The Supreme Court's June 3, 1996, ruling upholding the military death penalty. The Court ruled that the president, as commander-in-chief, has the authority to establish rules for capital punishment for military personnel. The case involved Dwight Loving, who was court-martialed for the 1988 killing of two taxi drivers while he was stationed at Fort Hood in Texas.

SUPREME COURT OF THE UNITED STATES

Syllabus

LOVING v. UNITED STATES

certiorari to the united states court of appeals for the armed forces 

No. 94-1966. Argued January 9, 1996-Decided June 3, 1996 

A general court-martial found petitioner Loving, an Army private, 
guilty of both premeditated murder and felony murder under Article 
118 of the Uniform Code of Military Justice (UCMJ), 10 U. S. 
C.918(1), (4). Finding three aggravating factors-(1) that the 
premeditated murder was committed during a robbery, Rule for 
Courts-Martial (RCM) 1004(c)(7)(B); (2) that Loving acted as the 
triggerman in the felony murder, RCM 1004(c)- (8); and (3) that 
Loving, having been found guilty of the premeditated murder, had 
committed a second murder, also proved at his single trial, RCM 
1004(c)(7)(J)-the court-martial sentenced Loving to death. The 
commander who convened the court-martial approved the findings and 
sen- tence. The United States Army Court of Military Review and the 
United States Court of Appeals for the Armed Forces affirmed, 
rejecting Loving's attack on the promulgation by Executive Order of 
the aggravating factors in RCM 1004. He contends that the Eighth 
Amendment and the separation-of- powers doctrine require that 
Congress, not the President, make the funda- mental policy 
determination respecting the factors that warrant the death penalty. 

Held:

1. On the assumption that Furman v. Georgia, 408 U. S. 238, and 
subsequent cases apply to this crime and sentence, the Constitution 
requires the aggravating factors that Loving challenges. Under the 
Eighth Amend- ment, the military capital sentencing scheme must 
genuinely narrow the class of persons eligible for the death penalty 
and must reasonably justify the imposition of a more severe sentence 
on the accused compared to others found guilty of murder, see, e.g., 
Lowenfield v. Phelps, 484 U. S. 231, 244. That narrowing is not 
achieved in the statute. Article 118 authorizes the death penalty for but 
two of the four types of murder therein specified, premeditated and 
felony murder, 918(1), (4), whereas intentional murder without 
premeditation and murder resulting from wanton and dangerous 
conduct are not punishable by death, 918(2), (3). Moreover, Article 
118(4) by its terms permits the death penalty for felony murder even if 
the accused had no intent to kill and did not do the killing himself. 
Because the Eighth Amendment does not permit death to be imposed 
in those circum- stances, Enmund v. Florida, 458 U. S. 782, 801, 
additional aggravating factors establishing a higher culpability are 
necessary to Article 118's constitutional validity, see, e.g., 
Lowenfield, supra, at 244. Pp. 5-6. 

2. The President's prescription of the challenged aggravating factors 
did not violate the separation-of-powers principle. Pp. 6-25. 

(a) The fundamental precept of the delegation doctrine, a strand of this 
Court's separation-of-powers jurisprudence, is that the lawmaking 
function belongs to Congress, U. S. Const., Art. I, 1, and may not be 
conveyed to another branch or entity, Field v. Clark, 143 U. S. 649, 
692. This princi- ple does not mean, however, that only Congress can 
make a rule of pro- spective force. Although it may not delegate the 
power to make the law, which necessarily involves discretion as to 
what the law shall be, Congress may delegate to others the authority 
or discretion to execute the law under and in pursuance of its terms. 
Id., at 693-694. Pp. 6-10. 

(b) The Court rejects Loving's argument that Congress lacks power to 
delegate to the President the authority to prescribe aggravating factors 
in capital murder cases. An analysis of English constitutional history 
and of the historical necessities and events that instructed the Framers 
demonstrates that U. S. Const., Art. I, 8, cl. 14-which empowers 
Congress "[t]o make Rules for the Government and Regulation of the 
land and naval forc- es--does not grant an exclusive, nondelegable 
power to determine military punishments, but gives Congress such 
flexibility to exercise or share power as the times might demand. And 
it would be contrary to the respect owed the President as Commander 
in Chief to hold that he may not be given wide discretion and 
authority. Thus, in the circumstances presented here, Con- gress may 
delegate authority to the President to define the aggravating factors that 
permit imposition of a statutory penalty, with the regulations 
providing the narrowing of the death-eligible class that the Eighth 
Amend- ment requires. Pp. 10-19. 

(c) Also rejected is Loving's contention that, even if Congress can 
delegate to the President the authority to prescribe aggravating factors, 
Congress did not do so by implicit or explicit action in this instance. 
In fact, Congress exercised that power of delegation in 1950, when it 
enacted Articles 18, 56, and 36(a) of the UCMJ, 10 U. S. C. 818 (A 
court- martial -may, under such limitations as the President may 
prescribe, adjudge any punishment not forbidden by [the UCMJ], 
including the penalty of death when specifically authorized-), 856 (-
The punishment which a court-martial may direct . . . may not exceed 
such limits as the President may prescribe for that offense-), and 
836(a) (which empowers the President to make proce- dural rules for 
courts-martial, and was identified by Congress in 1985 as a source of 
Presidential authority to provide capital aggravating factors). 
Together, these Articles give clear authority to the President to 
promulgate RCM 1004. Pp. 20-22. 

(d) Loving's final assertion-that even if Articles 18, 56, and 36 can be 
construed as delegations, they lack an intelligible principle to guide the 
President's discretion-is also rejected. Had the delegations here called 
for the exercise of judgment or discretion that lies beyond the 
President's traditional authority, this argument might have more 
weight. However, because the President's duties as Commander in 
Chief require him to take responsible and continuing action to 
superintend the military, including the courts-martial, the delegated 
duty to prescribe aggravating factors for capital cases is interlinked 
with duties already assigned to him by the Constitution's express 
terms. The same limitations on delegation do not apply where the 
entity exercising the delegated authority possesses independent 
authority over the subject matter. See, e.g., United States v. Mazurie, 
419 U. S. 544, 556-557. Pp. 22-25. 

41 M. J. 213, affirmed.

Kennedy, J., delivered the opinion of the Court, in which Rehnquist, 
C. J., and Stevens, Souter, Ginsburg, and Breyer, JJ., joined, and in 
all but Part IV-A of which O'Connor and Scalia, JJ., joined. Stevens, 
J., filed a concurring opinion, in which Souter, Ginsburg, and 
Breyer, JJ., joined. Scalia, J., filed an opinion concurring in part and 
concurring in the judgment, in which O'Connor, J., joined. Thomas, 
J., filed an opinion concurring in the judgment. 


NOTICE: This opinion is subject to formal revision before publication 
in the preliminary print of the United States Reports.  Readers are 
requested to notify the Reporter of Decisions, Supreme Court of the 
United States, Washington, D.C. 20543, of any typographical or 
other formal errors, in order that corrections may be made before the 
preliminary print goes to press. 

SUPREME COURT OF THE UNITED STATES

No. 94-1966

DWIGHT J. LOVING, PETITIONER
v. UNITED STATES
on writ of certiorari to the united states court of appeals for the armed 
forces [June 3, 1996] 

Justice Kennedy delivered the opinion of the Court. The case before 
us concerns the authority of the President, in our system of separated 
powers, to prescribe aggravating factors that permit a court-martial to 
impose the death penalty upon a member of the armed forces 
convicted of murder. 

I
On December 12, 1988, petitioner Dwight Loving, an Army private 
stationed at Fort Hood, Texas, murdered two taxicab drivers from the 
nearby town of Killeen.  He attempted to murder a third, but the driver 
disarmed him and escaped. Civilian and Army authorities arrested 
Loving the next afternoon.  He confessed. After a trial, an eight-
member general court-martial found Loving guilty of, among other 
offenses, premeditated murder and felony murder under Article 118 of 
the Uniform Code of Military Justice (UCMJ), 10 U. S. C. 918(1), 
(4).  In the sentencing phase of the trial, the court-martial found three 
aggravating factors: (1) that the premeditated murder of the second 
driver was committed during the course of a robbery, Rule for Courts-
Martial (RCM) 1004(c)(7)(B); (2) that Loving acted as the triggerman 
in the felony murder of the first driver, RCM 1004(c)(8); and (3) that 
Loving, having been found guilty of the premeditated murder, had 
committed a second murder, also proven at the single trial, RCM 
1004(c)(- 7)(J).  The court-martial sentenced Loving to death.  The 
commander who convened the court-martial approved the findings and 
sentence.  Cf. 10 U. S. C. 860.  The United States Army Court of 
Military Review and the United States Court of Appeals for the Armed 
Forces (formerly the United States Court of Military Appeals (CMA)) 
affirmed, relying on United States v. Curtis, 32 M. J. 252 (CMA), 
cert. denied, 502 U. S. 952 (1991), to reject Loving's claims that the 
President lacked authority to promulgate the aggravating factors that 
enabled the court-martial to sentence him to death. We granted 
certiorari.  515 U. S. ___ (1995). 

II
Although American courts-martial from their inception have had the 
power to decree capital punishment, they have not long had the 
authority to try and to sentence members of the armed forces for 
capital murder committed in the United States in peacetime.  In the 
early days of the Republic the powers of courts-martial were fixed in 
the Articles of War. Congress enacted the first Articles in 1789 by 
adopting in full the Articles promulgated in 1775 (and revised in 1776) 
by the Continental Congress.  Act of Sept. 29, 1789, ch. 25, 4, 1 
Stat. 96.  (Congress reenacted the Articles in 1790 "as far as the same 
may be applicable to the constitution of the United States," Act of Apr. 
30, 1790, ch. 10, 13, 1 Stat. 121). The Articles adopted by the First 
Congress placed significant restrictions on court-martial jurisdiction 
over capital offenses. Although the death penalty was authorized for 
14 military offenses, American Articles of War of 1776, reprinted in 
W. Winthrop, Military Law and Precedents 961 (reprint 2d ed. 1920) 
(hereinafter Winthrop); Allred, Comment, Rocks and Shoals in a Sea 
of Otherwise Deep Commitment: General Court-Martial Size and 
Voting Requirements, 35 Nav. L. Rev. 153, 156-158 (1986), the 
Articles followed the British example of ensuring the supremacy of 
civil court jurisdiction over ordinary capital crimes that were 
punishable by the law of the land and were not special military 
offenses.  1776 Articles, 10, Art. 1, reprinted in Winthrop 964 
(requiring commanders, upon application, to exert utmost effort to 
turn offender over to civil authorities).  Cf. British Articles of War of 
1765, 11, Art. 1, reprinted in Winthrop 937 (same).  That provision 
was deemed protection enough for soldiers, and in 1806 Congress 
debated and rejected a proposal to remove the death penalty from 
court-martial jurisdiction.  Wiener, Courts- Martial and the Bill of 
Rights: The Original Practice I, 72 Harv. L. Rev. 1, 20-21 (1958). 
Over the next two centuries, Congress expanded court- martial 
jurisdiction.  In 1863, concerned that civil courts could not function in 
all places during hostilities, Congress granted courts-martial 
jurisdiction of common-law capital crimes and the authority to impose 
the death penalty in wartime.  Act of Mar. 3, 1863, 30, 12 Stat. 736, 
Rev. Stat. 1342, Art. 58 (1875); Coleman v. Tennessee, 97 U. S. 
509, 514 (1879).  In 1916, Congress granted to the military courts a 
general jurisdiction over common-law felonies committed by service 
members, except for murder and rape committed within the continental 
United States during peacetime. Articles of War of 1916, ch. 418, 3, 
Arts. 92-93, 39 Stat. 664.  Persons accused of the latter two crimes 
were to be turned over to the civilian authorities.  Art. 74, 39 Stat. 
662. In 1950, with the passage of the UCMJ, Congress lifted even 
this restriction.  Article 118 of the UCMJ describes four types of 
murder subject to court-martial jurisdiction, two of which are 
punishable by death: "Any person subject to this chapter who, without 
justi- fication or excuse, unlawfully kills a human being, when he- 
"(1) has a premeditated design to kill; "(2) intends to kill or inflict 
great bodily harm; "(3) is engaged in an act which is inherently dan- 
gerous to another and evinces a wanton disregard of human life; or 
"(4) is engaged in the perpetration or attempted perpetration of 
burglary, sodomy, rape, robbery, or aggravated arson; -is guilty of 
murder, and shall suffer such punishment as a court-martial may 
direct, except that if found guilty under clause (1) or (4), he shall 
suffer death or imprison- ment for life as a court-martial may direct."  
10 U. S. - C. 918. So matters stood until 1983, when the CMA 
confronted a challenge to the constitutionality of the military capital 
punishment scheme in light of Furman v. Georgia, 408 U. S. 238 
(1972), and our ensuing death penalty jurisprudence. Although it held 
valid most of the death penalty procedures followed in courts-martial, 
the court found one fundamental defect: the failure of either the UCMJ 
or the RCM to require that court-martial members "specifically identify 
the aggravat- ing factors upon which they have relied in choosing to 
impose the death penalty."  United States v. Matthews, 16 M. J. 354, 
379.  The Court reversed Matthews' death sentence, but ruled that 
either Congress or the President could remedy the defect and that the 
new procedures could be applied retroactively. 16 M. J., at 380-382. 
The President responded to Matthews in 1984 with an Executive 
Order promulgating RCM 1004.  In conformity with 10 U. S. C. 
852(a)(1), the Rule, as amended, requires a unanimous finding that 
the accused was guilty of a capital offense before a death sentence may 
be imposed, RCM 1004(a)(2).  The Rule also requires unanimous 
findings (1) that at least one aggravating factor is present and (2) that 
any extenuating or mitigating circumstances are substantially 
outweighed by any admissible aggravating circumstances, 1004(b).  
RCM 1004(c) enumerates 11 categories of aggravat- ing factors 
sufficient for imposition of the death penalty.  The Rule also provides 
that the accused is to have "broad latitude to present evidence in 
extenuation and mitigation," 1004(b)(3), and is entitled to have the 
members of the court-martial instructed to consider all such evidence 
before deciding upon a death sentence, 1004(b)(6). This is the scheme 
Loving attacks as unconstitutional.  He contends that the Eighth 
Amendment and the doctrine of separation of powers require that 
Congress, and not the President, make the fundamental policy 
determination respecting the factors that warrant the death penalty. 

III
A preliminary question in this case is whether the Constitu- tion 
requires the aggravating factors that Loving challenges. The 
Government does not contest the application of our death penalty 
jurisprudence to courts-martial, at least in the context of a conviction 
under Article 118 for murder committed in peacetime within the 
United States, and we shall assume that Furman and the case law 
resulting from it are applicable to the crime and sentence in question.  
Cf. Trop v. Dulles, 356 U. S. 86 (1958) (analyzing court-martial 
punishments under the Eighth Amendment).  The Eighth Amendment 
requires, among other things, that "a capital sentencing scheme must 
`genuinely narrow the class of persons eligible for the death penalty 
and must reasonably justify the imposition of a more severe sentence 
on the defendant compared to others found guilty of murder.'"  
Lowenfield v. Phelps, 484 U. S. 231, 244 (1988) (quoting Zant v. 
Stephens, 462 U. S. 862, 877 (1983)).  Some schemes accomplish 
that narrowing by requiring that the sentencer find at least one 
aggravating circumstance.  Ibid.  The narrowing may also be 
achieved, however, in the definition of the capital offense, in which 
circumstance the requirement that the sentencer "find the ex- istence of 
an aggravating circumstance in addition is no part of the 
constitutionally required narrowing process."  Id., at 246. Although 
the Government suggests the contrary, Brief for United States 11, n. 
6, we agree with Loving, on the assumption that Furman applies to 
this case, that aggravating factors are necessary to the constitutional 
validity of the military capital-punishment scheme as now enacted.  
Article 118 authorizes the death penalty for but two of the four types 
of murder specified: premeditated and felony murder are punishable 
by death, 10 U. S. C. 918(1), (4), whereas intentional murder 
without premeditation and murder resulting from wanton and 
dangerous conduct are not, 918(2), (3). The statute's selection of the 
two types of murder for the death penalty, however, does not narrow 
the death-eligible class in a way consistent with our cases.  Article 
118(4) by its terms permits death to be imposed for felony murder 
even if the accused had no intent to kill and even if he did not do the 
killing himself.  The Eighth Amendment does not permit the death 
penalty to be imposed in those circumstances. Enmund v. Florida, 
458 U. S. 782, 801 (1982).  As a result, additional aggravating 
factors establishing a higher culpability are necessary to save Article 
118.  We turn to the question whether it violated the principle of 
separation of powers for the President to prescribe the aggravating 
factors required by the Eighth Amendment. 

IV
Even before the birth of this country, separation of powers was 
known to be a defense against tyranny.  Montesquieu, The Spirit of 
the Laws 151-152 (T. Nugent trans. 1949); 1 W. Blackstone, 
Commentaries *146-*147, *269-*270. Though faithful to the precept 
that freedom is imperiled if the whole of legislative, executive, and 
judicial power is in the same hands, The Federalist No. 47, pp. 325-
326 (J. Madison) (J. Cooke ed. 1961), the Framers understood that a 
"hermetic sealing off of the three branches of Government from one 
another would preclude the establishment of a Nation capable of 
governing itself effectively," Buckley v. Valeo, 424 U. S. 1, 120-121 
(1976) (per curiam). -While the Constitution diffuses power the better 
to secure liberty, it also contemplates that practice will integrate the 
dispersed powers into a workable govern- ment.  It enjoins upon its 
branches separateness but interdependence, autonomy but 
reciprocity."  Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 
579, 635 (1952) (Jackson, J., concurring). Although separation of 
powers "d[oes] not mean that these [three] departments ought to have 
no partial agency in, or no controul over the acts of each other,'" 
Mistretta v. United States, 488 U. S. 361, 380-381 (1989) (quoting 
The Federalist No. 47, supra, at 325-326 (emphasis deleted)), it 
remains a basic principle of our constitutional scheme that one branch 
of the Government may not intrude upon the central prerogatives of 
another.  See Plaut v. Spendthrift Farms, 514 U. S. ___, ___ (1995) 
(slip op., at 14-15) (Congress may not revise ju- dicial determinations 
by retroactive legislation reopening judgments); Bowsher v. Synar, 
478 U. S. 714, 726 (1986) (Congress may not remove executive 
officers except by impeachment); INS v. Chadha, 462 U. S. 919, 
954-955 (1983) (Congress may not enact laws without bicameral 
passage and presentment of the bill to the President); United States v. 
Klein, 13 Wall. 128, 147 (1872) (Congress may not deprive court of 
jurisdiction based on the outcome of a case or undo a Presidential 
pardon).  Even when a branch does not arrogate power to itself, 
moreover, the separation-of-powers doctrine requires that a branch not 
impair another in the per- formance of its constitutional duties.  
Mistretta v. United States, supra, 397-408 (examining whether statute 
requiring participation of Article III judges in the United States 
Sentencing Commission threatened the integrity of the Judicial 
Branch); Nixon v. Administrator of General Services, 433 U. S. 425, 
445 (1977) (examining whether law requiring agency control of 
Presidential papers disrupted the functioning of the Executive). 
Deterrence of arbitrary or tyrannical rule is not the sole reason for 
dispersing the federal power among three branches, however.  By 
allocating specific powers and responsibilities to a branch fitted to the 
task, the Framers created a National Government that is both effective 
and accountable.  Article I's precise rules of representation, member 
qualifications, bicameralism, and voting procedure make Congress the 
branch most capable of responsive and deliberative lawmaking.  See 
Chadha, supra, at 951.  Ill suited to that task are the Presidency, 
designed for the prompt and faithful execution of the laws and its own 
legitimate powers, and the Judiciary, a branch with tenure and 
authority independent of direct electoral control.  The clear assignment 
of power to a branch, furthermore, allows the citizen to know who 
may be called to answer for making, or not making, those delicate and 
necessary decisions essential to governance. Another strand of our 
separation-of-powers jurisprudence, the delegation doctrine, has 
developed to prevent Congress from forsaking its duties.  Loving 
invokes this doctrine to question the authority of the President to 
promulgate RCM 1004.  The fundamental precept of the delegation 
doctrine is that the lawmaking function belongs to Congress, U. S. 
Const., Art. I, 1, and may not be conveyed to another branch or 
entity.  Field v. Clark, 143 U. S. 649, 692 (1892). This principle 
does not mean, however, that only Congress can make a rule of 
prospective force.  To burden Congress with all federal rulemaking 
would divert that branch from more pressing issues, and defeat the 
Framers' design of a workable National Government.  Thomas 
Jefferson observed, -Nothing is so embarrassing nor so mischievous 
in a great assembly as the details of execution."  5 Works of Thomas 
Jefferson 319 (P. Ford ed. 1904) (Letter to E. Carrington, Aug. 4, 
1787).  See also A. L. A. Schechter Poultry Corp. v. United States, 
295 U. S. 495, 529-530 (1935) (recognizing -the necessity of 
adapting legislation to complex conditions involving a host of details 
with which the national legislature cannot deal directly-).  This Court 
established long ago that Congress must be permitted to delegate to 
others at least some authority that it could exercise itself.  Wayman v. 
Southard, 10 Wheat. 1, 42 (1825). "`The true distinction . . . is 
between the delegation of power to make the law, which necessarily 
involves a discretion as to what it shall be, and conferring authority or 
discretion as to its execution, to be exercised under and in pursuance 
of the law.  The first cannot be done; to the latter no valid objection 
can be made.'"  Field, supra, at 693-694, quoting Cincinnati, W. & 
Z. R. Co. v. Commissioners of Clinton County, 1 Ohio St. 77, 88-89 
(1852). Loving contends that the military death penalty scheme of 
Article 118 and RCM 1004 does not observe the limits of the 
delegation doctrine.  He presses his constitutional challenge on three 
fronts.  First, he argues that Congress cannot delegate to the President 
the authority to prescribe aggravating factors in capital murder cases.  
Second, he contends that, even if it can, Congress did not delegate the 
authority by implicit or explicit action.  Third, Loving believes that 
even if certain statutory provisions can be construed as delegations, 
they lack an intelligible principle to guide the President's discretion. 
Were Loving's premises to be accepted, the President would lack 
authority to prescribe aggravating factors in RCM 1004, and the death 
sentence imposed upon him would be unconstitutional. 

A
Loving's first argument is that Congress lacks power to allow the 
President to prescribe aggravating factors in military capital cases 
because any delegation would be inconsistent with the Framers' 
decision to vest in Congress the power "To make Rules for the 
Government and Regulation of the land and naval forces."  U. S. 
Const., Art. I, 8, cl. 14.  At least in the context of capital punishment 
for peacetime crimes, which implicates the Eighth Amendment, this 
power must be deemed exclusive, Loving contends.  In his view, not 
only is the determination of aggravating factors a quintessential policy 
judgment for the legislature, but the history of military capital 
punishment in England and America refutes a contrary interpretation.  
He asserts that his offense was not tried in a military court throughout 
most of English and American history.  It is this historical exclusion 
of common-law capital crimes from military jurisdiction, he urges, 
which must inform our understanding of whether Clause 14 reserves 
to Congress the power to prescribe what conduct warrants a death 
sen- tence, even if it permits Congress to authorize courts-martial to 
try such crimes.  See Brief for Petitioner 42-43; Brief for United 
States Navy-Marine Corps Appellate Defense Division as Amicus 
Curiae 7-12, 19-26.  Mindful of the historical dangers of autocratic 
military justice and of the limits Parlia- ment set on the peacetime 
jurisdiction of courts-martial over capital crimes in the first Mutiny 
Act, 1 Wm. & Mary, ch. 5 (1689), and having experienced the 
military excesses of the Crown in colonial America, the Framers 
harbored a deep dis- trust of executive military power and military 
tribunals.  See Reid v. Covert, 354 U. S. 1, 23-24 (1957) (plurality); 
Lee v. Madigan, 358 U. S. 228, 232 (1959).  It follows, Loving 
says, that the Framers intended that Congress alone should possess 
the power to decide what aggravating factors justify sentencing a 
member of the armed forces to death. We have undertaken before, in 
resolving other issues, the difficult task of interpreting Clause 14 by 
drawing upon English constitutional history.  See, e.g., Reid, supra, 
at 23-30; O'Callahan v. Parker, 395 U. S. 258, 268-272 (1969) 
(determining that courts-martial only had jurisdiction of service-
connected crimes); Solorio v. United States, 483 U. S. 435, 442-446 
(1987) (overruling O'Callahan and taking issue with its historical 
analysis).  Doing so here, we find that, although there is a grain of 
truth in Loving's historical arguments, the struggle of Parliament to 
control military tribunals and the lessons the Framers drew from it are 
more complex than he suggests.  The history does not require us to 
read Clause 14 as granting to Congress an exclusive, nondele- gable 
power to determine military punishments.  If anything, it appears that 
England found security in divided authority, with Parliament at times 
ceding to the Crown the task of fixing military punishments.  From 
the English experience the Framers understood the necessity of 
balancing efficient military discipline, popular control of a standing 
army, and the rights of soldiers; they perceived the risks inherent in 
assigning the task to one part of the government to the exclusion of 
another; and they knew the resulting parliamenta- ry practice of 
delegation.  The Framers' choice in Clause 14 was to give Congress 
the same flexibility to exercise or share power as times might demand. 
In England after the Norman Conquest, military justice was a matter 
of royal prerogative.  The rudiments of law in English military justice 
can first be seen in the written orders issued by the King for various 
expeditions.  Winthrop 17-18. For example, in 1190 Richard I issued 
an ordinance outlining six offenses to which the crusaders would be 
subject, includ- ing two punishable by death: "Whoever shall slay a 
man on ship-board, he shall be bound to the dead man and thrown 
into the sea.  If he shall slay him on land he shall be bound to the dead 
man and buried in the earth."  Ordinance of Richard I-A.D. 1190, 
reprinted in id., at 903.  The first comprehensive articles of war were 
those declared by Richard II at Durham in 1385 and Henry V at 
Mantes in 1419, which decreed capital offenses that not only served 
military discipline but also protected foreign noncombatants from the 
ravages of war.  T. Meron, Henry's Wars and Shakespeare's Laws: 
Perspectives on the Law of War in the Later Middle Ages 91-93 
(1993).  Articles of War, sometimes issued by military commanders 
acting under royal commission in the ensuing centuries, Winthrop 19, 
were not fixed codes, at least through the 17th century; rather, "each 
war, each expedition, had its own edict," which lost force after the 
cessation of hostilities and the disbanding of the army that had been 
formed.  J. Pipon & J. Collier, Manual of Military Law 14 (3d rev. 
ed. 1863). Thus, royal ordinances governed the conduct of war, but 
the common law did not countenance the enforcement of military law 
in times of peace "when the king's courts [were] open for all persons 
to receive justice according to the laws of the land."  1 Blackstone's 
Commentaries *413.  See also M. Hale, History of the Common Law 
of England 25-27 (C. Gray ed. 1971) (describing efforts of 
Parliament and the common law courts to limit the jurisdiction of the 
military Courts of the Constable and the Marshal). "The Common 
Law made no distinction between the crimes of soldiers and those of 
civilians in time of peace. All subjects were tried alike by the same 
civil courts, so `if a life-guardsman deserted, he could only be sued 
for breach of contract, and if he struck his officer he was only liable to 
an indictment or action of battery.'"  Reid, supra, at 26, n. 44 
(quoting 2 J. Campbell, Lives of the Chief Justices of England 91 
(1849)). See also 1 T. Macaulay, History of England 272 (hereinafter 
Macaulay). The triumph of civil jurisdiction was not absolute, 
however. The political disorders of the 17th century ushered in 
periods of harsh military justice, with soldiers and at times civilian 
rebels punished, even put to death, under the summary decrees of 
courts-martial.  See C. Clode, Administration of Justice Under 
Military and Martial Law 20-42 (1872) (hereinafter Clode).  Cf. 
Petition of Right of 1627, 3 Car. I, ch. 1 (protesting court-martial 
abuses).  Military justice was brought under the rule of parliamentary 
law in 1689, when William and Mary accepted the Bill of Rights 
requiring Parliament's consent to the raising and keeping of armies.  
In the Mutiny Act of 1689, Parliament declared the general principle 
that -noe Man may be forejudged of Life or Limbe or subjected to any 
kinde of punishment by Martiall Law or in any other manner then by 
the Judgment of his Peeres and according to the knowne and 
Established Laws of this Realme," but decreed that "Soldiers who 
shall Mutiny or stirr up Sedition or shall desert Their Majestyes 
Service be brought to a more Exemplary and speedy Punishment than 
the usuall Forms of Law will allow," and "shall suffer Death or such 
other Pun- ishment as by a Court-Martiall shall be Inflicted." 1 Wm. 
Mary, ch. 5. In one sense, as Loving wants to suggest, the Mutiny 
Act was a sparing exercise of parliamentary authority, since only the 
most serious domestic offenses of soldiers were made capital, and the 
militia was exempted.  See Solorio, supra, at 442.  He 
misunderstands the Mutiny Act of 1689, however, in arguing that it 
bespeaks a special solicitude for the rights of soldiers and a desire of 
Parliament to exclude Executive power over military capital 
punishment. The Mutiny Act, as its name suggests, came on the heels 
of the mutiny of Scottish troops loyal to James II.  3 Macaulay 45-49.  
The mutiny occurred at a watershed time.  Menaced by great 
continental powers, England had come to a grudging recognition that a 
standing army, long decried as an instru- ment of despotism, had to be 
maintained on its soil.  The mutiny cast in high relief the dangers to 
the polity of a standing army turned bad.  Macaulay describes the 
sentiment of the time: -There must then be regular soldiers; and, if 
there were to be regular soldiers, it must be indispensable, both to 
their efficiency, and to the security of every other class, that they 
should be kept under a strict discipline.  An ill disciplined army . . . 
[is] formidable only to the country which it is paid to defend.  A 
strong line of demarcation must therefore be drawn between the 
soldiers and the rest of the community.  For the sake of public 
freedom, they must, in the midst of freedom, be placed under a 
despotic rule.  They must be subject to a sharper penal code, and to a 
more stringent code of procedure, than are ad- ministered by the 
ordinary tribunals."  Id., at 50.  The Mutiny Act, then, was no 
measure of leniency for sol- diers.  With its passage, "the Army of 
William III was governed under a severer Code than that made by his 
predecessors under the Prerogative authority of the Crown. The 
Mutiny Act, without displacing the Articles of War and those Military 
Tribunals under which the Army had hitherto been governed, gave 
statutory sanction to the infliction of Capital Punishments for offences 
rather Political than Military, and which had rarely been so punished 
under Prerogative authority."  Clode 9-10.  See also Duke & Vogel, 
The Constitution and the Standing Army: Another Problem of Court-
Martial Jurisdiction, 13 Vand. L. Rev. 435, 443, and n. 40 (1960) 
(noting that the Articles of War of 1662 and 1686 prohibited the 
infliction in peacetime of punishment costing life or limb).  Indeed, it 
was the Crown which later tempered the excesses of courts-martial 
wielding the power of capital punishment.  It did so by stipulating in 
the Articles of War (which remained a matter of royal prerogative) that 
all capital sentences be sent to it for revision or approval.  Clode 9-10. 
Popular suspicion of the standing army persisted, 5 Ma- caulay 253-
273, 393, and Parliament authorized the Mutiny Acts only for periods 
of six months and then a year, 3 id., at 51-53.  But renewed they were 
time and again, and Parlia- ment would alter the power of courts-
martial to impose the death penalty for peacetime offenses throughout 
the next century.  It withdrew the power altogether in 1713, 12 Anne, 
ch. 13, 1, only to regret the absence of the penalty during the 
rebellion of 1715, Clode 49.  The third of the Mutiny Acts of 1715 
subjected the soldier to capital punishment for a wide array of 
peacetime offenses related to political disorder and troop discipline.  
Id., at 50.  And, for a short time in the 18th century, Parliament 
allowed the Crown to invest courts- martial with a general criminal 
jurisdiction over soldiers even at home, placing no substantive limit on 
the penalties that could be imposed; until 1718, that jurisdiction was 
superior to civil courts.  Id., at 52-53.  The propriety of that general 
jurisdiction within the kingdom was questioned, and the jurisdiction 
was withdrawn in 1749.  Id., at 53.  Nevertheless, even as it 
continued to adjust the scope of military jurisdiction at home, 
Parliament entrusted broad powers to the Crown to define and punish 
military crimes abroad.  In 1713, it gave statutory sanction to the 
Crown's longstanding practice of issuing Articles of War without 
limiting the kind of punish- ments that might be imposed; and, in the 
same Act, it delegated the power to "erect and constitute Courts 
Martial with Power to try hear and determine any Crime or Offence by 
such Articles of War and inflict Penalties by Sentence or Judgement in 
any of Her Majesties Dominions beyond the Seas or elsewhere 
beyond the Seas (except in the Kingdom of Ireland) . . . as might have 
been done by Her Majesties Authority beyond the Seas in Time of 
War."  12 Anne, ch. 13, 43; Winthrop 20.  Cf. Duke & Vogel, 
supra, at 444 (noting that Parliament in 1803 gave statutory authority 
to the Crown to promulgate Articles of War applicable to troops sta- 
tioned in England as well).  See Solorio, 483 U. S., at 442 
(discussing a provision in the British Articles of War of 1774 
providing court-martial jurisdiction of civilian offenses by soldiers). 
As Loving contends, and as we have explained elsewhere, the 
Framers well knew this history, and had encountered firsthand the 
abuses of military law in the colonies.  See Reid, 354 U. S., at 27-28.  
As many were themselves veterans of the Revolutionary War, 
however, they also knew the impera- tives of military discipline.  
What they distrusted were not courts-martial per se, but military 
justice dispensed by a commander unchecked by the civil power in 
proceedings so summary as to be lawless.  The latter was the evil that 
caused Blackstone to declare that "martial law" " by which he, not 
observing the modern distinction between military and martial law, 
meant decrees of courts-martial disciplining soldiers in wartime " "is 
built upon no settled principles, but is entirely arbitrary in its 
decisions, [and] is, as Sir Matthew Hale observes, in truth and reality 
no law, but something indulged rather than allowed as a law."  1 
Blackstone's Commentaries *413.  See also Hale, History of the 
Common Law of England, at 26-27; Clode 21 (military law in early 
seven- teenth century England amounted to "the arbitrary right to 
punish or destroy, without legal trial, any assumed delinquent).  The 
partial security Englishmen won against such abuse in 1689 was to 
give Parliament, preeminent guardian of the British constitution, 
primacy in matters of military law. This fact does not suggest, 
however, that a legislature's power must be exclusive.  It was for 
Parliament, as it did in the various Mutiny Acts, to designate as the 
times required what peacetime offenses by soldiers deserved the 
punishment of death; and it was for Parliament, as it did in 1713, to 
delegate the authority to define wartime offenses and devise their 
punishments, including death.  The Crown received the delegated 
power and the concomitant responsibility for its prudent exercise.  The 
lesson from the English constitutional experience was that Parliament 
must have the primary power to regulate the armed forces and to 
determine the punishments that could be imposed upon soldiers by 
courts-martial.  That was not inconsistent, however, with the further 
power to divide authority between it and the Crown as conditions 
might warrant. Far from attempting to replicate the English system, of 
course, the Framers separated the powers of the Federal Government 
into three branches to avoid dangers they thought latent or inevitable in 
the parliamentary structure.  The historical necessities and events of 
the English constitutional experience, though, were familiar to them 
and inform our understanding of the purpose and meaning of 
constitutional provisions.  As we have observed before, with this 
experience to consult they elected not to "freeze court-martial usage at 
a particular time" for all ages following, Solorio, 483 U. S., at 446, 
nor did they deprive Congress of the services of the Executive in 
establishing rules for the governance of the military, including rules 
for capital punishment.  In the words of Alexander Hamilton, the 
power to regulate the armed forces, like other powers related to the 
common defense, was given to Congress without limitation: Because 
it is impossible to foresee or define the extent and variety of national 
exigencies, or the corresponding extent & variety of the means which 
may be necessary to satisfy them.  The circumstances that endanger 
the safety of nations are infinite, and for this reason no constitutional 
shackles can wisely be imposed on the power to which the care of it is 
committed.  This power ought to be co-extensive with all the possible 
combinations of such circumstances; and ought to be under the 
direction of the same councils, which are appointed to preside over the 
common defence."  The Federalist, No. 23, at 147 (emphasis 
omitted). The later-added Bill of Rights limited this power to some 
degree, cf. Burns v. Wilson, 346 U. S. 137, 140 (1953) (plurality 
opinion); Chappell v. Wallace, 462 U. S. 296, 300 (1983), but did 
not alter the allocation to Congress of the -primary responsibility for 
the delicate task of balancing the rights of servicemen against the 
needs of the military,- Solorio, supra, at 447-448. Under Clause 14, 
Congress, like Parliament, exercises a power of precedence over, not 
exclusion of, Executive authority.  Cf. United States v. Eliason, 16 
Pet. 291, 301 (1842) (The power of the executive to establish rules 
and regulations for the government of the army, is undoubted). This 
power is no less plenary than other Article I powers, Solorio, supra, 
at 441, and we discern no reasons why Congress should have less 
capacity to make measured and appropriate delegations of this power 
than of any other, see Skinner v. Mid-America Pipeline Co., 490 U. 
S. 212, 220-221 (1989) (Congress may delegate authority under the 
taxing power); cf. Lichter v. United States, 334 U. S. 742, 778 
(1948) (general rule is that "[a] constitutional power implies a power 
of delegation of authority under it sufficient to effect its purposes-) 
(emphasis deleted).  Indeed, it would be contrary to precedent and 
tradition for us to impose a special limitation on this particular Article I 
power, for we give Con- gress the highest deference in ordering 
military affairs.  Rost- ker v. Goldberg, 453 U. S. 57, 64-65 (1981).  
And it would be contrary to the respect owed the President as 
Commander in Chief to hold that he may not be given wide discretion 
and authority.  We decline to import into Clause 14 a restrictive 
nondelegation principle that the Framers left out. There is no absolute 
rule, furthermore, against Congress' delegation of authority to define 
criminal punishments.  We have upheld delegations whereby the 
Executive or an indepen- dent agency defines by regulation what 
conduct will be criminal, so long as Congress makes the violation of 
regula- tions a criminal offense and fixes the punishment, and the 
regulations "confin[e] themselves within the field covered by the 
statute."  United States v. Grimaud, 220 U. S. 506, 518 (1911).  See 
also Touby v. United States, 500 U. S. 160 (1991).  The exercise of a 
delegated authority to define crimes may be sufficient in certain 
circumstances to supply the notice to defendants the Constitution 
requires.  See M. Kraus & Bros., Inc. v. United States, 327 U. S. 
614, 622 (1946).  In the circumstances presented here, so too may 
Congress delegate authority to the President to define the aggravating 
factors that permit imposition of a statutory penalty, with the 
regulations providing the narrowing of the death-eligible class that the 
Eighth Amendment requires. In 1950, Congress confronted the 
problem of what criminal jurisdiction would be appropriate for armed 
forces of colossal size, stationed on bases that in many instances were 
small societies unto themselves.  Congress, confident in the 
procedural protections of the UCMJ, gave to courts-martial 
jurisdiction of the crime of murder.  Cf. Solorio, supra, at 450-451 
(Congress may extend court-martial jurisdiction to any criminal 
offense committed by a service member during his period of service).  
It further declared the law that service members who commit 
premeditated and felony murder may be sentenced to death by a court-
martial.  There is nothing in the constitutional scheme or our traditions 
to prohibit Congress from delegating the prudent and proper 
implementation of the capital murder statute to the President acting as 
Commander in Chief. 

B
Having held that Congress has the power of delegation, we further 
hold that it exercised the power in Articles 18 and 56 of the UCMJ.  
Article 56 specifies that "[t]he punishment which a court-martial may 
direct for an offense may not exceed such limits as the President may 
prescribe for that offense."  10 U. S. C. 856.  Article 18 states that a 
court- martial "may, under such limitations as the President may 
prescribe, adjudge any punishment not forbidden by [the UCMJ], 
including the penalty of death when specifically authorized by" the 
Code.  818.  As the Court of Military Appeals pointed out in Curtis, 
for some decades the President has used his authority under these 
Articles to increase the penalties for certain noncapital offenses if 
aggravating circumstances are present.  For example, by regulation, 
deserters who are apprehended are punished more severely than those 
who surrender; drunk drivers suffer a harsher fate if they cause an 
accident resulting in the death of a victim; and the punishment of 
thieves is graded by the value of the stolen goods.  See Curtis, 32 M. 
J., at 261.  The President has thus provided more precision in 
sentencing than is provided by the statute, while remaining within 
statutory bounds.  This past practice suggests that Articles 18 and 56 
support as well an authority in the President to restrict the death 
sentence to murders in which certain aggravating circumstances have 
been established. There is yet a third provision of the UCMJ indicative 
of congressional intent to delegate this authority to the President. 
Article 36 of the UCMJ, which gives the President the power to make 
procedural rules for courts-martial, provides: -Pretrial, trial, and post-
trial procedures, including modes of proof, for [courts martial] . . . 
may be prescribed by the President by regulations which shall, so far 
as he considers practicable, apply the principles of law and the rules of 
evidence generally recognized in the trial of criminal cases in the 
United States district courts, but which may not be contrary to or 
inconsistent with this chapter."  10 U. S. C. 836(a). Although the 
language of Article 36 seems further afield from capital aggravating 
factors than that of Article 18 or 56, it is the provision that a later 
Congress identified as the source of Presidential authority to prescribe 
these factors.  In 1985, Congress enacted Article 106(a) of the UCMJ, 
10 U. S. C. 906a, which authorized the death penalty for espionage.  
The Article requires a finding of an aggravating factor if the accused is 
to be sentenced to death; it enumerates three such factors, but allows 
death to be decreed on "[a]ny other factor that may be prescribed by 
the President by regulations under section 836 of this title (article 
36)."  906(a)(c)(4).  Article 106a itself, then, is premised on the 
President's having authority under Article 36 to prescribe capital 
aggravating factors, and "`[s]ubsequent legislation declaring the intent 
of an earlier statute is entitled to great weight in statutory 
construction.'" Consumer Product Safety Comm'n v. GTE Sylvania, 
Inc., 447 U. S. 102, 118, n. 13 (1980), quoting Red Lion 
Broadcasting Co. v. FCC, 395 U. S. 367, 380-381 (1969).  Whether 
or not Article 36 would stand on its own as the source of the delegated 
power, we hold that Articles 18, 36, and 56 together give clear 
authority to the President for the promulga- tion of RCM 1004. 
Loving points out that the three Articles were enacted as part of the 
UCMJ in 1950, well before the need for eliminat- ing absolute 
discretion in capital sentencing was established in Furman v. Georgia, 
408 U. S. 238 (1972), and the cases that followed.  (Slight 
amendments to the Articles have been made since but are not relevant 
here.)  In 1950, he argues, Congress could not have understood that it 
was giving the President the authority to bring an otherwise invalid 
capital murder statute in line with Eighth Amendment strictures. 
Perhaps so, but Furman did not somehow undo the prior delegation.  
What would have been an act of leniency by the President prior to 
Furman may have become a constitutional necessity thereafter, see 
supra, at 5-6, but the fact remains the power to prescribe aggravating 
circumstances has resided with the President since 1950. 

C
It does not suffice to say that Congress announced its will to delegate 
certain authority.  Congress as a general rule must also "lay down by 
legislative act an intelligible principle to which the person or body 
authorized to [act] is directed to conform."  J. W. Hampton, Jr., & 
Co. v. United States, 276 U. S. 394, 409 (1928); Touby, 500 U. S., 
at 165.  The intelligible-principle rule seeks to enforce the 
understanding that Congress may not delegate the power to make laws 
and so may delegate no more than the authority to make policies and 
rules that implement its statutes.  Field, 143 U. S., at 693-694.  
Though in 1935 we struck down two delegations for lack of an 
intelligible principle, A. L. A. Schecter Poultry Corp. v. United 
States, 295 U. S. 495 (1935), and Panama Refining Co. v. Ryan, 
293 U. S. 388 (1935), we have since upheld, without exception, 
delegations under standards phrased in sweeping terms.  See, e.g., 
National Broadcasting Co. v. United States, 319 U. S. 190, 216-217, 
225-226 (1943) (upholding delegation to the Federal Communications 
Commis- sion to regulate radio broadcasting according to "public 
interest, convenience, or necessity-).  Had the delegations here called 
for the exercise of judgment or discretion that lies beyond the 
traditional authority of the President, Loving's last argument that 
Congress failed to provide guiding principles to the President might 
have more weight.  We find no fault, however, with the delegation in 
this case. In United States v. Curtis, the Court of Military Appeals 
discerned a principle limiting the President's discretion to define 
aggravating factors for capital crimes in Article 36: namely, the 
directive that regulations the President prescribes must "apply the 
principles of law . . . generally recognized in the trial of criminal cases 
in the United States district courts, but which may not be contrary to 
or inconsistent with this chapter," 10 U. S. C. 836(a).  We think, 
however, that the question to be asked is not whether there was any 
explicit principle telling the President how to select aggravating 
factors, but whether any such guidance was needed, given the nature 
of the delegation and the officer who is to exercise the delegated 
authority.  First, the delegation is set within boundaries the President 
may not exceed.  Second, the delega- tion here was to the President in 
his role as Commander in Chief.  Perhaps more explicit guidance as to 
how to select aggravating factors would be necessary if delegation 
were made to a newly created entity without independent authority in 
the area.  Cf. Mistretta, 488 U. S., at 374-379 (upholding delegation 
to the United States Sentencing Commission because of detailed 
congressional directives channeling agency discre- tion).  The 
President's duties as Commander in Chief, however, require him to 
take responsible and continuing action to superintend the military, 
including the courts-martial.  The delegated duty, then, is interlinked 
with duties already assigned to the President by express terms of the 
Constitution, and the same limitations on delegation do not apply 
"where the entity exercising the delegated authority itself possesses 
independent authority over the subject matter," United States v. 
Mazurie, 419 U. S. 544, 556-557 (1975).  See also United States v. 
Curtiss-Wright Export Corp., 299 U. S. 304, 319-322 (1936).  Cf. 
Swaim v. United States, 165 U. S. 553, 557-558 (1897) (President 
has inherent authority to convene courts-martial).  Like the Court of 
Military Appeals, Curtis, 32 M. J., at 263, n. 9, we need not decide 
whether the Presi- dent would have inherent power as Commander in 
Chief to prescribe aggravating factors in capital cases.  Once delegated 
that power by Congress, the President, acting in his constitu- tional 
office of Commander in Chief, had undoubted compe- tency to 
prescribe those factors without further guidance. -The military 
constitutes a specialized community governed by a separate discipline 
from that of the civilian," Orloff v. Willoughby, 345 U. S. 83, 94 
(1953), and the President can be entrusted to determine what 
limitations and conditions on punishments are best suited to preserve 
that special discipline. It is hard to deem lawless a delegation giving 
the President broad discretion to prescribe rules on this subject.  From 
the early days of the Republic, the President has had congressio- nal 
authorization to intervene in cases where courts-martial decreed death.  
American Articles of War of 1806, Art. 65, reprinted in Winthrop 
976, 982.  It would be contradictory to say that Congress cannot 
further empower him to limit by prospective regulation the 
circumstances in which courts- martial can impose a death sentence.  
Specific authority to make rules for the limitation of capital 
punishment contributes more towards principled and uniform military 
sentencing regimes than does case-by-case intervention, and it 
provides greater opportunity for congressional oversight and revision. 
Separation-of-powers principles are vindicated, not disserv- ed, by 
measured cooperation between the two political branches of the 
Government, each contributing to a lawful objective through its own 
processes.  The delegation to the President as Commander in Chief of 
the authority to prescribe aggravating factors was in all respects 
consistent with these precepts, and the promulgation of RCM 1004 
was well within the delegated authority.  Loving's sentence was 
lawful, and the judgment of the Court of Appeals of the Armed Forces 
is affirmed. 

It is so ordered.


SUPREME COURT OF THE UNITED STATES

No. 94-1966

DWIGHT J. LOVING, PETITIONER
v. UNITED STATES
on writ of certiorari to the united states court of appeals for the armed 
forces [June 3, 1996] 

Justice Stevens, with whom Justice Souter, Justice Ginsburg, and 
Justice Breyer join, concurring. As Justice Scalia correctly points out, 
petitioner has not challenged the power of the tribunal to try him for a 
capital offense.  Post, at 1.  It is important to add to this observation 
that petitioner's first victim was a member of the Armed Forces on 
active duty and that the second was a retired serviceman who gave 
petitioner a ride from the barracks on the same night as the first 
killing.  Brief for United States 5. On these facts, this does not appear 
to be a case in which petitioner could appropriately have raised the 
question whether the holding in Solorio v. United States, 483 U. S. 
435 (1987), should be extended to reach the imposition of the death 
penalty for an offense that did not have the "service connec- tion" 
required prior to the change in the law effected in that case.  Id., at 
451 (Stevens, J., concurring in judgment). The question whether a 
"service connection" requirement should obtain in capital cases is an 
open one both because Solorio was not a capital case, and because 
Solorio's review of the historical materials would seem to undermine 
any contention that a military tribunal's power to try capital offenses 
must be as broad as its power to try non-capital ones. See id., at 442-
446.  Moreover, the question is a substantial one because, when the 
punishment may be death, there are particular reasons to ensure that 
the men and women of the Armed Forces do not by reason of serving 
their country receive less protection than the Constitution provides for 
civilians. As a consequence of my conclusion that the "service 
connection" requirement has been satisfied here, I join not only the 
Court's analysis of the delegation issue, but also its disposition of the 
case.  By joining in the Court's opinion, however, I do not thereby 
accept the proposition that our decision in Solorio must be understood 
to apply to capital offenses.  Nor do I understand the Court's decision 
to do so. That question, as I have explained, remains to be decided. 


SUPREME COURT OF THE UNITED STATES

No. 94-1966

DWIGHT J. LOVING, PETITIONER
v. UNITED STATES
on writ of certiorari to the united states court of appeals for the armed 
forces [June 3, 1996] 

Justice Scalia, with whom Justice O'Connor joins, concurring in part 
and concurring in the judgment. I join the Court's opinion, except that 
with respect to Part IV thereof I join only subparts B and C. The 
discussion of English history that features so prominent- ly in the 
Court's discussion of Congress's power to grant the authority at issue 
to the President is in my view irrelevant. To be sure, there is ample 
precedent in our cases for looking to the history of English courts-
martial-but not where the question is of the sort before us today.  We 
have surveyed that history for the purpose of establishing the 
permissible scope of the jurisdiction of military tribunals over certain 
classes of defendants and offenses, see, e.g., Solorio v. United 
States, 483 U. S. 435, 442-446 (1987); Lee v. Madigan, 358 U. S. 
228, 232 (1959); Reid v. Covert, 354 U. S. 1, 23-27 (1957) 
(plurality); see also Parker v. Levy, 417 U. S. 733, 745 (1974).  This 
case does not present such a question. Petitioner does not assert that 
tradition establishes his offense to be, in its nature, beyond the 
jurisdiction of military courts, or that courts-martial are historically 
incapable of adjudicating capital offenses.  His arguments are 
altogether different: that Congress cannot authorize the President to 
establish "aggravat- ing factors" designed to carry out the narrowing 
function that (we assume) is necessary for imposition of a capital 
sentence; and that, even if Congress can give the President authority to 
perform this function, such authorization has not been effected by the 
statutes upon which the Government relies. I do not see how 
consideration of those arguments profits from analysis of the historical 
sharing of power between Parliament and the English throne.  William 
and Mary's acceptance of the Bill of Rights, and Parliament's 
enactment of the Mutiny Act of 1689, see ante, at 13-16, are presum- 
ably significant occurrences for students of the unwritten English 
constitution.  Our written Constitution does not require us to trace out 
that history; it provides, in straightfor- ward fashion, that "The 
Congress shall have Power . . . To make Rules for the Government 
and Regulation of the land and naval forces," U. S. Const., Art. I, 
8, cl. 14, and as the Court notes, see ante, at 18, it does not set forth 
any special limitation on Congress's assigning to the President the 
task of implementing the laws enacted pursuant to that power. And it 
would be extraordinary simply to infer such a special limitation upon 
tasks given to the President as Commander in Chief, where his 
inherent powers are clearly extensive. In drafting the Constitution, the 
Framers were not seeking to replicate in America the government of 
England; indeed, they set their plan of government out in writing in 
part to make clear the ways in which it was different from the one it 
replaced.  The Court acknowledges this, see ante, at 17, but 
nonetheless goes on to treat the form of English government as 
relevant to determining the limitations upon Clause 14's grant of 
power to Congress.  I would leave this historical discussion aside.  
While it is true, as the Court demonstrates, that the scheme of 
assigned responsibility here conforms to English practices, that is so 
not because Clause 14 requires such conformity, but simply because 
what seemed like a good arrangement to Parliament has seemed like a 
good arrangement to Congress as well. I have one point of definition 
or conceptualization, which applies to those portions of the opinion 
that I have joined. While it has become the practice in our opinions to 
refer to -unconstitutional delegations of legislative authority" versus 
-lawful delegations of legislative authority," in fact the latter category 
does not exist.  Legislative power is nondelegable. Congress can no 
more "delegate" some of its Article I power to the Executive than it 
could "delegate" some to one of its committees.  What Congress does 
is to assign responsibilities to the Executive; and when the Executive 
undertakes those assigned responsibilities it acts, not as the "delegate" 
of Congress, but as the agent of the People.  At some point the 
responsibilities assigned can become so extensive and so 
unconstrained that Congress has in effect delegated its legislative 
power; but until that point of excess is reached there exists, not a 
"lawful" delegation, but no delegation at all. 


SUPREME COURT OF THE UNITED STATES

No. 94-1966

DWIGHT J. LOVING, PETITIONER
v. UNITED STATES
on writ of certiorari to the united states court of appeals for the armed 
forces [June 3, 1996] 

Justice Thomas, concurring in the judgment. It is not clear to me that 
the extensive rules we have developed under the Eighth Amendment 
for the prosecution of civilian capital cases, including the requirement 
of proof of aggravating factors, necessarily apply to capital 
prosecutions in the military, cf. Chappell v. Wallace, 462 U. S. 296, 
300-302 (1983), and this Court has never so held, see Schick v. 
Reed, 419 U. S. 256, 260 (1974).  I am therefore not certain that this 
case even raises a delegation question, for if Loving can 
constitutionally be sentenced to death without proof of aggravating 
factors, he surely cannot claim that the President violated the 
Constitution by promulgating aggravating factors that afforded more 
protection than that to which Loving is constitutionally entitled. Like 
the majority, I conclude that the Government prevails even if we 
assume, without deciding, that aggravating factors are required in this 
context.  There is abundant authority for according Congress and the 
President sufficient deference in the regulation of military affairs to 
uphold the delegation here, and I see no need to resort to our 
nonmilitary separation-of- powers and "delegation doctrine" cases in 
reaching this conclusion.  I write separately to explain that by 
concurring in the judgment in this case, I take no position with respect 
to Congress' power to delegate authority or otherwise alter the 
traditional separation of powers outside the military context. 

In light of Congress' express constitutional authority to regulate the 
Armed Forces, see U. S. Const., Art. I, 8, cl. 14, and the unique 
nature of the military's mission, we have afforded an unparalleled 
degree of deference to congressional action governing the military.  
See Rostker v. Goldberg, 453 U. S. 57, 64-65 (1981).  "[I]t is the 
primary business of armies and navies to fight or be ready to fight 
wars should the occasion arise," United States ex rel. Toth v. Quarles, 
350 U. S. 11, 17 (1955), and this Court has recognized the limits on 
its own competence in advancing this core national interest, see 
Gilligan v. Morgan, 413 U. S. 1, 10 (1973).  Mindful of the factors 
that "differentiate military society from civilian society," we have 
concluded that the Constitution permits Congress "to legislate both 
with greater breadth and with greater flexibility when prescribing the 
rules by which the former shall be governed than it is when 
prescribing rules for the latter."  Parker v. Levy, 417 U. S. 733, 756 
(1974). This heightened deference extends not only to congressional 
action but also to executive action by the President, who by virtue of 
his constitutional role as Commander in Chief, see U. S. Const, Art. 
II, 2, cl. 1, possesses shared authority over military discipline.  See 
Schlesinger v. Ballard, 419 U. S. 498, 510 (1975) (-The 
responsibility for determining how best our Armed Forces shall attend 
to th[e] business [of fighting or preparing to fight wars] rests with 
Congress and with the President-) (citations omitted).  See also 
Brown v. Glines, 444 U. S. 348, 360 (1980) (-Both Congress and 
this Court have found that the special character of the military requires 
civilian authorities to accord military commanders some flexibility in 
dealing with matters that affect internal discipline and morale.  In 
construing a statute that touches on such matters, therefore, courts 
must be careful not to `circum- scribe the authority of military 
commanders to an extent never intended by Congress'-) (citations 
omitted).  Under these and many similar cases reviewing legislative 
and executive control of the military, the sentencing scheme at issue in 
this case, and the manner in which it was created, are constitutionally 
unassailable.  On a separate point, I agree with Justice Scalia that the 
majority's extended analysis of the division of authority between the 
English Parliament and the Crown with regard to regulation of the 
military, see ante, at 10-17, has no rele- vance to this case.  It is true 
that we frequently consult English history and common law in 
attempting to determine the content of constitutional provisions, but 
the majority fails to cite a single separation-of-powers case in which 
we have relied on the structure of the English Government in attempt- 
ing to understand the governmental structure erected by the Framers of 
the Constitution.  Nor does the majority cite any historical evidence, 
whether from the constitutional debates, the Federalist Papers, or 
some other source, that demonstrates that the Framers sought to 
embrace, or at least actively considered, the English system of shared 
power over the military.  If the majority pointed to some basis for 
conducting the inquiry that it does, I might be willing to accept its 
analysis.  Instead, the majority repeatedly substitutes ipse dixit for 
historical evidence.  See, e.g., ante, at 11 (-From the English 
experience the Framers . . . knew the . . . parliamen- tary practice of 
delegation" and "[t]he Framers' choice in Clause 14 was to give 
Congress the same flexibility to exercise or share power-); ante, at 16 
(-the Framers well knew this history-); ante, at 17 (-The historical 
necessities and events of the English constitutional experience . . . 
were familiar to [the Framers] and inform our understanding of the 
purpose and meaning of constitutional provisions-).  I have no doubt 
that the Framers were well versed in English history. But it is too 
simplistic for purposes of constitutional analysis to draw conclusions 
about the allocation of constitutional authority among the branches of 
the United States Government from mere speculation about the 
Framers' familiarity with English military history and the significance 
that they attached to it.