The Constitution’s Appointments Clause provides that the President, “by and with the Advice and Consent of the Senate, shall appoint . . . Officers of the United States,” except 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.”1 The Constitution thus creates a sphere of shared responsibility in staffing the federal government.2 But it also carves out instances in which the burden of joint responsibility can be streamlined: the appointments of “inferior officers.” The text on its face contains several ambiguities; for example, it fails to define what makes an officer3 “inferior.” And it is silent about the extent to which Congress may add duties to an existing office, whether appointed officers can take on different roles without reappointment, and who can remove appointed officers and on what grounds. Last June, in In re al-Nashiri,4 the D.C. Circuit grappled with these ambiguities and was ambivalent on the question of whether inferior officers may be reassigned to fulfill principal officer duties without reappointment. But to avoid compromising the interests protected by the Appointments Clause, the relevant precedent should be read narrowly.
In the wake of the September 11 attacks, President George W. Bush instituted military commissions to try suspected terrorists.5 The Military Commissions Act of 20066 (MCA) subsequently prescribed the structure and procedures of the commissions and established the Court of Military Commissions Review (CMCR), an intermediate appellate court whose decisions are reviewed by the D.C. Circuit.7 President Obama’s push for reform of Guantánamo resulted in amendments to the MCA in 2009, which expanded the authority of the CMCR to review all matters of fact and law8 and altered the court’s composition to include civilian judges in addition to military judges.9 Civilian CMCR judges are appointed like Article III judges: by the President with the advice and consent of the Senate.10 Military judges are not. Instead, the CMCR’s military judges are commissioned military officers serving as appellate judges in the courts-martial context who are then reassigned to the CMCR by the Secretary of Defense.11
Abd al-Rahim Hussein Muhammed al-Nashiri (Nashiri) is a Guantánamo Bay detainee and alleged member of al-Qaeda accused of terrorism and related war crimes, including masterminding the bombings of the U.S.S. Cole and a French oil tanker, the M/V Limburg.12 In 2011, the Defense Department commenced military commission proceedings against Nashiri.13 In 2014, the military trial judge dismissed the M/V Limburg charges.14 The Government appealed the order.15 The appeal came before a CMCR panel of one civilian and two military judges.16 Nashiri moved to recuse the military judges, arguing that they were assigned to the CMCR in violation of the Appointments Clause, and that the requirement of “good cause” or “military necessity” to remove the judges interfered with the Commander-in-Chief Clause.17 When the CMCR denied his motion, Nashiri petitioned the D.C. Circuit for a writ of mandamus to force the recusal of the military judges.18
The D.C. Circuit denied the mandamus petition.19 Writing for the panel, Judge Henderson20 concluded that, while the court indeed had the power to issue a writ of mandamus, to do so would not be proper.21 She explained that mandamus is typically appropriate only if three conditions are satisfied: (1) there are “no other adequate means to attain the relief” sought;22 (2) the petitioner shows that his “right to issuance of the writ is clear and indisputable”; and (3) the issuing court is “satisfied that the writ is appropriate under the circumstances.”23 The court determined that Nashiri failed to meet the first two mandamus requirements,24 and rejected Nashiri’s urging that it use advisory mandamus,25 a species of the writ specifically for issues of first impression or novel issues of law.26 The court cited both a trend against the use of advisory mandamus and its inapplicability here because, according to the court, advisory mandamus requires the petitioner to show irreparable harm just like traditional mandamus does.27
Critically, the court did not stop at the first mandamus factor, although that would have been dispositive. Instead, the court dove into an analysis of Nashiri’s inability to show a “clear and indisputable” right to mandamus by examining the merits of Nashiri’s Appointments Clause argument.28 The MCA contemplates two modes of filling the seats of the CMCR: (1) “[t]he Secretary of Defense may assign persons who are appellate military judges,”29 and (2) “[t]he President may appoint, by and with the advice and consent of the Senate, additional judges.”30 Nashiri argued that the statute’s first appointment mechanism is unconstitutional because CMCR judges are principal officers and, as such, their appointments are not eligible to be vested in a head of a department like the Secretary of Defense.31
Responding to Nashiri’s argument that CMCR judges are principal officers, Judge Henderson discussed two analogs that appear in the federal case law: the Court of Criminal Appeals (CCA) judges in Weiss v. United States,32 revisited in Edmond v. United States,33 and the Copyright Royalty Judges in Intercollegiate Broadcasting System, Inc. v. Copyright Royalty Board.34 The court looked to two indicators of inferiority: direct supervision through review of the officers’ decisions and indirect supervision through removability.35 The court noted that while the CMCR judges are directly supervised by the D.C. Circuit, not by the executive branch, an at-will removal provision may render an officer inferior even absent direct executive supervision.36 But the CMCR military judges are removable by the Secretary of Defense only for “good cause” or “military necessity.”37 The court suggested that this case would nevertheless be uncertain because the “military necessity” removal provision might provide enough discretion to the Secretary of Defense to act as a functional stand in for at-will removal.38
But even if it were clear that CMCR judges are principal officers, the court argued, commissioned officers already appointed by the President and confirmed by the Senate might not need reappointment to the CMCR.39 This was the focus of Weiss. There, the Supreme Court determined that officers reassigned to the CCA did not need a second appointment, in part because their duties on the CCA were “germane” to their roles as commissioned military officers.40 Although the D.C. Circuit acknowledged arguments to the contrary, it chose to leave open the possibility that Weiss might apply to military judges and that, therefore, such judges might not require CMCR reappointment.41
Ultimately, the court found that resolving Nashiri’s challenge would require it to answer novel Appointments Clause questions.42 According to the court, the existence of those questions undermined the “clear and indisputable” right to relief required for mandamus.43 Finally, the court suggested that the political branches could stave off Appointments Clause challenges by simply renominating and reconfirming the judges, whether or not this was constitutionally required.44
The court’s analysis of whether CMCR judges are principal or inferior officers, the key question in the case, suggested that the court would find the CMCR judges to be principal officers, even though that answer was not sufficiently “clear and indisputable” to be the basis for a grant of mandamus. Perhaps because the analysis tended toward that conclusion, the court then turned to why, even if the CMCR judges are principal officers, Weiss might make reappointment unnecessary. While its discussion of Weiss highlighted the gaps that case left open, Weiss should be limited to reassignments to inferior-officer duties and therefore should not apply to the CMCR judges. If the CMCR judges are inferior officers, the Secretary may appoint them. But if they are principal officers, Weiss should not be extended to potentially weaken the Appointments Clause’s protections.
Though the inferior-principal distinction is murky, the Nashiri court’s opinion suggests that CMCR judges are principal officers. The 1997 follow-up to Weiss — Edmond v. United States — dealt with the appointment of civilian judges to the CCA.45 According to Edmond, an inferior officer is one whose work is directed and supervised by a principal officer.46 CMCR judges are ostensibly “supervised” in two ways: their decisions are reviewable by the D.C. Circuit,47 and the Secretary of Defense may remove them for “good cause” or “military necessity.”48 But Edmond was clear that supervision must reside within the executive branch.49 The Edmond Court also noted that removal “is a powerful tool for control.”50 The military judges in Edmond were inferior officers, removable at will, and supervised within the executive branch by the Court of Appeals for the Armed Forces (CAAF).51 The Nashiri court’s claim that CMCR judges might be inferior officers despite supervision outside of the executive branch and lack of at-will removal stems from the MCA’s “military necessity” removal provision. While courts are likely to give substantial, if not nearly unlimited, discretion to the executive branch to determine military necessity,52 it is nevertheless unconvincing that military necessity is equivalent to at-will removal. Even if the executive would always prevail in court, the provision would require the Secretary of Defense to defend removal decisions on grounds unrelated to the executive’s right to direct executive branch officers. At-will removal itself can be thought of as a stand in for executive branch supervision required by the Appointments Clause,53 and allowing quasi-at-will removal as a further stand in for at-will removal threatens accountability and may impede the President’s duty to execute the law.
After finding that the CMCR judges might be principal officers, the D.C. Circuit applied Weiss, arguing that its “germaneness” test might cure an inferior-to-principal reassignment.54 As Justice Souter’s concurrence in Weiss noted, though, this arrangement would threaten the dual constitutional objectives of protecting against any branch’s self-aggrandizement and providing the public a clear line of accountability.55 Although Weiss itself was not explicitly limited to inferior-to-inferior reassignments, it should be limited in exactly that way.
The complexity of Weiss warrants a brief review. The Weiss Court found the reassignment at issue in that case to be constitutional for two reasons. First, the Court found no evidence that the assignment mechanism threatened either of the values — accountability and anti-self-aggrandizement — that the Appointments Clause seeks to protect.56 Second, although the Court declined to hold that the principle was constitutionally required,57 it nevertheless engaged in the Shoemaker v. United States58 “germaneness” analysis.59 Because all commissioned military officers participate in the military justice system in a variety of ways, judicial duties were “germane” to their original appointment.60 Accordingly, the Court unanimously held that reassignment as a CCA judge did not require reappointment.61
But, as Judge Henderson noted, “Weiss is more complicated . . . than the Court’s unanimity might ordinarily suggest.”62 Most importantly, Justice Souter’s concurrence argued that it was critical to the analysis that CCA judges are inferior officers because an inferior-to-principal reassignment “would raise a serious Appointments Clause problem.”63 Justice Souter argued that allowing inferior-to-principal reassignment would abrogate the constitutional mandate that the President and Congress jointly staff critical executive branch positions.64 The difficulty in applying Weiss to the CMCR judges thus circles back to the critical inferior-principal officer distinction. Weiss dealt with CCA judges, who were later determined to be inferior officers in Edmond. But at the time of Weiss, their inferior status was uncertain, and the parties to Weiss did not thoroughly brief or argue the distinction. Because the issue was not essential, the majority avoided it altogether.65 Nevertheless, reading Weiss to extend to principal officers likely violates the Constitution for the reasons discussed in Justice Souter’s concurrence.
While the D.C. Circuit rejected mandamus, it seemed to believe that there was a significant constitutional defect.66 The court’s analysis is clearly addressed to the executive branch, urging it to fix the appointments problem so that final judgments are not subject to collateral attack.67 And the executive branch has done just that. Three days after the opinion issued, the government prosecutor motioned to stay the proceedings at the CMCR “while it explore[d] options for re-nomination and re-confirmation of the military judges.”68 According to a motion to extend the stay, “the re-nomination and re-confirmation process” is “underway.”69 Thus, this case is unlikely to give the Supreme Court the opportunity to clarify Weiss and refute the D.C. Circuit’s problematic assertion that Weiss’s reappointment analysis might apply to inferior officers assuming principal roles. Given the rarity with which appointments questions reach the Court, perhaps advisory mandamus would have been appropriate.70