U.S. v. Janssen, 73 M.J. 221

First Principles: Constitutional Matters: Generally

1. military officers serving as trial and appellate military judges are not appointed in violation of the Appointments Clause because Congress has not, by statute, required a separate judicial appointment for them, and their judicial duties are not so distinct from their duties as military officers as to require separate appointments by the force of the Appointments Clause; their appointments as officers by the President, upon Senate advice and consent, suffice to satisfy the requirements of the clause
2. civilian appellate military judges are “inferior Officers” within the meaning of the Appointments Clause of the Constitution, and the President shall nominate, and by and with the advice and consent of the Senate, shall appoint them; however, Congress may by law vest the appointment of such inferior officers in heads of departments
3. Congress has not “by law” specifically vested the Secretary of Defense, the head of a department, with the authority to appoint a civilian as an appellate military judge under the Appointments Clause; general, government-wide “housekeeping” statutes did not provide the necessary authority
4. while Congress certainly has the authority under the Appointments Clause to authorize the Secretary of Defense to appoint civilian appellate military judges, either through general legislation granting authority to appoint inferior officers or specific legislation granting authority to appoint civilian appellate military judges, it has not done so; as such, the appointment of a civilian appellate military judge was required to be done by the President with Senate advice and consent, which is the default method for the appointments of inferior officers; where this was not done, the appointment of a civilian appellate military judge by the Secretary of Defense was invalid and of no effect
5. although the de facto officer doctrine confers validity upon acts performed by a person acting under the color of official title even though it is later discovered that the legality of his appointment to office is deficient, in this case, where the Secretary of Defense invalidly appointed a civilian appellate military judge to the court of criminal appeals, the de facto officer doctrine was not applied because petitioner challenged the composition of the court while his case was still on direct review; applying the doctrine in such a case would create a disincentive to raise Appointments Clause challenges with respect to questionable judicial appointments

Trial Stages: Appeals: Courts of Criminal Appeals › Generally

1. military officers serving as trial and appellate military judges are not appointed in violation of the Appointments Clause because Congress has not, by statute, required a separate judicial appointment for them, and their judicial duties are not so distinct from their duties as military officers as to require separate appointments by the force of the Appointments Clause; their appointments as officers by the President, upon Senate advice and consent, suffice to satisfy the requirements of the clause
2. civilian appellate military judges are “inferior Officers” within the meaning of the Appointments Clause of the Constitution, and the President shall nominate, and by and with the advice and consent of the Senate, shall appoint them; however, Congress may by law vest the appointment of such inferior officers in heads of departments
3. Congress has not “by law” specifically vested the Secretary of Defense, the head of a department, with the authority to appoint a civilian as an appellate military judge under the Appointments Clause; general, government-wide “housekeeping” statutes did not provide the necessary authority
4. while Congress certainly has the authority under the Appointments Clause to authorize the Secretary of Defense to appoint civilian appellate military judges, either through general legislation granting authority to appoint inferior officers or specific legislation granting authority to appoint civilian appellate military judges, it has not done so; as such, the appointment of a civilian appellate military judge was required to be done by the President with Senate advice and consent, which is the default method for the appointments of inferior officers; where this was not done, the appointment of a civilian appellate military judge by the Secretary of Defense was invalid and of no effect
5. although the de facto officer doctrine confers validity upon acts performed by a person acting under the color of official title even though it is later discovered that the legality of his appointment to office is deficient, in this case, where the Secretary of Defense invalidly appointed a civilian appellate military judge to the court of criminal appeals, the de facto officer doctrine was not applied because petitioner challenged the composition of the court while his case was still on direct review; applying the doctrine in such a case would create a disincentive to raise Appointments Clause challenges with respect to questionable judicial appointments

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. whether Congress has “by law” vested the Secretary of Defense, the head of a department, with the authority to appoint a civilian as an appellate military judge under the Appointments Clause is a question of law that an appellate court reviews de novo