Daniel D. Maurer (Dept of Law, United States Military Academy at West Point) has posted Larrabee at the District Court: Misunderstanding Military Criminal Law by the Article III Judiciary is Far From Retired (2021 University of Illinois Law Review Online 23) on SSRN. Here is the abstract:
The U.S. military’s criminal justice system is little understood by the public, by Congress, or by the Courts. Despite more than seventy years of steady “civilianization” (I prefer the less condescending “de-militarizing”) of its arcane and idiosyncratic features, and despite the U.S. Supreme Court recognizing its “inherently judicial nature” (as opposed to a mere instrument of command discipline) as recently as 2018, federal Article III judges conducting the occasional collateral review of courts-martial still seem to struggle with the nature of the military’s internal law for “good order and discipline” and what has come to be called the “Toth Doctrine.” As a result, reviewing federal courts’ degree of deference – and their explanation of Congress’s reasoning for how it has constructed military justice as a unique balance of national security and due process equities – is sometimes jumbled, misleading, and historically inconsistent.
Such is the case in Larrabee v. Braithwaite, a recent de novo review out of the U.S. District Court for the District of Columbia, which took the unusual step of holding part of the military justice’s personal jurisdiction scheme unconstitutional – not as a due process or equal protection violation, but for exceeding Congress’s authority under its “make rules for the regulation and government of the land and naval forces” clause of Article I. This misreading is not ameliorated by the District Court’s (probably) correct (or at least fair) outcome; rather, it suggests that Congress – and the military – must a do a better job articulating and supporting its own rationales for its structural choices that look so peculiar to civilian observers and unnecessarily confuse civilian courts.
Recommended.