Steven M. Larrabee v. Carlos Del Toro, Secretary of the Navy, et al.

Articles 2(a)(4) and 2(a)(6) of the Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 802(a)(4), (6), authorize courts-martial of retired servicemembers for both military and civilian offenses committed after they have left active duty. This jurisdiction reaches millions of military retirees, all of whom have returned to civilian life and have no military responsibilities unless and until they are recalled to active duty. Two courts of appeals have recently upheld the constitutionality of this jurisdiction, but only by relying upon divergent rationales. In United States v. Begani, 81 M.J. 273 (C.A.A.F. 2021), the Court of Appeals for the Armed Forces (CAAF) held that Congress’s authorization of such military jurisdiction was entitled to deference. In this case, the D.C. Circuit rejected the CAAF’s deference-driven analysis, holding that the constitutionality of court-martial jurisdiction requires plenary judicial review. Over Judge Tatel’s dissent, the majority reached the same result as the CAAF had—by embracing factually and methodologically incorrect assessments of Founding-era British and American military practices. The question presented is: Whether the Constitution permits military retirees to be tried by court-martial for offenses committed after they have left active duty?