Just filed and available here.

The summary of the argument includes:

I. The President’s appointments of Judges Burton, Celtnieks, Herring, and Mitchell to the CMCR did not violate 10 U.S.C. 973(b). And even if they did, petitioners would not be entitled to relief from the CCA decisions affirming their convictions because Congress specifically provided that Section 973(b) does not invalidate the subsequent actions of a military officer who accepts a covered civil office. . .

II. A military officer’s simultaneous service on a CCA and the CMCR does not raise questions under the Appointments Clause or the Commander-in-Chief Clause. Petitioners identify nothing in the text or history of the Appointments Clause, or in this Court’s decisions, to support their assertion that the Clause imposes an ill-defined “incompatibility” or “incongruity” limitation on the circumstances in which an individual may hold two separate federal offices. And even if such a limit existed, it would not be implicated here. A military judge’s simultaneous service on a CCA and the CMCR is no more “incongruous” or “incompatible” than a district judge’s service on the Foreign Intelligence Surveillance Court or a circuit judge’s service on a three-judge district court. And petitioners’ argument that the Commander-in-Chief Clause does not permit the restrictions on removal that petitioners assume are triggered by presidential appointment to the CMCR rests on the erroneous premise that Judges Burton, Celtnieks, Herring, and Mitchell are not subject to 10 U.S.C. 949b(b)(4), the statutory provision governing reassignment of military judges serving on the CMCR.

III. This Court lacks jurisdiction in Dalmazzi and Cox, but has jurisdiction in Ortiz. . . .

IV. If the Court concludes that it has jurisdiction in Dalmazzi and Cox, it should not disturb the CAAF’s discretionary denials of review. The CAAF did not abuse its discretion in vacating its grants of review and denying the petitions in those cases when it discovered that the questions it had agreed to decide were not squarely presented.

One Response to “The Solicitor General’s brief in Dalmazzi”

  1. Muad'Dib says:

    Seems about right. 10 USC 973 doesn’t provide for the invalidation or automatic termination of a military commission, and it even explicitly provides that it can’t be used to invalidate an officer’s actions. As for the second issue, the defense’s Appointments Clause argument never amounted to anything more than a hasty smoke grenade. There’s just no substance there. It’s barely coherent and is totally untethered to the actual language, case law, or purpose of the Appointments Clause. 
     
    I don’t know why this was granted, frankly. Maybe SCOTUS wants to address the scope of its jurisdiction to review CAAF? Can anyone enlighten me?