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 `circumscribe 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 relevance 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 attempting 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 . . . parliamentary 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 author-ity 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.