Article I, Section 1:

All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

That the delegation of discretion in dealing with foreign relations stands upon a different footing than the transfer of authority to regulate domestic concerns was asserted in United States v. Curtiss-Wright Corporation.1 There the Court upheld a joint resolution of Congress making it unlawful to sell arms to certain warring countries upon certain findings by the President, a typically contingent type of delegation. But Justice George Sutherland for the Court proclaimed that the President is largely free of the constitutional constraints imposed by the nondelegation doctrine when he acts in foreign affairs.2 Sixty years later, the Court, relying on Curtiss-Wright, reinforced such a distinction in a case involving the President’s authority over military justice.3 Whether or not the President is the “sole organ of the nation” in its foreign relations, as asserted in Curtiss-Wright,4 a lesser standard of delegation is applied in areas of power shared by the President and Congress.

Superintendence of the military is another area in which shared power with the President is impacted by the delegation doctrine. The Court in Loving v. United States5 approved a virtually standardless delegation to the President.

Article 118 of the Uniform Code of Military Justice (UCMJ)6 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.7 However, the President in 1984 had promulgated standards that purported to supply the constitutional validity the UCMJ needed.8

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.” 9 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.10

Footnotes

1

299 U.S. 304, 319–29 (1936).

2

Id. at 319–22. For a particularly strong, recent assertion of the point, see Haig v. Agee, 453 U.S. 280, 291–92 (1981). This view also informs the Court’s analysis in Dames & Moore v. Regan, 453 U.S. 654 (1981). See also United States v. Chemical Foundation, 272 U.S. 1 (1926) (Trading With Enemy Act delegation to dispose of seized enemy property).

3

Loving v. United States, 517 U.S. 748, 772–73 (1996).

4

299 U.S. at 319.

5

517 U.S. 748.

6

10 U.S.C. §§ 918(1), (4).

7

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.

8

Rule for Courts-Martial; see 517 U.S. at 754.

9

10 U.S.C. §§ 818, 836(a), 856.

10

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).