United States v. Lane

UNITED STATES, Appellee

v.

Charles M. LANE, Airman First Class
U.S. Air Force, Appellant

No. 05-0260

Crim. App. No. S30339

United States Court of Appeals for the Armed Forces

Argued November 8, 2005

Decided September 20, 2006

GIERKE, C.J., delivered the opinion of the Court, in which
EFFRON, BAKER, and ERDMANN, JJ., joined. CRAWFORD, J., filed a
dissenting opinion.

Counsel

For Appellant: Major Andrew S. Williams (argued); Colonel
Carlos L. McDade and Lieutenant Colonel Craig S. Cook (on
brief); Lieutenant Colonel Mark R. Strickland.

For Appellee: Major Michelle M. Lindo McCluer (argued);
Lieutenant Colonel Robert V. Combs, Lieutenant Colonel Gary F.
Spencer, and Major John C. Johnson (on brief); Captain C. Taylor
Smith.

Amici Curiae for Appellant: Arthur W. S. Duff, Esq. (argued);
Jonathan D. Hacker, Esq., Garrett W. Wotkyns, Esq., Arthur B.
Spitzer, Esq., Eugene R. Fidell, Esq., Stephen A. Saltzburg,
Esq., and J. Abraham Sutherland (law student)(on brief) – for
the American Civil Liberties Union of the National Capital Area
and the National Institute of Military Justice.

Military Judge: Gregory E. Pavlik

This opinion is subject to revision before final publication.
United States v. Lane, No. 05-0260/AF

Chief Judge GIERKE delivered the opinion of the Court.

Pursuant to Article 66(a), Uniform Code of Military Justice

(UCMJ),1 the Judge Advocate General of the Air Force assigns

appellate judges to the United States Air Force Court of

Criminal Appeals.2 The Judge Advocate General of the Air Force

assigned a Member of Congress, Senator Lindsey O. Graham, who

was also a lieutenant colonel in the United States Air Force

Standby Reserve at the time, as an appellate judge on the Air

Force Court of Criminal Appeals. At the lower court, Appellant

unsuccessfully challenged Senator Graham’s sitting on the panel

that affirmed his conviction and sentence.3

The Incompatibility Clause of the Constitution provides

that “no Person holding any Office under the United States,

shall be a Member of either House during his Continuance in

Office.”4 The issue before this Court is whether the assignment

of a Member of Congress to the Air Force Court of Criminal

Appeals is proper under the Constitution.5 For the reasons set

forth below, we conclude that a Member of Congress may not hold

the office of appellate judge on a Court of Criminal Appeals.

1
10 U.S.C. § 866(a) (2000).
2
Pursuant to Article 66(a), UCMJ, the Judge Advocate General of
each service (Air Force, Army, Coast Guard, and Navy) has
established a service Court of Criminal Appeals.
3
United States v. Lane, 60 M.J. 781 (A.F. Ct. Crim. App. 2004).
4
U.S. Const. art. I, § 6, cl. 2.
5
Appellant expressly stated that he is not challenging Senator
Graham’s service in the military in general or his status as a
Standby Reservist in particular, and we do not address those
issues.

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FACTS

At a special court-martial composed of a military judge

sitting alone, Appellant was convicted, pursuant to his plea, of

wrongful use of cocaine, in violation of Article 112a, UCMJ.6

The military judge sentenced Appellant to a bad-conduct

discharge, confinement for 135 days, and reduction to the lowest

enlisted grade. The convening authority approved the sentence

after modifying the confinement to a period of four months

pursuant to a pretrial agreement.

The Air Force Court of Criminal Appeals reviewed the case

pursuant to Article 66(b), UCMJ.7 Under Article 66(c), UCMJ, the

Court of Criminal Appeals conducts a de novo review of the

record in such cases for legal sufficiency, factual sufficiency,

and sentence appropriateness.8

Senator Graham served on the panel of the Court of Criminal

Appeals that reviewed Appellant’s case. Senator Graham is an

officer in the United States Air Force Standby Reserve.9

Pursuant to applicable regulations, he has been designated as a

“key employee” assigned to the Active Status List within the

Standby Reserve, where he is eligible to participate in reserve

6
10 U.S.C. § 912a (2000).
7
Article 66(b), UCMJ, provides for review by a court of criminal
appeals for cases in which the sentence extends to death, a
punitive separation, or confinement for one year or more.
8
See United States v. Cole, 31 M.J. 270, 272 (C.M.A.
1990)(referring to the Article 66(c), UCMJ, power of the lower
court as an “awesome, plenary, de novo power of review”).
9
See 10 U.S.C. §§ 10141(a), 12301(a), 12306 (2000).

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training activities without pay, earn retirement points, and

compete for promotion.10 Appellant moved to disqualify Judge

Graham on several grounds, citing, inter alia, the

Incompatibility Clause of the Constitution of the United States.

The lower court denied the motion and affirmed the findings and

the sentence.11 Appellant has renewed his challenge to Judge

Graham in his appeal to this Court.

I. STANDING

Initially, we must address whether Appellant has standing

to assert this claim of constitutional error. The present case

is similar to Ryder v. United States,12 in which the Supreme

Court upheld a military petitioner’s right to challenge “the

composition of the Coast Guard Court of Military Review while

his case was pending before that court on direct review.”13 In

Ryder, the petitioner presented a constitutional claim based on

the Appointments Clause of Article II of the Constitution.14 The

10
Dep’t of Defense Dir. (DODD) 1200.7, Screening the Ready
Reserve Enclosure 2 (Nov. 18, 1999); DODD 1235.9, Management of
the Standby Reserve 4.2.1 (Feb. 10, 1998).
11
Lane, 60 M.J. at 794.
12
515 U.S. 177 (1995).
13
Id. at 182. The Coast Guard Court of Military Review is now
the Coast Guard Court of Criminal Appeals.
14
Id. at 180. The relevant provision of the Appointments Clause
states:

[The President] shall nominate, and by and with the Advice
and Consent of the Senate, shall appoint Ambassadors, other
public Ministers and Consuls, Judges of the supreme Court,
and all other Officers of the United States, whose
Appointments are not herein otherwise provided for, and

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Supreme Court stated, “[O]ne who makes a . . . challenge to the

constitutional validity of the appointment of an officer who

adjudicates his case is entitled to a decision on the merits of

the question and whatever relief may be appropriate if a

violation indeed occurred.”15 In the present case, as in Ryder,

Appellant also has raised a jurisdictional objection that the

lower court is not properly constituted. Appellant’s position

arises from the assignment of a Member of Congress as an

appellate judge on the lower court and his participation on the

panel that decided Appellant’s case. We conclude Appellant has

standing under Ryder.

The Government contends that Appellant lacks standing to

challenge the panel in his case because he has not suffered an

injury to a legally protected interest. Contrary to the

Government’s assertion, the constitutionality of the assignment

of a person to serve as a judge on a Court of Criminal Appeals

is not an abstract question. The fact that a Member of Congress

sat as a judge in this criminal case relates to the rights and

liberties of a specific individual, Appellant. The direct

liberty implications for Appellant make this case distinct from

which shall be established by Law: but the Congress may by
Law vest the Appointment of such inferior Officers, as they
think proper, in the President alone, in the Courts of Law,
or in the Heads of Departments.

U.S. Const. art. II, § 2, cl. 2.
15
Ryder, 515 U.S. at 182-83.

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other abstract circumstances where the Incompatibility Clause

might be implicated. Consistent with the Supreme Court position

in Ryder, Appellant is entitled to a decision as to the

constitutional validity of the appointment of an officer who

adjudicated his case.16

The Government also contends that Appellant lacks standing

because Incompatibility Clause determinations are the sole

province of Congress. In support of this contention, the

Government asserts that the Incompatibility Clause constitutes

qualification for congressional service, not a disqualification

from executive branch service, making it a nonjusticiable

political question. The Government further asserts that, in any

case, Congress would not find a violation because service in the

Standby Reserve does not make a person an officer of the United

States.

The issue before us is not whether the duties of a person

in the Standby Reserve, in the abstract, are of sufficient

significance to constitute an office of the United States for

purposes of qualification to serve as a Member of Congress under

the Incompatibility Clause. The issue before us is whether a

criminal conviction and sentence, which by statute can be

sustained only by an affirmative appellate decision, may be

16
See id.

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reviewed by an appellate judge who simultaneously serves as a

Member of Congress.

Under the Government’s theory of standing, no citizen could

cite the Incompatibility Clause in challenging a governmental

decision bearing directly on the life, liberty, or property of

the citizen. Members of Congress could serve as the heads of

departments and regulatory agencies, simultaneously

participating in the passage of legislation and in the execution

of the laws. A person against whom such a law was executed,

under the Government’s theory, could not challenge the

participation of Members of Congress in the enforcement and

adjudication of rights under such laws. Under such a regime,

the structural integrity of the Constitution would rest on a

gravely weakened foundation. We reject all of the Government’s

arguments that Appellant lacks standing and proceed to the

merits of this appeal.

II. BACKGROUND

A. SUPREME COURT PRECEDENT REAFFIRMING THE PRINCIPLE OF
SEPARATION OF POWERS

In Buckley v. Valeo,17 the Supreme Court emphasized the

significance of the bedrock constitutional principle of

separation of powers as this principle applies to the

appointment and assignment of persons holding federal office.

17
424 U.S. 1 (1976).

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In Buckley, the plaintiffs challenged the appointment of the

Federal Election Commission members on separation of powers

grounds. “The Court agreed with them and held that the

appointment of four members of the commission by Congress,

rather than the President, violated the Appointments Clause.”18

In doing so, the Supreme Court reaffirmed the vital role of

the separation of powers constitutional principle stating that

“The principle of separation of powers was not simply an

abstract generalization in the minds of the Framers: it was

woven into the document that they drafted in Philadelphia in the

summer of 1787.”19

In Buckley, the Supreme Court also analyzed and relied on

related constitutional threads “woven into the document” tied to

the principle of separation of powers –- the Appointments Clause

and the Ineligibility and Incompatibility Clauses.20

Importantly, the Supreme Court explained the close relationship

among these clauses.21

After reviewing the primary sources of legislative,

executive, and judicial powers, the Supreme Court observed:

18
Ryder, 515 U.S. at 183 (explaining Buckley, 424 U.S. at 143).
19
Buckley, 424 U.S. at 124.
20
Id. The Ineligibility Clause provides: “No Senator or
Representative shall, during the Time for which he was elected,
be appointed to any civil Office under the Authority of the
United States, which shall have been created, or the Emoluments
whereof shall have been [i]ncreased during such time . . . .”
U.S. Const. art. I, § 6, cl. 2.
21
Buckley, 424 U.S. at 124.

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“The further concern of the Framers of the Constitution with

maintenance of the separation of powers is found in the so-

called ‘Ineligibility’ and ‘Incompatibility’ Clauses contained

in Art. I, § 6 . . . .”22 The Supreme Court observed that these

“cognate provisions” provided the context for interpreting the

Appointments Clause of the Constitution.23

The Supreme Court in Buckley generally defined and thereby

identified those federal government positions to which the

Appointments Clause pertains. The Supreme Court observed that

the term “Officers of the United States” includes “all persons

who can be said to hold an office under the Government.”24 The

Supreme Court also stated that “any appointee exercising

significant authority pursuant to the laws of the United States

is an ‘Officer of the United States’” under the Appointments

Clause.25

B. SUPREME COURT PRECEDENT APPLYING THESE PRINCIPLES TO JUDGES
APPOINTED TO A COURT OF CRIMINAL APPEALS

The Supreme Court applied these principles in a trilogy of

Appointments Clause cases involving the assignment of persons to

sit as judges on the Courts of Criminal Appeals.26 In so doing,

22
Id.
23
Id.
24
Id. at 125-26 (quoting United States v. Germaine, 99 U.S. 508,
509-10 (1879)).
25
Id. at 126.
26
Weiss v. United States, 510 U.S. 163, 167-76 (1994); Ryder,
515 U.S. at 179-88; Edmond v. United States, 520 U.S. 651, 653-
66 (1997).

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the Supreme Court precedent defines and explains the status of

judges on the Courts of Criminal Appeals.

In Weiss v. United States, the Supreme Court stated that

military judges, including appellate judges, are “Officers” of

the United States who “must be appointed pursuant to the

Appointments Clause.”27 The Supreme Court held that presidential

nomination and Senate confirmation of a person as a military

officer would satisfy the Appointments Clause with respect to

the assignment of such an officer to the military judiciary.28

In Ryder, the second case, the Supreme Court addressed the

assignment of two civilians by the General Counsel of the

Department of Transportation to serve as judges on the Coast

Guard Court of Military Review (now the Coast Guard Court of

Criminal Appeals).29 During direct review, the servicemember had

challenged the composition of the panel that reviewed his case

under Article 66, UCMJ, on the ground that the civilian members

had not been appointed by the President, a court of law, or the

head of a department, as required by the Appointments Clause.30

The Supreme Court agreed, implicitly applying the pertinent

reasoning of Weiss that judges on the Courts of Criminal Appeals

are officers who must be appointed under the Appointments

Clause. The Court concluded that the constitutional violation

27
510 U.S. at 170.
28
Id. at 176.
29
515 U.S. at 179.
30
Id. at 180.

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could not be cured by according de facto validity to the actions

of the civilian judges.31

After noting that the Appointments Clause “is a bulwark

against one branch aggrandizing its power at the expense of

another,” the Supreme Court added: “[B]ut it is more: it

‘preserves another aspect of the Constitution’s structural

integrity by preventing the diffusion of the appointment

power.’”32 The Supreme Court also noted that it would not invoke

the de facto officer doctrine in a case involving “basic

constitutional protections designed for the protection of

litigants.”33 In the course of rejecting the government’s

contention that any error in the appointment of these appellate

judges was harmless, the Supreme Court emphasized the unique

powers of intermediate courts under Article 66, UCMJ, including

their “broad[] discretion to review claims of error, revise

factual determinations, and revise sentences.”34

In the third case, Edmond, the Supreme Court considered the

assignment of civilian judges at the Coast Guard Court of

Criminal Appeals after appointment by the head of a department,

the Secretary of Transportation.35 The Supreme Court held that

appointment by a department head met the terms of the inferior

31
Id. at 188.
32
Id. at 182 (quoting Freytag v. Commissioner, 501 U.S. 868, 878
(1991)).
33
Id. (quoting Glidden Co. v. Zdanok, 370 U.S. 530, 536 (1962)).
34
Id. at 187.
35
520 U.S. at 653.

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officers provision of the Appointments Clause, and that the

Constitution did not require presidential appointment and Senate

confirmation of these judges.36 The Supreme Court emphasized

that treatment of the judges on the Courts of Criminal Appeals

as “inferior officers” reflected the applicable supervisory

hierarchy, including review by our Court.37 The Supreme Court

took the opportunity to underscore the significant authority

exercised by judges on the Courts of Criminal Appeals as

“Officers of the United States”: “We do not dispute that

military appellate judges are charged with exercising

significant authority on behalf of the United States. This,

however, is also true of offices that we have held were

‘inferior’ within the meaning of the Appointments Clause.”38 The

Supreme Court added: “The exercise of ‘significant authority

pursuant to the laws of the United States’ marks, not the line

between principal and inferior officer for Appointments Clause

purposes, but rather, as we said in Buckley, the line between

officer and non-officer.”39

III. DISCUSSION

Appellant asserts that the participation of a Member of

Congress as an appellate judge in this case violates the

Incompatibility Clause of the United States Constitution that

36
Id.
37
Id. at 662.
38
Id. at 662 (citing Freytag, 501 U.S. at 881-82).
39
Id. (citing Buckley, 424 U.S. at 126).

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provides: “no Person holding any Office under the United

States, shall be a Member of either House during his Continuance

in Office.”40 The Supreme Court has noted that “The Constitution

thereby . . . prohibits Members of Congress from holding other

offices through [this] limitation, the Incompatibility Clause.”41

In Buckley, the Supreme Court reaffirmed the principle of

separation of powers and the operation of both the Appointments

Clause and the Incompatibility Clause to bolster this

principle.42 As to the Appointments Clause, the Supreme Court

stated it is critical to the structural integrity of the

Constitution, not a mere form of “etiquette or protocol.”43

Addressing the Incompatibility Clause, the Supreme Court stated

that “The further concern of the Framers of the Constitution

with maintenance of the separation of powers is found in the so-

called ‘Ineligibility’ and ‘Incompatibility’ Clauses . . . .”44

Indeed, “the Incompatibility Clause plays a vital role in

our constitutional scheme . . . by . . . reinforcing the

separation of powers.”45 Further, “the Incompatibility Principle

has become one of the five great distinguishing structural

40
U.S. Const. art. I, § 6, cl. 2.
41
Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208,
210 (1974).
42
Buckley, 424 U.S. at 124.
43
Id. at 125.
44
Id. at 124.
45
See Stephen G. Calabresi & Joan L. Larsen, One Person, One
Office: Separation of Powers or Separation of Personnel?, 79
Cornell L. Rev. 1048 (1994).

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features of our constitutional system, along with checks and

balances, separation of powers, bicameralism, and federalism.”46

We review the assignment of judges to the Courts of

Criminal Appeals in the context of pertinent Supreme Court

precedents addressing the Appointments Clause, described in

Section II, supra. The Supreme Court has instructed “that the

Constitution’s terms are illuminated by their cognate

provisions.”47 In view of the close relationship between the

Appointments Clause and the Incompatibility Clause as “cognate

provisions,”48 the precedents developed under the Appointments

Clause provide the appropriate framework for interpreting the

Incompatibility Clause.

In the Appointments Clause cases discussed in Section II,

supra, the Supreme Court emphasized that an appellate judge

serving on a Court of Criminal Appeals exercises significant

authority on behalf of the United States in adjudicating the

rights of servicemembers. In that capacity, a judge on a Court

of Criminal Appeals holds an “office under the government” that

must be filled by an “Officer of the United States” under the

Appointments Clause.49

In the context of the Incompatibility Clause -– a “cognate

provision” –- the term “office” should be given the same

46
Id.
47
Freytag, 501 U.S. at 889.
48
See Buckley, 424 U.S. at 124.
49
See id. at 125-26 (citations and question marks omitted).

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meaning. Accordingly, the Incompatibility Clause –- which

prohibits a Member of Congress from “holding any Office under

the United States” -– precludes a Member from serving as an

appellate judge on a Court of Criminal Appeals –- an “office”

that must be filled by an “Officer of the United States.”

The present problem before this Court is the judge’s

simultaneous service as a Member of Congress and an appellate

judge. The fundamental principle of separation of powers is the

key to analyzing the relationship among branches of government

as they apply to a citizen. The structure of the Constitution

provides for separate and shared powers among the branches.50

This separation of powers was forged in the hard-earned lesson

from history that executive, legislative, and judicial powers

should not reside in one hand.51 One of the purposes served by

the separation of powers is that a military accused will not be

judged by a Member of Congress. Service by a Member of Congress

performing independent judicial functions runs afoul of the

fundamental constitutional principle of separation of powers.

The present case does not require us to determine the

qualification of an individual to serve as a Member of Congress;

nor does it require us to define the scope of the standing of

citizens in general to litigate the relationship between

50
See Loving v. United States, 517 U.S. 748, 756-57 (1996).
51
See id. at 756 (“Even before the birth of this country,
separation of powers was known to be a defense against
tyranny.”).

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congressional service and membership in the Reserves.52 Military

status simply is not an issue. The foregoing principles apply

equally to all who would act as judges on the Court of Criminal

Appeals, whether as a civilian or as a military officer.

In this case, a Member of Congress is serving in a position

that requires the exercise of judicial power to affirmatively

find beyond a reasonable doubt that an accused committed a

criminal offense, that there is no prejudicial error, and that

the sentence is lawful and appropriate.53 A position that

requires the exercise of those powers is an office of the United

States and cannot be filled by a person who simultaneously

serves as a Member of Congress. We conclude that Appellant has

a right in such a proceeding to have his case decided by a judge

who is not then a Member of Congress.

CONCLUSION

Like the servicemember in Ryder, Appellant in the present

case properly challenged the constitutionality of the assignment

of a person to serve on the panel reviewing his case.54 The

legal defect here is in the assignment of a Member of Congress

to be a judge on the Air Force Court of Criminal Appeals. The

assignment of a Member of Congress to serve in such an office

violated the Incompatibility Clause, a provision essential to

52
See Schlesinger, 418 U.S. at 213.
53
See Article 66(c), UCMJ.
54
See Ryder, 515 U.S. at 182-83; Calabresi & Larsen, supra note
45, at 1157 n.12.

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the structural integrity of the Constitution. As a result, the

panel was not properly constituted. Only a properly constituted

appellate panel can complete the review required by Article 66,

UCMJ. Therefore, as in Ryder, the unconstitutional assignment

at issue here invalidates the decision of the court below.55 The

proceedings at the lower court are invalid and void.56

DECISION

The decision of the United States Air Force Court of

Criminal Appeals is set aside. The record of trial is returned

to the Judge Advocate General of the Air Force for a new review

by the United States Air Force Court of Criminal Appeals.

55
Ryder, 515 U.S. at 188.
56
See id.

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CRAWFORD, Judge (dissenting):

I respectfully dissent from the majority’s conclusion that

the proceedings at the lower court are invalid and void for the

following reasons. First, assuming Appellant has standing, the

majority’s holding that the assignment of a Member of Congress

who is a Standby Reserve officer to a panel of the lower court

violates the Incompatibility and Ineligibility Clauses in

Article I, Section 6 of the United States Constitution is

inconsistent with the text, history, tradition, and precedent of

the clauses. Second, assuming a constitutional error, that

error was harmless beyond a reasonable doubt. Finally, assuming

a constitutional violation, the majority’s holding should be

applied prospectively. See Buckley v. Valeo, 424 U.S. 1, 142

(1976); Northern Pipeline Construction Co. v. Marathon Pipe Line

Co., 458 U.S. 50, 87-88 (1982) (plurality opinion), superseded

by statute, Bankruptcy Amendments and Federal Judgeship Act of

1984, Pub. L. No. 98-353, 98 Stat. 333; Cipriano v. City of

Houma, 395 U.S. 701, 706 (1969); Allen v. State Board of

Elections, 393 U.S. 544, 572 (1969).

Pursuant to his pleas, Appellant was convicted of

wrongfully using cocaine in violation of Article 112a, Uniform

Code of Military Justice (UCMJ), 10 U.S.C. § 912a (2000). After

an extensive discussion under Rule for Courts-Martial (R.C.M.)

910, and this Court’s precedent, see United States v.
United States v. Lane, No. 05-0260/AF

Redlinski, 58 M.J. 117 (C.A.A.F. 2003), the military judge

accepted the plea and sentenced Appellant to a bad-conduct

discharge, 135 days of confinement, and reduction to the lowest

enlisted grade. Pursuant to the pretrial agreement, the

convening authority approved the sentence but reduced the

confinement to four months. During the appellate process,

Appellant has had every opportunity to show actual prejudice or

seek to disqualify Senator Graham on the basis of R.C.M. 902 and

has not done so.

TEXT, HISTORY, TRADITION, AND PRECEDENT

A. Introduction

The Constitution sets up a governmental structure with

three branches of government to serve as a check on each other

because of their distinctive organizations, responsibilities,

and procedures. This principle of separation of powers,

recognized in United States v. Scheffer, 523 U.S. 303, 311-12

(1998), permits the government to operate efficiently and

preserves the initiative of those serving in the various

branches and the right of ordinary citizens in exercising their

right to vote.

Over time, from one generation to the next, the
Constitution has come to earn the high respect and
even, as Madison dared to hope, the veneration of the
American people. . . . The document sets forth, and
rests upon, innovative principles original to the
American experience, such as federalism; a proven
balance in political mechanisms through separation of

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powers; specific guarantees for the accused in
criminal cases; and broad provisions to secure
individual freedom and preserve human dignity. These
doctrines and guarantees are central to the American
experience and remain essential to our present-day
self-definition and national identity.

Roper v. Simmons, 543 U.S. 551, 578 (2005).

The checks and balances set forth below ensure that Senator

Graham’s position as an appellate judge is not incompatible with

being a Member of Congress and does not interfere with the

separation of powers between the executive, legislative, and

judicial branches.

B. Text

The Ineligibility and Incompatibility Clauses in Article I,

Section 6 of the Constitution provide as follows: “[n]o Senator

. . . shall . . . be appointed to any civil Office under the

Authority of the United States” and “no Person holding any

Office under the United States shall be a Member of either

House.”1 Do the terms “civil Office” or “Office under the United

States” include a trial or appellate judge in the military?

1
No Senator or Representative shall, during the Time for which
he was elected, be appointed to any civil Office under the
Authority of the United States, which shall have been created,
or the Emoluments whereof shall have been encreased [sic]
during such time [commonly called the Ineligibility Clause or
Emoluments Clause]; and no Person holding any Office under the
United States, shall be a Member of either House during his
Continuance in Office.

U.S. Const. art. I, § 6, cl. 2.

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Certainly, the plain meaning of these clauses ensures that

the branches of government remain structurally independent and

that a Member of Congress is not in control of an executive

branch as in a parliamentary system government. These clauses

do not prohibit Senator Graham from serving both as a Standby

Reserve officer and appellate judge on the United States Air

Force Court of Criminal Appeals. Nor does the history of the

text preclude Senator Graham’s position as an appellate judge.

The Constitution appears to be exclusive in defining these

responsibilities and powers permitting a balance and excluding

one decision maker from usurping another’s power. These powers

do not fit into neat categories, but the Constitution is

designed to secure, so far as possible, that the separation of

powers boundary lines are not crossed. “While the Constitution

diffuses power the better to secure liberty, it also

contemplates that practice will integrate the dispersed powers

into a workable government.” Youngstown Sheet & Tube Co. v.

Sawyer, 343 U.S. 579, 635 (1952).

C. History

The Journal of the Federal Convention was to be secret and

William Jackson, Secretary, was required to destroy all scraps

of paper. The notes of each member were turned over to him and

the record was created. 1 The Records of the Federal Convention

of 1787, at xi-xxv (Max Farrand ed., Yale Univ. Press 1966).

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These notes, which the majority ignores, help in interpreting

the intent of the drafters of these relevant provisions of the

Constitution.

The original clauses in Article I, Section 6 of the

Constitution were put forth by Edmond Randolph and “Res[olve]d

that members of the First Branch of the National Legislature

ought to be . . . ineligible to any office established by a

particular State, or under the authority of the United States

. . . during a term of service, and for the space of its

expiration.” 1 Farrand, supra, at 20. The members were

concerned about the President rewarding members of the

legislature with official posts. See id. at 386. James Madison

was concerned with the unnecessary creation of offices. Id.

Alexander Hamilton stated:

Our prevailing passions are ambition and interest; and
it will ever be the duty of a wise government to avail
itself of those passions, in order to make them
subservient to the public good for these ever induce
us to action. Perhaps a few men in a state, may, from
patriotic motives, or the display of their talents, or
to reap the advantage of public applause, step
forward; but if we adopt the clause (ineligibility),
we destroy the motive.

Id. at 381.

The Incompatibility Clause ensures separation of the

branches and prevents one branch from rewarding another

branch by giving it an appointment within that branch.

Generally, the Incompatibility Clause is designed to

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prevent full-time positions under certain circumstances,

not part-time positions. But such simultaneous holding of

legislative and executive office does not:

present an insuperable difficulty. . . . In the face
of this provision the President might still constitute
a cabinet council out of the chairmen of the principal
congressional committees and then put his own powers
and those of the heads of departments at the disposal
of this council.

Edward S. Corwin, The President, Office and Powers 1787-1957

14 (Randall W. Bland et al. eds., 5th ed. 1984); see also Harold

J. Laski, The American Presidency, Interpretation 70-110 (1940);

M. J. C. Vile, Politics in the USA 195-200 (1970). The drafters

thought that the simultaneous holding of offices by a Member of

Congress would be permissible either as the head of an executive

department or cabinet and being a Member of Congress with the

right of attendance but not the right to vote. Such a Member

could participate in Congressional debate. Corwin, supra, at

296.

D. Tradition

The Incompatibility Clause was not designed to prevent

Members of Congress from being members of the militia, the

National Guard, or the Reserves. See Schlesinger v. Reservist

Comm. to Stop the War, 418 U.S. 208, 210 n.2 (1974). If

Professor Corwin is right that there may be “cabinet councils,”

then the Incompatibility Clause was not written to prevent a

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Member of Congress from examining a defendant’s case as a

Standby Reserve officer, either working for points, or on two

weeks of active duty. See Corwin, supra at 14. Senator

Graham’s commission was not created after he became a Member of

Congress. How Senator Graham’s career in the Air Force began

and how it progressed demonstrates why the Incompatibility

Clause does not apply. After graduation from the University of

South Carolina School of Law, Senator Graham entered active duty

and served as a judge advocate between January 1982 until August

1988 when he was transferred to the Air Force Reserve. Lane, 60

M.J. at 782; Project Vote Smart, http://www.vote-

smart.org/bio.php?can_id=CNIP7869 (last visited Sept. 11, 2006).

He then served in the Air National Guard from 1989 to 1994 and

transferred back to the Air Force Reserve in 1995 where he has

served to the present time. Lane, 60 M.J. at 782. There is no

evidence that Senator Graham did not appear at various sessions

of Congress or that he has taken positions that would be

incompatible with his position as an appellate judge. If

Senator Graham cannot perform his duties as a Senator, the

selection process of standing for election may serve as a

discriminator.

In addition to a majority exercising the ballot box,

Article I, Section 5 of the Constitution provides that “[e]ach

House may determine the Rules of its Proceedings [and] punish

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its Members for disorderly Behaviour . . . .” This provides

congressional oversight.

If Congress thought there was a potential violation by

Senator Graham, they were free to take action. See U.S. Const.

art. II, § 2, cl. 2. Over the last few months, they have not.

If a Member of Congress does hold an incompatible office, action

has been taken against them when they sought to hold full-time

positions during the Civil War. See Cong. Globe, 37th Cong., 2d

Sess. 343-44 (1862). But when the Member resigned his

commission before entering the Senate, no further action was

taken. Id. at 344. Neither the text nor history of the

Ineligibility and Incompatibility Clauses precludes Senator

Graham from sitting as an appellate judge, but does precedent?

E. Precedent

The President has the authority to nominate individuals to

be federal officers who should be confirmed “with the Advice and

Consent of the Senate.” U.S. Const. art. II, § 2, cl. 2. That

same provision provides that Congress has a role and that role

is creating other officers “established by Law.” Id. Congress

may also vest the authority to appoint inferior officers with

the President and other department heads. Id. The role of

Congress and the President in appointing officers, including

inferior officers, has been the subject of litigation in cases

decided by this Court and reviewed by the Supreme Court. See,

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e.g., Edmond v. United States, 520 U.S. 651 (1997); Ryder v.

United States, 515 U.S. 177 (1995).

“Officers of the United States” as used in the Appointments

Clause applies at least to commissioned officers and is not the

same as “civil Office under the Authority of the United States”

or “Office under the United States.” Edmond, 520 U.S. at 656-66

(reappointment not needed because judges were “Officers of the

United States”); see also Weiss v. United States, 510 U.S. 163,

172-76 (1994); Ryder, 515 U.S. at 180-85.

We should not expand Edmond, Ryder, and Weiss beyond what

they hold. None of these cases cited by the majority has

addressed the Incompatibility or Ineligibility Clauses in

Article I. A number of the cases cited address presidential and

congressional authority under the Appointments Clause. In

Edmond, the Supreme Court held that military judges are inferior

officers appropriately appointed by the President and do not

have to be reappointed to serve as a trial or appellate judge.

520 U.S. at 656-66. While appointed by the Judge Advocate

General, they may not be subject to unlawful command influence.

Weiss, 510 U.S. at 180. The Supreme Court reemphasized that the

Court of Appeals for the Armed Forces and the Courts of Criminal

Appeals are Article I courts. Edmond, 520 U.S. 664 n.2. In

Weiss, the Supreme Court held that commissioned officers did not

need a reappointment under the Appointments Clause to serve as

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military judges. 510 U.S. at 172-76. The Supreme Court also

held that the Due Process Clause did not require fixed terms of

office for military judges. Id. at 177-81. In Ryder, the

Supreme Court again addressed the Appointments Clause and held

that a civilian member of the Coast Guard Court of Military

Review was not properly appointed to that court. 515 U.S. at

180-88. In a reexamination of the Coast Guard Court of Criminal

Appeals in Edmond, the Supreme Court indicated that the judges

of that court were inferior officers who could be appointed by

the Secretary of Transportation. 520 U.S. at 666.

Both Edmond and Weiss imply that being a military judge,

which is an “inferior office,” is not an “Office under the

Authority of the United States” under the Ineligibility Clause

or “holding any Office under the United States” under the

Incompatibility Clause. While the framers gave little guidance

as to “inferior” and “principal” officers, the Supreme Court did

give more guidance as to the clauses in Edmond. 520 U.S. at

660-61. In Freytag v. Commissioner, 501 U.S. 868, 881 (1991),

the Supreme Court held that special trial judges were officers,

albeit inferior officers, because their positions were

“established by law” under Article II, Section II, Clause 2 of

the Constitution, and their duty salaries and appointments were

specified by statute. See also United States v. Germaine, 99

U.S. 508, 511-12 (1879). Edmond dealt with the question of

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whether military judges required Senate confirmation because the

judges were considered to be inferior officers rather than

principal officers even though long-standing tradition was

otherwise. 520 U.S. at 655-66. The Supreme Court concluded

that military trial judges did not have to be confirmed by the

Senate. Id.

Who may appoint inferior officers and who are heads of

departments are entirely different questions than the issue

presented here. Justice Scalia explained in Edmond:

Generally speaking, the term “inferior officer” connotes a
relationship with some higher ranking officer or officers
below the President: whether one is an “inferior officer”
depends on whether he has a superior. It is not enough
that other officers may be identified who formally maintain
a higher rank, or possess responsibilities of a greater
magnitude.

520 U.S. at 662-63. The Supreme Court made clear in Edmond that

inferior officers are officers whose work is directed and

supervised at some level by others who are appointed by

presidential nomination with the advice and consent of the

Senate. Id. at 659-63. The majority reads too much into these

opinions without focusing on their text, history, and precedent.

There is no indication in the UCMJ, including Article 67,

UCMJ, 10 U.S.C. § 867 (2000), that appointing a Member of

Congress to be a trial judge or an appellate judge is forbidden.

In fact, Congress may well desire the synergism that would

result from having a Member of Congress serving as a trial or

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appellate judge in the military justice system. Many reservists

have served in the federal judiciary and state judiciary

examining administrative actions by the services and have even

reviewed some criminal cases, for example, Judge Haldane Robert

Mayer, United States Court of Appeals for the Federal Circuit,

and Judge James Leo Ryan, United States Court of Appeals for the

Sixth Circuit, members of the Reserves. No federal court has

precluded those reviews. The action by the majority would

prevent Members of Congress as policy makers from obtaining a

critical prospective on national security and the operation of

the military justice system. To hold that these inferior

officers and individuals who have been commissioned, and are

reviewing cases for points and not pay, have somehow advanced to

principal officers that violate the Incompatibility or

Ineligibility Clauses reads far too much into Supreme Court

practice and the language of the Constitution.

To rely on the Incompatibility Clause to disqualify Senator

Graham expands precedent and overlooks the practice of

appointing members of the Senate to serve on diplomatic or semi-

diplomatic missions. See Corwin, supra, at 86. It also

undermines the practice of Members of Congress being members of

the Reserves, National Guard, and militia. The office held by

Senator Graham existed prior to his serving on the appellate

court.

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HARMLESS BEYOND A REASONABLE DOUBT

If there was a violation of the Incompatibility Clause,

Appellant has not established any actual adverse impact on his

findings or sentence. Both the Congress in enacting Article 45,

UCMJ, 10 U.S.C. § 845 (2000), and the President in promulgating

R.C.M. 910, have designed a system much more protective than the

federal or state system to ensure that a truly knowing and

voluntary plea was obtained in this case. Thus, any error here

would be harmless beyond a reasonable doubt.

PROSPECTIVE RULE

If relief is to be granted, it should be granted

prospectively and not to all cases on direct review. Griffith

v. Kentucky, 479 U.S. 314, 321-22 (1987). The efficient

operation of the military justice system is important for

maintaining good order and discipline in the armed forces. In a

number of cases the Supreme Court has recognized the public

interest in avoiding retroactive invalidation of actions by

public officials. The Supreme Court has avoided retroactive

application of decisions that challenge the appointment of

officers or the exercise of their power. Buckley, 424 U.S. at

142 (Appointments Clause violation); Northern Pipeline

Construction Co., 458 U.S. at 87-88 (plurality opinion holding

the unconstitutional grant of authority to bankruptcy judges did

not invalidate prior acts); Cipriano, 395 U.S. at 706 (declining

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to invalidate municipal bonds issued by unconstitutionally

elected body). While a trial should be free of constitutional

violations, when, as in this case, an accused has shown no

prejudice, there is no requirement for a readjudication of the

findings or sentence. The judges on the Courts of Criminal

Appeals are an integral part of the military justice system and

the failure to demonstrate any meaningful likelihood of

prejudice requires affirmance of the court below. Article

59(a), UCMJ, 10 U.S.C. § 859(a) (2000).

CONCLUSION

Assuming standing, the assignment of Senator Graham as an

appellate judge is not inconsistent with the text, history,

tradition, and precedent of the Incompatibility and

Ineligibility Clauses. Thus, I respectfully dissent.

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