What is the President doing when he enumerates specific offenses under Article 134? Here’s what I always thought the answer was: exercising his Article 56 authority to prescribe maximum limits for specific offenses. Article 134 allows violations to be “punished at the discretion of that court.” Every enumerated Article 134 offense includes the element that the offense is prejudicial to good order and discipline or service discrediting. (This is usually called the “terminal element,” though it isn’t invariably listed last among the elements.) As soon as that terminal element is violated, the congressionally prescribed element for an Article 134 offense is satisfied. And violations of Article 134’s clauses (1) and (2) can be charged without fitting within any of the presidentially enumerated Article 134 offenses. See MCM Pt. IV, ¶60.c(6)(c) (2008 ed.). What the presidentially designated Article 134 elements really do is place the offense within a particular punishment category. So, for example, an act of burning with intent to defraud is an Article 134 violation as long as the terminal element is proven, regardless of whether the first two elements spelled out in ¶ 67 are satisfied. But what satisfying those elements does is take the offense out of the general disorder punishment category, see ¶ 73, and up the prescribed maximum punishment to a DD, total forfeitures, and confinement for 10 years. If I’m right about that understanding, then there’s simply no issue of the President prescribing substantive law when he sets out elements for specific Article 134 offenses; rather, he’s executing his delegated authority under Article 56, which has been endorsed by the Supreme Court. See Loving v. United States, 517 U.S. 748, 769 (1996).
I’ll be interested to hear what others think of this theory, but I’m particularly interested in the No Man’s views, since he is the Ring King and the Ambassador from Apprendiland.
No Man’s Flailing on CAAFlog’s hook:
I agree that the President’s power to create findings of fact that increase an accused’s maximum punishment for non-capital offenses has been characterized as derivative of the power delegated to the President in Art. 56, UCMJ.
The Court of Military Appeals analyzed the President’s actions in creating levels of non-capital offenses as early as 1990 in United States v. Lingenfelter, 30 M.J. 302 (C.M.A. 1990). In Lingenfelter, the Court stated that the elements of the offense of drunk and reckless driving are those specified in the statute alone and not the aggravating factors set forth in the Manual for Courts-Martial, an executive branch regulation. The offense is complete without the additional “levels” specified in the Manual for Courts-Martial regarding whether the drunken driving resulted in injury to persons. The statute does not have an injury requirement. However, the President, through the Manual for Courts-Martial, increased the maximum punishment for the offense of basic “drunk driving” when the drunk driving resulted in personal injury. The Court of Military Appeals described the President’s action as “merely establishing a hierarchy of maximum sentences within the statutory offense of drunk or reckless driving.” The Court differentiated the Manual’s “level” as merely a sentencing consideration and not an element of the offense. The Court stated, “[T]he casual reader may be misled to think that this additional provision is an element of the offense. The proper relationships were perhaps more clearly reflected in the 1951 and 1969 Manuals, where the provision was simply listed in the Table of Punishments.” The Court characterized the Manual’s “level” as a “sentence escalating ‘element.’” Further, the Court noted that though historically these sentence elements were treated as offense elements under military practice, this treatment was unnecessary and a windfall to the accused not required under the Constitution. Id. at 306 & n.3 (citing McMillan v. Pennsylvania, 477 U.S. 79 (1986); Patterson v. New York, 432 U.S. 197 (1977))
Such an analysis parallels the Supreme Court’s reasoning in Loving v. United States, holding that Art. 18, 36, and 56 allowed the President to establish capital sentencing aggravating factors. While the Loving Court said that there is “no absolute rule . . . against Congress’ delegation of authority to define criminal punishments” in the military, Loving , 517 U.S. at 768 (emphasis added), the historical prohibition of the President’s power to define the crime is equally as absolute. The framers feared the unchecked power of the executive branch to regulate standing armies, Loving, 517 U.S. at 765-66, therfore, they ensured that the executive, as the Commander-in-Chief of the Armed Forces, would not have unbridled authority to impose summary and severe punishments. Thus, “[c]ourts martial derive their jurisdiction and are regulated . . . by an act of Congress, in which the crimes which may be committed, the manner of charging the accused, and of trial, and the punishments which may be inflicted, are expressed in terms.” Dynes v. Hoover, 61 U.S. 65, 79 (1857)
The President and Congress have disregarded that fundamental separation in allowing the President to create the “functional equivalent of an element” of military a offense. See Apprendi, 530 U.S. at 494. After Apprendi, the President’s creation of enumerated offenses should, under the separation of powers doctrine, not be guided by whether the President’s action “calls [the enumerated] elements of the offense, sentencing factors or Mary Jane.” Ring v. Arizona, 536 U.S. at 610 (Scalia, J., concurring). The inquiry is one of effect, not form. Blakely v. Washington addressed a situation similar the President’s creation of enumerated offenses, where findings of fact increased the punishment beyond the normal sentencing range, but still below the statutory maximum. Blakely defined the maximum punishment as the “maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.”
The President in enumerating offenses under Art. 134 has added facts (elements) that increase a military accused’s maximum punishment beyond the punishment based on the findings of fact for a general disorder. If the President had merely assigned types of punishments to existing elements of Art. 134, UCMJ, there would be no violation of the non-delegation priniciple. That is exactly the type of act contemplated in Art. 56, UCMJ, under the President’s power over military punishments. See Loving, 517 U.S. at 768. However, by creating new findings of fact that increased the maximum punishment for the enumerated offense, beyond the Congressional language, the non-delegation principle was implicated. These elements must meet the same constitutional requirements as other elements of the offense, including legislative creation under the separation of powers doctrine.