If President Trump’s semi-worship of the military services gives you heartburn, you may wish to pay attention to this post by Steve Vladeck on Lawfare:
On Monday, as part of its annual “Long Conference,” the Supreme Court will consider three petitions (in each of which I’m counsel of record) raising the question I wrote about back in February: whether an important but little-known 1870 statute that prohibits active-duty military officers from holding most “civil offices” in the federal government applies to the Article I Court of Military Commission Review (CMCR), the intermediate appeals court that sits between the Guantánamo military commissions and the D.C. Circuit. At first blush, this may seem like a hyper-specific (and, thus, not especially cert.-worthy) question. But as I explain in the post that follows, thanks to how the lower courts have ruled in these cases (and how the government has argued them), the three petitions—Dalmazzi v. United States, Cox v. United States, and Ortiz v. United States—are actually about much, much more than the CMCR.
Indeed, if the Court of Appeals for the Armed Forces (CAAF) and the government are correct about the 1870 statute, there would be no legal impediment to appointing active-duty military officers to almost every civil office in the U.S. government—even though, as the Ninth Circuit has explained, the law was intended “to assure civilian preeminence in government, i.e., to prevent the military establishment from insinuating itself into the civil branch of government and thereby growing ‘paramount’ to it.” Thus, although I think it’s clear that CAAF and the government are quite wrong on the merits, the one point on which I hope all can agree is that the issue is of sufficient importance for the future of civil-military relations in this country to warrant the Justices’ attention—and grants of certiorari.
Between this and attacks on the Johnson Amendment, it feels like some of the most important institutions of American life are under attack.
