Military.

Superintendence of the military is another area in which shared power with the President affects delegation doctrine. The Court in Loving v. United States144 approved a virtually standard-less delegation to the President.

Article 118 of the Uniform Code of Military Justice (UCMJ)145 provides for the death penalty for premeditated murder and felony murder for persons subject to the Act, but the statute does not comport with the Court’s capital punishment jurisdiction, which requires the death sentence to be cabined by standards so that the sentencing authority must narrow the class of convicted persons to be so sentenced and must justify the individual imposition of the sentence.146 However, the President in 1984 had promulgated standards that purported to supply the constitutional validity the UCMJ needed.147

The Court in Loving held that Congress could delegate to the President the authority to prescribe standards for the imposition of the death penalty—Congress’s power under Article I, § 8, cl. 14, is not exclusive—and that Congress had done so in the UCMJ by providing that the punishment imposed by a court-martial may not exceed “such limits as the President may prescribe.”148 Acknowledging that a delegation must contain some “intelligible principle” to guide the recipient of the delegation, the Court nonetheless held this not to be true when the delegation was made to the President in his role as Commander-in-Chief. “The same limitations on delegation do not apply” if the entity authorized to exercise delegated authority itself possesses independent authority over the subject matter. The President’s responsibilities as Commander-in-Chief require him to superintend the military, including the courts-martial, and thus the delegated duty is interlinked with duties already assigned the President by the Constitution.149

Footnotes

144
517 U.S. 748 (1996). [Back to text]
145
10 U.S.C. §§ 918(1), (4). [Back to text]
146
The Court assumed the applicability of Furman v. Georgia, 408 U.S. 238 (1972), and its progeny, to the military, 517 U.S. at 755–56, a point on which Justice Thomas disagreed, id. at 777. [Back to text]
147
Rule for Courts-Martial; see 517 U.S. at 754. [Back to text]
148
10 U.S.C. §§ 818, 836(a), 856. [Back to text]
149
517 U.S. at 771–74. See also United States v. Mazurie, 419 U.S. 544, 556–57 (1974) (limits on delegation are “less stringent” when delegation is made to an Indian tribe that can exercise independent sovereign authority over the subject matter). [Back to text]