AI Case Brief
Generate an AI-powered case brief with:
đKey Facts
âď¸Legal Issues
đCourt Holding
đĄReasoning
đŻSignificance
Estimated cost: $0.10â$0.50 per brief, depending on opinion length and retries
Full Opinion
(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. 16â1423. Argued January 16, 2018âDecided 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 in- tegrated âcourt-martial systemâ 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 life- time 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 deci- sions 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 âcourt of recordâ composed of five civilian judges, 10 U. S. C. §941, which must review certain weighty cases and may review others. Fi- nally, 28 U. S. C. §1259 gives this Court jurisdiction to review the CAAFâs 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 yearsâ imprisonment and a dishonorable dis- charge. An Air Force CCA panel, including Colonel Martin Mitchell, affirmed that decision. The CAAF then granted Ortizâs 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 author- ity to âassign [officers] who are appellate military judgesâ to serve on that court. 10 U. S. C. §950f(b)(2). To moot a possible constitutional 2 ORTIZ v. UNITED STATES Syllabus problem with the assignment, the President (with the Senateâs advice and consent) also appointed Judge Mitchell to the CMCR pursuant to §950f(b)(3). Shortly thereafter, Judge Mitchell participated in Ortizâs CCA appeal. Ortiz claimed that Judge Mitchellâs 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 âotherwise authorized by law,â an active-duty military officer âmay not hold, or exercise the functions of,â certain âcivil office[s]â 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 CAAFâs decisions. The judicial character and constitutional pedigree of the court-martial system enable this Court, in exercising appellate jurisdiction, to re- view the decisions of the court sitting at its apex. An amicus curiae, Professor Aditya Bamzai, argues that cases de- cided by the CAAF do not fall within Article IIIâs grant of appellate jurisdiction to this Court. In Marbury v. Madison, 1 Cranch 137, Chief Justice Marshall explained that âthe essential criterion of ap- pellate jurisdictionâ is âthat it revises and corrects the proceedings in a cause already instituted, and does not create that cause.â Id., at 175. Here, Ortizâs petition asks the Court to ârevise and correctâ the latest decision in a âcauseâ that began in and progressed through mil- itary justice âproceedings.â Unless Chief Justice Marshallâs test im- plicitly exempts cases instituted in a military court, the case is now appellate. There is no reason to make that distinction. The military justice systemâs 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 ârest on the same basis, and are surrounded by the same considerations[, as] give conclusiveness to the judgments of other le- gal tribunals.â Ex parte Reed, 100 U. S. 13, 23. Accordingly, such judgments have res judicata and Double Jeopardy effect. The juris- diction and structure of the court-martial system likewise resemble those of other courts whose decisions this Court reviews. Courts- martial 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 Cite as: 585 U. S. ____ (2018) 3 Syllabus constitutional foundation of courts-martial is not in the least inse- cure. See Dynes v. Hoover, 20 How. 65, 79. The court-martial is older than the Constitution, was recognized and sanctioned by the Fram- ers, and has been authorized here since the first Congress. Through- out that history, courts-martial have operated as instruments of mili- tary justice, not mere military command. They are bound, like any court, by the fundamental principles of law and the duty to adjudi- cate 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 Courtâs appellate jurisdiction, however, covers more than the de- cisions of Article III courts. This Court can review proceedings of state courts. See Martin v. Hunterâs 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 jurisdic- tion over decisions of non-Article III territorial courts, see United States v. Coe, 155 U. S. 76, and it has uncontroversially exercised ap- pellate 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 dele- gation, have deep historical roots, and perform an inherently judicial role. Thus, in Palmore, this Court viewed the military, territories, and District as âspecialized areas having particularized needsâ in which Article III âgive[s] way to accommodate plenary grants of pow- er to Congress.â 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 Courtâs appellate jurisdiction. He first relies on the fact that territo- rial 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 Courtâs precedentsâEx parte Vallandigham, 1 Wall. 243, and Mar- bury, 1 Cranch 137âshow that the Court may never accept appellate jurisdiction from any person or body within that branch. As to Val- landigham, that case goes to show only that not every military tribu- nal is alike. Unlike the military commission in Vallandigham, which lacked âjudicial character,â 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 Madisonâs failure to transmit William Marburyâs commission was not a judicial decision by a court. Here, by contrast, three constitutional- ly rooted courts rendered inherently judicial decisions. Pp. 5â19. 4 ORTIZ v. UNITED STATES Syllabus 2. Judge Mitchellâs simultaneous service on the CCA and the CMCR violated neither §973(b)(2)(A) nor the Appointments Clause. Pp. 19â25. (a) The statutory issue turns on two interlocking provisions. Sec- tion 973(b)(2)(A) is the statute that Ortiz claims was violated here. It prohibits military officers from âhold[ing], or exercis[ing] the func- tions of,â certain âcivil office[s]â in the federal government, â[e]xcept as otherwise authorized by law.â Section 950f(b) is the statute that the Government claims âotherwise authorize[s]â Judge Mitchellâs CMCR service, even if a seat on that court is a covered âcivil office.â It provides two ways to become a CMCR judge. Under §950f(b)(2), the Secretary of Defense âmay assignâ qualified officers serving on a CCA to be judges on the CMCR. Under §950f(b)(3), the President (with the Senateâs advice and consent) âmay appointâ personsâ whether officers or civilians is unspecifiedâto CMCR judgeships. Ortiz argues that Judge Mitchell was not âauthorized by lawâ 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 Presidentâs later appointment made no difference. It did not negate the Secretaryâs 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 Secretaryâs assignment and the Presidentâs appointment. And because §950f(b)(2) expressly au- thorized the Secretaryâs assignment, Judge Mitchellâs CMCR service could not run afoul of §973(b)(2)(A)âs general rule. Pp. 20â23. (b) Ortiz also raises an Appointments Clause challenge to Judge Mitchellâs 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 princi- pal 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 Ap- pointments 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 Mitchellâs CMCR service would result in âundue influenceâ on his CCA colleagues. Pp. 23â25. 76 M. J. 125 and 189, affirmed. KAGAN, J., delivered the opinion of the Court, in which ROBERTS, Cite as: 585 U. S. ____ (2018) 5 Syllabus C. J., and KENNEDY, THOMAS, GINSBURG, BREYER, and SOTOMAYOR, JJ., joined. THOMAS, J., filed a concurring opinion. ALITO, J., filed a dis- senting opinion, in which GORSUCH, J., joined. 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, Wash- ington, 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. 16â1423 _________________ 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 serv- ing as a judge on both an Air Force appeals court and the Court of Military Commission Review (CMCR). The peti- tioner, an airman convicted of crimes in the military jus- tice system, contends that the judgeâs holding of dual offices violated a statute regulating military service, as well as the Constitutionâs 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 deci- sions of the CAAF, even though it is not an Article III court. We then affirm the CAAFâs determination that the judgeâs 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 tri- bunals overlaps substantially with that of state and federal 2 ORTIZ v. UNITED STATES Opinion of the Court 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 courts- martial are now subject to several tiers of appellate re- view, thus forming part of an integrated âcourt-martial systemâ that closely resembles civilian structures of jus- tice. 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 inno- cence 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, incarcera- tion for more than one year, or death. See §§866(a)â(c). Atop the court-martial system is the CAAF, a âcourt of recordâ made up of five civilian judges appointed to serve 15-year terms. §941; see §§942(a)â(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 CAAFâs decisions by writ of certiorari. Petitioner Keanu Ortizâs case has run the gamut of this legal system. Ortiz, an Airman First Class in the Air Force, was charged with knowingly possessing and dis- tributing 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 yearsâ imprisonment and a dishonorable discharge. On appeal, an Air Force CCA panel, including Colonel Martin Mitch- Cite as: 585 U. S. ____ (2018) 3 Opinion of the Court ell, summarily affirmed the court-martialâs decision. The CAAF then granted Ortizâs 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 Mitchellâs 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 âassign [officers] who are appellate military judgesâ 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 Appoint- ments 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 âput [it] to restâ 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 judgesâMitchell, among themâ under an adjacent statutory provision authorizing him to âappoint, by and with the advice and consent of the Sen- ate,â CMCR judges. §950f(b)(3). The Senate then con- firmed those nominations. About a month later, Judge Mitchellânow wearing his CCA robeâparticipated in the panel decision rejecting Ortizâs appeal. In Ortizâs view, Judge Mitchellâs appointment to the CMCR barred his continued service on the CCA under ââââââ 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, 595â597 (2006) (plurality opinion). 4 ORTIZ v. UNITED STATES Opinion of the Court 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 âotherwise authorized by law,â an active-duty military officer like Judge Mitchell âmay not hold, or exercise the functions of,â certain âcivil office[s]â in the Federal Gov- ernment. §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. 16â0671 (CAAF), pp. 17â22. And the proper remedy, Ortiz argued, was to terminate Judge Mitchellâs military service effective the date of his CMCR appointment and void all his later ac- tions as a CCA judgeâincluding his decision on Ortizâs appeal. See ibid. Second and independently, Ortiz relied on the Appointments Clause to challenge Judge Mitchellâs dual service. See id., at 27â40. The premise of his argu- ment was that CMCR judges are âprincipal officersâ under that Clause, whereas CCA judges (as this Court has held) are âinferior officers.â 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 Mitch- ell had done just that, Ortiz concluded, the CCAâs 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 statu- tory 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 ter- minating the judgeâs military service or voiding actions he took on the CCA. See id., at 192. Turning next to the constitutional issue, the CAAF âs[aw] no Appointments Cite as: 585 U. S. ____ (2018) 5 Opinion of the Court Clause problem.â 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: âWhen Colonel Mitchell sits as a CCA judge, he is no different from any other CCA judge.â Ibid. The CAAF thus upheld the CCAâs affirmance of Ortizâs convictions. This Court granted Ortizâs 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 CAAFâs decisions. Congress has explicitly authorized us to undertake such review in 28 U. S. C. §1259. See ibid. (âDecisions of the [CAAF] may be re- viewed by the Supreme Court by writ of certiorariâ). 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 be- yond what Article III allows. That position is a new one to this Court: We have previously reviewed nine CAAF deci- sions without anyone objecting that we lacked the power to do so.3 Still, we think the argument is serious, and ââââââ 2 At the same time we issued a writ of certiorari in this case, we granted and consolidated petitions in two related casesâDalmazzi v. United States, No. 16â961, and Cox v. United States, No. 16â1017. 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. 3 See United States v. Denedo, 556 U. S. 904 (2009); Clinton v. Gold- smith, 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 6 ORTIZ v. UNITED STATES Opinion of the Court deserving of sustained consideration. That analysis leads us to conclude that the judicial character and constitu- tional 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 contestâ 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 âaffecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party.â §2, cl. 2. That list, of course, does not embrace Ortizâs case, or any other that the CAAF considers. And ever since Mar- bury 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 174â180. 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 Ortizâs. The real issue is whether our appellate jurisdiction can cover such cases. Article IIIâs sole reference to appellate jurisdiction provides no apparent barrier, but also no substantial guidance: Following its specification of this Courtâs original jurisdiction, Article III says only that in all âother Casesâ that the Constitution comprehends (in- cluding cases, like this one, involving federal questions), âthe supreme Court shall have appellate Jurisdiction, both as to Law and Fact.â §2, cl. 2. The Constitutionâs failure ââââââ (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). Cite as: 585 U. S. ____ (2018) 7 Opinion of the Court to say anything more about appellate jurisdiction leads Bamzai to focus on Chief Justice Marshallâs opinion in Marbury. See Brief for Bamzai 2â4, 12â14. In that case (as you surely recall), William Marbury petitioned this Courtâwithout first asking any otherâto issue a writ of mandamus to Secretary of State James Madison directing him to deliver a commission. After holding (as just related) that the Courtâs 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. â[T]he essential criterion of appellate juris- diction,â the Chief Justice explained, is âthat it revises and corrects the proceedings in a cause already instituted, and does not create that cause.â 1 Cranch, at 175. Marburyâs petition, Chief Justice Marshall held, commenced the causeâor, 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 Ortizâs petition. On any ordinary understanding of the great Chief Jus- ticeâs words, that is a surprising claim. Ortizâs petition asks us to ârevise and correctâ the latest decision in a âcauseâ that began in and progressed through military justice âproceedings.â Ibid. Or, as the Government puts the point, this case fits within Chief Justice Marshallâs standard because âit comes to th[is] Court on review of the Court of Appeals for the Armed Forcesâ decision, which reviewed a criminal proceeding that originated in [a] court[ ]-martial.â Tr. of Oral Arg. 47â48. So this Court would hardly be the first to render a decision in the case. Unless Chief Justice Marshallâs test implicitly exempts cases instituted in a military courtâas contrasted, for example, with an ordinary federal courtâthe case is now appellate.4 ââââââ 4 The dissent asserts that, in setting out that test, we have âbasically proceed[ed] as though Marbury were our last word on the subjectâ and 8 ORTIZ v. UNITED STATES Opinion of the Court The military justice systemâs essential characterâin a word, judicialâprovides no reason to make that distinc- tion. Accord post, at 6â8 (THOMAS, J., concurring). Each level of military court decides criminal âcasesâ as that term is generally understood, and does so in strict accord- ance with a body of federal law (of course including the Constitution). The procedural protections afforded to a service member are âvirtually the sameâ as those given in a civilian criminal proceeding, whether state or federal. 1 D. Schlueter, Military Criminal Justice: Practice and Procedure §1â7, p. 50 (9th ed. 2015) (Schlueter). And the judgments a military tribunal renders, as this Court long ago observed, ârest on the same basis, and are surrounded by the same considerations[, as] give conclusiveness to the judgments of other legal tribunals.â Ex parte Reed, 100 U. S. 13, 23 (1879). Accordingly, we have held that the âvalid, final judgments of military courts, like those of any court of competent jurisdiction[,] have res judicata effect and preclude further litigation of the merits.â 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. ââââââ overlooked âtwo centuries of precedent.â Post, at 8 (opinion of ALITO, J.). But the cases the dissent faults us for failing to cite stand for the same principle that weâand more important, Marburyâalready 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 âappellate jurisdictionâ may âbe exercised only in the revision of judicial decisionsâ); The Alicia, 7 Wall. 571, 573 (1869) (â[A]n appellate jurisdiction necessarily implies some judicial determination . . . of an inferior tribunal, from which an appeal has been takenâ); Cohens v. Virginia, 6 Wheat. 264, 396 (1821) (In exercising appellate jurisdiction, we act as a âsupervising Court, whose peculiar province it is to correct the errors of an inferior Courtâ); Ex parte Bollman, 4 Cranch 75, 101 (1807) (We exercise âappellate juris- dictionâ in ârevisi[ng] a decision of an inferior courtâ); post, at 4â6, 10, 12. Marbury, then, remains the key precedent. Cite as: 585 U. S. ____ (2018) 9 Opinion of the Court 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. §§877â934; Solorio, 483 U. S., at 438â441; supra, at 1â2. As a result, the jurisdiction of those tribu- nals 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) (â[T]hese courts decide questions of the most momentous description, affecting even life itselfâ (quota- tion marks and ellipses omitted)). And the decisions of those tribunals are subject to an appellate processâwhat we have called an âintegrated system of military courts and review proceduresââthat replicates the judicial appa- ratus found in most States. Councilman, 420 U. S., at 758. By the time a case like Ortizâs arrives on our door- step 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-martialâas judicial bodies responsible for âthe trial and punishmentâ of service membersâis not in the least insecure. Dynes v. Hoover, 20 How. 65, 79 (1858). The court-martial is in fact âolder than the Constitution,â 1 Schlueter §1â6(B), at 39; the Federalist Papers discuss âtrials by courts-martialâ under the Articles of Confedera- tion, see No. 40, p. 250 (C. Rossiter ed. 1961). When it came time to draft a new charter, the Framers ârecog- ni[zed] and sanction[ed] existing military jurisdiction,â W. 10 ORTIZ v. UNITED STATES Opinion of the Court Winthrop, Military Law and Precedents 48 (2d ed. 1920) (emphasis deleted), by exempting from the Fifth Amend- mentâs Grand Jury Clause all âcases arising in the land or naval forces.â And by granting legislative power â[t]o make Rules for the Government and Regulation of the land and naval Forces,â 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 §1â6, at 35â48. Throughout that history, and reflecting the attributes described above, courts-martial have operated as instru- ments of military justice, not (as the dissent would have it) mere âmilitary command,â post, at 18 (opinion of ALITO, J.). As one scholar has noted, courts-martial âhave long been understood to exercise âjudicialâ power,â 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 âimbued or endowed with the like essence of judicial powerâ as âordinary courts of civil judi- catureâ); accord post, at 6â8 (THOMAS, J., concurring). Attorney General Bates, even in the middle of the Civil War, characterized a court-martial âproceeding, from its inception, [a]s judicial,â because the âtrial, 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.â Runkle v. United States, 122 U. S. 543, 558 (1887) (quoting 11 Op. Atty. Gen. 19, 21 (1864)). Colonel Winthropâwhom we have called the âBlackstone of Military Law,â Reid v. Covert, 354 U. S. 1, 19, n. 38 (1957) (plurality opinion)âagreed with Bates. He regarded a court-martial as âin the strictest senseâ a Cite as: 585 U. S. ____ (2018) 11 Opinion of the Court âcourt of law and justiceâââbound, like any court, by the fundamental principles of lawâ and the duty to adjudicate cases âwithout partiality, favor, or affection.â Winthrop, supra, at 54.5 Despite all this, Bamzai claims that âMarbury bars th[is] Court from decidingâ 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 âsupervising an earlier decision by a lower court.â 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 tribu- nal). True enough, âthe CAAF is called a âcourtâ â; and true enough, it decides cases, just as other courts do. Id., at 3; see id., at 28. But the CAAF, Bamzai notes, is ânot an Article III court,â id., at 3 (emphasis added): As all agree, ââââââ 5 The independent adjudicative nature of courts-martial is not incon- sistent with their disciplinary function, as the dissent claims, see post, at 18â26. By adjudicating criminal charges against service members, courts-martial of course help to keep troops in line. But the way they do soâin comparison to, say, a commander in the fieldâis fundamen- tally judicial. Accord post, at 9 (THOMAS, J., concurring) (âWhile the CAAF is in the Executive Branch and its purpose is to help the Presi- dent maintain troop discipline, those facts do not change the nature of the power that it exercisesâ). Colonel Winthrop stated as much: Even while courts-martial âenforc[e] disciplineâ in the armed forces, they remain âas fully a court of law and justice as is any civil tribunal.â 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 punishmentâup to executionâhe is not meting out extra- judicial discipline. He is acting as a judge, in strict compliance with legal rules and principlesârather than as an âarm of military com- mand.â 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 oppositeâthat military courts are not âjudicialâ in âchar- acterââthe dissent cannot help but do what it says it would like to avoid: âdenigrat[e the court-martial] system.â Post, at 27; see post, at 25. 12 ORTIZ v. UNITED STATES Opinion of the Court 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 ob- served) within the Executive Branch, rather than the judicial one. See §941; Edmond, 520 U. S., at 664, and n. 2. Those facts, in Bamzaiâs view, prevent this Court from exercising appellate jurisdiction over the CAAF. âFor constitutional purposes,â Bamzai concludes, the members of the CAAF âstand on equal footing with James Madison in Marbury.â Brief for Bamzai 4. (With variations here and there, the dissent makes the same basic argument.) But this Courtâs appellate jurisdiction, as Justice Story made clear ages ago, covers more than the decisions of Article III courts. In Martin v. Hunterâs Lessee, 1 Wheat. 304 (1816), we considered whether our appellate jurisdic- tion 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 338â352. For our âappellate power,â Story wrote, âis not limited by the terms of [Article III] to any particular courts.â Id., at 338. Or again: â[I]t will be in vain to search in the letter of the [C]onstitution for any qualification as to the tribunalâ 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 oneâeach 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 âmake all needful Rules and Regulations respectingâ those areas. Art. IV, Cite as: 585 U. S. ____ (2018) 13 Opinion of the Court §3, cl. 2; see Coe, 155 U. S., at 85. And we recognized that Congress, with this Courtâs 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 author- ity was ânot a part of that judicial power which is defined in the 3d article.â American Ins. Co. v. 356 Bales of Cot- ton, 1 Pet. 511, 546 (1828); see Coe, 155 U. S., at 85 (de- scribing that opinion as having âsettledâ that Article III âdoes not exhaust the power of Congress to establish courtsâ). 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 Courtâs role in reviewing their decisions. And so the Court found the issue simple. âThere has never been any question,â we declared, âthat the judicial action of [territorial courts] may, in accordance with the Constitution, be subjected to [our] appellate jurisdiction.â Id., at 86. Second, we have routinely, and uncontroversially, exer- cised 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 âin all Cases whatsoever.â Art. I, §8, cl. 17. Under that provision, we long ago determined, âCongress has the entire control over the [D]istrict for every purpose of government,â including that of âorganiz- ing a judicial department.â Kendall v. United States ex rel. Stokes, 12 Pet. 524, 619 (1838). So when Congress in- ââââââ 6 See,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. 14 ORTIZ v. UNITED STATES Opinion of the Court voked that authority to create a set of local courts, this Court upheld the legislationâeven though the judges on those courts lacked Article III protections. See Palmore v. United States, 411 U. S. 389, 407â410 (1973). We relied on the Constitutionâs âplenary grant[ ] of power to Con- gress to legislate with respect toâ the national capital. Id., at 408. And several years later, we referred as well to the âhistorical consensusâ supporting congressional latitude over the Districtâs judiciary. Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U. S. 50, 70 (1982) (plural- ity 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 powerââentirely independentâ of Article IIIââto provide for the trial and punishment of military and naval offences in the manner then and now practiced by civilized nations.â Dynes, 20 How., at 79; see supra, at 9. The former has, if anything, deeper historical roots, stretching from before this nationâs 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 8â11. 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 âspecialized areas having particularized needsâ in which Article III âgive[s] way to accommodate plenary grants of power to Congress.â Cite as: 585 U. S. ____ (2018) 15 Opinion of the Court 411 U. S., at 408. And in Northern Pipeline, the plurality said of all three that âa constitutional grant of power [as] historically understoodâ has bestowed âexceptional pow- ersâ 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 âdiscrete geographic areas.â Brief for Bamzai 23. Military courts do not; they instead exercise power over discrete individualsâi.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 in- quiryâwhy it is one of substance, rather than conven- ââââââ 7 In addition, several Justices in separate opinions have made the same linkage. See, e.g., Wellness Intâl Network, Ltd. v. Sharif, 575 U. S. ___, ___ (2015) (ROBERTS, C. J., dissenting) (slip op., at 3) (noting that ânarrow 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 tribunalsâ); id., at ___â___ (THOMAS, J., dissenting) (slip op., at 7â8) (referring to territorial courts and courts-martial as âunique historical exceptionsâ to Article III); Stern v. Marshall, 564 U. S. 462, 504â505 (2011) (Scalia, J., concurring) (noting the âfirmly established historical practiceâ of exempting territo- rial courts and courts-martial from Article IIIâs demands). The dissent must dismiss all this authority, from Justices both functionalist and formalist, to aver that âit 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.â Post, at 16; see post, at 14â16. 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) particular- ized needs. The result is âthat Congress has the power [apart from Article III] to provide for the adjudication of disputes among the Armed Forces,â just as in the territories and the District. Wellness, 575 U. S., at ___ (THOMAS, J., dissenting) (slip op., at 8). 16 ORTIZ v. UNITED STATES Opinion of the Court ience. He mentions that the territorial and D. C. courts are âfunctional equivalents of state courts.â 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 âordinary criminal offensesâ (murder, assault, robbery, drug crimes, etc., etc., etc.) that state courts do. Kebo- deaux, 570 U. S., at 404 (ALITO, J., concurring in judg- ment); see supra, at 1â2, 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 ârevise[] and correct[ ] the proceedings in a cause already institutedâ in a judicial system recognized since the founding as compe- tent to render the most serious decisions. Marbury, 1 Cranch, at 175; see supra, at 8â11. 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 Execu- tive Branch. See Brief for Bamzai 26â30. Bamzai actually never says in what branch (if any) he thinks territorial and D. C. courts reside. But he knowsâbecause this Court has saidâthat the CAAF is an âExecutive Branch entity.â Edmond, 520 U. S., at 664, and n. 2; see supra, at 12. And in Bamzaiâs view, two of our precedents show that we may never accept appellate jurisdiction from any per- son or body within that branch. See Brief for Bamzai 2â4. The first case he cites is Ex parte Vallandigham, 1 Wall. 243 (1864), in which the Court held that it lacked jurisdic- tion over decisions of a temporary Civil War-era military commission. See id., at 251â252. The second is Marbury itself, in which the Court held (as if this needed repeating) that it lacked jurisdiction to review James Madisonâs refusal to deliver a commission appointing William Mar- bury a justice of the peace. See 1 Cranch, at 175â176; supra, at 7. Cite as: 585 U. S. ____ (2018) 17 Opinion of the Court 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 Am- brose Burnside (he of the notorious facial hair) for a time- limited, specialized purposeâto try persons within the military Department of Ohio (Burnsideâs then-command) for aiding the Confederacy. See 1 Wall., at 243â244. And the General kept firm control of the commission (made up entirely of his own field officers): After personally ordering Vallandighamâs arrest, he (and he alone) also reviewed the commissionâs findings and sentence. See id., at 247â248; J. McPherson, Battle Cry of Freedom 596â597 (1988). This Court therefore found that the commission lacked âjudicial character.â 1 Wall., at 253. It was more an ad- junct to a general than a real courtâand so we did not have appellate jurisdiction over its decisions.8 But the ââââââ 8 The dissent offers a differentâand doubly misleadingâexplanation for Vallandigham. First, it says that we found jurisdiction lacking because the commission was âwas not one of the âcourts of the United Statesâ established under Article III.â Post, at 11 (quoting Vallan- digham, 1 Wall., at 251). But the dissent is reading from the wrong part of the opinion. Vallandigham contained two holdingsâfirst (and relevant here), that Article III precluded the Court from exercising appellate jurisdiction over the commissionâs 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 Courtâs constitutional hold- ingâwhich is all that matters here. Second, the dissent contends that Vallandigham ârecognized that the military tribunal had âjudicial character,ââ even as it found jurisdiction lacking. Post, at 11. Not so. Vallandigham expressly rejected the argument that the commission had âjudicial character.â 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, 46â47 (1852), in which the Court held that a claims tribunal was without judicial 18 ORTIZ v. UNITED STATES Opinion of the Court very thing that Burnsideâs commission lacked, the court- martial systemâand, in particular, the CAAF (whose decision Ortiz asks us to review)âpossesses in spades. Once again, the CAAF is a permanent âcourt of recordâ created by Congress; it stands at the acme of a firmly entrenched judicial system that exercises broad jurisdic- tion in accordance with established rules and procedures; and its own decisions are final (except if we review and reverse them). See supra, at 1â2, 8â11.9 That is âjudicial characterâ more than sufficient to separate the CAAF from Burnsideâs commission, and align it instead with territorial and D. C. (and also state and federal) courts of appeals. And the differences between the CAAFâs decisions and James Madisonâs 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 Stateâthe head of a cabinet department (and, by the way, the right arm of the President). Like- wise, Madisonâs failure to transmit Marburyâs commission was not a judicial decision; it was an enforcement action (though in the form of non-action), pertaining only to the ââââââ âcharacterâ and labeled its decisions the âaward[s] of a commissioner,â ânot the judgment[s] of a court of justiceâ). 9 The dissent contends that the CAAFâs decisions are not always final because the President, relevant branch secretary, or one of his subordi- nates must approve a sentence of death or dismissal from the armed forces before it goes into effect. See post, at 28â29. But as the Govern- ment has explained, the Presidentâs (or other executive officialâs) authority at that stage extends only to punishment: It is âakin to relief by commutation in the federal or state system.â Tr. of Oral Arg. 57; see Loving v. United States, 62 M. J. 235, 247 (CAAF 2005) (likening the approval authority to âexecutive clemency powersâ). The President, even when âmitigat[ing a] sentence[,]â cannot âupset[ ] the convictionâ or âthe judgment of the CAAF.â Tr. of Oral Arg. 55â56. Rather, as we said above, the CAAFâs judgment is final when issued (except if we reverse it). See 10 U. S. C. §871(c)(1) (stating that even when a sen- tence is subject to an executive officialâs approval, the âjudgmentâ is âfinalâ when judicial review is concluded). Cite as: 585 U. S. ____ (2018) 19 Opinion of the Court execution of law. As Chief Justice Marshall saw, Secre- tary 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 Jus- ticeâs 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 decisionsâ just as such tribunals have done since our nationâs found- ing. In reviewing, ârevis[ing,] and correct[ing]â 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 be- tween that judicial system and those of the territories and the District. If Congress were to grant us appellate juris- diction over decisions of newer entities advancing an administrative (rather than judicial) mission, the question would be differentâand 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 Mitchellâs par- ticipation in his last one. See supra, at 2â4. Ortizâs chal- lenge turns on Judge Mitchellâs simultaneous service on another court, the CMCR. Originally, the Secretary of Defense had assigned Judge Mitchell to sit on that court. 20 ORTIZ v. UNITED STATES Opinion of the Court Then, to moot a possible constitutional problem with Judge Mitchellâs CMCR service, the President (with the Senateâs advice and consent) appointed Judge Mitchell as well. A short time later, Judge Mitchell ruled on Ortizâs CCA appeal. Ortiz contends that doing so violated both a federal statute and the Appointments Clause. We dis- agree on both counts. A The statutory issue respecting Judge Mitchellâs dual service turns on two interlocking provisions. The first is §973(b)(2)(A)âthe statute Ortiz claims was violated here. As noted earlier, that lawâin the interest of ensuring civilian preeminence in governmentâprohibits active-duty military officers like Judge Mitchell from âhold[ing], or exercis[ing] the functions of,â certain âcivil office[s]â in the Federal Government, â[e]xcept as otherwise authorized by law.â See supra, at 4. The second is §950f(b)âa statute the Government claims âotherwise authorize[s]â Judge Mitchellâs service on the CMCR, even if a seat on that court is a covered âcivil office.â 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 âmay assignâ qualified officers serving on a CCA to âbe judges on the [CMCR]â as well. And under §950f(b)(3), the President (with the Senateâs advice and consent) âmay appointâ personsâwhether officers or civilians is unspeci- fiedâto 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 39â42. Notably, Ortiz has no statutory objection to Judge Mitch- ellâs simultaneous service on those courts before that dateâwhen he sat on the CMCR solely by virtue of the Secretary of Defenseâs assignment. See id., at 40. Nor Cite as: 585 U. S. ____ (2018) 21 Opinion of the Court could he reasonably lodge such a complaint, for §950f(b)(2), in no uncertain terms, âotherwise authorize[s]â the Secretary to place a military judge on the CMCRâ thus exempting such an officer from §973(b)(2)(A)âs prohi- bition. But in Ortizâs view, the provision in §950f(b)(3) for presidential appointments contains no similar authoriza- tion, because it makes no âexpress[ ] or unambiguous[ ]â reference to military officers. Id., at 20. And so, Ortiz concludes, §973(b)(2)(A)âs 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 banânot just before but also after his presidential appointment. That provi- sion, as just noted, unambiguously permitted the Secre- tary of Defense to place Judge Mitchell on the CMCR, even if such a judgeship is a âcivil office.â See supra, at 20. And once that happened, the Presidentâs later appoint- ment of Judge Mitchell made not a whit of difference. Nothing in §950f (or any other law) suggests that the Presidentâs appointment erased or otherwise negated the Secretaryâs earlier action. To the contrary, that appoint- ment (made for purposes of protecting against a constitu- tional 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 Mitchellâs appointment as a CMCR judge â[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).â 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 Secretaryâs assignment and the Presidentâs appointment. And be- cause §950f(b)(2) expressly authorized the Secretaryâs assignment, Judge Mitchellâs service on the CMCR could 22 ORTIZ v. UNITED STATES Opinion of the Court not run afoul of §973(b)(2)(A)âs general rule.10 Ortiz argues in response that the Presidentâs appoint- ment demanded its own clear authorization because only that appointment put Judge Mitchell into a ânew office.â Reply Brief 7. According to Ortiz, an officer who receives a secretarial assignment to the CMCR âexercise[s] additional dutiesââbut 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)âs rule cares about that difference. That law, Ortiz says, requires a legislative authorization when, and only when, a service member receives a whole new officeâwhich is to say here when, and only when, the President appoints a judge to the CMCR. See Tr. of Oral Arg. 4â5 (stating that §973(b)(2)(A) âprohibit[s] military officers from holding [civil offices] absent express con- gressional authorization, while generally allowing mili- tary officers to be assigned to exercise the duties of such positionsâ). But that argument is contrary to §973(b)(2)(A)âs 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 ââââââ 10 We state no opinion on a broader argument the Government makesâthat §950f(b)(2) would exempt Judge Mitchell from §973(b)(2)(A)âs office-holding ban even if the Secretary had not assigned him to the CMCR before the Presidentâs appointment. See Brief for United States 27â29. And because we hold that the Secretaryâs as- signment 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 âcivil officeâ subject to §973(b)(2)(A). Neither need we address the remedial issue on which the CAAF ruled, see supra, at 4âi.e., whether a violation of §973(b)(2)(A) would have immediately terminated Judge Mitchellâs military service and voided later decisions he made (including in Ortizâs case) as a military judge. Cite as: 585 U. S. ____ (2018) 23 Opinion of the Court dual âoffice-holding,â see supra, at 21, 22, n. 10âbut that is mere shorthand. In fact, §973(b)(2)(A)âs prohibition applies broadly, and uniformly, to any military officer who âhold[s], or exercise[s] the functions of,â a covered civil office. And the âexcept as otherwise authorizedâ caveat applies in the same wayâto âhold[ing]â and âexercis[ing]â 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 govern- ment by either âhold[ing]â or âexercis[ing] the functions of â 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 Con- gress explicitly authorized. See supra, at 20â21. After his presidential appointment, he continued on the same court, doing the same work, in keeping with the same congres- sional approval. Even supposing he obtained a ânew officeâ in the way Ortiz says, that acquisition is of no moment. With or without that formal office, Judge Mitch- ell âh[e]ld, or exercise[d] the functions of,â a CMCR judge- ship, and so was subject to §973(b)(2)(A)âs ban. But like- wise, with or without that formal office, Judge Mitchell could receive permission from Congress to do the jobâthat 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 Ortizâs case and beyond. B Finally, Ortiz raises an Appointments Clause challenge to Judge Mitchellâs simultaneous service on the CCA and the CMCR. That Clause provides that the President âshall nominate, and by and with the Advice and Consent 24 ORTIZ v. UNITED STATES Opinion of the Court of the Senate, shall appointâ the âOfficers of the United States,â but that âCongress may by Law vest the Ap- pointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.â 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 Mitchellâs presidential appointment. See supra, at 3.) But Ortizâs 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 princi- ple 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 Ortizâs 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 office- holding âincongru[ous]â and âfunctionally incompatible.â Brief for Petitioners 50. The problem, he suggests, is that the other (inferior officer) judges on the CCA will be âun- duly influenced byâ Judge Mitchellâs 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 ap- pointment. Nor has it ever recognized principles of âin- congruityâ or âincompatibilityâ to test the permissibility of holding two offices. As Ortiz himself acknowledges, he can âcite no authority holding that the Appointments Clause prohibits this sort of simultaneous service.â Id., at 52. Cite as: 585 U. S. ____ (2018) 25 Opinion of the Court And if we were ever to apply the Clause to dual office- holding, we would not start here. Ortiz tells no plausible story about how Judge Mitchellâs service on the CMCR would result in âundue influenceâ on his CCA colleagues. The CMCR does not review the CCAâs 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 1â3, and n. 1. We cannot imagine that anyone on the CCA acceded to Judge Mitchellâs views because he also sat on the CMCRâany 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: âWhen Colonel Mitchell sits as a CCA judge, he is no different from any other CCA judge.â 76 M. J., at 193; see supra, at 5. So there is no violation of the Ap- pointments Clause. IV This Court has appellate jurisdiction to review the CAAFâs decisions. In exercising that jurisdiction, we hold that Judge Mitchellâs simultaneous service on the CCA and the CMCR violated neither §973(b)(2)(A)âs office- holding ban nor the Constitutionâs Appointments Clause. We therefore affirm the judgment below. It is so ordered. Cite as: 585 U. S. ____ (2018) 1 THOMAS, J., concurring SUPREME COURT OF THE UNITED STATES _________________ No. 16â1423 _________________ 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 Courtâs opinion in full, which persuasively explains why petitionerâs 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 Constitu- tion. I write separately to explain why that conclusion is consistent with the Foundersâ understanding of judicial powerâspecifically, the distinction they drew between public and private rights.1 I Article III vests â[t]he judicial Power of the United Statesâ 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 âCasesâ and âContro- versiesâ listed in §2. Article III divides this Courtâs juris- diction over those cases into two categories: âoriginal Jurisdictionâ and âappellate Jurisdiction.â 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 â[i]n all ââââââ 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. 2 ORTIZ v. UNITED STATES THOMAS, J., concurring the other Cases before mentionedâ in §2. Because all agree that the CAAF decides âother Casesâ that are not reserved for this Courtâs original jurisdiction, we can review its decisions only under our appellate jurisdiction. The text of Article III imposes two important limits on this Courtâs appellate jurisdiction. First, as mentioned, this Court can review only the âother Casesâ that are âbefore mentionedââi.e., the subject matters of cases listed in §2 that are not reserved for its original jurisdic- tion. Second, this Courtâs âappellate Jurisdictionâ cannot be âoriginal.â As Chief Justice Marshall explained, âthe essential criterion of appellate jurisdictionâ is that âit revises and corrects the proceedings in a cause already instituted, and does not create that cause.â Marbury v. Madison, 1 Cranch 137, 175 (1803). Thus, this Court cannot exercise appellate jurisdiction unless it is review- ing an already completed exercise of âjudicial power.â In re Sanborn, 148 U. S. 222, 224 (1893); see also The Alicia, 7 Wall. 571, 573 (1869) (âAn appellate jurisdiction neces- sarily implies some judicial determination, some judg- ment, decree, or order of an inferior tribunal, from which an appeal has been takenâ); 3 J. Story, Commentaries on the Constitution of the United States §1755, p. 627 (1833) (explaining that this Court can review only decisions âby one clothed with judicial authority, and acting in a judicial capacityâ). Other than these two limits, the text of Article III im- poses no other self-executing constraints on this Courtâs 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, âThe 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 Cite as: 585 U. S. ____ (2018) 3 THOMAS, J., concurring tribunal.â Martin v. Hunterâs Lessee, 1 Wheat. 304, 338 (1816). Hamilton made the same point years earlier: âThe 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 contem- plated.â The Federalist No. 82, pp. 493â494 (C. Rossiter ed. 1961); see also id., No. 81, at 489 (A. Hamilton) (reject- ing a âtechnical interpretationâ of the word âappellateâ and defining it to mean ânothing more than the power of one tribunal to review the proceedings of anotherâ). 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, 85â86 (1894); Wellness Intâl Network, Ltd. v. Sharif, 575 U. S. ___â___, n. 2 (2015) (THOMAS, J., dissenting) (slip op., at 7â8, n. 2) (discussing American Ins. Co. v. 356 Bales of Cotton, 1 Pet. 511, 546 (1828)). In short, this Courtâs appellate jurisdiction re- quires the exercise of a judicial power, not necessarily â[t]he judicial Power of the United Statesâ that Article III vests exclusively in the federal courts, §1 (emphasis added). The Foundersâ 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. ___, ___â___ (2016) (THOMAS, J., concurring) (slip op., at 1â2); Wellness, supra, at ___â___ (opinion of THOMAS, J.) (slip op., at 6â11); Nelson, Adjudication in the Political Branches, 107 Colum. L. Rev. 559, 565 (2007) (Nelson). Public rights â âbelon[g] to the people at large,â â while private rights belong to â âeach individual.â â Well- ness, 575 U. S., at ___ (opinion of THOMAS, J.) (slip op., at 9). The three classic private rightsâlife, liberty, and 4 ORTIZ v. UNITED STATES THOMAS, J., concurring propertyâare â âunalienableâ â and â âabsolute,â â as they are ânot dependent upon the will of the government.â Ibid. The Founders linked the disposition of private rights with the exercise of judicial power. See id., at ___ (slip op., at 10). They considered âthe power to act conclusively against [private] rights [as] the core of the judicial power.â Ibid. A disposition of private rights did not amount to an exercise of judicial power, however, unless it also satisfied âsome basic procedural requirements.â Nelson 574. Stated differently, the disposition had to âassume such a form that the judicial power is capable of acting on it.â Osborn v. Bank of United States, 9 Wheat. 738, 819 (1824). â[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.â Nelson 574. Once a dispute took this form, judicial power is exercised by â âdeter- min[ing] all differences according to the established law.â â 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 ___â___ (dissenting opinion) (slip op., at 6â7). That these courts adjudicate core private rights does not con- tradict the Vesting Clause of Article III, which permits only federal courts to exercise âthe judicial Power of the United States.â Like other provisions of the Constitution, this language must be read against âcommonly accepted background understandings and interpretative principles in place when the Constitution was written,â including the Cite as: 585 U. S. ____ (2018) 5 THOMAS, J., concurring principle that general constitutional rules could apply âdifferently to civil than to military entities.â Mascott, Who Are âOfficers of the United Statesâ? 70 Stan. L. Rev. 443, 480â483 (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 inter- preting Article III to exclude military courts âsimply 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 wholeâ). Based on the âconstellation of constitutional provisions that [indicate] Congress has the power to pro- vide for the adjudication of disputes among the Armed Forces it creates,â our precedents have long construed the Vesting Clause of Article III to extend âonly to civilian judicial power.â Wellness, 575 U. S., at ___ (opinion of THOMAS, J.) (slip op., at 8) (citing Dynes v. Hoover, 20 How. 65, 78â79 (1858)). In other words, the powers that the Constitution gives Congress over the military are âso exceptionalâ 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 âexcep- tionâ or âcarve-outâ 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 ___â___ (opinion of THOMAS, J.) (slip op., at 6â8). No party in this case challenges the legitimacy of the historical exception for military courts. And for good reason: âAt 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.â Nelson 576. As the Court explains, military courts predate the Constitution, were well-known to the Founders, were authorized by the 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 pre- sent purposes, however, is that military courts are consid- ered exempt from the structural requirements of Article III âbecause of other provisions of the Constitution, not because of the definition of judicial power.â Wellness, 575 U. S., at ___ (opinion of THOMAS, J.) (slip op., at 8) (citing Nelson 576). They plainly fall within that definition. Military courts âhave long been understood to exercise âjudicialâ powerâ because they âact upon core private rights to person and property.â Id., at 576. â[C]lothed with judicial powers,â these courts decide âquestions of the most momentous description, affecting . . . even life itself.â W. De Hart, Observations on Military Law 14 (1859); see also 11 Op. Atty. Gen. 19, 21 (1864) (explaining that military courts are âjudicialâ because they âpass upon the most sacred questions of human rights . . . which, in the very nature of things, . . . must be adjudged according to lawâ). Here, for example, the CAAF adjudicated the legality of petitionerâs child-pornography convictions and his sen- tence of two years confinementâa classic deprivation of liberty, see Obergefell v. Hodges, 576 U. S. ___, ___â___ (2015) (THOMAS, J., dissenting) (slip op., at 4â6). âThe passing of judgment on the life and liberty of those con- victed by the government in a military trial surely falls within the judicial power.â Willis, The Constitution, the United States Court of Military Appeals and the Future, 57 Mil. L. Rev. 27, 84 (1972). This Court has acknowl- edged that military courts adjudicate core private rights, as it has repeatedly held that the prosecution of non- servicemembers in these courts would violate Article III. See Northern Pipeline, supra, at 66, n. 17 (plurality opin- ion); e.g., United States ex rel. Toth v. Quarles, 350 U. S. 11 (1955) (former servicemembers); Reid v. Covert, 354 Cite as: 585 U. S. ____ (2018) 7 THOMAS, J., concurring U. S. 1 (1957) (spouses of servicemembers).2 In addition to adjudicating private rights, the CAAFâs cases âassume such a form that the judicial power is capa- ble of acting on [them].â Osborn, 9 Wheat., at 819. The CAAF adjudicates cases involving âadverse parties who ha[ve] been given some opportunity to be heard.â Nelson 574. It has independent authority to âprescribeâ its own ârules of procedure,â 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 â âaccording to the established law.â â Wellness, 575 U. S., at ___ (opinion of THOMAS, J.) (slip op., at 6). It can act âonly with respect to matters of law,â §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 âfinal judgment[s] that b[ind] [the parties].â Nelson 574. Its judgments are âfinal and conclusiveâ as soon as they are published and are âbinding upon all departments, courts, agencies, and officers of the United States.â §876. The Executive Branch has no statutory authority to review or modify the CAAFâs decisions.3 In short, when it comes to ââââââ 2 Servicemembers consent to military jurisdiction when they enlist. While this consent might allow military courts to adjudicate a service- memberâs private rights, it does not transform the nature of the power that the military courts exercise, or somehow transform the service- memberâs private right to life, liberty, or property into a public right. See Wellness Intâl Network, Ltd. v. Sharif, 575 U. S. ___, ___, ___ (2015) (THOMAS, J., dissenting) (slip op., at 6, 14). 3 Unlike the CAAFâs 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 interme- diate Court of Criminal Appeals. See §867(c). Because âthe [CAAF] reviews court-martial convictions after executive branch review ends,â the â[r]eview of its decisions in the Supreme Court of the United States, 8 ORTIZ v. UNITED STATES THOMAS, J., concurring the CAAF, â â[t]he whole proceeding from its inception is judicial.â â 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 âExecutive Branch entity,â Edmond v. United States, 520 U. S. 651, 664 (1997), and he cites commentators who describe military courts as âinstrumentalities of the executive powerâ 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 ââââââ by certiorari, . . . poses no finality problemsâ 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). 4 Most of the statutes cited above are unique to the CAAFâthe 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 âsummaryâ and âcreate no record to support writ of error reviewâ); 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 Presidentâs power to conduct war, not judicial power). And, of course, this Courtâs appellate jurisdiction does not allow it to directly review decisions of the Executive Branch that do not âassume such a form that the judicial power is capable of acting on [them].â Osborn v. Bank of United States, 9 Wheat. 738, 819 (1824). Cite as: 585 U. S. ____ (2018) 9 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 Presi- dent maintain troop discipline, those facts do not change the nature of the power that it exercises. See Brigadier General S. T. Ansellâs 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: âThe controlling question is whether the function to be exercised . . . is a judicial function . . . . We must not âbe misled by a name, but look to the substance and intent of the proceeding.â United States v. Ritchie, 17 How. 525, 534 [(1855)]. âIt 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 constitu- tional, it calls for the exercise of only the judicial power.â â Federal Radio Commân v. Nelson Brothers Bond & Mortgage Co. (Station WIBO), 289 U. S. 266, 277â278 (1933) (some citations omitted). As explained, the CAAF exercises a judicial power because it adjudicates private rights. That the Constitution per- mits this Executive Branch entity to exercise a particular judicial powerâdue to the political branchesâ expansive constitutional powers over the militaryâdoes not change the analysis. Professor Bamzaiâs analogy to administrative agencies is flawed. Professor Bamzai assumes that, when adminis- trative agencies adjudicate private rights, they are not exercising judicial power. But they are. See B&B Hard- ware, Inc. v. Hargis Industries, Inc., 575 U. S. ___, ___â___ 10 ORTIZ v. UNITED STATES THOMAS, J., concurring (2015) (THOMAS, J., dissenting) (slip op., at 11â12). In fact, they are unconstitutionally exercising â[t]he judicial Power of the United States,â as agencies are not Article III courts and do not âenjoy a unique, textually basedâ carve- out 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 Well- ness. But both it and administrative agencies exercise a judicial power when they adjudicate private rights. Con- trary to the premise underlying Professor Bamzaiâs argu- ment, 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 stat- ute giving this Court appellate jurisdiction over its deci- sions does not violate Article III. For these reasons, and the reasons given by the Court, I concur. Cite as: 585 U. S. ____ (2018) 1 ALITO, J., dissenting SUPREME COURT OF THE UNITED STATES _________________ No. 16â1423 _________________ 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 con- stitutional law. After his Federalist Party was defeated in the pivotal election of 1800, outgoing President John Adams attempted to fill the Federal Judiciary with indi- viduals favored by his party. The Senate confirmed Ad- amsâs nominees, and Adams diligently signed their com- missions 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 Nationâs third President, he was furious about Adamsâs eleventh- hour 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 commis- sions that had been left in Marshallâs office, and he decided not to do so. ââââââ 1 Letter from Thomas Jefferson to Henry Knox (Mar. 27, 1801), in 33 Papers of Thomas Jefferson 465, 466 (B. Oberg ed. 2006.). 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 âappellate jurisdiction.â Marbury v. Madison, 1 Cranch 137, 175â176, 180 (1803). Why? Because âappellate jurisdictionâ means jurisdiction to review âthe proceedings in a cause [i.e., a case] already institutedâ in another court. Id., at 175. Madison was an Executive Branch officer, not a court, and therefore Mar- buryâs dispute with Madison did not become a âcauseâ or case until it was brought before this Court. As a result, review of Madisonâs decision did not fall within our âappel- lateâ jurisdiction. Id., at 175â176. That conclusion was straightforward enough. But sup- pose that Madisonâs decisionmaking process had been more formal. Suppose that he had heard argument about his legal obligationsâand perhaps even testimony about Marburyâs qualifications. (After all, President Jefferson reappointed some of Adamsâs nominees, but not Mar- bury.2) Or suppose Madison had convened an Executive Branch committee to make an initial determination. Suppose that this entity was labeled the âCourt of Com- mission Review.â Suppose that the members wore robes and were called judges, held their meeting in a court- house, and adopted court-like procedures. With all these adornments, would Madisonâs 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- ââââââ 2 Prakash, The Appointment and Removal of William J. Marbury and When an Office Vests, 89 Notre Dame L. Rev. 199, 209 (2013). Cite as: 585 U. S. ____ (2018) 3 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 sover- eign, no matter how court-like their decisionmaking pro- cess 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 Governmentâs judicial power. That fact compels us to dismiss Ortizâs petition for lack of jurisdiction. Todayâs 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 â[t]he Judicial Power of the United Statesââevery single drop of itâin âone supreme Court, and in such inferior Courts as the Con- gress may from time to time ordain and establishâ 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. âThere is no exception to this rule in the Constitution.â Benner v. Porter, 9 How. 235, 244 (1850); Oil States Energy 4 ORTIZ v. UNITED STATES ALITO, J., dissenting Services, LLC v. Greeneâs Energy Group, LLC, 584 U. S. ___, ___ (2018) (slip op., at 5â6); Stern v. Marshall, 564 U. S. 462, 503 (2011); Martin v. Hunterâs Lessee, 1 Wheat. 304, 330â331 (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 âoriginalâ and âappel- lateâ jurisdiction. Our original jurisdiction is limited to âCases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party,â §2, so it is obvious that Ortizâs case does not fall within our original jurisdiction. But what about our appellate juris- diction? If we directly reviewed a decision of the CAAF, would that be an exercise of âappellateâ 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 âcourt of appealâ has jurisdiction only to âreverse or affirm the judgment of the inferior courts.â 3 W. Blackstone, Commentaries on the Laws of England 411 (1768) (Black- stone) (emphasis added). Echoing Blackstone, we have held that our appellate jurisdiction permits us to act only as â[a] supervising Court, whose peculiar province it is to correct the errors of an inferior Court.â Cohens v. Vir- Cite as: 585 U. S. ____ (2018) 5 ALITO, J., dissenting ginia, 6 Wheat. 264, 396 (1821) (Marshall, C. J.). And we have reiterated that â[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.â 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 Mar- bury meant when it held that â[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.â 1 Cranch, at 175. The cause (or case) must have been created previously, somewhere else. And as Blackstone suggested, what âcreatesâ a âcaseâ in the relevant senseâthat is, what transforms a dispute into a âcaseâ that an appellate court has jurisdiction to resolveâ 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 âbecomes a caseâ for purposes of Article III, we held, only when it âassume[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.â Osborn v. Bank of United States, 9 Wheat. 738, 819 (1824) (Mar- shall, C. J.) (emphasis added). Hence, in order to create a âcaseâ that Article III permits us to review on appeal, a litigant must have first âsubmittedâ the dispute to another tribunal that was âcapableâ of exercising the âjudicial powerâ 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 founda- tional precedent of the Marshall Court. âTo commence a 6 ORTIZ v. UNITED STATES ALITO, J., dissenting suit,â Chief Justice Marshall explained, âis to demand something by the institution of process in a Court of jus- tice.â 6 Wheat., at 408 (emphasis added). Courts of justice are those tribunals âerected byâ the sovereign and properly vested with the sovereignâs own âpower of judicature.â 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. 469â472 (C. Rossiter ed. 1961) (âthe courts of justiceâ are those described in Article III). This view of appellate jurisdiction explains why, in Martin v. Hunterâs Lessee, Justice Story declared that âif . . . 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.â 1 Wheat., at 339â340. Without decisions of Article III courts or state courts to review, our appellate jurisdiction would have lain idleâ but not because there were no Executive Branch tribunals, like the CAAF, deciding federal questions. To the contrary, executive agencies have âconduct[ed] adjudicationsââoften taking â âjudicialâ formsâââsince the beginning of the Re- public.â Arlington v. FCC, 569 U. S. 290, 304â305, n. 4 (2013); Freytag v. Commissioner, 501 U. S. 868, 910 (1991) (Scalia, J., concurring in part and concurring in judg- ment); see generally J. Mashaw, Creating the Administra- tive Constitution 34â35 (2012). Such Executive Branch adjudications, however, do not give rise to âcasesâ 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 â[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 Cite as: 585 U. S. ____ (2018) 7 ALITO, J., dissenting United States, is in the nature of appellate jurisdiction.â 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. Commân of Md., 535 U. S. 635, 644, n. 3 (2002) (âjudicial review of executive action, including determinations made by a state adminis- trative agency,â involves the exercise of federal courtâs âoriginal jurisdictionâ rather than its âappellate jurisdic- tion,â which covers only âstate-court judgmentsâ); 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 Stateâs judicial power. E.g., Betts v. Brady, 316 U. S. 455, 458â460 (1942); cf. Chicago, R. I. & P. R. Co. v. Stude, 346 U. S. 574, 578â579 (1954) (federal courts cannot exer- cise removal jurisdictionâwhich is appellate in nature, Martin, supra, at 349âwhile a dispute is still in state âadministrativeâ proceedings; removal is proper only after âthe jurisdiction of the state district court is invokedâ); 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 tribu- nals belongs to a branch of the Federal Government. Yet only one of themâour Courtâis capable, under the Con- stitution, of exercising the Governmentâs judicial power. Thus, the dispute between Ortiz and the Federal Govern- ment did not become an Article III âcaseâ until Ortiz peti- tioned our Court to hear it. That means our present adju- dicationâno less than our adjudication of the dispute 8 ORTIZ v. UNITED STATES ALITO, J., dissenting between Marbury and Madisonâlacks âthe essential criterion of appellate jurisdiction.â 1 Cranch, at 175. The majority does not question this framework; indeed, it acknowledges that, per Marbury, we can assert jurisdic- tion here only if the dispute before us blossomed into an Article III âcaseâ before it landed at our doorstep. Ante, at 6â7. Curiously, however, the majority basically proceeds as though Marbury were our last word on the subject. Ante, at 6â8. That is simply not right. As discussed, our foundational precedents expressly delineate the prerequi- sites 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 âproceedingsâ internal to the Executive Branch, ante, at 7, does not count. And while there undoubtedly are differences be- tween this case and Marbury, even some that âlea[p] off the page,â 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 âpeculiar prov- inceâ 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 precedentâalmost all of it overlooked by the majorityâwould 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 Cite as: 585 U. S. ____ (2018) 9 ALITO, J., dissenting Stat. 612. Congress provided the courtâs 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 proceduresâand possessed all the ancil- lary powers (subpoena, contempt, etc.)âthat one would expect to find in a court of justice. §§3â7, 10 Stat. 613; §4, 12 Stat. 765â766. 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 courtâs legal conclusion that the claimant was in the right). §14, id., at 768. Under principles as old as Hayburnâs 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 courtâs 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 attrib- ute that Article III makes prerequisite to the vesting of judicial power. Id., at 704. In words that apply as much here, we said that âthe 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.â In re Sanborn, 148 U. S. 222, 224 (1893). It was irrelevant how much the Court of Claims otherwise âresemble[d] . . . courts whose decisions we review.â Ante, at 9. The story does not end there, however. In 1866 Con- gress did something it has never done with respect to courts-martial: It brought the Court of Claims into com- 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 ap- peals from it âimmediately.â United States v. Jones, 119 U. S. 477, 478 (1886). We now were able to âaccep[t] ap- pellate jurisdiction over what was, necessarily, an exercise of the judicial power which alone [we] may review.â Glid- den Co. v. Zdanok, 370 U. S. 530, 554 (1962) (plurality opinion) (citing Marbury, supra, at 174â175; 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 con- finement 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 âwhich the court is now asked to exercise is clearly appellate. It is the revision of a decision of an inferior court.â 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 â[t]he case, then, is one avowedly and nakedly for the exercise of original jurisdiction by this court,â and was required to be dismissed. 2 How., at 65. In Metzger, âthe district judgeâ had âheard and decidedâ the lawfulness of the petitionerâs custody, but the judge had done so only âat his chambers, and not in court.â 5 How., at 191 (emphasis added). His judgment was not provisional, like some early Court of Cite as: 585 U. S. ____ (2018) 11 ALITO, J., dissenting Claims decisionsâbut his status as a judge at chambers was still fatal to our jurisdiction. In a technical sense, a judge at chambers âexercises a special authorityâ distinct from the judicial power vested by Article IIIâwhich meant that the Constitution would permit us to review his deci- sion in â[t]he exercise of an original jurisdiction only.â Id., at 191â192. 3 Finally, and especially pertinent here, we have adhered to the Marbury principle in the many instances in our Courtâs history in which we have been asked to review the decision of a military tribunal. First, in Ex parte Vallan- digham, 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 âcourts of the United Statesâ established under Article III, id., at 251, and thus it could not exercise the judicial power of the Federal Government, but could exercise only âa special authority,â id., at 253âjust like the Court of Claims, and just like a judge at chambers. Given that fact, we held it was âcertainâ that any review of its decisions could take place only in the exercise of our original, and not appel- late, jurisdiction. Id., at 251â252. And despite what the majority seems to think, see ante, at 17, n. 8, in Vallan- digham we recognized that the military tribunal had âjudicial characterâ in the sense that it had âthe authority . . . to examine, to decide and sentence,â butâin the same breathâwe affirmed the crucial point, namely, that such character â âis not judicial . . . in the sense in which judicial power is granted to the courts of the United States.â â 1 Wall., at 253 (emphasis added). 12 ORTIZ v. UNITED STATES ALITO, J., dissenting 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 107â 108; Yerger, 8 Wall., at 102â103. That fact made all the differenceâagain, because of the rule that we possess, âunder the Constitution, an appellate jurisdiction, to be exercised only in the revision of judicial decisions.â Id., at 97. The decisions of non-Article III military courts do not qualify. Similarly, after World War II we received âmore than a hundredâ habeas petitions from individuals in the custody of âvarious American or international military tribunals abroad,â almost none of whom had âfirst sought [relief ] in a lower federal court.â R. Fallon, J. Manning, D. Meltzer, & D. Shapiro, Hart and Wechslerâs The Federal Courts and the Federal System 292 (7th ed. 2015). Consistent with Marbury, we denied review in every one. Fallon, supra, at 292â293. Thus, while it is surely true that ânot every military tribunal is alikeâ 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 jurisdic- tion as defined in Article III. Todayâs 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 âcourt-likeness,â ante, at 16 (emphasis deleted), to come within the scope of our appellate jurisdiction under todayâs Cite as: 585 U. S. ____ (2018) 13 ALITO, J., dissenting test. Nor does the majority acknowledge the slew of on- point habeas decisionsâsave for Vallandigham, which it waves away by emphasizing irrelevant factual details (like the commanding officerâs facial hair). Despite its running refrain that the CAAF displays a âjudicial character,â 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 judi- cial 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 12â16. The majority claims to be looking for a âpowerful reasonâ 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 handâone 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 Dis- trict of Columbia exercise the judicial power of the Dis- trict, 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 Govern- ment of the United States. They exercise the power of the United States, not that of any other government, and since 14 ORTIZ v. UNITED STATES ALITO, J., dissenting 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 trans- formed 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 Congressâs 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, 336â337 (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 found- ing generation understoodâand for more than two centu- ries, we have recognizedâthat Congressâs 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, execu- tive, and judicial power. See generally Department of Transportation v. Association of American Railroads, 575 U. S. ___, ___â___ (2015) (THOMAS, J., concurring in judg- ment) (slip op., at 2â3). 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, 767â768, 771â774 (1996) (Article I nondelegation doctrine applies to congressional regulation of courts- martial). But it has been our consistent view that those same limits do not apply when Congress creates institu- Cite as: 585 U. S. ____ (2018) 15 ALITO, J., dissenting 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 âare 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.â Congress may therefore give territorial governments âa legislative, an executive, and a judiciary, with such powers as it has been their will to assign to those departments.â Sere, supra, at 337. That is why we have often repeated that â[i]n legislating for [the Territories], Congress exer- cises the combined powers of the general, and of a state government.â 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 organ- izing territorial governments. Thus, unlike any of its other powers, Congressâs power over the Territories allows it to create governments in miniature, and to vest those governments with the legisla- tive, 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 ap- plied. 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, 322â323 (1937); Snow v. United States, 18 Wall. 317, 321â322 (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, 442â443 (1923). The Framers evidently shared this view. Thus, James 16 ORTIZ v. UNITED STATES ALITO, J., dissenting Madison took it for granted that Congress could create âa municipal legislatureâ for the District of Columbia, The Federalist No. 43, at 272â273, 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, 42â 43 (1825) (Marshall, C. J.). And Justice Story declared, without hesitation, that â[w]hat shall be the form of gov- ernment 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.â 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 Districtâexercising the judicial power of their respective governmentsâmay have their decisions ap- pealed directly here. We said as much in United States v. Coe, 155 U. S. 76, 86 (1894), where we explained that because Congressâs âpower 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.â 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 com- ply with Article III. That is reason enough to treat these Cite as: 585 U. S. ____ (2018) 17 ALITO, J., dissenting tribunals differently.3 B The majority responds to this conclusion by suggesting, albeit without much elaboration, that just as the Constitu- tion gives Congress the âexceptionalâ power to confer non- Article III judicial power on the courts of the Territories and the District of Columbia, the Constitution also gives Congress the âexceptionalâ power to vest military tribu- nals with non-Article III judicial power. See ante, at 15, and n. 7. But the Vesting Clauses are exclusive, which means that the Governmentâs judicial power is not shared between Article II and Article III. See supra, at 3â4 (col- lecting cases); see also, e.g., Arlington, 569 U. S., at 304â 305, n. 4; Ex parte Randolph, 20 F. Cas. 242, 254 (No. 11,558) (CC Va. 1833) (Marshall, C. J.) (those whose âoffices are held at the pleasure of the president . . . are, conse- quently, incapable of exercising any portion of the judicial powerâ); 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 ââââââ 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 36â39 (1980); Currie, The Constitution in the Supreme Court: The Powers of the Federal Courts, 1801â1835, 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, 240â242 (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 jurispru- dence. 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. 18 ORTIZ v. UNITED STATES ALITO, J., dissenting U. S. ___, ___ (2015) (THOMAS, J., dissenting) (slip op., at 11). And neither the majority nor the concurrence ever explains how the Constitutionâs 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 Constitutionâs text, that is foreclosed by its structure, and that had gone almost entirely unnoticed before today. Thus, to make the majorityâs 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 Gov- ernmentâânot organized under the Constitution, . . . as the organic law,â Benner, 9 How., at 242âbut is a gov- ernment unto itself. To set out that argument, however, is to expose its weakness, for nothing could be more antithet- ical to the Constitution and to our traditional understand- ing of the relationship between the military and civilian authority. The military is not an entity unto itself, sepa- rate 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 answer- able to the people. To appreciate the constitutional status of military tri- bunals, 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 âthe necessity of order and disciplineâ in the military. 1 Blackstone 400. Indeed, Blackstone explained that courts-martial exercise a âdiscretionary powerâ to Cite as: 585 U. S. ____ (2018) 19 ALITO, J., dissenting âinflictâ âpunishment . . . extend[ing] to death itself,â which was âto be guided by the directions of the crown,â in express contrast to âthe kingâs courtsâ which dispense âjustice according to the laws of the land.â Id., at 402, 400. The crownâs âextensiveâ power over the militaryâ exercised, in part, through courts-martialâwas âexecutive power.â Id., at 408. Many others have echoed the point. Thus, â[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.â 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 âin vainâ for the American patriots to seek âa more complete system of military disciplineâ than the existing British model. 3 The Works of John Adams 68 (C. Adams ed. 1851). He and Thomas Jefferson therefore proposed adopting âthe British articles of war, totidem verbis.â Id., at 68â69. The Conti- nental Congress agreed. Id., at 69. And when the Consti- tution and the Bill of Rights were adopted, no one sug- gested 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 arti- cles 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. 20 ORTIZ v. UNITED STATES ALITO, J., dissenting 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 1495â1498 (2d ed. 1896) (Winthrop); see also, e.g., American Articles of War of 1806, Arts. 39, 51, 54, in id., at 1514â1516. 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 processâwhich 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 Black- stone 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, adjudi- cations by courts-martial are executive decisions; courts- martial 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 disci- pline by the military command. Although Milligan con- firmed the general rule that âit is the birthright of every American citizenâ to have the Federal Government adjudi- cate criminal charges against him only in an Article III court, 4 Wall., at 119, 122, we also stated that â[e]very one Cite as: 585 U. S. ____ (2018) 21 ALITO, J., dissenting connected withâ âthe military or naval service . . . while thus serving, surrenders his right to be tried by the civil courts,â 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 Prac- tice II, 72 Harv. L. Rev. 266, 290â291, 294 (1958); see also 1 Winthrop 54, 241, 430, 605; Milligan, supra, at 137â138 (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 instru- ment 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 âprimarily as a function or instrument of the execu- tive department to be used in maintaining discipline in the armed forces. It was therefore not a âcourt,â as that term is normally used.â Schlueter, The Court-Martial: An Historical Survey, 87 Mil. L. Rev. 129, 150â153, 154â155 (1980). Hence, Colonel Winthropâwhom we have called âthe âBlackstone of Military Law,â â Reid v. Covert, 354 U. S. 1, 19, n. 38 (1957) (plurality opinion)âechoed the original Blackstone in describing courts-martial as âsimply instrumentalities of the executive power, provided by Con- gress for the President as Commander-in-chief, to aid him in properly commanding the army and navy and enforcing ââââââ 4 In fact, âfor 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,â and in that case âthe denial of its applicability to the military . . . was approved by no less an authority than the father of the Bill of Rights himself.â Wiener, Courts-Martial and the Bill of Rights: The Original Practice II, 72 Harv. L. Rev. 266, 291 (1958). 22 ORTIZ v. UNITED STATES ALITO, J., dissenting discipline therein.â 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 âbasically . . . the British system as it existed at the time of the separation,â and described it as one âarising out of and regulated by the mere power of Military Command rather than Law.â Ansell, 5 Cornell L. Q., at 1. Around the same time, Edmund Morganâwho would later help draft the Uniform Code of Military Jus- tice (UCMJ)âdeclared it âtoo clear for argument that the principle at the foundation of the existing system is the supremacy of military command. To maintain that princi- ple, military command dominates and controls the pro- ceeding 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 pursu- ant to the forms of law, . . . [i]n truth and in fact, . . . courts-martial are exactly what Colonel Winthrop has asserted them to be.â 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, 564â 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, courts- martial remained blunt instruments to enforce discipline. Cite as: 585 U. S. ____ (2018) 23 ALITO, J., dissenting Schlueter, supra, at 157â158; see also West, supra, at 8, n. 18. It is precisely because Article II authorizes the Presi- dent to discipline the military without invoking the judi- cial 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 Constitu- tion makes clear that the Governmentâs power to âtr[y] and punis[h]â military offenses âis given without any connection between it and the 3d article of the Constitu- tion defining the judicial power of the United States; indeed, that the two powers are entirely independent of each other.â Moreover, the principle that the Government need not exercise judicial power when it adjudicates military of- fenses 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, 568â569, and n. 42 (2007); e.g., Cohen v. Wright, 22 Cal. 293, 318 (1863) (âThe terms âdue process of lawâ have a distinct legal significa- tion, clearly securing to every person . . . a judicial trial . . . before he can be deprived of life, liberty, or propertyâ); Murrayâs Lessee v. Hoboken Land & Improvement Co., 18 How. 272, 275, 280 (1856) (similar). Yet for most of our history we held that â[t]o those in the military or naval service of the United States the military law is due pro- cess.â 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) (âthe power of Congress, in the government of the land and naval forces and of the militia, 24 ORTIZ v. UNITED STATES ALITO, J., dissenting is not at all affected by the fifth or any other amend- mentâ); Wiener, 72 Harv. L. Rev., at 279 (in the history of courts-martial, âof due process of law as a constitutional concept, there is no traceâ); cf. 1 Blackstone 403â404 (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 adjudi- cate 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 ___â___ (THOMAS, J., dissenting) (slip op., at 12â13); see also Wellness Intâl 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 ___â___ (slip op., at 6â7). Similarly, en- forcement of military discipline is not a function that demands the exercise of judicial power, either. Dynes, supra; Murrayâs Lessee, supra, at 284. In short, military offenses are âexceptionsâ to Article III in the same way that true public rights disputes are ex- ceptions to Article III: the Federal Government can adju- dicate either one without exercising its judicial power. This means that when Congress assigns either of these functions to an Executive Branch tribunalâwhether the Patent Trial and Appeal Board, the Court of Claims, or the CAAFâthat does not imply that the tribunal in question is exercising judicial power. And the point holds notwith- standing the undoubted fidelity to âthe rule of lawâ that such officers bring to their tasks. Ante, at 11, n. 5. Con- trary to the majorityâs odd suggestion, acting âin strict compliance with legal rules and principlesâ is not a uniquely judicial virtue. Ibid. The most basic duty of the President and his subordinates, after all, is to âtake Care Cite as: 585 U. S. ____ (2018) 25 ALITO, J., dissenting that the Laws be faithfully executed.â Art. II, §3 (empha- sis 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 majorityâs suggestion that â[t]he military justice systemâs essential characterâ is âjudicial,â and has been âmain- tainedâ as such since the âvery first Congress,â 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 10â11, and n. 5, but Winthrop had a firmer grasp than the majority on the distinction between functions that can be described as âjudicialâ in a colloquial sense and functions that repre- sent an exercise of âjudicial powerâ in the constitutional sense. Thus, while Winthrop observed that courts-martial resemble constitutional courts in certain respects, he made those observations â[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.â 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 officerâs authority to appoint mem- bers of a court-martial as âa legislative powerâ); id., at 14 (describing courts-martial as âbeing clothed with judicial powersâ). Indeed, our own Court has frequently described functions as âjudicialâ in a colloquial sense, despite know- ing they are executive in the constitutional sense. E.g., Smelting Co. v. Kemp, 104 U. S. 636, 640 (1882) (Land Department officers âexercise a judicial functionâ although 26 ORTIZ v. UNITED STATES ALITO, J., dissenting they are âpart of the administrative and executive branch of the governmentâ); Murrayâs Lessee, 18 How., at 280â 281; Vallandigham, 1 Wall., at 253; Arlington, 569 U. S., at 304â305, n. 4. The majorityâs reliance on Attorney General Bates is even weaker. Ante, at 10. Bates wrote a memo to Presi- dent Lincoln opining that when the President acts to âapprove and confirm the sentence of a court martial,â or to ârevis[e] its proceedings,â Congress intended him to âact judiciallyâthat is, [to] exercise the discretion confided to him within the limits of law.â 11 Op. Atty. Gen. 20â21 (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 Presiden- tial actions as âjudicialâ had nothing to do with judicial review, and in Vallandigham, supra, at 254, we rejected the idea that âthe Presidentâs actionâ in approving a court- martial 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 execu- tive rather than judicial power. III What remains of the majorityâs analysis boils down to the assertion that courts-martial âresembleâ conventional courts, ante, at 9, indeed, that âcourt-likenessâ is the dispositive issue, ante, at 16 (emphasis deleted). The first thing to be said in response to this theory is that we have ânever adopted a âlooks likeâ test to deter- mine if an adjudicationâ 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 Cite as: 585 U. S. ____ (2018) 27 ALITO, J., dissenting analysis as utterly inadequate to police separation-of- powers 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 juris- diction turns on the extent to which the underlying tribu- nal looks like a court. In any event, the majorityâs âlooks likeâ test fails on its own terms. It is certainly true that todayâs 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 independ- ence. Nothing I say about the current system should be interpreted as denigrating that system or as impugning the dedication, professionalism, and integrity of the offi- cers who serve in it, notwithstanding the majorityâs insist- ence to the contrary. Ante, at 11, n. 5. As explained above, military officersâ undoubted fidelity to law has nothing to do with the court-martial systemâs status under our Constitution. That status is what my point here concerns. And that status has never changed. Todayâs 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 innova- tions, the UCMJ subjected courts-martial to more elabo- rate procedural rules than ever before. It also created a system of internal appellate tribunals within the military chain of command. Those entitiesâwhich 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 Forcesâdid not exist before 1950. Congress augmented this system in 1983, for the first time in Amer- ican history providing for direct Supreme Court review of certain decisions of the highest military tribunal. 97 Stat. 1405â1406; 10 U. S. C. §867a; 28 U. S. C. §1259. Such reforms, as I have indicated, are fully consistent 28 ORTIZ v. UNITED STATES ALITO, J., dissenting with the Presidentâs overriding duty to âfaithfully ex- ecut[e]â the laws. Art. II, §3. Hence, even after Congress passed the UCMJ, we continued to recognize that the court-martial system âhas always been and continues to be primarily an instrument of discipline,â OâCallahan v. Parker, 395 U. S. 258, 266 (1969), and that âcourts-martial are constitutional instruments to carry out congressional and executive will,â 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 CAAFâwhich the majority has not doneâit would still be incorrect to perceive any- thing other than executive power at issue here. An examination of the CAAF confirms this point. The CAAFâs 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 âvery broad,â Bowsher v. Synar, 478 U. S. 714, 729 (1986). These and other provisions of the UCMJ âmake clear that [the CAAF] is within the Executive Branch.â 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 mili- tary 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 Gen- eral orders it to hear. §867(a)(2). And, contrary to the majorityâs assertion, the CAAFâs decisions are not âfinal (except if we review and reverse them).â Ante, at 18. In fact, in the most serious cases that the CAAF re- viewsâthose in which a court-martial imposes a sentence of death or dismissal from the Armed Forcesâthe CAAFâs judgment cannot be executed until the President, the Cite as: 585 U. S. ____ (2018) 29 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 â[a]fter [the CAAF] has acted on a case,â the âconvening authority [shall] take action in ac- cordance with that decision,â âunless there is to be further action by the President or the Secretary concerned.â §867(e) (emphasis added). In such cases the âproceedings, findings, and sentencesâ of the court-martial systemâ including the CAAFâs âappellate reviewââare 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 itâa requirement that is not subject to any timeframe or substantive standards. See Manual for Courts-Martial, United States Rule for Courts- Martial 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 commandâs historic revisory power over the CAAFâs most significant decisions, there is no way for us to conclude that the CAAF is âjudicialâ under any known definition of that term. And it should not matter that Ortizâs own sentence is not subject to ââââââ 5 Thus, JUSTICE THOMAS is mistaken when he asserts that â[t]he Ex- ecutive Branch has no statutory authority to review or modify the CAAFâs decisions.â Ante, at 7 (concurring opinion). And anyway, even if the CAAFâs 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 con- sistent with executive as well as judicial power. 6 For example, in 1996 we granted certiorari to the CAAF and af- firmed the court-martial conviction and capital sentence of Dwight Loving. Loving v. United States, 517 U. S. 748 (1996). Yet our judg- ment could not be deemed finalâand hence could not be carried outâ until the President approved it. Neither President Clinton nor Presi- dent 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). 30 ORTIZ v. UNITED STATES ALITO, J., dissenting 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 Hayburnâs Case, 2 Dall., at 411, n., 413, n., it has been firmly established that it is âradically incon- sistentâ with the âjudicial powerâ for any courtâs judg- ments, âunder any circumstances,â to âbe liable to a rever- sion, or even suspension,â by members of the Executive or Legislative Branches. Indeed, â[t]he award of execution is a part, and an essential part of every judgment passed by a court exercising judicial power.â Gordon, 117 U. S. Appx., at 702; Plaut v. Spendthrift Farm, Inc., 514 U. S. 211, 218â219 (1995). Simply put, the CAAFâs 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 juris- diction does not permit us to review its decisions directly. That conclusion is unaffected by Congressâs 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 courtâ perhaps one of the regional Courts of Appeals or the Fed- eral Circuitâwith additional review available here. But as long as the CAAF retains its current status as an Exec- utive Branch entity, Congress cannot give our Court juris- diction to review its decisions directly. * * * The arguments in this case might appear technical, but important interests are at stake. The division between our Courtâs original and appellate jurisdiction provoked Cite as: 585 U. S. ____ (2018) 31 ALITO, J., dissenting extended and impassioned debate at the time of the found- ing. See Amar, Marbury, Section 13, and the Original Jurisdiction of the Supreme Court, 56 U. Chi. L. Rev. 443, 468â478 (1989). The Framers well understood that the resolution of this dry jurisdictional issue would have practical effects, ibid., and in a similar vein, the Courtâs holding that the CAAF exercises something akin to judi- cial 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 âother adjudicative bodies in the Executive Branchâ that the majority tells us not to worry about. Ibid. The majority cites the âjudicial character . . . of the court-martial system,â as well as its âconstitutional foundations and history,â ibid., but as I have explained, the constitutional foundations, history, and fundamental character of mili- tary tribunals show that they are Executive Branch enti- ties that can only permissibly exercise executive powerâ 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. Todayâs decision erodes that wall. Because the Court ignores both the wisdom of the Founders, the clear, consistent teaching of our prece- dents, and the unambiguous text of the Constitution, I respectfully dissent.
Case Information
- Court
- Supreme Court of the United States
- Decision Date
- June 22, 2018
- Citation
- 138 S. Ct. 2165
- Status
- Precedential