(dissenting):
I must disagree with my brother judges for the reasons to be stated.
Appellant seeks reversal of his special court-martial conviction, contending that the convening authority’s failure personally to select the trial judge and counsel for the proceedings was jurisdictionally fatal.
In the challenged referral procedure the staff judge advocate was delegated the authority to amend, on behalf of the convening authority, an initial convening order (in which the convening authority personally had appointed court members) to include counsel and a trial judge when they later were ascertained. Although the convening authority was generally aware of the counsel who represented the parties in his various special court-martial jurisdictions and of the trial judges stationed in his command, he did not personally select counsel or judge to act in a given case. Rather, he left that choice to the judiciary.
Government counsel have sought to narrow the issue to whether the detailing of counsel and judge is a nondelegable judicial function or a ministerial act which may be delegated. The pertinent statutes are Article 26 of the Uniform Code, which specifies that, “subject to regulations of the Secretary concerned, the authority convening a special court-martial may, detail a military judge thereto,” and Article 27 of the Uniform Code, which directs the convening authority to “detail trial counsel and defense counsel” for general and special courts-martial.
The Government suggests that these statutes merely require an “official appointment” rather than a “personal selection.” For comparison, government counsel point to Article 25(d)(2), Uniform Code of Military Justice, which tasks the convening authority with detailing court members who, “in his opinion, are best qualified for the duty by reason of age, education, training, experience, length of service, and judicial temperament.” Unlike the detailing of court members, the provisions of Articles 26 and 27 require no exercise of personal discretion, in the Government’s view. Thus, it is urged that we sanction the appointment process employed here as a proper delegation of purely administrative authority.
*11Challenging this view, appellant points to paragraph 6a, Manual for Courts-Martial, United States, 1969 (Revised edition), which, in pertinent part, states: “The power to detail [counsel] under Article 27 cannot be delegated.” In addition, appellate defense counsel have called our attention to chapter 12, Army Regulation 27-10, (change 3, Aug. 1, 1969), which provides, in paragraph 12-2, “As soon as practicable after the convening authority has personally determined the composition of a court-martial, he will issue convening orders . ” This regulation also specifies that “[t]he authority line in convening orders indicates that the commander has personally acted with respect to the selection of the personnel named in the order.” Paragraph 12-4c(l). Appellant also relies upon United States v. Singleton, 21 U.S.C. M.A. 432, 45 C.M.R. 206 (1972), in which we held that a court-martial lacked jurisdiction where the convening authority failed to detail counsel and a military judge prior to commencement of the trial proceedings.1
Singleton is inapposite at this juncture since it dealt with the total failure to appoint counsel or a judge for the proceedings. The threshold question here is whether counsel and the trial judge properly were appointed pursuant to a delegation of authority. Singleton becomes pertinent only if it is concluded that the delegation procedure employed was improper. Because, under United States v. Wright, 2 M.J. 9 (C.M.A.1976), defects in the appointment of counsel are not jurisdictionally significant, whereas similar defects in the appointment of a trial judge are, and because the implementing language of Article 26 (appointment of trial judges) differs somewhat from that of Article 27 (appointment of counsel), the delegation of authority question is best resolved separately for counsel and the trial judge.
Pertinent to both delegation issues, however, is my belief that neither Article 26 nor Article 27 contemplates a judicial act in selecting these participants for courts-martial. Ordinarily, only if an act “requires the exercise of a judicial judgment” is it nondelegable. United States v. Bunting, 4 U.S.C.M.A. 84, 87,15 C.M.R. 84, 87 (1954); United States v. Greenwalt, 6 U.S.C.M.A. 569, 573, 20 C.M.R. 285, 289 (1955). See also United States v. Brady, 8 U.S.C.M.A. 456, 460, 24 C.M.R. 266, 270 (1957). The requisite qualifications for both judges and counsel are set forth expressly in the Uniform Code. See Articles 26(b) and 27(b), UCMJ. Unlike the present military jury selection process, these statutes leave to the convening authority no discretion insofar as which counsel or judges are “best qualified.” In fact, the convening authority has no choice with regard to the severely limited options insofar as special court-martial judges are . concerned and the designation of a military judge for a general court-martial. Compare Article 19, with Article 26(c), UCMJ and paragraph 9-8, AR 27-10, supra. His alternatives with regard to the appointment of counsel also are restricted as a result of preformed attorney-client relationships2 *12and predesignated legal responsibilities to particular counsel in a given command.
These considerations lead me to conclude that there is nothing inherently judicial about the selection of counsel or trial judges for courts-martial proceedings. The process is, as the Government suggests, essentially “ministerial, requiring no exercise of discretion.” United States v. Johnson, 10 U.S.C.M.A. 630, 633, 28 C.M.R. 196, 199 (1959). See also United States v. Moschella, 20 U.S.C.M.A. 543, 546, 43 C.M.R. 383, 386 (1971). Ordinarily, such a conclusion would end the matter and would dictate that the delegation of purely administrative authority is permissible.
However, the promulgation of a contrary scheme in the Manual for Courts-Martial, requiring the convening authority personally to appoint counsel, as well as the existence of an Army Regulation directing the personal appointment of judges, counsel, and court members by the convening authority, necessitates a further inquiry to resolve the impact of these directives on the court-martial convening process.3
A
Turning first to whether the delegation of authority to appoint counsel was permissible in this instance, I am confronted with the previously quoted Manual provision (paragraph 6a) which bars a delegation of such authority, and the prohibition found in paragraphs 12-2 and 12-4c(l) of AR 27-10.
In order for presidential or service directives to have jurisdictional impact upon the administration of military justice, they must be promulgated pursuant to a congressional delegation of authority, consistent with the Constitution. “In the framework of our Constitution, the President’s power to see that the laws are faithfully *13executed refutes the idea that he is to be a lawmaker. The Constitution limits his functions in the lawmaking process to the recommending of laws he thinks wise and the vetoing of laws he thinks bad.” Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 587, 72 S.Ct. 863, 867, 96 L.Ed. 1153 (1952).
Article 1, § 1 of the United States Constitution vests legislative power in the Congress. “The essentials of that function are the determination by Congress of the legislative policy and its approval of a rule of conduct to carry that policy into execution.” Hirabayashi v. United States, 320 U.S. 81, 104, 63 S.Ct. 1375, 1387, 87 L.Ed. 1774 (1943). However, “[t]he Constitution has never been regarded as denying to the Congress the necessary resources of flexibility and practicality, which will enable it to perform its function in laying down policies and establishing standards, while leaving to selected instrumentalities the making of subordinate rules within prescribed limits and the determination of facts to which the policy as declared by the Legislature is to apply.” Panama Refining Co. v. Ryan, 293 U.S. 388, 421, 55 S.Ct. 241, 248, 79 L.Ed. 446 (1935); accord, Currin v. Wallace, 306 U.S. 1, 15, 59 S.Ct. 379, 83 L.Ed. 441 (1939).
In this vein, Congress has delegated to the President authority to prescribe rules of “procedure, including modes of proof, in cases before courts-martial which shall, so far as he considers practicable, apply the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts, but which may not be contrary to or inconsistent with this chapter.” Article 36(a), UCMJ. The language of Article 36 confines the President’s rule-making authority thereunder to matters of trial procedure. See United States v. Ware, 1 M.J. 282, 285 n.10 (C.M.A.1976) cf. United States v. Douglas, 1 M.J. 354 (C.M.A.1976).
The procedural steps necessary to bring a case to trial already are enunciated in the Uniform Code of Military Justice, and Article 36 evidences no intention by the Congress to dilute its legislative judgment concerning pretrial procedures by authorizing the promulgation of executive restrictions which undercut the congressional scheme. The Manual cannot “bootstrap itself into an area in which it has no jurisdiction by repeatedly [exceeding] its statutory mandate.” Federal Maritime Commission v. Seatrain Lines, Inc., 411 U.S. 726, 745, 93 S.Ct. 1773,1785,36 L.Ed.2d 620 (1973). Nor does the lapse of time, under our constitutional scheme, transform executive action into a binding legislative pronouncement. Further, the fact that this Court previously has not had occasion to reject a Manual provision for exceeding the scope of the President’s authority, even though not necessarily inconsistent with the Uniform Code, does not signify judicial sanction of all that appears in the Manual for Courts-Martial.
As paragraph 6a, Manual, supra, requiring the personal designation of counsel, does not fall within the scope of the Article 36 delegation of authority to the President, its significance necessarily is limited to expressing the executive’s view of the appropriate interpretation this Court should place on Article 27. The same holds true for AR 27-10 insofar as it purports to bar a delegation of authority to appoint counsel.
The construction given the statute by those officials charged with administering the military justice system is entitled to considerable deference. See Johnson v. Robison, 415 U.S. 361, 94 S.Ct. 1160, 39 L.Ed.2d 389 (1974); Morton v. Ruiz, 415 U.S. 199, 94 S.Ct. 1055, 39 L.Ed.2d 270 (1974); NLRB v. Hearst Publications, Inc., 322 U.S. Ill, 64 S.Ct. 851, 88 L.Ed. 1170 (1944). Nevertheless, I do not believe this Court is “obliged to stand aside and rubber-stamp [its] affirmance of [executive] decisions that [it deems] inconsistent with [the] statutory mandate or that frustrate the congressional policy underlying [the] statute. NLRB v. Brown, 380 U.S. 278, 291, 85 S.Ct. 980, 988,13 L.Ed.2d 839 (1965); Volkswagenwerk Aktiengesellschaft v. Federal Maritime Commission, 390 U.S. 261, 272, 88 S.Ct. 929, 19 L.Ed.2d 1090 (1968); accord, Federal Maritime Commission v. Seatrain Lines, supra, 411 U.S. at 746, 93 S.Ct. 1773.
*14As earlier observed, the doctrine of delegability is a well-settled legal precept of which the Congress undoubtedly was aware in its consideration of the Uniform Code of Military Justice. Where judicial or discretionary action is not involved, delegability is beneficial to the extent that it hastens the trial process and reduces the cost of administering the military justice system by encouraging decisionmaking at lower echelons. The absence of personal selection criteria in Article 27, in contrast with the presence of such criteria in Article 25, coupled with specified qualifications for detailed counsel in Article 27(b), Signifies a legislative judgment that the detailing of counsel need not be a personal selection by the convening authority so long as counsel are officially appointed by order of the convening authority in accordance with Article 27. As such, the executive branch’s interpretations of Article 27 frustrate the policy of delegability implicit within the statute. Cf. Greene v. McElroy, 360 U.S. 474, 506, 79 S.Ct. 1400, 3 L.Ed.2d 1377 (1959). Thus, I conclude that the convening authority properly delegated his authority to appoint counsel for the instant court-martial pursuant to Article 27(a), UCMJ.
B
It could perhaps be argued that the convening authority’s delegation of authority to appoint a trial judge for appellant’s special court-martial must be resolved somewhat differently as a result of the language of Article 26(a), UCMJ, which gives a commander convening a special court-martial authority to detail a military judge “subject to regulations of the Secretary concerned.” 4 Although AR 27-10, promulgated by the Secretary of the Army, does specify that the trial judge must be personally selected by the convening authority, I construe the condition of Article 26(a) that exercise of the power is “subject to regulations of the Secretary” as intended by Congress only to govern the occasions when a trial judge may be detailed to a special court-martial rather than who that judge must be. The Senate Report on the provision, which was part of the Military Justice Act of 1968, notes that it was “designed primarily for the trial of cases involving factual and legal problems which might be considered too difficult for a legally untrained special court-martial president to handle.” S.Rep. 1601, 90th Cong., 2d Sess., 3 U.S.Code Cong. & Admin.News, p. 4505 (1968); 114 Cong.Rec. 29397-9, 30564-5 (1968). At least insofar as special courts-martial in which a bad-conduct discharge is imposed (such as this case) are concerned, the detailing of a trial judge to preside over the hearing is mandatory. Article 19, UCMJ. Hence, the actual selection of the judge is reduced to the question of who the judge shall be, which, for the reasons set forth in Section A of this opinion, I conclude is a purely ministerial act subject to delegation. The regulation’s attempt to remove that power from the convening authority is inoperative as being in contravention of the policy of delegability implicit within Article 26.
I would affirm the United States Army Court of Military Review.
. United States v. Singleton, 21 U.S.C.M.A. 432, 45 C.M.R. 206 (1972), was partially overruled by our decision in United States v. Wright, 2 M.J. 9 (C.M.A.1976).
. DR 2-110, American Bar Association Code of Professional Responsibility provides:
(A) In general.
(1) If permission for withdrawal from employment is required by the rules of a tribunal, a lawyer shall not withdraw from employment in a proceeding before that tribunal without its permission.
(2) In any event, a lawyer shall not withdraw from employment until he has taken reasonable steps to avoid foreseeable prejudice to the rights of his client, including giving due notice to his client, allowing time for employment of other counsel, delivering to the client all papers and property to which the client is entitled, and complying with applicable laws and rules.
(3) A lawyer who withdraws from employment shall refund promptly any part of a fee paid in advance that has not been earned. (B) Mandatory withdrawal.
A lawyer representing a client before a tribunal, with its permission if required by its rules, shall withdraw from employment, and a lawyer representing a client in other matters shall withdraw from employment, if:
(1) He knows or it is obvious that his client is bringing the legal action, conducting the defense, or asserting a position in the litigation, or is otherwise having steps taken for *12him, merely for the purpose of harassing or maliciously injuring any person.
(2) He knows or it is obvious that his continued employment will result in violation of a Disciplinary Rule.
(3) His mental or physical condition renders it unreasonably difficult for him to carry out the employment effectively.
(4) He is discharged by his client.
(C) Permissive withdrawal.
If DR 2-110(B) is not applicable, a lawyer may not request permission to withdraw in matters pending before a tribunal, and may not withdraw in other matters, unless such request or such withdrawal is because:
(1) His client:
(a) Insists upon presenting a claim or defense that is not warranted under existing law and cannot be supported by good faith argument for an extension, modification, or referral of existing law.
(b) Personally seeks to pursue an illegal course of conduct.
(c) Insists that the lawyer pursue a course of conduct that is illegal or that is prohibited under the Disciplinary Rules.
(d) By other conduct renders it unreasonably difficult for the lawyer to carry out his employment effectively.
(e) Insists, in a matter not pending before a tribunal, that the lawyer engage in conduct that is contrary to the judgment and advice of the lawyer but not prohibited under the Disciplinary Rules.
(f) Deliberately disregards an agreement or obligation to the lawyer as to expenses or fees.
(2) His continued employment is likely to result in a violation of a Disciplinary Rule.
(3) His inability to work with co-counsel indicates that the best interests of the client likely will be served by withdrawal.
(4) His mental or physical condition renders it difficult for him to carry out the employment effectively.
(5) His client knowingly and freely assents to termination of his employment.
(6) He believes in good faith, in a proceeding pending before a tribunal, that the tribunal will find the existence of other good cause for withdrawal.
. This case highlights the pressing need for Congressional action to create military tribunals at the trial level with continuing jurisdiction. The overly technical and outmoded convening order process serves no useful purpose. Instead, it causes substantial expense and delay in the administration of. military justice while perpetuating a needless jurisdictional thicket for counsel and judges both at the trial and appellate court levels. This case also illustrates that certain provisions of the Manual as well as service directives have made the convening of courts-martial even more complex than is statutorily mandated. To thrust upon military commanders the needless task of handpicking counsel and judges when such action is not statutorily mandated strikes me as a waste of extremely valuable military talent which could better concentrate on more substantive matters.
. I perceive no similar regulatory hurdle insofar as a delegation of authority to appoint general court-martial judges is concerned. Under Article 26(a), Uniform Code of Military Justice, the service secretaries have no authority to promulgate regulations specifying the method of appointment of general court-martial judges. To the extent that AR 27-10 purports to direct personal appointment of general court-martial judges, I view it as inoperative under the reasoning set forth in Section A of this opinion.