Loving v. United States, 517 U.S. 748, 20 (1996)

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Cite as: 517 U. S. 748 (1996)

Opinion of the Court

services of the Executive in establishing rules for the governance of the military, including rules for capital punishment. In the words of Alexander Hamilton, the power to regulate the Armed Forces, like other powers related to the common defense, was given to Congress

"without limitation: Because it is impossible to foresee or define the extent and variety of national exigencies, or the corresponding extent & variety of the means which may be necessary to satisfy them. The circumstances that endanger the safety of nations are infinite, and for this reason no constitutional shackles can wisely be imposed on the power to which the care of it is committed. This power ought to be co-extensive with all the possible combinations of such circumstances; and ought to be under the direction of the same councils, which are appointed to preside over the common defence." The Federalist No. 23, at 147 (emphasis deleted).

The later-added Bill of Rights limited this power to some degree, cf. Burns v. Wilson, 346 U. S. 137, 140 (1953) (plurality opinion); Chappell v. Wallace, 462 U. S. 296, 300 (1983), but did not alter the allocation to Congress of the "primary responsibility for the delicate task of balancing the rights of servicemen against the needs of the military," Solorio, 483 U. S., at 447-448.

Under Clause 14, Congress, like Parliament, exercises a

power of precedence over, not exclusion of, Executive authority. Cf. United States v. Eliason, 16 Pet. 291, 301 (1842) ("The power of the executive to establish rules and regulations for the government of the army, is undoubted"). This power is no less plenary than other Article I powers, Solorio, supra, at 441, and we discern no reasons why Congress should have less capacity to make measured and appropriate delegations of this power than of any other, see Skinner v. Mid-America Pipeline Co., 490 U. S. 212, 220-221 (1989)


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