Article II Section 2 of the U.S. Constitution, the Commander in Chief clause, states that "[t]he President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States."
Does the appointment of military officers serving on the Army or Air Force Courts of Criminal Appeals to the United States Court of Military Commission Review violate either 10 U.S.C. § 973(b)(2) or the Constitution, and does the Supreme Court have appellate jurisdiction to review the case under 28 U.S.C. § 1259(3)?
In 2016, President Obama appointed four active-duty military officers already serving on the Army or Air Force Courts of Criminal Appeals (CCAs) to serve as judges on the United States Court of Military Commission Review (CMCR). This case consolidates petitions from eight servicemembers whose appeals were each ruled on in a CCA proceeding by one of the judges also appointed to the CMCR. Dalmazzi and her fellow petitioners, individuals whose sentences were affirmed by one of these judges, challenge the judges’ dual appointments as violations of 10 U.S.C. § 973(b)(2), which bars military officers from holding civil offices requiring appointment by the president with the advice and consent of the Senate. Dalmazzi also argues that the Supreme Court has jurisdiction to hear the appeal under 28 U.S.C. § 1259(3). The United States counters that the CMRC judgeship is not a civil office and appointments there do not require advice and consent of the Senate. Additionally, the United States argues that the Supreme Court lacks jurisdiction in some of the consolidated cases. This case creates potential implications for the scope of the Appointments Clause and the Executive Branch’s power to select judges.
Petitioner Nicole Dalmazzi was a Second Lieutenant in the United States Air Force. See United States v. Dalmazzi, ACM No. 38808, 2016 WL 3193181, at *1 (A.F. Ct. Crim. App. May 12, 2016). In January 2014, the Air Force Office of Special Investigations (“AFOSI”) began investigating commissioned officers for drug offenses.
In February 2012, the National Labor Relations Board ("NLRB") upheld a ruling that the soft-drink bottler Noel Canning had violated the National Labor Relations Act ("NLRA"). Noel Canning argued that the NLRB decision was invalid because, at the time, the NLRB had lacked the minimum number of officials required to enforce the NLRA. Specifically, Noel Canning argued that President Obama, in January 2012, had improperly appointed three of the NLRB’s members under the Recess Appointments Clause. The Supreme Court will determine (1) whether the Recess Appointments Clause authorizes the President to make appointments for vacancies that do not arise during a Senate recess and (2) whether the President can exercise the power between pro forma sessions or only during breaks between enumerated sessions. While the NLRB argues that a narrow reading of the Recess Appointments Clause threatens the executive branch’s ability to pragmatically overcome Senate delays in approving nominees, Noel Canning counters that the President cannot exercise the recess appointment power to fill vacancies that did not arise during breaks between enumerated sessions. The Court's ruling will affect the President’s ability to appoint officials without the Senate’s approval during pro forma recesses. The Court’s decision could invalidate earlier executive appointments (and government actions arising from those appointments) that have been made under the Recess Appointments Clause.
The Recess Appointments Clause of the Constitution provides that "[t]he President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session." Art. II, § 2, C1. 3. The questions presented are as follows:
Note: In addition to the questions presented by the petition, the parties are directed to brief and argue the following question: whether the President’s recess-appointment power may be exercised when the Senate is convening every three days in pro forma sessions.
In January 2013, the D.C. Circuit Court of Appeals held that a February 2012 decision by the National Labor Relations Board (“NLRB” or “the Board”) was invalid because the Board did not have a sufficient number of board members to act at the time. See Noel Canning v. NLRB, 705 F.3d 490, 492-93 (D.C. Cir. 2013).
Political Question doctrine is the rule that Federal courts will refuse to hear a case if they find that it presents a political question. This doctrine refers to the idea that an issue is so politically charged that federal courts, which are typically viewed as the apolitical branch of government, should not hear the issue.
Separation of Powers is a doctrine of Constitutional law under which the three branches of U.S. government (executive, legislative, and judicial) and their duties, are kept legally separate.
Can a congressional committee subpoena the records of the President of the United States, when those records are unprivileged and held by a third party?
The Supreme Court will determine whether a congressional committee may subpoena a third-party for the financial records of the President of the United States. The United States Courts of Appeals for the District of Columbia and the Second Circuit have both held that congressional committees did not exceed their constitutional authority when they issued subpoenas to President Donald Trump’s accountant and several banks for his personal financial records, because those subpoenas were related to legitimate legislative purposes. Petitioner President Trump argues that Congress may not issue subpoenas for the documents of a sitting President under the constitutional doctrine of separation of powers. Respondents, three Committees of the House of Representatives, argue that Congress has long exercised investigative power over the President as part of its legislative function. This case will likely affect the number and scope of future congressional subpoenas for a President’s personal records.
Whether the Committee on Oversight and Reform of the U.S. House of Representatives has the constitutional and statutory authority to issue a subpoena to the accountant for President Trump and several of his business entities demanding private financial records belonging to the President.
On May 16, 2018, the Acting Director of the Office of Government Ethics alerted the Deputy Attorney General to a discrepancy in one of the financial disclosure reports President Trump filed according to the Ethics in Government Act of 1978. Trump v.
Does a sitting president enjoy absolute immunity from a grand-jury subpoena seeking 10 years’ worth of the president’s financial records, even if the subpoena was served on his accounting firm, and not himself?
This case asks the Supreme Court to decide whether a grand-jury subpoena served on the president’s accounting firm that demands 10 years’ worth of the president’s financial records comports with the Constitution. President Trump argues that Article II renders the president categorically immune to any criminal process while in office. This is especially so here, President Trump argues, where the Supremacy Clause asserts the primacy of federal interests over those of state courts, and where the criminal nature of the subpoena imposes a stigma. Vance counters that Article II and the Supremacy Clause do not apply where the particular legal process does not implicate or impinge on the president’s official conduct. Vance points to the Court’s centuries-long practice of enforcing presidential subpoenas. The outcome of this case will significantly affect local officials’ ability to launch investigations into matters concerning sitting presidents, as well as presidents’ immunity from grand jury investigations while in office.
Whether a grand-jury subpoena served on a custodian of the president’s personal records, demanding production of nearly 10 years’ worth of the president’s financial papers and his tax returns, violates Article II and the Supremacy Clause of the Constitution.
In 2018, the District Attorney of the County of New York (“District Attorney”) initiated a grand jury investigation into “whether several individuals and entities have committed criminal violations of New York law.” Trump v.
Do states have standing to challenge federal programs that grant temporary deportation protection to some undocumented immigrants, if the programs increase the states’ cost of providing voluntarily subsidized benefits? And is the deferred deportation program in this case lawful under the Administrative Procedure Act and Article II of the U.S. Constitution?
In 2014, the Department of Homeland Security (“DHS”) issued a guidance policy granting temporary deportation protection to 4.3 million undocumented immigrants, called the Deferred Action for Parents of Americans and Lawful Permanent Residents (“DAPA”) program. In the same year, twenty-six states (the “states”) challenged the DAPA guidance. In this case, the Supreme Court will decide: (1) whether states have standing to challenge DAPA if it will increase the costs of state-subsidized benefits, such as driver’s licenses; and (2) whether DAPA is lawful under the Administrative Procedure Act and the Take Care Clause of the Constitution. The United States argues that the states do not have standing because the increased costs of state subsidized benefits are merely incidental effects of the guidance policy and are self-inflicted. Additionally, the United States argues that the Immigration and Nationality Act (“INA”) gives the executive branch power to choose which immigrants to deport—a power exercised through the DAPA guidance policy. But the states assert that the United States cannot defeat standing by claiming that the costs are self-inflicting. Moreover, the states claim that the INA does not explicitly give the executive power to provide temporary protection from deportation. The Court’s decision could affect the status of and benefits available to undocumented immigrants and the scope of the president’s discretion when executing immigration law.
1. Does a State that voluntarily provides a subsidy to all aliens with deferred action have Article III standing and a justiciable cause of action under the Administrative Procedure Act (APA), 5 U.S.C. 500 et seq., to challenge the Guidance because it will lead to more aliens having deferred action?
2. Is the Guidance arbitrary and capricious or otherwise not in accordance with law?
3. Is the Guidance invalid because it did not go through the APA’s notice-and-comment rule-making procedures?
4. Does the Guidance violate the Take Care Clause of the Constitution, Art. II, § 3?
In 2012, the Department of Homeland Security (“DHS”) implemented the Deferred Action for Childhood Arrivals (“DACA”) program, which provides temporary protection from deportation (“deferred action”) for primarily young undocumented immigrants. Texas v.
