Army GAD, in a brief expressly filed "on behalf of the appellee, the United States of America," takes the position that CAAF has no jurisdiction to review a CCA's ruling on an Article 62 appeal. Yet the Air Force Appellate Government Division, in an amicus brief filed "on behalf of the United States Air Force" takes the position that CAAF does have jurisdiction over such cases. So much for the unitary executive.
The Air Force Appellate Government Division's argument relies in part on the canard of interpretation by congressional inaction. The amicus brief seeks to insulate CMA's opinion in United States v. Tucker, 20 M.J. 52 (C.M.A. 1985), from the threat of being overturned by arguing that Congress hasn't objected to Tucker. The brief argues: "Most importantly, in the 22 years since Tucker was announced, Congress has not acted to overrule the holding legislatively. This is despite the fact that both Articles 62 and 67 have been amended multiple times since 1985." Air Force Appellate Government Amicus Brief at 3.
The Supremes have rightly rejected this form of argument:
Patterson v. McLean Credit Union, 491 U.S. 164, 175 n.1 (1989).
It is "impossible to assert with any degree of assurance that congressional failure to act represents" affirmative congressional approval of the Court's statutory interpretation. Johnson v. Transportation Agency, Santa Clara County, 480 U.S. 616, 671-672 (1987) (Scalia, J., dissenting). Congress may legislate, moreover, only through the passage of a bill which is approved by both Houses and signed by the President. See U. S. Const., Art. I, § 7, cl. 2.
In Justice Scalia's Johnson dissent, which the majority adopts in Patterson, he explained the reason why congressional inaction lacks persuasive force:
[O]ne must ignore rudimentary principles of political science to draw any conclusions regarding that intent from the failure to enact legislation. The "complicated check on legislation," The Federalist No. 62, p. 378 (C. Rossiter ed. 1961), erected by our Constitution creates an inertia that makes it impossible to assert with any degree of assurance that congressional failure to act represents (1) approval of the status quo, as opposed to (2) inability to agree upon how to alter the status quo, (3) unawareness of the status quo, (4) indifference to the status quo, or even (5) political cowardice.
Johnson v. Transportation Agency, 480 U.S. 616, 671-72 (1987) (Scalia, J., dissenting).
This situation likely reflects option #3. How many Members of Congress know of Tucker or what it held? The notion that the failure of a majority of both houses of Congress to rise up and repudiate Tucker must mean that they agree with Tucker is risible. Additionally, as Justice Scalia also explained in Johnson, even if congressional inaction did have any validity, it doesn't tell us anything about what the Congress that enacted Article 67 (or, for that matter, even Article 62) had in mind. Rather, it speaks at most to the views of Congresses from 1985 on -- which were not the Congresses that enacted the legislation at issue and, hence, not Congresses whose views should be sought to interpret either Article 67 or Article 62. See id. at 671 (noting "the patently false premise that the correctness of statutory construction is to be measured by what the current Congress desires, rather than by what the law as enacted meant").
Army GAD's brief, arguing for the opposite outcome, also seems to make at least one major mistake. GAD essentially tells CAAF that if it overturns Tucker, it need not fear that parties couldn't seek relief from erroneous CCA rulings on Article 62 appeals because the loser can take the case to CAAF via a petition for extraordinary relief. This position is only half right. GAD's brief in Lopez de Victoria states: "The All Writs Act provides an equal playing field to both the Government and the defense to seek relief from adverse interlocutory rulings and affords this Court with jurisdiction to review those cases which justify further review." Government Brief at 14 (emphasis added). Of course, the All Writs Act doesn't grant jurisdiction. As the Supremes noted in Clinton v. Goldsmith, "The All Writs Act . . . is not an independent grant of appellate jurisdiction." 526 U.S. 529, 535 (1999) (quoting 16 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 3932, at 470 (2d ed. 1996)). So GAD's position that the All Writs Act affords jurisdiction is legally erroneous. GAD is also wrong in suggesting that under its preferred regime, the government and defense would be on an equal extraordinary relief playing field. In fact, the defense's position would be far more favorable than the government's.
CAAF could review a CCA ruling on an Article 62 appeal via a petition for extraordinary relief, but only if the case were to fall within CAAF's potential appellate jurisdiction. See FTC v. Dean Foods Co., 384 U.S. 597, 603-04 (1966). BUT a case in which a CCA ruled on an Article 62 appeal will generally remain within CAAF's potential appellate jurisdiction only if the CCA rules against the accused. This is because such a ruling will send the case back for continued court-martial proceedings, which then clearly fall within CAAF's potential appellate jurisdiction, thereby falling within its All Writs Act authority. But when the CCA rules for the defense, the result is generally an end of proceedings. And a case in which the CCA ended proceedings can no longer fall within CAAF's potential appellate jurisdiction, since it can't produce a conviction. So GAD is too sanguine in thinking that the government will have an avenue to reach CAAF any time it loses an Article 62 appeal before a CCA. The defense will always have the ability to seek a writ from CAAF when it loses an Article 62 appeal at the CCA level; the government usually won't.