Loving v. United States, 517 U.S. 748, 23 (1996)

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Opinion of the Court

There is yet a third provision of the UCMJ indicative of congressional intent to delegate this authority to the President. Article 36 of the UCMJ, which gives the President the power to make procedural rules for courts-martial, provides:

"Pretrial, trial, and post-trial procedures, including modes of proof, for [courts martial] . . . may be prescribed by the President by regulations which shall, so far as he considers practicable, apply the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts, but which may not be contrary to or inconsistent with this chapter." 10 U. S. C. 836(a).

Although the language of Article 36 seems further afield from capital aggravating factors than that of Article 18 or 56, it is the provision that a later Congress identified as the source of Presidential authority to prescribe these factors. In 1985, Congress enacted Article 106a of the UCMJ, 10 U. S. C. 906a, which authorized the death penalty for espionage. The Article requires a finding of an aggravating factor if the accused is to be sentenced to death; it enumerates three such factors, but allows death to be decreed on "[a]ny other factor that may be prescribed by the President by regulations under section 836 of this title (article 36)." 906a(c)(4). Article 106a itself, then, is premised on the President's having authority under Article 36 to prescribe capital aggravating factors, and " '[s]ubsequent legislation declaring the intent of an earlier statute is entitled to great weight in statutory construction.' " Consumer Product Safety Comm'n v. GTE Sylvania, Inc., 447 U. S. 102, 118, n. 13 (1980) (quoting Red Lion Broadcasting Co. v. FCC, 395 U. S. 367, 380-381 (1969)). Whether or not Article 36 would stand on its own as the source of the delegated power, we hold that Articles 18, 36, and 56 together give clear authority to the President for the promulgation of RCM 1004.

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