U.S. v. Lane, 64 M.J. 1

First Principles: Constitutional Matters: Generally

1. the Incompatibility Clause of the Constitution, a provision essential to the structural integrity of the Constitution, provides that no person holding any office under the United States, shall be a member of either House during his continuance in office
2. the concern of the Framers of the Constitution with maintenance of the separation of powers is found in the so-called Ineligibility and Incompatibility Clauses contained in the Constitution; these provisions provide the context for interpreting the Appointments Clause of the Constitution
3. the federal government positions to which the term “Officers of the United States” in the Appointments Clause of the Constitution pertains includes all persons who can be said to hold an office under the Government; any appointee exercising significant authority pursuant to the laws of the United States is an Officer of the United States under the Appointments Clause
4. military appellate judges are Officers of the United States who must be appointed pursuant to the Appointments Clause; presidential nomination and Senate confirmation of a person as a military officer satisfy the Appointments Clause with respect to the assignment of such an officer to the military judiciary
5. through the limitation of the Incompatibility Clause, the Constitution prohibits Members of Congress from holding other offices
6. the Incompatibility Clause plays a vital role in the constitutional scheme by reinforcing the separation of powers; the Incompatibility Principle has become one of the five great distinguishing structural features of the constitutional system, along with checks and balances, separation of powers, bicameralism, and federalism
7. the term “office” in the context of the Incompatibility Clause is given the same meaning as that term is given in the Appointments Clause
8. the Incompatibility Clause of the Constitution, which prohibits a Member of Congress from holding any office under the United States, precludes a Member of Congress from serving as an appellate judge on a service court of criminal appeals because such a position is an office that must be filled by an Officer of United States
9. the structure of the Constitution provides for separate and shared powers among the executive, legislative, and judicial branches; one of the purposes served by the separation of powers is that a military accused will not be judged by a Member of Congress; service by a Member of Congress performing independent judicial functions runs afoul of the fundamental constitutional principle of separation of powers; military status simply is not an issue; the foregoing principle applies equally to all who would act as judges on a court of criminal appeals, whether as a civilian or as a military officer

Trial Stages: Appeals: Courts of Criminal Appeals › Generally

1. the assignment of a Member of Congress to be a judge on the Air Force Court of Criminal Appeals violated the Incompatibility Clause of the Constitution; as a result, the panel of the court of criminal appeals was not properly constituted; only a properly constituted appellate panel can complete the review required by Article 66, UCMJ; therefore, the unconstitutional assignment invalidated the lower court’s proceedings and decision

Miscellaneous Matters: Judicial Review: Standing

1. appellant has standing on direct review to challenge the composition of the Air Force Court of Criminal Appeals on the grounds that the assignment of a judge to his appellate panel, who was a United States Senator and also a lieutenant colonel in the Air Force Standby Reserve, violated the Incompatibility Clause of the Constitution which prohibits Members of Congress from holding any office under the United States
2. one who makes a challenge to the constitutional validity of the appointment of an officer who adjudicates his case is entitled to a decision on the merits of the question and whatever relief may be appropriate if a violation indeed occurred; the constitutionality of the assignment of a person to serve as a judge on a Court of Criminal Appeals is not an abstract question; the fact that a Member of Congress sat as a judge in this criminal case relates to the rights and liberties of a specific individual, appellant; the direct liberty implications for appellant make this case distinct from other abstract circumstances where the Incompatibility Clause might be implicated; appellant is entitled to a decision as to the constitutional validity of the appointment of an officer who adjudicated his case