Corrected Note re: Edmond v. United States
Note 2 on 471 should be replaced by the following text:
In Edmond v. United States, 520 U.S. 651 (1997), which the majority cites above, the Court unanimously upheld the appointment by the Secretary of Transportation of civilian members of the Coast Guard Court of Criminal Appeals, on the ground that the latter are “inferior officers,” notwithstanding that they are limited neither in tenure nor in jurisdiction in the same way as independent counsel. The case gave Justice Scalia an opportunity to somewhat marginalize Morrison and its turn to balancing to decide on what counts as constitutional “inferiority.” The Court held the judges to be “inferior” by virtue of the degree of supervision to which they were susceptible under the General Counsel of the Department of Transportation in his capacity as Judge Advocate General and the Court of Appeals for the Armed Forces. As in the PCAOB case, however, the Court’s holding may have had little, if any implication for the durability of Morrison. Although the Court rested on a more formal test for “inferiority,” on which it relies also in PCAOB, the balancing approach of Morrison could well have produced an identical outcome; the jurisdiction of the judges at issue was broader than that of independent counsel, but their control by superior officers was much greater.