judicial establishments of the country.” 1 Winthrop 61 (emphasis added). Nor was Winthrop the only military commentator who employed such terms casually from time to time. E.g.,
W. De Hart, Observations on Military Law 6 (1859) (describing an officer’s authority to appoint members of a court-martial as “a legislative power”); id.,
at 14 (describing courts-martial as “being clothed with judicial powers”). Indeed, our own Court has frequently described functions as “judicial” in a colloquial sense, despite knowing they are executive in the constitutional sense. E.g., Smelting Co.
104 U. S. 636, 640 (1882) (Land Department officers “exercise a judicial function” although they are “part of the administrative and executive branch of the government”); Murray’s Lessee
, 18 How., at 280–281; Vallandigham
, 1 Wall., at 253; Arlington
, 569 U. S., at 304–305, n. 4.
The majority’s reliance on Attorney General Bates is even weaker. Ante,
at 10. Bates wrote a memo to President Lincoln opining that when the President acts to “approve and confirm the sentence of a court martial,” or to “revis[e] its proceedings,” Congress intended him to “act judicially
—that is, [to] exercise the discretion confided to him within the limits of law.” 11 Op. Atty. Gen. 20–21 (1864). Bates was arguing that a President could not revoke a court-martial sentence after it had been carried into execution. He was describing an implicit limit on the power of the President under the system of military justice established by statute. His reference to certain Presidential actions as “judicial” had nothing to do with judicial review, and in Vallandigham
at 254, we rejected the idea that “the President’s action” in approving a court-martial decision is an exercise of judicial power that we can review directly.
In sum, the majority has done nothing to undermine the overwhelming historical consensus that courts-martial permissibly carry out their functions by exercising executive rather than judicial power.
What remains of the majority’s analysis boils down to the assertion that courts-martial “resemble” conventional courts, ante,
at 9, indeed, that “court-likeness” is the dispositive issue, ante,
at 16 (emphasis deleted).
The first thing to be said in response to this theory is that we have “never adopted a ‘looks like’ test to determine if an adjudication” involves an exercise of judicial power. Oil States
, 584 U. S., at ___ (slip op., at 15). On the contrary, we have frequently repudiated this mode of analysis as utterly inadequate to police separation-of-powers disputes. See, e.g., INS
462 U. S. 919, 953, n. 16 (1983); Arlington
, 117 U. S. Appx., at 699. In fact, of all the cases on which the majority relies, not a single one suggests that our appellate jurisdiction turns on the extent to which the underlying tribunal looks like a court.
In any event, the majority’s “looks like” test fails on its own terms. It is certainly true that today’s military justice system provides many protections for the accused and is staffed by officers who perform their duties diligently, responsibly, and with an appropriate degree of independence. Nothing I say about the current system should be interpreted as denigrating that system or as impugning the dedication, professionalism, and integrity of the offi- cers who serve in it, notwithstanding the majority’s insistence to the contrary. Ante,
at 11, n. 5. As explained above, military officers’ undoubted fidelity to law has nothing to do with the court-martial system’s status under our Constitution. That status is what my point here concerns. And that status has never changed.
Today’s court-martial system was put in place in 1950, when Congress enacted the UCMJ in response to criticism following World War II.
108. Among its innovations, the UCMJ subjected courts-martial to more elaborate procedural rules than ever before. It also created a system of internal appellate tribunals within the military chain of command. Those entities—which we now call the Army, Navy-Marine Corps, Air Force, and Coast Guard Courts of Criminal Appeals and the Court of Appeals for the Armed Forces—did not exist before 1950. Congress augmented this system in 1983, for the first time in American history providing for direct Supreme Court review of certain decisions of the highest military tribunal.
10 U. S. C. §867a;
28 U. S. C. §1259.
Such reforms, as I have indicated, are fully consistent with the President’s overriding duty to “faithfully execut[e]” the laws. Art. II, §3. Hence, even after Congress passed the UCMJ, we continued to recognize that the court-martial system “has always been and continues to be primarily an instrument of discipline,” O’Callahan
395 U. S. 258, 266 (1969), and that “courts-martial are constitutional instruments to carry out congressional and executive will,” Palmore
, 411 U. S., at 404; see also, e.g., Reid
, 354 U. S., at 36 (plurality opinion); United States ex rel. Toth
350 U. S. 11, 17 (1955); Chappell
462 U. S. 296, 300 (1983). For that reason, even if the majority were to begin its analysis in 1950, and to confine it to the CAAF—which the majority has not
done—it would still be incorrect to perceive anything other than executive power at issue here.
An examination of the CAAF confirms this point. The CAAF’s members are appointed by the President for a term of years, and he may remove them for cause, 10 U. S. C. §§942(b), (c), under a standard we have recognized as “very broad,” Bowsher
478 U. S. 714, 729 (1986). These and other provisions of the UCMJ “make clear that [the CAAF] is within the Executive Branch.” Edmond
v. United States
520 U. S. 651, 664, n. 2 (1997). For instance, the CAAF is subject to oversight by the Secretaries of Defense, Homeland Security, and the military departments, and its members must meet annually to discuss their work with members of the military and appointees of the Secretary of Defense.
10 U. S. C. §946. The CAAF must review any case a Judge Advocate General orders it to hear. §867(a)(2). And, contrary to the majority’s assertion, the CAAF’s decisions are not “final (except if we review and reverse them).” Ante
, at 18.
In fact, in the most serious cases that the CAAF reviews—those in which a court-martial imposes a sentence of death or dismissal from the Armed Forces—the CAAF’s judgment cannot be executed until the President, the relevant branch Secretary, or one of his subordinates approves it. 10 U. S. C. §§871(a), (b). That is why the UCMJ provides that “[a]fter [the CAAF] has acted on a case,” the “convening authority [shall] take action in accordance with that decision,” “unless there is to be further action by the President or the Secretary concerned
.” §867(e) (emphasis added). In such cases the “proceedings, findings, and sentences” of the court-martial system—including the CAAF’s “appellate review”—are not final until approved. §876.[5
] Indeed, even if our
Court affirms such a judgment, it cannot be executed until the relevant military authority approves it—a requirement that is not subject to any timeframe or substantive standards. See Manual for Courts-Martial, United States Rule for Courts-Martial 1205(b) (2016).[6
Such revisory powers have always been a feature of the court-martial system. 1 Winthrop 683. And because the UCMJ preserves the chain of command’s historic revisory power over the CAAF’s most significant decisions, there is no way for us to conclude that the CAAF is “judicial” under any known definition of that term. And it should not matter that Ortiz’s own sentence is not subject to approval, just as it did not matter that the Court of Claims decision at issue in Gordon
was not subject to review by the Treasury Secretary. This point is elementary. At least since Hayburn’s Case
, 2 Dall., at 411, n., 413, n., it has been firmly established that it is “radically inconsistent” with the “judicial power” for any court’s judgments, “under any circumstances,” to “be liable to a reversion, or even suspension,” by members of the Executive or Legislative Branches.
Indeed, “[t]he award of execution is a part, and an essential part of every judgment passed by a court exercising judicial power.” Gordon
, 117 U. S. Appx., at 702; Plaut
v. Spendthrift Farm, Inc.
514 U. S. 211, 218–219 (1995).
Simply put, the CAAF’s Executive Branch status is more than a label. The CAAF is what we have always thought it to be: an agent of executive power to aid the Commander in Chief. It follows that our appellate jurisdiction does not permit us to review its decisions directly. That conclusion is unaffected by Congress’s decision to give greater procedural protections to members of the military. Nor would the conclusion be altered if Congress imported into the military justice system additional rights and procedures required in the civilian courts. If Congress wants us to review CAAF decisions, it can convert that tribunal into an Article III court or it can make CAAF decisions reviewable first in a lower federal court—perhaps one of the regional Courts of Appeals or the Federal Circuit—with additional review available here. But as long as the CAAF retains its current status as an Executive Branch entity, Congress cannot give our Court jurisdiction to review its decisions directly.
* * *
The arguments in this case might appear technical, but important interests are at stake. The division between our Court’s original and appellate jurisdiction provoked extended and impassioned debate at the time of the founding. See Amar, Marbury
, Section 13, and the Original Jurisdiction of the Supreme Court, 56 U. Chi. L. Rev. 443, 468–478 (1989). The Framers well understood that the resolution of this dry jurisdictional issue would have practical effects, ibid.
, and in a similar vein, the Court’s holding that the CAAF exercises something akin to judicial power will have unavoidable implications for many important issues that may arise regarding the operation of the military justice system, not to mention judicial review of the many decisions handed down by administrative agencies.
The majority disclaims the latter possibility, ante,
at 19, but its effort is halfhearted at best. In reality there is no relevant distinction, so far as our appellate jurisdiction is concerned, between the court-martial system and the “other adjudicative bodies in the Executive Branch” that the majority tells us not to worry about. Ibid
. The majority cites the “judicial character . . . of the court-martial system,” as well as its “constitutional foundations and history,” ibid.
, but as I have explained, the constitutional foundations, history, and fundamental character of military tribunals show that they are Executive Branch entities that can only permissibly exercise executive power—just like civilian administrative agencies.
The Founders erected a high wall around our original jurisdiction, deliberately confining it to two classes of cases that were unlikely to touch the lives of most people. See The Federalist No. 81, at 488. Today’s decision erodes that wall. Because the Court ignores both the wisdom of the Founders, the clear, consistent teaching of our precedents, and the unambiguous text of the Constitution, I respectfully dissent.