The Constitutionality of the Special Trial Counsel Under the Apogee of Judicial Deference

Congress has undertaken some of its broadest reforms of military courts-martial in decades. The creation of the Special Trial Counsels (STCs) intentionally removes nearly all courts-martial powers from military commanders for “covered offenses,” some of the most serious prosecutions. Many commentators have expressed concern that this change untethers the courts-martial system from its historical anchor of discipline within the military—an anchor that the Supreme Court has used to grant exceptional deference to Congress for its legislation pursuant to the Make Rules Clause. However, the constitutionality of the STCs and the deference federal courts grant Congress in this realm should not be considered in jeopardy. STCs are akin to many prior Congressional exceptions to the command-centric disciplinary model. And under Ortiz v. United States, the Supreme Court’s most recent courts-martial case, STCs are neatly within the courts-martial’s supporting aims of discipline and justice.