520 U.S. 651 (1997)
The Coast Guard Court of Criminal Appeals, formerly known as the Coast Guard Court of Military Review, functions as an intermediate appellate court within the military justice system alongside similar courts for the Army, Air Force, and Navy-Marine Corps.1 It reviews appeals from courts-martial, and its decisions are subject to further review by the United States Court of Appeals for the Armed Forces.2 During the times relevant to this case the court included two civilian members, Chief Judge Joseph H. Baum and Associate Judge Alfred F. Bridgman, Jr., both of whom were originally assigned by the General Counsel of the Department of Transportation acting ex officio as the Judge Advocate General of the Coast Guard.3
In anticipation of the Supreme Court's decision in Weiss v. United States, Chief Judge Baum sent a memorandum requesting that the Secretary of Transportation reappoint the civilian judges.4 On January 15, 1993, the Secretary issued a memorandum adopting the General Counsel's prior assignments as his own judicial appointments and listed Baum and Bridgman among the judges appointed by him.5
Each petitioner in the present case was convicted by court-martial. In each case the conviction and sentence were affirmed in whole or in part by the Coast Guard Court of Criminal Appeals after the 1993 appointments. Chief Judge Baum participated in every decision, and Judge Bridgman participated in the appeals of two petitioners.6
The Court of Appeals for the Armed Forces affirmed the convictions in each case.7 Petitioners sought review through a consolidated petition, and the Supreme Court granted certiorari.8
Whether Congress has authorized the Secretary of Transportation to appoint civilian members of the Coast Guard Court of Criminal Appeals?9
Under 49 U.S.C. § 323(a) the Secretary of Transportation may appoint and fix the pay of officers and employees of the Department of Transportation and may prescribe their duties and powers.10 Article 66(a) of the Uniform Code of Military Justice refers only to the assignment of appellate military judges to Courts of Criminal Appeals and does not constitute an appointment mechanism that would displace the Secretary's authority under the more general statute.11
Yes. The plain language of 49 U.S.C. § 323(a) grants the Secretary authority to appoint officers of the Department, and the petitioners do not dispute that the judges are such officers.12 Article 66(a) speaks exclusively in terms of assignment rather than appointment, consistent with the distinction drawn in prior precedent between duties that may be assigned and offices that require a separate appointment under the Appointments Clause.13 The Secretary exercised this authority when he issued the January 15, 1993 memorandum that adopted the prior assignments of Chief Judge Baum and Judge Bridgman as his own judicial appointments.14
Congress has authorized the Secretary of Transportation to appoint the civilian members of the Coast Guard Court of Criminal Appeals.15
Whether judges of the Coast Guard Court of Criminal Appeals are inferior officers within the meaning of the Appointments Clause?16
Inferior officers are those whose work is directed and supervised at some level by other officers who were appointed by the President with the advice and consent of the Senate.17 An officer has a superior when another executive officer possesses administrative oversight, the power of removal without cause, and the ability to prevent the officer from rendering final decisions on behalf of the United States.18
Yes. The judges of the Coast Guard Court of Criminal Appeals are subject to administrative oversight by the Judge Advocate General, who prescribes uniform rules of procedure, formulates policies for review of court-martial cases, and may remove a judge from judicial assignment without cause.19 Their decisions remain subject to further review by the Court of Appeals for the Armed Forces in cases involving death sentences, orders from the Judge Advocate General, or grants of review, and the judges possess no power to render a final decision on behalf of the United States unless permitted to do so by other executive officers.20 Although the judges review serious sentences and independently weigh evidence, the existence of supervision by Senate-confirmed officers places them on the inferior-officer side of the Appointments Clause line.21
Judges of the Coast Guard Court of Criminal Appeals are inferior officers within the meaning of the Appointments Clause.22
Related opinions on this issue
Justice Souter joined Parts I and II of the opinion and agreed that the judges are inferior officers because the Judge Advocate General exercises substantial supervisory authority, including the power to remove judges from assignments without cause.23 He stressed, however, that the existence of a superior is necessary but not sufficient to establish inferior-officer status and that a fuller examination of tenure, jurisdiction, duties, and removal power, following the approach in Morrison v. Olson, is required.24 After conducting that examination and referencing his earlier analysis in Weiss v. United States, he joined the conclusion that the judges of the Coast Guard Court of Criminal Appeals are inferior officers.25