EDITOR'S NOTE: The Supreme Court said Sept. 28 that it would hear a consolidated argument concerning the petitions addressed in this article.

On Monday, as part of its annual “Long Conference,” the Supreme Court will consider three petitions (in each of which I’m counsel of record) raising the question I wrote about back in February: whether an important but little-known 1870 statute that prohibits active-duty military officers from holding most “civil offices” in the federal government applies to the Article I Court of Military Commission Review (CMCR), the intermediate appeals court that sits between the Guantánamo military commissions and the D.C. Circuit. At first blush, this may seem like a hyper-specific (and, thus, not especially cert.-worthy) question. But as I explain in the post that follows, thanks to how the lower courts have ruled in these cases (and how the government has argued them), the three petitions—Dalmazzi v. United States, Cox v. United States, and Ortiz v. United States—are actually about much, much more than the CMCR.

Indeed, if the Court of Appeals for the Armed Forces (CAAF) and the government are correct about the 1870 statute, there would be no legal impediment to appointing active-duty military officers to almost every civil office in the U.S. government—even though, as the Ninth Circuit has explained, the law was intended “to assure civilian preeminence in government, i.e., to prevent the military establishment from insinuating itself into the civil branch of government and thereby growing ‘paramount’ to it.” Thus, although I think it’s clear that CAAF and the government are quite wrong on the merits, the one point on which I hope all can agree is that the issue is of sufficient importance for the future of civil-military relations in this country to warrant the Justices’ attention—and grants of certiorari.

The Civil Office Ban

The 1870 statute is codified as amended today at 10 U.S.C. § 973(b)(2). In particular, it provides that

Except as otherwise authorized by law, an officer to whom this subsection applies may not hold, or exercise the functions of, a civil office in the Government of the United States—(i) that is an elective office; (ii) that requires an appointment by the President by and with the advice and consent of the Senate; or (iii) that is a position in the Executive Schedule under sections 5312 through 5317 of title 5.

As the Office of Legal Counsel (OLC) explained in a previously unreleased 1983 memorandum obtained through FOIA, “[t]he debate in the Senate underscore[d] the intended breadth of the prohibition,” with a special focus on the term “civil office”:

The legislative history . . . indicates that the provision was intended to bar the appointment of regular military officers to any appointive positions in the civil government, irrespective of the importance of the office, the permanence of the appointment, or the likelihood of interference with the officer’s military duties. It contains no suggestion that there should be any distinctions drawn among categories of civil office for which military officers would thenceforth be ineligible. . . . Congress did not intend the applicability of its new prohibition to depend upon the importance of the office, or upon the identity of the civil appointing authority. An active duty military officer was to be barred from ‘any little office his neighbors might elect him to,’ as well as from all levels of appointive office in the civil government, both state and federal.

This understanding of the statute persisted up to—and through—the 1983 OLC memo, a period during which the only amendments Congress made to the statute were technical and/or clarifying. When Congress wanted to authorize specific military officers to hold civil offices, or to identify specific civil offices that could be occupied by active-duty officers, it so provided—in most cases, expressly. Otherwise, the statute generally prohibited active-duty officers from holding any civil office in the state or federal government, full stop. And as OLC concluded in 1983, a “civil office,” for purposes of the civil office ban, was any office “established by statute,” and the duties of which “involve the exercise of ‘some portion of the sovereign power.’”

The breadth of the civil office ban is exactly what led OLC, in the 1983 memo, to conclude that it violated that prohibition for JAG lawyers to be assigned as Special Assistant U.S. Attorneys to prosecute civilian criminal offenses committed on military installations. Indeed, after exhaustively recounting the history of the ban and prior administrative and judicial interpretations thereof, OLC made fairly quick work of the actual question presented, concluding that the position of SAUSA was one created by statute, and which clearly involved the exercise of the “sovereign power” of the United States. After finding no reason to conclude that Congress had affirmatively ratified the practice, the memo concluded by recommending that legislation be pursued to remedy the identified problem—and affirmatively to authorize the service of military officers as SAUSAs.

Congress responded quickly in the Department of Defense Authorization Act for 1984, enacting a series of amendments to the civil office ban in explicit response to the OLC memo. Among other things, the amendments narrowed the scope of prohibited “civil offices” to an office (1) “that is an elective office,” (2) “that requires an appointment by the President by and with the advice and consent of the Senate,” or (3) “that is a position in the Executive Schedule under [5 U.S.C. §§ 5312–17].” The amendments went on specifically to authorize the holding of civil offices by active-duty servicemembers in cases not already prohibited, presumably with an eye toward allowing JAG lawyers to serve as SAUSAs going forward. And to immunize any legal claims arising from the pre-1983 practice, the amendments deleted the requirement that violators be terminated from the military and added a saving clause providing that “Nothing in this subsection shall be construed to invalidate any action undertaken by an officer in furtherance of assigned official duties.” The civil office ban remains on the books in materially similar form today.

The CMCR Litigation

The three petitions on the Supreme Court’s docket for Monday’s Long Conference have their origins in the Military Commissions Act of 2006, as amended in 2009. In addition to creating the CMCR as an Article I “court of record,” the MCA provided two mechanisms for staffing it with judges. Under 10 U.S.C. § 950f(b)(2), appellate military judges in the court-martial system (almost all of whom are military officers) could be “assigned” to the CMCR by the Secretary of Defense. And under 10 U.S.C. § 950f(b)(3), “additional” judges could be “appointed” to the CMCR by the President with the advice and consent of the Senate.

The problem that has provoked the current litigation stems from the nature of the CMCR, which, unlike the Courts of Criminal Appeals (CCAs) in the court-martial system, is the last word of, and is subject to virtually no supervision from, the Executive Branch. Thus, under the Supreme Court’s 1997 ruling in Edmond v. United States, CMCR judges are almost certainly principal officers—and so must be appointed by the President with the advice and consent of the Senate. And although the D.C. Circuit stopped short of issuing a writ of mandamus on this point in its 2015 ruling in In re al-Nashiri, the panel went out of its way to flag the issue and to encourage the political branches to fix it before the matter had to be reached de novo—by appointing to the CMCR those military judges who had previously only been “assigned” thereto, including four military officers then serving as judges on the Army and Air Force CCAs.

By that point, if not sooner, those officers’ service on the CMCR arguably triggered the civil office ban—and should have, under the controlling DoD regulation, required their immediate termination from the military (which, in turn, would have disqualified them from continuing to sit on the CCAs). A CMCR panel that included one of the challenged judges rejected this argument on remand in al-Nashiri, concluding (somewhat summarily) that CMCR judges don’t hold a “civil office” because they exercise a “traditional military function.”

But the real action was over on the court-martial side, where hundreds of servicemembers sought to challenge the continuing participation of CMCR judges on their CCA panels. After an awkward false start in Dalmazzi, CAAF finally reached and resolved the matter in Ortiz, holding that, even if the appointment of these officers to the CMCR triggered § 973(b)(2), the servicemembers were not entitled to a remedy because of § 973(b)(5)—the provision added in the 1983 amendments that provides that “Nothing in this subsection shall be construed to invalidate any action undertaken by an officer in furtherance of assigned official duties.” Thus, CAAF concluded, “Section 973 might prohibit Judge Mitchell from holding office at the USCMCR . . . but nothing in the text suggests that it prohibits Judge Mitchell from carrying out his assigned military duties at the CCA. . . . [T]he current statute neither requires the retirement or discharge of a service member who occupies a prohibited civil office, nor operates to automatically effectuate such termination.”

The Cert.-Stage Briefing

There are two pending sets of cert. petitions on these issues. The first pair—Dalmazzi and Cox—raises the merits questions on top of the procedural issues identified by CAAF and the government in Dalmazzi. And the petition in Ortiz raises the merits without any of Dalmazzi’s procedural baggage. (There are two additional petitions involving Ortiz “trailers” that won’t be on the agenda for Monday’s Long Conference.) Jumping straight to the merits, the government has offered two principal arguments against certiorari—and they’re both merits arguments. First, the government argues, the appointment of these officers to the CMCR did not even trigger the civil office ban. Second, even if it did, CAAF was correct that § 973(b)(5) immunizes military officers from any consequence for accepting an appointment to an unauthorized civil office.

The first argument is easily dealt with—and I’d direct folks interested in more detail to our cert. reply in Ortiz. In a nutshell, the government maintains that (1) CMCR judges don’t hold a civil office; that, (2) even if they do, it isn’t one that requires an appointment by the President and confirmation by the Senate; and that, (3) even if it is, Congress has authorized military officers to hold such an office. On (1), the CMCR is an Article I court of record, not a military court created by the Executive Branch. On OLC’s own long-standing analysis, its judges hold a quintessential “civil office.” The second and third points dovetail, because they are based on conflating the “assignment” of judges to the CMCR under § 950(b)(2) and the “appointment” of judges under § 950(b)(3). As the Supreme Court put it in 1994, this exact terminological distinction “negates any permissible inference that Congress intended that military judges should receive a second appointment, but in a fit of absentmindedness forgot to say so.”

The government’s second argument—and the heart of CAAF’s decision below—is much more serious, albeit no more convincing. It’s a serious argument because, on that reasoning, military officers face no consequence or sanction for assuming an unauthorized civil office, either in their existing military capacity (as CAAF concluded in Ortiz), or in their new office (as the government has now argued in the D.C. Circuit in a CMCR appeal). That view, if left intact, would turn the civil office ban into an unenforceable scrap of paper, rather than an essential part of our civil-military relations.

But it’s unconvincing because it neglects the language and purpose of the rest of § 973(b)(5), which, recall from above, provides that nothing in § 973(b)(2) “should be construed to invalidate any action undertaken by an officer in furtherance of assigned official duties.” The government, like CAAF, focuses on the word “any,” and misses “in furtherance of assigned official duties.” In fact, it’s clear from the legislative history of the 1983 amendments that the purpose of this provision was to insulate JAG lawyers from suffering any sanction for their (according to OLC, unlawful) assignment to serve as Special Assistant AUSAs. Because the 1983 amendments limited unauthorized civil offices going forward to those requiring election or appointment, § 973(b)(5) was necessarily retrospective; there’s no scenario today in which a military officer could hold an unauthorized civil office “in furtherance of assigned official duties.”

Two other provisions of the statute that enacted the 1983 amendments confirm this reading. First, after amending § 973(b) in section 1002(a) of the Department of Defense Authorization Act for FY1984, Congress separately provided in section 1002(b) that

Nothing in [§ 973(b)], as in effect before the date of the enactment of this Act, shall be construed . . . to have terminated the military appointment of an officer of an Armed Force by reason of the acceptance of a civil office, or the exercise of its functions, by that officer in furtherance of assigned official duties.

Thus, in the very next subsection of the same statute, Congress used the same phrase (“in furtherance of assigned official duties”) to unambiguously refer to actions undertaken by military officers in the civil office to which they were assigned without authorization. Second, section 1002(d) of the 1983 act also authorized the appointment of an active-duty military officer to the Red River Compact Commission, and specified that acceptance of that appointment “shall not terminate or otherwise affect such officer’s appointment as a military officer.” This proviso would have been wholly unnecessary if § 973(b)(5) has the meaning claimed by CAAF and the government.

* * *

We often take for granted the principle of civilian control of the military—and the related but distinct corollary disfavoring military control of civilian affairs. Much like the better-known (and eight years younger) Posse Comitatus Act, the civil office ban codified at § 973(b)(2) is an important statutory codification of this larger principle—or, at least, has been for its first 147 years on the books. What’s at stake in the petitions the Supreme Court is set to consider on Monday is not just the fate of the four military officers whose service as CMCR judges has been called into question, but the fate of the civil office ban writ large. Lots of other cases have generated (and will generate) more headlines, but these petitions present what is unquestionably the most important civil-military relations question that the Justices have confronted in decades, no matter how it ought to be resolved.