Dalmazzi v. United States (16-961)

argument 16-961

Dalmazzi v. United States

Supreme Court of the United States 1h 5m 7 speakers 8 chapters transcribed 6 days ago official recording ↗

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What is the central legal issue regarding the dual‑office holding ban in Dalmazzi v. United States?

John G. Roberts 0:00

We'll hear argument next in case sixteen nine six one Delmazzi versus United States. and the consolidated cases. Mr Vladick.

Paul D. Clement 0:11

Mr Chief Justice, and may it please the Court, at the heart of these complicated cases is the simple and well settled distinction between federal officers who are appointed to a second office and those who have been assigned to exercise additional duties germane to their original appointment, who hold one office, not two. The dual office holding ban incorporates this distinction, prohibiting active duty military officers from holding a second office that requires nomination by the President and confirmation by the Senate, absent express congressional authorization, while generally allowing military officers to be assigned to exercise the duties of such positions. That is why when the four judges at issue here began to serve as appointed judges on the CMCR, the Court of Military Commission review, it violated the dual office holding ban and disqualified them from hearing the petitioners' appeals.

Paul D. Clement 1:07

Congress created the Court of Military Commission Review in two thousand and six as part of the Military Commissions Act, and the initial plan for the CMCR was modelled very much on the then existing courts of criminal appeals in the court martial system, right down to how the judges were to be selected. So in the original language of the two thousand six Act, judges could be assigned by the Secretary of Defense to the CMCR, and those judges could either be civilians or military officers. In two thousand and nine, when Congress uh turned around the CMCR, when Congress decided to make it more independent of the executive branch, one of the measures it pursued was to bifurcate that provision and to break out the assignment of military officers and the appointment of, quote, additional judges by the President with the advice and consent of the Senate.

Paul D. Clement 2:01

And it's our submission that when Congress did so, it created a civil office and it did not expressly authorize military officers to hold that civil office. That's why when the DC circuit suggested in the Nashiri case that there is a constitutional problem with the assignment of military officers to the CMCR, and the President responded by appointing. five of those officers, four of whom are relevant here, to that court, it triggered the dual office holding ban and in our view disqualified those officers from continuing to serve on the C City.

Ruth Bader Ginsburg 2:34

It was the suggestion of the D C circuit. that the constitutional problem would be cured by appointing these judges to the CMCR. Yeah. gave you the basis for your lawsuit. In other words, When Congress said it authorized C C A judges to serve on the C M C R And said the Secretary of Defence may assign persons. Who hold military positions, you had no case, right?

Paul D. Clement 3:04

We certainly would have no case under the dual office holding ban, Justice Ginsburg, for the simple reason that when military officers are assigned, whether to the CCAs or to the CMCR, they don't hold a second office in the first place. Um there of course was the appointments clause challenged to those assignments, but yes, there would be no problem under this statute in that circumstance.

Ruth Bader Ginsburg 3:24

And you say the consequence No. Because they are appointed rather than A sign. is the case. Not only can no longer serve on the sea. M C R but they're out of the service entirely. That's rather draconian to these people Who were just doing what they were. assigned to do. And now toll Sorry, you're out of the military, although you spent Nineteen years here, too too bad.

Paul D. Clement 3:58

So just to clarify, they can still serve on the CMCR, right? That we are not challenging the appointments to the CMCR. Our argument is simply that that converted these officers into civilians. But to justify

Ruth Bader Ginsburg 4:09

but you are saying that how you they would have to be civilians on the CMCR. That's correct. Because you say that they lose their military and to be civilians they'd have to be reappointed.

Paul D. Clement 4:20

So we don't dispute that it is a severe consequence, Justice Ginsburg, but we would just suggest that it was the consequence Congress wrote into the statute in eighteen seventy.