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.