Three Statuses, not Two: Why Larrabee Is the Wrong Rule for Nonprofessional Soldiers
In recent years, the military has court-martialed military retirees for conduct that occurred off base and after retirement. These courts-martial involve civilian offenses (e.g., sexual assault) when the servicemen have essentially returned to civilian life. Congress has authorized such prosecutions under the Uniform Code of Military Justice. But there have been challenges to whether Congress has the constitutional authority for such broad military jurisdiction. On Tuesday, the D.C. Circuit in Larrabee v. Del Toro upheld the constitutionality of Congress’s authorization, holding that a military retiree remained part of the land or naval forces. This is an incredibly difficult legal issue, and I am uncertain about the right bottom line. But I want to flag a very important constitutional issue that has gotten lost in the analysis: the special constitutional restrictions on subjecting nonprofessional soldiers to military law.
A quick background on the facts of this case. Steven Larrabee is a former active-duty Marine. He retired from the military after twenty years. He worked as a civilian employee on a military base in Japan, and he also managed two bars part-time. After he had retired from the military, Larrabee sexually assaulted a bartender in Japan. Rather than let Larrabee face charges in a civilian Japanese court, the federal government prosecuted him under the UCMJ for sexual assault and for making a video recording of the assault. He pleaded guilty, but collaterally challenged his military conviction.
In the Marine Corps, retirement occurs in two stages. First, after 20 years of service, a person may transfer to the “Fleet Marine Reserve.” Then, after 30 years of service (including time spent on the Fleet Marine Reserve list), a Marine may be moved to the retired list. Fleet Marine Reservists and retirees receive pensions for their prior service. The government calls this “retainer pay” for future service, but this is a euphemism. Although Fleet Marine Reservists are theoretically liable to be involuntarily called up in national emergencies, this practically never happens. Additionally, the “retainer pay” is clearly compensation for past services; the amount of the retirement pay is directly correlated with the years of prior service, not with the probability of future recall.
In an opinion by Judge Neomi Rao, the D.C. Circuit held that the military could court-martial Larrabee even though he is retired. The court’s argument effectively has three premises. First, the constitutionality of subjecting a person to military jurisdiction “turns ‘on one factor: the military status of the accused’” (op. at 12, quoting Solorio v. United States, 483 U.S. 435, 439 (1987)), so a member of the Armed Forces is subject to military jurisdiction at all times, while a civilian is not. Second, a person falls within the “land or naval forces,” as that term is used in the Constitution, “if he has a formal relationship with the armed forces that includes a duty to obey military orders” (op. at 17). This is the majority’s test for whether to apply status-based jurisdiction. Third, Larrabee had a duty to obey military orders because he could be ordered to reenter active service in a war or national emergency and because he could be required to report for training for up to two months in any four-year period (op. at 25–26, citing 10 U.S.C. § 8385). Therefore, the court concludes, Larrabee was subject to military law at all times, despite being retired.
The first premise, however, rests on a false dichotomy. When it comes to the military, Anglo-American law recognizes three statuses, not two: professional soldier, nonprofessional soldier, and civilian. Only professional soldiers may be subject to military law at all times, even when off duty, based solely on their “status” as soldiers. As full-time professionals, these servicemen are always in actual military service. (Being “in service” is not synonymous with “discharging official duties.”) At the opposite end, civilians are not amenable to military law and may not generally be tried by courts-martial.
In between these two paradigms, however, is a third status: that of the nonprofessional soldier (e.g., a member of the militia). For these nonprofessional (part-time) soldiers, Anglo-American law has a functional relationship to military justice. Nonprofessional soldiers are subject to military law while in active service and in training; but they are subject to civilian law—and retain their full common-law rights—when they act as civilians.
The Constitution’s text reflects this distinction. The Fifth Amendment provides for civilian criminal procedure protections but then has two different military exceptions: the status-based jurisdiction of the professional forces (an exception for “cases arising in the land or naval forces”) and the more functional test applied to nonprofessional soldiers (an exception “in the militia, when in actual service in time of war or public danger”). This distinction reflects centuries of Anglo-American practice, which has subjected professional forces to more extensive military jurisdiction than nonprofessional forces.
The D.C. Circuit’s false dichotomy has further consequences. The court says that a person falls within the land or naval forces if the person “has a formal relationship with the armed forces that includes a duty to obey military orders.” But this is too simple. This test might be correct for regular (professional) soldiers; but it is not the right test for nonprofessional soldiers. Both kinds of soldiers have a formal relationship with the military, including the duty to obey orders. Some of the early cases Judge Rao cites involve courts-martial of militiamen, not professional soldiers. See Houston v. Moore, 18 U.S. (5 Wheat.) 1 (1820); Martin v. Mott, 25 U.S. (12 Wheat.) 19 (1827). Like Larrabee, these militiamen were enrolled in a military force pursuant to federal law. Also like Larrabee, they were obligated to obey military orders, including to report for duty if ordered. (In fact, the militiamen in these cases were subject to courts-martial for failing to report for duty.) But members of the militia cannot and have never been subject to sweeping status-based military jurisdiction that lets them be court-martialed for criminal conduct that occurs in their civilian life. The retention of civilian life under civilian law is a core aspect of the nonprofessional armed forces when its members are not in active service.
With the proper distinction in view, things get more complicated: To determine whether Larrabee remained in the “land or naval forces,” as those terms were understood at the Framing, the court should have asked whether Larrabee remained a professional soldier or sailor. Today, many might write-off the possibility that Larrabee was effectively a militiaman because he was enrolled in the federal Armed Forces, not a state force or National Guard. But as I explain at length in my forthcoming article Deciphering the Armed Forces, the distinction between “armies” and “militia” is not one of federalism. Rather, the proper constitutional distinction between these forces has to do with professionalism: the “armies” (or “land forces”) are the regular, professional forces, while the militia comprises nonprofessional citizen-soldiers.
The constitutional question about how far Congress may extend military law has become immensely complicated because of Congress’s efforts to evade the limitations of the Militia Clauses. The Constitution contemplates that Congress may exercise plenary authority over the armies and navy (the professional forces). But the Constitution gives Congress only a very limited power to call forth the militia, and power over the militia is shared with the states. To evade these limitations, Congress created the military reserve system in the twentieth century. These reservists are citizen-soldiers, and the organized reserves operate as a de facto nationally organized and controlled militia. Because reservists are essentially militiamen, Congress should not be allowed to extend military law to off-duty reservists. The federal reserve forces may be an unconstitutionally organized national militia; but for Fifth Amendment purposes, they should still be a militia.
Here is where it gets even more complicated for Larrabee’s case. The Fleet Marine Reserve is not part of the organized reserves of part-time citizen-soldiers. Instead, it is a component to which retirees of the regular Marine Corps go.
Many facts cut in favor of recognizing Larrabee as a member of the professional forces. The Fleet Marine Reserve is restricted only to former full-time Marines. These Marines entered service voluntarily. They have completed a full career in the Marines. Further, they have elected to remain on the rolls and continue to draw pay and hold their military rank. (Marines could elect for discharge, although they would forfeit their retirement pay by doing so.)
But many facts also cut the other way. Once transferred to the Fleet Marine Reserve, these Marines do not have the power and duties ordinarily vested in regular forces. As Larrabee pointed out in his brief (written by Professor Steve Vladeck), these retirees “[l]ack authority to issue binding orders,” cannot be promoted, do not “participate in any military activities,” and may not serve on courts-martial (pp. 25-26). Functionally, they act as a pool of available emergency military manpower, not as professional soldiers. This makes Fleet Marine Reservists more like militiamen than regular soldiers.
Making this issue even harder, Larrabee was a Marine, not an Army soldier. The Marines are a maritime land force. Constitutionally, I am uncertain whether they should fall within the “armies” or “navy.” (Federal law defines Marines to be part of the naval service, but it is less clear whether that is their status under the Constitution.) The militia is a force that fights on land, and for reasons I explain in this article (see p. 1001 n.56), I am skeptical that part-time seamen fall within the constitutional militia. Congress may have more power to govern part-time sailors (who still fall within the plenary federal naval power) than it has over part-time land soldiers (who are effectively militiamen). So Larrabee’s case might plausibly fall within Congress’s power to discipline members of the navy, even if Congress’s power would be more restricted over a comparably situated retired land soldier. For these reasons, I am deeply unsure what the correct judgment in this case should be.
Laying that complication aside, however, one cannot properly analyze this legal issue without keeping in mind the status of nonprofessional soldiers. By omitting nonprofessional soldiers from their analysis, the majority announced a test that begged the critical question. That question was not whether Larrabee retained some affiliation with the Armed Forces. He obviously did. Instead, the critical question was whether Larrabee remained a member of the professional forces, despite having retired and returned to civilian life. Only if he remained a professional could the federal government apply military law to him solely on the basis of his status as a member of the Armed Forces.
Assistant Professor, George Mason University, Antonin Scalia Law School
Disclaimer: Posts are the authors' personal opinions and do not reflect the position of any organization or government agency.
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