I have been very happily on paternity leave this quarter, and so I haven’t had much time to post about the many very interesting cases pending at the Supreme Court this term. But I wanted to briefly break in here to note the pending federal courts/national security cases of Dalmazzi/Cox/Ortiz v. United States. The cases concern the legality of appointments to the Guantanamo U.S. Court of Military Commission Review and are being very well litigated by a team led by Texas law professor Steve Vladeck.

For my purposes, what is especially interesting, though, is that the cases come to the Supreme Court from the Court of Appeals for the Armed Forces (CAAF), a so-called Article I Court that provides a second layer of appellate review over military sentences. The court has asked the parties to discuss CAAF’s jurisdiction, apparently interested in a technical argument made by the government that there is no appellate jurisdiction whenever the CAAF grants and then vacates a petition for review.

But I wanted to note that there is another, more basic jurisdictional question in the case, one that might nonetheless escape attention: Does the Supreme Court have jurisdiction to directly review decisions of the Court of Appeals for the Armed Forces at all?

In a recent amicus brief in another case, Virginia law professor Aditya Bamzai argued not. The Constitution says that the Supreme Court’s jurisdiction in cases arising under federal law is appellate, not original. And according to no less an authority than Marbury v. Madison, Congress cannot move any cases from the court’s appellate jurisdiction to the original jurisdiction. This means that the Supreme Court can directly review the CAAF only if the case is an appeal, which in Bamzai’s view (and mine) means that the Supreme Court has jurisdiction only if the CAAF is truly a court, in the constitutional sense.

Bamzai argued that the CAAF is not a court, in the constitutional sense, but is a part of the executive branch, staffed by executive-branch appointees who are not given the tenure and protections of Article III. In a blog post responding to Bamzai last year, Vladeck argued that CAAF was in fact a court.

I am inclined to agree with Bamzai that the CAAF is not a court, for reasons that I will elaborate on eventually in a paper on so-called legislative courts. But in a nutshell, I think that a court, in the constitutional sense, must be a body that exercises the judicial power of some government and that the CAAF does not exercise any government’s judicial power. (For instance, federal courts exercise “the judicial power of the United States.” State courts exercise “the judicial power” of their respective states. Etc. CAAF falls into none of these categories.)

But whoever is right or wrong about the CAAF’s status, it seems to me a serious and hard jurisdictional problem, and one that the Supreme Court ought to address, with the benefit of full briefing, at some point. (I should note that the Supreme Court has directly reviewed cases from the CAAF before, without noting or grappling with the jurisdictional problem. According to the court, this means that no precedent on jurisdiction was established, though in theory the court is supposed to notice jurisdictional defects even if the parties do not point them out.)