we'll hear argument next in case sixteen nine six one delmonte versus united states and the consolidated cases is dramatic because the chief justice and may please the court at the heart of these complicated cases is the simple and well settled distinction between federal officers who are appointed to a second office and those who have been assigned to exercise additional duties germane to their original point meant who hold one office not to the dual office holding ban incorporates this distinction prohibiting active duty military officers from holding a second office that requires nomination by the president and confirmation by the senate absent express congressional authorization w generally allowing military officers to be assigned to exercise the duties of such positions that's why when the four judges at issue here because and to serve as appointed judges on the c m c are the court of military commission review it violated the dual office holding banned and disqualified them from hearing the petitioners appeals congress created the court of military commission review in two thousand and six as part of the military commissions act and the initial plan for the c m c r was modeled very much on the then exist in courts of criminal appeals in the court martial system right down to how the judges were to be selected so in the original language of the two thousand and six act judges could assigned by the secretary of defense to the c m c are and those judges could either be civilians or military officers in two thousand and nine when congress turned around the c m c are when congress decided to make it more independent of the executive branch one of the measures it pursued was to bifurcate that provision and to break out the assignment of military officers and the appointment of quote additional judges by the president with the advice and consent of the senate and it's our submission that when congress did so it created a civil office and it did not expressly authorize military officers to hold that civil office that's why when the d c circuit suggested in the shiri case that there was a constitutional problem with the assignment of military officers to the c m c r and the president responded by a point in five of those officers four of whom are relevant here to that court it triggered the two office secretary of defense may assign persons who hold military positions you have no case right we certainly would have no case under the two office holder and bad justice ginsburg for the simple reason that when military officers are saw and whether to the or the c m c are they don't hold the second office in the first place there of course was the appointments cause challenge to those assignments but yes there would be no problem under this statute in that circumstance and you say here to do that so just to clarify there can still serve on the c m c are right that we are not challenging the appointments to the c m c are are going to simply that that converted these officers into civilians but to just say you are saying and have  into the statute in eight hundred seventy the government does not dispute that before nine hundred eighty three at least there would have been no question that that was the appropriate consequence in this case and also reflects the common law in compatibility when a man and the idea of fan notice to people who have devoted their lives to military service and then you know out there is no question of course that congress could make these officers whole if there was any regard in which this action led to the deprivation of benefits but of course this has happened before this court and the court of appeals for the armed forces has ruled that various points in the past that you had military officers who were wrongfully appointed that you had military officers who were acting all cerveris we don't dispute that it's an unfortunate consequence for these four officers we just think it is the one that the common law and the statute demands what do you make what you do about the fact that in one thousand nine hundred three congress eliminated the part of nine seventy three that said the officers automatically terminated if the officer accepts a covered civil office and what about the savings clause which says that nothing in section one hundred seventy three b shall be construed to invalidate any action  undertaken by an officer in furtherance of assigned official duties so i think that the answer to both questions justice alito depends upon place of the nineteen eighty three amendments in context if you'll indulge me i'll try to do so the purpose of the ninety three amendments when the government agreed was in direct response to the o l c opinion which had called into question the widespread practice of jag lawyers military officers serving as special assistant u s attorneys and prosecuting ordinary civilian offenses on military installation we can accept that that might have been the purpose of the statute but what do we do with the text i think is what just told i'm and if you'll bear with me i'm hoping to get there just as course it so the point of the statute was to basically say th assignments are not in fact a problem under the two office holder and beyond because they're not reflecting a military officer holding two offices that in fact the pre nine hundred eighty three statute had been construed by the just department perhaps over broadly and there is in contrast to appointed or elected that because the ninety three amendments were about reasserting the distinction between holding two offices and simply exercising additional duties as part of your original military office it makes sense it's appropriate it's consistent with the text to read assigned in that context to mean exactly what the jag officers had been doing that triggered the statute in the first place they have been exercising the functions of a civil office as part of their assigned official do so what do we make of the words except as otherwise authorized by law it seemed to me then what was purpose of the automatic terminations were people who were running for public office without authority by law they were meaning there was no federal law saying they could do this so what do you do with this with that except so i think i mean a good example there are of course examples where congress has expressly authorized military officers to hold a second even civil office and perhaps the most common in familiar example is the cia director the director of the cia or the government i don't believe disputes that that's a civil office congress has a director may be a military officer without any consequence and you're into his military service without losing his commission without losing benefits without losing the rank or pay or anything else the government argues here that the military commissions act itself provides comparable authorization to congress when it allowed military officers to be assigned to the c m c are was showing similar approval and frankly again i think that  distinction between being assigned to exercise additional duties congress clearly did authorize military officers to be assigned additional duties as c m c are judges and being appointed to a second office there is no language in the military commissions act especially the provision that refers to the appointment of additional judges that section nine fifty f b three and i apologize for the number of such numbers in acronyms there's no language in that provision justice  that comes anywhere near suggesting that in two thousand and nine congress was thinking about military officers when it created the separate appointed office that it was allowing additional judges to hold what about them i mean there are a lot of statutory hurdles you've got to get over what about nine seventy three d which delegated to the secretary of defense the authority to prescribe regulations to implement the ban on to office holding in the secretary has s the by virtue of such member having held were exercised the function of a civil office in violation of the prohibitions of mind seventy three b so i think i thank you for perhaps dr i think the key language in the directive is actually the terminations of the officers military status was not to be the consequence basically reflecting the vietnam era concerns that the government raising its brief identifying circumstances where the real the remedy for a violation of the statute was not going to be for future of military office  and i can take you just prior so uncivil office i want to try get back to justice leaders question but on so just lido as we say in our reply brief it would have made no sense there would have been no need for the secretary to identify the circumstances in which a military officer was not going to have to surrender his military office if the ninety three statute did in fact ask the government argues categorically eliminate terminations as a consequence if i might turn to justice briar's question with regard to civil office for us of course the key to concluding that an appointed judge on the court of military commission review holds a civil office is the fact that congress has created the office by statute that officers by statute and they're all confirmed by by congress and this is a commission that normally serves in areas where it could be under civilian control but the civilian courts are not functioning and therefore we have a military commission the serving the ordinary officers now all those things see military special and if you want to know whether you want to use did congress intend military officers to serve on it and in the absence of that it's civil they did all right so so what's civil about it i don't accept the fact you mentioned that course true it is of course true that there is one civilian on it or two or three that's true is there anything that says a military officer which is otherwise be totally military suddenly become civil because you appoint one person while these are i would start to spar with the government's definition of what a military office is a military office the government's definition the court of claims we cite this in our brief has long been defined by rank title pay and command and of course judges who are appointed to the court of military commission review have only one of those things pay which of course is itself distinct butt to the point that i took your question to be asking about the function of the government makes much of the claim that the court of military commission review is exercising a classic military function and i think it's worth stressing it's actually neither classic nor military there had never been appellate review of military commissions until two thousand and five and up until that point and to this day the principal judicial review of military commissions on the battlefield or off justice prior has been by civilian judges whether collaterally through hay vs corpus or whether on direct appeal in the court martial system to the court of appeals for the armed forces a court staffed by civilians or as congress contemplated in the military commissions act through the c m c are to the d c circuit a court also staffed by civilians laura i think that in the winter and commissions didn't you  not a court of record it is created solely by the military it is governed by the military congress when it created the predecessors to the c c days in one nine hundred fifty and the predecessor to the court of appeals when congress created this structure congress was intentionally mapping on to the court martial system civilian appellate review and the purpose of that was not because it was viewed as classically a military function but because congress was of the view that we needed civilian judges exercising oversight but one last point just back to the beginning of the statute in eight hundred seventy three three years after the statute was written the tourney general concluded that the secretary of war who holds about as military in office  i can think of nevertheless held a civil office for purposes of this very statute and that i think reflects just as prior the longstanding view that civil office in this context is meant to be construed capacious lee back to justice alito question it's part of compatibility is actually a secondary consideration in any function was so we suggest that there is i mean and this is why we think that the government's position even if one were to accept it raises serious consideration of powers concerns because you have the spect of an officer who is a principal officer over here on one court and an inferior officer over here on another court serving with similar stabs interacting with similar officers in the appellate counsel's office for example in both the government's prosecution defense side and so we think that there is a reason why the government has been unable to identify a single example of this kind of dual office holding in american history what is the big deal now what is the big problem with being a principal officer in one context an and if you conclude that there is in fact no problem today within this particular range meant in this context there might be a unique conservative in congress because mr chief justice of the overlapping personnel because of the sensitivities of the command structure because of the very real possibility that individuals with different authority on different courts might not intentionally but just by being there unduly influence the actions of those who are subordinate to them in one context but perhaps their peers in an think it's worth starting from this court's decision in united states versus co which frankly i did not know about before this case co is an eight hundred ninety four decision which we cite which the government sides in this brief where this court expressly up held this court lacked constitutional pellet jurisdiction because the relief that the government was seeking in that case was tantamount to what it had sought marbury and this court expressly rejected that argument as chief justice fuller wrote for a unanimous court when think it is probative so for example when congress does choose to define a tribe you don't as a court of record what that means of course is that the court exists independent of the officers who staff it it means the court is capable of receiving process on its case is you have congress create in a court of record a court of record mind you that is capable of dispensing capital punishment these are criminal cases and you know that isn't the issue the issue i think is that to being raised as with justice kennedy said there are many many many adjudicatory bodies in the executive branch and what the it mike is says is if you don't want to have jurisdiction by cirque de rectally from all of those rather through a court of appeals or hey be a score if you don't want that because you think that is inconsistent with separation of powers then you'd better find a way or reason or a sensible difference between this case and then all not only have the attributes of a court but they also have jurisdiction over a territory and i think that that is what he sees in the prior cases and he says that is not true here or right now if you do not agree with that why if you have a different test why if you would bring in all the n l r b then say it so again i have first of all let me this court of its decision and palmore where justice white went out of his way to uphold jurisdiction over the d c court of appeals because the territorial courts look like military courts right that is to say the analogy between the military and territorial courts is actually deeply embedded in this court's not article three jurisprudence and so i think actually there is a quite decent overlap between the two with regard to how this court could distinguish and say for another day the question of when cases are all reasons that distinguish it from administrative adjudication and if we're really focused on chief justice marshall in marbury i think it's worth reiterating that just four years after marbury in ex parte bolden the chief justice went out of his way to distinguish cases in which this court was asked to review the decisions of a lower court by which a citizen has been committed to jail as the president of the court of record was accorded three years i must have been under a misapprehension i thought the appeals discussion such as here though we have it recorded it's not necessarily a record and in the court of appeals it certainly isn't i'm fairly sure justice breyer that the circuit courts are also courts of record on this because they are standing tribunals that produce records that produce transcripts that produce proceedings independent of the participant in judgments and judgments and one last point justice kennedy on judgments i do think justice prior that the judgment piece is part of this i mean three years ago this court in the b and b hardware case i think saw the difficulties of adopting a bright line rule for when administrate of adjudications would or would not be precluded that is not true here there is no question in the path in the court martial system that when the co appeals for the armed forces issues a judgment it is binding it is preclude it is usually sending a service member to prison and perhaps even leading to a capital sentence do you think my  particularly as to the interpretation with such exceptions as congress me so i will confess justice kennedy that i may perhaps belong in the school of scholars who thinks that chief justice marshall read both the statute in the constitution to reach the constitutional question he wanted to reach i'm not sure that he nevertheless didn't end up with the right with the wrong answer and again i think for purposes of the question presented in this case on this court's jurisdiction the more relevant case is not  my time thank you counsel necessarily original not appellate as a stablished by marbury itself these two propositions decide this case now my friends on the other side have made the argument by analogy to the territorial and d c courts that's the principle and in fact it's the only argument on which they rely but it's very important for this court to understand that that is a slippery slope to go down because territorial and d c government is very different in a number of respects and so for example i am sure the court to be asking well if if the court were to apply the territorial cases such as united states versus co permitting review from the highest court in the territory to military courts then  wouldn't that open up the possibility that review would be permissible for other adjudicatory bodies in the federal agencies many of which can be characterized as courts under the definition offered by my friend such as  unlike those other agencies and territories this d c court and military organizations are explicitly congress is explicitly authorized to rules and regulations the three provisions are almost identical and why aren't military courts virtually geographic most military operations happen in bases domestically or in foreign fields so in what ways are they different geographically your answer your honor a couple of answers to that but the first is that they're not geographic in the sense in which the territorial or d c courts are where we respect to military justice that it is complete that it is the first jurisdiction of the commander in charge of either that base or that division so in those ways civil law doesn't apply either your honor it's true that civil law doesn't apply it's military law that is that the people in these courts martial but i don't think we're talking about territorial jurisdiction in the same way that we are with effect territorial governance and if we were then as i pointed out in my motion for oral argument on the government's position is that the appointments clause does not apply to the territories we're currently sitting in  jurisdiction in which the mayor is elected and none of those departures from the ordinary separation of powers could possibly be applicable within the military system so there must be some narrower principle to explain and this court will have to draw distinction between the territorial schemes of governance and the military and other schemes of governance and i understand your argument that they're different because i don't understand what possible pertinence the fact that they cover a territory as opposed to a subject matter has to do with your article three objection your honor it's both it's that the the the reason why territorial courts were created in this is chief justice marshall's opinion in american transfer scatter points this out that that article three courts under the understanding of article three at the time may not have been able to resolve certain disputes that were necessary just in order to govern the group of people such as divorce disputes so your doctrin wouldn't apply if the you know the article three court couldn't do it then you have to say it's all right for them to do it in a way that seems inconsistent with your theory that all your honor what i'm what i'm pointing out is that the courts were created for a certain reason and that is rationale wouldn't apply here in other words you know a member of the military assaults some body on a military base and congress decides we don't want that assault to be prosecuted in the state court we want that assault to be prosecuted within a millet system of military justice so congress is essentially doing the same thing look the regular state courts are not suited to decide some set of cases we're going to set up a different set of courts territorial on the one hand on this hand partly territorial but also defined by subject matter your honor i think it invited people really i think it is different in relevant respects and the the court decisions in this area have treated though these two types of courts differently and so for example that's part of the land again or the gordon versus united states case which we cite in our brief are about military courts and about the uni incarnation of the court of claims and this court denied jurisdiction and said that it could not direct directly review either of those courts that contrasts with the court's approach to united states  territorial court and so there there must be a line that can be drawn between territorial courts and these other types of adjudicatory bodies that are within the executive branch and i submit the bill line that i've proposed is the easiest and  to arise and the federal yes your honor if i may just say that i believe that this court exercises original jurisdiction in this case so i don't believe the cia and then how does it get to be rule it wouldn't affect the commander in chief argument your honor that may be some separate argument that i have not fully explored and i don't have a position on that but also worried about the two things one if we took your  test what about the d c the d c circuit is the exercise of federal judicial judicial power these not the circuit that the court of appeals but it isn't in article three court and in the same position as territorial courts you know didn't didn't aren't the tourist route the territorial courts there were article one courts i guess but didn't congress intend under your theory to delegate to about the government's argument that what we should do is look back to history and say the tradition at the time of the writing of the constitution would have been to consider military just as a functioning judicial system and that isn't true of the n l r b and it isn't true of the other agencies and because they both have the characteristics or many of the characteristics of courts and would have been so considered historically that it is appropriate to exercise appellate jurisdiction from their decisions your honor respectfully i don't know if that is entirely the government's position that you might want to ask a friend and that is because the government land to go held that it could not directly directly review a military commission in that case because the military commission did not exercise the judicial power in a relevant sense and as i understand the doing will it be necessary for us to define what a court is your honor it would not be necessary i submit that the simplest way to decide this case is the one that i proposed in my opening which is that it is undisputed i believe the government does not speak for the calf is within the executive branch and this court could simply say that it's direct review of the executive branch will be held at that really fit with the language of article three section t because what article three says is that you dish will power shall extend to all cases and then talks about in those cases or various ones of them the supreme court shall have th uncertainty as to what cases means with respect to a good many things but i would have thought that when we're talking about the proceeding here which is a criminal prosecution with big criminal sentences including the death penalty i would have thought that those criminal prosecutions are indeed cases under the language of article three your honor i think the answer to that question is that marbury establishes that it's more than simply a case th triggers this court's jurisdiction but there's something to the language of original an appellate and original jurisdiction because it specified in the constitution by implication means that appellate jurisdiction can only be exercised from certain types of bodies and incidentally that is not only the position that chief justice marshall embraced in marbury but it's also the position that alexander hamilton embraced in the federalist papers it was proposed at a number of the state conventions ratifying the constitution and embraced by a number of the key cases that the court decided in the early years that are cited in our brief and so i think that answers why it's not simply a matter of a case and one could understand the  understand your answer you're not pointing to anything in article three is that correct your point instead to marbury and saying that the principle derives from there but i could look at marbury and say you know what what chief justice marshall was talking about was james madison hand in around commissions nothing to do with criminal prosecutions your honor i do believe that i'm pointing to something in article three and that's the original an apology for his diction provisions and the strong appropriate structural inferences th just talks about cases that is true that's true it does not say which particular courts there's not specified in so many words but marbury has that principle as does for example just a story in his commentaries on the constitution in which he says that appellate jurisdiction must be exercised from a body that is exercising judicial authority and cloaked with judicial power and so i think that that principle was embraced by the people who wrote article three and it's a principle that this court ought to apply in this case decisions and i'd like to turn to the merits and explain why judges burton celtics herring and mitchell did not violate section nine seventy three b when they accepted presidential appointments to the court militia the commission review and also why any violation that did occur would not have objected those officers from the military or provided any other basis for invalidating their decisions upholding the court martial conviction is at issue here on the jurisdictional question we start as i think all the parties before the court do you with chief justice marshall's decision for the court madison which says that the essential criterion of appellate jurisdiction is that it revises and corrects the proceedings in a cause already instituted and does not institute that cause under that standard marbury was an original case because the parties came to this court in  first instance and asked for an order directing the delivery of a commission if you read the report of the decision before you get to the chief justice opinion you find this court taking evidence by affidavit and willing on the objections hearing testimony essentially that was an original action this case by contrast is an appellate action because it comes to the court on review of the court of appeals for the armed forces decision which reviewed a criminal proceeding that originated in courts martial and that proceeded through the separate military justice system that has existed in some form in our country since then there are a lot of to see why how would you have wished distinguish the situation of people or to certain about which is every alphabet agency in the government the congress says you can appeal from the sanctions that the four decision that my friend quoted that dealt with a challenge to this court's appellate jurisdiction over a territorial court and what the court said was if congress in those limited circumstances where congress can create courts outside the scope of article three then it can also the best of this court with other words it's ok because we don't have to worry because you can only do it increases where they were already done well you can only do it i think what we would do is we would link the rule about when is this court's jurisdiction appellate versus original to the existing jurisprudence that this court has about when can congress create courts outside of the article three system and two parodic matter cases where it's uncontroversial and well settled the congress can do that are the territories and the militaries and when can they not do it if you're doing anything more than just saying everything they've done so far is ok and nothing else then what is the rule for telling them when they can create these courts under article one so what this court has said and again i just want to illustrate that that's that's a question that the court is going to have to grapple with however it resolves the appellate jurisdiction question here it has other cases and will presumably again in the future have to confront the question when can congress create in our goal three courts all that we're saying is that what follows from that is if the court decides in that context that congress can create an article three court then it can also  then it has a federal question and they come to us i don't think that they could just kennedy at the i don't know that the question has ever risen in the context of a state court i can tell you the question has arisen or a related question has arisen in the context of federal courts  there is a case called chandler from one nine hundred seventy where the court grappled with but didn't resolve the question whether a review of a decision by a circuit judicial council was appellate jurisdiction and the question i was asking is is what the circuit judicial council is doing administrative or is it instead judicial you are doing is looking i think the slam i think of the two for a reason that is what is that that i can see the stay wait you say the easiest is the about territories well territories and that's a tough one because it looks like it's congress's sovereignty but it is that is to say sovereign territory as are the equivalent of states before they are states human societies on territories create judicial systems and so the territorial courts are analogous to the state courts what about the d c circuit court of appeals rather that's a tougher one but maybe rather like the territorial ports like the state court and now what ok and now he says i've used this territorial principle sovereignty arising in territories physically which aspect of the sovereignty is an authority to create a judicial body giving us appellate jurisdiction military you don't like that territorial based distinction because territorial sovereignty based distinction because they don't really have it's not territories and so now we're looking for another one a long question but all i'm asking for is what is that all the way and the chief says it sounds like which to me it did sound rather like whatever we've done in the past is alright but not in the future and that's a historical one so let me say two things about that and the first is that the way that this court has approached territorial courts and the d c court is not quite the way your honor so i know that but i'm looking at co it doesn't seem to give much of an answer well the answer that it gives is appellate jurisdiction is review of another court's decision at the most basic level i think everyone agrees with that and so if you're asked when review of tribunals decisions is it original i think however you might resolve the question between legislative courts and the administrative agencies like the n l r b our view is that military courts the court of appeals for the armed forces is on the territorial sign the wind is on the clear side line because this court has always considered those two to be together as the parodic matic examples of the circumstances oh i mean do you think it's a do you think it's relevant that the president or the secretary of defense can alter a decision of the half after it's issued i don't believe that the president or the the secretary defense can do that they have some limited authority and this is described in ten u s c eight seventy six to mitigate sentences to commute or well that's what i'm referring to the convening authority sh take action accordance with the decision of the sea a half unless there is to be further action by the president or the secretary concerned that's correct and the further as you think that's relevant to this the question before us i think it might be if the action of the president or the secretary extended to of setting that conviction or upsetting the judgment of the c f but that's not the type of action that the president can take and congress actually thought about that and what kind of action can the president take there are certain types of sentences death sentences in particular that require the president's approval before they can be executed and there are other types of sentences including the dismissal of an officer that require secretarial approval before they can be executed in those circumstances the president or the secretary can commute those sentences to something less they can't upset the conviction and so in our view the bail ability of that relief from those officers is akin to relief by commutation in the federal or state system or to parole that is that i'm not in there in you but where where do i look to find to find the authority figure you find the statutory provision that speaks to the finality of court of appeals of the armed forces decisions and marshal decisions in general is in seventy six and that i believe the provision that speaks to authority toward you since this isn't is an eight seventy four but it's at least referenced i  i guess i am doubting you if you have the if the executive prevails in any case he always has the discretion not to enforce it i mean if the judgment is you can you know suspend the pave this justice sets up gives the president some ability to reduce or mitigate sentences but not others and otherwise as makes the decisions of the court of appeals for the armed forces final and binding and in fact the language in the provision i was citing to justice kennedy earlier is the language that you in your opinion don't we don't have to assume the constitutionality of that limitation on the president's authority is commander in chief for this position to work and second what if congress were to alter that scheme and provide the president or the secretary further authority to alter the results of military tribunals and in fact i think the secretary if i'm correct has to approve the dismissal of any commissioned officer as well that's right so everyone be so there's another limitation on the thord of the military tribunal in another grant to superior executive officer so as the two things about that the first is i agree with you that if congress gave greater authority to executive branch officials to the president or the secretary to actions where is the line how much authority how much of a court is it before it's no longer a court when it's all sitting in the executive branch as this court ruled in edmonton's so first and foremost it's a court that doles out criminal sen criminal nature but you lose a rank or privilege or some other sort of we struggle with what's the difference between civil and criminal all the time in this court well i think there's no doubt that court martial courts martial are criminal and the fact that they are able to  set that i'm saying well what about the next case why would we draw the line there when civil penalties today are very harsh and severe here and you can see congress setting up a court with very extreme civil penalties and very little executive oversight i guess i would say that the fact that it can distribute criminal penalties is certainly an indication that if we're drawing a line is that a court is it not it falls on the court side of the line what it shares in common with territorial courts what about i mean you really make you're making me think in this i guarantee it's a hard question but maybe we find an analogy in the territorial cases can we read the territorial cases as as looking at this separately out of article three the constitution gives to congress the power to organize governments in the territory the governments of a territory involve an executive legislative and judicial function therefore in exercising its sovereign constitutional power under article one in power to or organize governments in territories it is going to have the power to organize courts of a kind that act like courts and therefore appellate nephew the same is true of the military which is a separate world and it is article one giving them power over the military that lets them do that yet the same is not true of the n l r b which is a specialized agency and because the judicial and adjudicatory functions that the executive branch performs in its carrying out of executive duties our rule making and decision making authorities under execution not judicial yes you think that might were i think that i think that works exactly i think that fits with the way that this court has looked at courts martial before it said this is a system of justice that existed before the constitution it's a system of justice  recognized in the fifth amendment to the constitution which exempts quote cases arising in the land and naval forces from the grand jury requirement and it's a system that this court has always understood in the light of that history and that textual recognition to be a court system that congress can create outside of c are judgeship is a civil office within the meaning of section nine seventy three they have to show that congress has not authorized by law military officers to hold that office and then they have to show that a violation of that statute if it occurred automatically ejected these officers from the military when they accepted their appointments to the c m c are made in two thousand and six and invalidated the officer's subsequent decisions in petitioners criminal appeals on the courts of criminal appeals and in our view they can't make any of those showings i'd like to start if i could with the civil office question i think it's common ground between the parties that by preventing precluding military officers from holding a civil office what congress ought to do was to prevent the to preserve the civilian preeminence over the military to prevent military encroachments into the civil government and so a civil office as we understand it and as the department of defense has long defined it is an office in the civil government that exercises the powers or authorities of the civil government it's a nonmilitary office judged by that criterion a judgeship on the court of military commission review is a military office as its name suggests the court of military commission review is a military court it performs a function that military officers have long performed judging violations of the law  and other offenses triable by military commission committed by you in people dress and it performs a function that's very very similar to what in the court martial system is done by the courts of criminal appeals which are staffed by military officers predominantly although that position can also be held by civilians and which this court explained in weiss performs a function that is germane to military officers military office the court and weiss went through the history of the military justice system in the court martial side of the house and explain the role that military officers have long played in that system and it concluded that as a result of that rule serving as a judge on the court of criminal appeals is germane to holding military office obviously the court of life did not have in front of it section one hundred seventy three but we think its conclusion on germane this is very instructive on this question because the court of military commission review performs a function that is very similar to the function performed by the courts of criminal appeals it was expressly patterned on the court of criminal appeals and the statute defining the circumstances under which you can review a case nine fifty f is drawn almost verbatim from the statute for the courts of colonel appeals sixty six and just as military officers serving on the court of criminal appeals are performing a military function and are doing something that is germane to their military duties that's also true when those same officers perform essentially the same function in another military court system and i think what that illustrates and by the way i don't understand my friend to dispute that a judge ship on the court of criminal appeals is a military office not a civil office of the sort that would be contemplated in section one seventy three and what that shows is that even if an office can be held by civilians as the court of criminal appeals judge ship can be it is still a military office if it's performing at a military function so judged by that standard we think but the church claim fails in the first instance because the court of military commission review is not a civil office but even if you disagree with us on that question we also think that congress has authorized by law military officers to hold a position on the court of military commission review and the way that my friend approaches section nine seventy three is through the lens of assigning and appointing and he wants to draw a sharp distinction between assigning an appointment and read that distinction into the prohibition in section nine seventy three but that's not a prohibition that's found in the language or the history of section one hundred seventy three instead what the statute says is that except as otherwise often authorized by law an officer may not hold or exercise the functions of civil office so the concern is not with the manner in which the officer in the civil office the question is has congress authorized military officers to hold or exercise the function of the civil office and in our view congress created a single office when it created the court of military commission review that office is judged on the court of military commission review that's the statutory term in section one hundred fifty f and congress then authorized military officers to serve on that court to hold that office in unambiguous terms now it's true the d c circuit in on the sherry raised questions about whether that assignment which was valid for all statutory purposes also complied with the appointments clause and in response to the questions the d c circuit raised the senate and the president he did the d circuit circuit suggestion that they avoid the need to resolve appointments clause questions and also appoint those four officers to the court of military commission review under section one fifty three and those appointments essentially ratified the preexisting assignments and mean that now the four judges serve on the court of military commission review by virtue of both the assignment of the secretary of defense and the appointment of the president but in doing that the president did not cry eight a problem did not put those officers in an office that they're not authorized to hold by congress he just ratified their placement in that office through the means that congress specified and finally just very briefly we do hope that the court will answer the question the merits question about whether or not a c m c are judgeship is a civil office because it's important to the government the government  presented on the merits and holds that nine seventy three b does not prevent military officers from serving on the c m c are but in the event that you disagree with us on the matter you don't reach that question we think also that is the court of appeals for the armed forces held any violation of seventy three b that occurred would not be a basis for invalidating the judge's decisions on the court of criminal appeals and that's true for at least two reasons the first is that the petitioners argument that it does invalidate their decisions hinges on the premise that automatically upon the acceptance of a prohibited civil office the relevant officers are objected from the military that used to be the way the statute worked but for good reason congress changed that it deleted that automatic terminations consequence now in a violation of section nine seventy three occurs the government and the officer have to fix it by either giving up the military office or giving up the civil office but those things happen as a result of administrative action once the violation comes to light not retroactively and automatically by virtue of the acceptance of the  and second and even more clearly i'll close close on this congress enacted a savings clause that says that nothing in section one seventy three can be used to invalidate the actions of officers in furtherance of assigned official duties and that perfectly describes what happens here what happen here my friend is correct that it may also describe what military officers do in civil offices for example special assistant u s attorneys who drag lawyers who are assigned to specialist u s attorneys perform civil functions in furtherance of their assigned official duties reading of the authorization or the savings clause is correct you really have no reason to fix any problem that's been identified right except you see exactly you know the person shouldn't be serving there but everything he does is is ok so we don't have to remove him well no i think that we think we are obligated to comply with the law and the executive branch doesn't take that seriously and that's the history of enforcement of the civil office holding prohibition is that as the olson memo for example that brought to light the violation that had been happening before nine hundred eighty three the government raised the issue and then took action to correct how would a problem how would a problem arise given the city's clause given the same cause i think a problem arise in the way the problems arise are lots of statutes that apply to federal personnel matters of that prohibit certain actions by federal employees but don't invalidate their actions as a result of the violation and the way that those things are policed by inspector general by congressional oversight and the government accountability office by the office of legal counsel in the years within the agencies all of those things are still available the sources cited in the briefs show that the government is taking seriously its obligation to enforce the statute that will continue and in fact the directive also that we cite makes up the acceptance of a civil office if an officer just goes out and does it you know on their own without authorization it makes taking that action of violation of a lawful order that is potentially subject to disciplinary action suits that would there would certainly be remedies just not that drastic remedy of object from the military or invalidation of official actions we think there's a good reason why congress chose of article three the analogy of course to this case would be to the underlying court martial proceeding and not to the decisions by the court of criminal appeals or by the court of appeals for the armed forces turned to the merits i think it's important to stress the emptiness of the government suggestion it has been engaged in rigorous administrative enforcement of the statute on its reading of both section nine seventy three b five and of the deletion of the automatic terminations provision there is in fact no consequence for violating a statute congress  it to ensure civilian control of the military for protecting the civilians fear of government from having military officers serving in all kinds of positions and there would be no remedy especially in a case like this one where the problem at issue is not a general objection to military officers serving in ministry to positions but a very specific objection to military officers serving as judges this court has for decades suggested that there are unique separation of powers considerations and their unique doctrin on common law reasons to take especially seriously concerns that judges are acting without authority it's why this court in both the ryder case and nguyen held that the de facto officer doctrine does not apply to  nontechnical violations of judicial assignment rules and that's why the separation of powers probably be identified is especially serious in this context one last point though the neither the government doesn't talk about the did not talk about the commander in chief clause in its merits protection what that means is if their military officers they are insulated from removal by good cause which of course takes them out of the chain of command now rather than suggest that that is a constitutional constraint on the president as commander in chief the government  that in fact a judge who is appointed to the c m c are by the president and confirmed by the senate can be reassigned by the general counsel of the department of defense there is no suggestion in the military commissions act that congress intended such a frankly bizarre reassignment scheme and there is no successful mission for how that would solve the commander in chief cause problem we agree that that question is not squarely presented here because it would only invalidate the ability of these judges to serve  court of military commission review but given that there is a petition for writ of mandamus pending in the d c circuit by two of the defendants in the nine eleven trial we think it incumbent upon this court to reach the merits question and not just rely on the remedies consideration even if it is inclined to affirm decisions below there are no further questions thank you counsel thank you mr bombs i for your participation in the cases submitted