(dissenting):
Not since Solorio v. United States, 483 U.S. 435, 107 S.Ct. 2924, 97 L.Ed.2d 364 *257(1987),1 has an appeal presented questions of such fundamental importance to the institutional integrity and viability of the military justice system as does this one. Once the legal chaff is separated out, the grain of the related questions of law before this Court is quite clear:
First, in exercising its power “[t]o make Rules for the Government and Regulation of the land and naval Forces” under Article I, § 8, clause 14 of the Constitution, is Congress exempt from the prescriptions of Article II, § 2, clause 2 of the Constitution — the Appointments Clause — regarding appointment of “Officers of the United States”?
Second, within the meaning of the Appointments Clause and the decision in Freytag v. Commissioner of Internal Revenue, 501 U.S.-, 111 S.Ct. 2631, 115 L.Ed.2d 764 (1991), do Articles 26 and 66 of the Uniform Code of Military Justice, 10 USC §§ 826 and 866, respectively, establish a distinct office of military judge?
Third, if so, does the decision in Shoemaker v. United States, 147 U.S. 282, 13 S.Ct. 361, 37 L.Ed. 170 (1893), permit the conclusion that the duties of that distinct office are “germane” to the duties either of military officers generally or “legally trained military officers” specifically, so that the Appointments Clause does not require separate appointment of some such military officers as military judges?
Today, a majority of this Court approves the present practice of appointment of military judges by officials2 below the rank of those set out in Article II, § 2, clause 2 of the Constitution — the Appointments Clause. In doing so, however, I believe that the various opinions of my colleagues who join in that disposition improperly reconcile the two provisions of the Constitution that are in issue in the first question and incorrectly read the decisions of the Supreme Court of the United States on which answers to the second and third questions depend. Accordingly, I dissent.
I
Without question, the Constitution vested in Congress the powers to “raise and support Armies” (cl. 12); “provide and maintain a Navy” (cl. 13); and “make Rules for the Government and Regulation of the land and naval Forces” (cl. 14). Art. 1, § 8. The critical question at the outset here is not Congress’ authority to legislate in this area by constructing a military justice system and providing for trial and appellate military judges; rather, it is whether, in doing so, Congress is free from the facially unconditioned restriction of the Appointments Clause regarding how those military judges must be appointed.
The Chief Judge, particularly in Part IV of his opinion, thoughtfully treats the matter of deference to Congress in its regulation of military affairs. See United States v. Prive, 35 MJ 569, 573-77 (CGCMR 1992). The Supreme Court has instructed that “judicial deference ... is at its apogee when legislative action under the congressional authority to raise and support armies and make rules and regulations for their governance is challenged.” Rostker v. *258Goldberg, 453 U.S. 57, 70, 101 S.Ct. 2646, 2655, 69 L.Ed.2d 478 (1981), quoted in Solorio v. United States, 483 U.S. at 447, 107 S.Ct. at 2931. See also Goldman v. Weinberger, 475 U.S. 503, 508, 106 S.Ct. 1310, 1313, 89 L.Ed.2d 478 (1986).
Deference, however, does not equate to abdication. The Supreme Court has recognized that, in light of Congress’ regulatory powers over the military, constitutional rights might have application and meaning in the military different from the civilian community, see, e.g., Solorio v. United States, supra at 447, 107 S.Ct. at 2931. The Court, however, has never instructed that Congress’ regulatory power is a talisman, in the face of which the remainder of the Constitution withers. Indeed, quite to the contrary, the Court stated in Rostker v. Goldberg, supra at 67, 101 S.Ct. at 2653:
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, 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.
(Citations omitted.)
The Constitution’s grant of regulatory power to Congress over military affairs is no more plenary than, for instance, its grant of power to Congress in Article I “[t]o ... provide for the ... general Welfare of the United States” (§ 8, cl.l); or over Federal elections (§ 4); or “[t]o make all Laws which shall be necessary and proper for carrying into Execution” these and other powers specifically set out elsewhere in the Constitution (§ 8, cl. 18). When the Supreme Court in Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976), was presented with the argument that appointment of members of the Federal Election Commission was pursuant to these plenary powers of Congress and, thus, not subject to the Appointments Clause, the Court responded:
But Congress has plenary authority in all areas in which it has substantive legislative jurisdiction, McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 [4 L.Ed. 579] (1819), so long as the exercise of that authority does not offend some other constitutional restriction. We see no reason to believe that the authority of Congress over federal election practices is of such a wholly different nature from the other grants of authority to Congress that it may be employed in such a manner as to offend well-established constitutional restrictions stemming from the separation of powers.
The position that because Congress has been given explicit and plenary authority to regulate a field of activity, it must therefore have the power to appoint those who are to administer the regulatory statute is both novel and contrary to the language of the Appointments Clause. Unless their selection is elsewhere provided for, all officers of the United States are to be appointed in accordance with the Clause____ No class or type of officer is excluded because of its special functions.
424 U.S. at 132, 96 S.Ct. at 688.
I agree. There is nothing anywhere in the Constitution of the United States or in decisions of the Supreme Court that supports the notion that mandates of the Constitution do not penetrate the walls of the military enclave. Further, unlike application of certain individual rights to service-members, there is nothing about the Appointments Clause that requires a different application in a military context than it does in the rest of the United States.3 *259Nothing could be plainer than that the Appointments Clause, by its own terms, does not except appointment to offices created under Congress’ power to regulate the military any more than it excepts appointment to offices created under any of Congress’ other numerous, plenary powers.
In short, as the Supreme Court succinctly stated in Freytag v. C.I.R., 501 U.S. at -, 111 S.Ct. at 2639, “Neither Congress nor the Executive can agree to waive this structural protection” of the Appointments Clause.4 Accordingly, if the Uniform Code of Military Justice established a distinct office of military judge, appointments to fill that office must comport with the Appointments Clause.
II
In an effort to identify who are included as “Officers of the United States” and other "inferior Officers” within the meaning of the Appointments Clause, the Supreme Court has said:
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[, 99 U.S. 508, 510, 25 L.Ed. 482 (1879)], 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 126, 96 S.Ct. at 685 (emphasis added), cited with approval in Freytag v. C.I.R., 501 U.S. at-, 111 S.Ct. at 2640.5
Military judges are “established by Law,” and their “duties and functions are ... delineated in a statute” — specifically, Articles 26 and 66 of the Code. See 501 U.S. at-, 111 S.Ct. at 2640. Further, their functions and responsibilities, as fully reflected in the Chief Judge’s opinion, 36 MJ at 249, and prescribed in the statute and in the decisions of this Court, are leaps and bounds more than “ministerial tasks”; and “[i]n the course of carrying out these important functions, [military judges] exercise significant discretion.” 501 U.S. at -, 111 S.Ct. at 2640; see Criminal Law Note: An Ongoing Trend: Expanding the Status and Power of the Military Judge, The Army Lawyer 23 (Dept, of the Army Pamplet 27-50-239, October 1992). In my view, application of the Supreme Court’s *260functional-duty analysis compels the conclusion that there is a distinct office of military judge.
The lead opinion concludes otherwise, after tracing the evolution of the law member to the law officer to the military judge. As to the final stage in this process, the plurality opines:
The Military Justice Act of 1968 changed the title of the law officer to military judge, in order to increase his stature, and transferred more duties from the president of the court-martial to the military judge. See Art. 26, 82 Stat. 1336. Since the Act merely transferred authority and duties from one official of the court-martial to another and renamed the law officer, it did not create a new office.
36 MJ at 229 (emphasis added). This casual view of the functions and duties of military judges is not only demeaning; it is inaccurate.
First, the lead opinion itself acknowledges an incredibly important addition to the functions and discretion of the military judge over any other single official that previously sat at a court-martial: To sit, alone, as a court-martial and determine, alone, the issue of guilt and the sentence of a convicted accused in serious non-capital cases. This extraordinary power extends to convicting servicemembers of such serious felonies as murder and espionage and imposing any sentence other than death— including life imprisonment. Never before did any single member of the armed forces — the president of a court-martial or anyone else — have the statutory authority to perform this function.6
Second, the lead opinion omits to notice other important additions to the duties and responsibilities of a military judge that were not mere transfers from a president of a court-martial. For instance, prior to 1969, challenges for cause against a law officer or members of a court-martial were determined by the members collectively, see Arts. 41(a) and 51(b), UCMJ, 50 USC §§ 616(a) and 626(b) (1950), respectively, recodified as 10 USC §§ 841(a) and 851(b) (1956), respectively; by contrast, after 1969, a military judge rules finally on all such challenges, see Art. 41(a) (1968). Additionally, as footnote 6 of the Chief Judge’s opinion makes clear, Congress was aware of other important duties that were given to a military judge that, before, had not rested with any single official, e.g., “ ‘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,’ ” and “ ‘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.’ ” In sum, the role of the military judge “ ‘will more closely approximate that of a civilian trial judge.’ ” See 114 Cong. Rec. 30564 (1968).
That is an Office,7 See Freytag v. C.I.R., 501 U.S. at-, 111 S.Ct. at 2640. *261It is an Office that involves a full range and collection of judicial functions and duties that, prior to 1969, did not repose in any other individual in the military justice system.8 This factual analogy is consistent with the plain language of the UCMJ, which expressly defines the military judge as “an official.” Art. 1(10) (1969).
At the appellate level, the functions and duties of military judges are similarly imposing. A Court of Military Review exercises “awesome, plenary ... powers.” United States v. Cole, 31 MJ 270, 272 (CMA 1990). It is charged in every case it considers to “weigh the evidence, judge the credibility of witnesses, and determine controverted questions of fact,” and it may in a given case “affirm only such findings of guilty, and the sentence or such part or amount of the sentence, as it finds correct in law and fact and determines, on the basis of the entire record, should be approved.” Art. 66(c).
In other words, appellate military judges sitting on a Court of Military Review in each case hear and decide all legal issues arising from the proceedings below, satisfy themselves that the evidence is factually sufficient to sustain the findings, assure that the sentence is legally imposable, and determine anew whether the sentence is an appropriate one. In addition to these functions during the usual course of appellate review of a court-martial conviction, Courts of Military Review possess and have exercised extraordinary-writ powers where appropriate. See Dettinger v. United States, 7 MJ 216 (CMA 1979). All this is done without any second-guessing by any military superior and is subject to review only within the judicial system, by this Court.
By any view, in my opinion, these functions of military judges at the appellate level, like those of military judges at the trial level, are substantially “more than ministerial tasks”; rather, they reflect the exercise of “significant discretion” as well as final judgment subject only to judicial review by a superior appellate court. See Freytag v. C.I.R., 501 U.S. at -, 111 S.Ct. at 2640. Just as surely as I said earlier about military judges at the trial level, these functions and duties of appellate military judges leave no doubt in my mind that Congress created an office of military judge.
Ill
Relying on Shoemaker v. United States, 147 U.S. 282, 13 S.Ct. 361, 37 L.Ed. 170 (1893), the plurality concludes that
[ajssuming, arguendo, that a new office was created at some time during the evolution of the military judge, the result is the same, because the duties of the military judge are the same as those traditionally performed by military officers serving as members of courts-martial. As such, they are germane to the duties of a legally trained military officer [detailed as a military judge].
Thus, the plurality reasons, a new appointment is not required. 36 MJ at 230. I join the Chief Judge’s reasoning in Part VI of *262his opinion that rejects both this reasoning and its reliance on Shoemaker.
Simply stated, Shoemaker was a situation in which the Supreme Court looked at the duties of two particular, high-level military engineers — the Chief of Engineers and the Engineer Commissioner for the District of Columbia — and concluded that the additional duties that Congress purported to give them as members of the Rock Creek Park Commission were germane to their particular offices, so that a second appointment was not necessary. That is a far cry from the extrapolation that the lead opinion now makes: That devolution of specific and highly responsible judicial duties as a military judge is “germane” to some nebulous notion of duties of “legally trained military officers” in general. Cf. Criminal Law Note, supra at 259. Analogizing in reverse back to Shoemaker, what the plurality affirms here would be akin to concluding that the responsible and discretionary functions and duties of the commissioners on the Rock Creek Park Commission were “germane” to duties of any military officer trained as an engineer. Shoemaker may not be read that broadly.
Finally, I view two significant provisions in the Uniform Code of Military Justice as contradicting the plurality’s conclusion that duties of a military judge are germane to the duties of a military officer. First, as Articles 26(b) and 66(a) expressly require that a military judge at both the trial and appellate levels be “a member of the bar of a Federal court or ... of the highest court of a State,” military authorities do not have complete control over whether a military officer meets the statutory qualifications to be a military judge. Admission to the practice of law is controlled or regulated by state statute, court rule, or both, and requires comprehensive legal training not provided by the military and a determination of legal competence by the civilian authority. See 7 Am Jur 2d, Attorneys At Law § 12; American Bar Association, Comprehensive Guide to Bar Admission Requirements (1992-93). Because a service-member’s admission to the independent bar by civilian authority is a statutory qualification for a military judge, I cannot conclude that duties of a military judge are germane to the general duties of a military officer, even a “legally trained” one.
Second, as the lead opinion acknowledges, Article 66(a) authorizes appointment of civilians as appellate military judges on the Courts of Military Review. The plurality purports to preclude the difficulty that this statutory provision creates with its germaneness theory, but it cannot be evaded. Whether civilians sat as judges in this case is not the point; rather, the pertinent inquiry is: What impact does this statutory authorization have on the interpretation of that statute as a whole relevant to whether the duties and functions of an appellate military judge are “germane” to duties generally of a military officer, even one “legally trained”? The express statutory provision for civilians on the appellate court is inconsistent with the plurality’s germaneness theory. The plurality disregards this inconsistency; I cannot do so.
CONCLUSION
In summary, I conclude that Congress is not exempt from the strictures of the Appointments Clause of Article II, § 2, clause 2 of the Constitution when it exercises its powers under Article I, § 8, clause 14 of the Constitution to regulate the land and naval forces. See Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612. Considering the functions and duties of military judges, I conclude that Congress established a distinct office of military judge in Articles 26 and 66 of the Uniform Code of Military Justice, so the Appointments Clause must be complied with in filling that office. See Freytag v. C.I.R., 501 U.S.-, 111 S.Ct. 2631. Finally, I conclude that a prior general appointment as a military officer will not satisfy the Appointments Clause in this regard because the specific judicial duties required of the office of military judge — as opposed to duty as a military officer — are not “germane” to duties of a “legally trained” military officer in general. See *263Shoemaker v. United States, 147 U.S. 282, 13 S.Ct. 361.
Because a majority of this Court, on the other hand, is of the view that the present method of appointing military judges meets constitutional requirements, I need not decide whether these appointments can be affirmed under the de /acio-appointee rationale of Buckley, as discussed by the Chief Judge. 36 MJ at 256. I point out, though, that even that rationale has certain logical and legal limitations.9
. That is the only case in which the Supreme Court of the United States has granted plenary review of a decision of this Court, see Art. 67a, Uniform Code of Military Justice, 10 USC § 867a (1989); see also Art. 67(h)(1), UCMJ, 10 USC § 867(h)(1) (1983). There, the Court held that jurisdiction of a court-martial depended solely on the accused’s status as a member of the armed forces, not on the “service connection” of the offenses charged. In doing so, the Court expressly overruled its decision in O’Callahan v. Parker, 395 U.S. 258, 89 S.Ct. 1683, 23 L.Ed.2d 291 (1969), that had rested significantly on the historical viewpoint that ”[b]oth in England prior to the American Revolution and in our own national history military trial of soldiers committing civilian offenses has been viewed with suspicion.” O’Callahan v. Parker, supra at 268, 89 S.Ct. at 1688 (footnote omitted), quoted in Sobrio v. United States, 483 U.S. 435, 442, 107 S.Ct. 2924, 2928, 97 L.Ed.2d 364 (1987).
. One important dimension to the problem underlying this appeal is that it is not entirely clear who "appoints” military judges. As the separate opinion of Chief Judge Sullivan makes apparent, the answer is not the obvious first guess (the Judge Advocate General of each service) and is not consistent among the armed forces.
. Judge Crawford’s attempt to distinguish between civilian and military judiciaries based on "military exigencies" is a strawman. Nothing in any of the other opinions in this case would have any untoward impact whatsoever on the ability of the Judge Advocate General to tactically move and reassign military judges or to meet the operational realities of a military in the *259field, as well as in the garrison. At the same time, there was no occasion of which this Court has been made aware that required any sort of emergency appointment of military judges resulting from deployment of our armed forces. Simply stated. Judge Crawford’s implied alarm — that appointment of military judges by, say, the Secretary of Defense {see opinion, infra ) somehow undermines the response capability of our armed forces in some manner that appointment by the Judge Advocate General does not — is a false alarm.
. Judge Crawford’s constricted focus on the purpose of the Appointments Clause is a misstep off the cleared path of the law. As the Supreme Court of the United States unequivocally instructed in Freytag v. Commissioner of Internal Revenue, 501 U.S. -, -, 111 S.Ct. 2631, 2639, 115 L.Ed.2d 764 (1991), the Appointments Clause not only involves the constitutional tug-of-war between the Executive and Legislative Branches but also ensures that responsibility to make appointments to offices in the Executive Branch will not be delegated and diffused to a level below the very highest, responsive level of "the President alone,” “Courts of Law,” or "Heads of Departments.”
. As the Chief Judge points out, Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976), marked the first time that the Supreme Court used this approach of examining the functions and duties of a purported office to determine whether it was an Office of the United States. Prior to that decision, the approach was one that could fairly be characterized as rather circular: A position was an Office only if Congress required that the position be filled by the President, a Court of Law, or a Head of a Department. In other words, this "mode of appointment” approach essentially concluded that an Office was an Office when Congress said it was an Office by providing for appointment thereto consistent with the Appointments Clause. The functional-duty approach followed since Buckley, of course, is more consistent with the principle that even Congress cannot legislate in violation of the Appointments Clause, see Freytag v. C.I.R., supra.
. The plurality's effort to minimize the remarkable nature of this change, by referring to the long history of "one-member" summary courts-martial, is off the mark. After all, the Supreme Court has held that a summary court-martial is not even a criminal proceeding. Middendorf v. Henry, 425 U.S. 25, 36-42, 96 S.Ct. 1281, 1288-91, 47 L.Ed.2d 556 (1976).
. In determining this question of whether there is a distinct office, the lead opinion reflects significance in subtleties of wording of Articles 26 and 66, and, by comparison, 67, UCMJ, 10 USC §§ 826, 866, and 867, respectively. I simply make these observations about that exercise.
The Supreme Court in Freytag v. C.I.R., supra at-, 111 S.Ct. at 2640, initially noted as a predicate that the office there was one "established by Law” and then followed the functional-duty approach and focused on the "duties and functions" delineated in the statute. As to whether Articles 26 and 66 as a predicate establish an office of military judge by law, a comparison of those provisions with the statutes in issue in Freytag ineluctably lead me to conclude that Articles 26 and 66 pass muster to do so. Compare 26 USC § 7443A-Special trial judges (“The chief judge [of the Tax Court] may, from time to time, appoint special trial judges who shall proceed under such rules and regulations as may be promulgated by the Tax Court.” § 7443A(a)), with Article 1(10), UCMJ, 10 USC § 801(10) (" '[Military judge’ means an official of a general or special court-martial detailed in accordance with section 826 of this title (article 26)."); Article 26(b) ("A military judge shall be *261detailed to each general court-martial.”); and Article 66(a) (“Each Judge Advocate General shall establish a Court of Military Review which shall be composed of one or more panels, and each such panel shall be composed of not less than three appellate military judges.")
That predicate established, however, the real heart of the test relates to the nature and quality of the functions and duties of military judges delineated by those provisions; that inquiry is more fully addressed in my opinion, supra.
. The lead opinion points out that some of the functions and responsibilities that, after 1969, rest with the military judge earlier had been those collectively of the members of a court-martial. Without charting here the source of each of a military judge's duties, suffice to say that some earlier had belonged to members; some earlier had belonged to the president of a court-martial; and some earlier were non-existent — they were reposited for the first time in the office of military judge. Accordingly, I rhetorically ask the plurality: Does the fact that some (even assuming most, for this purpose) of the responsibility and discretion that now is lodged in one source actually came from several various sources in any way change the equation as to whether that one source now is an "office” under the functional-duty approach, see n.5, supra?
. The Chief Judge touches on some of these issues in Part VIII of his opinion in which he suggests the possibility of interim Presidential direction on appointments through the Secretary of Defense. In addition, the appropriate time for effecting statutory remedial action would be at issue. For instance, in implementing the de facto-appointee rationale in Buckley v. Valeo, 424 U.S. at 142-43, 96 S.Ct. at 693, the Supreme Court stayed its judgment for a period of 30 days to afford Congress an opportunity to reconstitute the Federal Election Commission and, in the interim, allowed the commission to function de facto. Also, by analogy, in Northern Pipeline Construction Co. v. Marathon Pipe Line Co., 458 U.S. 50, 102 S.Ct. 2858, 73 L.Ed.2d 598 (1982), which involved a jurisdictional void created by a ruling that a system of bankruptcy courts was unconstitutional, the Supreme Court delayed its mandate for several months to permit Congress an opportunity to implement remedial action. After the initial delay, 458 U.S. at 88, 102 S.Ct. at 2880, the Court granted a further delay of some 2A months. 459 U.S. 813, 103 S.Ct. 199, 74 L.Ed.2d 160 (1982). Cf. United States v. Matthews, 16 MJ 354, 382 (CMA 1983) (in decision finding court-martial death-penalty sentencing procedures unconstitutional, mandate withheld for 90 days to allow opportunity to change those procedures in time for appellant’s resentencing).