ArtIII.S1.9.5 Non-Article III Military Courts

Article III, Section 1:

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.

Article I grants Congress the authority “[t]o make Rules for the Government and Regulation of the land and naval forces.” 1 In the 1858 case Dynes v. Hoover, the Supreme Court upheld the use of this authority to create military courts.2 In that case, the Court observed that “Congress has the power to provide for the trial and punishment of the military and naval offences,” and that power “is given without any connection between it and the 3d article of the Constitution defining the judicial power of the United States; indeed, . . . the two powers are entirely independent of each other.” 3

Although Congress has broad authority to create and implement military courts, the Supreme Court has set some substantive limits on those courts’ jurisdiction. For instance, military courts cannot be used to try civilians,4 including the spouses of military members.5 Additionally, the Court has held that military courts have jurisdiction over members of the military only when they are still in service.6 However, military courts are able to try non-service related crimes while the defendant is still in the service.7 Currently, the U.S. Court of Appeals for the Armed Forces, an Article I court, sits at the apex of the military justice system.8 Judges of that court sit for fifteen-year terms and can be removed by the President for neglect of duty, misconduct, or mental or physical disability. Another example of military courts are the military tribunals established by President George W. Bush by Executive Order shortly after the September 11, 2001, attacks.9

U.S. Const. art. I, § 8, cl. 14. back
61 U.S. (20 How.) 65, 79 (1857). back
Id. back
Ex parte Milligan, 71 U.S. 2, 121–22 (1867). back
Reid v. Covert, 354 U.S. 1, 30 (1957); see also Kinsella v. United States ex rel. Singleton, 361 U.S. 234, 249 (1960). back
United States ex rel. Toth v. Quarles, 350 U.S. 11, 14–15 (1955). But see 10 U.S.C. § 802(a). back
Solorio v. United States, 483 U.S. 435, 450–51 (1987). back
10 U.S.C. § 941. back
Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism, 66 Fed. Reg. 57, 833 (Nov. 13, 2001) . back