Here’s a link to the SG’s opposition to the cert petition in Neal v. United States, No. 09-1414, which deals with the new Article 120’s constitutionality.

12 Responses to “SG’s opposition to Neal cert petition”

  1. jerk says:

    interesting footnote on the due process clause

  2. Mike "No Man" Navarre says:

    Interesting FN 7. Heck, SCOTUS could accept the case jsut to discuss FN 7. Though I have to admit I like the admission in the FN from the SG, “Congress therefore possesses broad authority to define military offenses that would not constitute crimes in the civilian world.” Ah yes, Congress defines crimes, so there woiuld be a non-delegation problem with the President defining elements of offenses, no?

  3. John O'Connor says:


  4. John O'Connor says:

    Footnote 7 is a recitation of black letter law. I don’t really see anything in there that is a particularly controversial statement of the law. Some might disagree as to what the law should be, but the statements in footnote 7 are true to existing Supreme Court precedent (other than misspelling “court-martial” in the footnote as “court marital”).

  5. RY says:

    IMHO, Prather and Medina will make better cases for SCOTUS cert. The fact that Neal is interlocutory would seem to be a major point against cert. On the other hand, maybe the supremes could help us all understand 120 better if they took up Neal.

  6. Not a Delta Alpha says:

    Have you read even one S.Ct. case discussing the non-delegation doctrine? I can’t believe you have…if so, you’d know it’s a dead letter.

  7. Mike "No Man" Navarre says:

    NADA—I’ve probably read every non-delegation doctrine case–both of them. Thanks. There’s probably one you have read too, Loving v. United States, 517 U. S. 748, 771 (1996). It talks about an interesting non-delegation issue that CAAF also discussed in US v. Curtis. Take a look at Curtis again (admittedly in dicta) if you think there isn’t a plausible non-delegation issue in the military justice system.

  8. John O'Connor says:

    I’ll go with I think there isn’t a plausible non-delegation issue in the military justice system. If anything, Loving undercut Curtis to the extent Curtis could be read to the contrary.

  9. Mike "No Man" Navarre says:

    JO’C: I reject your reliance on that portion of Loving which has been overruled.

  10. John O'Connor says:

    Unless there’s some super-secret Ultra-Supreme Court, I don’t believe Loving has been overruled, and I think the Justices would be equally surprised to learn of such a development.

    [Note: Off-line, The No Man advised that Ring v. Arizona is what, in his view, overrules Loving as it pertains to the military justice system, which I can only assume is an assertion made in jest].

  11. Mike "No Man" Navarre says:

    JO’C–No jest. Rather serious. Probably tops cert. petitions to watch if it ever gets preserved and filed (now that’s a comment in jest!)

  12. John O'Connor says:

    Then you should be jesting.