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 prominently 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 "aggravating 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 presumably significant occurrences for students of the unwritten English constitution. 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, 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.