Military Justice and Article III

The Supreme Court has long held that federal adjudication before judges lacking Article III’s salary and tenure protections is permissible today only in the three categories of cases in which the Court has previously allowed it — all cases before federal “territorial” courts; criminal prosecutions before military tribunals; and “public rights” adjudication before non-Article III judicial or administrative bodies. And although the Justices have repeatedly grappled with the outer bounds of this last category in recent years, they have generally accepted the first two as settled. Scholars have followed suit, with virtually all of the extensive literature in the field focusing on the specific scope of the public rights exception, or on the search for cross-cutting theories of Article III. As a result, it has been decades since any concerted effort has been undertaken to rationalize the scope of the military exception — whether to the Constitution’s text or purpose or to more prudential considerations. And although the similarly neglected territorial courts have remained largely untouched over the past quarter-century, the same period has witnessed significant expansions in the scope of both court-martial and military commission jurisdiction to encompass offenses and offenders not previously thought to be amenable to military, rather than civilian, trials. Although these expansions have been especially pronounced with regard to the scope of court-martial jurisdiction, they are also reflected in, for example, the en banc D.C. Circuit’s 2014 decision in the Al Bahlul Guantánamo military commission appeal. Given these expansions, the litigation that they have provoked, and the tensions they have placed upon the military exception, the time has long since passed for a reassessment of where and how military justice fits into our understanding of Article III