[00:00:00] Speaker 03:
Place number 21-5012, Stephen N. Larrabee versus Carlos del Toro in his official capacity as Secretary of the Navy and United States of Balance.

[00:00:09] Speaker 03:
Ms.

[00:00:10] Speaker 03:
Barmore for the balance, Mr. Vladeck for the appellee.

[00:00:14] Speaker 01:
Good morning, Ms.

[00:00:15] Speaker 01:
Barmore.

[00:00:17] Speaker 04:
Good morning.

[00:00:18] Speaker 04:
May it please the court?

[00:00:20] Speaker 04:
I'm Cynthia Barmore here for the government.

[00:00:22] Speaker 04:
I'd like to reserve two minutes of my time for rebuttal.

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For about a hundred years, the Fleet Marine Corps Reserve has by statute been part of the military and its members have been subject to court martial jurisdiction.

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The same has been true for retirees for even longer who bear many similarities to Fleet Marine Corps Reservists.

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These decisions are within Congress's Article I authority to organize the armed forces and to make rules for their governance.

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As the Supreme Court held nearly 200 years ago, in Dynes, Congress may subject persons actually in the armed service to trial by court-martial.

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And Fleet Marine Corps Reserve members are actually in the armed service, which we know for at least three main reasons.

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The first is that Congress has made that determination and is entitled to deference for doing so.

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The second is that it is consistent with long-standing historical practice.

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And finally, objective addition confirmed the plain reasonableness of Congress's decision in this area.

[00:01:29] Speaker 01:
Can I ask you a question about the first point, please?

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You mentioned deference, but all the cases you cite for judicial deference are cases where the

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The service member involved was already in active service.

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He's part of the service.

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He was in active service.

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I don't think any of them involve situations that we face here where the question is whether someone's in the military service.

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Why would the courts, why especially given Toth and cases like it, would the courts defer deeply to that?

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question, given that there are other constitutional provisions at stake, like Article III and the Fifth and Sixth Amendments.

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Your Honor, there are a couple of reasons why deference would be appropriate in this area.

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The first is that not only is clause 14 at issue, but also clauses 12 and 13, where the Supreme Court in Perpich emphasized that Congress's power in this area also is plenary and exclusive to both form and organize the armed services in the first instance.

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And so there is deference that accords to Congress's decision to, in the first instance, define the Fleet Marine Corps Reserve by statute as part of the military.

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Suppose Congress passed the bill because of, say, a particular military situation somewhere in the world.

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There are many, many more contractors and civilian employees working with the military.

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Suppose Congress decided to subject all civilian employees of the military to court-martial jurisdiction.

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Would we defer to that?

[00:03:20] Speaker 04:
Your Honor, we don't.

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contend that there is an unlimited authority here at issue.

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But looking to the Supreme Court's decision in Gualiardo is quite helpful for your question, because in that case, the Supreme Court held that you could not subject civilian employees to court martial jurisdiction.

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However, in that case, at the end, the Supreme Court did say that Congress could quite easily solve the jurisdictional problem in one of two ways, either by having these civilian employees either voluntarily or

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non-voluntarily enlist in the military as a formal matter or by following an ex parte read type procedure, which is what governs paymaster's clerks, where they are appointed for a permanent tenure until discharged and they agree in writing to be subject to court martial jurisdiction.

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And so the first point there suggests that Congress could require

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civilian employees as part of their service abroad with the military to enlist in the military and there wouldn't be a constitutional problem.

[00:04:23] Speaker 01:
The question you and I are talking about though is the extent of judicial deference and I want to go back to my original question.

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Here the question is whether a particular person or category of persons is in the military and

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And in Toth and subsequent cases say that the courts have a significant role in supervising Congress's decisions in that area, don't they?

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in making these determinations.

[00:05:01] Speaker 01:
It says, I mean, that's what Toth and the other cases say that, I guess what I understand your point that we do owe some deference, but I just don't, you haven't convinced me that the courts have no role here given the serious article three and fifth and sixth amendment questions that are at stake.

[00:05:27] Speaker 04:
Well, Your Honor, we are not content as no fault, but to get to, I think Your Honor's question is getting at whether there is an active duty limitation versus an inactive duty limitation on the approach that we've been proposing.

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And I would, there really is no limitation that Congress has made rules.

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Authority is limited to active duty forces alone.

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We know that for several reasons.

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First, you know, Solorio, when the Supreme Court

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decided Soloria discussed how clause 14 needs to be interpreted according to its plain meaning and the land and naval forces discussed in clause 14 is not qualified by their active duty or non active duty status.

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Instead, what Soloria said was that military status is what's important and military status includes being ready to fight wars

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should the occasion arise, which is equally true for inactive duty troops.

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Tyler itself when the Supreme Court decided Tyler in the 1800s, it expressly noted that, quote, qualified relief from active duty did not discharge retirees from their other obligations as part of the military.

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Ms.

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Cormor, can we step back from talking about these cases and let me just ask you a question here.

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Maybe you could help me in terms of how I think about this case.

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You already said that the question, and I agree with you about this, the question we have to decide, right, is whether members of the Fleet Marine Corps actually part or members of the armed service, right?

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That's the question, correct?

[00:07:02] Speaker 04:
Yes, Your Honor.

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And that's a question which turns on whether the person has, whether members of the Fleet Marine Corps have military duties and are subject to military orders, correct?

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Your Honor.

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Do you agree about that?

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Isn't that what this turns on?

[00:07:23] Speaker 04:
Well, what this turns out is, we agree with this case turns on whether the Fleet Marine Corps are

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is actually part of the military.

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What the report says- My second question is, that question in turn turns on whether they have military duties and are subject to military orders and discipline, correct?

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Now, Your Honor, I'm not aware of any court that has announced that particular test.

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However, if that is the test, the Fleet Marine Corps Reserve satisfies it.

[00:07:54] Speaker 01:
And so they're really- Well, let's go back to what courts, I mean, McElroy says,

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That's the paymaster case.

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Toth itself says that.

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They all talk about being part of the military structure, subjecting yourself to military discipline.

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I guess I'm a little surprised if you don't think that's the standard.

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I mean, think about it for a minute.

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Why else does Congress have the authority to allow the military to court martial its members, right?

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It's for discipline, correct?

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It's to discipline the military.

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That's part of the, that's why we allow the military

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to disciplines members outside of the Article 3 of the courts, right?

[00:08:43] Speaker 05:
That's exactly right.

[00:08:44] Speaker 01:
Okay.

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So, okay.

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So, and in fact, so, okay.

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So then, if we agree on that, and you and I can, let's set aside our disagreement about difference, okay?

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Just assume for a minute that I think there is

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There's not quite as much judicial deference as you think there is.

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So now that we agree on that standard, let me ask you about this case, OK?

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And I want to be sure I'm right about this.

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As I read the record, members of the Fleet Marine Corps, they don't have any specific military duties, right?

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And I don't see you disagreeing with that in the brief.

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I mean, they don't have commanding officers.

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They aren't assigned to specific commands.

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They can't issuers.

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I mean, they don't have any military duties at all.

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And you point out in your brief, they're subject to recall, right?

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Which I wanna talk to you about in a minute.

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And they have these other obligations like keeping their addresses up to date, rules about wearing their uniforms and things like that.

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And I wanna ask you a question about that.

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How does the military enforce

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or ensure compliance with those rules.

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Do you know?

[00:10:03] Speaker 04:
There are a variety of different ways the military can enforce rules beyond court martial jurisdiction or court martial jurisdiction administrative procedures, which I imagine could be used in that type of situation.

[00:10:15] Speaker 01:
Do you know as a practical matter how the court

[00:10:22] Speaker 01:
does manage these kinds of obligations, whether there's both the service related, whatever the service related obligations are, wearing their uniforms, keeping their addresses up to date and things like that.

[00:10:35] Speaker 01:
Do you know how the military?

[00:10:37] Speaker 04:
I am not aware of how the military, if somebody doesn't report their address, I'm not sure exactly how they- Well, let me ask you this question.

[00:10:46] Speaker 01:
I actually just don't know the answers to these and it'd be very helpful for me to know.

[00:10:49] Speaker 01:
Do you know whether or not

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Do you know whether or not the military ever, court marshals, members of the Fleet Marine Corps for violating these kinds of duties, these kinds of obligations?

[00:11:06] Speaker 04:
For example, not reporting their address?

[00:11:09] Speaker 01:
Yeah, right.

[00:11:10] Speaker 04:
I'm not aware of any court martial in that type of situation.

[00:11:13] Speaker 01:
And what about for other quote service?

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Let's not get into the debate about service related or not, but for members of the Marine, members of the fleet Marine Corps, do you know whether they are a court martial for other service related

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infractions like, I mean, like what about insulting an officer?

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Do you know?

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So for the Fleet Marine Corps Reserves specifically, no, but this court's decision in Clausen v. Arms did involve a impertinent letter that a retiree sent to his superior officer.

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So that was a court martial for that type of service.

[00:12:00] Speaker 01:
Of course, that was a pretty tough case, right?

[00:12:03] Speaker 04:
Yes.

[00:12:05] Speaker 01:
Okay, so then let me focus in on this now.

[00:12:09] Speaker 01:
So the only order, the only type of order that members of this Corps are, is an order to return to active duty, right?

[00:12:26] Speaker 01:
That's it.

[00:12:27] Speaker 04:
Could you please repeat your question.

[00:12:30] Speaker 01:
That's it.

[00:12:30] Speaker 01:
That's the order that the members of the Marine of the fleet Marine Corps subject to one category of order, namely, in order to be recalled to active service.

[00:12:43] Speaker 04:
Well, setting aside the other ones that we've been discussing about, you know, reporting their addresses, drawing their page, our service applications, this court described as limited duties.

[00:12:54] Speaker 01:
But those aren't, those aren't the result of orders, military orders.

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Right, those are just obligations that they have by being members of this Corps, but.

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The obligations are in the sense of an order.

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There is an order in the sense that there are many military regulations that order compliance with a variety of procedures that would count as an order, I would imagine.

[00:13:26] Speaker 01:
Well, well, assume just help me from assume that I think that those are more, you know, regulatory requirements.

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Because none of them flow from a military order, the kind of order that I thought you and I agreed is one of the questions we looked for to determine whether someone's a member of the military service.

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Are they subject to military discipline?

[00:13:53] Speaker 01:
So let's assume for a minute that the major order, and you emphasize this in your brief, that they're subject to being ordered return to active duty, right?

[00:14:06] Speaker 04:
Yes, that is certainly a primary obligation.

[00:14:09] Speaker 01:
So would it be fair for me to say, so the question before us is whether that is enough, whether that's enough

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for Congress to subject the entire, all members of the Fleet Marine Court to the possibility of court-martial jurisdiction, right?

[00:14:36] Speaker 04:
I'm happy to focus on that duty if you would like to, Your Honor.

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Yeah, go ahead.

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So looking at just the possibility of recall to active duty,

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I would, again, point this court to its own decision in Claussen v. Arms, where it talked about being assignable to duty to the soldier's home as itself a military duty that made retirees in the military, where they were not on active duty in the soldier's home at the time, but they were assignable to that duty.

[00:15:07] Speaker 01:
Well, as I said before, Claussen's a pre-Tove case.

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And under Tove, the question

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Isn't the question we have to, don't we have to interpret, don't we have to, I'm almost quoting here from Toad, don't we have to interpret clause 14 as narrowly as possible to quote, avoid encroaching on the jurisdiction of article three courts.

[00:15:36] Speaker 01:
Claussen wasn't subject to that.

[00:15:39] Speaker 01:
Besides Claussen wasn't a court martial case anyway.

[00:15:43] Speaker 04:
John, I say I'm out of time.

[00:15:44] Speaker 04:
May I answer your question?

[00:15:45] Speaker 01:
No, you can't.

[00:15:45] Speaker 01:
No, no, no, please, please.

[00:15:47] Speaker 01:
Besides, my poor, my colleagues haven't that interest now that they have a lot.

[00:15:52] Speaker 01:
So, yeah.

[00:15:55] Speaker 01:
So here's what I'm getting.

[00:15:56] Speaker 04:
Right, right.

[00:15:57] Speaker 01:
So here's what I'm getting at.

[00:15:58] Speaker 01:
Look, here's the core of my question.

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And I don't think this is, I don't think this is an easy case.

[00:16:05] Speaker 01:
I think this is hard.

[00:16:06] Speaker 01:
But as I see it, the question is whether the

[00:16:12] Speaker 01:
The fact that there's that members of the court are subject to an order to recall them to active service.

[00:16:20] Speaker 01:
Is that enough to subject the court article to court martial jurisdiction, when under Toth we have an obligation to interpret it narrowly to protect people's rights in the article three courts and also.

[00:16:34] Speaker 01:
And also given the fact that we're talking about best I can tell, this is not in the record, but as best I can tell, there's more than 2 million people who are in the, who are military.

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And Toth itself thought the total number of people being brought under military jurisdiction was important.

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So my question is, how do you make the case that

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that that order by itself is enough to bring these 2 million people under court martial supervision.

[00:17:12] Speaker 01:
That's my question.

[00:17:14] Speaker 01:
That's why I say this case.

[00:17:16] Speaker 01:
You could make the argument that you could, but I'd like to hear it.

[00:17:20] Speaker 04:
Yeah, Your Honor.

[00:17:20] Speaker 04:
My first reaction is that this language in Toth is really about what to do when you have civilians being subjected to court martial jurisdiction.

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Toth emphasized the civilian nature of discharge service members who are wholly different from other service members who have not been discharged from the military.

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And so the court has recognized that in certain narrow circumstances, it can nevertheless be appropriate to consider somebody not formally in the military to be still in the land and naval forces for purposes of clause 14.

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But in this type of case where you don't have a civilian at issue, it's not this court's role to strictly

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evaluate the military necessity of subjecting someone to court martial jurisdiction.

[00:18:03] Speaker 04:
because that authority was really granted to Congress to weigh in the first instance.

[00:18:09] Speaker 03:
Yes, please.

[00:18:09] Speaker 03:
I mean, you had said that, you said earlier in the argument that Congress's power is not unlimited here.

[00:18:16] Speaker 03:
So I would be interested to hear from your perspective what the limit is, you know, and how, I mean, if the courts are to have some role, which I think you can see they have some role in determining who is in the land and naval forces, then,

[00:18:32] Speaker 03:
What is that limit, precisely is it the limit that judge title suggested is it a different limit.

[00:18:40] Speaker 04:
Yes, your honor.

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So we have not in our brief suggested a specific hard limit to govern these.

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edge cases that may arise where the court would have a role and could say that Congress exceeded its authority.

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And we have two main reasons why we don't think it's appropriate in this case to draw that limit.

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The first is that in the Supreme Court's decision, and we'd be covert, the Supreme Court was very clear that when confronted with this type of case about the limits of court martial jurisdiction, the court should really only focus on the person before it and the type of person that would be affected by that decision.

[00:19:16] Speaker 04:
The plurality said that it would not precisely define the boundary between civilians and members of the land and naval forces.

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And then Justice Frankfurter and concurrence said basically the same thing and said that he would only judge what had been enacted and what was at issue.

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And so in this kind of area, I wouldn't want to get ahead of Congress not knowing what kind of military exigency

[00:19:37] Speaker 04:
could justify a particular exercise of court martial jurisdiction in the future.

[00:19:41] Speaker 03:
So is that a suggestion that we can only decide this case as applied to Mr. Larrabee and that we shouldn't think about the facial challenge to subjecting all fleet marine reservists to court martial jurisdiction?

[00:19:55] Speaker 04:
No, Your Honor.

[00:19:55] Speaker 04:
This court's decision, I think, would govern fleet marine corps reservists generally.

[00:20:00] Speaker 04:
My only suggestion is that this court doesn't have before it a case that does not involve the fleet marine corps reserve.

[00:20:06] Speaker 04:
there might be sort of a sham case where we could come up with really outside hypotheticals that could be at the boundary of Congress's power.

[00:20:14] Speaker 04:
But here, and this gets to the second reason why there's no need in this case to do so, there's really, under any metric, the Fleet Marine Corps Reserve is part of the military, and reasonably so, both on functional criteria and the formal criteria that we've already discussed.

[00:20:29] Speaker 03:
It does seem though.

[00:20:31] Speaker 03:
I mean, much of the discussion about whether you know the fleet Marine Reservists are part of the armed services seems to depend on the fact that Congress has said that they are.

[00:20:42] Speaker 03:
And I mean in other contexts the court does not usually let

[00:20:46] Speaker 03:
Congress defined the boundaries of its own power.

[00:20:49] Speaker 03:
So the court will not defer to Congress's judgment that a certain activity is interstate commerce, for instance.

[00:20:57] Speaker 03:
Once the court determines something is interstate commerce, of course, Congress may regulate it in a fairly plenary fashion.

[00:21:03] Speaker 03:
But that first question about whether this is actually the type of thing that's allowed to be regulated, I guess I'm not sure.

[00:21:12] Speaker 03:
So in your view, there's just

[00:21:14] Speaker 03:
There's no reason in this case to articulate what the principle is or what the principle is.

[00:21:19] Speaker 04:
That's exactly right, Judge Rao, because here we have a express constitutional provision that does give Congress authority to form and organize the armed services in the first instance.

[00:21:30] Speaker 04:
And that itself is plenary and exclusive and gives Congress at least entitlement to respect from Article III courts in terms of who is in the military.

[00:21:38] Speaker 04:
But again, in this case where we have so many functional indicia of military status,

[00:21:43] Speaker 04:
along with long-standing historical practice treating retirees as in the military since the 1800s.

[00:21:49] Speaker 04:
There really is no reason in this case to draw a hard outer limit or a boundary or try to define a rule that would govern non-fleet Marine Corps reservists.

[00:22:00] Speaker 02:
So assume I need a limit.

[00:22:05] Speaker 02:
What is your limit?

[00:22:07] Speaker 02:
I get that you don't think we need to draw a line,

[00:22:11] Speaker 02:
If I think we need to draw a line, what line should we draw?

[00:22:15] Speaker 04:
I mean, if I, if I were pushed to provide some sort of possible outer limit, I, I would imagine that, you know, Congress could not create a sham component of the armed services, for example.

[00:22:25] Speaker 04:
So following the Supreme court's decision and read the covert, which held that civilian dependence could not be subject to court martial jurisdiction.

[00:22:33] Speaker 04:
I don't think Congress could turn around the next day and create a spouse force and make all, you know, spouse as part of the military with no other

[00:22:40] Speaker 04:
action that would be a sham to evade the judicial limits on court martial jurisdiction.

[00:22:44] Speaker 02:
But again.

[00:22:46] Speaker 02:
So I think I agree with I think that's the test.

[00:22:50] Speaker 02:
I came into this argument thinking probably makes a lot of sense as Congress gets to deem who's in the military.

[00:22:58] Speaker 02:
But the the check on that is it can't be in your words a sham.

[00:23:02] Speaker 02:
That's a good word for it.

[00:23:03] Speaker 02:
What's the test for what is a sham?

[00:23:06] Speaker 04:
That is a great question, Your Honor, that I think

[00:23:09] Speaker 04:
illustrates why this case is so far afield from that and why trying to develop those limits in this case is very difficult because we just haven't needed to brief or develop that type of argument for what would be a sham.

[00:23:22] Speaker 02:
And so I wouldn't want to- Ms.

[00:23:23] Speaker 02:
Paramore, I understand you don't think we need to answer the question and maybe we don't, but, and I won't belabor it beyond just one more attempt.

[00:23:33] Speaker 02:
If I do think we need a test for what is a sham, do you have a test to propose?

[00:23:39] Speaker 04:
I do not at this time have a test proposed, Your Honor.

[00:23:41] Speaker 02:
Okay, I understand that.

[00:23:44] Speaker 01:
What about, I'm sorry, no, you go ahead.

[00:23:46] Speaker 01:
I was just gonna follow up to your question, which is, go back to my original hypothetical.

[00:23:53] Speaker 01:
Suppose Congress said that all civilian employees of the military are now in the military.

[00:23:59] Speaker 01:
Would that pass your sham test or not?

[00:24:02] Speaker 04:
Well, historically, every time that Congress has attempted to conscript people into the military, it has created a procedure whereby somebody has to formally enlist in the military.

[00:24:13] Speaker 01:
No, no, no, no.

[00:24:13] Speaker 01:
Not a conscription, just they pass a law saying that anybody who's a civilian employee is now a member of the military.

[00:24:19] Speaker 01:
So if you decide to be a civilian employee, you're in.

[00:24:23] Speaker 01:
You're part of the military.

[00:24:24] Speaker 04:
Well, I think, so two answers.

[00:24:26] Speaker 01:
And subject to court martial jurisdiction.

[00:24:29] Speaker 01:
I mean, two responses, Your Honor.

[00:24:32] Speaker 01:
Congress.

[00:24:33] Speaker 01:
How would you, whatever the standard is that Judge Walker was looking for, how would that determine the outcome of that case?

[00:24:43] Speaker 04:
Well, I think that particular case would be, you know, a lot of guidance would come from the Supreme Court's decision in Gualiardo where the Supreme Court did expressly say that there would be no problem with subjecting civilian employees to court martial jurisdiction so long as those employees were made

[00:24:59] Speaker 04:
part of the military, either through voluntary or compulsory induction.

[00:25:03] Speaker 04:
And so in your hypothetical, it seems that what you're suggesting is that Congress would be formally making those individuals part of the military and that new civilian employees who joined would in fact be enlisting in the military.

[00:25:15] Speaker 04:
And the Supreme Court said in Guayardo, there would be no problem with that.

[00:25:20] Speaker 03:
So what would be the problem and why would it be a sham for Congress to take the same action with respect to a service member's dependence?

[00:25:29] Speaker 03:
Like, why would that be a sham?

[00:25:31] Speaker 03:
Well, Your Honor, in that case, would Congress not just say it's necessary and proper to, you know, the government regulation of the land and naval forces?

[00:25:40] Speaker 04:
I mean, once again, Your Honor, I am very wary of getting into these outer hypotheticals just because I don't know what kind of military exigency Congress could be confronting that might change the calculation.

[00:25:50] Speaker 04:
But the way that I've been thinking about that type of issue is just that

[00:25:54] Speaker 04:
In Reed v. Covert, the Supreme Court recognized that there could be instances where somebody like a civilian dependent or a civilian just generally might be subject to court martial jurisdiction if they could be fairly considered to be in the military.

[00:26:07] Speaker 04:
But it reasoned that civilian dependents had never served in any capacity in the military, had never been in the military.

[00:26:13] Speaker 04:
And so in that kind of fairness analysis, which the court also again repeated in Kinsella, I think that there would be a concern that there might be a sham type of situation at play.

[00:26:25] Speaker 02:
Ms.

[00:26:25] Speaker 02:
Barrymore, why do we have a fleet reserve?

[00:26:27] Speaker 02:
Why do you think Congress created one?

[00:26:31] Speaker 04:
Yeah, I think it's pretty clear Congress created the Fleet Marine Corps Reserve to have this experienced pool of service members who could be recalled to active duty without any need for further training.

[00:26:40] Speaker 04:
So they've all served in the military for at least 20 years on active duty.

[00:26:44] Speaker 04:
In that respect, they're quite different from a sort of new recruit or most inactive reservists, and they are ready to be deployed in a leadership capacity to

[00:26:52] Speaker 04:
draw on their wealth of experience in times of need.

[00:26:56] Speaker 04:
And so having that to draw on was, I think, Congress's primary concern.

[00:27:00] Speaker 02:
Do you know when someone like Staff Sergeant Larabee would be allowed to wear the uniform before his crime?

[00:27:10] Speaker 04:
Yeah, so there is a regulation that we cite in our brief that details the circumstances where he could wear his uniform.

[00:27:17] Speaker 04:
I forget the exact times, but it is written there.

[00:27:22] Speaker 04:
You can readily pull it up.

[00:27:26] Speaker 02:
And he's also allowed to sometimes introduce himself as Staff Sergeant Larrabee, right, rather than Mr. Larrabee, right?

[00:27:33] Speaker 02:
Yes, Your Honor.

[00:27:42] Speaker 02:
I know we're long on time.

[00:27:43] Speaker 02:
So I just, I just have one question.

[00:27:45] Speaker 02:
That's that one last question for me.

[00:27:48] Speaker 02:
Uh, and it's, it's not, it doesn't go right to the question presented, but it's, it's been on my mind.

[00:27:56] Speaker 02:
Do you have a sense of, of why the sentence in this case was so low eight months for sexually assaulting an unconscious spouse of a Marine recording it?

[00:28:08] Speaker 04:
Um, your honor, I, his sentence was originally 10 years of confinement.

[00:28:12] Speaker 04:
Most of that was obviously suspended.

[00:28:15] Speaker 04:
I don't know why it was so low, but I obviously agree.

[00:28:19] Speaker 04:
The facts of this case are egregious.

[00:28:21] Speaker 02:
It does actually go a little bit to the question presented in this way.

[00:28:25] Speaker 02:
And I want to ask Mr. Vladek about this too.

[00:28:29] Speaker 02:
You know, sexual assault has been a blemish for the military.

[00:28:36] Speaker 02:
Um,

[00:28:37] Speaker 02:
And there's certainly a military interest in remedying, not just the substance of that, which is most important, but also the image, the reputation, the honor of the armed forces.

[00:28:52] Speaker 02:
My understanding from a quick Google search is the military spends something like $600 million a year on public relations.

[00:29:01] Speaker 02:
And it's got to be,

[00:29:04] Speaker 02:
something of a blemish if someone who can refer to himself as a staff sergeant and wear a uniform is able to go around doing what he did without the military being able to punish him, which in this case, they didn't punish him very much.

[00:29:23] Speaker 02:
Do you think that alone would be a sort of sufficient interest for why Congress would have chosen

[00:29:33] Speaker 02:
to make the fleet reserve subject to court martial.

[00:29:40] Speaker 04:
And your honor, the facts of this case illustrate exactly why service members are subject to court martial jurisdiction, where you need to have order and discipline in the military.

[00:29:49] Speaker 04:
And when service members sexually assault the wives of active duty service members, considering not only just the perpetrator here, but also the victim having a military status, there is

[00:30:01] Speaker 04:
ample grounds for Congress to want to retain order and deter this type of crime, absolutely.

[00:30:09] Speaker 01:
Thanks.

[00:30:11] Speaker 01:
Of course, that's an interesting point.

[00:30:19] Speaker 01:
I mean, implicit in your in your answer to Walker, in fact, you say this in your brief, I think you say that,

[00:30:27] Speaker 01:
that if Larrabee had not been subjected to court martial, he would have escaped prosecution altogether.

[00:30:37] Speaker 01:
Right?

[00:30:37] Speaker 01:
You do say that in your brief.

[00:30:38] Speaker 01:
And Larrabee has two responses to that, that you didn't really deal with in your reply brief.

[00:30:50] Speaker 01:
that relate to this question I think Judge Walker is asking you.

[00:30:54] Speaker 01:
One of his answers is that Toth at least and Kinsella both reject that argument.

[00:30:59] Speaker 01:
But the other one which relates to this is that they say the military tied its own hands here because

[00:31:08] Speaker 01:
by determining that Larabee was a member of the armed forces and therefore ineligible for prosecution under the Military Extraterritorial Jurisdiction Act.

[00:31:20] Speaker 01:
So, you know, there's a way to solve this problem for the military.

[00:31:24] Speaker 01:
And that is if they're not, if a person like this is not the member of the service, he can be prosecuted, can't he, in the Article III courts under the Military Extraterritorial Jurisdiction Act, right?

[00:31:37] Speaker 04:
In all likelihood, somebody in Mr. Larabee's situation would be subject to prosecution under Mija.

[00:31:43] Speaker 04:
I would point out that Mija only covers felony offenses.

[00:31:46] Speaker 04:
And so if somebody were to choplift less than a thousand dollars in the commissary, they would not be subject to prosecution under Mija.

[00:31:52] Speaker 01:
But Congress can change that if it needs to.

[00:31:54] Speaker 01:
I mean, that's what Toth and

[00:31:57] Speaker 01:
And the other cases say, they say, look, Congress has control over this, right?

[00:32:02] Speaker 01:
If Congress can't provide that people like Mollerby are subject to court-martial, it can provide that they're subject to punishment under other procedures, the courts, and it doesn't have to limit it to felonies, correct?

[00:32:21] Speaker 01:
We don't have an either or situation here, right?

[00:32:25] Speaker 04:
That is true, Your Honor.

[00:32:26] Speaker 04:
But what the Supreme Court has also said is that the choice of forum, whether a federal court or court martial to be tried and is not given to the service member.

[00:32:34] Speaker 04:
And similarly, this court has only evaluated this type of military necessity in the civilian cases.

[00:32:40] Speaker 04:
In the service member cases where somebody is in the service, the court has recognized that Congress has a need to create a separate and distinct system of military justice to ensure discipline and order in the military.

[00:32:54] Speaker 04:
And that is exactly what we have here.

[00:32:56] Speaker ?:
Okay.

[00:32:57] Speaker 01:
I just have two fact questions for you.

[00:32:59] Speaker 01:
Number one is, do you know how many people there are in the fleet Marine Corps?

[00:33:08] Speaker 04:
I do not, Your Honor.

[00:33:09] Speaker 04:
I just tried to find that out.

[00:33:11] Speaker 04:
I think the reserve itself has about 35,000 maybe, but I don't know how many are in the Marine Corps reserve.

[00:33:18] Speaker 01:
And you know, and the other services Army, Navy, I'm sorry, the Army, the Navy, and I assume the Air Force, they have comparable organizations, right?

[00:33:28] Speaker 04:
No, Your Honor.

[00:33:29] Speaker 04:
So this particular type of 20 year service is only in the Marine Corps and in the Navy.

[00:33:36] Speaker 04:
The Army and the Air Force do not have a similar 20 year fleet.

[00:33:41] Speaker 01:
I think we'd appreciate if you could let us know.

[00:33:44] Speaker 01:
Did you say you tried to find out and couldn't?

[00:33:47] Speaker 01:
We just don't know the answer to this question.

[00:33:48] Speaker 04:
Oh, no, I'm sure I could.

[00:33:49] Speaker 04:
I just briefly tried.

[00:33:52] Speaker 01:
Would you let us know?

[00:33:52] Speaker 01:
Here's my last question.

[00:33:55] Speaker 01:
Am I right that whatever we decide here with respect to the Fleet Marine Corps will control the entire military retiree population?

[00:34:07] Speaker 01:
that this is a question of how retirees are treated, correct?

[00:34:12] Speaker 04:
Your honor, we think that retirees are equally subject to court martial jurisdiction, but not necessarily.

[00:34:20] Speaker 04:
Depending on how this court writes the decision, the Fleet Marine Corps Reserve is the only thing before it.

[00:34:25] Speaker 04:
And they are subject to active duty recall under a broader set of circumstances than retirees.

[00:34:31] Speaker 01:
I see.

[00:34:32] Speaker 01:
OK, that's helpful.

[00:34:33] Speaker 01:
That's helpful.

[00:34:36] Speaker 01:
OK.

[00:34:37] Speaker 01:
Well, unless Judge Brown, Judge Walker, do you have anything else?

[00:34:42] Speaker 02:
Not for me.

[00:34:43] Speaker 01:
Okay, why don't we hear from Mr. Larity and Ms.

[00:34:47] Speaker 01:
Barmer, we'll give you some extra time.

[00:34:48] Speaker 01:
Okay, we used up all your time.

[00:34:56] Speaker 00:
Your honors, may it please the court, good morning.

[00:34:58] Speaker 00:
I'm Steve Vladek, representing the plaintiff appellee, Stephen Larrabee.

[00:35:02] Speaker 00:
So I'd like to actually pick up where your honor's questioning left off with regard to the implications of the government's position.

[00:35:10] Speaker 00:
Ms.

[00:35:10] Speaker 00:
Barmore, I think, quite assiduously tried to avoid discussing what she referred to as the boundary cases.

[00:35:15] Speaker 00:
I want to suggest that that actually isn't something this court can avoid.

[00:35:18] Speaker 00:
That under the government's position in this case,

[00:35:21] Speaker 00:
Nothing would stop the government from court-martialing a 90-year-old Korean war veteran who retired after being injured in the war for shoplifting a newspaper from his local supermarket.

[00:35:32] Speaker 00:
Nothing would stop the government from court-martialing a veteran of the war in Afghanistan.

[00:35:36] Speaker 00:
who retired after 20 years of distinguished service and publicly criticized the controversial withdrawal from Afghanistan earlier this year.

[00:35:44] Speaker 00:
Indeed, Article 88 would specifically authorize court martial of that individual for using contemptuous words toward the president, the secretary of defense, or any number of other executive officials.

[00:35:55] Speaker 00:
And that's just under existing statutes.

[00:35:57] Speaker 00:
On the government's theory of deference, nothing would stop Congress from going further.

[00:36:02] Speaker 00:
And from subjecting to constant court martial jurisdiction, anyone and everyone who Congress deems to be in the military, because once... I'm sorry, Judge.

[00:36:11] Speaker 02:
Could you elaborate on your test for the boundary cases, or as Ms.

[00:36:17] Speaker 02:
Barrymore called them, the sham cases?

[00:36:20] Speaker 00:
So, I mean, with respect to it, I don't actually think a sham is the right way to think about it.

[00:36:25] Speaker 00:
You know, we don't dispute that Congress has a lot of control here.

[00:36:29] Speaker 00:
The control Congress exercises, and this goes to one of Judge Tatel's questions to opposing counsel, is what kinds of duties does the individual have at the moment they're subject to court martial?

[00:36:41] Speaker 00:
And so this is why we think it's so critical that retirees, members of the Fleet Marine Corps Reserve have none.

[00:36:48] Speaker 00:
Because Judge Walker, there could be close cases.

[00:36:52] Speaker 00:
Inactive reservists, for example, might pose close cases.

[00:36:55] Speaker 00:
But here, there are no training obligations.

[00:36:58] Speaker 00:
There are no maintenance obligations.

[00:37:00] Speaker 00:
There are no fitness obligations.

[00:37:02] Speaker 02:
Why is that the test?

[00:37:04] Speaker 02:
What's the case for why that should be the test?

[00:37:06] Speaker 00:
So I think there are multiple cases, Judge Walker.

[00:37:08] Speaker 00:
I think it's not just Toth.

[00:37:09] Speaker 00:
I think it's Toth covered.

[00:37:11] Speaker 02:
Sorry, I didn't mean literally court cases.

[00:37:13] Speaker 02:
I mean, what's the argument for why that's the test?

[00:37:16] Speaker 00:
I'm sorry.

[00:37:16] Speaker 00:
So I think the argument for why that's the test is because from those cases that I referred to, the Supreme Court has said that the question is whether the individual in question, to quote Singleton, can be regarded as actually falling in the land of naval forces.

[00:37:32] Speaker 00:
And the question, of course, is can be regarded by whom?

[00:37:35] Speaker 00:
And it seems to me that this court has two choices.

[00:37:38] Speaker 00:
Choice number one is it can be regarded by Congress, at which point we are ceding an enormous amount of power to the legislature.

[00:37:44] Speaker 00:
And I don't know how you could impose a sham limit.

[00:37:47] Speaker 00:
if can be regarded as deferring to Congress, or can be regarded as actually falling in the land and naval forces by those whose job it is to interpret Article 1, Section 8, Clause 14, i.e.

[00:37:59] Speaker 00:
the courts.

[00:38:00] Speaker 00:
And in that context, Judge Walker, it seems to me that courts could still show deference to Congress by giving Congress the benefit of the doubt, but that deference has to be about the actual functions these individuals are tasked with performing and not just the label Congress places on them.

[00:38:17] Speaker 00:
So do you think he could be?

[00:38:18] Speaker 03:
Oh, sorry.

[00:38:20] Speaker 00:
Please, Judge.

[00:38:21] Speaker 03:
Oh, I guess I'm not sure.

[00:38:23] Speaker 03:
So in your understanding, if someone is an active service member, then this is just automatically met your standard.

[00:38:34] Speaker 00:
So I think that's actually not just mine, Judge Rao.

[00:38:35] Speaker 00:
I think that's Solorio.

[00:38:36] Speaker 00:
I mean, I think there is no way to me to read Chief Justice Rehnquist's opinion in Solorio suggesting that there is room for doubt once you have active duty service members.

[00:38:47] Speaker 03:
And so where, I guess, why should we think of inactive service members under a functional test, right?

[00:38:55] Speaker 03:
So if active duty members are certainly included, Congress has the authority to organize the armed forces as it chooses, including keeping some people in reserve or retired status.

[00:39:09] Speaker 03:
Why does that category of persons automatically

[00:39:13] Speaker 03:
Why should we apply functional tests to that group?

[00:39:17] Speaker 00:
So if I may, and I apologize if I misspoke, I don't think that Solorio is formalist.

[00:39:21] Speaker 00:
I think Solorio is recognizing that if you are in active service, you are at every moment of your life functionally subject to plenary military control.

[00:39:31] Speaker 00:
You are subject to orders.

[00:39:32] Speaker 00:
You can give orders.

[00:39:33] Speaker 00:
You are constantly subject to being moved around, to being reassigned, as opposed to inactive personnel.

[00:39:40] Speaker 00:
And Judge Rao, I think this is where we get into something the government really doesn't address in any detail, which is why retirees are the only inactive personnel who are subject to court-martial.

[00:39:51] Speaker 00:
Because if we actually look at how Congress and the Department of Defense have structured the government's priorities for who it's going to rely upon when it needs reserve supplemental manpower, the retirees are at the bottom.

[00:40:04] Speaker 00:
The ready reserve is the primary, the principal, the favored body of additional manpower.

[00:40:12] Speaker 00:
And yet none of them are subject to court martial when they're inactive, even though they are subject to training requirements, even though they can be subject to drug screening if they're in the Marine Corps.

[00:40:23] Speaker 00:
So Judge Rao, it's not that we think it's one test for one category and one test for another.

[00:40:28] Speaker 00:
It's that we think there are features of active service that necessarily satisfy the test.

[00:40:33] Speaker 03:
And why does that not bring us back to O'Callaghan's test that there has to be some type of service connection if you're saying even an active duty service member.

[00:40:41] Speaker 03:
You know we think about that in a functional way you know whether or not they're within the land and naval forces, then why does that not return us to O'Callaghan which of course was.

[00:40:52] Speaker 03:
which, of course, was reversed by the spring.

[00:40:55] Speaker 00:
Yeah, I mean, so the government, I think, criticizes us for trying to bring back O'Callaghan.

[00:40:59] Speaker 00:
We're not.

[00:41:01] Speaker 00:
O'Callaghan, I think, was misguided in thinking that active duty personnel somehow take off their uniforms when they go home at night.

[00:41:11] Speaker 00:
And that was the point of Chief Justice Rehnquist's opinion in Solorio, is to say, that's just not true in practice.

[00:41:16] Speaker 00:
It's just not true in application.

[00:41:18] Speaker 00:
That if you are an active duty service member, you are always on.

[00:41:22] Speaker 00:
even when you're not on the battlefield on the front line.

[00:41:25] Speaker 03:
Is your principle different from O'Callaghan, or is just your application of the principle different?

[00:41:31] Speaker 00:
I think our principle is different, Judge Rao, because we don't think the question is whether the offense is service-connected.

[00:41:36] Speaker 00:
We don't think that court-martial jurisdiction, in the first instance, turns on the substance of the offense.

[00:41:42] Speaker 00:
It turns on the relationship of the offender to the military.

[00:41:45] Speaker 00:
Again, to quote Singleton, on the military status.

[00:41:49] Speaker 03:
I'm sorry, service connection.

[00:41:50] Speaker 03:
I mean, you know, isn't that what your test boils down to?

[00:41:54] Speaker 00:
But I don't.

[00:41:54] Speaker 00:
So I don't believe so.

[00:41:55] Speaker 00:
And here's why the service connection test as articulated by Justice Douglas in O'Callaghan was about the conduct.

[00:42:01] Speaker 00:
It was about whether the specific offense for which the service member was being court marshaled had a nexus to the military.

[00:42:08] Speaker 00:
We're not, our primary submission before this court has nothing to do with the relationship between Mr. Larrabee's offenses and the military and everything to do with the fact that when those offenses were committed, Mr. Larrabee himself had no relationship to the military.

[00:42:23] Speaker 00:
That's not service connection on the offense side, Your Honor.

[00:42:25] Speaker 00:
That's about whether he is functionally subject to orders at the time the military is exerting jurisdiction over him.

[00:42:34] Speaker 01:
And I understand that service connection, that was a backup argument.

[00:42:38] Speaker 01:
Your main argument is members of the fleet reserve core here are not members of the military.

[00:42:46] Speaker 01:
What's your answer to the government's argument that, and the test is whether they're subject, whether they have military duties and are subject to orders and the government says, well, they are subject to an order to be recalled.

[00:43:01] Speaker 01:
What's your answer to that?

[00:43:03] Speaker 00:
From our perspective, that actually proves our point.

[00:43:06] Speaker 00:
They're subject to exactly one order as opposed to reservists who are subject to a far wider range of orders.

[00:43:15] Speaker 00:
Reservists can be ordered to training while they are inactive.

[00:43:18] Speaker 00:
That's the whole point of inactive duty training.

[00:43:21] Speaker 00:
The only order that can be issued to my client that he is bound to obey is an order to recall.

[00:43:28] Speaker 00:
And Judge Shadal, to go back to your question to oppose and counsel, in Baganee, the parallel case, in the Navy Marine Corps Court of Criminal Appeals, Chief Judge Crisfield, in his dissent, in footnote one of his dissent, which your honors will find at page 787 of 79 MJ,

[00:43:46] Speaker 00:
Judge Taddle, Chief Judge Crisfield went out of his way to point out that none of the regulatory obligations the government has highlighted, including keeping the government apprised of a mailing address, come with any consequences for being violated.

[00:44:00] Speaker 00:
That is to say that Mr. Larrabee could not be court-martialed if he simply failed to keep the government apprised of his current mailing address.

[00:44:08] Speaker 01:
I hate to use the word service-related because I don't want to get you back into your backup argument, but are there other

[00:44:16] Speaker 01:
other offenses that members of the Fleet Marine Corps can commit beyond not notifying the department of their dress or wearing their uniform improperly?

[00:44:34] Speaker 01:
Are there offenses that they

[00:44:37] Speaker 01:
for which they can be court-martialed, like, what about, I use the example of disrespecting an officer, or there must be other things like that, right?

[00:44:45] Speaker 01:
What happens to them?

[00:44:47] Speaker 00:
So Judge Shano, the government's position is that any offense prescribed by the UCMJ, including the use of contemptuous words toward an officer, which is Article 88.

[00:44:56] Speaker 01:
Right.

[00:44:57] Speaker 01:
But my question is, as a practical matter, do you know whether these people are court-martialed for that sort of behavior?

[00:45:03] Speaker 00:
So let me start from the, I think, relatively important baseline that we haven't seen that many of these cases until recently.

[00:45:11] Speaker 00:
And Judge Taylor, the ones I'm familiar with do not involve those kinds of offenses.

[00:45:16] Speaker 00:
If I might, the government does point out- What do they involve?

[00:45:20] Speaker 01:
What kind of cases do you see?

[00:45:23] Speaker 00:
I think they are typically, I mean, this is going to be a bit uncouth, but the core of most court marshals these days are drug offenses, sex offenses, and child pornography offenses.

[00:45:35] Speaker 00:
And I think that's been the consistent theme of these cases as well, which does bring me back.

[00:45:40] Speaker 00:
I do want to get back to Judge Walker's question to opposing counsel.

[00:45:42] Speaker 00:
But Judge Chaitil, what can a retiree do to actually

[00:45:48] Speaker 00:
earned the wrath of the military.

[00:45:49] Speaker 00:
I mean, the government at one point points to the ban on foreign employment as an example.

[00:45:54] Speaker 00:
But of course, Your Honors, that actually I think undercuts the government's position in two respects.

[00:45:59] Speaker 00:
First, that ban applies to everybody who has been an executive branch employee, including civilians.

[00:46:05] Speaker 00:
And in fact, 18 USC Section 207, the ban,

[00:46:08] Speaker 00:
specifically exempts retired military officers from at least some of the prohibitions.

[00:46:14] Speaker 00:
So I think the relevant point is that Congress does not specially treat retirees or members of the Fleet Marine Corps Reserve as if they're uniquely subject to military discipline as retirees.

[00:46:27] Speaker 00:
The government's position is just that they're subject to military discipline because they're not any different from active duty service members.

[00:46:33] Speaker 00:
And that's why, from our perspective, Your Honors, the government's position is so limitless.

[00:46:37] Speaker 00:
That's why the 90-year-old Korean War veteran can be court-martialed for shoplifting on the government's theory under the laws it stands today.

[00:46:45] Speaker 02:
Under your theory, could a fleet reservist be court-martialed for conduct he commits while wearing his uniform?

[00:46:56] Speaker 00:
While wearing his uniform, Judge Walker know because he's still retired.

[00:46:59] Speaker 00:
And if I may, the uniform regulation about which the government makes so much is actually worded very carefully to disallow, to prohibit wearing the uniform in contexts in which the wearing of the uniform might convey that the person is acting with military authority.

[00:47:18] Speaker 00:
It's meant to be ceremonial.

[00:47:20] Speaker 02:
So ceremonies is the answer to when he can wear a uniform.

[00:47:23] Speaker 00:
I mean, we cite the relevant regulation in our brief.

[00:47:26] Speaker 00:
Judge Walker, the government does as well.

[00:47:27] Speaker 00:
I believe we excerpt some of it in the appendix to our brief.

[00:47:31] Speaker 00:
Judge Walker, the short version is ceremonial occasions, retirement ceremonies for colleagues, promotion ceremonies, but in no context in which it's supposed to be allowed to convey any substantive authority.

[00:47:42] Speaker 02:
Let me ask two questions.

[00:47:45] Speaker 02:
I think the answer to both of them are no, but I just want to make sure that we're on the same page.

[00:47:50] Speaker 02:
Are there any cases in which a court told Congress that it incorrectly defined someone as a service member?

[00:48:02] Speaker 00:
I am not aware of a case like that, Judge Walker.

[00:48:05] Speaker 00:
I will just say, if I may, there are two cases that we cite in our brief, one in the Court of Military Appeals and one from the Ninth Circuit, where the courts noted that there would be serious constitutional questions if an individual who was a reservist was tried for offenses committed while he was fully inactive as opposed to while he was on inactive duty training.

[00:48:25] Speaker 02:
I appreciate that.

[00:48:26] Speaker 02:
And then the second question about precedent, are there any still governing cases

[00:48:31] Speaker 02:
in which a court deemed someone a service member at the time of both the offense and the service member's trial, but then prohibited that service member from being court-martialed.

[00:48:47] Speaker 00:
On jurisdictional grounds, Your Honor.

[00:48:50] Speaker 00:
Right.

[00:48:50] Speaker 00:
The defense and the time of trial.

[00:48:52] Speaker 00:
The short answer, Your Honor, is yes, but it's a little technical.

[00:48:58] Speaker 00:
Your Honor might be familiar with the Hennis case on the Army side, where there was a question about a now-defunct old version of Article 3 of the UCMJ.

[00:49:08] Speaker 00:
Let me back up a second, Judge Walker.

[00:49:11] Speaker 00:
I apologize for getting into the weeds.

[00:49:13] Speaker 00:
There is a category of offenses, Your Honors, which actually I think are relevant to this discussion, where a service member has a break in their service, let's say between multiple tours.

[00:49:23] Speaker 00:
And the law has always been that the service member cannot be tried for offenses committed during the break,

[00:49:29] Speaker 00:
Judge Walker, there was, until I believe 1990 or 1992, statutory constraints on the ability to try a pre-break offense, post-break, that still apply to pre-1992 offenses, but is no longer enforced.

[00:49:46] Speaker 00:
So I'm sorry for giving such a technical weedsy answer to your question.

[00:49:50] Speaker 02:
It's helpful.

[00:49:53] Speaker 02:
No, I heard someone else jump in.

[00:49:55] Speaker 00:
If I might just, oh, I'm sorry, Judge.

[00:49:57] Speaker 01:
No, no, finish your answer, Judge Walker.

[00:49:59] Speaker 00:
If I might just extrapolate from that, though, I think there's value even in that technical footnote, which is to say that the service breakpoint illustrates what we think is the correct view of things and what is true for everyone except retirees.

[00:50:14] Speaker 00:
An inactive reservist, Judge Walker, who commits an offense while they are on active duty or in active duty training,

[00:50:20] Speaker 00:
but is inactive at the time of his or her arrest, can be activated for the purpose of being tried, for the offense committed while active.

[00:50:30] Speaker 00:
And so in that respect, like the service break, retirees are, from that perspective, simply in a service break where they might be subject to future recall, although that really is more an illusory specter, as we've suggested in our brief.

[00:50:46] Speaker 00:
And so if they committed offenses, Judge Walker, while on active service,

[00:50:49] Speaker 00:
They can be recalled to be tried for those.

[00:50:51] Speaker 00:
The issue is offenses committed in the break.

[00:50:57] Speaker 01:
I'd be interested to hear your reaction to the discussion I was having with Ms.

[00:51:01] Speaker 01:
Farmer about deference.

[00:51:03] Speaker 01:
And particularly in response to my invocation of Toth, she said, well, I don't have to worry about Toth because that involves a civilian.

[00:51:14] Speaker 00:
Yeah, I mean, I think as you know, Judge Tito, I mean, we disagree.

[00:51:17] Speaker 00:
That sort of begs the question to assert that in Toth the accused was a civilian.

[00:51:23] Speaker 00:
On the deference point, I mean, I just want to be clear.

[00:51:25] Speaker 01:
Well, how would you, but that's the way she distinguishes a case.

[00:51:28] Speaker 01:
She says, of course you will defer, the courts have to defer when you're talking about civilians.

[00:51:35] Speaker 00:
I think the question is what made, Judge Tito, I'm sorry.

[00:51:39] Speaker 01:
No, go ahead, finish.

[00:51:41] Speaker 00:
I think the question is, what made Toth a civilian?

[00:51:44] Speaker 00:
Was he a civilian simply because Congress had not deemed him to be a member of the armed forces, or was he a civilian in function?

[00:51:52] Speaker 00:
And this, Judge Shadal, goes to, I was a bit surprised that Ms.

[00:51:55] Speaker 00:
Barmore brought up the discussion in Guagliardo.

[00:51:58] Speaker 00:
where at the end, I think it's page 286, where the court talks about options available to Congress if it wanted to remedy the jurisdictional defect that the majority was there identifying.

[00:52:10] Speaker 00:
The point that the court was making about conscription was not that Congress could turn around and say, a civilian employee like Guagliardo can simply be deemed a member of the armed forces.

[00:52:23] Speaker 00:
The point was that he could be conscripted into active service.

[00:52:27] Speaker 00:
And that's the exact distinction that we think all of those cases all but say out loud, which is that it's not about the formality of what Congress has said.

[00:52:38] Speaker 01:
Okay, and one more question about the conversation I was having with her.

[00:52:44] Speaker 01:
As a practical matter, if it turns out that the military can't treat members of the Fleet Marine Corps as members of the military for purposes of court-martial, how would the military handle crimes like the one involved in this case?

[00:53:00] Speaker 00:
So I'm glad you gave me a chance to come back to that.

[00:53:03] Speaker 00:
I think there are a couple of points worth making here.

[00:53:05] Speaker 00:
The first is the government represented to the district court, I think quite correctly, that it still has the power to pursue administrative separation.

[00:53:13] Speaker 00:
To Judge Walker's concern, it could actually act against a retiree to say you can no longer wear your uniform, you can no longer use your title.

[00:53:21] Speaker 00:
if you've been convicted of civilian offenses.

[00:53:24] Speaker 00:
This court, I'm sure, is familiar with the HISS Act, which, of course, we cite in our brief, which provides for the stripping of benefits, in this case, Mr. Larabee's retainer pay, in circumstances in which an individual has been convicted of particular offenses by a civilian court.

[00:53:41] Speaker 00:
And so, Judge Tatel, from our perspective, the government has any number of remedies available to it when retired service members behave badly.

[00:53:49] Speaker 01:
And what about a crime?

[00:53:51] Speaker 01:
What about a crime like this?

[00:53:53] Speaker 00:
Well, I mean, this I think we've I mean, we've as as your honor's colloquy suggested, we've identified at least two distinct offenses that the Justice Department could have pursued.

[00:54:03] Speaker 00:
Mr. Lara before had had the government, in our view, correctly held that it couldn't court martial him.

[00:54:09] Speaker 02:
You said any number of remedies, military has any number of remedies.

[00:54:15] Speaker 02:
But the two you just gave

[00:54:19] Speaker 02:
strike me as insufficient to solve the problem.

[00:54:23] Speaker 02:
That doesn't matter that I think it's insufficient.

[00:54:25] Speaker 02:
I'm not a policymaker.

[00:54:27] Speaker 02:
But it matters that Congress might have thought them insufficient to solve a problem as big as the problem that that Miss Barrymore and I were talking about.

[00:54:37] Speaker 02:
And if Congress thought the best way to solve that problem, to uphold the reputation and honor and integrity of military so that we can have as strong a fighting force as possible, including a fighting force that our best potential warriors want to join, if Congress thought the best way to do that is to have the support marshal regime for anyone who wears a uniform ever,

[00:55:07] Speaker 02:
Who are we as judges to say, well, there are other remedies that Congress could have done or that the military could have done?

[00:55:13] Speaker 02:
They chose this one.

[00:55:16] Speaker 00:
So I think Judge Walker, as judges, Your Honors, are the same judges who in Toth and Covert and Guagliardo and Grisham and Singleton did not defer to similar judgments by Congress.

[00:55:29] Speaker 00:
And indeed, Judge Walker, in those cases, those judgments actually had been made.

[00:55:33] Speaker 00:
I will just point out, Your Honor, the government has never pointed to any suggestion that at any point in time, Congress was worried about that problem in particular.

[00:55:41] Speaker 00:
But in Toth and Glockliardo and all those cases, Congress had identified a very specific problem.

[00:55:47] Speaker 00:
And the very specific problem Congress had identified was the gap in criminal jurisdiction for American citizens overseas and for American citizens who were outside of the military.

[00:55:57] Speaker 00:
And Judge Walker, even that gap, which all agreed was a gap,

[00:56:00] Speaker 00:
wasn't sufficient for the Supreme Court majorities in all six of those cases.

[00:56:06] Speaker 00:
And so I understand the court's reluctance to second guess what we might think of as battlefield judgments by Congress.

[00:56:14] Speaker 00:
But we are not disputing Congress's power to substantively regulate Mr. Larrabee.

[00:56:18] Speaker 00:
We are not disputing the validity of the regulations, the administrative regulations he's bound by.

[00:56:24] Speaker 00:
We're not disputing that he's subject to recall to active duty at any time.

[00:56:27] Speaker 00:
We're disputing that those things by themselves allow Congress to dispense with the safeguards of an Article 3 trial and of the rights to which Mr. Larrabee would otherwise be entitled under the Fifth and Sixth Amendments.

[00:56:39] Speaker 00:
And if I may, Your Honors, I realize we're over time.

[00:56:41] Speaker 00:
I'm sorry, Judge Tatel.

[00:56:42] Speaker 01:
No, you go ahead.

[00:56:43] Speaker 00:
I think it's worth stressing because I don't think this gets said enough.

[00:56:47] Speaker 00:
I mean, there are meaningful, significant differences in what a court martial looks like today and a civilian criminal prosecution.

[00:56:54] Speaker 00:
In a court martial, Mr. Larrabee has no right to unanimous conviction.

[00:56:58] Speaker 00:
He has no right to a fair cross section of jurors.

[00:57:01] Speaker 00:
There are substantive offenses that would be constitutionally precluded from civilian trial that the government's allowed to try in a court martial.

[00:57:09] Speaker 00:
And so these are not the courts marshal of old that Justice Black decried as a rough form of justice, but they're still not the civilian courts to which we put the Constitution in place.

[00:57:20] Speaker 01:
Let me, no, you go ahead, Jodra.

[00:57:23] Speaker 03:
Oh, OK.

[00:57:24] Speaker 03:
Thank you.

[00:57:25] Speaker 03:
Yeah, I guess I certainly share some of your concerns that there needs to be some type of outer boundary.

[00:57:33] Speaker 03:
But I am concerned about administrability and where we set that test.

[00:57:38] Speaker 03:
And so I think your test, for instance, is somewhat different than the test the district court articulated below.

[00:57:45] Speaker 03:
And it seems there are even other ways that one could articulate a test of, you know, how we figure out who is in the land and naval services.

[00:57:53] Speaker 03:
So I'm wondering if you could just state maybe clearly, you know, what the test is you propose and why you think that I assume you believe that would not lead to administrability problems.

[00:58:03] Speaker 03:
which I have a serious concern.

[00:58:05] Speaker 00:
Of course, Judge Rao.

[00:58:06] Speaker 00:
And so just to be clear, our test is someone is in the land and naval forces, for the purpose of Article 1, Section 8, Clause 14, if they are subject to and able to give orders, plural.

[00:58:19] Speaker 00:
That is to say more than just a recall order, because more than just a conscription order, an activation order.

[00:58:24] Speaker 03:
So Mr. Vodick, where does that functional test come from?

[00:58:29] Speaker 03:
That has to be orders, like

[00:58:30] Speaker 03:
In this case, you say there's only one order, but your test requires more than one order.

[00:58:37] Speaker 03:
where do we find that test?

[00:58:39] Speaker 03:
In the text or structure of the constitution, in historical practice, where does that test come from?

[00:58:47] Speaker 00:
I think it comes, so of course, textually, Article 1, Section 8, Clause 14 just refers to the land and naval forces without fleshing out what it says.

[00:58:56] Speaker 00:
The grand jury indictment clause refers to cases arising in the land and naval forces.

[00:59:01] Speaker 00:
So those are our two textual hooks.

[00:59:03] Speaker 00:
I agree, Judge Rao, they don't compel this answer.

[00:59:06] Speaker 00:
But if we actually are going to focus on original understanding in this context, it's more than a little relevant, I think, that the founders were deeply distrustful of military tribunals and that, indeed, the founders were very nervous about expansive military jurisdiction.

[00:59:22] Speaker 03:
What about, what do you make I'm glad that you mentioned original meaning, what do you make of the original meaning of the word government in this clause right make rules for the government and regulation I mean in some of the research I've done I mean government is an incredibly broad term as used at the time of the founding to manage or control it's something arguably broader than just regulating.

[00:59:47] Speaker 03:
And so I'm interested to know if you've looked at that question and how you think that might relate to your argument.

[00:59:54] Speaker 00:
I have all the, perhaps not as much as your honor, and I'll just say that, you know, I think the term government has been understood, at least historically, to imply that where you have the land and naval forces, the government's power is plenary.

[01:00:08] Speaker 00:
That as opposed to, for example, the Commerce Clause or Congress's other more specifically enumerated powers in Article 1, Section 8, government is a police power.

[01:00:17] Speaker 00:
much as the Congress exercises over the seat of government, much as Congress exercises over public buildings and Native American reservations.

[01:00:26] Speaker 00:
And so, you know, Judge Rao, from that perspective, that to us gets us to Solorio and the deference to which Congress is entitled when regulating those who no one questions.

[01:00:36] Speaker 00:
are in the land and naval forces.

[01:00:38] Speaker 00:
It's the boundary question where I think there's no similar historical argument for deference.

[01:00:44] Speaker 00:
And indeed, where I think it's telling that for all of the times that the Supreme Court has reiterated deference to judgments about the military, every single one of those cases involved active duty personnel.

[01:00:56] Speaker 00:
And the government, through the briefing in this case, through the parallel briefing in Bugani, has never identified an example of a single case where an appellate court

[01:01:06] Speaker 00:
gave deference to Congress's determination with regard to inactive personnel.

[01:01:11] Speaker 03:
Well, but I mean, that's why this case is unique, right?

[01:01:14] Speaker 03:
But also, I mean, Mr. Clarke is also not a civilian, which is what was involved in the other cases, right?

[01:01:20] Speaker 00:
I mean, we freely concede.

[01:01:22] Speaker 00:
We don't think this case is controlled by either line of precedent, which I think runs counter to some of the claims in the government's opening brief.

[01:01:32] Speaker 00:
The point to us, Your Honors, is between those two polls,

[01:01:36] Speaker 00:
is not a mushy gray zone with no clarity, right?

[01:01:40] Speaker 00:
The point is that Congress activates its authority by defining a class of offenders who Congress believes falls within the term land and naval forces.

[01:01:49] Speaker 00:
And the question for the courts is simply whether that determination by Congress is correct.

[01:01:54] Speaker 00:
And that's why Judge Rao, the boundary cases I think are not going to arise on a seriatim basis.

[01:02:00] Speaker 00:
It's a category by category determination by Congress.

[01:02:03] Speaker 01:
isn't your point in the boundary cases that we can we can we decide the boundary cases without taking account of article three in the fifth and sixth amendments in other words doesn't the what i call the toe thumb on the scale calculate uh play a role in this calculation in other words if if if as you said

[01:02:25] Speaker 01:
Neither line of cases controls this, and the case could, quote, you know, go either way just on the basis of the language that the tiebreaker is Toth.

[01:02:36] Speaker 01:
the need to preserve the Article III, II, V, Amendment V and VI powers, right?

[01:02:42] Speaker 00:
So Judge, I would say there are two tiebreakers, if you'll indulge me.

[01:02:46] Speaker 00:
The first tiebreaker, Toth is one of them, and that line of cases.

[01:02:50] Speaker 00:
But Your Honors, I think there's a second tiebreaker that we don't talk about enough in these cases, which is the more general skepticism

[01:02:57] Speaker 00:
the Supreme Court has shown toward any departures from Article III, not just in the military context.

[01:03:03] Speaker 00:
I mean, I think, you know, in Stern versus Marshall, the Chief Justice's majority opinion went out of its way to suggest that there are reasons why we are very wary of departures from Article III, even if, unlike in this case, we didn't have concerns about the non-Article III forum.

[01:03:19] Speaker 00:
And so I think they're actually, Judge Tatel, two different pressures, both tilting toward civilian courts in these cases as opposed to courts, Marshall.

[01:03:28] Speaker 02:
I ask a question along the lines of Judge Rao's inquiry about original public meeting.

[01:03:34] Speaker 02:
Judge Mags's concurrence in Bugani, if I'm remembering right, talks about some founding era cases where furloughed soldiers were court-martialed, even though I think, correct me if I'm wrong, they were subject to no orders other than the one order that Larabee is subject to.

[01:03:57] Speaker 02:
a recall order.

[01:03:59] Speaker 02:
Congress pardoned them, but didn't pardon them on jurisdictional grounds.

[01:04:03] Speaker 02:
Can you talk about that?

[01:04:06] Speaker 00:
Yeah, I mean, so it was just a footnote, Judge Walker, on a matter that wasn't extensively briefed in Bugani.

[01:04:10] Speaker 00:
But from my research, where Judge Mags's concurrence, I think, overstates things is in suggesting that furloughed soldiers are analogous to retirees.

[01:04:21] Speaker 00:
And here's the key difference.

[01:04:22] Speaker 00:
A furlough, as it was understood at the founding, was a temporary leave of absence.

[01:04:27] Speaker 00:
from a geographic area.

[01:04:29] Speaker 00:
It was basically just sort of a temporary suspension of duty, which usually had a fixed duration judge walker, a weekend furlough, a two week pass, something like that.

[01:04:38] Speaker 00:
No one understood furloughs at the time to be changes in the underlying status of the service member, in contrast to retirees who are not subject to any kind of temporary fluctuations, who are categorically inactive.

[01:04:51] Speaker 02:
It sounds like though you're shifting from the functionalist argument

[01:04:56] Speaker 02:
that you made earlier to now a more formalist argument about status.

[01:05:02] Speaker 02:
If we take your functional test, you can be court-martialed if you're subject to more than one order.

[01:05:09] Speaker 02:
You cannot be court-martialed if you are subject to only one order.

[01:05:14] Speaker 02:
These furlough cases are inconsistent with that.

[01:05:17] Speaker 00:
So, with respect to Dwarka, I'm not sure they are, because I think that the key is that the status to which I'm referring is not the status at the moment, it's the status, it's your legal status.

[01:05:26] Speaker 00:
A furloughed soldier is still in active service, legally.

[01:05:30] Speaker 00:
And so, from that perspective, the question again, and this goes back to categories versus cases,

[01:05:36] Speaker 00:
The reason why we think the question is the class of individuals as a category is it's whether that class of individuals as a category is generally subject to orders or not to orders.

[01:05:47] Speaker 00:
And so the government, for example, points to specific examples of certain active duty personnel who can't give orders.

[01:05:55] Speaker 00:
To us, that misses the point.

[01:05:56] Speaker 00:
The question is whether the class Congress has identified in one of the subsections of Article 2A of the UCMJ

[01:06:05] Speaker 00:
is that class of individuals a class that is generally subject to orders?

[01:06:10] Speaker 00:
And Judge Walker, that definition gives Congress an awful lot of latitude.

[01:06:15] Speaker 00:
If Congress wanted to continue to hold retirees to the UCMJ, it could simply impose upon them regular military responsibilities.

[01:06:23] Speaker 00:
I think the relevant point that I think we haven't spent a lot of time talking about is Congress hasn't touched any of this in over 70 years.

[01:06:31] Speaker 00:
I mean, the two provisions of Article 2 that Congress has never amended are 2A4, which is retirees, and 2A6, which is the one at issue here.

[01:06:40] Speaker 00:
And so the notion that Congress has been sort of steadily updating this as retirees have become more and more anachronistic, as the notion that retirees are going to be the fallback,

[01:06:50] Speaker 00:
in an emergency has become less and less accurate.

[01:06:53] Speaker 00:
That's where I think the court's obligation really becomes especially imperative, because otherwise this is jurisdiction in perpetuity by inertia.

[01:07:04] Speaker 01:
So let me just, before you sit down, make sure I totally understand your basic argument here.

[01:07:14] Speaker 01:
Your view is that under Toth and Solerio, the question is whether someone is actually a member or part of the armed services and that members of the Fleet Marine Corps are not because they have no military duties and are not subject to any orders, correct?

[01:07:33] Speaker 01:
So they are not

[01:07:36] Speaker 01:
members or part of the armed services, they're not under clause 14 of the Constitution part of the naval forces, and that the only order they are subject to, that of the cerebral, that's the gateway back to being a member or part of the armed forces.

[01:07:51] Speaker 01:
Is that your position?

[01:07:52] Speaker 00:
It is, and you did it in much less than 32 minutes, so we should trade places.

[01:07:57] Speaker 01:
But that's it, right?

[01:07:58] Speaker 01:
So your answer, because I struggle with this question of, how do I think about the order to return to active service?

[01:08:06] Speaker 01:
Because these people are subject to that order, correct?

[01:08:10] Speaker 00:
They are, but of course, Judge Taylor said.

[01:08:11] Speaker 01:
You can't say that members of the Fleet Marine Corps are not subject to military orders.

[01:08:16] Speaker 01:
They are subject to this one, right?

[01:08:18] Speaker 01:
But I take it your view is that they

[01:08:22] Speaker 01:
That order is, why don't you answer my question before I do?

[01:08:27] Speaker 01:
You answer it.

[01:08:27] Speaker 00:
So I might, Judge Shadal, I think that order is sui generis.

[01:08:30] Speaker 00:
And what I mean by that is there has to be some mechanism by which the government can conscript.

[01:08:37] Speaker 00:
And so, for example, I, as a member of the Selective Service, am theoretically subject to one order.

[01:08:43] Speaker 00:
If Congress were to pass the right statutes to activate the call up of the Selective Service.

[01:08:48] Speaker 00:
That does not mean that because I'm subject to one order in the future.

[01:08:52] Speaker 00:
I am today subject to military orders.

[01:08:55] Speaker 00:
I don't mean to personalize this, but I think the point is that there has to be an on off switch that allows Congress to trigger the body.

[01:09:03] Speaker 00:
going forward.

[01:09:04] Speaker 00:
That order, though, is not something that, first of all, is a realistic specter for the overwhelming majority of retirees.

[01:09:10] Speaker 00:
As we point out, over two-thirds of retirees are actually categorically ineligible for recall under the government's own criteria.

[01:09:18] Speaker 01:
That can't be the standard.

[01:09:19] Speaker 00:
I mean, if that changes in the future, then that can't be the standard.

[01:09:24] Speaker 00:
No, of course.

[01:09:24] Speaker 01:
I don't mean to get...

[01:09:26] Speaker 01:
No, but isn't your point that I just want to make sure I understand it, because as you could tell from my questioning of Ms.

[01:09:32] Speaker 01:
Farmer, to me, this question is critical.

[01:09:34] Speaker 01:
This is a central issue in this case.

[01:09:36] Speaker 01:
So your view is that the order to return to active duty, that's the difference.

[01:09:45] Speaker 01:
That's how you go from being, quote,

[01:09:49] Speaker 01:
not being actually a member of the part of the military, becoming an actual member of the military, right?

[01:09:55] Speaker 01:
And I take it someone who violated that order would be subject to court martial, right?

[01:09:59] Speaker 00:
Yes.

[01:09:59] Speaker 00:
And as we say in the briefing, Billings versus Truesdell and in the LeWim case, the courts have said that failure to respond to the order.

[01:10:07] Speaker 00:
But Judge Tatel, failure to respond subjects you to court martial not as an inactive person, but as an active person refusing to acknowledge your active status.

[01:10:16] Speaker 00:
And if I might take a step back, I don't mean to be coy.

[01:10:20] Speaker 00:
I mean, this is how the militia works.

[01:10:22] Speaker 00:
and how it worked at the founding.

[01:10:23] Speaker 00:
A member of the militia was not subject to military orders until the militia was called forth.

[01:10:30] Speaker 00:
A member of the National Guard is not subject to military orders until the National Guard is activated.

[01:10:35] Speaker 00:
And so I understand that this is a stumbling block for the court.

[01:10:39] Speaker 00:
I just want to suggest that this is a sort of a ubiquitous dividing line in this area.

[01:10:46] Speaker 01:
Great.

[01:10:46] Speaker 01:
Okay.

[01:10:46] Speaker 01:
Well, unless my colleagues have any further questions, do you, Judge Rao, Judge Walker, are you okay?

[01:10:51] Speaker 01:
All right, great.

[01:10:52] Speaker 01:
Thank you.

[01:10:53] Speaker 01:
Thank you, Your Honor.

[01:10:54] Speaker 01:
Ms.

[01:10:54] Speaker 01:
Barmore, you can have three minutes, and I'm going to take up the first 30 seconds of it with two questions.

[01:11:05] Speaker 01:
Number one, what's your answer to Mr. Fladek's point that he just made about the militia

[01:11:14] Speaker 01:
and the National Guard, they are also subject to just one order and they were never considered part of the military until that order was issued.

[01:11:23] Speaker 01:
That's question number one.

[01:11:25] Speaker 04:
Yes, Your Honor.

[01:11:26] Speaker 04:
So the militia actually underscore our main argument here because the militia is subject to a unique protection under the Fifth Amendment Scram Jury Clause exception that applies to the militia, quote, when in actual service, which is distinct from the land and naval forces

[01:11:43] Speaker 04:
where they are exempt from the grand jury clause at all times.

[01:11:46] Speaker 04:
And that's what the Supreme Court said in Johnson v. Sayre.

[01:11:49] Speaker 04:
So in the Constitution, you have this textual distinction saying that active duty does matter for the militia, but not for the land and naval forces.

[01:11:59] Speaker 04:
And that is the interpretation the Supreme Court has adopted.

[01:12:03] Speaker 01:
And what's your answer to his hypothetical about the 90 year old Korean war veteran charged with court martial for shoplifting?

[01:12:15] Speaker 04:
I have a couple of responses to the 90-year-old war veteran hypothetical, which is that that just is not this case.

[01:12:22] Speaker 04:
The Fleet Marine Corps reserves have had 90-year-old members.

[01:12:25] Speaker 01:
We know it's not this case.

[01:12:27] Speaker 01:
But the question we have to decide, the question we have to decide, the question we have to wrestle with in deciding the case are what are its implications?

[01:12:36] Speaker 01:
And his position is that if you're right, then a 90-year-old Korean war veteran can be court-martialed for shocklifting.

[01:12:45] Speaker 01:
Is that true?

[01:12:46] Speaker 04:
So this, this actually gets into the first point that I wanted to make in response.

[01:12:55] Speaker 04:
Right.

[01:12:55] Speaker 04:
So my answer to your question is that there really is no need for this court to decide that type of edge case in this case, because this case only deals with the fleet Marine Corps reserve.

[01:13:05] Speaker 04:
It does not deal with retirees for length of service.

[01:13:08] Speaker 04:
So the fleet Marine Corps reserve, their members have only been in for 20 to 30 years.

[01:13:12] Speaker 04:
after 30 years, which would be the 90-year-old Korean War veteran, they're transferred to the retired list.

[01:13:18] Speaker 04:
And so while there are many cases recognizing that retirees like that individual would be in the land and naval forces, that case is not presented here because all of those types of concerns are just not an issue in the Fleet Marine Corps Reserve.

[01:13:31] Speaker 02:
And so this- What about the athletics hypothetical about a fleet reservist who is court-martialed for criticizing the president?

[01:13:42] Speaker 02:
Does your state allow for that?

[01:13:44] Speaker 04:
So a couple of points there, Your Honor.

[01:13:46] Speaker 04:
So Article 88 prohibits contemptuous words, not just blanket criticism, but contemptuous words.

[01:13:53] Speaker 04:
And Congress has ample authority.

[01:13:55] Speaker 01:
Suppose he's contemptuous.

[01:13:58] Speaker 01:
Let me just, if I could, Judge Walker, amend your hypothetical.

[01:14:02] Speaker 01:
He criticized the government, the president, contemptuously.

[01:14:06] Speaker 04:
Absolutely, Your Honor.

[01:14:07] Speaker 04:
The UCMJF says a broader amount of conduct that

[01:14:12] Speaker 04:
necessarily is prohibited because of the need to maintain order in the military.

[01:14:16] Speaker 04:
That is going to be broader than civilian codes.

[01:14:19] Speaker 04:
And we do not contest that Congress has that ability under clause 14 to make rules governing the land and naval forces in a way that ensures obedience and discipline in the chain of command.

[01:14:30] Speaker 04:
They're just unique considerations in the military context.

[01:14:33] Speaker 02:
That court martial would be okay.

[01:14:36] Speaker 04:
Your honor, we don't contest that the full UCMJ would apply to the Fleet Marine Corps Reserve, which does include Article 88.

[01:14:43] Speaker 02:
So that court martial would be okay.

[01:14:47] Speaker 04:
Yes, your honor, if I understand the hypothetical.

[01:14:51] Speaker 04:
And so the second point I would like to make apart from just that this court does not need to decide these edge cases here because the Fleet Marine Corps Reserve satisfies either a formal or a functional test, especially supported by the longstanding historical practice with respect to retirees.

[01:15:06] Speaker 04:
Inactive duty is also not a distinction that this court should make for clause 14 for several reasons.

[01:15:14] Speaker 04:
We've already talked about the dynamics.

[01:15:15] Speaker 01:
I'm sorry, could you just say again, what's the distinction we shouldn't make?

[01:15:21] Speaker 01:
I just didn't hear what you said.

[01:15:23] Speaker 04:
Between inactive duty and active duty service members.

[01:15:27] Speaker 04:
That there's been a lot of discussion about that it might matter that plea Marine Corps service are on inactive duty.

[01:15:35] Speaker 04:
But as we just talked about with the Fifth Amendment's exception for the grand jury clause, there is no active duty requirement for the land and naval forces.

[01:15:42] Speaker 04:
That's not part of clause 14's plain meaning, which Solorio highlighted.

[01:15:45] Speaker 04:
The Supreme Court in Tyler highlighted that qualified relief from active duty did not change things.

[01:15:51] Speaker 04:
And really that gets back to the purpose of clause 14, which is to have a military that's ready to fight wars should they arise.

[01:15:59] Speaker 04:
not necessarily to fight a war today, but Congress's responsibility is to prepare the nation for future armed conflict.

[01:16:07] Speaker 03:
Was there practice of having inactive service members at the time of the founding?

[01:16:13] Speaker 04:
So I would point this court to, we discussed a little bit Judge Mags's concurrence.

[01:16:18] Speaker 04:
The Court of Appeals for the Armed Forces recently decided this issue in Begani.

[01:16:22] Speaker 04:
He carefully went through the historical record on this point.

[01:16:25] Speaker 04:
And the example of furloughed soldiers, which Judge Walker raised, does provide an example where they were not on active duty.

[01:16:32] Speaker 04:
They were allowed to be absent from the regimen, which Judge Maggs recognized meant that they had no actual requirements of doing anything while they were inactive.

[01:16:41] Speaker 04:
But they could be recalled at any time right after the Revolutionary War, because there was a concern that maybe the war wasn't really over.

[01:16:48] Speaker 04:
And they were subject to court martial jurisdiction for mutiny, which is a military offense.

[01:16:57] Speaker 04:
One last point I would like to make in response to this service break idea that Mr. Vladeck raised.

[01:17:05] Speaker 04:
In 2016, Congress actually did amend the UCMJ with respect to inactive reservists to extend court martial jurisdiction over this service break period between inactive training requirements.

[01:17:20] Speaker 04:
So for example, if you might go for a weekend and be in training on like a Friday and a Saturday,

[01:17:26] Speaker 04:
and who were to go out on Friday night and get into trouble, that would be historically considered a break in your service.

[01:17:32] Speaker 04:
But Congress decided to extend UCMJ jurisdiction to cover that Friday night period.

[01:17:37] Speaker 04:
And so Congress does carefully amend the UCMJ from time to time to take into account these practical realities.

[01:17:49] Speaker 01:
Judge Royall, Judge Walker, do you have any other questions?

[01:17:52] Speaker 02:
Not for me.

[01:17:53] Speaker 01:
Okay, this farmer, Mr Vladek, thank you for your arguments this morning.

[01:17:57] Speaker 01:
The case is submitted.