The U.S. Supreme Court hasn't reviewed a service member's challenge to a court-martial in more than 20 years. But that hasn't deterred Army and Air Force appellate lawyers and a Texas law professor from seeking review on behalf of more than 174 service members.

The challenges—arriving at the high court at a time when active duty and retired military officers are increasingly playing key roles in the Trump administration—carry implications for the division of military and civilian control of the federal government.

The petitioners want the justices to decide whether military judges violated a Civil War-era statute by hearing their appeals while also holding a nonmilitary office. Stephen Vladeck of the University of Texas School of Law is counsel of record in the challenges.

The 1870 statute, which the Supreme Court has never interpreted, prohibits active-duty military officers from concurrently holding a civil office, unless Congress expressly authorizes the dual office-holding. Congress enacted the law to ensure civilian control of the government. The remedy for dual office-holding was to sever immediately the military officer's service connection.

“As important as we think the issue is in our cases, the way the lower courts have interpreted the statute, if left undisturbed, could open the door to a lot more military involvement in what we have thought were civilian affairs,” Vladeck said.

The courts-martial petitions vary in their facts, but all have in common that a military appellate judge heard their appeals while also serving as a judge on the Article I U.S. Court of Military Commission Review. That court, known as the CMCR, was created in 2006 and substantially changed in 2009 to serve as an intermediate appellate court between the Guantanamo military commissions and the U.S. Court of Appeals for the D.C. Circuit.

The secretary of defense assigns judges from the military courts of criminal appeals to the CMCR. The president has authority to appoint civilian judges, with the advice and consent of the Senate.

The constitutional problem posed in the challengers' petitions is a structural one, according to the petitions. Military judges are executive branch inferior officers for purposes of the appointments clause. But because the CMCR—unlike military courts of criminal appeals—is not subject to supervision within the executive branch, its judges are principal officers who require appointment by the president, with the advice and consent of the Senate. And CMCR judges hold a “civil office” by virtue of its creation as an Article I federal court, the challengers allege.

A 1979 Justice Department Office of Legal Counsel memo on the dual office-holding statute concluded: “Where Congress wishes to permit a military officer to occupy a civilian position … without forfeiting his commission, it has done so explicitly.” There is no such explicit authority in the Military Commissions Act for the officers that heard their appeals to also sit on the CMCR, the challengers said.

Four military judges are the focus of the dual office-holding challenges, which raise essentially two questions: whether their service on the CMCR disqualified them from continuing to serve on their Army or Air Force courts of criminal appeals, and whether their simultaneous service on both violated the appointments clause.

“On our theory, the problem is not with these four military officers serving on the commission, but the problem is with them continuing to sit on courts-martial,” Vladeck said.

In Ortiz v. United States, Airman First Class Keanu Ortiz was convicted of knowingly and wrongfully viewing, possessing and distributing child pornography. He was sentenced to a dishonorable discharge, confinement for two years, forfeiture of pay and allowances, and reduction in rank. A three-judge panel of the Air Force Court of Criminal Appeals rejected Ortiz's appeal. The panel included a judge who also had been serving at the time on the CMCR.

The U.S. Court of Appeals for the Armed Forces rejected Ortiz's appeal, holding there was no violation of the appointments clause or the dual office-holding ban. Although the court suggested the statute might prohibit the challenged judge from holding office on the CMCR, “nothing in the text suggests that it prohibits” him from sitting on the military criminal court of appeals. And, it added, a “savings clause” protects any action by an officer in furtherance of his duties on the latter court.

Vladeck and the military appellate defense lawyers in the four petitions tell the Supreme Court that there are inconsistent rulings on the dual office-holding ban by the Armed Forces court and the CMCR itself that require the high court to resolve. Two lower courts have not addressed “the serious commander-in-chief clause problem” raised by the Ortiz judge's service on the CMCR.

That problem arises because CMCR judges who are appointed to the court may be removed by the president only for cause and not at will, they say. “If a CMCR judge is a civilian, this good-cause tenure protection raises no constitutional problem,” Vladeck writes. “But where, as here, the judge at issue is an active-duty military officer, such a constraint on the president's power raises constitutional concerns of the first order.”

The other petitions are Dalmazzi v. United States, Cox v. United States and Abdirahman v. United States (a consolidation of 167 cases).

The U.S. Justice Department opposes review in Dalmazzi and Cox, arguing that the Supreme Court does not have jurisdiction over those cases. In Ortiz, the acting U.S. solicitor general argues the position of judge on the CMCR is not a “civil office” and the statute expressly states it should not be interpreted to invalidate any action by an officer “in furtherance of assigned official duties.”

“I don't think this is an obviously partisan question in any sense,” Vladeck said. “This is not a statute about social policy, but about civilian-military relations and ensuring if not civilian control of the military then non-military control of civilians. I don't think that's a liberal or conservative issue.”