Loving v. United States, 517 U.S. 748, 30 (1996)

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

Thomas, J., concurring in judgment

"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.

Justice Thomas, concurring in the judgment.

It is not clear to me that the extensive rules we have developed under the Eighth Amendment for the prosecution of civilian capital cases, including the requirement of proof of aggravating factors, necessarily apply to capital prosecutions in the military, cf. Chappell v. Wallace, 462 U. S. 296, 300-302 (1983), and this Court has never so held, see Schick v. Reed, 419 U. S. 256, 260 (1974).* I am therefore not certain that this case even raises a delegation question, for if Loving can constitutionally be sentenced to death without proof of aggravating factors, he surely cannot claim that the President violated the Constitution by promulgating aggravating factors that afforded more protection than that to which Loving is constitutionally entitled.

Like the majority, I conclude that the Government prevails even if we assume, without deciding, that aggravating factors are required in this context. There is abundant author-*Although the applicability of Furman v. Georgia, 408 U. S. 238 (1972), and its progeny to the military is an open question, the United States surprisingly makes no argument that the military is exempt from the byzantine rules that we have imposed upon the States in their administration of the death penalty.

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