But what I do care about in Thomas is the main thrust of Judge Baker's dissent. He relies on the MCM's statement of the elements of the Article 112a offense of wrongful introduction. Judge Baker states:
In the context of the UCMJ, it is well-established that, unless otherwise precluded from doing so, the President can define elements of offenses pursuant to Congress's delegation of authority under Article 36, UCMJ, provided that the exercise of such authority is neither contrary to nor inconsistent with the provisions of the UCMJ.
Baker, J., slip op. at 4 (footnote omitted). No citation to authority follows this statement. But that proposition isn't well-established at all. Consider, for example, this statement by a CAAF majority:
We note that we are not bound by the President's interpretation of the elements of substantive offenses. As we stated in United States v. Mance, 26 M.J. 244, 252 (1988):
While the views of the drafters of the various Manuals in writing the provisions just discussed and those of the President in promulgating them are important, they are not binding on this Court in fulfilling our responsibility to interpret the elements of substantive offenses - at least, those substantive crimes specifically delineated by Congress in Articles 77 through 132 of the Code, 10 USC §§ 877-932, respectively.
United States v. Davis, 47 M.J. 484, 486 (C.A.A.F. 1998); accord United States v. Guess, 48 M.J. 69, 71 (C.A.A.F. 1998).
Davis also rebuts Judge Baker's Article 36 argument: "Article 36(a), UCMJ, 10 USC § 836(a), gives the President express authority to promulgate rules under Parts II and III of the Manual. Part IV of the Manual is not expressly governed by Article 36(a)." Davis, 47 M.J. at 486.
Judge Baker seeks to bolster his argument by pointing to judicial deference to the Manual's recitation of the elements of Article 134 offenses. But military law has long drawn a distinction between judicial primacy in construing the elements of Article 77-132 offenses and judicial deference to the MCM in construing enumerated Article 134 offenses. As a recent ACCA case helpfully explains:
When analyzing the offenses codified by Congress in Articles 77 through 132, UCMJ, the courts have treated the President's analysis as "mere commentary," which is "important" but "not binding." United States v. Watson, 31 M.J. 49, 52 (C.M.A. 1990); United States v. Mance, 26 M.J. 244, 252 (C.M.A. 1988). Where the President's substantive analysis of these articles has deviated or exceeded the statutory language, the courts have declined to follow it where they do not believe it represents the best interpretation of the statute. Maggs, 160 Mil. L. Rev. at 139; see, e.g., United States v. Czeschin, 56 M.J. 346, 349 (C.A.A.F. 2002); Mance, 26 M.J. at 252; United States v. Ferguson, 40 M.J. 823, 828 (N.M.C.M.R. 1994); United States v. Omick, 30 M.J. 1122, 1124 (N.M.C.M.R. 1989). In such cases, the courts have emphasized that "the President does not have power to redefine the elements of punitive articles and thus change substantive criminal law." 8 Maggs, 160 Mil. L. Rev. at 129.
The analysis has been different when courts interpret the elements of offenses arising under the general article, Article 134, UCMJ. The statutory elements of such offenses are (1) that the accused did or failed to do certain acts; and (2) that, under the circumstances, the accused's conduct was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces. UCMJ art. 134; United States v. Cherukuri, 53 M.J. 68, 71 (C.A.A.F. 2000). The President has identified fifty-three specific offenses that can fall within the proscribed range of conduct and provided a list of "elements" that the government must prove to obtain a conviction for each of these offenses. MCM, Part IV, para. 61 - 113. The courts have generally accepted the President's explanation of these elements as defining what is required to obtain a conviction for a specified offense under Article 134, UCMJ. 10 Maggs, 160 Mil. L. Rev. at 140. As one commentator has explained:
Article 134 contains such broad language that its enforcement inevitably raises policy questions. The courts have respected the separation of powers by not undertaking to answer these questions themselves. Instead, they have deferred to the President who, as Commander-in-Chief, has expertise in the area of military justice. Congress presumably intended this approach; the open-ended language of Article 134 exhibits a need for narrowing by the President.
Maggs, 160 Mil. L. Rev. at 141. Thus, in the unique case of offenses charged under Article 134, UCMJ, we look at both the statute and the President's explanation in Part IV of the MCM to determine the elements of the offense.
United States v. Zachary, 61 M.J. 663, 667-668 (A. Ct. Crim. App. 2005) (footnotes omitted), aff'd, 63 M.J. 438 (C.A.A.F. 2006).
Professor Maggs' use of the word "narrowing" is important. The final element of each enumerated Article 134 offense is "That, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces." That is ALL that is statutorily required for an Article 134(1) or (2) offense. So in promulgating Part IV's elements for Article 134 offenses, the President isn't "defin[ing] new offenses" at all - rather, he is ADDING elements to the congressional language, not modifying or expanding the congressional language. This really functions as a way to define the particular punishments that may be imposed for the various enumerated offenses, which the President may set under Article 56.
In footnote 7 of his dissent, Judge Baker observes that "[t]he majority does not address this elements argument." As CAAF's case law clearly holds, it is the courts' role to determine the elements of an Article 112a offense, not the President's. Why didn't the majority say so?