Here’s a link to SCOTUSblog’s analysis of today’s oral argument at the Supreme Court in Dalmazzi.


[Assistant to the solicitor general Brian H.] Fletcher sat down without using all of his 30 minutes of argument time, having faced relatively few questions about the merits of the service members’ challenge. Assuming that the justices get that far, that’s a good sign for the government. But Fletcher faced more, and tougher, questions about whether the court has the authority to hear the service members’ cases at all. The government and the service members agree that it does, but a University of Virginia law professor, Aditya Bamzai, argued today that it does not. Bamzai told the justices that the court can only review decisions by the U.S. Court of Appeals for the Armed Forces (CAAF), which heard the service members’ appeals from the CCAs, if those decisions are “appeals.” But because the CAAF is part of the executive branch, he concludes, it does not exercise real judicial power.

The justices struggled with the broader implications of Bamzai’s assertion throughout the oral argument. Breyer outlined the problem in a question for Vladeck, telling him that there are “many adjudicatory bodies in the executive branch”: How, he asked, do we draw a line that will allow us to hear appeals from the CAAF, but not from other entities such as the National Labor Relations Board or the Securities and Exchange Commission? There were no clear-cut answers to Breyer’s question; a decision on both the jurisdictional issue and, if necessary, the dual-officeholding ban is expected by summer.

11 Responses to “SCOTUSblog posts Dalmazzi argument recap”

  1. stewie says:

    Sorry death penalty recipients…no Supreme Court appeal for you…your case wasn’t reviewed by a “real court.”

  2. scotus spectator says:

    After Mr. Bamzai’s ten minutes expired, Justice Roberts told him to continue, and Mr. Bamzai’s argument continued for a couple more minutes.  That exchange, coupled with lots of questions from the Justices on jurisdiction, makes me wonder if they didn’t grant on Dalmazzi simply to decide whether or not CAAF is a real court.

  3. A Random JAG says:

    Finding that CAAF, as part of the executive branch, doesn’t have real judicial power would be huge.  By implication, I submit that it would mean that CAAF had no jurisdiction to decide the constitutional issue in Prather.  

  4. Michael Korte says:

    I’ve said it before and I’ll say it again, if C.A.A.F. isn’t a real court, I want my Metro card refilled. 

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

    If CAAF isn’t a “real” court, does that make us not “real” lawyers?

  6. Dew_Process says:

    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.  Who’s making the popcorn?  This could get interesting!

  7. Bill Cassara says:

    Crap. So all of the times I argued before CAAF were a fraud?  I wasn’t really arguing in court?  Damn.

  8. stewie says:

    Apparently you were just arguing to executive branch officials wearing cool robes for no reason.

  9. Bill Cassara says:

    Stewie: Looks like I need to rewrite my resume. 

  10. Christian Deichert says:

    Assuming arguendo that the court agrees with Bamzai’s grad course paper gone wrong, what’s the fix?  Did he propose one?  (If not, clearly he’s never worked for a commander, because we all should know that one does not bring a problem to a commander to solve, one brings an issue and potential COAs to address it.)  New legislation making CAAF an Article III court?  Tossing out death penalty cases?

  11. Wahoowa says:

    The fix is obvious: either have appeals from CAAF go to some Article III court before SCOTUS, or make CAAF an Article III court (and, in fact, both options are mentioned at oral argument IIRC from reading the transcript yesterday).
    I’m surprised at the derision displayed here (and in the previous comment thread). The argument is pretty straightforward and, frankly, a pretty easy one to make from an originalist/historical perspective. The difficulty is a couple old cases (discussed at length in oral argument) regarding territorial courts and the DC Court of Appeals (NOT the DC Circuit, mind you) that came out the other way. Ultimately, I don’t think the efforts to distinguish those cases are particularly successful. But, nonetheless, the court could always decided to overrule them. Ultimately, that probably doesn’t happen. But jurisdiction ended up being THE issue at oral argument–the merits took a backseat. And the justices who seemed intrigued by the issue were not necessarily the ones you’d expect; the argument is tailor-made for Thomas, Gorsuch, and Alito but, with the caveat that oral argument is no guarantee, Breyer and Kennedy seemed to be the ones most likely to accept it.
    A quick comment to A Random JAG: executive branch agencies decide constitutional issues all the time, including through administrative courts. They’re simply subject to later review/challenge by an Article III body. Not sure how the conclusion that CAAF isn’t a true “court” has any bearing on that.