1

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

In re:

THE FINANCIAL OVERSIGHT AND 

MANAGEMENT BOARD FOR PUERTO 

RICO,

as representative of

THE COMMONWEALTH OF PUERTO 

RICO, et al.

Debtors1

PROMESA

Title III

No. 17 BK 3283-LTS

(Jointly Administered)

THE FINANCIAL OVERSIGHT AND MANAGEMENT BOARD FOR PUERTO RICO’S 

INFORMATIVE MOTION REGARDING RECENT SUPREME COURT DECISIONS IN 

ORTIZ v. UNITED STATES AND LUCIA v. SEC

The Financial Oversight and Management Board for Puerto Rico (Board) respectfully 

informs the Court as follows:

1. On June 21, 2018, the United States Supreme Court issued Lucia v. SEC, 138 S. 

Ct. 2044 (2018) (attached as Exhibit A) and, on June 22, 2018, the Court issued Ortiz v. United 

States, 138 S. Ct. 2165 (2018) (attached as Exhibit B). On July 6, 2018, Aurelius Investment, 

LLC, Aurelius Opportunities Fund, LLC, and Lex Claims, LLC (Aurelius) filed a motion with 

this Court contending that Ortiz and Lucia “directly impact several constitutional issues raised in 

 1 The Debtors in these Title III Cases, along with each Debtor’s respective Title III case number 

and the last four (4) digits of each Debtor’s federal tax identification number, as applicable, are 

the (i) Commonwealth of Puerto Rico (Bankruptcy Case No. 17 BK 3283-LTS) (Last Four 

Digits of Federal Tax ID: 3481); (ii) Puerto Rico Sales Tax Financing Corporation (“COFINA”) 

(Bankruptcy Case No. 17 BK 3284-LTS) (Last Four Digits of Federal Tax ID: 8474); (iii) Puerto 

Rico Highways and Transportation Authority (“HTA”) (Bankruptcy Case No. 17 BK 3567-LTS) 

(Last Four Digits of Federal Tax ID: 3808); and (iv) Employees Retirement System of the 

Government of the Commonwealth of Puerto Rico (“ERS”) (Bankruptcy Case No. 17 BK 3566-

LTS) (Last Four Digits of Federal Tax ID: 9686).

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the briefing over Aurelius’s Objection and Motion to Dismiss the Title III Petition.” Motion at 2. 

That argument is meritless. Ortiz is entirely irrelevant to this case. Aurelius’s argument to the 

contrary relies on isolated phrases plucked out of context, paired with a misreading of the 

Board’s argument. For its part, Lucia breaks no new ground and thus adds nothing new to the 

arguments already before this Court. Supreme Court precedent offered no support for Aurelius’s 

position in earlier briefing, and these newly issued decisions do nothing to change that fact.

Ortiz v. United States

2. Aurelius relies on the portion of the Ortiz decision that addressed whether Article 

III allowed the Supreme Court to exercise appellate jurisdiction over decisions of the Court of 

Appeals of the Armed Forces (CAAF).2 The Court answered in the affirmative, concluding that 

the court-martial system is a court system that hears “cases” within the meaning of Article III. In 

so concluding, the Court relied on “the judicial character and constitutional pedigree of the courtmartial system.” Ortiz, slip op. at 6. The Court rejected the argument that because “Congress 

established the CAAF under its Article I, rather than its Article III, powers” and “located the 

CAAF . . . within the Executive Branch, rather than the judicial one,” the CAAF was not a 

“court” for purposes of the Supreme Court’s appellate jurisdiction. Id. at 12. As the Court 

explained, it is well recognized that the Court’s appellate jurisdiction extends not just to

decisions of Article III courts, but also to decisions of state courts, territorial courts, and non-

 2 The Supreme Court separately held that there was no statutory or constitutional flaw with a 

judge’s simultaneous service on the Court of Criminal Appeals and the Court of Military 

Commission Review. Aurelius makes passing references to this constitutional holding, see 

Motion at 2, 4—likely because the discussion of simultaneous service is the only part of the case 

to actually implicate (or even mention) the Appointments Clause. But—beyond noting the 

case’s application of the well-established principle that the Appointments Clause applies to 

military judges, see Motion at 4—Aurelius makes no attempt to argue that Ortiz’s Appointments 

Clause holding has any bearing on this case. 

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Article III District of Columbia courts. See id. at 12-14. The Court thus invoked territorial and 

D.C. courts as evidence that it is “settled that Article III does not exhaust the power of Congress 

to establish courts,” and that the Court has long exercised appellate jurisdiction over decisions of 

non-Article III courts created by Congress. Id. at 13 (internal quotation marks and citation 

omitted). In view of the fundamentally judicial character of territorial and D.C. courts, the Court 

could find no reason to treat these three categories of non-Article III courts differently for the 

purposes of its appellate jurisdiction. See id. at 15-19; see also id. at 16 (noting that military, 

territorial, and D.C. courts could all be said to be “functional equivalents of state courts” 

(internal quotation marks and citation omitted)).

3. Contrary to Aurelius’s contention, nothing in Ortiz undermines—or, more 

accurately, even relates to—the Board’s position in this litigation. Ortiz’s reiteration of the 

principle that both territorial and military courts are exempt from Article III’s constraints does 

not have any bearing on whether the Appointments Clause constrains Congress’s power when it 

creates territorial courts or otherwise legislates for the territories. Military courts are Article I 

courts, and they are part of the federal government: as Ortiz explicitly observed, the CAAF is 

part of the Executive Branch. Id. at 12 (“Congress located the CAAF (as we have previously 

observed) within the Executive Branch, rather than the judicial one.”). As a result, military 

judges are federal officers within the meaning of the Appointments Clause. By contrast, 

territorial courts are Article IV courts, created in Congress’s capacity as a local legislature. See

McAllister v. United States, 141 U.S. 174, 184-85 (1891) (“It must be regarded as settled that 

courts in the territories, created under the plenary municipal authority that congress possesses 

over the territories of the United States, are not courts of the United States created under the 

authority conferred by that article.”). Ortiz did not overturn this well-established principle sub 

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silentio. Territorial judges, like other territorial officers, are therefore not federal officers subject 

to the Appointments Clause. See Board Opposition to the Motion to Dismiss Title III Petition, 

Dkt. 1622, at 8-10, 18; Board Reply to the U.S. Memorandum of Law in Support of the 

Constitutionality of PROMESA, Dkt. 2159, at 4-6.

4. In arguing otherwise, Aurelius chooses a few isolated phrases from Ortiz and then 

misstates their import. Aurelius contends that Ortiz held “that Congress’s control over the 

territories is equivalent to its power over the military.” Motion at 3. It did no such thing.3

 The 

Court said only that Congress’s authority over both the military and the territories is 

“expansive.” Ortiz, slip op. at 14. But the uncontroversial proposition that Congress has broad 

authority under both its Article I power over the military and its Article IV power over the 

territories does not mean that the those powers are “equivalent” or “that Congress is equally 

constrained by the separation of powers when it regulates either.” Motion at 5.

5. Far from it. For example, the non-delegation doctrine binds Congress’s power 

over the military, see Loving v. United States, 517 U.S. 748, 771 (1996); see also Ortiz, slip op. 

at 14 (Alito, J., dissenting), even though the doctrine does not limit Congress when creating a 

local legislature for the territories, Cincinnati Soap Co. v. United States, 301 U.S. 308, 323

(1937). Similarly, it makes good sense that the Appointments Clause would limit Congress 

when it acts under its Article I military power, but not when it legislates pursuant to its Article 

IV territorial power. Military officers are part of the Executive Branch, while territorial officers 

 3 Notably, the Court did not hold, as Aurelius misleadingly represents, that “the Property 

Clause . . . is ‘just like’ the military clause.” Motion at 4 (quoting Ortiz, slip op. at 14). The 

Court said only that the court-martial system—“just like” the system of territorial and D.C. 

courts—“rests on an expansive constitutional delegation.” Ortiz, slip op. at 14.

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are not part of any federal branch of government. They are thus not “Officers of the United 

States” and Congress need not comply with the Appointments Clause in creating them.

6. If, as Aurelius represents, the Board’s argument were simply that Article IV acts 

are “exempt from the Constitution’s structural guarantees” because Article IV provides an 

“expansive” grant of power, perhaps Ortiz might have some relevance here. Motion at 3. But, 

as in its previous briefing, Aurelius’s Motion attacks a strawman. See Board Reply to the U.S. 

Memorandum of Law in Support of the Constitutionality of PROMESA, Dkt. 2159, at 5

(explaining that “Aurelius . . . attack[s] a point nobody is making” as “neither the Board nor the 

United States espouses . . . [the] view” that “Article IV acts are . . . ‘immune from scrutiny for 

constitutional defects’” (quoting Metro. Washington Airports Auth. v. Citizens for Abatement of 

Aircraft Noise, Inc., 501 U.S. 252, 270 (1991))). The Board’s argument is about the particular 

kind of power that Congress wields under Article IV: the power to act as a local, rather than 

national, legislature. See First Nat’l Bank v. Yankton Cty., 101 U.S. 129, 133 (1879). History 

demonstrates that when Congress acts in this way, it is not bound by constitutional separation-ofpowers provisions any more than a state or local government would be. E.g., Oral Argument Tr.

at 45-46 (Jan. 10, 2018). Nothing in that argument turns on the (clearly erroneous) premise that 

every time the Constitution gives Congress “expansive” powers, those powers are free from 

constitutional scrutiny.

Lucia v. SEC

7. Lucia v. SEC is similarly unhelpful for Aurelius. Lucia held that administrative 

law judges (ALJs) of the Securities and Exchange Commission (Commission) were “Officers of 

the United States,” rather than mere employees of the federal government. Deciding that 

question required the Court to analyze whether Commission ALJs exercised “significant 

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authority” under the requirement of Buckley v. Valeo, 424 U.S. 1, 126 (1976). But the Court 

expressly—and repeatedly—declined to elaborate on the significant authority test, explaining 

that the analysis in Freytag v. Commissioner of Internal Revenue, 501 U.S. 868 (1991), “(sans 

any more detailed legal criteria) necessarily decides this case.” Lucia, slip op. at 6. Freytag held 

that special trial judges of the United States Tax Court were officers subject to the Appointments 

Clause, and—as these judges were “near-carbon copies of the Commission’s ALJs”—Freytag

compelled the conclusion that the Lucia ALJs were also officers of the United States. Id. As a 

remedy, the Court ordered a new hearing before a properly appointed ALJ (or the Commission), 

explaining that this was “the ‘appropriate’ remedy for an adjudication tainted with an 

appointments violation.” Id. at 12 (quoting Ryder v. United States, 515 U.S. 177, 183 (1995)).

8. Aurelius is wrong to suggest that Lucia aids its case. As a preliminary matter, 

Lucia considered whether the Commission’s ALJs were federal officers or federal employees;

there was no question in the case about whether the ALJs were part of the United States 

government. The case therefore in no way implicates the primary issue in this case: whether 

territorial officials are officers of the United States. Moreover, the Court’s “significant 

authority” discussion does not advance Aurelius’s arguments. As the Court emphasized, it was 

not “refin[ing] or enhanc[ing]” the significant authority test, but instead merely applying Freytag

“sans any more detailed legal criteria.” Id. at 6; see also id. at 8 (“Freytag says everything 

necessary to decide this case.”). Lucia thus adds nothing new to this case or to Aurelius’s 

arguments, nor does it detract from the arguments set forth in the Board’s previous briefing. See

Board Opposition to the Motion to Dismiss Title III Petition, Dkt. 1622, at 27-32; Board Reply 

to the U.S. Memorandum of Law in Support of the Constitutionality of PROMESA, Dkt. 2159,

at 12-13.

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9. Nor does the Lucia remedy discussion help Aurelius. The Court’s remedy 

analysis was closely tied to the fact that the case involved an adjudication conducted by an

unconstitutionally appointed adjudicator. Lucia, slip op. at 12 (“This Court has also held that the 

‘appropriate’ remedy for an adjudication tainted with an appointments violation is a new 

‘hearing before a properly appointed’ official.” (quoting Ryder, 515 U.S. at 183)); see also id.

(discussing appropriate remedy for “‘one who makes a timely challenge to the constitutional 

validity of the appointment of an officer who adjudicates his case’” (quoting Ryder, 515 U.S. at 

182-83)). The Court’s precedent dictated the correct remedy for such a case: a new hearing. But 

this case does not involve a constitutional challenge to the entity adjudicating Aurelius’s rights. 

The Board simply initiated litigation against Aurelius, and the case is being adjudicated by an 

Article III court. Aurelius seeks a dismissal of that litigation and a declaration that the Board’s 

“acts were void ab initio.” Objection and Motion of Aurelius to Dismiss Title III Petition, Dkt. 

913, at 34; Proposed Order Dismissing Title III Petition, Dkt. 913, at 2. Granting such relief 

would cause widespread disruption, upending well over a year of this Court’s work and 

aggravating the “fiscal emergency” that led Congress to pass PROMESA. 48 U.S.C. 

§ 2194(m)(1). The Supreme Court has emphasized the importance of avoiding unnecessary 

disruption when crafting a remedy for unconstitutionally constituted entities. See Buckley, 424 

U.S. at 143; Board Opposition to the Motion to Dismiss Title III Petition, Dkt. 1622, at 33-35 

(citing cases relying on Buckley’s remedial holding). Ordering a new hearing in the case of a 

single adjudication causes no such disruption. Dismissing this entire proceeding and declaring 

all of the Board’s work to be invalid would. Nothing in Lucia requires such a drastic remedy and 

the Court should not grant it. 

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Dated: July 12, 2018

San Juan, Puerto Rico

Respectfully submitted,

/s/ Hermann D. Bauer

Hermann D. Bauer

USDC No. 215205

Ubaldo M. Fernández

USDC No. 224807

O’NEILL & BORGES LLC

250 Muñoz Rivera Ave., Suite 800

San Juan, PR 00918-1813

Tel: (787) 764-8181

Fax: (787) 753-8944

Email: hermann.bauer@oneillborges.com

ubaldo.fernandez@oneillborges.com

/s/ Donald B. Verrilli, Jr.

Donald B. Verrilli, Jr. (pro hac vice)

Ginger D. Anders (pro hac vice)

Chad I. Golder (pro hac vice)

Sarah G. Boyce (pro hac vice)

Adele M. El-Khouri (pro hac vice)

Rachel G. Miller-Ziegler (pro hac vice)

MUNGER, TOLLES & OLSON LLP

1155 F Street N.W., Seventh Floor

Washington, D.C. 20004-1357

Tel: (202) 220-1100

Fax: (202) 220-2300

Email: Donald.Verrilli@mto.com

Ginger.Anders@mto.com

Chad.Golder@mto.com

Sarah.Boyce@mto.com

Adele.El-Khouri@mto.com

Rachel.Miller-Ziegler@mto.com

/s/ Martin J. Bienenstock

Martin J. Bienenstock (pro hac vice)

Stephen L. Ratner (pro hac vice)

Timothy W. Mungovan (pro hac vice)

Mark D. Harris (pro hac vice)

Chantel L. Febus (pro hac vice)

PROSKAUER ROSE LLP

Eleven Times Square

New York, NY 10036

Tel: (212) 969-3000

Fax: (212) 969-2900

Email: mbienenstock@proskauer.com

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sratner@proskauer.com

tmungovan@proskauer.com

mharris@proskauer.com

cfebus@proskauer.com

Attorneys for The Financial Oversight and 

Management Board for Puerto Rico, as 

representative of The Commonwealth of Puerto 

Rico

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EXHIBIT A 

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(Slip Opinion) OCTOBER TERM, 2017 1 

Syllabus 

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader. 

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. 

SUPREME COURT OF THE UNITED STATES 

Syllabus 

LUCIA ET AL. v. SECURITIES AND EXCHANGE 

COMMISSION 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR 

THE DISTRICT OF COLUMBIA CIRCUIT 

No. 17–130. Argued April 23, 2018—Decided June 21, 2018 

The Securities and Exchange Commission (SEC or Commission) has

statutory authority to enforce the nation’s securities laws. One way

it can do so is by instituting an administrative proceeding against an

alleged wrongdoer. Typically, the Commission delegates the task of

presiding over such a proceeding to an administrative law judge 

(ALJ). The SEC currently has five ALJs. Other staff members, rather than the Commission proper, selected them all. An ALJ assigned to hear an SEC enforcement action has the “authority to do all 

things necessary and appropriate” to ensure a “fair and orderly” adversarial proceeding. 17 CFR §§201.111, 200.14(a). After a hearing 

ends, the ALJ issues an initial decision. The Commission can review 

that decision, but if it opts against review, it issues an order that the 

initial decision has become final. See §201.360(d). The initial decision is then “deemed the action of the Commission.” 15 U. S. C. 

§78d–1(c).

The SEC charged petitioner Raymond Lucia with violating certain

securities laws and assigned ALJ Cameron Elliot to adjudicate the 

case. Following a hearing, Judge Elliot issued an initial decision concluding that Lucia had violated the law and imposing sanctions. On 

appeal to the SEC, Lucia argued that the administrative proceeding

was invalid because Judge Elliot had not been constitutionally appointed. According to Lucia, SEC ALJs are “Officers of the United 

States” and thus subject to the Appointments Clause. Under that 

Clause, only the President, “Courts of Law,” or “Heads of Departments” can appoint such “Officers.” But none of those actors had 

made Judge Elliot an ALJ. The SEC and the Court of Appeals for the

D. C. Circuit rejected Lucia’s argument, holding that SEC ALJs are 

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2 LUCIA v. SEC 

Syllabus 

not “Officers of the United States,” but are instead mere employees—

officials with lesser responsibilities who are not subject to the Appointments Clause. 

Held: The Commission’s ALJs are “Officers of the United States,” subject to the Appointments Clause. Pp. 5–13.

(a) This Court’s decisions in United States v. Germaine, 99 U. S. 

508, and Buckley v. Valeo, 424 U. S. 1, set out the basic framework 

for distinguishing between officers and employees. To qualify as an

officer, rather than an employee, an individual must occupy a “continuing” position established by law, Germaine, 99 U. S., at 511, and 

must “exercis[e] significant authority pursuant to the laws of the 

United States,” Buckley, 424 U. S., at 126. 

In Freytag v. Commissioner, 501 U. S. 868, the Court applied this

framework to “special trial judges” (STJs) of the United States Tax 

Court. STJs could issue the final decision of the Tax Court in “comparatively narrow and minor matters.” Id., at 873. In more major 

matters, they could preside over the hearing but could not issue a final decision. Instead, they were to “prepare proposed findings and an

opinion” for a regular Tax Court judge to consider. Ibid. The proceeding challenged in Freytag was a major one. The losing parties 

argued on appeal that the STJ who presided over their hearing was 

not constitutionally appointed. 

This Court held that STJs are officers. Citing Germaine, the Freytag Court first found that STJs hold a continuing office established

by law. See 501 U. S., at 881. The Court then considered, as Buckley 

demands, the “significance” of the “authority” STJs wield. 501 U. S., 

at 881. The Government had argued that STJs are employees in all

cases in which they could not enter a final decision. But the Court 

thought that the Government’s focus on finality “ignore[d] the significance of the duties and discretion that [STJs] possess.” Ibid. Describing the responsibilities involved in presiding over adversarial

hearings, the Court said: STJs “take testimony, conduct trials, rule 

on the admissibility of evidence, and have the power to enforce compliance with discovery orders.” Id., at 881–882. And the Court observed that “[i]n the course of carrying out these important functions,” STJs “exercise significant discretion.” Id., at 882. 

Freytag’s analysis decides this case. The Commission’s ALJs, like 

the Tax Court’s STJs, hold a continuing office established by law.

SEC ALJs “receive[ ] a career appointment,” 5 CFR §930.204(a), to a

position created by statute, see 5 U. S. C. §§556–557, 5372, 3105.

And they exercise the same “significant discretion” when carrying out

the same “important functions” as STJs do. Freytag, 501 U. S., at 

882. Both sets of officials have all the authority needed to ensure fair

and orderly adversarial hearings—indeed, nearly all the tools of fedCase:17-03283-LTS Doc#:3494 Filed:07/12/18 Entered:07/12/18 16:08:18 Desc: Main

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Cite as: 585 U. S. ____ (2018) 3 

Syllabus 

eral trial judges. The Commission’s ALJs, like the Tax Court’s STJs, 

“take testimony,” “conduct trials,” “rule on the admissibility of evidence,” and “have the power to enforce compliance with discovery orders.” Id., at 881–882. So point for point from Freytag’s list, SEC 

ALJs have equivalent duties and powers as STJs in conducting adversarial inquiries.

Moreover, at the close of those proceedings, SEC ALJs issue decisions much like that in Freytag. STJs prepare proposed findings and

an opinion adjudicating charges and assessing tax liabilities. Similarly, the Commission’s ALJs issue initial decisions containing factual findings, legal conclusions, and appropriate remedies. And what 

happens next reveals that the ALJ can play the more autonomous 

role. In a major Tax Court case, a regular Tax Court judge must always review an STJ’s opinion, and that opinion comes to nothing unless the regular judge adopts it. By contrast, the SEC can decide

against reviewing an ALJ’s decision, and when it does so the ALJ’s

decision itself “becomes final” and is “deemed the action of the Commission.” 17 CFR §201.360(d)(2); 15 U. S. C. §78d–1(c). Pp. 5–11.

(b) Judge Elliot heard and decided Lucia’s case without a constitutional appointment. “[O]ne who makes a timely challenge to the constitutional validity of the appointment of an officer who adjudicates 

his case” is entitled to relief. Ryder v. United States, 515 U. S. 177, 

182. Lucia made just such a timely challenge. And the “appropriate”

remedy for an adjudication tainted with an appointments violation is

a new “hearing before a properly appointed” official. Id., at 183, 188. 

In this case, that official cannot be Judge Elliot, even if he has by 

now received a constitutional appointment. Having already both 

heard Lucia’s case and issued an initial decision on the merits, he 

cannot be expected to consider the matter as though he had not adjudicated it before. To cure the constitutional error, another ALJ (or 

the Commission itself) must hold the new hearing. Pp. 12–13. 

 868 F. 3d 1021, reversed and remanded. 

KAGAN, J., delivered the opinion of the Court, in which ROBERTS, 

C. J., and KENNEDY, THOMAS, ALITO, and GORSUCH, JJ., joined. THOMAS, J., filed a concurring opinion, in which GORSUCH, J., joined. BREYER, 

J., filed an opinion concurring in the judgment in part and dissenting in

part, in which GINSBURG and SOTOMAYOR, JJ., joined as to Part III. 

SOTOMAYOR, J., filed a dissenting opinion, in which GINSBURG, J., 

joined. 

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_________________ 

_________________ 

 


 

Cite as: 585 U. S. ____ (2018) 1 

Opinion of the Court 

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order

that corrections may be made before the preliminary print goes to press. 

SUPREME COURT OF THE UNITED STATES 

No. 17–130 

RAYMOND J. LUCIA, ET AL., PETITIONERS v. 

SECURITIES AND EXCHANGE COMMISSION 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 

APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
 

[June 21, 2018] 

JUSTICE KAGAN delivered the opinion of the Court. 

The Appointments Clause of the Constitution lays out

the permissible methods of appointing “Officers of the

United States,” a class of government officials distinct 

from mere employees. Art. II, §2, cl. 2. This case requires

us to decide whether administrative law judges (ALJs) of 

the Securities and Exchange Commission (SEC or Commission) qualify as such “Officers.” In keeping with Freytag v. Commissioner, 501 U. S. 868 (1991), we hold that 

they do. 

I 

The SEC has statutory authority to enforce the nation’s 

securities laws. One way it can do so is by instituting an

administrative proceeding against an alleged wrongdoer.

By law, the Commission may itself preside over such a 

proceeding. See 17 CFR §201.110 (2017). But the Commission also may, and typically does, delegate that task to

an ALJ. See ibid.; 15 U. S. C. §78d–1(a). The SEC currently has five ALJs. Other staff members, rather than 

the Commission proper, selected them all. See App. to

Pet. for Cert. 295a–297a. 

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2 LUCIA v. SEC 

Opinion of the Court 

An ALJ assigned to hear an SEC enforcement action has

extensive powers—the “authority to do all things necessary and appropriate to discharge his or her duties” and 

ensure a “fair and orderly” adversarial proceeding.

§§201.111, 200.14(a). Those powers “include, but are not

limited to,” supervising discovery; issuing, revoking, or

modifying subpoenas; deciding motions; ruling on the

admissibility of evidence; administering oaths; hearing 

and examining witnesses; generally “[r]egulating the

course of ” the proceeding and the “conduct of the parties

and their counsel”; and imposing sanctions for 

“[c]ontemptuous conduct” or violations of procedural requirements. §§201.111, 201.180; see §§200.14(a), 201.230.

As that list suggests, an SEC ALJ exercises authority 

“comparable to” that of a federal district judge conducting 

a bench trial. Butz v. Economou, 438 U. S. 478, 513 

(1978).

After a hearing ends, the ALJ issues an “initial decision.” §201.360(a)(1). That decision must set out “findings

and conclusions” about all “material issues of fact [and] 

law”; it also must include the “appropriate order, sanction,

relief, or denial thereof.” §201.360(b). The Commission 

can then review the ALJ’s decision, either upon request or 

sua sponte. See §201.360(d)(1). But if it opts against 

review, the Commission “issue[s] an order that the [ALJ’s]

decision has become final.” §201.360(d)(2). At that point, 

the initial decision is “deemed the action of the Commission.” §78d–1(c). 

This case began when the SEC instituted an administrative proceeding against petitioner Raymond Lucia and 

his investment company. Lucia marketed a retirement 

savings strategy called “Buckets of Money.” In the SEC’s 

view, Lucia used misleading slideshow presentations to

deceive prospective clients. The SEC charged Lucia under

the Investment Advisers Act, §80b–1 et seq., and assigned 

ALJ Cameron Elliot to adjudicate the case. After nine 

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Cite as: 585 U. S. ____ (2018) 3 

Opinion of the Court 

days of testimony and argument, Judge Elliot issued an 

initial decision concluding that Lucia had violated the Act 

and imposing sanctions, including civil penalties of 

$300,000 and a lifetime bar from the investment industry.

In his decision, Judge Elliot made factual findings about 

only one of the four ways the SEC thought Lucia’s 

slideshow misled investors. The Commission thus remanded for factfinding on the other three claims, explaining that an ALJ’s “personal experience with the witnesses”

places him “in the best position to make findings of fact”

and “resolve any conflicts in the evidence.” App. to Pet. for

Cert. 241a. Judge Elliot then made additional findings of 

deception and issued a revised initial decision, with the

same sanctions. See id., at 118a. 

On appeal to the SEC, Lucia argued that the administrative proceeding was invalid because Judge Elliot had 

not been constitutionally appointed. According to Lucia, 

the Commission’s ALJs are “Officers of the United States” 

and thus subject to the Appointments Clause. Under that 

Clause, Lucia noted, only the President, “Courts of Law,” 

or “Heads of Departments” can appoint “Officers.” See 

Art. II, §2, cl. 2. And none of those actors had made Judge 

Elliot an ALJ. To be sure, the Commission itself counts as 

a “Head[] of Department[].” Ibid.; see Free Enterprise 

Fund v. Public Company Accounting Oversight Bd., 561 

U. S. 477, 511–513 (2010). But the Commission had left 

the task of appointing ALJs, including Judge Elliot, to 

SEC staff members. See supra, at 1. As a result, Lucia 

contended, Judge Elliot lacked constitutional authority to 

do his job.

The Commission rejected Lucia’s argument. It held that 

the SEC’s ALJs are not “Officers of the United States.” 

Instead, they are “mere employees”—officials with lesser 

responsibilities who fall outside the Appointments

Clause’s ambit. App. to Pet. for Cert. 87a. The Commission reasoned that its ALJs do not “exercise significant 

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authority independent of [its own] supervision.” Id., at 

88a. Because that is so (said the SEC), they need no

special, high-level appointment. See id., at 86a. 

Lucia’s claim fared no better in the Court of Appeals for

the D. C. Circuit. A panel of that court seconded the 

Commission’s view that SEC ALJs are employees rather 

than officers, and so are not subject to the Appointments

Clause. See 832 F. 3d 277, 283–289 (2016). Lucia then 

petitioned for rehearing en banc. The Court of Appeals

granted that request and heard argument in the case. But 

the ten members of the en banc court divided evenly,

resulting in a per curiam order denying Lucia’s claim. See 

868 F. 3d 1021 (2017). That decision conflicted with one 

from the Court of Appeals for the Tenth Circuit. See 

Bandimere v. SEC, 844 F. 3d 1168, 1179 (2016). 

Lucia asked us to resolve the split by deciding whether

the Commission’s ALJs are “Officers of the United States 

within the meaning of the Appointments Clause.” Pet. for 

Cert. i. Up to that point, the Federal Government (as 

represented by the Department of Justice) had defended

the Commission’s position that SEC ALJs are employees, 

not officers. But in responding to Lucia’s petition, the 

Government switched sides.1 So when we granted the

petition, 583 U. S. ___ (2018), we also appointed an amicus 

curiae to defend the judgment below.2 We now reverse. 

—————— 

1 In the same certiorari-stage brief, the Government asked us to add a

second question presented: whether the statutory restrictions on

removing the Commission’s ALJs are constitutional. See Brief in 

Response 21. When we granted certiorari, we chose not to take that 

step. See 583 U. S. ___ (2018). The Government’s merits brief now 

asks us again to address the removal issue. See Brief for United States 

39–55. We once more decline. No court has addressed that question,

and we ordinarily await “thorough lower court opinions to guide our

analysis of the merits.” Zivotofsky v. Clinton, 566 U. S. 189, 201 (2012). 2We appointed Anton Metlitsky to brief and argue the case, 583 U. S.

___ (2018), and he has ably discharged his responsibilities. 

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II
 

The sole question here is whether the Commission’s 

ALJs are “Officers of the United States” or simply employees of the Federal Government. The Appointments Clause

prescribes the exclusive means of appointing “Officers.” 

Only the President, a court of law, or a head of department can do so. See Art. II, §2, cl. 2.3 And as all parties

agree, none of those actors appointed Judge Elliot before 

he heard Lucia’s case; instead, SEC staff members gave 

him an ALJ slot. See Brief for Petitioners 15; Brief for 

United States 38; Brief for Court-Appointed Amicus Curiae 21. So if the Commission’s ALJs are constitutional 

officers, Lucia raises a valid Appointments Clause claim. 

The only way to defeat his position is to show that those

ALJs are not officers at all, but instead non-officer employees—part of the broad swath of “lesser functionaries” 

in the Government’s workforce. Buckley v. Valeo, 424 

U. S. 1, 126, n. 162 (1976) (per curiam). For if that is true, 

the Appointments Clause cares not a whit about who

named them. See United States v. Germaine, 99 U. S. 508, 

510 (1879).

Two decisions set out this Court’s basic framework for 

distinguishing between officers and employees. Germaine 

held that “civil surgeons” (doctors hired to perform various

physical exams) were mere employees because their duties 

were “occasional or temporary” rather than “continuing 

—————— 

3That statement elides a distinction, not at issue here, between 

“principal” and “inferior” officers. See Edmond v. United States, 520 

U. S. 651, 659–660 (1997). Only the President, with the advice and 

consent of the Senate, can appoint a principal officer; but Congress

(instead of relying on that method) may authorize the President alone,

a court, or a department head to appoint an inferior officer. See ibid. 

Both the Government and Lucia view the SEC’s ALJs as inferior 

officers and acknowledge that the Commission, as a head of department, can constitutionally appoint them. See Brief for United States 

38; Brief for Petitioners 50–51. 

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6 LUCIA v. SEC 

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and permanent.” Id., at 511–512. Stressing “ideas of

tenure [and] duration,” the Court there made clear that an

individual must occupy a “continuing” position established 

by law to qualify as an officer. Id., at 511. Buckley then 

set out another requirement, central to this case. It determined that members of a federal commission were 

officers only after finding that they “exercis[ed] significant

authority pursuant to the laws of the United States.” 424 

U. S., at 126. The inquiry thus focused on the extent of

power an individual wields in carrying out his assigned 

functions. 

 Both the amicus and the Government urge us to elaborate on Buckley’s “significant authority” test, but another 

of our precedents makes that project unnecessary. The 

standard is no doubt framed in general terms, tempting

advocates to add whatever glosses best suit their arguments. See Brief for Amicus Curiae 14 (contending that 

an individual wields “significant authority” when he has 

“(i) the power to bind the government or private parties (ii) 

in her own name rather than in the name of a superior 

officer”); Reply Brief for United States 2 (countering that

an individual wields that authority when he has “the 

power to bind the government or third parties on significant matters” or to undertake other “important and distinctively sovereign functions”). And maybe one day we

will see a need to refine or enhance the test Buckley set 

out so concisely. But that day is not this one, because in 

Freytag v. Commissioner, 501 U. S. 868 (1991), we applied 

the unadorned “significant authority” test to adjudicative

officials who are near-carbon copies of the Commission’s

ALJs. As we now explain, our analysis there (sans any 

more detailed legal criteria) necessarily decides this case. 

The officials at issue in Freytag were the “special trial

judges” (STJs) of the United States Tax Court. The authority of those judges depended on the significance of the 

tax dispute before them. In “comparatively narrow and 

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minor matters,” they could both hear and definitively 

resolve a case for the Tax Court. Id., at 873. In more 

major matters, they could preside over the hearing, but 

could not issue the final decision; instead, they were to 

“prepare proposed findings and an opinion” for a regular 

Tax Court judge to consider. Ibid. The proceeding challenged in Freytag was a major one, involving $1.5 billion 

in alleged tax deficiencies. See id., at 871, n. 1. After 

conducting a 14-week trial, the STJ drafted a proposed

decision in favor of the Government. A regular judge then

adopted the STJ’s work as the opinion of the Tax Court. 

See id., at 872. The losing parties argued on appeal that

the STJ was not constitutionally appointed. 

This Court held that the Tax Court’s STJs are officers, 

not mere employees. Citing Germaine, the Court first 

found that STJs hold a continuing office established by 

law. See 501 U. S., at 881. They serve on an ongoing,

rather than a “temporary [or] episodic[,] basis”; and their

“duties, salary, and means of appointment” are all specified in the Tax Code. Ibid. The Court then considered, as 

Buckley demands, the “significance” of the “authority” 

STJs wield. 501 U. S., at 881. In addressing that issue,

the Government had argued that STJs are employees, 

rather than officers, in all cases (like the one at issue) in 

which they could not “enter a final decision.” Ibid. But 

the Court thought the Government’s focus on finality

“ignore[d] the significance of the duties and discretion that

[STJs] possess.” Ibid. Describing the responsibilities

involved in presiding over adversarial hearings, the Court 

said: STJs “take testimony, conduct trials, rule on the 

admissibility of evidence, and have the power to enforce

compliance with discovery orders.” Id., at 881–882. And 

the Court observed that “[i]n the course of carrying out

these important functions, the [STJs] exercise significant 

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cers, even when their decisions were not final.4 

Freytag says everything necessary to decide this case.

To begin, the Commission’s ALJs, like the Tax Court’s 

STJs, hold a continuing office established by law. See id., 

at 881. Indeed, everyone here—Lucia, the Government, 

and the amicus—agrees on that point. See Brief for Petitioners 21; Brief for United States 17–18, n. 3; Brief for 

Amicus Curiae 22, n. 7. Far from serving temporarily or

episodically, SEC ALJs “receive[] a career appointment.”

5 CFR §930.204(a) (2018). And that appointment is to a

position created by statute, down to its “duties, salary, and

means of appointment.” Freytag, 501 U. S., at 881; see 5 

U. S. C. §§556–557, 5372, 3105. 

Still more, the Commission’s ALJs exercise the same 

“significant discretion” when carrying out the same “important functions” as STJs do. Freytag, 501 U. S., at 882. 

Both sets of officials have all the authority needed to 

ensure fair and orderly adversarial hearings—indeed, 

nearly all the tools of federal trial judges. See Butz, 438 

U. S., at 513; supra, at 2. Consider in order the four specific (if overlapping) powers Freytag mentioned. First, the 

—————— 

4The Court also provided an alternative basis for viewing the STJs as 

officers. “Even if the duties of [STJs in major cases] were not as significant as we . . . have found them,” we stated, “our conclusion would be 

unchanged.” Freytag, 501 U. S., at 882. That was because the Government had conceded that in minor matters, where STJs could enter 

final decisions, they had enough “independent authority” to count as

officers. Ibid. And we thought it made no sense to classify the STJs as

officers for some cases and employees for others. See ibid. JUSTICE 

SOTOMAYOR relies on that back-up rationale in trying to reconcile 

Freytag with her view that “a prerequisite to officer status is the 

authority” to issue at least some “final decisions.” Post, at 5 (dissenting 

opinion). But Freytag has two parts, and its primary analysis explicitly 

rejects JUSTICE SOTOMAYOR’s theory that final decisionmaking authority 

is a sine qua non of officer status. See 501 U. S., at 881–882. As she 

acknowledges, she must expunge that reasoning to make her reading

work. See post, at 5 (“That part of the opinion[] was unnecessary to the 

result”). 

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Commission’s ALJs (like the Tax Court’s STJs) “take

testimony.” 501 U. S., at 881. More precisely, they

“[r]eceiv[e] evidence” and “[e]xamine witnesses” at hearings, and may also take pre-hearing depositions. 17 CFR 

§§201.111(c), 200.14(a)(4); see 5 U. S. C. §556(c)(4). Second, the ALJs (like STJs) “conduct trials.” 501 U. S., at 

882. As detailed earlier, they administer oaths, rule on 

motions, and generally “regulat[e] the course of ” a hearing, as well as the conduct of parties and counsel. 

§201.111; see §§200.14(a)(1), (a)(7); supra, at 2. Third, the 

ALJs (like STJs) “rule on the admissibility of evidence.” 

501 U. S., at 882; see §201.111(c). They thus critically 

shape the administrative record (as they also do when

issuing document subpoenas). See §201.111(b). And 

fourth, the ALJs (like STJs) “have the power to enforce 

compliance with discovery orders.” 501 U. S., at 882. In 

particular, they may punish all “[c]ontemptuous conduct,” 

including violations of those orders, by means as severe 

as excluding the offender from the hearing. See 

§201.180(a)(1). So point for point—straight from Freytag’s 

list—the Commission’s ALJs have equivalent duties and 

powers as STJs in conducting adversarial inquiries.

And at the close of those proceedings, ALJs issue decisions much like that in Freytag—except with potentially 

more independent effect. As the Freytag Court recounted, 

STJs “prepare proposed findings and an opinion” adjudicating charges and assessing tax liabilities. 501 U. S., at 

873; see supra, at 7. Similarly, the Commission’s ALJs 

issue decisions containing factual findings, legal conclusions, and appropriate remedies. See §201.360(b); supra, 

at 2. And what happens next reveals that the ALJ can

play the more autonomous role. In a major case like Freytag, a regular Tax Court judge must always review an 

STJ’s opinion. And that opinion counts for nothing unless

the regular judge adopts it as his own. See 501 U. S., at 

873. By contrast, the SEC can decide against reviewing 

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an ALJ decision at all. And when the SEC declines review 

(and issues an order saying so), the ALJ’s decision itself

“becomes final” and is “deemed the action of the Commission.” §201.360(d)(2); 15 U. S. C. §78d–1(c); see supra, at 

2. That last-word capacity makes this an a fortiori case: If 

the Tax Court’s STJs are officers, as Freytag held, then the 

Commission’s ALJs must be too.

 The amicus offers up two distinctions to support the

opposite conclusion. His main argument relates to “the 

power to enforce compliance with discovery orders”—the 

fourth of Freytag’s listed functions. 501 U. S., at 882. The 

Tax Court’s STJs, he states, had that power “because they 

had authority to punish contempt” (including discovery

violations) through fines or imprisonment. Brief for Amicus Curiae 37; see id., at 37, n. 10 (citing 26 U. S. C. 

§7456(c)). By contrast, he observes, the Commission’s 

ALJs have less capacious power to sanction misconduct.

The amicus’s secondary distinction involves how the Tax

Court and Commission, respectively, review the factfinding of STJs and ALJs. The Tax Court’s rules state that an 

STJ’s findings of fact “shall be presumed” correct. Tax 

Court Rule 183(d). In comparison, the amicus notes, the 

SEC’s regulations include no such deferential standard.

See Brief for Amicus Curiae 10, 38, n. 11. 

But those distinctions make no difference for officer 

status. To start with the amicus’s primary point, Freytag

referenced only the general “power to enforce compliance

with discovery orders,” not any particular method of doing 

so. 501 U. S., at 882. True enough, the power to toss

malefactors in jail is an especially muscular means of

enforcement—the nuclear option of compliance tools. But 

just as armies can often enforce their will through conventional weapons, so too can administrative judges. As 

noted earlier, the Commission’s ALJs can respond to

discovery violations and other contemptuous conduct by 

excluding the wrongdoer (whether party or lawyer) from 

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the proceedings—a powerful disincentive to resist a court

order. See §201.180(a)(1)(i); supra, at 9. Similarly, if the

offender is an attorney, the ALJ can “[s]ummarily suspend” him from representing his client—not something

the typical lawyer wants to invite. §201.180(a)(1)(ii). And 

finally, a judge who will, in the end, issue an opinion 

complete with factual findings, legal conclusions, and 

sanctions has substantial informal power to ensure the

parties stay in line. Contrary to the amicus’s view, all 

that is enough to satisfy Freytag’s fourth item (even supposing, which we do not decide, that each of those items is

necessary for someone conducting adversarial hearings to

count as an officer).

 And the amicus’s standard-of-review distinction fares 

just as badly. The Freytag Court never suggested that the

deference given to STJs’ factual findings mattered to its 

Appointments Clause analysis. Indeed, the relevant part

of Freytag did not so much as mention the subject (even

though it came up at oral argument, see Tr. of Oral Arg.

33–41). And anyway, the Commission often accords a 

similar deference to its ALJs, even if not by regulation. 

The Commission has repeatedly stated, as it did below, 

that its ALJs are in the “best position to make findings of 

fact” and “resolve any conflicts in the evidence.” App. to 

Pet. for Cert. 241a (quoting In re Nasdaq Stock Market, 

LLC, SEC Release No. 57741 (Apr. 30, 2008)). (That was

why the SEC insisted that Judge Elliot make factual

findings on all four allegations of Lucia’s deception. See 

supra, at 3.) And when factfinding derives from credibility

judgments, as it frequently does, acceptance is nearautomatic. Recognizing ALJs’ “personal experience with

the witnesses,” the Commission adopts their “credibility

finding[s] absent overwhelming evidence to the contrary.”

App. to Pet. for Cert. 241a; In re Clawson, SEC Release 

No. 48143 (July 9, 2003). That practice erases the constitutional line the amicus proposes to draw. 

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The only issue left is remedial. For all the reasons we 

have given, and all those Freytag gave before, the Commission’s ALJs are “Officers of the United States,” subject 

to the Appointments Clause. And as noted earlier, Judge 

Elliot heard and decided Lucia’s case without the kind of 

appointment the Clause requires. See supra, at 5. This 

Court has held that “one who makes a timely challenge to 

the constitutional validity of the appointment of an officer

who adjudicates his case” is entitled to relief. Ryder v. 

United States, 515 U. S. 177, 182–183 (1995). Lucia made 

just such a timely challenge: He contested the validity of 

Judge Elliot’s appointment before the Commission, and 

continued pressing that claim in the Court of Appeals and 

this Court. So what relief follows? This Court has also 

held that the “appropriate” remedy for an adjudication

tainted with an appointments violation is a new “hearing 

before a properly appointed” official. Id., at 183, 188. And 

we add today one thing more. That official cannot be 

Judge Elliot, even if he has by now received (or receives

sometime in the future) a constitutional appointment.

Judge Elliot has already both heard Lucia’s case and 

issued an initial decision on the merits. He cannot be 

expected to consider the matter as though he had not

adjudicated it before.5 To cure the constitutional error, 

—————— 

5 JUSTICE BREYER disagrees with our decision to wrest further proceedings from Judge Elliot, arguing that “[f]or him to preside once

again would not violate the structural purposes [of] the Appointments 

Clause.” Post, at 13 (opinion concurring in judgment in part and 

dissenting in part). But our Appointments Clause remedies are designed not only to advance those purposes directly, but also to create 

“[]incentive[s] to raise Appointments Clause challenges.” Ryder v. 

United States, 515 U. S. 177, 183 (1995). We best accomplish that goal

by providing a successful litigant with a hearing before a new judge.

That is especially so because (as JUSTICE BREYER points out) the old

judge would have no reason to think he did anything wrong on the 

merits, see post, at 13—and so could be expected to reach all the same 

judgments. But we do not hold that a new officer is required for every 

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another ALJ (or the Commission itself) must hold the new 

hearing to which Lucia is entitled.6 

We accordingly reverse the judgment of the Court of 

Appeals and remand the case for further proceedings

consistent with this opinion. 

It is so ordered. 

—————— 

Appointments Clause violation. As JUSTICE BREYER suggests, we can

give that remedy here because other ALJs (and the Commission) are 

available to hear this case on remand. See ibid. If instead the Appointments Clause problem is with the Commission itself, so that there

is no substitute decisionmaker, the rule of necessity would presumably

kick in and allow the Commission to do the rehearing. See FTC v. 

Cement Institute, 333 U. S. 683, 700–703 (1948); 3 K. Davis, Administrative Law Treatise §19.9 (2d ed. 1980). 6While this case was on judicial review, the SEC issued an order 

“ratif[ying]” the prior appointments of its ALJs. Order (Nov. 30, 2017),

online at https://www.sec.gov/litigation/opinions/2017/33-10440.pdf (as 

last visited June 18, 2018). Lucia argues that the order is invalid. See 

Brief for Petitioners 50–56. We see no reason to address that issue. 

The Commission has not suggested that it intends to assign Lucia’s

case on remand to an ALJ whose claim to authority rests on the ratification order. The SEC may decide to conduct Lucia’s rehearing itself.

Or it may assign the hearing to an ALJ who has received a constitutional appointment independent of the ratification. 

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_________________ 

_________________ 

 


 

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THOMAS, J., concurring 

SUPREME COURT OF THE UNITED STATES 

No. 17–130 

RAYMOND J. LUCIA, ET AL., PETITIONERS v. 

SECURITIES AND EXCHANGE COMMISSION 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 

APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
 

[June 21, 2018] 

JUSTICE THOMAS, with whom JUSTICE GORSUCH joins,

concurring. 

I agree with the Court that this case is indistinguishable 

from Freytag v. Commissioner, 501 U. S. 868 (1991). If the 

special trial judges in Freytag were “Officers of the United 

States,” Art. II, §2, cl. 2, then so are the administrative

law judges of the Securities and Exchange Commission.

Moving forward, however, this Court will not be able to

decide every Appointments Clause case by comparing it to 

Freytag. And, as the Court acknowledges, our precedents 

in this area do not provide much guidance. See ante, at 6. 

While precedents like Freytag discuss what is sufficient to 

make someone an officer of the United States, our precedents have never clearly defined what is necessary. I 

would resolve that question based on the original public 

meaning of “Officers of the United States.” To the Founders, this term encompassed all federal civil officials “‘with 

responsibility for an ongoing statutory duty.’” NLRB v. 

SW General, Inc., 580 U. S. ___, ___ (2017) (THOMAS, J., 

concurring) (slip op., at 4); Mascott, Who Are “Officers

of the United States”? 70 Stan. L. Rev. 443, 564 (2018) 

(Mascott).1 

—————— 

1 I address only the dividing line between “Officers of the United 

States,” who are subject to the Appointments Clause, and nonofficer 

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2 LUCIA v. SEC 

THOMAS, J., concurring 

The Appointments Clause provides the exclusive process

for appointing “Officers of the United States.” See SW 

General, supra, at ___ (opinion of THOMAS, J.) (slip op.,

at 1). While principal officers must be nominated by the 

President and confirmed by the Senate, Congress can 

authorize the appointment of “inferior Officers” by “the

President alone,” “the Courts of Law,” or “the Heads of 

Departments.” Art. II, §2, cl. 2.

This alternative process for appointing inferior officers 

strikes a balance between efficiency and accountability.

Given the sheer number of inferior officers, it would be too 

burdensome to require each of them to run the gauntlet of 

Senate confirmation. See United States v. Germaine, 99 

U. S. 508, 509–510 (1879); 2 Records of the Federal Convention of 1787, pp. 627–628 (M. Farrand ed. 1911). But, 

by specifying only a limited number of actors who can 

appoint inferior officers without Senate confirmation, the 

Appointments Clause maintains clear lines of accountability—encouraging good appointments and giving the public 

someone to blame for bad ones. See The Federalist No. 76, 

p. 455 (C. Rossiter ed. 1961) (A. Hamilton); Wilson, Lectures on Law: Government, in 1 The Works of James 

Wilson 343, 359–361 (J. Andrews ed., 1896). 

The Founders likely understood the term “Officers of the

United States” to encompass all federal civil officials who 

perform an ongoing, statutory duty—no matter how important or significant the duty. See Mascott 454. “Officers 

of the United States” was probably not a term of art that

the Constitution used to signify some special type of official. Based on how the Founders used it and similar 

terms, the phrase “of the United States” was merely a 

—————— 

employees, who are not. I express no view on the meaning of “Office” or

“Officer” in any other provision of the Constitution, or the difference 

between principal officers and inferior officers under the Appointments

Clause. 

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THOMAS, J., concurring 

synonym for “federal,” and the word “Office[r]” carried its 

ordinary meaning. See id., at 471–479. The ordinary

meaning of “officer” was anyone who performed a continuous public duty. See id., at 484–507; e.g., United States v. 

Maurice, 26 F. Cas. 1211, 1214 (No. 15,747) (CC Va. 1823) 

(defining officer as someone in “‘a public charge or employment’” who performed a “continuing” duty); 8 Annals 

of Cong. 2304–2305 (1799) (statement of Rep. Harper) 

(explaining that the word officer “is derived from the Latin 

word officium” and “includes all persons holding posts

which require the performance of some public duty”). For 

federal officers, that duty is “established by Law”—that is,

by statute. Art. II, §2, cl. 2. The Founders considered 

individuals to be officers even if they performed only 

ministerial statutory duties—including recordkeepers, 

clerks, and tidewaiters (individuals who watched goods 

land at a customhouse). See Mascott 484–507. Early 

congressional practice reflected this understanding. With 

exceptions not relevant here,2 Congress required all federal officials with ongoing statutory duties to be appointed 

in compliance with the Appointments Clause. See id., at 

507–545. 

Applying the original meaning here, the administrative

law judges of the Securities and Exchange Commission 

easily qualify as “Officers of the United States.” These 

judges exercise many of the agency’s statutory duties,

including issuing initial decisions in adversarial proceedings. See 15 U. S. C. §78d–1(a); 17 CFR §§200.14, 200.30–

9 (2017). As explained, the importance or significance of 

these statutory duties is irrelevant. All that matters is 

that the judges are continuously responsible for perform-

—————— 

2The First Congress exempted certain officials with ongoing statutory duties, such as deputies and military officers, from the requirements

of the Appointments Clause. But these narrow exceptions do not 

disprove the rule, as background principles of founding-era law explain 

each of them. See Mascott 480–483, 515–530. 

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4 LUCIA v. SEC 

THOMAS, J., concurring 

ing them.

In short, the administrative law judges of the Securities

Exchange Commission are “Officers of the United States” 

under the original meaning of the Appointments Clause.

They have “‘responsibility for an ongoing statutory duty,’” 

which is sufficient to resolve this case. SW General, 580 

U. S., at ___ (opinion of THOMAS, J.) (slip op., at 4). Because the Court reaches the same conclusion by correctly

applying Freytag, I join its opinion. 

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_________________ 

_________________ 


 

Cite as: 585 U. S. ____ (2018) 1 

Opinion of BREYER, J. 

SUPREME COURT OF THE UNITED STATES 

No. 17–130 

RAYMOND J. LUCIA, ET AL., PETITIONERS v. 

SECURITIES AND EXCHANGE COMMISSION 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 

APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
 

[June 21, 2018] 

JUSTICE BREYER, with whom JUSTICE GINSBURG and 

JUSTICE SOTOMAYOR join as to Part III, concurring in the

judgment in part and dissenting in part. 

I agree with the Court that the Securities and Exchange

Commission did not properly appoint the Administrative

Law Judge who presided over petitioner Lucia’s hearing. 

But I disagree with the majority in respect to two matters. 

First, I would rest our conclusion upon statutory, not 

constitutional, grounds. I believe it important to do so 

because I cannot answer the constitutional question that

the majority answers without knowing the answer to a

different, embedded constitutional question, which the 

Solicitor General urged us to answer in this case: the

constitutionality of the statutory “for cause” removal 

protections that Congress provided for administrative law 

judges. Cf. Free Enterprise Fund v. Public Company 

Accounting Oversight Bd., 561 U. S. 477 (2010). Second, I 

disagree with the Court in respect to the proper remedy. 

I 

The relevant statute here is the Administrative Procedure Act. That Act governs the appointment of administrative law judges. It provides (as it has, in substance, 

since its enactment in 1946) that “[e]ach agency shall 

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2 LUCIA v. SEC 

Opinion of BREYER, J. 

sary for” hearings governed by the Administrative Procedure Act. 5 U. S. C. §3105; see also Administrative Procedure Act, §11, 60 Stat. 244 (original version, which refers 

to “examiners” as administrative law judges were then 

called). In the case of the Securities and Exchange Commission, the relevant “agency” is the Commission itself. 

But the Commission did not appoint the Administrative

Law Judge who presided over Lucia’s hearing. Rather, the 

Commission’s staff appointed that Administrative Law 

Judge, without the approval of the Commissioners themselves. See ante, at 1; App. to Pet. for Cert. 298a–299a. 

I do not believe that the Administrative Procedure Act 

permits the Commission to delegate its power to appoint

its administrative law judges to its staff. We have held 

that, for purposes of the Constitution’s Appointments

Clause, the Commission itself is a “‘Hea[d]’” of a “‘Departmen[t].’” Free Enterprise Fund, supra, at 512–513. 

Thus, reading the statute as referring to the Commission

itself, and not to its staff, avoids a difficult constitutional 

question, namely, the very question that the Court answers today: whether the Commission’s administrative

law judges are constitutional “inferior Officers” whose 

appointment Congress may vest only in the President, the 

“Courts of Law,” or the “Heads of Departments.” Art. II, 

§2, cl. 2; see United States v. Jin Fuey Moy, 241 U. S. 394, 

401 (1916) (“A statute must be construed, if fairly possible,

so as to avoid not only the conclusion that it is unconstitutional but also grave doubts upon that score”).

I have found no other statutory provision that would 

permit the Commission to delegate the power to appoint

its administrative law judges to its staff. The statute 

establishing and governing the Commission does allow the 

Commission to “delegate, by published order or rule, any 

of its functions to a division of the Commission, an individual Commissioner, an administrative law judge, or an 

employee or employee board.” 15 U. S. C. §78d–1(a). But 

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Cite as: 585 U. S. ____ (2018) 3 

Opinion of BREYER, J. 

this provision requires a “published order or rule,” and the 

Commission here published no relevant delegating order 

or rule. Rather, Lucia discovered the Commission’s appointment system for administrative law judges only when

the Commission’s enforcement division staff filed an affidavit in this case describing that staff-based system. See 

App. to Pet. for Cert. 295a–299a. Regardless, the same

constitutional-avoidance reasons that should inform our 

construction of the Administrative Procedure Act should 

also lead us to interpret the Commission’s general delegation authority as excluding the power to delegate to staff

the authority to appoint its administrative law judges, so 

as to avoid the constitutional question the Court reaches 

in this case. See Jin Fuey Moy, supra, at 401. 

The analysis may differ for other agencies that employ 

administrative law judges. Each agency’s governing statute is different, and some, unlike the Commission’s, may 

allow the delegation of duties without a published order or 

rule. See, e.g., 42 U. S. C. §902(a)(7) (applicable to the 

Social Security Administration). Similarly, other agencies’ 

administrative law judges perform distinct functions, and 

their means of appointment may therefore not raise the 

constitutional questions that inform my reading of the

relevant statutes here. 

The upshot, in my view, is that for statutory, not constitutional, reasons, the Commission did not lawfully appoint

the Administrative Law Judge here at issue. And this 

Court should decide no more than that. 

II
 

A 

The reason why it is important to go no further arises

from the holding in a case this Court decided eight years 

ago, Free Enterprise Fund, supra. The case concerned 

statutory provisions protecting members of the Public 

Company Accounting Oversight Board from removal 

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4 LUCIA v. SEC 

Opinion of BREYER, J. 

without cause. The Court held in that case that the Executive Vesting Clause of the Constitution, Art. II, §1 (“[t]he 

executive Power shall be vested in a President of the 

United States of America”), forbade Congress from providing members of the Board with “multilevel protection from 

removal” by the President. Free Enterprise Fund, 561 

U. S., at 484; see id., at 514 (“Congress cannot limit the

President’s authority” by providing “two levels of protection from removal for those who . . . exercise significant 

executive power”). But see id., at 514–549 (BREYER, J., 

dissenting). Because, in the Court’s view, the relevant 

statutes (1) granted the Securities and Exchange Commissioners protection from removal without cause, (2) gave

the Commissioners sole authority to remove Board members, and (3) protected Board members from removal 

without cause, the statutes provided Board members with

two levels of protection from removal and consequently 

violated the Constitution. Id., at 495–498. 

In addressing the constitutionality of the Board members’ removal protections, the Court emphasized that the 

Board members were “executive officers”—more specifically,

“inferior officers” for purposes of the Appointments

Clause. E.g., id., at 492–495, 504–505. The significance of

that fact to the Court’s analysis is not entirely clear. The 

Court said: 

“The parties here concede that Board members are 

executive ‘Officers’, as that term is used in the Constitution. We do not decide the status of other Government employees, nor do we decide whether ‘lesser 

functionaries subordinate to officers of the United 

States’ must be subject to the same sort of control as 

those who exercise ‘significant authority pursuant to

the laws.’” Id., at 506 (quoting Buckley v. Valeo, 424 

U. S. 1, 126, and n. 162 (1976) (per curiam); citations 

omitted). 

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Cite as: 585 U. S. ____ (2018) 5 

Opinion of BREYER, J. 

Thus, the Court seemed not only to limit its holding to the 

Board members themselves, but also to suggest that Government employees who were not officers would be distinguishable from the Board members on that ground alone.

For present purposes, however, the implications of Free 

Enterprise Fund’s technical-sounding holding about “multilevel protection from removal” remain potentially dramatic. 561 U. S., at 484. The same statute, the Administrative Procedure Act, that provides that the “agency” will

appoint its administrative law judges also protects the 

administrative law judges from removal without cause. In 

particular, the statute says that an 

“action may be taken against an administrative law

judge appointed under section 3105 of this title by the

agency in which the administrative law judge is employed only for good cause established and determined 

by the Merit Systems Protection Board on the record

after opportunity for hearing before the Board.” 5 

U. S. C. §7521(a). 

As with appointments, this provision constituted an important part of the Administrative Procedure Act when it

was originally enacted in 1946. See §11, 60 Stat. 244.

The Administrative Procedure Act thus allows administrative law judges to be removed only “for good cause”

found by the Merit Systems Protection Board. §7521(a).

And the President may, in turn, remove members of the 

Merit Systems Protection Board only for “inefficiency, 

neglect of duty, or malfeasance in office.” §1202(d). Thus, 

Congress seems to have provided administrative law

judges with two levels of protection from removal without 

cause—just what Free Enterprise Fund interpreted the 

Constitution to forbid in the case of the Board members. 

The substantial independence that the Administrative 

Procedure Act’s removal protections provide to administrative law judges is a central part of the Act’s overall 

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6 LUCIA v. SEC 

Opinion of BREYER, J. 

scheme. See Ramspeck v. Federal Trial Examiners Conference, 345 U. S. 128, 130 (1953); Wong Yang Sung v. 

McGrath, 339 U. S. 33, 46 (1950). Before the Administrative Procedure Act, hearing examiners “were in a dependent status” to their employing agency, with their classification, compensation, and promotion all dependent on how 

the agency they worked for rated them. Ramspeck, 345 

U. S., at 130. As a result of that dependence, “[m]any 

complaints were voiced against the actions of the hearing

examiners, it being charged that they were mere tools of 

the agency concerned and subservient to the agency heads 

in making their proposed findings of fact and recommendations.” Id., at 131. The Administrative Procedure Act 

responded to those complaints by giving administrative

law judges “independence and tenure within the existing 

Civil Service system.” Id., at 132; cf. Wong Yang Sung, 

supra, at 41–46 (referring to removal protections as among 

the Administrative Procedure Act’s “safeguards . . . intended to ameliorate” the perceived “evils” of commingling 

of adjudicative and prosecutorial functions in agencies). 

If the Free Enterprise Fund Court’s holding applies

equally to the administrative law judges—and I stress the 

“if ”—then to hold that the administrative law judges are 

“Officers of the United States” is, perhaps, to hold that 

their removal protections are unconstitutional. This 

would risk transforming administrative law judges from

independent adjudicators into dependent decisionmakers, 

serving at the pleasure of the Commission. Similarly, to

apply Free Enterprise Fund’s holding to high-level civil 

servants threatens to change the nature of our meritbased civil service as it has existed from the time of President Chester Alan Arthur. See Free Enterprise Fund, 561 

U. S., at 540–542 (BREYER, J., dissenting).

I have stressed the words “if ” and “perhaps” in the 

previous paragraph because Free Enterprise Fund’s holding may not invalidate the removal protections applicable 

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Cite as: 585 U. S. ____ (2018) 7 

Opinion of BREYER, J. 

to the Commission’s administrative law judges even if the 

judges are inferior “officers of the United States” for purposes of the Appointments Clause. In my dissent in Free 

Enterprise Fund, I pointed out that under the majority’s

analysis, the removal protections applicable to administrative law judges—including specifically the Commission’s

administrative law judges—would seem to be unconstitutional. Id., at 542, 587. But the Court disagreed, saying 

that “none of the positions [my dissent] identifie[d] are

similarly situated to the Board.” Id., at 506. 

The Free Enterprise Fund Court gave three reasons why

administrative law judges were distinguishable from the 

Board members at issue in that case. First, the Court said 

that “[w]hether administrative law judges are necessarily

‘Officers of the United States’ is disputed.” Id., at 507, 

n. 10. Second, the Court said that “unlike members of the 

Board, many administrative law judges of course perform 

adjudicative rather than enforcement or policymaking 

functions, see [5 U. S. C.] §§554(d), 3105, or possess purely 

recommendatory powers.” Ibid. And, third, the Court 

pointed out that the civil service “employees” and administrative law judges to whom I referred in my dissent do not

“enjoy the same significant and unusual protections from

Presidential oversight as members of the Board.” Id., at 

506. The Court added that the kind of “for cause” protection the statutes provided for Board members was “unusually high.” Id., at 503. 

The majority here removes the first distinction, for it

holds that the Commission’s administrative law judges are 

inferior “Officers of the United States.” Ante, at 1. The 

other two distinctions remain. See, e.g., Wiener v. United 

States, 357 U. S. 349, 355–356 (1958) (holding that Congress is free to protect bodies tasked with “‘adjudicat[ing] 

according to law’ . . . ‘from the control or coercive influence, direct or indirect,’ . . . of either the Executive or 

Congress”) (quoting Humphrey’s Executor v. United States, 

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8 LUCIA v. SEC 

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295 U. S. 602, 629 (1935)). But the Solicitor General has 

nevertheless argued strongly that we should now decide 

the constitutionality of the administrative law judges’ 

removal protections as well as their means of appointment. And in his view, the administrative law judges’

statutory removal protections violate the Constitution (as

interpreted in Free Enterprise Fund), unless we construe 

those protections as giving the Commission substantially 

greater power to remove administrative law judges than it

presently has. See Merits Brief for Respondent 45–55.

On the Solicitor General’s account, for the administrative law judges’ removal protections to be constitutional, 

the Commission itself must have the power to remove 

administrative law judges “for failure to follow lawful 

instructions or perform adequately.” Id., at 48. The Merit 

Systems Protection Board would then review only the 

Commission’s factfinding, and not whether the facts (as 

found) count as “good cause” for removal. Id., at 52–53. 

This technical-sounding standard would seem to weaken

the administrative law judges’ “for cause” removal protections considerably, by permitting the Commission to remove an administrative law judge with whose judgments it

disagrees—say, because the judge did not find a securitieslaw violation where the Commission thought there 

was one, or vice versa. In such cases, the law allows the 

Commission to overrule an administrative law judge’s

findings, for the decision is ultimately the Commission’s.

See 15 U. S. C. §78d–1(b). But it does not allow the Commission to fire the administrative law judge. See 5 

U. S. C. §7521.

And now it should be clear why the application of Free 

Enterprise Fund to administrative law judges is important. If that decision does not limit or forbid Congress’ 

statutory “for cause” protections, then a holding that the

administrative law judges are “inferior Officers” does not

conflict with Congress’ intent as revealed in the statute. 

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Opinion of BREYER, J. 

But, if the holding is to the contrary, and more particularly 

if a holding that administrative law judges are “inferior 

Officers” brings with it application of Free Enterprise 

Fund’s limitation on “for cause” protections from removal,

then a determination that administrative law judges are,

constitutionally speaking, “inferior Officers” would directly

conflict with Congress’ intent, as revealed in the statute. 

In that case, it would be clear to me that Congress did not

intend that consequence, and that it therefore did not 

intend to make administrative law judges “inferior Officers” at all. 

B 

Congress’ intent on the question matters, in my view,

because the Appointments Clause is properly understood 

to grant Congress a degree of leeway as to whether particular Government workers are officers or instead mere 

employees not subject to the Appointments Clause. The 

words “by Law” appear twice in the Clause. It says that

the President (“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, . . . which shall be established by Law.” Art. II, §2, cl. 2 (emphasis added). It then 

adds that “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.” Ibid. (emphasis added). 

The use of the words “by Law” to describe the establishment and means of appointment of “Officers of the

United States,” together with the fact that Article I of the 

Constitution vests the legislative power in Congress,

suggests that (other than the officers the Constitution 

specifically lists) Congress, not the Judicial Branch alone,

must play a major role in determining who is an “Office[r] 

of the United States.” And Congress’ intent in this specific 

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10 LUCIA v. SEC 

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respect is often highly relevant. Congress’ leeway is not,

of course, absolute—it may not, for example, say that

positions the Constitution itself describes as “Officers” are 

not “Officers.” But given the constitutional language, the 

Court, when deciding whether other positions are “Officers 

of the United States” under the Appointments Clause, 

should give substantial weight to Congress’ decision.

How is the Court to decide whether Congress intended 

that the holder of a particular Government position count 

as an “Office[r] of the United States”? Congress might, of

course, write explicitly into the statute that the employee

“is an officer of the United States under the Appointments 

Clause,” but an explicit phrase of this kind is unlikely to 

appear. If it does not, then I would approach the question

like any other difficult question of statutory interpretation. Several considerations, among others, are likely to

be relevant. First, as the Court said in Freytag v. Commissioner, 501 U. S. 868, 881 (1991), and repeats today, 

ante, at 6, where Congress grants an appointee “‘significant authority pursuant to the laws to the United States,’” 

that supports the view that (but should not determinatively 

decide that) Congress made that appointee an “Office[r] of

the United States.” Freytag, supra, at 881 (quoting Buckley, 424 U. S., at 126); see also United States v. Germaine, 

99 U. S. 508, 511 (1879) (holding that the term “officer” 

“embraces the ideas of tenure, duration, emolument, and 

duties”). The means of appointment that Congress chooses 

is also instructive. Where Congress provides a method

of appointment that mimics a method the Appointments 

Clause allows for “Officers,” that fact too supports the 

view that (but does not determinatively decide that) Congress viewed the position as one to be held by an “Officer,” 

and vice versa. See id., at 509–511. And the Court’s 

decision in Free Enterprise Fund suggests a third indication of “Officer” status—did Congress provide the position 

with removal protections that would be unconstitutional if 

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provided for an “Officer”? See 561 U. S., at 514. That fact 

would support (but again not be determinative of) the 

opposite view—that Congress did not intend to confer

“inferior Officer” status on the position. 

As I said, these statutory features, while highly relevant, need not always prove determinative. The vast 

number of different civil service positions, with different

tasks, different needs, and different requirements for

independence, mean that this is not the place to lay down

bright-line rules. Rather, as this Court has said, “[t]he

versatility of circumstances often mocks a natural desire

for definitiveness” in this area. Wiener, 357 U. S., at 352. 

No case from this Court holds that Congress lacks this

sort of constitutional leeway in determining whether a

particular Government position will be filled by an “Office[r] of the United States.” To the contrary, while we 

have repeatedly addressed whether particular officials are

“Officers,” in all cases but one, we have upheld the appointment procedures Congress enacted as consistent with 

the Appointments Clause. See, e.g., Edmond v. United 

States, 520 U. S. 651, 666 (1997) (holding that Congress’ 

appointment procedure for military court judges “is in

conformity with the Appointments Clause of the Constitution”); Freytag, supra, at 888–891 (same as to special trial 

judges of the Tax Court); Rice v. Ames, 180 U. S. 371, 378 

(1901) (same as to district court “commissioners”); Ex 

parte Siebold, 100 U. S. 371, 397–398 (1880) (same as 

to “supervisors of election”). But see Buckley, supra, at 

124–137. 

The one exception was Buckley, 424 U. S., at 124–137, in 

which the Court set aside Congress’ prescribed appointment method for some members of the Federal Election 

Commission—appointment by Congress itself—as inconsistent with the Appointments Clause. But Buckley involved Federal Election Commission members with enormous powers. They had “primary and substantial 

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12 LUCIA v. SEC 

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responsibility for administering and enforcing the” Federal

Election Campaign Act of 1971, id., at 109, an “intricate 

statutory scheme . . . to regulate federal election campaigns,” id., at 12. They had “extensive rulemaking and

adjudicative powers,” id., at 110; the power to enforce the 

law through civil lawsuits, id., at 111; and the power to

disqualify a candidate from running for federal office, id., 

at 112–113. Federal Election Commissioners thus had 

powers akin to the “principal Officer[s]” of an Executive 

Department, whom the Constitution expressly refers to as

“Officers,” see Art. II, §2, cl. 1. It is not surprising that

Congress exceeded any leeway the Appointments Clause 

granted when it deviated from the Clause’s appointments’ 

methods in respect to an office with powers very similar to

those of the Officers listed in the Constitution itself. 

 Thus, neither Buckley nor any other case forecloses an 

interpretation of the Appointments Clause that focuses

principally on whether the relevant statutes show that

Congress intended that a particular Government position 

be held by an “Office[r] of the United States.” Adopting

such an approach, I would not answer the question whether 

the Securities and Exchange Commission’s administrative

law judges are constitutional “Officers” without first deciding the pre-existing Free Enterprise Fund question—

namely, what effect that holding would have on the statutory “for cause” removal protections that Congress provided 

for administrative law judges. If, for example, Free Enterprise Fund means that saying administrative law judges

are “inferior Officers” will cause them to lose their “for 

cause” removal protections, then I would likely hold that 

the administrative law judges are not “Officers,” for to say 

otherwise would be to contradict Congress’ enactment of

those protections in the Administrative Procedure Act. In 

contrast, if Free Enterprise Fund does not mean that an 

administrative law judge (if an “Office[r] of the United 

States”) would lose “for cause” protections, then it is more 

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likely that interpreting the Administrative Procedure Act

as conferring such status would not run contrary to Congress’ intent. In such a case, I would more likely hold 

that, given the other features of the Administrative Procedure Act, Congress did intend to make administrative law 

judges inferior “Officers of the United States.” 

III 

Separately, I also disagree with the majority’s conclusion that the proper remedy in this case requires a hearing

before a different administrative law judge. Ante, at 12– 

13. The Securities and Exchange Commission has now 

itself appointed the Administrative Law Judge in question, and I see no reason why he could not rehear the case.

After all, when a judge is reversed on appeal and a new

trial ordered, typically the judge who rehears the case is 

the same judge who heard it the first time. The reversal 

here is based on a technical constitutional question, and 

the reversal implies no criticism at all of the original judge

or his ability to conduct the new proceedings. For him to 

preside once again would not violate the structural purposes that we have said the Appointments Clause serves, 

see Freytag, 501 U. S., at 878, nor would it, in any obvious

way, violate the Due Process Clause. 

Regardless, this matter was not addressed below and

has not been fully argued here. I would, at a minimum, 

ask the Court of Appeals to examine it on remand rather

than decide it here now. That is especially so because the 

majority seems to state a general rule that a different

“Officer” must always preside after an Appointments 

Clause violation. In a case like this one, that is a relatively

minor imposition, because the Commission has other 

administrative law judges. But in other cases—say, a case

adjudicated by an improperly appointed (but since reappointed) Commission itself—the “Officer” in question may 

be the only such “Officer,” so that no substitute will be 

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BREYER, J., concurring in part and dissenting in part 

14 LUCIA v. SEC 

Opinion of BREYER, J. 

available. The majority suggests that in such cases, the 

“rule of necessity” may excuse compliance with its newfound different-“Officer” requirement. Ante, at 12–13, 

n. 5. But that still does not explain why the Constitution 

would require a hearing before a different “Officer” at all. 

* * * 

The Court’s decision to address the Appointments

Clause question separately from the constitutional removal

question is problematic. By considering each question in 

isolation, the Court risks (should the Court later extend 

Free Enterprise Fund) unraveling, step-by-step, the foundations of the Federal Government’s administrative adjudication system as it has existed for decades, and perhaps 

of the merit-based civil-service system in general. And the 

Court risks doing so without considering that potential 

consequence. For these reasons, I concur in the judgment 

in part and, with respect, I dissent in part. 

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_________________ 

_________________ 


 

Cite as: 585 U. S. ____ (2018) 1 

SOTOMAYOR, J., dissenting 

SUPREME COURT OF THE UNITED STATES 

No. 17–130 

RAYMOND J. LUCIA, ET AL., PETITIONERS v. 

SECURITIES AND EXCHANGE COMMISSION 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 

APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
 

[June 21, 2018] 

JUSTICE SOTOMAYOR, with whom JUSTICE GINSBURG 

joins, dissenting. 

The Court today and scholars acknowledge that this

Court’s Appointments Clause jurisprudence offers little 

guidance on who qualifies as an “Officer of the United 

States.” See, e.g., ante, at 6 (“The standard is no doubt

framed in general terms, tempting advocates to add whatever glosses best suit their arguments”); Plecnik, Officers 

Under the Appointments Clause, 11 Pitt. Tax Rev. 201,

204 (2014). The lack of guidance is not without consequence. “[Q]uestions about the Clause continue to arise

regularly both in the operation of the Executive Branch

and in proposed legislation.” 31 Opinion of Office of Legal 

Counsel 73, 76 (2007) (Op. OLC). This confusion can 

undermine the reliability and finality of proceedings and 

result in wasted resources. See ante, at 12–13 (opinion of 

the Court) (ordering the Commission to grant petitioners a

new administrative hearing).

As the majority notes, see ante, at 5–6, this Court’s 

decisions currently set forth at least two prerequisites to 

officer status: (1) an individual must hold a “continuing” 

office established by law, United States v. Germaine, 99 

U. S. 508, 511–512 (1879), and (2) an individual must 

wield “significant authority,” Buckley v. Valeo, 424 U. S. 1, 

126 (1976) (per curiam). The first requirement is relatively 

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2 LUCIA v. SEC 

SOTOMAYOR, J., dissenting 

easy to grasp; the second, less so. To be sure, to exercise 

“significant authority,” the person must wield considerable 

powers in comparison to the average person who works for 

the Federal Government. As this Court has noted, the 

vast majority of those who work for the Federal Government are not “Officers of the United States.” See Free 

Enterprise Fund v. Public Company Accounting Oversight 

Bd., 561 U. S. 477, 506, n. 9 (2010) (indicating that well 

over 90% of those who render services to the Federal 

Government and are paid by it are not constitutional

officers). But this Court’s decisions have yet to articulate 

the types of powers that will be deemed significant enough 

to constitute “significant authority.”

To provide guidance to Congress and the Executive

Branch, I would hold that one requisite component of 

“significant authority” is the ability to make final, binding 

decisions on behalf of the Government. Accordingly, a

person who merely advises and provides recommendations 

to an officer would not herself qualify as an officer. 

There is some historical support for such a requirement.

For example, in 1822, the Supreme Judicial Court of

Maine opined in the “fullest early explication” of the 

meaning of an “‘office,’” that “‘the term “office” implies a 

delegation of a portion of the sovereign power to, and 

possession of it by the person filling the office,’” that “‘in 

its effects[,] . . . will bind the rights of others.’” 31 Op.

OLC 83 (quoting 3 Greenl. (Me.) 481, 482). In 1899, a 

Report of the Judiciary Committee of the House of Representatives noted that “the creation and conferring of an

office involves a delegation to the individual of . . . sovereign functions,” i.e., “the power to . . . legislate, . . . execute

law, or . . . hear and determine judicially questions submitted.” 1 A. Hinds, Precedents of the House of Representatives of the United States 607 (1907). Those who 

merely assist others in exercising sovereign functions but 

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SOTOMAYOR, J., dissenting 

ers themselves do not wield significant authority. Id., at 

607–608. Consequently, a person who possesses the “mere

power to investigate some particular subject and report 

thereon” or to engage in negotiations “without [the] power 

to make binding” commitments on behalf of the Government is not an officer. Ibid. 

Confirming that final decisionmaking authority is a 

prerequisite to officer status would go a long way to aiding 

Congress and the Executive Branch in sorting out who is 

an officer and who is a mere employee. At the threshold, 

Congress and the Executive Branch could rule out as an

officer any person who investigates, advises, or recommends, but who has no power to issue binding policies, 

execute the laws, or finally resolve adjudicatory questions.

Turning to the question presented here, it is true that

the administrative law judges (ALJs) of the Securities and

Exchange Commission wield “extensive powers.” Ante, at 

2. They preside over adversarial proceedings that can lead 

to the imposition of significant penalties on private parties. See ante, at 2–3 (noting that the proceedings in the 

present case resulted in the imposition of $300,000 in civil 

penalties, as well as a lifetime bar from the investment

industry). In the hearings over which they preside, Commission ALJs also exercise discretion with respect to 

important matters. See ante, at 2 (discussing Commission 

ALJs’ powers to supervise discovery, issue subpoenas, rule

on the admissibility of evidence, hear and examine witnesses, and regulate the course of the proceedings). 

Nevertheless, I would hold that Commission ALJs are 

not officers because they lack final decisionmaking authority. As the Commission explained below, the Commission 

retains “‘plenary authority over the course of [its] administrative proceedings and the rulings of [its] law judges.’” 

In re Raymond J. Lucia Companies, Inc. & Raymond J. 

Lucia, Sr., SEC Release No. 75837 (Sept. 3, 2015). Commission ALJs can issue only “initial” decisions. 5 U. S. C. 

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4 LUCIA v. SEC 

SOTOMAYOR, J., dissenting 

§557(b). The Commission can review any initial decision 

upon petition or on its own initiative. 15 U. S. C. §78d– 

1(b). The Commission’s review of an ALJ’s initial decision 

is de novo. 5 U. S. C. §557(c). It can “make any findings

or conclusions that in its judgment are proper and on the 

basis of the record.” 17 CFR §201.411(a) (2017). The 

Commission is also in no way confined by the record initially developed by an ALJ. The Commission can accept

evidence itself or refer a matter to an ALJ to take additional evidence that the Commission deems relevant or 

necessary. See ibid.; §201.452. In recent years, the Commission has accepted review in every case in which it was 

sought. See R. Jackson, Fact and Fiction: The SEC’s 

Oversight of Administrative Law Judges (Mar. 9, 2018),

http://clsbluesky.law.columbia.edu/2018/03/09/fact-and-fictionthe-secs-oversight-of-administrative-law-judges/ (as last 

visited June 19, 2018). Even where the Commission does 

not review an ALJ’s initial decision, as in cases in which 

no party petitions for review and the Commission does not 

act sua sponte, the initial decision still only becomes final

when the Commission enters a finality order. 17 CFR. 

§201.360(d)(2). And by operation of law, every action

taken by an ALJ “shall, for all purposes, . . . be deemed the 

action of the Commission.” 15 U. S. C. §78d–1(c) (emphasis added). In other words, Commission ALJs do not 

exercise significant authority because they do not, and 

cannot, enter final, binding decisions against the Government or third parties.

The majority concludes that this case is controlled by 

Freytag v. Commissioner, 501 U. S. 868 (1991). See ante, 

at 6. In Freytag, the Court suggested that the Tax Court’s

special trial judges (STJs) acted as constitutional officers

even in cases where they could not enter final, binding 

decisions. In such cases, the Court noted, the STJs presided over adversarial proceedings in which they exercised 

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SOTOMAYOR, J., dissenting 

tions,” such as ruling on the admissibility of evidence and 

hearing and examining witnesses. 501 U. S., at 881–882. 

That part of the opinion, however, was unnecessary to the 

result. The Court went on to conclude that even if the 

STJs’ duties in such cases were “not as significant as [the

Court] found them to be,” its conclusion “would be unchanged.” Id., at 882. The Court noted that STJs could 

enter final decisions in certain types of cases, and that the 

Government had conceded that the STJs acted as officers 

with respect to those proceedings. Ibid. Because STJs 

could not be “officers for purposes of some of their duties 

. . . , but mere employees with respect to other[s],” the 

Court held they were officers in all respects. Ibid. Freytag

is, therefore, consistent with a rule that a prerequisite to

officer status is the authority, in at least some instances,

to issue final decisions that bind the Government or third 

parties.*

Because I would conclude that Commission ALJs are not 

officers for purposes of the Appointments Clause, it is not

necessary to reach the constitutionality of their removal 

protections. See ante, at 1 (BREYER, J., concurring in

judgment in part and dissenting in part). In any event, for 

at least the reasons stated in JUSTICE BREYER’s opinion, 

Free Enterprise Fund is readily distinguishable from the

circumstances at play here. See ante, at 3–9. 

As a final matter, although I would conclude that Commission ALJs are not officers, I share JUSTICE BREYER’s 

concerns regarding the Court’s choice of remedy, and so I 

join Part III of his opinion. 

For the foregoing reasons, I respectfully dissent. 

—————— 

*Even the majority opinion is not inconsistent with such a rule, in

that it appears to conclude, wrongly in my view, that Commission ALJs

can at times render final decisions. See ante, at 10. 

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(Slip Opinion) OCTOBER TERM, 2017 1 

Syllabus 

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader. 

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. 

SUPREME COURT OF THE UNITED STATES 

Syllabus 

ORTIZ v. UNITED STATES 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR 

THE ARMED FORCES 

No. 16–1423. Argued January 16, 2018—Decided June 22, 2018 

Congress has long provided for specialized military courts to adjudicate

charges against service members. Today, courts-martial hear cases

involving crimes unconnected with military service. They are also

subject to several tiers of appellate review, and thus are part of an integrated “court-martial system” that resembles civilian structures of 

justice. That system begins with the court-martial itself, a tribunal

that determines guilt or innocence and levies punishment, up to lifetime imprisonment or execution. The next phase occurs at one of four 

appellate courts: the Court of Criminal Appeals (CCA) for the Army, 

Navy-Marine Corps, Air Force, or Coast Guard. They review decisions where the sentence is a punitive discharge, incarceration for

more than one year, or death. The Court of Appeals for the Armed 

Forces (CAAF) sits atop the court-martial system. The CAAF is a 

“court of record” composed of five civilian judges, 10 U. S. C. §941,

which must review certain weighty cases and may review others. Finally, 28 U. S. C. §1259 gives this Court jurisdiction to review the 

CAAF’s decisions by writ of certiorari. 

Petitioner Keanu Ortiz, an Airman First Class, was convicted by a

court-martial of possessing and distributing child pornography, and

he was sentenced to two years’ imprisonment and a dishonorable discharge. An Air Force CCA panel, including Colonel Martin Mitchell, 

affirmed that decision. The CAAF then granted Ortiz’s petition for 

review to consider whether Judge Mitchell was disqualified from

serving on the CCA because he had been appointed to the Court of 

Military Commission Review (CMCR). The Secretary of Defense had

initially put Judge Mitchell on the CMCR under his statutory authority to “assign [officers] who are appellate military judges” to serve on 

that court. 10 U. S. C. §950f(b)(2). To moot a possible constitutional 

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2 ORTIZ v. UNITED STATES 

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problem with the assignment, the President (with the Senate’s advice

and consent) also appointed Judge Mitchell to the CMCR pursuant to

§950f(b)(3). Shortly thereafter, Judge Mitchell participated in Ortiz’s 

CCA appeal. 

Ortiz claimed that Judge Mitchell’s CMCR appointment barred his

continued CCA service under both a statute and the Constitution. 

First, he argued that the appointment violated §973(b)(2)(A), which 

provides that unless “otherwise authorized by law,” an active-duty

military officer “may not hold, or exercise the functions of,” certain 

“civil office[s]” in the federal government. Second, he argued that the 

Appointments Clause prohibits simultaneous service on the CMCR 

and the CCA. The CAAF rejected both grounds for ordering another 

appeal. 

Held: 

1. This Court has jurisdiction to review the CAAF’s decisions. The 

judicial character and constitutional pedigree of the court-martial

system enable this Court, in exercising appellate jurisdiction, to review the decisions of the court sitting at its apex. 

An amicus curiae, Professor Aditya Bamzai, argues that cases decided by the CAAF do not fall within Article III’s grant of appellate

jurisdiction to this Court. In Marbury v. Madison, 1 Cranch 137, 

Chief Justice Marshall explained that “the essential criterion of appellate jurisdiction” is “that it revises and corrects the proceedings in

a cause already instituted, and does not create that cause.” Id., at 

175. Here, Ortiz’s petition asks the Court to “revise and correct” the

latest decision in a “cause” that began in and progressed through military justice “proceedings.” Unless Chief Justice Marshall’s test implicitly exempts cases instituted in a military court, the case is now

appellate. 

There is no reason to make that distinction. The military justice 

system’s essential character is judicial. Military courts decide cases

in strict accordance with a body of federal law and afford virtually 

the same procedural protections to service members as those given in 

a civilian criminal proceeding. The judgments a military tribunal

renders “rest on the same basis, and are surrounded by the same

considerations[, as] give conclusiveness to the judgments of other legal tribunals.” Ex parte Reed, 100 U. S. 13, 23. Accordingly, such

judgments have res judicata and Double Jeopardy effect. The jurisdiction and structure of the court-martial system likewise resemble 

those of other courts whose decisions this Court reviews. Courtsmartial try service members for garden-variety crimes unrelated to 

military service, and can impose terms of imprisonment and capital

punishment. Their decisions are also subject to an appellate process

similar to the one found in most States. And just as important, the 

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Syllabus 

constitutional foundation of courts-martial is not in the least insecure. See Dynes v. Hoover, 20 How. 65, 79. The court-martial is older 

than the Constitution, was recognized and sanctioned by the Framers, and has been authorized here since the first Congress. Throughout that history, courts-martial have operated as instruments of military justice, not mere military command. They are bound, like any

court, by the fundamental principles of law and the duty to adjudicate cases without partiality.

Bamzai argues that the Court lacks jurisdiction because the CAAF 

is not an Article III court, but is instead in the Executive Branch. 

This Court’s appellate jurisdiction, however, covers more than the decisions of Article III courts. This Court can review proceedings of 

state courts. See Martin v. Hunter’s Lessee, 1 Wheat. 304. It can also 

review certain non-Article III judicial systems created by Congress.

In particular, the Court has upheld its exercise of appellate jurisdiction over decisions of non-Article III territorial courts, see United 

States v. Coe, 155 U. S. 76, and it has uncontroversially exercised appellate jurisdiction over non-Article III District of Columbia courts, 

see Palmore v. United States, 411 U. S. 389. The non-Article III 

court-martial system stands on much the same footing as territorial

and D. C. courts. All three rest on an expansive constitutional delegation, have deep historical roots, and perform an inherently judicial

role. Thus, in Palmore, this Court viewed the military, territories, 

and District as “specialized areas having particularized needs” in

which Article III “give[s] way to accommodate plenary grants of power to Congress.” Id., at 408. 

Bamzai does not provide a sufficient reason to divorce military 

courts from territorial and D. C. courts when it comes to defining this

Court’s appellate jurisdiction. He first relies on the fact that territorial and D. C. courts exercise power over discrete geographic areas,

while military courts do not. But this distinction does not matter to 

the jurisdictional inquiry. His second argument focuses on the fact

that the CAAF is in the Executive Branch. In his view, two of the 

Court’s precedents—Ex parte Vallandigham, 1 Wall. 243, and Marbury, 1 Cranch 137—show that the Court may never accept appellate

jurisdiction from any person or body within that branch. As to Vallandigham, that case goes to show only that not every military tribunal is alike. Unlike the military commission in Vallandigham, which 

lacked “judicial character,” 1 Wall., at 253, the CAAF is a permanent

court of record established by Congress, and its decisions are final 

unless the Court reviews and reverses them. As to Marbury, James 

Madison’s failure to transmit William Marbury’s commission was not

a judicial decision by a court. Here, by contrast, three constitutionally rooted courts rendered inherently judicial decisions. Pp. 5–19. 

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4 ORTIZ v. UNITED STATES 

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2. Judge Mitchell’s simultaneous service on the CCA and the 

CMCR violated neither §973(b)(2)(A) nor the Appointments Clause.

Pp. 19–25. 

(a) The statutory issue turns on two interlocking provisions. Section 973(b)(2)(A) is the statute that Ortiz claims was violated here. It 

prohibits military officers from “hold[ing], or exercis[ing] the functions of,” certain “civil office[s]” in the federal government, “[e]xcept 

as otherwise authorized by law.” Section 950f(b) is the statute that 

the Government claims “otherwise authorize[s]” Judge Mitchell’s 

CMCR service, even if a seat on that court is a covered “civil office.” 

It provides two ways to become a CMCR judge. Under §950f(b)(2),

the Secretary of Defense “may assign” qualified officers serving on a 

CCA to be judges on the CMCR. Under §950f(b)(3), the President 

(with the Senate’s advice and consent) “may appoint” persons—

whether officers or civilians is unspecified—to CMCR judgeships. 

Ortiz argues that Judge Mitchell was not “authorized by law” to

serve on the CMCR after his appointment because §950f(b)(3) makes 

no express reference to military officers. In the circumstances here, 

however, the express authorization to assign military officers to the

CMCR under §950f(b)(2) was the only thing necessary to exempt 

Judge Mitchell from §973(b)(2)(A). Once the Secretary of Defense 

placed Judge Mitchell on the CMCR pursuant to §950f(b)(2), the

President’s later appointment made no difference. It did not negate

the Secretary’s earlier action, but rather ratified what the Secretary 

had already done. Thus, after the appointment, Judge Mitchell 

served on the CMCR by virtue of both the Secretary’s assignment and 

the President’s appointment. And because §950f(b)(2) expressly authorized the Secretary’s assignment, Judge Mitchell’s CMCR service 

could not run afoul of §973(b)(2)(A)’s general rule. Pp. 20–23.

(b) Ortiz also raises an Appointments Clause challenge to Judge 

Mitchell’s simultaneous service on the CCA and the CMCR. That 

Clause distinguishes between principal officers and inferior officers. 

CCA judges are inferior officers. Ortiz views CMCR judges as principal officers. And Ortiz argues that, under the Appointments Clause,

a single judge cannot serve as an inferior officer on one court and a

principal officer on another. But the Court has never read the Appointments Clause to impose rules about dual service, separate and

distinct from methods of appointment. And if the Court were ever to 

apply the Clause to dual-officeholding, it would not start here. Ortiz 

does not show how Judge Mitchell’s CMCR service would result in

“undue influence” on his CCA colleagues. Pp. 23–25. 

76 M. J. 125 and 189, affirmed. 

KAGAN, J., delivered the opinion of the Court, in which ROBERTS, 

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C. J., and KENNEDY, THOMAS, GINSBURG, BREYER, and SOTOMAYOR, JJ., 

joined. THOMAS, J., filed a concurring opinion. ALITO, J., filed a dissenting opinion, in which GORSUCH, J., joined. 

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_________________ 

_________________ 

Cite as: 585 U. S. ____ (2018) 1 

Opinion of the Court 

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order

that corrections may be made before the preliminary print goes to press. 

SUPREME COURT OF THE UNITED STATES 

No. 16–1423 

KEANU D. W. ORTIZ, PETITIONER v. UNITED STATES 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 

APPEALS FOR THE ARMED FORCES
 

[June 22, 2018] 

JUSTICE KAGAN delivered the opinion of the Court. 

This case is about the legality of a military officer serving as a judge on both an Air Force appeals court and the

Court of Military Commission Review (CMCR). The petitioner, an airman convicted of crimes in the military justice system, contends that the judge’s holding of dual 

offices violated a statute regulating military service, as

well as the Constitution’s Appointments Clause. The 

Court of Appeals for the Armed Forces (CAAF) rejected

those claims, and we granted a petition for certiorari. We 

hold first that this Court has jurisdiction to review decisions of the CAAF, even though it is not an Article III 

court. We then affirm the CAAF’s determination that the 

judge’s simultaneous service was lawful. 

I 

In the exercise of its authority over the armed forces, 

Congress has long provided for specialized military courts

to adjudicate charges against service members. Today,

trial-level courts-martial hear cases involving a wide

range of offenses, including crimes unconnected with

military service; as a result, the jurisdiction of those tribunals overlaps substantially with that of state and federal 

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2 ORTIZ v. UNITED STATES 

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courts. See Solorio v. United States, 483 U. S. 435, 436 

(1987); United States v. Kebodeaux, 570 U. S. 387, 404 

(2013) (ALITO, J., concurring in judgment). And courtsmartial are now subject to several tiers of appellate review, thus forming part of an integrated “court-martial

system” that closely resembles civilian structures of justice. United States v. Denedo, 556 U. S. 904, 920 (2009); 

see Weiss v. United States, 510 U. S. 163, 174 (1994). 

That system begins with the court-martial itself, an 

officer-led tribunal convened to determine guilt or innocence and levy appropriate punishment, up to lifetime 

imprisonment or execution. See 10 U. S. C. §§816, 818, 

856a. The next phase of military justice occurs at one of

four appellate courts: the Court of Criminal Appeals (CCA)

for the Army, Navy-Marine Corps, Air Force, or Coast

Guard. Those courts, using three-judge panels of either 

officers or civilians, review all decisions in which the 

sentence imposed involves a punitive discharge, incarceration for more than one year, or death. See §§866(a)–(c). 

Atop the court-martial system is the CAAF, a “court of 

record” made up of five civilian judges appointed to serve

15-year terms. §941; see §§942(a)–(b). The CAAF must 

review certain weighty cases (including those in which 

capital punishment was imposed), and may grant petitions

for review in any others. See §867. Finally, this Court 

possesses statutory authority to step in afterward: Under 

28 U. S. C. §1259, we have jurisdiction to review the 

CAAF’s decisions by writ of certiorari. 

Petitioner Keanu Ortiz’s case has run the gamut of this

legal system. Ortiz, an Airman First Class in the Air 

Force, was charged with knowingly possessing and distributing child pornography, in violation of the Uniform 

Code of Military Justice. A court-martial found Ortiz 

guilty as charged and imposed a sentence of two years’ 

imprisonment and a dishonorable discharge. On appeal, 

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Opinion of the Court 

ell, summarily affirmed the court-martial’s decision. The 

CAAF then granted Ortiz’s petition for review to consider 

whether Judge Mitchell was disqualified from serving on

the CCA, thus entitling Ortiz to an appellate do-over. 

That issue arose from Judge Mitchell’s simultaneous

service on the CMCR. Congress created the CMCR as an 

appellate tribunal to review the decisions of military

commissions, particularly those operating in Guantanamo 

Bay.1 The Secretary of Defense put Judge Mitchell on that

court shortly after he became a member of the CCA, under

a statutory provision authorizing the Secretary to “assign

[officers] who are appellate military judges” to serve on

the CMCR as well. 10 U. S. C. §950f(b)(2). Around the 

same time, a military-commission defendant argued to the 

Court of Appeals for the D. C. Circuit that the Appointments Clause requires the President and Senate (rather 

than the Secretary) to place judges on the CMCR. The 

D. C. Circuit avoided resolving that issue, but suggested 

that the President and Senate could “put [it] to rest” by

appointing the very CMCR judges whom the Secretary

had previously assigned. In re al-Nashiri, 791 F. 3d 71, 86 

(2015). The President decided to take that advice, and 

nominated each of those judges—Mitchell, among them—

under an adjacent statutory provision authorizing him to

“appoint, by and with the advice and consent of the Senate,” CMCR judges. §950f(b)(3). The Senate then confirmed those nominations. About a month later, Judge

Mitchell—now wearing his CCA robe—participated in the 

panel decision rejecting Ortiz’s appeal. 

In Ortiz’s view, Judge Mitchell’s appointment to the 

CMCR barred his continued service on the CCA under 

—————— 

1 In contrast to courts-martial, military commissions have historically

been used to substitute for civilian courts in times of martial law or 

temporary military government, as well as to try members of enemy 

forces for violations of the laws of war. See Hamdan v. Rumsfeld, 548 

U. S. 557, 595–597 (2006) (plurality opinion). 

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both a statute and the Constitution. First, Ortiz invoked 

10 U. S. C. §973(b). That statute, designed to ensure

civilian preeminence in government, provides that unless

“otherwise authorized by law,” an active-duty military 

officer like Judge Mitchell “may not hold, or exercise the 

functions of,” certain “civil office[s]” in the Federal Government. §973(b)(2)(A). According to Ortiz, a CMCR 

judgeship is a covered civil office, and no other law allowed 

the President to put Mitchell in that position: Thus, his 

appointment to the CMCR violated §973(b). See Brief in 

Support of Petition Granted in No. 16–0671 (CAAF), 

pp. 17–22. And the proper remedy, Ortiz argued, was to 

terminate Judge Mitchell’s military service effective the 

date of his CMCR appointment and void all his later actions as a CCA judge—including his decision on Ortiz’s 

appeal. See ibid. Second and independently, Ortiz relied 

on the Appointments Clause to challenge Judge Mitchell’s 

dual service. See id., at 27–40. The premise of his argument was that CMCR judges are “principal officers” under 

that Clause, whereas CCA judges (as this Court has held)

are “inferior officers.” Edmond v. United States, 520 U. S. 

651, 666 (1997). Ortiz claimed that the Appointments

Clause prohibits someone serving as a principal officer on 

one court (the CMCR) from sitting alongside inferior

officers on another court (the CCA). Because Judge Mitchell had done just that, Ortiz concluded, the CCA’s ruling on

his appeal could not stand.

The CAAF rejected both grounds for ordering another

appeal. See 76 M. J. 189 (2017). In considering the statutory question, the court chose not to decide whether

§973(b) precluded Judge Mitchell from serving on the

CMCR while an active-duty officer. Even if so, the CAAF 

held, the remedy for the violation would not involve terminating the judge’s military service or voiding actions he 

took on the CCA. See id., at 192. Turning next to the

constitutional issue, the CAAF “s[aw] no Appointments 

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Clause problem.” Id., at 193. Even assuming Judge 

Mitchell was a principal officer when sitting on the CMCR,

the court held, that status in no way affected his service 

on the CCA: “When Colonel Mitchell sits as a CCA 

judge, he is no different from any other CCA judge.” Ibid. 

The CAAF thus upheld the CCA’s affirmance of Ortiz’s

convictions. 

This Court granted Ortiz’s petition for certiorari to

consider whether either §973(b) or the Appointments

Clause prevents a military officer from serving, as Judge

Mitchell did, on both a CCA and the CMCR. 582 U. S. ___ 

(2017). We now affirm the decision below.2 

II 

We begin with a question of our own jurisdiction to

review the CAAF’s decisions. Congress has explicitly

authorized us to undertake such review in 28 U. S. C. 

§1259. See ibid. (“Decisions of the [CAAF] may be reviewed by the Supreme Court by writ of certiorari”). Both 

the Federal Government and Ortiz view that grant of 

jurisdiction as constitutionally proper. But an amicus 

curiae, Professor Aditya Bamzai, argues that it goes beyond what Article III allows. That position is a new one to

this Court: We have previously reviewed nine CAAF decisions without anyone objecting that we lacked the power

to do so.3 Still, we think the argument is serious, and 

—————— 

2At the same time we issued a writ of certiorari in this case, we 

granted and consolidated petitions in two related cases—Dalmazzi v. 

United States, No. 16–961, and Cox v. United States, No. 16–1017. 

Those cases raise issues of statutory jurisdiction that our disposition 

today makes it unnecessary to resolve. We accordingly dismiss 

Dalmazzi, post, p. ___, and Cox, post, p. ___, as improvidently granted

in opinions accompanying this decision. 3See United States v. Denedo, 556 U. S. 904 (2009); Clinton v. Goldsmith, 526 U. S. 529 (1999); United States v. Scheffer, 523 U. S. 303 

(1998); Edmond v. United States, 520 U. S. 651 (1997); Loving v. United 

States, 517 U. S. 748 (1996); Ryder v. United States, 515 U. S. 177 

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6 ORTIZ v. UNITED STATES 

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deserving of sustained consideration. That analysis leads

us to conclude that the judicial character and constitutional pedigree of the court-martial system enable this

Court, in exercising appellate jurisdiction, to review the 

decisions of the court sitting at its apex. 

Bamzai starts with a proposition no one can contest—

that our review of CAAF decisions cannot rest on our 

original jurisdiction. Brief for Aditya Bamzai as Amicus 

Curiae 11. Article III of the Constitution grants this 

Court original jurisdiction in a limited category of cases:

those “affecting Ambassadors, other public Ministers and 

Consuls, and those in which a State shall be Party.” §2, 

cl. 2. That list, of course, does not embrace Ortiz’s case, or 

any other that the CAAF considers. And ever since Marbury v. Madison, 1 Cranch 137 (1803), this Court has

recognized that our original jurisdiction cannot extend any 

further than the cases enumerated: If Congress attempts 

to confer more on us, we must (as Chief Justice Marshall 

famously did, in the pioneer act of judicial review) strike

down the law. Id., at 174–180. As a result, Bamzai is 

right to insist that §1259 could not authorize this Court,

as part of its original jurisdiction, to hear military cases

like Ortiz’s. 

The real issue is whether our appellate jurisdiction can 

cover such cases. Article III’s sole reference to appellate

jurisdiction provides no apparent barrier, but also no 

substantial guidance: Following its specification of this 

Court’s original jurisdiction, Article III says only that in 

all “other Cases” that the Constitution comprehends (including cases, like this one, involving federal questions),

“the supreme Court shall have appellate Jurisdiction, both

as to Law and Fact.” §2, cl. 2. The Constitution’s failure 

—————— 

(1995); Davis v. United States, 512 U. S. 452 (1994); Weiss v. United 

States, 510 U. S. 163 (1994); Solorio v. United States, 483 U. S. 435 

(1987). 

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to say anything more about appellate jurisdiction leads

Bamzai to focus on Chief Justice Marshall’s opinion in 

Marbury. See Brief for Bamzai 2–4, 12–14. In that case 

(as you surely recall), William Marbury petitioned this

Court—without first asking any other—to issue a writ of 

mandamus to Secretary of State James Madison directing

him to deliver a commission. After holding (as just related) 

that the Court’s original jurisdiction did not extend so far, 

Chief Justice Marshall also rejected the idea that the

Court could provide the writ in the exercise of its appellate 

jurisdiction. “[T]he essential criterion of appellate jurisdiction,” the Chief Justice explained, is “that it revises and

corrects the proceedings in a cause already instituted, and 

does not create that cause.” 1 Cranch, at 175. Marbury’s

petition, Chief Justice Marshall held, commenced the 

cause—or, to use the more modern word, the case; hence, 

it was not a matter for appellate jurisdiction. Bamzai 

contends that the same is true of Ortiz’s petition. 

On any ordinary understanding of the great Chief Justice’s words, that is a surprising claim. Ortiz’s petition 

asks us to “revise and correct” the latest decision in a 

“cause” that began in and progressed through military 

justice “proceedings.” Ibid. Or, as the Government puts

the point, this case fits within Chief Justice Marshall’s 

standard because “it comes to th[is] Court on review of the

Court of Appeals for the Armed Forces’ decision, which 

reviewed a criminal proceeding that originated in [a] 

court[]-martial.” Tr. of Oral Arg. 47–48. So this Court 

would hardly be the first to render a decision in the case. 

Unless Chief Justice Marshall’s test implicitly exempts 

cases instituted in a military court—as contrasted, for 

example, with an ordinary federal court—the case is now 

appellate.4 

—————— 

4 The dissent asserts that, in setting out that test, we have “basically

proceed[ed] as though Marbury were our last word on the subject” and 

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8 ORTIZ v. UNITED STATES 

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The military justice system’s essential character—in a 

word, judicial—provides no reason to make that distinction. Accord post, at 6–8 (THOMAS, J., concurring). Each 

level of military court decides criminal “cases” as that 

term is generally understood, and does so in strict accordance with a body of federal law (of course including the 

Constitution). The procedural protections afforded to a

service member are “virtually the same” as those given in 

a civilian criminal proceeding, whether state or federal. 1 

D. Schlueter, Military Criminal Justice: Practice and

Procedure §1–7, p. 50 (9th ed. 2015) (Schlueter). And the 

judgments a military tribunal renders, as this Court long 

ago observed, “rest on the same basis, and are surrounded 

by the same considerations[, as] give conclusiveness to the 

judgments of other legal tribunals.” Ex parte Reed, 100 

U. S. 13, 23 (1879). Accordingly, we have held that the

“valid, final judgments of military courts, like those of any 

court of competent jurisdiction[,] have res judicata effect

and preclude further litigation of the merits.” Schlesinger 

v. Councilman, 420 U. S. 738, 746 (1975). In particular,

those judgments have identical effect under the Double

Jeopardy Clause. See Grafton v. United States, 206 U. S. 

—————— 

overlooked “two centuries of precedent.” Post, at 8 (opinion of ALITO, 

J.). But the cases the dissent faults us for failing to cite stand for the

same principle that we—and more important, Marbury—already set 

out. They too say that our appellate jurisdiction permits us to review

only prior judicial decisions, rendered by courts. See, e.g., Ex parte 

Yerger, 8 Wall. 85, 97 (1869) (Our “appellate jurisdiction” may “be 

exercised only in the revision of judicial decisions”); The Alicia, 7 Wall. 

571, 573 (1869) (“[A]n appellate jurisdiction necessarily implies some

judicial determination . . . of an inferior tribunal, from which an appeal

has been taken”); Cohens v. Virginia, 6 Wheat. 264, 396 (1821) (In

exercising appellate jurisdiction, we act as a “supervising Court, whose 

peculiar province it is to correct the errors of an inferior Court”); Ex 

parte Bollman, 4 Cranch 75, 101 (1807) (We exercise “appellate jurisdiction” in “revisi[ng] a decision of an inferior court”); post, at 4–6, 10, 

12. Marbury, then, remains the key precedent. 

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333, 345 (1907).

The jurisdiction and structure of the court-martial 

system likewise resemble those of other courts whose 

decisions we review. Although their jurisdiction has

waxed and waned over time, courts-martial today can try

service members for a vast swath of offenses, including 

garden-variety crimes unrelated to military service. See 

10 U. S. C. §§877–934; Solorio, 483 U. S., at 438–441; 

supra, at 1–2. As a result, the jurisdiction of those tribunals overlaps significantly with the criminal jurisdiction of 

federal and state courts. See Kebodeaux, 570 U. S., at 404 

(ALITO, J., concurring in judgment). The sentences meted 

out are also similar: Courts-martial can impose, on top of

peculiarly military discipline, terms of imprisonment and

capital punishment. See §818(a); post, at 6 (THOMAS, J., 

concurring) (“[T]hese courts decide questions of the most

momentous description, affecting even life itself” (quotation marks and ellipses omitted)). And the decisions of 

those tribunals are subject to an appellate process—what 

we have called an “integrated system of military courts

and review procedures”—that replicates the judicial apparatus found in most States. Councilman, 420 U. S., at 

758. By the time a case like Ortiz’s arrives on our doorstep under 28 U. S. C. §1259, it has passed through not 

one or two but three military courts (including two that 

can have civilian judges).

And just as important, the constitutional foundation of

courts-martial—as judicial bodies responsible for “the trial

and punishment” of service members—is not in the least

insecure. Dynes v. Hoover, 20 How. 65, 79 (1858). The 

court-martial is in fact “older than the Constitution,” 1 

Schlueter §1–6(B), at 39; the Federalist Papers discuss

“trials by courts-martial” under the Articles of Confederation, see No. 40, p. 250 (C. Rossiter ed. 1961). When it 

came time to draft a new charter, the Framers “recogni[zed] and sanction[ed] existing military jurisdiction,” W. 

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10 ORTIZ v. UNITED STATES 

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Winthrop, Military Law and Precedents 48 (2d ed. 1920) 

(emphasis deleted), by exempting from the Fifth Amendment’s Grand Jury Clause all “cases arising in the land or 

naval forces.” And by granting legislative power “[t]o 

make Rules for the Government and Regulation of the

land and naval Forces,” the Framers also authorized 

Congress to carry forward courts-martial. Art. I, §8, cl. 14. 

Congress did not need to be told twice. The very first

Congress continued the court-martial system as it then 

operated. See Winthrop, supra, at 47. And from that day 

to this one, Congress has maintained courts-martial in all 

their essentials to resolve criminal charges against service

members. See 1 Schlueter §1–6, at 35–48. 

Throughout that history, and reflecting the attributes

described above, courts-martial have operated as instruments of military justice, not (as the dissent would have it)

mere “military command,” post, at 18 (opinion of ALITO, 

J.). As one scholar has noted, courts-martial “have long

been understood to exercise ‘judicial’ power,” of the same

kind wielded by civilian courts. Nelson, Adjudication in

the Political Branches, 107 Colum. L. Rev. 559, 576 (2007); 

see W. De Hart, Observations on Military Law 14 (1859) 

(Military courts are “imbued or endowed with the like

essence of judicial power” as “ordinary courts of civil judicature”); accord post, at 6–8 (THOMAS, J., concurring).

Attorney General Bates, even in the middle of the Civil 

War, characterized a court-martial “proceeding, from its

inception, [a]s judicial,” because the “trial, finding, and 

sentence are the solemn acts of a court organized and

conducted under the authority of and according to the

prescribed forms of law.” Runkle v. United States, 122 

U. S. 543, 558 (1887) (quoting 11 Op. Atty. Gen. 19, 21

(1864)). Colonel Winthrop—whom we have called the 

“Blackstone of Military Law,” Reid v. Covert, 354 U. S. 1, 

19, n. 38 (1957) (plurality opinion)—agreed with Bates.

He regarded a court-martial as “in the strictest sense” a 

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“court of law and justice”—“bound, like any court, by the

fundamental principles of law” and the duty to adjudicate

cases “without partiality, favor, or affection.” Winthrop, 

supra, at 54.5 

Despite all this, Bamzai claims that “Marbury bars 

th[is] Court from deciding” any cases coming to us from

the court-martial system. Brief for Bamzai 3. He begins,

much as we did above, by explaining that under Marbury

the Court can exercise appellate jurisdiction only when it

is “supervising an earlier decision by a lower court.” Brief 

for Bamzai 13. The next step is where the argument gets 

interesting. The CAAF, Bamzai contends, simply does not

qualify as such a body (nor does any other military tribunal). True enough, “the CAAF is called a ‘court’”; and true

enough, it decides cases, just as other courts do. Id., at 3; 

see id., at 28. But the CAAF, Bamzai notes, is “not an 

Article III court,” id., at 3 (emphasis added): As all agree, 

—————— 

5 The independent adjudicative nature of courts-martial is not inconsistent with their disciplinary function, as the dissent claims, see post, 

at 18–26. By adjudicating criminal charges against service members,

courts-martial of course help to keep troops in line. But the way they

do so—in comparison to, say, a commander in the field—is fundamentally judicial. Accord post, at 9 (THOMAS, J., concurring) (“While the

CAAF is in the Executive Branch and its purpose is to help the President maintain troop discipline, those facts do not change the nature of 

the power that it exercises”). Colonel Winthrop stated as much: Even 

while courts-martial “enforc[e] discipline” in the armed forces, they

remain “as fully a court of law and justice as is any civil tribunal.” W. 

Winthrop, Military Law and Precedents 49, 54 (2d ed. 1920). And he 

was right. When a military judge convicts a service member and 

imposes punishment—up to execution—he is not meting out extrajudicial discipline. He is acting as a judge, in strict compliance with

legal rules and principles—rather than as an “arm of military command.” Post, at 18. It is in fact one of the glories of this country that 

the military justice system is so deeply rooted in the rule of law. In 

asserting the opposite—that military courts are not “judicial” in “character”—the dissent cannot help but do what it says it would like to 

avoid: “denigrat[e the court-martial] system.” Post, at 27; see post, 

at 25. 

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12 ORTIZ v. UNITED STATES 

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its members lack the tenure and salary protections that

are the hallmarks of the Article III judiciary, see 10

U. S. C. §§942(b), (c). Congress established the CAAF 

under its Article I, rather than its Article III, powers, and 

Congress located the CAAF (as we have previously observed) within the Executive Branch, rather than the 

judicial one. See §941; Edmond, 520 U. S., at 664, and n. 

2. Those facts, in Bamzai’s view, prevent this Court from 

exercising appellate jurisdiction over the CAAF. “For 

constitutional purposes,” Bamzai concludes, the members 

of the CAAF “stand on equal footing with James Madison

in Marbury.” Brief for Bamzai 4. (With variations here

and there, the dissent makes the same basic argument.) 

But this Court’s appellate jurisdiction, as Justice Story

made clear ages ago, covers more than the decisions of 

Article III courts. In Martin v. Hunter’s Lessee, 1 Wheat. 

304 (1816), we considered whether our appellate jurisdiction extends to the proceedings of state courts, in addition

to those of the Article III federal judiciary. We said yes, as 

long as the case involves subject matter suitable for our

review. Id., at 338–352. For our “appellate power,” Story 

wrote, “is not limited by the terms of [Article III] to any 

particular courts.” Id., at 338. Or again: “[I]t will be in

vain to search in the letter of the [C]onstitution for any

qualification as to the tribunal” from which a given case 

comes. Ibid. The decisions we review might come from 

Article III courts, but they need not. 

The same lesson emerges from two contexts yet more

closely resembling this one—each involving a non-Article 

III judicial system created by Congress. First, in United 

States v. Coe, 155 U. S. 76 (1894), this Court upheld the

exercise of appellate jurisdiction over decisions of federal

territorial courts, despite their lack of Article III status. 

We observed there that the Constitution grants Congress

broad authority over the territories: to “make all needful 

Rules and Regulations respecting” those areas. Art. IV, 

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§3, cl. 2; see Coe, 155 U. S., at 85. And we recognized that 

Congress, with this Court’s permission, had long used that 

power to create territorial courts that did not comply with

Article III. See ibid. Chief Justice Marshall had held 

such a court constitutional in 1828 even though its authority was “not a part of that judicial power which is defined 

in the 3d article.” American Ins. Co. v. 356 Bales of Cotton, 1 Pet. 511, 546 (1828); see Coe, 155 U. S., at 85 (describing that opinion as having “settled” that Article III 

“does not exhaust the power of Congress to establish

courts”). The exception to Article III for territorial courts 

was thus an established and prominent part of the legal 

landscape by the time Coe addressed this Court’s role in 

reviewing their decisions. And so the Court found the 

issue simple. “There has never been any question,” we 

declared, “that the judicial action of [territorial courts]

may, in accordance with the Constitution, be subjected to

[our] appellate jurisdiction.” Id., at 86. 

Second, we have routinely, and uncontroversially, exercised appellate jurisdiction over cases adjudicated in the

non-Article III District of Columbia courts.6 Here too, the 

Constitution grants Congress an unqualified power: to

legislate for the District “in all Cases whatsoever.” Art. I, 

§8, cl. 17. Under that provision, we long ago determined,

“Congress has the entire control over the [D]istrict for

every purpose of government,” including that of “organizing a judicial department.” Kendall v. United States ex rel. 

Stokes, 12 Pet. 524, 619 (1838). So when Congress in-

—————— 

6See, e.g., Artis v. District of Columbia, 583 U. S. ___ (2018); Turner 

v. United States, 582 U. S. ___ (2017); United States v. Dixon, 509 U. S. 

688 (1993); Jones v. United States, 463 U. S. 354 (1983); Tuten v. 

United States, 460 U. S. 660 (1983); Whalen v. United States, 445 U. S. 

684 (1980); United States v. Crews, 445 U. S. 463 (1980); Pernell v. 

Southall Realty, 416 U. S. 363 (1974); Palmore v. United States, 411 

U. S. 389 (1973). In none of these or similar cases has anyone ever

challenged our appellate jurisdiction. 

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14 ORTIZ v. UNITED STATES 

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voked that authority to create a set of local courts, this 

Court upheld the legislation—even though the judges on 

those courts lacked Article III protections. See Palmore v. 

United States, 411 U. S. 389, 407–410 (1973). We relied 

on the Constitution’s “plenary grant[] of power to Congress to legislate with respect to” the national capital. Id., 

at 408. And several years later, we referred as well to the 

“historical consensus” supporting congressional latitude

over the District’s judiciary. Northern Pipeline Constr. Co. 

v. Marathon Pipe Line Co., 458 U. S. 50, 70 (1982) (plurality opinion); see id., at 65, n. 16. To be sure, we have 

never explicitly held, as we did in the territorial context,

that those same considerations support our appellate

jurisdiction over cases resolved in the D. C. courts. But 

some things go unsaid because they are self-evident. And 

indeed, even Bamzai readily acknowledges that this Court 

can review decisions of the D. C. Court of Appeals. See 

Brief for Bamzai 23, 25. 

The non-Article III court-martial system stands on

much the same footing as territorial and D. C. courts, as

we have often noted. The former, just like the latter, rests

on an expansive constitutional delegation: As this Court

early held, Article I gives Congress the power—“entirely

independent” of Article III—“to provide for the trial and 

punishment of military and naval offences in the manner 

then and now practiced by civilized nations.” Dynes, 20 

How., at 79; see supra, at 9. The former has, if anything, 

deeper historical roots, stretching from before this nation’s 

beginnings up to the present. See supra, at 9. And the 

former, no less than the others, performs an inherently 

judicial role, as to substantially similar cases. See supra,

at 8–11. So it is not surprising that we have lumped the

three together. In Palmore, the Court viewed the military,

territories, and District as a triad of “specialized areas 

having particularized needs” in which Article III “give[s] 

way to accommodate plenary grants of power to Congress.” 

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411 U. S., at 408. And in Northern Pipeline, the plurality 

said of all three that “a constitutional grant of power [as] 

historically understood” has bestowed “exceptional powers” on Congress to create courts outside Article III. 458 

U. S., at 66, 70.7 Given those well-understood connections, 

we would need a powerful reason to divorce military 

courts from territorial and D. C. courts when it comes to 

defining our appellate jurisdiction.

And Bamzai fails to deliver one. His initial attempt 

relies on a simple fact about territorial and D. C. courts: 

They exercise power over “discrete geographic areas.” 

Brief for Bamzai 23. Military courts do not; they instead

exercise power over discrete individuals—i.e., members of 

the armed forces. So Bamzai gives us a distinction: places

vs. people. What he does not offer is a good reason why 

that distinction should matter in our jurisdictional inquiry—why it is one of substance, rather than conven-

—————— 

7 In addition, several Justices in separate opinions have made the

same linkage. See, e.g., Wellness Int’l Network, Ltd. v. Sharif, 575 U. S. 

___, ___ (2015) (ROBERTS, C. J., dissenting) (slip op., at 3) (noting that 

“narrow exceptions permit Congress to establish non-Article III courts 

to exercise general jurisdiction in the territories and the District of 

Columbia [and] to serve as military tribunals”); id., at ___–___ 

(THOMAS, J., dissenting) (slip op., at 7–8) (referring to territorial courts 

and courts-martial as “unique historical exceptions” to Article III); 

Stern v. Marshall, 564 U. S. 462, 504–505 (2011) (Scalia, J., concurring)

(noting the “firmly established historical practice” of exempting territorial courts and courts-martial from Article III’s demands). 

The dissent must dismiss all this authority, from Justices both

functionalist and formalist, to aver that “it is only when Congress 

legislates for the Territories and the District that it may lawfully vest

judicial power in tribunals that do not conform to Article III.” Post, at 

16; see post, at 14–16. Not so, we have made clear, because (once

again) of an exceptional grant of power to Congress, an entrenched

historical practice, and (for some more functionalist judges) particularized needs. The result is “that Congress has the power [apart from

Article III] to provide for the adjudication of disputes among the Armed

Forces,” just as in the territories and the District. Wellness, 575 U. S., 

at ___ (THOMAS, J., dissenting) (slip op., at 8). 

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16 ORTIZ v. UNITED STATES 

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ience. He mentions that the territorial and D. C. courts 

are “functional equivalents of state courts.” Id., at 24; see 

Tr. of Oral Arg. 33, 35. But for starters, that could be said 

of courts-martial too. As we have described, they try all 

the “ordinary criminal offenses” (murder, assault, robbery,

drug crimes, etc., etc., etc.) that state courts do. Kebodeaux, 570 U. S., at 404 (ALITO, J., concurring in judgment); see supra, at 1–2, 9. And more fundamentally, we 

do not see why geographical state-likeness, rather than 

historical court-likeness, should dispose of the issue. As 

we have shown, the petition here asks us to “revise[] and

correct[] the proceedings in a cause already instituted” in

a judicial system recognized since the founding as competent to render the most serious decisions. Marbury, 1 

Cranch, at 175; see supra, at 8–11. That should make the 

case an appeal, whether or not the domain that system

covers is precisely analogous to, say, Alabama. 

So Bamzai tries another route to cleave off military 

courts, this time focusing on their location in the Executive Branch. See Brief for Bamzai 26–30. Bamzai actually

never says in what branch (if any) he thinks territorial

and D. C. courts reside. But he knows—because this 

Court has said—that the CAAF is an “Executive Branch 

entity.” Edmond, 520 U. S., at 664, and n. 2; see supra, at 

12. And in Bamzai’s view, two of our precedents show that

we may never accept appellate jurisdiction from any person or body within that branch. See Brief for Bamzai 2–4. 

The first case he cites is Ex parte Vallandigham, 1 Wall. 

243 (1864), in which the Court held that it lacked jurisdiction over decisions of a temporary Civil War-era military 

commission. See id., at 251–252. The second is Marbury

itself, in which the Court held (as if this needed repeating) 

that it lacked jurisdiction to review James Madison’s 

refusal to deliver a commission appointing William Marbury a justice of the peace. See 1 Cranch, at 175–176; 

supra, at 7. 

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As to the first, Vallandigham goes to show only that not 

every military tribunal is alike. The commission the 

Court considered there was established by General Ambrose Burnside (he of the notorious facial hair) for a timelimited, specialized purpose—to try persons within the

military Department of Ohio (Burnside’s then-command) 

for aiding the Confederacy. See 1 Wall., at 243–244. And 

the General kept firm control of the commission (made up

entirely of his own field officers): After personally ordering 

Vallandigham’s arrest, he (and he alone) also reviewed the

commission’s findings and sentence. See id., at 247–248; 

J. McPherson, Battle Cry of Freedom 596–597 (1988).

This Court therefore found that the commission lacked 

“judicial character.” 1 Wall., at 253. It was more an adjunct to a general than a real court—and so we did not 

have appellate jurisdiction over its decisions.8 But the 

—————— 

8 The dissent offers a different—and doubly misleading—explanation 

for Vallandigham. First, it says that we found jurisdiction lacking

because the commission was “was not one of the ‘courts of the United 

States’ established under Article III.” Post, at 11 (quoting Vallandigham, 1 Wall., at 251). But the dissent is reading from the wrong 

part of the opinion. Vallandigham contained two holdings—first (and 

relevant here), that Article III precluded the Court from exercising

appellate jurisdiction over the commission’s decisions, and second (and

irrelevant here), that the Judiciary Act of 1789 had not authorized such

jurisdiction. The language the dissent quotes relates only to the 

irrelevant statutory holding: The Judiciary Act, the Court explained,

confined our jurisdiction to decisions of Article III courts, and the 

commission did not fit under that rubric. By contrast, the language we

quote in the text formed the basis of the Court’s constitutional holding—which is all that matters here. Second, the dissent contends that 

Vallandigham “recognized that the military tribunal had ‘judicial

character,’” even as it found jurisdiction lacking. Post, at 11. Not so. 

Vallandigham expressly rejected the argument that the commission 

had “judicial character.” 1 Wall., at 253. Though the Court understood

that the commission pronounced guilt and imposed sentences, it did not

think the commission was acting as a court in rendering its decisions.

See ibid. (citing United States v. Ferreira, 13 How. 40, 46–47 (1852), in 

which the Court held that a claims tribunal was without judicial 

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18 ORTIZ v. UNITED STATES 

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very thing that Burnside’s commission lacked, the courtmartial system—and, in particular, the CAAF (whose 

decision Ortiz asks us to review)—possesses in spades. 

Once again, the CAAF is a permanent “court of record”

created by Congress; it stands at the acme of a firmly

entrenched judicial system that exercises broad jurisdiction in accordance with established rules and procedures; 

and its own decisions are final (except if we review and 

reverse them). See supra, at 1–2, 8–11.9 That is “judicial

character” more than sufficient to separate the CAAF from

Burnside’s commission, and align it instead with territorial

and D. C. (and also state and federal) courts of appeals. 

And the differences between the CAAF’s decisions and 

James Madison’s delivery refusal should have already 

leaped off the page. To state the obvious: James Madison 

was not a court, either in name or in function. He was the 

Secretary of State—the head of a cabinet department 

(and, by the way, the right arm of the President). Likewise, Madison’s failure to transmit Marbury’s commission

was not a judicial decision; it was an enforcement action

(though in the form of non-action), pertaining only to the 

—————— 

“character” and labeled its decisions the “award[s] of a commissioner,” 

“not the judgment[s] of a court of justice”). 9 The dissent contends that the CAAF’s decisions are not always final

because the President, relevant branch secretary, or one of his subordinates must approve a sentence of death or dismissal from the armed

forces before it goes into effect. See post, at 28–29. But as the Government has explained, the President’s (or other executive official’s)

authority at that stage extends only to punishment: It is “akin to relief 

by commutation in the federal or state system.” Tr. of Oral Arg. 57; see 

Loving v. United States, 62 M. J. 235, 247 (CAAF 2005) (likening the 

approval authority to “executive clemency powers”). The President, 

even when “mitigat[ing a] sentence[,]” cannot “upset[ ] the conviction” 

or “the judgment of the CAAF.” Tr. of Oral Arg. 55–56. Rather, as we 

said above, the CAAF’s judgment is final when issued (except if we

reverse it). See 10 U. S. C. §871(c)(1) (stating that even when a sentence is subject to an executive official’s approval, the “judgment” is

“final” when judicial review is concluded). 

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execution of law. As Chief Justice Marshall saw, Secretary Madison merely triggered the case of Marbury v. 

Madison; he did not hear and resolve it, as a judicial body

would have done. See 1 Cranch, at 175. The Chief Justice’s opinion thus cleanly divides that case from this one, 

even if both (as Bamzai notes) formally involve executive 

officers. Here, three constitutionally rooted courts, ending 

with the CAAF, rendered inherently judicial decisions—

just as such tribunals have done since our nation’s founding. In reviewing, “revis[ing,] and correct[ing]” those 

proceedings, as Ortiz asks, we do nothing more or different

than in generally exercising our appellate jurisdiction. 

Ibid. 

But finally, in holding that much, we say nothing about 

whether we could exercise appellate jurisdiction over cases 

from other adjudicative bodies in the Executive Branch, 

including those in administrative agencies. Our resolution 

of the jurisdictional issue here has rested on the judicial 

character, as well as the constitutional foundations and 

history, of the court-martial system. We have relied, too, 

on the connections that our cases have long drawn between that judicial system and those of the territories and

the District. If Congress were to grant us appellate jurisdiction over decisions of newer entities advancing an

administrative (rather than judicial) mission, the question

would be different—and the answer not found in this 

opinion. 

III 

We may now turn to the issues we took this case to

decide. Recall that Ortiz seeks a new appeal proceeding 

before the Air Force CCA, based on Judge Mitchell’s participation in his last one. See supra, at 2–4. Ortiz’s challenge turns on Judge Mitchell’s simultaneous service on 

another court, the CMCR. Originally, the Secretary of

Defense had assigned Judge Mitchell to sit on that court. 

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20 ORTIZ v. UNITED STATES 

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Then, to moot a possible constitutional problem with

Judge Mitchell’s CMCR service, the President (with the 

Senate’s advice and consent) appointed Judge Mitchell as

well. A short time later, Judge Mitchell ruled on Ortiz’s

CCA appeal. Ortiz contends that doing so violated both a

federal statute and the Appointments Clause. We disagree on both counts. 

A 

The statutory issue respecting Judge Mitchell’s dual

service turns on two interlocking provisions. The first is 

§973(b)(2)(A)—the statute Ortiz claims was violated here. 

As noted earlier, that law—in the interest of ensuring

civilian preeminence in government—prohibits active-duty 

military officers like Judge Mitchell from “hold[ing], or

exercis[ing] the functions of,” certain “civil office[s]” in the

Federal Government, “[e]xcept as otherwise authorized by

law.” See supra, at 4. The second is §950f(b)—a statute 

the Government claims “otherwise authorize[s]” Judge

Mitchell’s service on the CMCR, even if a seat on that 

court is a covered “civil office.” As also noted above, 

§950f(b) provides two ways to become a CMCR judge. See 

supra, at 3. Under §950f(b)(2), the Secretary of Defense 

“may assign” qualified officers serving on a CCA to “be 

judges on the [CMCR]” as well. And under §950f(b)(3), the

President (with the Senate’s advice and consent) “may 

appoint” persons—whether officers or civilians is unspecified—to CMCR judgeships.

Against that statutory backdrop, Ortiz claims that

Judge Mitchell became disqualified from serving on the

CCA the moment his presidential appointment to the 

CMCR became final. See Brief for Petitioners 39–42. 

Notably, Ortiz has no statutory objection to Judge Mitchell’s simultaneous service on those courts before that 

date—when he sat on the CMCR solely by virtue of the 

Secretary of Defense’s assignment. See id., at 40. Nor 

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could he reasonably lodge such a complaint, for 

§950f(b)(2), in no uncertain terms, “otherwise authorize[s]”

the Secretary to place a military judge on the CMCR—

thus exempting such an officer from §973(b)(2)(A)’s prohibition. But in Ortiz’s view, the provision in §950f(b)(3) for 

presidential appointments contains no similar authorization, because it makes no “express[] or unambiguous[]” 

reference to military officers. Id., at 20. And so, Ortiz 

concludes, §973(b)(2)(A)’s general rule must govern.

In the circumstances here, however, the authorization in 

§950f(b)(2) was the only thing necessary to exempt Judge 

Mitchell from the civil office-holding ban—not just before

but also after his presidential appointment. That provision, as just noted, unambiguously permitted the Secretary of Defense to place Judge Mitchell on the CMCR, 

even if such a judgeship is a “civil office.” See supra, at 20. 

And once that happened, the President’s later appointment of Judge Mitchell made not a whit of difference. 

Nothing in §950f (or any other law) suggests that the 

President’s appointment erased or otherwise negated the

Secretary’s earlier action. To the contrary, that appointment (made for purposes of protecting against a constitutional challenge, see supra, at 3) merely ratified what the 

Secretary had already done. The nomination papers that

the President submitted to the Senate reflect that fact. 

They sought confirmation of Judge Mitchell’s appointment 

as a CMCR judge “[i]n accordance with [his] continued 

status as [a CMCR] judge pursuant to [his] assignment by 

the Secretary of Defense[,] under 10 U. S. C. Section

950f(b)(2).” 162 Cong. Rec. S1474 (Mar. 14, 2016). So 

after the Senate approved the nomination, Judge Mitchell 

served on the CMCR by virtue of both the Secretary’s

assignment and the President’s appointment. And because §950f(b)(2) expressly authorized the Secretary’s

assignment, Judge Mitchell’s service on the CMCR could 

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22 ORTIZ v. UNITED STATES 

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not run afoul of §973(b)(2)(A)’s general rule.10 

Ortiz argues in response that the President’s appointment demanded its own clear authorization because only

that appointment put Judge Mitchell into a “new office.” 

Reply Brief 7. According to Ortiz, an officer who receives a 

secretarial assignment to the CMCR “exercise[s] additional

duties”—but he does not hold a second position. Tr. of 

Oral Arg. 13. A presidential appointment alone, he says,

effects that more dramatic change. And Ortiz contends 

that §973(b)(2)(A)’s rule cares about that difference. That 

law, Ortiz says, requires a legislative authorization when,

and only when, a service member receives a whole new 

office—which is to say here when, and only when, the 

President appoints a judge to the CMCR. See Tr. of Oral 

Arg. 4–5 (stating that §973(b)(2)(A) “prohibit[s] military 

officers from holding [civil offices] absent express congressional authorization, while generally allowing military officers to be assigned to exercise the duties of such

positions”).

But that argument is contrary to §973(b)(2)(A)’s text, as

well as to the purposes it reflects. The statute draws no 

distinction between secretarial assignees and presidential 

appointees, nor between those who exercise the duties of 

an office and those who formally hold it. True enough, we 

have sometimes referred to §973(b)(2)(A) as a rule about 

—————— 

10We state no opinion on a broader argument the Government

makes—that §950f(b)(2) would exempt Judge Mitchell from 

§973(b)(2)(A)’s office-holding ban even if the Secretary had not assigned

him to the CMCR before the President’s appointment. See Brief for 

United States 27–29. And because we hold that the Secretary’s assignment authorized Judge Mitchell to serve on the CMCR while an

active-duty military officer, we need not decide whether a CMCR 

judgeship is a covered “civil office” subject to §973(b)(2)(A). Neither 

need we address the remedial issue on which the CAAF ruled, see 

supra, at 4—i.e., whether a violation of §973(b)(2)(A) would have 

immediately terminated Judge Mitchell’s military service and voided

later decisions he made (including in Ortiz’s case) as a military judge. 

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dual “office-holding,” see supra, at 21, 22, n. 10—but that 

is mere shorthand. In fact, §973(b)(2)(A)’s prohibition

applies broadly, and uniformly, to any military officer who

“hold[s], or exercise[s] the functions of,” a covered civil 

office. And the “except as otherwise authorized” caveat

applies in the same way—to “hold[ing]” and “exercis[ing]” 

alike. So the very distinction that Ortiz relies on, the 

statute rejects: Indeed, the law could not be clearer in its 

indifference. That is because Congress determined that

military officers threaten civilian preeminence in government by either “hold[ing]” or “exercis[ing] the functions of ” 

important civil offices. Except . . . if Congress decides

otherwise and says as much.

And once again, here Congress did exactly that. Judge

Mitchell became a CMCR judge, while remaining in the

military, because of a secretarial assignment that Congress explicitly authorized. See supra, at 20–21. After his 

presidential appointment, he continued on the same court,

doing the same work, in keeping with the same congressional approval. Even supposing he obtained a “new

office” in the way Ortiz says, that acquisition is of no 

moment. With or without that formal office, Judge Mitchell “h[e]ld, or exercise[d] the functions of,” a CMCR judgeship, and so was subject to §973(b)(2)(A)’s ban. But likewise, with or without that formal office, Judge Mitchell 

could receive permission from Congress to do the job—that 

is, to sit as a judge on the CMCR. And §950f(b)(2) gave

Judge Mitchell that legislative green light, from the date

of his assignment through his ruling on Ortiz’s case and 

beyond. 

B 

Finally, Ortiz raises an Appointments Clause challenge

to Judge Mitchell’s simultaneous service on the CCA and 

the CMCR. That Clause provides that the President 

“shall nominate, and by and with the Advice and Consent 

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24 ORTIZ v. UNITED STATES 

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of the Senate, shall appoint” the “Officers of the United 

States,” but that “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.” Art. II, §2, cl. 2. Litigants usually 

invoke the Appointments Clause when they object to how 

a government official is placed in his office. A litigant may 

assert, for example, that because someone is a principal 

rather than an inferior officer, he must be nominated by 

the President and confirmed by the Senate. (Recall that

just such an argument about CMCR judges led to Judge

Mitchell’s presidential appointment. See supra, at 3.) But 

Ortiz’s argument is not of that genre. He does not claim 

that the process used to make Judge Mitchell either a 

CCA judge or a CMCR judge violated the Appointments

Clause. Instead, he claims to find in that Clause a principle relating to dual service. A CCA judge, Ortiz notes, is 

an inferior officer. See Edmond, 520 U. S., at 666. But a 

CMCR judge, he says (though the Government has argued

otherwise), is a principal officer. And in Ortiz’s view, a 

single judge cannot, consistent with the Appointments

Clause, serve as an inferior officer on one court and a 

principal officer on another. He calls such dual officeholding “incongru[ous]” and “functionally incompatible.” 

Brief for Petitioners 50. The problem, he suggests, is that

the other (inferior officer) judges on the CCA will be “unduly influenced by” Judge Mitchell’s principal-officer 

status on the CMCR. Id., at 51. 

But that argument stretches too far. This Court has 

never read the Appointments Clause to impose rules about

dual service, separate and distinct from methods of appointment. Nor has it ever recognized principles of “incongruity” or “incompatibility” to test the permissibility of 

holding two offices. As Ortiz himself acknowledges, he can

“cite no authority holding that the Appointments Clause 

prohibits this sort of simultaneous service.” Id., at 52. 

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Opinion of the Court 

And if we were ever to apply the Clause to dual officeholding, we would not start here. Ortiz tells no plausible

story about how Judge Mitchell’s service on the CMCR

would result in “undue influence” on his CCA colleagues.

The CMCR does not review the CCA’s decisions (or vice 

versa); indeed, the two courts do not have any overlapping 

jurisdiction. They are parts of separate judicial systems, 

adjudicating different kinds of charges against different 

kinds of defendants. See supra, at 1–3, and n. 1. We 

cannot imagine that anyone on the CCA acceded to Judge 

Mitchell’s views because he also sat on the CMCR—any 

more than we can imagine a judge on an Article III Court 

of Appeals yielding to a colleague because she did double

duty on the Foreign Intelligence Surveillance Court of

Review (another specialized court). The CAAF put the

point well: “When Colonel Mitchell sits as a CCA judge, he 

is no different from any other CCA judge.” 76 M. J., at 

193; see supra, at 5. So there is no violation of the Appointments Clause. 

IV 

This Court has appellate jurisdiction to review the

CAAF’s decisions. In exercising that jurisdiction, we hold

that Judge Mitchell’s simultaneous service on the CCA 

and the CMCR violated neither §973(b)(2)(A)’s officeholding ban nor the Constitution’s Appointments Clause.

We therefore affirm the judgment below. 

It is so ordered. 

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THOMAS, J., concurring 

SUPREME COURT OF THE UNITED STATES 

No. 16–1423 

KEANU D. W. ORTIZ, PETITIONER v. UNITED STATES 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 

APPEALS FOR THE ARMED FORCES
 

[June 22, 2018] 

JUSTICE THOMAS, concurring. 

I join the Court’s opinion in full, which persuasively 

explains why petitioner’s statutory and constitutional 

arguments lack merit. I also agree that the statute giving 

this Court appellate jurisdiction to review the decisions of 

the Court of Appeals for the Armed Forces (CAAF), 28

U. S. C. §1259, complies with Article III of the Constitution. I write separately to explain why that conclusion is 

consistent with the Founders’ understanding of judicial 

power—specifically, the distinction they drew between 

public and private rights.1 

I 

Article III vests “[t]he judicial Power of the United

States” in this Court and any inferior courts that Congress 

chooses to establish. §1. The judicial power includes the

power to resolve the specific types of “Cases” and “Controversies” listed in §2. Article III divides this Court’s jurisdiction over those cases into two categories: “original 

Jurisdiction” and “appellate Jurisdiction.” This Court has 

original jurisdiction in cases affecting ambassadors, other 

public ministers, and consuls, and cases in which a State 

is a party. This Court has appellate jurisdiction “[i]n all 

—————— 

1 I express no view on any other arguments that were not raised by

the parties or amicus in this case, including any arguments based on

Article II of the Constitution. 

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2 ORTIZ v. UNITED STATES 

THOMAS, J., concurring 

the other Cases before mentioned” in §2. Because all 

agree that the CAAF decides “other Cases” that are not

reserved for this Court’s original jurisdiction, we can 

review its decisions only under our appellate jurisdiction. 

The text of Article III imposes two important limits on 

this Court’s appellate jurisdiction. First, as mentioned, 

this Court can review only the “other Cases” that are 

“before mentioned”—i.e., the subject matters of cases 

listed in §2 that are not reserved for its original jurisdiction. Second, this Court’s “appellate Jurisdiction” cannot 

be “original.” As Chief Justice Marshall explained, “the

essential criterion of appellate jurisdiction” is that “it 

revises and corrects the proceedings in a cause already

instituted, and does not create that cause.” Marbury v. 

Madison, 1 Cranch 137, 175 (1803). Thus, this Court 

cannot exercise appellate jurisdiction unless it is reviewing an already completed exercise of “judicial power.” In 

re Sanborn, 148 U. S. 222, 224 (1893); see also The Alicia, 

7 Wall. 571, 573 (1869) (“An appellate jurisdiction necessarily implies some judicial determination, some judgment, decree, or order of an inferior tribunal, from which 

an appeal has been taken”); 3 J. Story, Commentaries on

the Constitution of the United States §1755, p. 627 (1833) 

(explaining that this Court can review only decisions “by 

one clothed with judicial authority, and acting in a judicial 

capacity”).

Other than these two limits, the text of Article III imposes no other self-executing constraints on this Court’s 

appellate jurisdiction. Most notably, it does not require

appeals to come from any specific type of tribunal, such as 

an Article III court. As Justice Story explained, “The

appellate power is not limited by the terms of the third

article to any particular courts. . . . It is the case, then, and 

not the court, that gives the jurisdiction. If the judicial 

power extends to the case, it will be in vain to search in 

the letter of the constitution for any qualification as to the 

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THOMAS, J., concurring 

tribunal.” Martin v. Hunter’s Lessee, 1 Wheat. 304, 338 

(1816). Hamilton made the same point years earlier: “The

Constitution in direct terms gives an appellate jurisdiction 

to the Supreme Court in all the enumerated cases . . . , 

without a single expression to confine its operation to the 

inferior federal courts. The objects of appeal, not the

tribunals from which it is to be made, are alone contemplated.” The Federalist No. 82, pp. 493–494 (C. Rossiter 

ed. 1961); see also id., No. 81, at 489 (A. Hamilton) (rejecting a “technical interpretation” of the word “appellate” and 

defining it to mean “nothing more than the power of one 

tribunal to review the proceedings of another”). This 

Court has relied on the lack of tribunal-specific limits in 

Article III to exercise appellate jurisdiction over several 

types of non-Article III courts, including state courts, see 

Martin, supra, at 338, and territorial courts, see United 

States v. Coe, 155 U. S. 76, 85–86 (1894); Wellness Int’l 

Network, Ltd. v. Sharif, 575 U. S. ___–___, n. 2 (2015) 

(THOMAS, J., dissenting) (slip op., at 7–8, n. 2) (discussing 

American Ins. Co. v. 356 Bales of Cotton, 1 Pet. 511, 546 

(1828)). In short, this Court’s appellate jurisdiction requires the exercise of a judicial power, not necessarily

“[t]he judicial Power of the United States” that Article III 

vests exclusively in the federal courts, §1 (emphasis

added).

The Founders’ understanding of judicial power was

heavily influenced by the well-known distinction between 

public and private rights. See Spokeo, Inc. v. Robins, 578 

U. S. ___, ___–___ (2016) (THOMAS, J., concurring) (slip 

op., at 1–2); Wellness, supra, at ___–___ (opinion of 

THOMAS, J.) (slip op., at 6–11); Nelson, Adjudication in the 

Political Branches, 107 Colum. L. Rev. 559, 565 (2007)

(Nelson). Public rights “‘belon[g] to the people at large,’” 

while private rights belong to “‘each individual.’” Wellness, 575 U. S., at ___ (opinion of THOMAS, J.) (slip op.,

at 9). The three classic private rights—life, liberty, and 

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4 ORTIZ v. UNITED STATES 

THOMAS, J., concurring 

property—are “‘unalienable’” and “‘absolute,’” as they are

“not dependent upon the will of the government.” Ibid. 

The Founders linked the disposition of private rights with 

the exercise of judicial power. See id., at ___ (slip op., at 

10). They considered “the power to act conclusively

against [private] rights [as] the core of the judicial power.” 

Ibid. 

A disposition of private rights did not amount to an

exercise of judicial power, however, unless it also satisfied

“some basic procedural requirements.” Nelson 574. Stated 

differently, the disposition had to “assume such a form

that the judicial power is capable of acting on it.” Osborn 

v. Bank of United States, 9 Wheat. 738, 819 (1824).

“[T]hat form generally required the presence (actual or 

constructive) of adverse parties who had been given some

opportunity to be heard before the court rendered a final 

judgment that bound them.” Nelson 574. Once a dispute 

took this form, judicial power is exercised by “ ‘determin[ing] all differences according to the established law.’” 

Wellness, supra, at ___ (opinion of THOMAS, J.) (slip op., at

6) (quoting J. Locke, Second Treatise of Civil Government

§125, p. 63 (J. Gough ed. 1947)). 

II
 

A 

So understood, the CAAF exercises a judicial power. As 

I explained in Wellness, military courts adjudicate core

private rights to life, liberty, and property. See 575 U. S., 

at ___–___ (dissenting opinion) (slip op., at 6–7). That 

these courts adjudicate core private rights does not contradict the Vesting Clause of Article III, which permits 

only federal courts to exercise “the judicial Power of the 

United States.” Like other provisions of the Constitution, 

this language must be read against “commonly accepted 

background understandings and interpretative principles 

in place when the Constitution was written,” including the 

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THOMAS, J., concurring 

principle that general constitutional rules could apply

“differently to civil than to military entities.” Mascott, 

Who Are “Officers of the United States”? 70 Stan. L. Rev. 

443, 480–483 (2018) (citing Nelson 576); see also Northern 

Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U. S. 

50, 64 (1982) (plurality opinion) (explaining that interpreting Article III to exclude military courts “simply 

acknowledge[s] that the literal command of Art. III . . . 

must be interpreted in light of . . . historical context . . . 

and of the structural imperatives of the Constitution as a

whole”). Based on the “constellation of constitutional 

provisions that [indicate] Congress has the power to provide for the adjudication of disputes among the Armed 

Forces it creates,” our precedents have long construed the

Vesting Clause of Article III to extend “only to civilian 

judicial power.” Wellness, 575 U. S., at ___ (opinion of 

THOMAS, J.) (slip op., at 8) (citing Dynes v. Hoover, 20 

How. 65, 78–79 (1858)). In other words, the powers that 

the Constitution gives Congress over the military are “so 

exceptional” that they are thought to include the power to

create courts that can exercise a judicial power outside the

confines of Article III. Northern Pipeline, supra, at 64. 

Thus, military courts are better thought of as an “exception” or “carve-out” from the Vesting Clause of Article III,

rather than an entity that does not implicate the Vesting 

Clause because it does not exercise judicial power in the 

first place. See Wellness, supra, at ___–___ (opinion of 

THOMAS, J.) (slip op., at 6–8). 

No party in this case challenges the legitimacy of the

historical exception for military courts. And for good

reason: “At the time of the Framing, . . . it was already

common for nations to organize military tribunals that 

stood apart from the ordinary civilian courts, and the

United States itself had done so.” Nelson 576. As the 

Court explains, military courts predate the Constitution, 

were well-known to the Founders, were authorized by the 

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6 ORTIZ v. UNITED STATES 

THOMAS, J., concurring 

First Congress, and are expressly contemplated by the

Fifth Amendment. Ante, at 9. The crucial point for present purposes, however, is that military courts are considered exempt from the structural requirements of Article 

III “because of other provisions of the Constitution, not 

because of the definition of judicial power.” Wellness, 575 

U. S., at ___ (opinion of THOMAS, J.) (slip op., at 8) (citing 

Nelson 576). They plainly fall within that definition.

Military courts “have long been understood to exercise 

‘judicial’ power” because they “act upon core private rights

to person and property.” Id., at 576. “[C]lothed with

judicial powers,” these courts decide “questions of the most

momentous description, affecting . . . even life itself.” W. 

De Hart, Observations on Military Law 14 (1859); see also

11 Op. Atty. Gen. 19, 21 (1864) (explaining that military 

courts are “judicial” because they “pass upon the most

sacred questions of human rights . . . which, in the very 

nature of things, . . . must be adjudged according to law”).

Here, for example, the CAAF adjudicated the legality of 

petitioner’s child-pornography convictions and his sentence of two years confinement—a classic deprivation of

liberty, see Obergefell v. Hodges, 576 U. S. ___, ___–___ 

(2015) (THOMAS, J., dissenting) (slip op., at 4–6). “The 

passing of judgment on the life and liberty of those convicted by the government in a military trial surely falls

within the judicial power.” Willis, The Constitution, the 

United States Court of Military Appeals and the Future, 

57 Mil. L. Rev. 27, 84 (1972). This Court has acknowledged that military courts adjudicate core private rights, 

as it has repeatedly held that the prosecution of nonservicemembers in these courts would violate Article III. 

See Northern Pipeline, supra, at 66, n. 17 (plurality opinion); e.g., United States ex rel. Toth v. Quarles, 350 U. S. 

11 (1955) (former servicemembers); Reid v. Covert, 354 

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THOMAS, J., concurring 

U. S. 1 (1957) (spouses of servicemembers).2 

In addition to adjudicating private rights, the CAAF’s

cases “assume such a form that the judicial power is capable of acting on [them].” Osborn, 9 Wheat., at 819. The 

CAAF adjudicates cases involving “adverse parties who 

ha[ve] been given some opportunity to be heard.” Nelson 

574. It has independent authority to “prescribe” its own 

“rules of procedure,” 10 U. S. C. §944, which provide for 

briefing, oral argument, and other procedures that mirror 

a federal court of appeals. See generally CAAF Rules of

Practice and Proc. (2017). The CAAF also decides cases 

“‘according to the established law.’” Wellness, 575 U. S., 

at ___ (opinion of THOMAS, J.) (slip op., at 6). It can act 

“only with respect to matters of law,” §867(c), and its

civilian judges decide cases by independently interpreting

the Constitution, the Uniform Code of Military Justice, 

and other federal laws. Lastly, the CAAF renders “final 

judgment[s] that b[ind] [the parties].” Nelson 574. Its 

judgments are “final and conclusive” as soon as they are 

published and are “binding upon all departments, courts,

agencies, and officers of the United States.” §876. The 

Executive Branch has no statutory authority to review or 

modify the CAAF’s decisions.3 In short, when it comes to 

—————— 

2Servicemembers consent to military jurisdiction when they enlist.

While this consent might allow military courts to adjudicate a servicemember’s private rights, it does not transform the nature of the power

that the military courts exercise, or somehow transform the servicemember’s private right to life, liberty, or property into a public right. 

See Wellness Int’l Network, Ltd. v. Sharif, 575 U. S. ___, ___, ___ (2015) 

(THOMAS, J., dissenting) (slip op., at 6, 14). 3Unlike the CAAF’s decisions, court-martial proceedings are not final 

until they are approved by the convening authority. See 10 U. S. C. 

§876. But the CAAF does not review court-martial proceedings until 

after they have been approved and have been reviewed by an intermediate Court of Criminal Appeals. See §867(c). Because “the [CAAF]

reviews court-martial convictions after executive branch review ends,” 

the “[r]eview of its decisions in the Supreme Court of the United States, 

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8 ORTIZ v. UNITED STATES 

THOMAS, J., concurring 

the CAAF, “‘[t]he whole proceeding from its inception is 

judicial.’” Runkle v. United States, 122 U. S. 543, 558 

(1887) (quoting 11 Op. Atty. Gen., at 21).4 

B 

Professor Bamzai contends that the CAAF exercises an 

executive, not a judicial, power. He notes that this Court 

has described the CAAF as an “Executive Branch entity,” 

Edmond v. United States, 520 U. S. 651, 664 (1997), and 

he cites commentators who describe military courts as

“instrumentalities of the executive power” because they

help the President maintain discipline over the Armed 

Forces, W. Winthrop, Military Law and Precedents 49 (2d

ed. 1920); G. Davis, Military Law of the United States 15

(2d ed. 1909). Professor Bamzai also compares the CAAF 

to administrative agencies, which he contends exercise 

executive power. If agencies exercised core judicial power, 

he notes, they would be acting unconstitutionally because 

—————— 

by certiorari, . . . poses no finality problems” under Article III. Pfander, 

Article I Tribunals, Article III Courts, and the Judicial Power of the 

United States, 118 Harv. L. Rev. 643, 717, n. 327 (2004). 4Most of the statutes cited above are unique to the CAAF—the court 

whose decision we are reviewing and, thus, the only one that matters

for purposes of our appellate jurisdiction. I express no view on whether 

this Court could directly review the CAAF, absent these statutes. And 

I express no view on whether this Court could directly review the

decisions of other military courts, such as courts-martial or military 

commissions. Cf. id., at 723, n. 358 (suggesting that this Court could 

not directly review courts-martial and military commissions because

their proceedings are “summary” and “create no record to support writ 

of error review”); Choper & Yoo, Wartime Process: A Dialogue on

Congressional Power to Remove Issues from the Federal Courts, 95 Cal. 

L. Rev. 1243, 1283 (2007) (suggesting that the adjudication of the rights

of enemy aliens by law-of-war military commissions might be better 

understood as exercising the President’s power to conduct war, not

judicial power). And, of course, this Court’s appellate jurisdiction does

not allow it to directly review decisions of the Executive Branch that do

not “assume such a form that the judicial power is capable of acting on

[them].” Osborn v. Bank of United States, 9 Wheat. 738, 819 (1824). 

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THOMAS, J., concurring 

they do not enjoy the structural protections of Article III. 

See Arlington v. FCC, 569 U. S. 290, 304, n. 4 (2013). 

These arguments miss the mark. While the CAAF is in 

the Executive Branch and its purpose is to help the President maintain troop discipline, those facts do not change

the nature of the power that it exercises. See Brigadier

General S. T. Ansell’s Brief Filed in Support of His Office

Opinion (Dec. 11, 1917), reprinted in Hearings on S. 64

before the Subcommittee of the Senate Committee on 

Military Affairs, 66th Cong., 1st Sess., 71, 76 (1919). And 

it is the nature of the power, not the branch exercising it,

that controls our appellate jurisdiction: 

“The controlling question is whether the function to be

exercised . . . is a judicial function . . . . We must not 

‘be misled by a name, but look to the substance and 

intent of the proceeding.’ United States v. Ritchie, 17 

How. 525, 534 [(1855)]. ‘It is not important . . .

whether such a proceeding was originally begun by an

administrative or executive determination, if when it 

comes to the court, whether legislative or constitutional, it calls for the exercise of only the judicial

power.’” Federal Radio Comm’n v. Nelson Brothers 

Bond & Mortgage Co. (Station WIBO), 289 U. S. 266, 

277–278 (1933) (some citations omitted). 

As explained, the CAAF exercises a judicial power because 

it adjudicates private rights. That the Constitution permits this Executive Branch entity to exercise a particular

judicial power—due to the political branches’ expansive 

constitutional powers over the military—does not change 

the analysis.

Professor Bamzai’s analogy to administrative agencies is 

flawed. Professor Bamzai assumes that, when administrative agencies adjudicate private rights, they are not 

exercising judicial power. But they are. See B&B Hardware, Inc. v. Hargis Industries, Inc., 575 U. S. ___, ___–___ 

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10 ORTIZ v. UNITED STATES 

THOMAS, J., concurring 

(2015) (THOMAS, J., dissenting) (slip op., at 11–12). In 

fact, they are unconstitutionally exercising “[t]he judicial

Power of the United States,” as agencies are not Article III 

courts and do not “enjoy a unique, textually based” carveout from the Vesting Clause of Article III. Wellness, 575 

U. S., at ___ (opinion of THOMAS, J.) (slip op., at 14). The 

CAAF does enjoy such a carveout, as I explained in Wellness. But both it and administrative agencies exercise a 

judicial power when they adjudicate private rights. Contrary to the premise underlying Professor Bamzai’s argument, questions implicating the separation of powers

cannot be answered by arguing, in circular fashion, that 

whatever the Executive Branch does is necessarily an 

exercise of executive power. 

* * * 

Because the CAAF exercises a judicial power, the statute giving this Court appellate jurisdiction over its decisions does not violate Article III. For these reasons, and 

the reasons given by the Court, I concur. 

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_________________ 

_________________ 

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ALITO, J., dissenting 

SUPREME COURT OF THE UNITED STATES 

No. 16–1423 

KEANU D. W. ORTIZ, PETITIONER v. UNITED STATES 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 

APPEALS FOR THE ARMED FORCES
 

[June 22, 2018] 

JUSTICE ALITO, with whom JUSTICE GORSUCH joins,

dissenting. 

I begin with a story that is familiar to students of constitutional law. After his Federalist Party was defeated in 

the pivotal election of 1800, outgoing President John 

Adams attempted to fill the Federal Judiciary with individuals favored by his party. The Senate confirmed Adams’s nominees, and Adams diligently signed their commissions and sent them to the Secretary of State, one John

Marshall, so that the Great Seal could be affixed and the 

commissions could be delivered. Most of the commissions 

were promptly sealed and dispatched, but a few were left 

behind, including the commission of William Marbury, 

who had been nominated and confirmed as a justice of the 

peace for the District of Columbia. 

After Thomas Jefferson was sworn in as the Nation’s 

third President, he was furious about Adams’s eleventhhour judicial appointments,1 and his Secretary of State,

James Madison, made a fateful decision. Evaluating the

facts and the law as he saw them, Madison concluded that 

he was under no legal obligation to deliver the commissions that had been left in Marshall’s office, and he decided 

not to do so. 

—————— 

1Letter from Thomas Jefferson to Henry Knox (Mar. 27, 1801), in 33

Papers of Thomas Jefferson 465, 466 (B. Oberg ed. 2006.). 

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2 ORTIZ v. UNITED STATES 

ALITO, J., dissenting 

Outraged, Marbury filed suit directly in our Court,

asking that Madison be ordered to deliver his commission. 

But we dismissed his case, holding, among other things, 

that it did not fall within our “appellate jurisdiction.” 

Marbury v. Madison, 1 Cranch 137, 175–176, 180 (1803). 

Why? Because “appellate jurisdiction” means jurisdiction 

to review “the proceedings in a cause [i.e., a case] already 

instituted” in another court. Id., at 175. Madison was an 

Executive Branch officer, not a court, and therefore Marbury’s dispute with Madison did not become a “cause” or 

case until it was brought before this Court. As a result, 

review of Madison’s decision did not fall within our “appellate” jurisdiction. Id., at 175–176. 

That conclusion was straightforward enough. But suppose that Madison’s decisionmaking process had been 

more formal. Suppose that he had heard argument about 

his legal obligations—and perhaps even testimony about 

Marbury’s qualifications. (After all, President Jefferson 

reappointed some of Adams’s nominees, but not Marbury.2) Or suppose Madison had convened an Executive 

Branch committee to make an initial determination. 

Suppose that this entity was labeled the “Court of Commission Review.” Suppose that the members wore robes 

and were called judges, held their meeting in a courthouse, and adopted court-like procedures. With all these 

adornments, would Madison’s decision have fallen within 

our appellate jurisdiction? Would Marbury v. Madison 

have come out the other way? 

The answer is no, and the reason is the same as before. 

Our appellate jurisdiction permits us to review one thing: 

the lawful exercise of judicial power. Lower federal courts 

exercise the judicial power of the United States. State 

courts exercise the judicial power of sovereign state gov-

—————— 

2Prakash, The Appointment and Removal of William J. Marbury and

When an Office Vests, 89 Notre Dame L. Rev. 199, 209 (2013). 

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ALITO, J., dissenting 

ernments. Even territorial courts, we have held, exercise 

the judicial power of the territorial governments set up by 

Congress. Executive Branch officers, on the other hand, 

cannot lawfully exercise the judicial power of any sovereign, no matter how court-like their decisionmaking process might appear. That means their decisions cannot be 

appealed directly to our Court. 

 We have followed this rule for more than two centuries. 

It squarely resolves this case. Courts-martial are older 

than the Republic and have always been understood to be 

Executive Branch entities that help the President, as 

Commander in Chief, to discipline the Armed Forces. As 

currently constituted, military tribunals do not comply 

with Article III, and thus they cannot exercise the Federal 

Government’s judicial power. That fact compels us to 

dismiss Ortiz’s petition for lack of jurisdiction. 

 Today’s decision is unprecedented, and it flatly violates 

the unambiguous text of the Constitution. Although the 

arguments in the various opinions issued today may seem 

complex, the ultimate issue is really quite simple. The 

Court and the concurrence say that Congress may confer 

part of the judicial power of the United States on an entity 

that is indisputably part of the Executive Branch. But 

Article III of the Constitution vests “[t]he judicial Power 

of the United States”—every single drop of it—in “one 

supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish” in 

compliance with that Article. A decision more contrary to 

the plain words of the Constitution is not easy to recall. 

I 

 Under Article III of the Constitution, the judicial power 

of the United States may be vested only in tribunals 

whose judges have life tenure and salary protection. §1. 

“There is no exception to this rule in the Constitution.” 

Benner v. Porter, 9 How. 235, 244 (1850); Oil States Energy 

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4 ORTIZ v. UNITED STATES 

ALITO, J., dissenting 

Services, LLC v. Greene’s Energy Group, LLC, 584 U. S. 

___, ___ (2018) (slip op., at 5–6); Stern v. Marshall, 564 

U. S. 462, 503 (2011); Martin v. Hunter’s Lessee, 1 Wheat. 

304, 330–331 (1816) (Story, J.). 

The Court of Appeals for the Armed Forces (CAAF) is

not such a tribunal. Its judges serve 15-year terms and 

can be removed by the President for cause. 10 U. S. C. 

§§942(b), (c). As the majority acknowledges, the CAAF is 

an Executive Branch entity, and as such, it cannot be

vested with the judicial power conferred by Article III.

If the CAAF were to do something that either amounts to

or requires the exercise of judicial power, it would be 

unconstitutional. 

After specifying the only institutions that may exercise

the judicial power of the United States, Article III defines 

the permissible scope of the jurisdiction of this Court.

Article III allows us to exercise both “original” and “appellate” jurisdiction. Our original jurisdiction is limited to

“Cases affecting Ambassadors, other public Ministers and 

Consuls, and those in which a State shall be Party,” §2, so 

it is obvious that Ortiz’s case does not fall within our 

original jurisdiction. But what about our appellate jurisdiction? If we directly reviewed a decision of the CAAF,

would that be an exercise of “appellate” review in the 

sense meant by Article III? The answer is no. 

A 

The understanding of appellate jurisdiction embodied in

Article III has deep roots. Blackstone explained that a 

“court of appeal” has jurisdiction only to “reverse or affirm

the judgment of the inferior courts.” 3 W. Blackstone, 

Commentaries on the Laws of England 411 (1768) (Blackstone) (emphasis added). Echoing Blackstone, we have

held that our appellate jurisdiction permits us to act only

as “[a] supervising Court, whose peculiar province it is to

correct the errors of an inferior Court.” Cohens v. VirCase:17-03283-LTS Doc#:3494 Filed:07/12/18 Entered:07/12/18 16:08:18 Desc: Main

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ALITO, J., dissenting 

ginia, 6 Wheat. 264, 396 (1821) (Marshall, C. J.). And we 

have reiterated that “[a]n appellate jurisdiction necessarily

implies some judicial determination, some judgment,

decree, or order of an inferior tribunal, from which an 

appeal has been taken.” The Alicia, 7 Wall. 571, 573 

(1869); Webster v. Cooper, 10 How. 54, 55 (1850); 3 J. 

Story, Commentaries on the Constitution of the United 

States §916, p. 652 (1833) (Story).

Those principles make it easy to understand what Marbury meant when it held that “[i]t is the essential criterion

of appellate jurisdiction, that it revises and corrects the

proceedings in a cause already instituted, and does not 

create that cause.” 1 Cranch, at 175. The cause (or case) 

must have been created previously, somewhere else. And 

as Blackstone suggested, what “creates” a “case” in the 

relevant sense—that is, what transforms a dispute into a 

“case” that an appellate court has jurisdiction to resolve—

is the prior submission of the dispute to a tribunal that is

lawfully vested with judicial power. 

We held exactly that not long after Marbury, and in a 

decision no less seminal. A dispute “becomes a case” for

purposes of Article III, we held, only when it “assume[s] 

such a form that the judicial power is capable of acting on 

it. That power is capable of acting only when the subject 

is submitted to it by a party who asserts his rights in the 

form prescribed by law. It then becomes a case.” Osborn 

v. Bank of United States, 9 Wheat. 738, 819 (1824) (Marshall, C. J.) (emphasis added). Hence, in order to create a 

“case” that Article III permits us to review on appeal, a 

litigant must have first “submitted” the dispute to another

tribunal that was “capable” of exercising the “judicial

power” of the government to which the tribunal belongs.

As discussed, Executive Branch tribunals cannot fill that 

essential role. 

We reiterated this principle in Cohens, another foundational precedent of the Marshall Court. “To commence a 

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6 ORTIZ v. UNITED STATES 

ALITO, J., dissenting 

suit,” Chief Justice Marshall explained, “is to demand 

something by the institution of process in a Court of justice.” 6 Wheat., at 408 (emphasis added). Courts of justice

are those tribunals “erected by” the sovereign and properly

vested with the sovereign’s own “power of judicature.” 1 

Blackstone 257 (1765). When the sovereign is the Federal

Government, that means only courts established under 

Article III, for only those courts may exercise the judicial 

power of the United States. See Cohens, supra, at 405; 

The Federalist No. 78, pp. 469–472 (C. Rossiter ed. 1961) 

(“the courts of justice” are those described in Article III).

This view of appellate jurisdiction explains why, in 

Martin v. Hunter’s Lessee, Justice Story declared that “if 

. . . congress should not establish [inferior Article III] 

courts, the appellate jurisdiction of the supreme court

would have nothing to act upon, unless it could act upon

cases pending in the state courts.” 1 Wheat., at 339–340. 

Without decisions of Article III courts or state courts to 

review, our appellate jurisdiction would have lain idle—

but not because there were no Executive Branch tribunals, 

like the CAAF, deciding federal questions. To the contrary,

executive agencies have “conduct[ed] adjudications”—often 

taking “‘judicial’ forms”—“since the beginning of the Republic.” Arlington v. FCC, 569 U. S. 290, 304–305, n. 4 

(2013); Freytag v. Commissioner, 501 U. S. 868, 910 (1991) 

(Scalia, J., concurring in part and concurring in judgment); see generally J. Mashaw, Creating the Administrative Constitution 34–35 (2012). 

Such Executive Branch adjudications, however, do not 

give rise to “cases” that Article III grants us appellate

jurisdiction to review, precisely because officers of the 

Executive Branch cannot lawfully be vested with judicial 

power. That is why Chief Justice Marshall declared, 

without qualification, that “[a] mandamus to an officer [of

the Executive Branch] is held to be the exercise of original

jurisdiction; but a mandamus to an inferior court of the 

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United States, is in the nature of appellate jurisdiction.” 

Ex parte Crane, 5 Pet. 190, 193 (1831) (emphasis added).

Time has not sown doubts about the truth of that rule. 

E.g., Verizon Md. Inc. v. Public Serv. Comm’n of Md., 535 

U. S. 635, 644, n. 3 (2002) (“judicial review of executive

action, including determinations made by a state administrative agency,” involves the exercise of federal court’s 

“original jurisdiction” rather than its “appellate jurisdiction,” which covers only “state-court judgments”); L. Jaffe, 

Judicial Control of Administrative Action 263, n. 5 (1965). 

We have taken this same approach when deciding

whether we may assert appellate jurisdiction to review the 

decision of a state tribunal: We look to state law to see 

whether the tribunal in question was eligible to receive 

the State’s judicial power. E.g., Betts v. Brady, 316 U. S. 

455, 458–460 (1942); cf. Chicago, R. I. & P. R. Co. v. Stude, 

346 U. S. 574, 578–579 (1954) (federal courts cannot exercise removal jurisdiction—which is appellate in nature, 

Martin, supra, at 349—while a dispute is still in state

“administrative” proceedings; removal is proper only after 

“the jurisdiction of the state district court is invoked”); 

Verizon Md., supra. 

B 

This understanding of appellate jurisdiction bars our 

review here. The dispute between Ortiz and the Federal 

Government has been presented to four tribunals: the 

initial court-martial, the Air Force Court of Criminal 

Appeals, the CAAF, and this Court. Each of those tribunals belongs to a branch of the Federal Government. Yet 

only one of them—our Court—is capable, under the Constitution, of exercising the Government’s judicial power.

Thus, the dispute between Ortiz and the Federal Government did not become an Article III “case” until Ortiz petitioned our Court to hear it. That means our present adjudication—no less than our adjudication of the dispute 

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8 ORTIZ v. UNITED STATES 

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between Marbury and Madison—lacks “the essential 

criterion of appellate jurisdiction.” 1 Cranch, at 175. 

The majority does not question this framework; indeed, 

it acknowledges that, per Marbury, we can assert jurisdiction here only if the dispute before us blossomed into an 

Article III “case” before it landed at our doorstep. Ante, at 

6–7. Curiously, however, the majority basically proceeds

as though Marbury were our last word on the subject. 

Ante, at 6–8. That is simply not right. As discussed, our 

foundational precedents expressly delineate the prerequisites to the formation of a constitutional case: The dispute 

must, at a minimum, have been previously presented to 

and decided by a tribunal lawfully vested with the judicial

power of the government to which it belongs. Nothing of

the sort occurred here; traversing a series of “proceedings”

internal to the Executive Branch, ante, at 7, does not 

count. And while there undoubtedly are differences between this case and Marbury, even some that “lea[p] off 

the page,” ante, at 18, those distinctions are irrelevant to 

our jurisdiction. The dispositive common ground is that,

just as in Marbury, we are here asked to resolve a dispute

that has been presented only to Executive Branch officers.

The present dispute thus lies beyond the “peculiar province” of our appellate jurisdiction to review. Cohens, 6 

Wheat., at 396. 

C 

If there were any doubt that Article III forbids us to

take appeals directly from the Executive Branch, two

centuries of precedent—almost all of it overlooked by the

majority—would put those doubts to rest. 

1 

First consider the history of our relationship with the

Court of Claims. Congress established that court in 1855

to adjudicate claims against the United States. §1, 10 

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Stat. 612. Congress provided the court’s judges with life 

tenure and salary protection, just as Article III requires. 

Ibid. The Court of Claims was a court of record, and it 

followed all the procedures—and possessed all the ancillary powers (subpoena, contempt, etc.)—that one would 

expect to find in a court of justice. §§3–7, 10 Stat. 613; §4, 

12 Stat. 765–766. Its decisions had preclusive effect, and 

were appealable directly to our Court. §§7, 5, id., at 766. 

If the court rendered judgment for a claimant, however,

the Secretary of the Treasury could partially revise its

decision by modifying the amount of the judgment to be 

paid (though not the court’s legal conclusion that the 

claimant was in the right). §14, id., at 768. 

Under principles as old as Hayburn’s Case, 2 Dall. 409 

(1792), a court whose judgments are not self-executing no

more complies with Article III than a tribunal whose

judges are not life tenured. For that reason alone, we 

dismissed for lack of jurisdiction the first time a party

appealed a Court of Claims decision directly to our Court. 

Gordon v. United States, 2 Wall. 561 (1865), 117 U. S. 

Appx. 697 (1864). It did not even matter that the court’s 

decision in that case had been against the claimant, and 

was thus immune from revision, and would have been 

fully binding if we had affirmed. All that mattered was 

that the Court of Claims, like the CAAF, lacked an attribute that Article III makes prerequisite to the vesting of

judicial power. Id., at 704. In words that apply as much

here, we said that “the so-called judgments of the Court of

Claims . . . could not be deemed an exercise of judicial

power, and could not, therefore, be revised by this court.” 

In re Sanborn, 148 U. S. 222, 224 (1893). It was irrelevant 

how much the Court of Claims otherwise “resemble[d] . . .

courts whose decisions we review.” Ante, at 9. 

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10 ORTIZ v. UNITED STATES 

ALITO, J., dissenting 

pliance with Article III by repealing the provision that

made some of its decisions revisable by the Treasury

Secretary. Ch. 19, §1, 14 Stat. 9. We began hearing appeals from it “immediately.” United States v. Jones, 119 

U. S. 477, 478 (1886). We now were able to “accep[t] appellate jurisdiction over what was, necessarily, an exercise 

of the judicial power which alone [we] may review.” Glidden Co. v. Zdanok, 370 U. S. 530, 554 (1962) (plurality 

opinion) (citing Marbury, supra, at 174–175; emphasis

added). 

2 

Next consider our practice in entertaining petitions for

writs of habeas corpus.

Four years after Marbury, we reaffirmed its core holding 

in Ex parte Bollman, 4 Cranch 75 (1807) (Marshall, C. J.). 

Two men were taken into federal custody, and their confinement was approved by an Article III court. United 

States v. Bollman, 24 F. Cas. 1189, 1190, 1196 (No.

14,622) (CC DC 1807). They then petitioned our Court for 

a writ of habeas corpus. Applying Marbury, we held that 

the jurisdiction “which the court is now asked to exercise 

is clearly appellate. It is the revision of a decision of an 

inferior court.” 4 Cranch, at 101. 

Contrast Bollman with Ex parte Barry, 2 How. 65 (1844)

(Story, J.), and In re Metzger, 5 How. 176 (1847). In Barry, 

the petitioner sought relief in this Court without first 

presenting his claim to an inferior federal court or a state 

court, and so Justice Story explained that “[t]he case,

then, is one avowedly and nakedly for the exercise of 

original jurisdiction by this court,” and was required to be

dismissed. 2 How., at 65. In Metzger, “the district judge” 

had “heard and decided” the lawfulness of the petitioner’s 

custody, but the judge had done so only “at his chambers, 

and not in court.” 5 How., at 191 (emphasis added). His 

judgment was not provisional, like some early Court of 

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Claims decisions—but his status as a judge at chambers 

was still fatal to our jurisdiction. In a technical sense, a 

judge at chambers “exercises a special authority” distinct

from the judicial power vested by Article III—which meant 

that the Constitution would permit us to review his decision in “[t]he exercise of an original jurisdiction only.” Id., 

at 191–192. 

3 

Finally, and especially pertinent here, we have adhered 

to the Marbury principle in the many instances in our 

Court’s history in which we have been asked to review the 

decision of a military tribunal. First, in Ex parte Vallandigham, 1 Wall. 243 (1864), an Ohio resident had been

tried and sentenced by a military commission, and its

decision became final after being approved up the chain of 

command. Vallandigham sought relief directly from our 

Court, without first petitioning a lower federal court. We 

held that we lacked jurisdiction. Id., at 254. The military

commission, like the CAAF, was not one of the “courts of 

the United States” established under Article III, id., at 

251, and thus it could not exercise the judicial power of the 

Federal Government, but could exercise only “a special 

authority,” id., at 253—just like the Court of Claims, and 

just like a judge at chambers. Given that fact, we held it 

was “certain” that any review of its decisions could take 

place only in the exercise of our original, and not appellate, jurisdiction. Id., at 251–252. And despite what the 

majority seems to think, see ante, at 17, n. 8, in Vallandigham we recognized that the military tribunal had 

“judicial character” in the sense that it had “the authority 

. . . to examine, to decide and sentence,” but—in the same 

breath—we affirmed the crucial point, namely, that such 

character “‘is not judicial . . . in the sense in which judicial 

power is granted to the courts of the United States.’” 1 

Wall., at 253 (emphasis added). 

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 Contrast Vallandigham with a pair of decisions we 

issued shortly thereafter. In Ex parte Milligan, 4 Wall. 2 

(1866), and Ex parte Yerger, 8 Wall. 85 (1869), we again 

were asked to grant relief to petitioners who, just like

Vallandigham (and just like Ortiz), were in custody under 

orders of a non-Article III military tribunal. But unlike 

Vallandigham and Ortiz, Milligan and Yerger first sought 

relief in a lower federal court. Milligan, supra, at 107– 

108; Yerger, 8 Wall., at 102–103. That fact made all the 

difference—again, because of the rule that we possess,

“under the Constitution, an appellate jurisdiction, to be 

exercised only in the revision of judicial decisions.” Id., at 

97. The decisions of non-Article III military courts do not 

qualify.

Similarly, after World War II we received “more than a 

hundred” habeas petitions from individuals in the custody 

of “various American or international military tribunals

abroad,” almost none of whom had “first sought [relief] in

a lower federal court.” R. Fallon, J. Manning, D. Meltzer,

& D. Shapiro, Hart and Wechsler’s The Federal Courts 

and the Federal System 292 (7th ed. 2015). Consistent 

with Marbury, we denied review in every one. Fallon, 

supra, at 292–293. Thus, while it is surely true that “not 

every military tribunal is alike” in all respects, ante, at 17, 

before today, they were at least alike in this respect: Their

decisions could not be reviewed directly here. 

D 

The unbroken line of authorities discussed above vividly 

illustrates the nature and limits of our appellate jurisdiction as defined in Article III. Today’s decision cannot be 

squared with those authorities, and the majority barely 

even tries. The majority says not a word about the Court 

of Claims, even though that tribunal surely had sufficient 

“court-likeness,” ante, at 16 (emphasis deleted), to come

within the scope of our appellate jurisdiction under today’s 

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test. Nor does the majority acknowledge the slew of onpoint habeas decisions—save for Vallandigham, which it 

waves away by emphasizing irrelevant factual details (like 

the commanding officer’s facial hair). Despite its running

refrain that the CAAF displays a “judicial character,” ante, 

at 6 (emphasis added); see also ante, at 8, 18, 19, the 

majority simply never comes to grips with the substance of 

our holdings: We may not hear an appeal directly from

any tribunal that has not been lawfully vested with judicial power. That rule directly covers the CAAF, and it

bars our review. 

II 

Having said very little about a large body of controlling 

precedent, the majority says very much about the fact that 

we have long heard appeals directly from territorial courts

and the courts of the District of Columbia. Ante, at 12–16. 

The majority claims to be looking for a “powerful reason” 

why our appellate jurisdiction should treat courts-martial

any differently. Ante, at 15. A careful reading of our

decisions shows that we have a good reason ready at

hand—one that is fully consistent with Marbury. 

The reason, as I explain below, is this: Congress enjoys a

unique authority to create governments for the Territories 

and the District of Columbia and to confer on the various 

branches of those governments powers that are distinct

from the legislative, executive, and judicial power of the 

United States. Thus, for example, the courts of the District of Columbia exercise the judicial power of the District, not that of the United States. The courts of the 

United States Virgin Islands exercise the judicial power of

that Territory, not the judicial power of the United States.

By contrast, the CAAF and other military tribunals are 

indisputably part of the Executive Branch of the Government of the United States. They exercise the power of the 

United States, not that of any other government, and since 

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14 ORTIZ v. UNITED STATES 

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they are part of the Executive, the only power that they

may lawfully exercise is executive, not judicial. Unless 

they are removed from the Executive Branch and transformed into Article III courts, they may not exercise any

part of the judicial power of the United States. Nor need 

they exercise judicial power to carry out their functions, as

we have always understood. 

A 

We have long said that Congress’s authority to govern

the Territories and the District of Columbia stems as 

much from its inherent sovereign powers as it does from

specific constitutional provisions in Articles IV and I. Sere 

v. Pitot, 6 Cranch 332, 336–337 (1810) (Marshall, C. J.); 

American Ins. Co. v. 356 Bales of Cotton, 1 Pet. 511, 546 

(1828) (Marshall, C. J.); Late Corp. of Church of Jesus 

Christ of Latter-day Saints v. United States, 136 U. S. 1, 

42 (1890); see also Art. IV, §3, cl. 2 (Territories); Art. I, §8, 

cl. 17 (District). Perhaps reflecting that view, the founding generation understood—and for more than two centuries, we have recognized—that Congress’s power to govern

the Territories and the District is sui generis in one very

specific respect: When exercising it, Congress is not bound 

by the Vesting Clauses of Articles I, II, and III.

The Vesting Clauses impose strict limits on the kinds of

institutions that Congress can vest with legislative, executive, and judicial power. See generally Department of 

Transportation v. Association of American Railroads, 575 

U. S. ___, ___–___ (2015) (THOMAS, J., concurring in judgment) (slip op., at 2–3). Those limits apply when Congress 

legislates in every other area, including when it regulates 

the Armed Forces. See Loving v. United States, 517 U. S. 

748, 767–768, 771–774 (1996) (Article I nondelegation 

doctrine applies to congressional regulation of courtsmartial). But it has been our consistent view that those 

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tions to govern the Territories and the District. As we 

said in Benner v. Porter, 9 How. 235, 242 (1850), territorial 

governments set up by Congress “are not organized under

the Constitution, nor subject to its complex distribution of 

the powers of government, as the organic law; but are the

creations, exclusively, of the legislative department.”

Congress may therefore give territorial governments “a

legislative, an executive, and a judiciary, with such powers 

as it has been their will to assign to those departments.” 

Sere, supra, at 337. That is why we have often repeated

that “[i]n legislating for [the Territories], Congress exercises the combined powers of the general, and of a state

government.” American Ins. Co., supra, at 546; Palmore v. 

United States, 411 U. S. 389, 403 (1973). Just as the 

Vesting Clauses do not constrain the States in organizing 

their own governments, Dreyer v. Illinois, 187 U. S. 71, 84 

(1902), those Clauses do not constrain Congress in organizing territorial governments. 

Thus, unlike any of its other powers, Congress’s power 

over the Territories allows it to create governments in

miniature, and to vest those governments with the legislative, executive, and judicial powers, not of the United 

States, but of the Territory itself. For that reason we have 

upheld delegations of legislative, executive, and judicial

power to territorial governments despite acknowledging 

that each one would be incompatible with the Vesting 

Clauses of the Federal Constitution if those Clauses applied. See, e.g., Dorr v. United States, 195 U. S. 138, 153 

(1904) (territorial legislature); Cincinnati Soap Co. v. 

United States, 301 U. S. 308, 322–323 (1937); Snow v. 

United States, 18 Wall. 317, 321–322 (1873) (territorial 

executive); American Ins. Co., supra (territorial courts); 

Sere, supra; Kendall v. United States ex rel. Stokes, 12 Pet. 

524, 619 (1838); Keller v. Potomac Elec. Power Co., 261 

U. S. 428, 442–443 (1923).

The Framers evidently shared this view. Thus, James 

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16 ORTIZ v. UNITED STATES 

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Madison took it for granted that Congress could create “a

municipal legislature” for the District of Columbia, The 

Federalist No. 43, at 272–273, something that would 

otherwise violate the Vesting Clause of Article I, which 

prohibits Congress from delegating legislative powers to

any other entity, Wayman v. Southard, 10 Wheat. 1, 42– 

43 (1825) (Marshall, C. J.). And Justice Story declared, 

without hesitation, that “[w]hat shall be the form of government established in the territories depends exclusively

upon the discretion of congress. Having a right to erect a

territorial government, they may confer on it such powers, 

legislative, judicial, and executive, as they may deem

best.” 3 Story §667, at 478.

The upshot is that it is only when Congress legislates for

the Territories and the District that it may lawfully vest 

judicial power in tribunals that do not conform to Article 

III. And that, in turn, explains why territorial courts and 

those of the District—exercising the judicial power of their

respective governments—may have their decisions appealed directly here. We said as much in United States v. 

Coe, 155 U. S. 76, 86 (1894), where we explained that 

because Congress’s “power of government . . . over the 

Territories . . . includes the ultimate executive, legislative,

and judicial power, it follows that the judicial action of all

inferior courts established by Congress may, in accordance

with the Constitution, be subjected to [our] appellate 

jurisdiction.”

The rule of appellate jurisdiction we recognized in Coe is 

identical to the rule we have applied ever since Marbury: 

Our appellate jurisdiction is proper only if the underlying 

decision represents an exercise of judicial power lawfully 

vested in the tribunal below. Territorial courts and those 

of the District of Columbia have such power; the CAAF

does not, and cannot be given it so long as it fails to comply with Article III. That is reason enough to treat these 

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tribunals differently.3 

B 

The majority responds to this conclusion by suggesting,

albeit without much elaboration, that just as the Constitution gives Congress the “exceptional” power to confer nonArticle III judicial power on the courts of the Territories 

and the District of Columbia, the Constitution also gives 

Congress the “exceptional” power to vest military tribunals with non-Article III judicial power. See ante, at 15, 

and n. 7. But the Vesting Clauses are exclusive, which 

means that the Government’s judicial power is not shared 

between Article II and Article III. See supra, at 3–4 (collecting cases); see also, e.g., Arlington, 569 U. S., at 304– 

305, n. 4; Ex parte Randolph, 20 F. Cas. 242, 254 (No. 

11,558) (CC Va. 1833) (Marshall, C. J.) (those whose “offices

are held at the pleasure of the president . . . are, consequently, incapable of exercising any portion of the judicial 

power”); Association of American Railroads, 575 U. S., at 

___, ___ (THOMAS, J., concurring in judgment) (slip op., at 

2, 9); B&B Hardware, Inc. v. Hargis Industries, Inc., 575 

—————— 

3 It is true that our decisions concerning territorial governments, and 

territorial courts in particular, have had their share of critics. See, e.g.,

M. Redish, Federal Jurisdiction: Tensions in the Allocation of Judicial 

Power 36–39 (1980); Currie, The Constitution in the Supreme Court: 

The Powers of the Federal Courts, 1801–1835, 49 U. Chi. L. Rev. 646, 

719 (1982); C. Wright, Law of Federal Courts 41 (4th ed. 1983); Fallon,

Of Legislative Courts, Administrative Agencies, and Article III, 101

Harv. L. Rev. 915, 972 (1988); Bator, The Constitution as Architecture: 

Legislative and Administrative Courts Under Article III, 65 Ind. L. J. 

233, 240–242 (1990); G. Lawson & G. Seidman, The Constitution of

Empire 149 (2004). But the theory underlying our cases was widely

shared at the founding; our decisions have never seriously questioned

it; and, if taken at face value, it coheres with the rest of our jurisprudence. Seeing no need to revisit these precedents, I would not disturb 

them. I certainly would not do what the majority has done: stretch an

arguably anomalous doctrine and export it (in mutated form) to other

contexts where it can only cause mischief. 

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U. S. ___, ___ (2015) (THOMAS, J., dissenting) (slip op., at 

11). And neither the majority nor the concurrence ever

explains how the Constitution’s various provisions relating

to the military, through their penumbras and emanations,

can be said to produce a hybrid executive-judicial power 

that is nowhere mentioned in the Constitution’s text, that 

is foreclosed by its structure, and that had gone almost

entirely unnoticed before today.

Thus, to make the majority’s argument parallel to the 

argument regarding the courts of the Territories and the 

District of Columbia, the majority would have to argue 

that the military, like the governments of the Territories

and the District, is somehow not part of the Federal Government—“not organized under the Constitution, . . . as 

the organic law,” Benner, 9 How., at 242—but is a government unto itself. To set out that argument, however, is 

to expose its weakness, for nothing could be more antithetical to the Constitution and to our traditional understanding of the relationship between the military and civilian 

authority. The military is not an entity unto itself, separate from the civilian government established by the 

Constitution. On the contrary, it is part of the Executive 

Branch of the Government of the United States, and it is 

under the command of the President, who is given the

power of Commander in Chief and is ultimately answerable to the people.

To appreciate the constitutional status of military tribunals, it is helpful to recall their origins. Courts-martial 

are older than the Republic, and they have always been 

understood to be an arm of military command exercising 

executive power, as opposed to independent courts of law 

exercising judicial power. Blackstone declared that the 

court-martial system of the British Empire was based

solely on “the necessity of order and discipline” in the 

military. 1 Blackstone 400. Indeed, Blackstone explained 

that courts-martial exercise a “discretionary power” to 

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“inflict” “punishment . . . extend[ing] to death itself,”

which was “to be guided by the directions of the crown,” in 

express contrast to “the king’s courts” which dispense 

“justice according to the laws of the land.” Id., at 402, 400. 

The crown’s “extensive” power over the military—

exercised, in part, through courts-martial—was “executive

power.” Id., at 408. Many others have echoed the point.

Thus, “[a]t the time of our separation [from Britain], . . . a 

court-martial . . . was not a judicial body. Its functions 

were not judicial functions. It was but an agency of the

power of military command to do its bidding.” Ansell, 

Military Justice, 5 Cornell L. Q. 1, 6 (1919).

When the United States declared its independence and

prepared for war with Britain, the leaders of the new 

Nation were deeply impressed by the British court-martial

system and sought to replicate it. John Adams, who in 

1776 drafted the Continental Articles for the Government 

of the Army, was convinced that it would be “in vain” for

the American patriots to seek “a more complete system of 

military discipline” than the existing British model. 3 The 

Works of John Adams 68 (C. Adams ed. 1851). He and 

Thomas Jefferson therefore proposed adopting “the British 

articles of war, totidem verbis.” Id., at 68–69. The Continental Congress agreed. Id., at 69. And when the Constitution and the Bill of Rights were adopted, no one suggested that this required any alteration of the existing 

system of military justice. On the contrary, as the majority 

recounts, the First Congress continued the existing articles of war unchanged. Ante, at 10. Courts-martial fit 

effortlessly into the structure of government established

by the Constitution. They were instruments of military 

command. Under the Constitution, the President, as the 

head of the Executive Branch, was made the Commander 

in Chief. Art. II, §2. So the role of the courts-martial was 

to assist the President in the exercise of that command 

authority. 

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The ratification of the Constitution and the Bill of 

Rights did naturally raise some constitutional questions.

For example, founding-era courts-martial adjudicated a

long list of offenses, some carrying capital punishment, 

including for crimes involving homicide, assault, and theft.

American Articles of War of 1776, §13, in 2 W. Winthrop,

Military Law and Precedents 1495–1498 (2d ed. 1896)

(Winthrop); see also, e.g., American Articles of War of 

1806, Arts. 39, 51, 54, in id., at 1514–1516. In civilian life, 

a person charged with similar offenses was entitled to

protections, such as trial by jury, that were unavailable in

courts-martial. Moreover, the Constitution entitled such 

persons to judicial process—which courts-martial, lacking

the necessary structural attributes of Article III courts, 

could not afford. So how could they try serious crimes, 

including even capital offenses?

The simple answer goes back to the fundamental nature

of courts-martial as instruments of command. As Blackstone recognized, the enforcement of military discipline,

an essential feature of any effective fighting force, was

viewed as an executive prerogative. It represented the

exercise of the power given to the President as the head of 

the Executive Branch and the Commander in Chief and 

delegated by him to military commanders. Thus, adjudications by courts-martial are executive decisions; courtsmartial are not courts; they do not wield judicial power;

and their proceedings are not criminal prosecutions within

the meaning of the Constitution. As we explained in 

Milligan, the need to maintain military order required

those serving in the military to surrender certain rights 

that they enjoyed in civilian life and to submit to discipline by the military command. Although Milligan confirmed the general rule that “it is the birthright of every

American citizen” to have the Federal Government adjudicate criminal charges against him only in an Article III 

court, 4 Wall., at 119, 122, we also stated that “[e]very one 

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ALITO, J., dissenting 

connected with” “the military or naval service . . . while 

thus serving, surrenders his right to be tried by the civil

courts,” id., at 123. That is why the historical evidence

strongly suggests that the provisions of the Bill of Rights 

were not originally understood to apply to courts-martial. 

See Prakash, The Sweeping Domestic War Powers of

Congress, 113 Mich. L. Rev. 1337, 1346 (2015); Wiener,

Courts-Martial and the Bill of Rights: The Original Practice II, 72 Harv. L. Rev. 266, 290–291, 294 (1958); see also 

1 Winthrop 54, 241, 430, 605; Milligan, supra, at 137–138 

(Chase, C. J., concurring in judgment).4 

Due to reforms adopted in the recent past, it is possible 

today to mistake a military tribunal for a regular court 

and thus to forget its fundamental nature as an instrument of military discipline, but no one would have made 

that mistake at the time of the founding and for many 

years thereafter. Notwithstanding modest reforms in

1874, a court-martial continued into the 20th century to

serve “primarily as a function or instrument of the executive department to be used in maintaining discipline in

the armed forces. It was therefore not a ‘court,’ as that 

term is normally used.” Schlueter, The Court-Martial: An 

Historical Survey, 87 Mil. L. Rev. 129, 150–153, 154–155 

(1980). Hence, Colonel Winthrop—whom we have called 

“the ‘Blackstone of Military Law,’” Reid v. Covert, 354 

U. S. 1, 19, n. 38 (1957) (plurality opinion)—echoed the 

original Blackstone in describing courts-martial as “simply 

instrumentalities of the executive power, provided by Congress for the President as Commander-in-chief, to aid him

in properly commanding the army and navy and enforcing 

—————— 

4 In fact, “for over half a century after the adoption of the Bill of 

Rights, its provisions were never invoked in a military situation save in

a single instance,” and in that case “the denial of its applicability to the

military . . . was approved by no less an authority than the father of the 

Bill of Rights himself.” Wiener, Courts-Martial and the Bill of Rights:

The Original Practice II, 72 Harv. L. Rev. 266, 291 (1958). 

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22 ORTIZ v. UNITED STATES 

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discipline therein.” 1 Winthrop 54. 

Indeed, Brigadier General Samuel T. Ansell, who served

as acting Judge Advocate General from 1917 to 1919,

groused that the American system at the time of World 

War I was still “basically . . . the British system as it

existed at the time of the separation,” and described it as

one “arising out of and regulated by the mere power of

Military Command rather than Law.” Ansell, 5 Cornell 

L. Q., at 1. Around the same time, Edmund Morgan—who

would later help draft the Uniform Code of Military Justice (UCMJ)—declared it “too clear for argument that the 

principle at the foundation of the existing system is the

supremacy of military command. To maintain that principle, military command dominates and controls the proceeding from its initiation to the final execution of the 

sentence. While the actual trial has the semblance of a 

judicial proceeding and is required to be conducted pursuant to the forms of law, . . . [i]n truth and in fact, . . .

courts-martial are exactly what Colonel Winthrop has

asserted them to be.” Morgan, The Existing Court-Martial 

System and the Ansell Army Articles, 29 Yale L. J. 52, 66

(1919).

For instance, until 1920 the President and commanding 

officers could disapprove a court-martial sentence and

order that a more severe one be imposed instead, for 

whatever reason. We twice upheld the constitutionality of 

this practice, Swaim v. United States, 165 U. S. 553, 564– 

566 (1897); Ex parte Reed, 100 U. S. 13, 20, 23 (1879),

which was widely used during World War I, see Wiener, 

supra, at 273. Similarly, until 1920 it was permissible for 

the same officer to serve as both prosecutor and defense

counsel in the same case. West, A History of Command 

Influence on the Military Judicial System, 18 UCLA

L. Rev. 1, 14 (1970). Congress discontinued such practices

by statute, but through the end of World War II, courtsmartial remained blunt instruments to enforce discipline. 

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Schlueter, supra, at 157–158; see also West, supra, at 8, 

n. 18. 

It is precisely because Article II authorizes the President to discipline the military without invoking the judicial power of the United States that that the Constitution 

has always been understood to permit courts-martial to 

operate in the manner described above. Thus, in Dynes v. 

Hoover, 20 How. 65, 79 (1858), we said that the Constitution makes clear that the Government’s power to “tr[y]

and punis[h]” military offenses “is given without any 

connection between it and the 3d article of the Constitution defining the judicial power of the United States;

indeed, that the two powers are entirely independent of 

each other.” 

Moreover, the principle that the Government need not 

exercise judicial power when it adjudicates military offenses accords with the historical understanding of the 

meaning of due process. In the 19th century, it was widely

believed that the constitutional guarantee of due process 

imposed the rule that the Government must exercise its

judicial power before depriving anyone of a core private

right. See generally Nelson, Adjudication in the Political

Branches, 107 Colum. L. Rev. 559, 562, 568–569, and n. 42 

(2007); e.g., Cohen v. Wright, 22 Cal. 293, 318 (1863) (“The

terms ‘due process of law’ have a distinct legal signification, clearly securing to every person . . . a judicial trial . . . 

before he can be deprived of life, liberty, or property”); 

Murray’s Lessee v. Hoboken Land & Improvement Co., 18 

How. 272, 275, 280 (1856) (similar). Yet for most of our 

history we held that “[t]o those in the military or naval

service of the United States the military law is due process.” Reaves v. Ainsworth, 219 U. S. 296, 304 (1911); 

United States ex rel. French v. Weeks, 259 U. S. 326, 335 

(1922); see also Milligan, 4 Wall., at 138 (Chase, C. J.,

concurring in judgment) (“the power of Congress, in the 

government of the land and naval forces and of the militia, 

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24 ORTIZ v. UNITED STATES 

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is not at all affected by the fifth or any other amendment”); Wiener, 72 Harv. L. Rev., at 279 (in the history of 

courts-martial, “of due process of law as a constitutional 

concept, there is no trace”); cf. 1 Blackstone 403–404 

(explaining the basic due process rights soldiers surrender

upon entering the army). 

This understanding of the power wielded by military 

tribunals parallels our current jurisprudence regarding 

the authority of other Executive Branch entities to adjudicate disputes that affect individual rights. An exercise of 

judicial power may be necessary for the disposition of

private rights, including the rights at stake in a criminal 

case. B&B Hardware, 575 U. S., at ___–___ (THOMAS, J., 

dissenting) (slip op., at 12–13); see also Wellness Int’l 

Network, Ltd. v. Sharif, 575 U. S. ___, ___ (2015) (THOMAS, 

J., dissenting) (slip op., at 6). But the adjudication of

public rights does not demand the exercise of judicial 

power. Id., at ___–___ (slip op., at 6–7). Similarly, enforcement of military discipline is not a function that 

demands the exercise of judicial power, either. Dynes, 

supra; Murray’s Lessee, supra, at 284. 

In short, military offenses are “exceptions” to Article III

in the same way that true public rights disputes are exceptions to Article III: the Federal Government can adjudicate either one without exercising its judicial power.

This means that when Congress assigns either of these

functions to an Executive Branch tribunal—whether the 

Patent Trial and Appeal Board, the Court of Claims, or the 

CAAF—that does not imply that the tribunal in question

is exercising judicial power. And the point holds notwithstanding the undoubted fidelity to “the rule of law” that 

such officers bring to their tasks. Ante, at 11, n. 5. Contrary to the majority’s odd suggestion, acting “in strict

compliance with legal rules and principles” is not a 

uniquely judicial virtue. Ibid. The most basic duty of the

President and his subordinates, after all, is to “take Care 

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that the Laws be faithfully executed.” Art. II, §3 (emphasis added). Hence, acting with fidelity to law is something 

every executive officer is charged with doing, but those

officers remain executive officers all the same. For that 

reason, and in light of the history recounted above, the 

majority’s suggestion that “[t]he military justice system’s 

essential character” is “judicial,” and has been “maintained” as such since the “very first Congress,” ante, at 8, 

10, simply does not square with the actual operation of the 

court-martial system or the consensus view of its place in

our constitutional scheme. 

C 

In response to this history, the majority tries to enlist 

Colonel Winthrop as an ally, ante, at 10–11, and n. 5, but 

Winthrop had a firmer grasp than the majority on the 

distinction between functions that can be described as 

“judicial” in a colloquial sense and functions that represent an exercise of “judicial power” in the constitutional 

sense. Thus, while Winthrop observed that courts-martial

resemble constitutional courts in certain respects, he

made those observations “[n]otwithstanding that the 

court-martial is only an instrumentality of the executive

power having no relation or connection, in law, with the 

judicial establishments of the country.” 1 Winthrop 61 

(emphasis added). Nor was Winthrop the only military 

commentator who employed such terms casually from time

to time. E.g., W. De Hart, Observations on Military Law 6 

(1859) (describing an officer’s authority to appoint members of a court-martial as “a legislative power”); id., at 14 

(describing courts-martial as “being clothed with judicial

powers”). Indeed, our own Court has frequently described

functions as “judicial” in a colloquial sense, despite knowing they are executive in the constitutional sense. E.g., 

Smelting Co. v. Kemp, 104 U. S. 636, 640 (1882) (Land 

Department officers “exercise a judicial function” although 

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26 ORTIZ v. UNITED STATES 

ALITO, J., dissenting 

they are “part of the administrative and executive branch

of the government”); Murray’s Lessee, 18 How., at 280– 

281; Vallandigham, 1 Wall., at 253; Arlington, 569 U. S., 

at 304–305, n. 4. 

The majority’s reliance on Attorney General Bates is

even weaker. Ante, at 10. Bates wrote a memo to President Lincoln opining that when the President acts to 

“approve and confirm the sentence of a court martial,” or

to “revis[e] its proceedings,” Congress intended him to “act 

judicially—that is, [to] exercise the discretion confided to 

him within the limits of law.” 11 Op. Atty. Gen. 20–21 

(1864). Bates was arguing that a President could not 

revoke a court-martial sentence after it had been carried 

into execution. He was describing an implicit limit on the 

power of the President under the system of military justice

established by statute. His reference to certain Presidential actions as “judicial” had nothing to do with judicial 

review, and in Vallandigham, supra, at 254, we rejected 

the idea that “the President’s action” in approving a courtmartial decision is an exercise of judicial power that we 

can review directly.

In sum, the majority has done nothing to undermine the 

overwhelming historical consensus that courts-martial

permissibly carry out their functions by exercising executive rather than judicial power. 

III 

What remains of the majority’s analysis boils down to

the assertion that courts-martial “resemble” conventional 

courts, ante, at 9, indeed, that “court-likeness” is the 

dispositive issue, ante, at 16 (emphasis deleted). 

The first thing to be said in response to this theory is 

that we have “never adopted a ‘looks like’ test to determine if an adjudication” involves an exercise of judicial 

power. Oil States, 584 U. S., at ___ (slip op., at 15). On 

the contrary, we have frequently repudiated this mode of 

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analysis as utterly inadequate to police separation-ofpowers disputes. See, e.g., INS v. Chadha, 462 U. S. 919, 

953, n. 16 (1983); Arlington, supra; Gordon, 117 U. S. 

Appx., at 699. In fact, of all the cases on which the majority 

relies, not a single one suggests that our appellate jurisdiction turns on the extent to which the underlying tribunal looks like a court. 

In any event, the majority’s “looks like” test fails on its 

own terms. It is certainly true that today’s military justice

system provides many protections for the accused and is 

staffed by officers who perform their duties diligently, 

responsibly, and with an appropriate degree of independence. Nothing I say about the current system should be

interpreted as denigrating that system or as impugning 

the dedication, professionalism, and integrity of the officers who serve in it, notwithstanding the majority’s insistence to the contrary. Ante, at 11, n. 5. As explained

above, military officers’ undoubted fidelity to law has

nothing to do with the court-martial system’s status under

our Constitution. That status is what my point here 

concerns. And that status has never changed.

Today’s court-martial system was put in place in 1950,

when Congress enacted the UCMJ in response to criticism 

following World War II. 64 Stat. 108. Among its innovations, the UCMJ subjected courts-martial to more elaborate procedural rules than ever before. It also created a 

system of internal appellate tribunals within the military 

chain of command. Those entities—which we now call the 

Army, Navy-Marine Corps, Air Force, and Coast Guard 

Courts of Criminal Appeals and the Court of Appeals for

the Armed Forces—did not exist before 1950. Congress

augmented this system in 1983, for the first time in American history providing for direct Supreme Court review of

certain decisions of the highest military tribunal. 97 Stat. 

1405–1406; 10 U. S. C. §867a; 28 U. S. C. §1259. 

Such reforms, as I have indicated, are fully consistent 

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28 ORTIZ v. UNITED STATES 

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with the President’s overriding duty to “faithfully execut[e]” the laws. Art. II, §3. Hence, even after Congress 

passed the UCMJ, we continued to recognize that the

court-martial system “has always been and continues to be 

primarily an instrument of discipline,” O’Callahan v. 

Parker, 395 U. S. 258, 266 (1969), and that “courts-martial 

are constitutional instruments to carry out congressional 

and executive will,” Palmore, 411 U. S., at 404; see also, 

e.g., Reid, 354 U. S., at 36 (plurality opinion); United 

States ex rel. Toth v. Quarles, 350 U. S. 11, 17 (1955); 

Chappell v. Wallace, 462 U. S. 296, 300 (1983). For that 

reason, even if the majority were to begin its analysis in 

1950, and to confine it to the CAAF—which the majority 

has not done—it would still be incorrect to perceive anything other than executive power at issue here.

An examination of the CAAF confirms this point. The 

CAAF’s members are appointed by the President for a

term of years, and he may remove them for cause, 10

U. S. C. §§942(b), (c), under a standard we have recognized 

as “very broad,” Bowsher v. Synar, 478 U. S. 714, 729 

(1986). These and other provisions of the UCMJ “make 

clear that [the CAAF] is within the Executive Branch.” 

Edmond v. United States, 520 U. S. 651, 664, n. 2 (1997).

For instance, the CAAF is subject to oversight by the 

Secretaries of Defense, Homeland Security, and the military departments, and its members must meet annually to 

discuss their work with members of the military and 

appointees of the Secretary of Defense. 10 U. S. C. §946. 

The CAAF must review any case a Judge Advocate General orders it to hear. §867(a)(2). And, contrary to the

majority’s assertion, the CAAF’s decisions are not “final 

(except if we review and reverse them).” Ante, at 18. 

In fact, in the most serious cases that the CAAF reviews—those in which a court-martial imposes a sentence

of death or dismissal from the Armed Forces—the CAAF’s 

judgment cannot be executed until the President, the 

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ALITO, J., dissenting 

relevant branch Secretary, or one of his subordinates 

approves it. 10 U. S. C. §§871(a), (b). That is why the

UCMJ provides that “[a]fter [the CAAF] has acted on a 

case,” the “convening authority [shall] take action in accordance with that decision,” “unless there is to be further 

action by the President or the Secretary concerned.” 

§867(e) (emphasis added). In such cases the “proceedings, 

findings, and sentences” of the court-martial system—

including the CAAF’s “appellate review”—are not final 

until approved. §876.5 Indeed, even if our Court affirms 

such a judgment, it cannot be executed until the relevant

military authority approves it—a requirement that is not 

subject to any timeframe or substantive standards. See 

Manual for Courts-Martial, United States Rule for CourtsMartial 1205(b) (2016).6 

Such revisory powers have always been a feature of the

court-martial system. 1 Winthrop 683. And because the 

UCMJ preserves the chain of command’s historic revisory 

power over the CAAF’s most significant decisions, there is 

no way for us to conclude that the CAAF is “judicial”

under any known definition of that term. And it should 

not matter that Ortiz’s own sentence is not subject to 

—————— 

5Thus, JUSTICE THOMAS is mistaken when he asserts that “[t]he Executive Branch has no statutory authority to review or modify the 

CAAF’s decisions.” Ante, at 7 (concurring opinion). And anyway, even

if the CAAF’s decisions were final, it would not imply that they are 

judicial. Insofar as the Government can adjudicate military offenses

without exercising its judicial power, finality would be equally consistent with executive as well as judicial power. 6For example, in 1996 we granted certiorari to the CAAF and affirmed the court-martial conviction and capital sentence of Dwight

Loving. Loving v. United States, 517 U. S. 748 (1996). Yet our judgment could not be deemed final—and hence could not be carried out— 

until the President approved it. Neither President Clinton nor President Bush would do so. Loving v. United States, 68 M. J. 1, 3 (CAAF 

2009). President Obama eventually commuted the sentence to life 

without parole, https://www.justice.gov/pardon/obama-commutations 

(as last visited June 21, 2018). 

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approval, just as it did not matter that the Court of Claims

decision at issue in Gordon was not subject to review by

the Treasury Secretary. This point is elementary. At 

least since Hayburn’s Case, 2 Dall., at 411, n., 413, n., it 

has been firmly established that it is “radically inconsistent” with the “judicial power” for any court’s judgments, “under any circumstances,” to “be liable to a reversion, or even suspension,” by members of the Executive or

Legislative Branches. Indeed, “[t]he award of execution is

a part, and an essential part of every judgment passed by

a court exercising judicial power.” Gordon, 117 U. S. 

Appx., at 702; Plaut v. Spendthrift Farm, Inc., 514 U. S. 

211, 218–219 (1995). 

Simply put, the CAAF’s Executive Branch status is

more than a label. The CAAF is what we have always 

thought it to be: an agent of executive power to aid the 

Commander in Chief. It follows that our appellate jurisdiction does not permit us to review its decisions directly.

That conclusion is unaffected by Congress’s decision to 

give greater procedural protections to members of the

military. Nor would the conclusion be altered if Congress

imported into the military justice system additional rights 

and procedures required in the civilian courts. If Congress

wants us to review CAAF decisions, it can convert that 

tribunal into an Article III court or it can make CAAF 

decisions reviewable first in a lower federal court— 

perhaps one of the regional Courts of Appeals or the Federal Circuit—with additional review available here. But 

as long as the CAAF retains its current status as an Executive Branch entity, Congress cannot give our Court jurisdiction to review its decisions directly. 

* * * 

The arguments in this case might appear technical, but 

important interests are at stake. The division between 

our Court’s original and appellate jurisdiction provoked 

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ALITO, J., dissenting 

extended and impassioned debate at the time of the founding. See Amar, Marbury, Section 13, and the Original 

Jurisdiction of the Supreme Court, 56 U. Chi. L. Rev. 443,

468–478 (1989). The Framers well understood that the 

resolution of this dry jurisdictional issue would have 

practical effects, ibid., and in a similar vein, the Court’s 

holding that the CAAF exercises something akin to judicial power will have unavoidable implications for many 

important issues that may arise regarding the operation of 

the military justice system, not to mention judicial review 

of the many decisions handed down by administrative

agencies.

The majority disclaims the latter possibility, ante, at 19, 

but its effort is halfhearted at best. In reality there is no

relevant distinction, so far as our appellate jurisdiction is

concerned, between the court-martial system and the

“other adjudicative bodies in the Executive Branch” that

the majority tells us not to worry about. Ibid. The majority 

cites the “judicial character . . . of the court-martial 

system,” as well as its “constitutional foundations and 

history,” ibid., but as I have explained, the constitutional

foundations, history, and fundamental character of military tribunals show that they are Executive Branch entities that can only permissibly exercise executive power—

just like civilian administrative agencies. 

The Founders erected a high wall around our original 

jurisdiction, deliberately confining it to two classes of 

cases that were unlikely to touch the lives of most people. 

See The Federalist No. 81, at 488. Today’s decision erodes

that wall. Because the Court ignores both the wisdom of 

the Founders, the clear, consistent teaching of our precedents, and the unambiguous text of the Constitution, I 

respectfully dissent. 

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