Wherein We Come to the Appointed Time to Debate the Appointments Clause

Again it is Reyes for the defense.  His subject?  The Convening Authority, the Constitution’s Appointments Clause, and the defense’s motion to dismiss on Appointments Clause grounds (AE87).  The Convening Authority exercises extraordinary power, he says---of the kind exercised by a “principal” officer requiring Senate confirmation under the Constitution.  The lawyer thinks this is the central question regarding whether a particular person should be regarded as a principal officer: Can his or her decisions be countermanded?   On that point, Judge Pohl notes that the Secretary of Defense can withdraw jurisdiction from the Convening Authority; Reyes oddly acknowledges this, but he adds that the Convening Authority’s decision to refer or not to refer charges---shades of Susan Crawford and Qatani here---is made effectively unreviewable by dint of the unlawful influence provisions of the MCA.  There’s some back and forth regarding Appointments Clause case law.  Reyes and the court touch on the Supreme Court’s Morrison case, among other authorities, and then defense counsel returns to his opening point. Judge Pohl wants instead to talk about congressional intent---the court seems to believe that the legislature, in passing the MCA, meant to treat the Convening Authority as an “inferior” officer under the Constitution.  Reyes disagrees, again pointing to the Convening Authority’s unilateral authority in certain areas. Trial counsel, in the person of Martins, argues that Reyes has the Appointments Clause wrong.  The authority to make the relevant appointment here was vested by law in the Secretary of Defense, he says.  Afterwards, Secretary Gates appointed Bruce MacDonald as the Convening Authority.  That clearly reflects the checks and balances contemplated by the Appointments Clause, and fits comfortably with the relevant authorities including Morrison.  Martins acknowledges that Congress can exceed its power under the Clause, but he argues that Congress has not done so in this case.  Judge Pohl asks whether the absence of a confirmation procedure is consistent with the appointment of an inferior officer here; Martins says that it is, while returning to the court’s point about the Secretary of Defense’s ongoing power over Convening Authority jurisdiction.  And, the prosecutor adds, the Convening Authority cannot refer charges unilaterally. Mr. MacDonald must first receive sworn charges from a military official.  There’s accountability here, too: the Secretary of Defense’s decisions are always subject to review by the public.  A few more clarifying points regarding MacDonald’s particular duties, and the prosecutor concludes by once more asking Judge Pohl to deny the motion. In reply, Reyes argues that the prosecution has misconstrued some relevant case law.  For example, in one pertinent case, the convening authority’s decisions were subject to full review---unlike decisions made by MacDonald regarding the military commissions.  Judge Pohl says the principal-inferior line can be tough to draw, and Reyes agrees.  But, the court asks, shouldn’t the congressional determination of an officer’s status get some deference?  The defense lawyer again points to the unlawful command influence rule, and concludes. Judge Pohl will take the motion under advisement, as he did earlier.  But don't drop your pens, Fort Meade media folks: there will be no lunch break today. We are just going to power through and finish up.