Loving v. United States, 517 U.S. 748, 28 (1996)

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

Opinion of Scalia, J.

As a consequence of my conclusion that the "service connection" requirement has been satisfied here, I join not only the Court's analysis of the delegation issue, but also its disposition of the case. By joining in the Court's opinion, however, I do not thereby accept the proposition that our decision in Solorio must be understood to apply to capital offenses. Nor do I understand the Court's decision to do so. That question, as I have explained, remains to be decided.

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


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