Loving v. United States

517 U.S. 748

Case Year: 1996

Case Ruling: 9-0, Affirmed

Opinion Justice: Kennedy

FACTS

As the nation grows in size and complexity, Congress often finds it necessary to delegate to the other branches of government a role in the lawmaking process. Such acts of delegation occasionally have been challenged as being unconstitutional on the ground that Congress is the only branch given the power to make laws. With the exception of some decisions in the 1930s, the Supreme Court generally has been sympathetic to congressional delegation, as long as the legislature sets the general policy and delegates to others only the power to fill in the details and set the implementation of rules. The case of Loving v. United States (1996) presents a delegation controversy. Dwight Loving, an army private convicted of a capital offense and sentenced to death, challenged the power of the president of the United States to set rules for determining when the death penalty should be imposed. The power to establish those rules, he argued, belongs only to Congress.

On December 12, 1988, Loving, stationed in Fort Hood, Texas, robbed and 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 him the next afternoon, and he confessed. After a trial, an eight-member general court-martial found Loving guilty of premeditated murder and felony murder (a homicide committed during the commission of another serious crime). Section 1004 of the Rule for Courts-Martial (RCM) requires that at least one aggravating factor be found (out of eleven possible categories) before the court can impose the death sentence in murder cases such as this one. In Loving’s case, the tribunal found evidence of three aggravating factors: (1) that the premeditated murder of the second driver was committed during the course of a robbery; (2) that he acted as the triggerman in the felony murder of the first driver; and (3) that Loving, having been found guilty of the premeditated murder, committed a second murder. Finding these aggravating factors, the judges sentenced Loving to death. Loving appealed his sentence on the ground that the aggravating factors rules were established by the president when rightfully that authority belongs only to Congress. This argument was rejected by the U.S. Court of Appeals for the Armed Forces, and Loving asked the Supreme Court to review his case.

In the first part of the Court’s opinion, Justice Kennedy explains that the Eighth Amendment requires 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. This requirement is applicable both to military and civilian trials. The use of an aggravating factors system is the most common way to satisfy the requirement. Having determined what the Eighth Amendment demands, Justice Kennedy next turns his attention to the central issue of the case: Was it constitutional for the president, rather than Congress, to enact Section 1004 of the RCM establishing the aggravating factors sentencing scheme for the military?

 

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....

Even before the birth of this country, separation of powers was known to be a defense against tyranny. 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 (J. Madison), 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 (1976)....

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. 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, and may not be conveyed to another branch or entity. Field v. Clark (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.... 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 (1825)....

Loving contends that the military death penalty scheme of Article 118 [of the Uniform Code of Military Justice (UCMJ)] 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.

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....

We have undertaken before, in resolving other issues, the difficult task of interpreting Clause 14 by drawing upon English constitutional history. 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, nondelegable 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 parliamentary 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....

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....

Under Clause 14, Congress, like Parliament, exercises a power of precedence over, not exclusion of, Executive authority. This power is no less plenary than other Article I powers, and we discern no reasons why Congress should have less capacity to make measured and appropriate delegations of this power than of any other. 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 Congress the highest deference in ordering military affairs. Rostker v. Goldberg (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 independent agency defines by regulation what conduct will be criminal, so long as Congress makes the violation of regulations a criminal offense and fixes the punishment, and the regulations “confin[e] themselves within the field covered by the statute.” United States v. Grimaud (1911). The exercise of a delegated authority to define crimes may be sufficient in certain circumstances to supply the notice to defendants the Constitution requires. 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. 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.

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.” 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. As the Court of Military Appeals pointed out in [ United States v. ] Curtis [1991], 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.... 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....

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 (1928). 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. Though in 1935 we struck down two delegations for lack of an intelligible principle, A. L. A. Schechter Poultry Corp. v. United States (1935), and Panama Refining Co. v. Ryan, we have since upheld, without exception, delegations under standards phrased in sweeping terms. 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....

... We think ... 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 delegation 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. 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 (1975).... [W]e need not decide whether the President 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 constitutional office of Commander in Chief, had undoubted competency 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 (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 congressional authorization to intervene in cases where courts-martial decreed death. 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 disserved, 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.

JUSTICE SCALIA, WITH WHOM JUSTICE O’CONNOR JOINS, CONCURRING IN PART AND CONCURRING IN THE JUDGMENT.

The discussion of English history that features so prominently in the Court’s discussion of Congress’s power to grant the authority at issue to the President is in my view irrelevant....

... Our written Constitution does not require us to trace out that history; it provides, in straightforward 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, 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....

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.

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, and this Court has never so held, see Schick v. Reed (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.