Available here. Audio expected on Friday.

Excerpt (from pdf page 29):

With regard to how this Court could distinguish and save for another day the question of when Congress could give it direct appellate jurisdiction over an administrative tribunal, I do think the fact that Congress has called the Court of Appeals for the Armed Forces a court of record, that it acts like a court of record, and that it dispenses judgments in criminal cases are all reasons that distinguish it from administrative adjudication.

12 Responses to “Dalmazzi argument transcript”

  1. Vulture says:

    So the CAAF nominee gets in front of Congress and says, “Nope, don’t see any jurisdictional problem at all at CAAF.”  And meanwhile, over in the other building, they are trying to figure out what kind of jurisdiction the CAAF has.  Out of touch, out of left field, out to lunch.

  2. peanut gallery says:

    Vulture – the SG agrees with Vladeck that the Supreme Court has appellate jurisdiction over the CAAF.  The hard conservatives (Thomas, Alito, Gorsuch) might go for the view that there is never Article III jurisdiction, but the rest would never allow a death sentence to be carried out in the US without the possibility of Supreme Court review.  Though I will admit as I type that, I wonder whether they may find the availability of habeas in Article III courts to solve the constitutionality of non-jurisdiction.  

  3. stewie says:

    PG, if you go habeas, then you can’t have those special “we are the military” death penalty rules. You’ll need learned counsel and all of the other “onerous” rules that the civilian DP process has. So I guess maybe that would actually be a positive.

  4. Dew_Process says:

    @ Stewie – Even military commission defendants are entitled to “learned counsel,” (such as it is after the BGen Baker fiasco)!
    What makes no sense here is that Congress expressly conferred appellate jurisdiction on SCOTUS for CAAF decisions via Art. 67a, and I’m not sure why that doesn’t resolve the “jurisdiction” question.
    Lastly, interestingly enough, SCOTUS yesterday granted certiorari in a case Lucia v. SEC, where the issue is:

    Whether administrative law judges of the Securities and Exchange Commission are officers of the United States within the meaning of the appointments clause.

    See LINK .

  5. Chad Fisher says:

    The jurisdictional issue is constitutional v. statutory.  I think the argument is that Congress can’t expand by statute the Supreme Court’s original or appellate jurisdiction.  Appellate jurisdiction is limited to appeals from Article III courts, not an executive body created by Congress.  The amicus brief is available here:

  6. peanut gallery says:

    yes, argument is that congress couldn’t authorize a direct appeal from the labor board to SCOTUS.  Except the labor board isn’t a court and doesn’t affirm capital sentences.  It’s an interesting academic discussion.  Three votes at most for no jurisdiction

  7. Tami a/k/a Princess Leia says:

    But if we do away with the “we get our own rules because we’re military” for DP cases, then we have to do away with the “other rules” for everything else.  Which means an Article 32 that comes back with no PC for a sexual assault case can’t go forward.  And a unanimous verdict will be required in all cases.  Which I would be good with at this point.  Because if you want to make the military system more like the civilian system, then you need to go all the way, know what I’m saying?

  8. stewie says:

    1. There’s learned counsel and there’s “learned counsel.” We get the latter.
    2. I see nothing in the Constitution that says Congress is prohibited from expanding the Supreme Court’s appellate jurisdiction, we know they can limit it. They could get rid of all appellate courts if they wanted to. It says so right there in Article III, section 2. The brief talks about how Congress could just channel CMs through federal appellate courts to get to the Supremes…sure, or, they could just create another court, which is what they did in 1951 when they created CAAF. I get the clever argument, I just think it’s too clever by half.
    3. Tami, we are supposed to look like the civilians as much as is “practicable.” There’s no demand we go all the way. But when it comes to the DP, we ain’t even close.

  9. Constitutional non-Scholar says:

    Thanks Zach for the transcript and Chad for the amicus link—both fascinating, technical reads.  

  10. Dew_Process says:

    I agree with Stewie. Article III, sec. 2, cl. 2, of the Constitution says in relevant part:

    . . . the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations, as the Congress shall make.

    Congress did just that when it enacted Art. 67a. See generally, this Article and Ex Parte McCardle, 74 U.S. 506 (1868) [available HERE], which Stewie alluded to — What appellate jurisdiction Congress gives SCOTUS, they can take away.

  11. Vulture says:

    Peanut G.
    It s been my observation that the only time one hand knows what the other is doing in the MJ system is when one is washing the other.  My post above and those previous on the subject of jurisdiction go to that.
    A literary analogue would be that of Percy, the sadistic guard from “The Green Mile.”  The military is replete with people of that personage pulling its levers.  I too am doubtful that under Roberts this kind of effort will be successful.  But I get edgy when seeing the prospects for sound review under attack.  
    And Peanut G sounds cool when you say it aloud.  Like a prosecutor from Georgia.  Just mho.

  12. Allan says:

    There is an easy answer if congress cannot allow direct appeals from CAAF to SCOTUS: give appellate jurisdiction to one or more article III courts, such as the Fed. Cir.