(dissenting):
I respectfully disagree with the lead opinion and Judge Crawford’s separate opinion in this case. In my view the Constitution speaks clearly on the granted issue, and we are duty-bound to follow its supreme command. U.S. Const, art. VI. Military judges, both trial and appellate, are “inferior Officers” of the United States and must be appointed to their offices by “the President alone,” or by this Court or one of the other “Courts of Law,” or by the Secretary of Defense or one of the other “Heads of Departments.” Art. II, § 2, para. 2, cl. 2. See Freytag v. Commissioner of Internal Revenue, 501 U.S.-, 111 S.Ct. 2631, 115 L.Ed.2d 764 (1991). Appellant’s military judges were not so appointed, but their status as de facto appointees might preclude reversal of his conviction. See Northern Pipeline Construction Co. v. Marathon Pipe Line Co., 458 U.S. 50, 88, 102 S.Ct. 2858, 2880, 73 L.Ed.2d 598 (1982); Buckley v. Valeo, 424 U.S. 1, 142-*24143, 96 S.Ct. 612, 693, 46 L.Ed.2d 659 (1976). Nevertheless, I must dissent to the majority’s simple affirmance of this case. Id.
More particularly, I do not believe that Congress’ broad power to make rules for the land and naval forces under Article I, § 8, clause 14 of the Constitution is unlimited such that the Appointments Clause can be considered per se inapplicable to military justice legislation. See generally Mistretta v. United States, 488 U.S. 361, 382, 109 S.Ct. 647, 660, 102 L.Ed.2d 714 (1989). (Even Congress’ primary duty to make laws is limited by the constitutional prohibition against an ex post facto Law-e.g., Art. I, § 9, para. 3). A contrary opinion in my view is extremely dangerous in that it upsets the delicate system of checks and balances provided in our Constitution to ensure the American way of government.
I also would hold that commissioning and promoting military officers by the President by and with the advice and consent of the Senate does not obviate the need for additional constitutional appointments of such persons for higher or more responsible offices both within and without the military department (i.e. military trial judge or appellate judge). There is no blanket “commissioned officer” exception to the Appointments Clause written in the Constitution, and the decision of the Supreme Court in Shoemaker v. United States, 147 U.S. 282, 13 S.Ct. 361, 37 L.Ed. 170 (1893), should not be broadly extended to create one for military officers who are simply “legally trained.” In sum, consistent with my judicial philosophy of spurning judicial legislation, I also must reject the judicial constitution-making accomplished by the lead opinion in this case.
I
The Granted Issue
The issue raised by appellate defense counsel and granted review by this Court is as follows:
WHETHER APPELLANT’S COURT-MARTIAL LACKED JURISDICTION WHERE THE MILITARY JUDGE WAS DESIGNATED IN VIOLATION OF THE APPOINTMENTS CLAUSE OF THE CONSTITUTION, AND WHETHER THE NAVY-MARINE CORPS COURT OF MILITARY REVIEW WAS WITHOUT POWER TO REVIEW THIS CASE WHERE ITS JUDGES WERE DESIGNATED IN VIOLATION OF THE APPOINTMENTS CLAUSE OF THE CONSTITUTION.
In this regard, I note that the judge in this trial was Major Edward F. Pesik, Jr., United States Marine Corps. He was certified in accordance with Article 26(b), Uniform Code of Military Justice, 10 USC § 826(b); sworn in accordance with Article 42(a), UCMJ, 10 USC § 842(a); and detailed to this case.1 The appellate military judges in this case were Senior Judge James A. Freyer, a Navy Captain; Senior Judge Richard A. Strickland, a Marine Colonel; and Judge James E. Orr, a Navy Captain. These judges constituted Panel No. 1 of the Court of Military Review, and they reviewed appellant’s case in accordance with that court’s internal rules.
The issue of law raised by appellate defense counsel and granted by this Court focuses on the “designation]” of the military judge who tried his case and the “designation]” of the military appellate judges who heard his appeal. Appellant does not contend that these designations were accomplished in violation of the Uniform Code of Military Justice. Instead, he contends that they were not accomplished in accordance with the Appointments Clause of the United States Constitution. Art. II, § 2, para. 2, el. 2. Relying heavily on the recent Supreme Court decision in Freytag v. C.I.R., supra, he asserts that military judges “are ‘Officers of the United States’ ” who must be “appointed as such by the President, the Courts of Law, or the Head of a Department.” Final Brief at 10. Finally, he asserts that the designation of *242these military judges by the Judge Advocate General of the Navy fails to satisfy this constitutional appointment standard.
II
The Statutes Establishing The Military Judge
A necessary step in resolving the granted issue is to understand the statutes which create the military trial and appellate judges and provide for persons to fill these judicial positions. At the outset I note that Congress has not expressly provided that a person be “appointed” a military trial judge or appellate judge. However, in the version of the Uniform Code of Military Justice enacted in 1950, Congress did provide for “appoint[mentj” of a law officer, the statutory predecessor of the military judge, by appropriate convening authorities. See Art. 26(a), UCMJ, 50 USC § 590(a), recodified in 10 USC § 826(a) (1956). Furthermore, in the 1950 Code, Congress provided for “appoint[ment]” of judges of this Court “by the President, by and with the advice and consent of the Senate.” Art. 67(a), UCMJ, 50 USC § 654(a), recodified in 10 USC § 867(a)(1956); see Art. 142(b)(1), UCMJ, 10 USC § 942(b)(l)(1989). Despite Congress’ obvious familiarity with the appointment terminology, it chose to create the military judge and provide for filling this government position with somewhat less direct language.2
I first note that, since 1969, Article 26(b) had provided that “[a] military judge shall be a commissioned officer of the armed forces.” 10 USC § 531 further provides:
§ 531. Original appointments of commissioned officers
(a) Original appointments in the grades of second lieutenant through colonel in the Regular Army, Regular Air Force, and Regular Marine Corps and in the grades of ensign through captain in the Regular Navy shall be made by the President, by and with the advice and consent of the Senate.
(Emphasis added.) See also 10 USC § 593 (appointment in reserves in commissioned grades below lieutenant colonel and commander by President alone).
The qualifications for original appointment are also statutorily established:
§ 532. Qualifications for original appointment as a commissioned officer (a) Under regulations prescribed by the Secretary of Defense, an original appointment as a commissioned officer (other than as a commissioned warrant officer) in the Regular Army, Regular Navy, Regular Air Force, or Regular Marine Corps may be given only to a person who—
(1) is a citizen of the United States;
(2) is able to complete 20 years of active commissioned service before his fifty-fifth birthday;
(3) is of good moral character;
(4) is physically qualified for active service; and
(5) has such other special qualifications as the Secretary of the military department concerned may prescribe by regulation.
Article 26(b)(1969) also provides that a military judge must be “a member of the bar of a Federal court or a member of the bar of the highest court of a State.” This requirement for legal training is somewhat less stringent than the requirement for detail as trial counsel or defense counsel at a *243general court-martial. See Art. 27(b), UCMJ, 10 USC § 827(b), which states:
(b) Trial counsel or defense counsel detailed for a general court-martial—
(1) must be a judge advocate who is a graduate of an accredited law school or is a member of the bar of a Federal court or of the highest court of a State; or must be a member of the bar of a Federal court or of the highest court of a State; and
(2) must be certified as competent to perform such duties by the Judge Advocate General of the armed force of which he is a member.
(Emphasis added.)
I next note that Article 26(b) (1969) provides that a military judge must be “certified to be qualified for duty as a military judge by the Judge Advocate General of the armed force of which such military judge is a member.” The standards for certification are not provided by statute, and there is no statutory requirement that a military judge be designated a member of the Judge Advocate General’s Corps or a Marine Corps judge advocate. However, as a practical matter, military judges to be certified as qualified normally would have experience as a trial or defense counsel under Article 27(b). This statute alternatively requires designation as a “judge advocate.”
In fact, the military judge who presided over this court-martial was a Marine judge advocate. See NAVMC P-1005, Officers on Active Duty in the Marine Corps at 1-43 (1 Oct.1989, 48th Rev.). 10 USC § 5587a provides:
§ 5587a. Regular Marine Corps: judge advocates
With the approval of the Secretary of the Navy, any regular officer on the active-duty list of the Marine Corps who is qualified under section 827(b) of this title may, upon his application, be designated as a judge advocate.
(Emphasis added.)
Moreover, two of the appellate military judges who heard his appeal before the Court of Military Review were members of the Navy Judge Advocate General’s Corps. 10 USC § 5150 provides:
§ 5150. Staff corps of the Navy
(a) The staff corps of the Navy are—
(1) the Medical Corps;
(2) the Dental Corps;
(3) the Judge Advocate General’s
Corps;
(4) the Chaplain Corps; and
(5) such other staff corps as may be
established by the Secretary of the
Navy under subsection (b).
(b) (1) The Secretary of the Navy may establish staff corps of the Navy in addition to the Medical Corps, the Dental Corps, the Judge Advocate General’s Corps, and the Chaplain Corps. The Secretary may designate commissioned officers in, and may assign members to, any such staff corps.
(Emphasis added.)
As indicated above, designation as a judge advocate does not determine where or when a commissioned officer serves this duty. Article 6, UCMJ, 10 USC § 806 (1984), further comments on the assignment for duty of judge advocates, as follows:
§ 806. Art. 6. Judge advocates and legal officers
(a) The assignment for duty of judge advocates of the Army, Navy, Air Force, and Coast Guard shall be made upon the recommendation of the Judge Advocate General of the armed force of which they are members. The assignment for duty of judge advocates of the Marine Corps shall be made by direction of the Commandant of the Marine Corps. The Judge Advocate General or senior members of his staff shall make frequent inspections in the field in supervision of the administration of military justice.
(Emphasis added.) The legislative history makes clear that Congress intended the Judge Advocate General of each service to play a substantial initiating role in the as*244signment process while reserving to military personnel authorities the final say.3 See Hearings on H.R.. 2498 Before a Sub-comm. of the House Armed Services Comm., 81st Cong., 1st Sess. 898-901 (1949), reprinted in Index and Legislative History, Uniform Code of Military Justice (1950).
Article 26(c) (1969) also provides that a “military judge of a general court-martial shall be designated by the Judge Advocate General, or his designee, of the armed force of which the military judge is a member for detail in accordance with regulations prescribed under subsection (a).” (Emphasis added.) The language of designation is not new (10 USC § 8067) and generally refers to “a special duty classification.” See 1967 U.S.Code Cong. & Admin. News 2113, 2114. Again the actual assignment of a designated military judge to Navy-Marine Corps Trial Judiciary is impliedly left to military personnel authorities. See SECNAVINST 5813.6C (13 April 1979).4
Finally, Article 26(a) (1969), in providing for detailing military judges to hear particular cases, states:
(a) A military judge shall be detailed to each general court-martial. Subject to regulations of the Secretary concerned, a military judge may be detailed to any special court-martial. The Secretary concerned shall prescribe regulations providing for the manner in which military judges are detailed for such courts-martial and for the persons who are authorized to detail military judges for such courts-martial. The military judge shall preside over each open session of the court-martial to which he has been detailed.
(Emphasis added.) As noted in United States v. Graf, 35 MJ 450 (CMA 1992), these regulations provide that detailing will be accomplished by the Chief Judge, the circuit military judge, or the circuit military judge’s designee. See §§ 0120a(l)(1987); 0130a(l)(1990), Manual of the Judge Advocate General of the Navy.
*245In sum, the President and the Senate make a person a commissioned officer; the Secretary of the Navy makes that commissioned officer a judge advocate; the Judge Advocate General qualifies and classifies that judge advocate as a military judge; the Chief of Naval Personnel or the Commandant of the Marine Corps assigns him a duty station; and the Secretary of the Navy provides regulations for his detail to a particular case within that duty assignment.
Ill
Constitutional Tension
In view of these empowering statutes, it is now appropriate to turn to the United States Constitution. See Dynes v. Hoover, 61 U.S. (20 How.) 65, 61 U.S. 65, 15 L.Ed. 838 (1858). Article I, § 8 of the Constitution provides:
The Congress shall have Power
To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two years;
To provide and maintain a Navy;
To make Rules for the Government and Regulation of the land and naval Forces[.]
In addition, I note that this same section of the Constitution further provides:
The Congress shall have Power
To constitute Tribunals inferior to the supreme Court;
To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.
Clearly, these constitutional grants of authority are sufficient to provide for the above-noted statutory establishment of a military justice system with military trial and appellate judges. See Solorio v. United States, 483 U.S. 435, 441, 107 S.Ct. 2924, 2928, 97 L.Ed.2d 364 (1987); Schlesinger v. Councilman, 420 U.S. 738, 757-58, 95 S.Ct. 1300, 1313, 43 L.Ed.2d 591 (1975). See also Rostker v. Goldberg, 453 U.S. 57, 65-66, 101 S.Ct. 2646, 2652, 69 L.Ed.2d 478 (1981).
I also note the operative provisions of the Constitution which appellant asserts are applicable to the appointment of military judges. Article II states in pertinent part:
Section 2. The President shall be Commander in Chief of the Army and Navy of the United States____
[H]e 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 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.
(Emphasis added.) Article II further states:
Section 3. He shall ... take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.
(Emphasis added.)
In view of these provisions of the Constitution, three distinct but nonetheless related issues are raised which this Court must decide. First, can Congress create the position of military judge and provide for its filling under Article I, § 8 of the Constitution without regard to the Appointment Clause of Article II, § 2 of the Constitution? (See Parts IV and V, below.) Assuming it cannot, what does Article II, § 2 of the Constitution require for a proper constitutional appointment to the office of military judge? (See Part VI below.) Finally, does the statutory system of designation/detail provided by Congress for military judges meet the above constitutional requirements? (See Part VII below.)
*246IV
The Scope of the Constitutional Power of Congress in Military Justice
It is beyond cavil that Congress has extremely broad powers to legislate in military matters generally and military justice matters in particular. Moreover, it is also quite clear that the Supreme Court has afforded great deference to Congress’ decisions in this regard. The Coast Guard Court of Military Review has exhaustively summarized the relevant Supreme Court cases supporting these assertions in its decision in United States v. Prive, 35 MJ 569, 573-75 (1992).
Despite these pronouncements, the Supreme Court has also made very clear that its deference to Congress in military matters is not absolute. Rostker v. Goldberg, supra at 67-68, 101 S.Ct. at 2653, states:
None of this is to say that Congress is free to disregard the Constitution when it acts in the area of military affairs. In that area, as any other, Congress remains subject to the limitations of the Due Process Clause, see Ex parte Milligan, [71 U.S. (] 4 Wall. [)] 2, 18 L.Ed. 281 (1866); Hamilton v. Kentucky Distilleries & Warehouse Co., 251 U.S. 146, 156 [40 S.Ct. 106, 108, 64 L.Ed. 194] (1919), but the tests and limitations to be applied may differ because of the military context. We of course, do not abdicate our ultimate responsibility to decide the constitutional question, but simply recognize that the Constitution itself requires such deference to congressional choice. See Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U.S. [94] at 103 [93 S.Ct. 2080, 2087, 36 L.Ed.2d 772 (1973) ]. In deciding the question before us we must be particularly careful not to substitute our judgment of what is desirable for that of Congress, or our own evaluation of evidence for a reasonable evaluation by the Legislative Branch.
Moreover, in Middendorf v. Henry, 425 U.S. 25, 96 S.Ct. 1281, 47 L.Ed.2d 556 (1976), the Supreme Court had earlier held that Congress’ military justice powers were not totally independent of the rest of the Constitution. According to then-Justice Rehnquist:
We recognize that plaintiffs, who have either been convicted or are due to appear before a summary court-martial, may be subjected to loss of liberty or property, and consequently are entitled to the due process of law guaranteed by the Fifth Amendment.
However, whether this process embodies a right to counsel depends upon an analysis of the interests of the individual and those of the regime to which he is subject. Wolff v. McDonnell, 418 U.S. 539, 556, 94 S.Ct. 2963, 2976, 41 L.Ed.2d 935 (1974).
In making such an analysis, we must give particular deference to the determination of Congress, made under its authority to regulate the land and naval forces, U.S. Const., Art. I, § 8, that counsel should not be provided in summary courts-martial. As we held in Burns v. Wilson, 346 U.S. 137, 140, 73 S.Ct. 1045, 1047, 97 L.Ed. 1508 (1953):
“[T]he rights of men in the armed forces must perforce be conditioned to meet certain overriding demands of discipline and duty, and the civil courts are not the agencies which must determine the precise balance to be struck in this adjustment. The Framers especially entrusted that task to Congress.” (Footnote omitted.)
425 U.S. at 43, 96 S.Ct. at 1291. See also Solorio v. United States, 483 U.S. at 451 n.18, 107 S.Ct. at 2933 n. 18.
A question remains, however, whether Congress’ power to make rules for the government and regulation of the Army and Navy is also limited or restricted by Article II, § 2, paragraph 2, clause 2 of the Constitution. The Coast Guard Court of Military Review in United States v. Prive, supra, has held that the Framers of the Constitution did not intend to include Congress’ military justice power within the scope of the appointment clause. Relying on Northern Pipeline Construction Co. v. *247Marathon Pipe Line Co., 458 U.S. at 63-70, 102 S.Ct. at 2867-71, it asserts that the military justice system is one of those “narrow situations ... in which the grant of power to the Legislative and Executive Branches was historically and constitutionally so exceptional that the congressional assertion of a power to create legislative courts was consistent with, rather than threatening to, the constitutional mandate of separation of powers.” Id. at 64, 102 S.Ct. at 2868 (plurality opinion). See 35 MJ at 575-76.
I disagree with the Coast Guard Court of Military Review for several reasons. First, the Supreme Court in Northern Pipeline held that the bankruptcy courts were not legislative courts properly excepted from compliance with the requirements of Article III of the Constitution. While it stated that courts-martial created by Congress under Article I, § 8 of the Constitution were legislative courts, and thus were not affected by Article III of the Constitution, it went no further. The additional leap taken by the Coast Guard Court of Military Review in extending this decision into the area of Article II and the Appointments Clause in disregard of the plain language of the Constitution is simply not justified. See Mimmack v. United States, 97 U.S. 426, 437, 24 L.Ed. 1067 (1878); see also Wood v. United States, 107 U.S. 414, 417, 2 S.Ct. 551, 554, 27 L.Ed. 542 (1883); Blake v. United States, 103 U.S. 227, 232, 26 L.Ed. 462 (1881); 30 Op.Atty.Gen. 177, 180 (1913); 4 Op.Atty.Gen. 603, 610 (1847). See generally 4 P. Kurland and R. Lerner, The Founders’ Constitution 31-38, 98 (1987).
Second, the principle of separation of powers disputed in Northern Pipeline was between the congressional and judicial branches of our government. However, the Supreme Court in Northern Pipeline clearly recognized that the Constitution’s exceptional plenary grant of power over the Nation’s armed forces was to both the Legislative and Executive Branches of our Government. 458 U.S. at 71, 102 S.Ct. at 2871. Accordingly, the ratio decidendi employed by the Supreme Court in Northern Pipeline cannot be logically applied to a dispute between branches of the government which both historically and constitutionally share that very power. See generally E. Corwin, The President: Office and Powers (1787-1984) at 296 (5th rev. ed. 1984).
Finally, the Supreme Court in Freytag v. C.I.R., 501 U.S.-, 111 S.Ct. 2631, clearly recognized two concerns of the Framers of the Constitution in adopting the Appointments Clause of the Constitution. Justice Blaekmun said:
The roots of the separation-of-powers concept embedded in the Appointments Clause are structural and political. Our separation-of-powers jurisprudence generally focuses on the danger of one Branch’s aggrandizing its power at the expense of another Branch. See Mistretta v. United States, 488 U.S. 361, 382, 109 S.Ct. 647, 659, 102 L.Ed. 2d 714 (1989). The Appointments Clause not only guards against this encroachment but also preserves another aspect of the Constitution’s structural integrity by preventing the diffusion of the appointment power.
501 U.S. at-, 111 S.Ct. at 2638 (emphasis added).
More particularly, he later said:
We cannot accept the Commissioner’s assumption that every part of the Executive Branch is a department the head of which is eligible to receive the appointment power. The Appointments Clause prevents Congress from distributing power too widely by limiting the actors in whom Congress may vest the power to appoint. The Clause reflects our Framers’ conclusion that widely distributed appointment power subverts democratic government. Given the inexorable presence of the administrative state, a holding that every organ in the Executive Branch is a department would multiply indefinitely the number of actors eligible to appoint. The Framers recognized the dangers posed by an excessively diffuse appointment power and rejected efforts to expand *248that power. See Wood, at 79-80. So do we. For the chief judge of the Tax Court to qualify as a “Head of a Department,” the Commissioner must demonstrate not only that the Tax Court is a part of the Executive Branch but also that it is a department.
Id. at —, 111 S.Ct. at 2642 (emphasis added). This constitutional concern with Congress’ excessive diffusion of the Executive’s appointing power is simply not addressed by the Northern Pipeline rationale.
V
The Scope of the Constitutional Power of the Executive to Appoint Inferior Officers of the United States
The next inquiry concerns the actual scope of the Presidential appointment power. The general adage is that Congress creates the offices and the President appoints the necessary officers to fill them. See generally L. Tribe, American Constitutional Law 244 (2d ed. 1988). However, the words of the Constitution more particularly narrow the positions in the Federal government which are included within the constitutional appointment process.
Article II of the Constitution states:
Section 1. The executive Power shall be vested in a President of the United States of America____
Section 2. The President shall be Commander in Chief of the Army and Navy of the United States____
He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he 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 which shall be established by Law: but the Congress may be 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.
The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.
Section 3. He shall ... take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.
(Emphasis added.)
In light of these provisions, the first question which arises is who are “all other Officers of the United States” or “such inferior Officers, as they think proper” within the meaning of Article II of the Constitution. The Supreme Court in United States v. Germaine, 99 U.S. 508, 510, 25 L.Ed. 482 (1879), defined such officers as “all persons who can be said to hold an office under the government about to be established under the Constitution____” (Emphasis added.) More recently, the Supreme Court spoke particularly on the office holders who could be considered “Officers of the United States,” as follows:
We think that the term “Officers of the United States” as used in Art. II, defined to include “all persons who can be said to hold an office under the government” in United States v. Germaine, supra, is a term intended to have substantive meaning. We think its fair import is that any appointee exercising significant authority pursuant to the laws of the United States is an “Officer of the United States, ” and must, therefore, be appointed in the manner prescribed by § 2, cl. 2, of that Article.
Buckley v. Valeo, 424 U.S. at 125-26, 96 S.Ct. at 685 (emphasis added). See Freytag v. C.I.R., 501 U.S. at-, 111 S.Ct. at 2640. In this light, a critical question in this case is whether a military judge is an Officer of the United States.
I note that this Court most recently in United States v. Graf, 35 MJ 450, 465 (CMA 1992), and United States v. Mabe, 33 MJ 200 (CMA 1991), analyzed the statutes *249and regulations concerning the military-judge and concluded that “the Uniform Code of Military Justice contemplates that a military judge be a real judge as commonly understood in the American legal tradition.” 35 MJ at 465. In addition, I note that in Freytag v. C.I.R., supra, the Supreme Court expressly held that a special trial judge established by Congress “as an aide to [a] Tax Court judge” is “an ‘inferior Officer’ whose appointment must conform to the Appointments Clause.” 501 U.S. at-, 111 S.Ct. at 2640.
The Supreme Court in Freytag articulated its reasoning for reaching this conclusion, as follows:
The Commissioner reasons that special trial judges may be deemed employees in subsection (b)(4) cases because they lack authority to enter a final decision. But this argument ignores the significance of the duties and discretion that special trial judges possess. The office of special trial judge is “established by Law,” Art. II, § 2, cl. 2, and the duties, salary, and means of appointment for that office are specified by statute. See Burnap v. United States, 252 U.S. 512, 516-517, 40 S.Ct. 374, 376-377, 64 L.Ed. 692 (1920); United States v. Germaine, 99 U.S. 508, 511-512, 25 L.Ed. 482 (1879). These characteristics distinguish special trial judges from special masters, who are hired by Article III courts on a temporary, episodic basis, whose positions are not established by law, and whose duties and functions are not delineated in a statute. Furthermore, special trial judges perform more than ministerial tasks. They take testimony, conduct trials, rule on the admissibility of evidence, and have the power to enforce compliance with discovery orders. In the course of carrying out these important functions, the special trial judges exercise significant discretion.
Even if the duties of special trial judges under subsection (b)(4) were not as significant as we and the two courts have found them to be, our conclusion would be unchanged. Under §§ 7443A(b)(l), (2), and (3), and (e), the chief judge may assign special trial judges to render the decisions of the Tax Court in declaratory judgment proceedings and limited-amount tax cases. The Commissioner concedes that in cases governed by subsections (b)(1), (2), and (3), special trial judges act as inferior officers who exercise independent authority.
501 U.S. at-, 111 S.Ct. at 2640 (emphasis added).
The position of military judge is established by law. See Arts. 26 and 66, UCMJ, 10 USC §§ 826 and 866, respectively. The duties and functions of a person in this position are also established by statute. See Arts. 26, 39, 51, and 66, UCMJ, 10 USC §§ 826, 839, 851, and 866, respectively. The Code authorizes military judges to hear and determine motions on various pretrial, trial, and posttrial matters (see Art. 39(a)); rule on all questions of law and interlocutory questions at courts-martial (Art. 51(b)); and impose Federal convictions up to and including life in prison, punitive separations from the service, and substantial financial penalties (Arts. 16(1)(B) and 18, UCMJ, 10 USC §§ 816(1)(B) and 818, respectively). A judge sitting with court members also instructs them on the various matters necessary to reach appropriate findings and sentences, even in capital cases where a servicemember’s life is at stake. (Art. 51(c)). These are not ministerial tasks but judicial ones calling for the exercise of significant discretion. See United States v. Graf, 35 MJ 450; United States v. Cole, 31 MJ 270, 272 (CMA 1990). Finally, judges exercise independent authority. Art. 37, UCMJ, 10 USC § 837. See United States v. Graf, supra. In my view, the military trial judges and appellate military judges are “Officers of the United States,” as provided for in Article II, § 2 of the Constitution.
VI
The Constitutional Requirements for a Valid Appointment
My next inquiry concerns the particular requirements provided in the Constitution *250for a valid appointment of “Officers of the United States.” The answer to this question in large part depends on whether a military judge is one of “all other Officers of the United States” or is one of the “inferior Officers” generally denominated in Article II, § 2. See United States v. Germaine, 99 U.S. at 509-10, 25 L.Ed. at 483. See generally R. Rotunda, J. Nowak, and J. Young, Treatise on Constitutional Law: Substance and Procedure § 9.4 at 504-05 (1986). In light of the Supreme Court’s characterization of a special tax court judge as an inferior officer in Frey-tag v. C.I.R., supra, I have no reservations in concluding that a military trial judge and military appellate judge are “inferior Officers” of the United States within the meaning of Article II, § 2. See also Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612.
In this light a military judge need not be appointed by the President by and with the Advice and Consent of the Senate. However, it is required that he be appointed by “the President alone,” a Court of Law, or a Head of a Department. Freytag v. C.I.R., supra. Nevertheless, the lead opinion and the Navy-Marine Corps Court of Military in United States v. Coffman, 35 MJ 591 (1992), have held that this constitutional requirement is satisfied by a military officer’s earlier commission and succeeding promotions by the President with the Advice and Consent of the Senate. Relying on Shoemaker v. United States, supra, they assert that no further appointment by the President, a Court of Law, or a Head of a Department is required to permit a “legally trained” military officer to constitutionally assume the office of military trial or appellate judge.5
The Navy-Marine Corps Court of Military Review articulated its rationale for its holding in Coffman as follows:
Assuming arguendo that [the Appointments Clause] applies to military judges, the fact is that all military judges must be commissioned officers of the armed forces of the United States and, as such, have by law already been appointed by the President. Art. 26(b), UCMJ, 10 USC § 826(b); 10 USC §§ 101(4), 101(15), 531, 593, 624, 5001(6), 5912. Depending upon grade, component, and presence on the active-duty list, some of these commissioned officers by law must also have had their appointments confirmed by and t with the advice and consent of the Senate. 10 USC §§ 531, 593, 624, 5912. All military judges must be lawyers. Art. 26(b), UCMJ, 10 USC § 826(b). The duties these commissioned officers are detailed to perform as military judges are within the sphere of their official duties and are germane to the office they already hold. A second appointment from the President to a commissioned officer to perform the duties of a military judge is simply not required. Cf. Shoemaker v. United States, 147 U.S. 282, 299-301, 13 S.Ct. 361, 390-391, 37 L.Ed. 170, 185 (1892) (Army officers (engineers) were not required to obtain a second appointment to perform duties on a commission created by Congress to acquire lands for a park). Accordingly, we conclude the appellant’s first assignment of error is also without merit.
35 MJ at 592.
The lead opinion more particularly posits two reasons why no further constitutional appointment of military judges is required by the Appointments Clause. First, it concludes that the office of military judge is not a “new office,” so no additional appointment is required under Shoemaker v. United States, supra. Assuming it is a new office, the opinion holds that the germaneness of its duties to those duties previously performed by "legally trained military officers” also precludes the need for a second appointment under Shoemaker. I disagree.
The lead opinion concedes that a military judge is an Officer of the United States. Moreover, it notes that the new powers of this officer were previously shared by the members of a court-martial, its president, *251and its law officer. Thus, Congress did not increase the power and duties of “an existing office” but created a new office to which these powers were transferred. It is the removal of these powers and duties from commissioned military officers, not their addition thereto, which renders inapposite the lead opinion’s no-“new-office” argument.
I also find that the lead opinion grossly misapprehends the nature of the duties of a military judge and his contribution to military justice. The creation of the military judge in 1969 was a watershed event because it introduced for the first time, statutorily, a professional judiciary at courts-martial.6 S.Rep. No. 1601, 90th Cong., 2d Sess. 3, 14 (1968). See Ervin, The Military *252Justice Act of 1968, 45 Mil.L.Rev. 77, 83, 88-91 (1969). See generally Ross, The Military Justice Act of 1968: Historical Background, 23 JAG.J. 125 (1969). In this context, a holding that this office is new is an understatement.
Turning to the lead opinion’s “germane duties” rationale, I also find its application in the present case unacceptable. Shoemaker v. United States, supra, is an exception to normal Appointments Clause practice, and a very narrow one at that. The lead opinion’s extension of that case beyond its facts to permit the blanket investing of “legally trained” military officers with the office of military judge without compliance with the Appointments Clause is simply unprecedented. Strictly speaking, such an approach might be appropriate only if the “legally trained” military officers also held a specific presidentially appointed military justice office such as the Judge Advocate General of the Navy. See 10 USC § 5148.7 Otherwise, the lead opinion’s general-duties analysis, at least in my view, constitutes judicial activism.
In Shoemaker, the Supreme Court considered the devolution of additional duties not on commissioned military officers in general or on commissioned military engineering officers. Instead, they devolved on military officers already holding a specific military or civilian office requiring a presidential appointment. See Thian, Legislative History of General Staff of the Army of the United States 3, 485 (1901). See generally Hoeppel v. United States, 85 F.2d 237, 241 (D.C.Cir.1936). One Rock Park Creek Commission member who was a military officer had been previously appointed by the President to the Office of the Chief of Engineers of the United States Army. See R.S. §§ 1094, 1151, and 1193 (1878), and 17 Op. Atty. Gen. 2, 3 (1881); see generally 1 Stat. 749 (1799) and 20 Stat. 151, § 13 (1878); see also 10 USC § 3036 (1956). The second, also a military officer, had previously been “detailed” by the President as the Engineer Commissioner for the District of Columbia. See Ch. 180 § 2, 20 Stat. 103 (1878); 26 Stat. 1113 (1890); see also 10 USC § 3534 (1956). Thus, the additional “germane” duty of membership on the Rock Creek Park Commission cannot be simply said to have generally devolved on a diffused pool of com*253missioned officers or commissioned officers with engineering training.
Second, the Shoemaker decision makes clear that this extraordinary application of the Appointments Clause rests on a conclusion that the new additional duties are “germane to the offices already held by them.” 147 U.S. at 301, 13 S.Ct. at 391. More particularly, the Supreme Court there said:
It is true that it may be sometimes difficult to say whether a given duty, devolved by statute upon a named officer, has regard to the civil or military service of the United States. Wales v. Whitney, 114 U.S. 564, 569, 5 S.Ct. 1050 [1052]; Smith v. Whitney, 116 U.S. 167, 179, 181, 6 S.Ct. 570 [576, 577], But, in the present case, the duty which the military officers in question were called upon to perform cannot fairly be said to have been dissimilar to, or outside of the sphere of, their official duties.
147 U.S. at 301, 13 S.Ct. at 391 (emphasis added). The additional duties as a member of the Rock Creek Park Commission were particularly related to the military officers’ office as Chief of Engineers of the United States Army and office as Engineer Commissioner for the District of Columbia. Clearly neither duty as engineer nor training as an engineer sufficed.
Appellate government counsel and various amici have also asserted that the duties of a military judge are “germane” to the various powers of a commissioned officer under the Uniform Code of Military Justice. These include the power to “quell quarrels, frays, and disorders” (Art. 7(c), UCMJ, 10 USC § 807(c)); make arrests (Art. 9(b), UCMJ, 10 USC § 809(b)); serve as an investigating officer (Art. 32, UCMJ, 10 USC § 832); impose non-judicial punishments (Art. 15, UCMJ, 10 USC § 815); and serve as court-martial members at special courts-martial without a military judge (Art. 25(a), UCMJ, 10 USC § 825(a)). I do not consider a military judge’s judicial duties similar to or within the sphere of the general military justice responsibilities of a line officer. Moreover, the latter duties are collateral and irregular and, therefore, also lack the specificity-of-office considered in Shoemaker.
Finally, the available lower court decisions applying Shoemaker simply do not support a broad military commission-promotion exception to the Appointments Clause for legally trained officers. The Court of Appeals for the Eleventh Circuit applied Shoemaker in the context of the “Investigating Committee of the Judicial Council of Eleventh Circuit.” See In the Matter of Certain Complaints Under Investigation, 783 F.2d 1488 (11th Cir.1986). It noted that the members of this committee were sitting federal judges already appointed by the President who were later selected for service on this judicial committee by the Chief Judge of the Circuit. It held:
Their selection for service on the Committee does not gain them new positions in any meaningful sense; to the contrary, service on a committee of the judicial council, when called upon, is merely an outgrowth of their existing responsibilities. See Shoemaker v. United States, 147 U.S. 282, 301, 13 S.Ct. 361, 391, 37 L.Ed. 170 (1893) {a statutory expansion of the functions of an existing position does not create a new office requiring re-appointment, at least where the newly-added duties are “germane" to existing functions). See also 28 U.S.C. §§ 291, 292 (the Chief Justice may designate and temporarily assign any circuit judge to act as a circuit judge in another circuit if necessary; chief judges of circuit courts may make similar designations and temporary assignments with respect to district judges and districts within their circuits); id. §§ 293-96.
783 F.2d at 1515 (emphasis added). A previously appointed judge is not the same as a previously commissioned officer who is simply “legally trained.”
Judge Lamberth of the United States District Court for the District of Columbia also impliedly rejected the “legally trained” *254military-officer interpretation of Shoemaker. He said:
The [Supreme] Court rejected this argument [that a commission member could not serve absent Senate approval], holding that:
As, however, the two persons whose eligibility is questioned were at the time of the passage of the act and of their action under it officers of the United States who had been theretofore appointed by the President and confirmed by the Senate, we do not think that, because additional duties, germane to the offices already held by them, were devolved upon them by the act, it was necessary that they should be again appointed by the President and confirmed by the Senate. It cannot be doubted, and it has frequently been the case, that Congress may increase the power and duties of an existing office without thereby rendering it necessary that the incumbent should be again nominated and appointed.
Id. [147 U.S.] at 301, 13 S.Ct. at 391 (emphasis added).
The Shoemaker case is distinguishable from this case in two important respects. First, the provision challenged in Shoemaker added certain duties to two offices; it did not confer additional responsibilities on any particular officer. Had the Chief of Engineers of the United States Army or the Engineer Commissioner of the District of Columbia resigned from office after the commission was established, he would no longer have served on the commission — the new Chief of Engineers or Engineer Commissioner would have taken over those duties. Here, however, Mr. Wall was designated the new Director of OTS. Although the position was given to him by virtue of his prior position, it was given to him.
Olympic Federal S & L Assn. v. Director, Office of Thrift Supervision, 732 F.Supp. 1183, 1192-93 (D.D.C.1990) (some emphasis added). Again, no mention whatsoever was made concerning their remaining status as military officers or their general training as engineers.
Lastly, Gila River Pima-Maricopa Indian Community v. United States, 8 Cl.Ct. 700 (1985), provides an example of Congress’ recognition and treatment of the Shoemaker problem. That decision notes that Congress, in constituting the United States Claims Court in 1982 by using trial judges from the old Court of Claims, expressly confronted a Shoemaker problem. Judge Merow provided the following footnote in his opinion:
Thus, in discussing the constitutionality of the provision of Pub.L. No. 97-164 reconstituting the trial division of the Court of Claims into a United States Claims Court comprised of the trial judges of the Court of Claims, H.R.Rep. No. 96-1300, 96th Cong., 2d Sess. 23, n. 25, states as follows:
“Article III, section 1, of the Constitution explicitly empowers the Congress to ordain and establish inferior courts. Consequently, the only questions concern the relation between the power of Congress, under Article I, section 8, cl. 18, of the Constitution to alter, enlarge, or restrict the functions of existing federal officers and the requirement of the Appointments Clause, Article II, section 2, cl. 2, that appointments as officers of the United States be made in the manner prescribed by that clause. Stated differently, this involves a reconciliation of the Supreme Court’s decisions in Shoemaker v. United States, 147 U.S. 282, 301, 13 S.Ct. 361, 391, 37 L.Ed. 170 (1893), and Buckley v. Valeo, 424 U.S. 1, 118-36, 96 S.Ct. 612, 681-90, 46 L.Ed.2d 659 (1976). The earlier case stated the principle that Congress may, by statute, confer new duties on officers of the United States, at least where the new duties are ‘germane’ to their existing functions, without the necessity of reappointment under the Appointments Clause. The lat[t]er holds that Congress may not itself appoint officers of the United States.
“The Committee has concluded that the carry-over of the trial judges into the *255Claims Court is a modification of an existing position rather than a legislative appointment to a new one, governed by Buckley. The bill merely would confer ‘germane’ new duties and extend the tenure of the existing trial judges as permitted by Shoemaker, rather than create a new office.”
8 CLCt. at 702. Examination of the legislative history of Article 26 especially since 1968 reveals no similar statements by Congress concerning Shoemaker’s applicability to “legally trained” or untrained commissioned officers and the newly created position of military judge.
VII
Application to the Present Case
Finding the Shoemaker decision inapplicable, my final concern is whether the system of appointment of a military judge provided in the Uniform Code of Military Justice nonetheless meets the standards of Article II, § 2 of the Constitution. I have noted earlier that military judges are not technically “appointed” under the Code, and their being invested with office is a more complicated process than represented in the granted issue. In addition, I note that Major Pesik, the military judge who presided at appellant’s court-martial, was a Marine, and the appellate court panel for this case was composed of both Navy and Marine officers.
Turning first to Major Pesik, he was commissioned an officer in the United States Marine Corps by appointment of the President, by and with the Advice and Consent of the Senate. 10 USC § 531(a); see 10 USC § 532 or § 593. In accordance with the normal course of events, he rose to the grade of major in the Marine Corps, some of his promotions requiring appointment by the President alone and some also requiring the Advice and Consent of the Senate. 10 USC § 624(c). At some point, with the approval of the Secretary of the Navy, he was designated “a judge advocate.” 10 USC § 5587a. His assignment for duty as a judge advocate of the Marine Corps was made by direction of the Commandant of the Marine Corps. Art. 6(a). Moreover, he was certified by the Judge Advocate General of the Navy to perform the duties of trial and defense counsel detailed for a general court-martial. Art. 27(b). Later, he was certified as qualified to be a military judge and designated for detail as such by the Judge Advocate General of the Navy. Art. 26(b). Finally, he was assigned to duty at the Sierra Judicial Circuit by the Commandant of the Marine Corps on the recommendation of the Judge Advocate General of the Navy.
The Marine Colonel and Navy Captains on the Court of Military Review were also commissioned officers who were appointed by the President with the Advice and Consent of the Senate. Their promotions to these distinguished grades were accomplished by appointment of the President with the Advice and Consent of the Senate. They were constituted a court by the Judge Advocate General of the Navy and designated for detail to it by that same officer.
The bottom line is that none of these military judges was appointed to that position or a germane position by the President alone, the Courts of Law, or the Head of a Department.8
VIII
CONCLUSION
Duty to Inform
In summary, it is my view that a military judge is not only a military officer but an “inferior Officer” of the United States as provided for in Article II, § 2 of the Constitution. Congress under Article I, § 8 of the Constitution was fully competent to *256create such a military judicial position and empower the holder of this office to dispense justice to servicemembers at courts-martial. Having done so, however, it was further required by Article II, § 2 to provide that the person who fills this office be appointed by the President, a Court of Law, or the Head of a Department.
The reason that Congress has not provided for this type of appointment for military judges is not readily apparent. The lead opinion suggests that Congress, cognizant of the decision in Shoemaker v. United States, 147 U.S. 282, 13 S.Ct. 361, 37 L.Ed. 170, made a conscious decision that a second appointment by the President of a commissioned officer to perform these new court-martial duties was not necessary. Examination of the legislative history of the statutes creating this position, however, offers no express support for this theory. Cf Gila River Pima-Maricopa Indian Community v. United States, 8 Cl.Ct. at 702 n. 1. Moreover, examination of the Shoemaker decision in light of the legislation creating the military judge suggests to me that this decision’s rationale is inapplicable to the case at bar. See Olympic Fed. S & L v. Office of Thrift Supervision, 732 F.Supp. at 1192-93.
My own view is more consistent with congressional silence. The office of military judge was established in 1968 when the Supreme Court utilized a “mode of appointment” approach to the Appointments Clause. See Note, Toward a New Functional Methodology in Appointments Clause Analysis, 60 G.W.L.Rev. 536, 539-43 (1992); cf. Note, Power of Appointment to Public Office Under The Federal Constitution, 42 Harv.L.Rev. 426 (1929). In other words, an “inferior Officer” of the United States was a Federal office holder whose appointment Congress required be made by the President, a Court of Law, or the Head of a Department. United States v. Mouat, 124 U.S. 303, 8 S.Ct. 505, 31 L.Ed. 463 (1888). See Hoeppel v. United States, 85 F.2d 237, 241 (D.C.Cir.1936). It was not until 1976 in Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, that the “mode of appointment” approach was jettisoned in favor of a functional duty approach to Appointments Clause questions. See Note, 42 Harv.L.Rev. at 544-52; see also Freytag v. C.I.R., 501 U.S. -, 111 S.Ct. 2631. In my view, there is simply no doubt that a military judge’s duties and responsibilities now qualify him as an “inferior Officer” of the United States.9
The Remedy
Appellant has shown no specific prejudice to his case due to the failure to provide for compliance with the Appointments Clause. However, simple affirmance is not sufficient under the de /acio-appointee rationale of Buckley and the Northern Pipeline cases. It is the duty of this Court also to point out the unconstitutional statutory deficiency as this opinion has done. It should be in Congress’ hands to render appropriate legislation to fix this statutory deficiency. In the interim, the President could, based on the rationale in this opinion, direct the Head of the Department of Defense to start appointing military judges as necessary to perform military justice functions in the department. See United States v. Matthews, 16 MJ 354, 382 (CMA 1983). Thus, the Executive Branch’s constitutional role in this area, as envisioned by the Appointments Clause, would be restored.
. Appellant represents without opposition that Major Pesik was a “General Court-Martial qualifled” judge and the Sierra Judicial Circuit’s Chief Military Judge.
. What is an "appointment” for purposes of the Appointments Clause is a substantial constitutional question concerning separation of powers which implicates all three branches of our Government. See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 155, 2 L.Ed. 60 (1803). See generally Buckley v. Valeo, 424 U.S. 1, 122-24, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976). Moreover, in Auffmordt v. Hedden, 137 U.S. 310, 327, 11 S.Ct. 103, 108, 34 L.Ed. 674 (1890), the Supreme Court clearly held that Congress’ use of the word "select” rather than "appoint” was but one factor to be considered in determining whether the Appointments Clause applied. Finally, in Shoemaker v. United States, 147 U.S. 282, 13 S.Ct. 361, 37 L.Ed. 170 (1893), the Supreme Court impliedly held that designation of officers for additional duty requires compliance in some manner with the Appointments Clause.
. 10 USC § 5013(g) provides:
(g) The Secretary of the Navy may—
(1) assign, detail, and prescribe the duties of members of the Navy and Marine Corps and civilian personnel of the Department of the Navy;
(2) change the title of any officer or activity of the Department of the Navy not prescribed by law; and
(3) prescribe regulations to carry out his functions, powers, and duties under this title.
10 USC § 5131 creates the Bureau of Naval Personnel and 10 USC § 5132 empowers it as follows:
§ 5132. Bureaus: distribution of business; orders; records; expenses
(a) Except as otherwise provided by law, the business of the executive part of the Department of the Navy shall be distributed among the bureaus as the Secretary of the Navy considers expedient and proper.
(b) Each bureau shall perform its duties under the authority of the Secretary, and its orders are considered as coming from the Secretary.
(c) Under the Secretary, each bureau has custody and charge of its records and accounts.
(d) Each bureau shall furnish to the Secretary estimates for its specific, general, and contingent expenses.
For members of the Marine Corps, these powers are vested in the Commandant of the Marine Corps. See 10 USC § 5043(e)(3).
. 6. Organization. The Navy-Marine Corps Trial Judiciary is a naval activity as that term is defined in [U.S. Navy Regulations, 1973]. It is composed of the Office of the Chief Judge of the Navy-Marine Corps Trial Judiciary and such Judicial Circuits and their Branch Offices as may be established by the Judge Advocate General. The Judge Advocate General may also establish Judicial Areas, each consisting of two or more Judicial Circuits, for the purpose of providing an intermediate level of supervision within the Trial Judiciary. Expansion of the Navy-Marine Corps Trial Judiciary will come from current manpower resources as determined by the Chief of Naval Operations, the Commandant of the Marine Corps, and the Judge Advocate General, acting in coordination. The Marine Corps Special Court-Martial Judiciary is disestablished, and its members are members of the Navy-Marine Corps Trial Judiciary.
8. Authority Over Organization, Functions and Administration. The Judge Advocate General is authorized to organize, administer, assign, and reassign functions to the Navy-Marine Corps Trial Judiciary and personnel attached thereto in accordance with [10 USC § 826 et. seq.].
. This argument on its face fails to justify appointment of civilians to the Court of Military Review as authorized by Article 66, Uniform Code of Military Justice, 10 USC § 866.
. The establishment of the military judge was not the only change accomplished by the legislation of 1968. Also, for the first time in the history of American military justice, a service-member could be tried and sentenced by a single military officer without court members in serious non-capital cases. Art. 16(1)(B), UCMJ, 10 USC § 816(1)(B). See H. Moyer, Justice and The Military § 2-620 at 536 (1972); Douglass, The Judicialization of Military Courts, 22 Hast. LJ. 213, 220 (1971).
Representative Philbin commented on the reason for this bill as follows:
The need for this bill has become acute because of the increased size of our Armed Forces resulting from the military activity in Southeast Asia. Besides the savings in time and manpower afforded by the bill, the bill provides meaningful benefits and protections to the accused.
The enactment of this legislation will permit the procedure for trials by special and general courts-martial to conform more closely with the procedure used in the trial of criminal cases in the U.S. district courts and will enhance the prestige and effectiveness of the law officer, whose name is changed by the bill to "military judge,” so that his judicial stature and authority in the courtroom will more closely approximate that of a civilian trial judge. The bill allows the military judge to rule finally on certain procedural matters, such as motions for findings of not guilty, on which he now may be overruled by the court members who are untrained in the law. The bill provides for pretrial and posttrial sessions to be held by the military judge without the presence of the court panel for the purpose of deciding procedural questions. The bill provides for trial in special and general court-martial by a military judge alone without court members if the accused requests and the request is approved by the military judge. These last two provisions are expected to save innumerable man-hours of line officers who would otherwise be required to be in attendance at courts-martial, as well as improving the internal efficiency of the justice system.
* * *
The enactment of this bill will be the most significant advance in the field of military justice since the enactment of the Uniform Code of Military Justice in 1951.
114 Cong.Rec. 30563-64 (1968) (emphasis added).
Representative Bennett, a central figure in the development of this legislation, made this statement regarding the 1968 legislation:
The need for this bill has become acute because of the increased size of our Armed Forces resulting from our present military activity in Vietnam. The bill provides meaningful benefits and protections to the accused, as well as streamlining procedures. The bill contains the following provisions, which are designed to increase the fairness of the military justice system: First, the accused must be afforded the right to be defended by a qualified lawyer at special courts-martial — heretofore such a right only existed in the case of general courts-martial; second, before a bad conduct discharge can be adjudged at a special court-martial, the accused must be represented by a qualified lawyer and the proceedings must be conducted by a “military judge” — a term I will discuss below — except where physical conditions or military exigencies prevent one from being obtained; third, the bill extends the time in which the accused can petition for a new trial from 1 to 2 years; and fourth, an accused faced with trial at summary court-martial can object to such an informal trial, at which time the convening authority must bring charges at a special or general court-martial or dismiss them.
The enactment of H.R. 15971 will permit the procedure for trials in the military to conform more closely to the procedures used in the Federal courts. The bill also enhances the prestige and effectiveness of the law officer, whose name is changed to “military judge." The role of the “military judge" will closely approximate that of a civilian trial judge: he will rule finally on certain procedural matters and will hold open pretrial and posttrial sessions without the presence of the court for the purpose of deciding procedural questions. An accused can request a special and general court-martial by a "military judge” alone.
The bill changes the name of the intermediate appellate agencies in the military from boards of review to courts of military review. The bill requires that the judges of these courts and of courts-martial be part of an independent judiciary. In addition, the bill authorizes a military form of release on bail *252pending appeal, the need for which has been pointed out in several recent cases. .
The importance of this legislation cannot be overstated. It is particularly needed in Vietnam, as has been pointed out by General Westmoreland; for under the bill line officers will be free from the necessity of serving as court members in many cases; and many previously wasted man-hours will be saved because of streamlined procedures.
I think it is most significant that the House of Representatives, which fathered the Uniform Code of Military Justice, also initiated the action on this legislation and now has the opportunity to put the capstone on it. The enactment of H.R. 15971 will be the most significant advance in the field of military justice since enactment of the Uniform Code of Military Justice. I heartily recommend the House approve the Senate amendments.
114 Cong.Rec. 30565 (1968) (emphasis added).
. Neither of the two cases cited in Shoemaker v. United States, 147 U.S. 282, 301, 13 S.Ct. 361, 391, 37 L.Ed. 170 (1893), supports a "commissioned officer" exception to the Appointments Clause or its general-military-duty rationale as created by the lead opinion.
The petitioner in Smith v. Whitney, 116 U.S. 167, 6 S.Ct. 570, 29 L.Ed. 601 (1886), was an officer of the Navy who was later appointed by the President by and with the consent of the Senate, as the "chief of the bureau of provisions and clothing and pay-master general in the department of the navy, with the relative rank of commodore.” Id. at 168, 6 S.Ct. at 570.
The petitioner in Wales v. Whitney, 114 U.S. 564, 5 S.Ct. 1050, 29 L.Ed. 577 (1885), was an officer in the Navy who was later appointed by the President, by and with the consent of the Senate as "chief of the bureau of medicine and surgery in the department of the navy,” which office carried the additional title of “surgeon general of the navy.” Id. at 569, 5 S.Ct. at 1052. See 10 USC § 5137, Historical and Revision Notes, R.S. 421 and 426.
The Supreme Court’s holding that these military officers could be court-martialed for offenses under the Articles for the Government of the Navy does not logically suggest that an additional presidential appointment was not required for their assumption of their more particular civil or military offices.
. The term “Heads of Departments” for purposes of the Appointments Clause has recently been defined by the Supreme Court to be a member of the Cabinet. See Freytag v. Commissioner of Internal Revenue, 501 U.S.-,-- -, 111 S.Ct. 2631, 2642-43, 115 L.Ed.2d 764 (1991). "Courts of Law” are also defined in terms of their "exclusively judicial role.” Id. at -, 111 S.Ct. at 2645. Neither the Secretary of the Navy, the Commandant of the Marine Corps, nor the Judge Advocate General of the Navy meets either of these tests.
. The Supreme Court has recently denied petitions for certiorari in two cases where this Appointments Clause issue was raised for the first time in that Court. Bolado v. United States, — U.S.-, 113 S.Ct. 321, 121 L.Ed.2d 242 (1992); Allen v. United States, — U.S.-, 113 S.Ct. 324, 121 L.Ed.2d 244 (1992). However, as the Supreme Court itself has consistently said, "The denial of a writ of certiorari imports no expression of opinion upon the merits of the case, as the bar has been told many times." United States v. Carver, 260 U.S. 482, 490, 43 S.Ct. 181, 182, 67 L.Ed. 361 (1923). See generally R. Stern, E. Gressman, and S. Shapiro, Supreme Court Practice 269-72 (6th ed. 1986).