No. 94-1966-1

In The Supreme Court of The United States

OCTOBER TERM, 1995

DWIGHT J. LOVING, PETITIONER

v.

UNITED STATES OF AMERICA

ON WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS
FOR THE ARMED FORCES

BRIEF FOR THE UNITED STATES

JOHN M. SMITH
Colonel, USA
Government Appellate
Division
Falls Church, VA 22041

DREW S. DAYS, III
Solicitor General

JOHN C. KEENEY
Acting Assistant Attorney
General

EDWIN S. KNEEDLER
Deputy Solicitor General

MIGUEL A. ESTRADA
Assistant to the Solicitor
General

JOHN F. DE PUE
Attorney

Department of Justice
Washington, D.C. 20530
(202)514-2217

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QUESTION PRESENTED

Whether the President had the authority to promulgate
Rule for Courts-Martial 1004 which prescribes aggravat-
ing factors for cases in which the death penalty is other-
wise expressly authorized by the Uniform Code of Military
Justice.

(I)

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TABLE OF CONTENTS

Opinions below . . . . 1 
Jurisdiction . . . . 1 
Statutes, rule, and constitutional provisions involved . . . . 2
Statement . . . . 2 
Summary of argument . . . . 8 

Argument:

The president properly promulgate Rule for
Courts-Martial 1004 to limit the class of cases in
which the death penalty, when it otherwise is ex-
pressly authorized by the Uniform Code of Military
Justice, may be imposed . . . . 10 
A. Nothing in the Constitution requires that Con-
  gress itself determine which capital defendants
  are executed . . . . 13
B. The UCMJ authorizes adoption of RCM 1004 and
  provides constitutionally adequate standards for
  doing  so . . . . 34 
Conclusion . . . . 47 
Appendix . . . . 1a 

TABLE OF AUTHORITIES

Cases:

American Power  &  Light Co. V. SEC, 323 U.S. 90
  (1946) . . . . 43 
Arave  V. Creech, 113 S. Ct. 1534 (1993) . . . . 30 
Babbitt V. Sweet Home Chapter of Communities
  for a Great Oregon, 115 S. Ct. 2407 (1995) . . . . 38 
Bank of the United States V. Halstead, 23 U.S. (10
  Wheat.) 51 (1825) . . . . 42
Biddle v. Perovich, 274 U.S. 480 (1927) . . . . 42 
Bowsher v. Synar, 478 U.S. 714 (1966) . . . . 20
Caldwell v. Parker, 252 U.S. 376 (1920) . . . . 28

(III)

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IV
    
Cases-Continued:             

Page

Cargo of the Brig  Aurora  V. United States, 11 U.S.
  (7 Cranch) 382 (1813) . . . . 14
Carter v. McClaughry, 183 U.S. 365 (1902) . . . . 35
Coker   v. Georgia, 433 U.S. 584 (1977) . . . . 45
Concrete Pipe & Prods. of California, Inc. V. Con-
  struction Laborers Pension Trust, 113 S. Ct.
  2264 (1993) . . . . 41
Consumer Product Safety Comm'n v. GTE Syl-
  vania, Inc., 447 U.S. 102 (1980) . . . . 39
Dames & Moore v. Regan, 453 U.S. 654 (1981) . . . . 40, 41
Dobbert v. Florida, 432 U.S. 282 (1977) . . . . 10, 11, 36, 40
Dreyer v. Illinois, 187 U.S. 71 (1902) . . . . 30
Dynes v. Hoover, 61 U.S. (20 How.) 65 (1858) . . . . 32
Field v. Clark, 143 U.S. 649 (1892) . . . . 20
Furman v. Georgia, 408 U.S. 238 (1972) . . . . 2, 7, 10
Godfrey v. Georgia, 446 U.S. 420 (1980) . . . . 30
Goldman v. Weinberger, 475 U.S. 503 (1986) . . . . 31
Gregg v. Georgia, 428 U.S. 153 (1976) . . . . 30, 45
Grimley, In re, 137 U.S. 147 (1890) . . . . 31
Haig v. Agee, 453 U.S. 280 (1981) . . . . 41
Hanna v. Plumer, 380 U.S. 460 (1965) . . . . 42
Irving v. State, 441 So. 2d 846 (Miss. 1983), cert.
  denied, 470 U.S. 1059 (1985) . . . . 36
J. W. Hampton, Jr. & Co., V. United States, 276 U.S.
  394 (1928) . . . . 19
Johnson v. Sayre, 158 U.S. 109 (1895) . . . . 27
Jordan v. Watkins, 681 F.2d 1067 (5th Cir. 1982) . . . . 36
Jurek  v. Texas, 428 U.S. 262 (1976) . . . . 30
Kinsella v, Singleton, 361 U.S. 234 (1960) . . . . 12, 22
Kurtz v. Moffitt, 115 U.S. 487 (1885) . . . . 16
Lewis v. Jeffers,  497 U.S. 764 (1990) . . . . 11, 36
Lichter v. United States, 334 U.S. 742 (1948) . . . . 42, 43
Lowenfield v. Phelps, 484 U.S. 231 (1988) . . . . 11
Marsh v. Chambers,  463 U.S. 783 (1983) . . . . 20
Martin v. Mott, 25 U.S. (12 Wheat) 19 (1827) . . . . 18, 19
                                                                                   27, 40
Mason, Ex  parte, 105 U.S. 696 (1881) . . . . 27
Maynard v. Cartwright, 486 U.S. 356 (1988) . . . . 30
McCleskey v. Kemp,  481 U.S. 279 (1987) . . . . 46
McGautha v. California, 402 U.S. 183 (1971) . . . . 27

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V 

Cases-Continued:             

Page

Middendorf   v. Henry,  425 U.S. 25 (1976) . . . . 32
Milligan, Ex parte, 71 U.S. (4 Wall.) 2 (1866) . . . . 29
Mistretta  v. United States, 488 U.S. 361 (1989) . . . . 7, 20
                                                                                   26, 32, 33, 42
Moskal v. United States, 498 U.S. 103 (1990) . . . . 35, 41
NLRB v. Bell Aerospace Co., 416 U.S. 267 (1974) . . . . 38
National Broadcasting Co. V. United States, 319
  U.S. 190 (1943) . . . . 43
Neagle, In  re, 135 U.S. 1 (1890) . . . . 17
O'Callahan v. Parker, 395 U.S. 258 (1969) . . . . 28
Orloff v. Willoughby, 345 U.S. 83 (1953) . . . . 31
Panama Refining Co. v. Ryan, 293 U.S. 388
  (1935) . . . . 16
Parisi v. Davidson, 405 U.S. 34 (1972) . . . . 32
Parker v. Levy, 417 U.S. 733 (1974) . . . . 31, 40
Poland v. Arizona, 476 U.S. 147 (1986) . . . . 36
Proffitt v. Florida, 428 U.S. 242 (1976) . . . . 30, 45
Quirin,  Ex  parte, 317 U.S. 1 (1942) . . . . 16
Red Lion Broadcasting Co. V. FCC, 395 U.S. 367
  (1969) . . . . 39
Reid v. Covert, 354 U.S. 1 (1957) . . . . 29, 37, 40
Reno v. Koray, 115 S. Ct. 2021 (1995) . . . . 41
Romano v. Oklahoma, 114 S. Ct. 2004 (1994) . . . . 11
Rostker v. Goldberg, 453 U.S. 57 (1981) . . . . 18
Runkle v. United States, 122 U.S. 543 (1887) . . . . 32
Schick v. Reed, 419 U.S. 256 (1974) . . . . 11, 42
Schlesinger v. Councilman, 420 U.S. 738 (1975) . . . . 29, 31
Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479
  (1985) . . . . 35
Sibbach v. Wilson & Co., 312 U.S. 1 (1941) . . . . 42
Skinner v. Mid-America Pipeline Co., 490  U.S. 212
  (1989) . . . . 12, 14
Smith V. United States, 113 S. Ct. 2050 (1993) . . . . 34
Smith V. Whitney, 116 U.S. 167 (1886) . . . . 27
Solorio V. United States 483 U.S. 435 (1987) . . . . 12, 27, 28
Stanford V. Kentucky, 492 U.S. 361 (1989) . . . . 11, 45
State V. Coleman, 605 P.2d 1000 (Mont. 1979),
  cert. denied, 446 U.S. 970 (1980) . . . . 36
Stoutenburgh V. Hennick, 129 U.S. 141 (1889) . . . . 19

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VI

Cases-Continued:

Page

Swaim v. United States:
   28 Ct. Ct. 173 (1893), aff'd, 165 U.S. 553
    (1897) . . . . 17, 32
   165 U.S. 553 (1897) . . . . 17
Tison v. Arizona, 481 U.S. 137 (1987) . . . . 45
Touby v. United States, 500 U.S. 160 (1991) . . . . 31
Tuilaepa v. California, 114  S. Ct. 2630 (1994 ) . . . . 11, 12
United States v. Bailey, 34 U.S. (9 Pet.) 238
  (1835) . . . . 43
United States v. Chemical Foundation, Inc., 272
  U.S. 1 (1926) . . . . 14
United States v. Curtis, 32 M.J. 252 (C.M.A.),
  cert. denied, 502 U.S. 952 (1991) . . . . 7, 8
United States v. Curtiss-Wright Export Corp., 299
  U.S. 304 (1936) . . . . 15, 19, 41
United States v. Eliasom, 41 U.S. (16 Pet.) 291
  (1842) . . . . 16
United States v. Flores, 63 F.3d 1342 (5th Cir.
  1995) . . . . 45      
 United States   v.  Grimaud, 220 U.S. 506 (1911) . . . . 12, 43
United States v. Matthews, 16 M.J. 354 (C.M.A.
  1983) . . . . 2, 3, 11
United States  v. Mazurie, 419 U.S. 544 (1975) . . . . 14
United States v. Ware, 1 M.J. 282 (C.M.A. 1976) . . . . 37
United States ex rel. Knauff  v. Shaughnessy, 338
  U.S. 537 (1950) . . . . 14, 16, 43
United States ex rel. Toth v. Quarles,  350 U.S. 11
  (1955) . . . . 25-26, 31
Walton v. Arizona., 497 U.S. 639 (1990) . . . . 30, 36
Walz v. Tax Comm'n, 397 U.S. 664 (1970) . . . . 20
Wayman v. Southard, 23 U.S. (10 Wheat.) 1
  (1825) . . . . 42
Weiss v. United States, 114 S. Ct. 752 (1994) . . . . 11, 32, 33
Wells, Ex parte, 59 U.S. (18 How.) 307 (1856) . . . . 42
Yakus v. United States, 321 U.S. 414 (1944) . . . . 43
 Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S.
  579 (1952) . . . . 29
Zant v. Stephens, 462 U.S. 862 (1983) . . . . 30

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VII

Constitution,  statutes and rules:         

Page

U.S. Const:
   Art  I . . . . 2, 14, 32, la
     9, Cl. 3 (Ex Post Facto Clause) . . . . 36
   Art. II . . . . 2, 8, 17, 40, 2a  
    1, C1. 8 . . . . 17, 2a
    2, Cl.1. . . . 17, 42, 2a
    3 . . . . 9, 17, 2a
   Art III . . . . 42
  Amend. V . . . . 26 
  Amend. VIII . . . . passim
   Amend. XIV . . . . 29
Act of Sept. 29,1789, ch. 25, 4,1 Stat. 96 . . . . 21
Act of Apr. 30,1790, ch. 10, 13,1 Stat. 121 . . . . 21
Act of July 1,1797, ch 7, 8,1 Stat. 525 . . . . 21
Act of Mar. 2,1799, ch. 24,1, Art. 29,1 Stat. 712 . . . . 21
Act of Apr. 23,1800, ch. 33, 1,2 Stat. 45:
   Art. XVII, 2 stat. 47 . . . . 22, 27-28
Art. XXI, 2 Stat. 48 . . . . 22 
Art. XXXII, 2 Stat. 49 . . . . 22
Act of Apr. 10,1806, ch. 20, l, 2 Stat. 359:
Art. 7,2 Stat. 360 . . . . 24
Art. 9,2 Stat. 361 . . . . 24 
Art. 20,2 Stat. 362 . . . . 24
Act of Sept. 27,1890, ch. 998,26 Stat. 491 . . . . 24 
Act of Aug. 29,1916, ch. 418,$3,39 Stat. 650:
Art. 45,39 Stat. 657 . . . . 24
Art. 92,39 Stat. 664 . . . . 25 
Act of May 5, 1950, ch. 169,  1, Art. 36, 64  Stat.
120 . . . . 37
American Articles of War of 1775 . . . . 20
Art. VII . . . . 20
American Articles of War of 1776, Section VI,
Art. 1 . . . . 20
American Articles of War of 1786, Art. 12 . . . . 20-21
American Articles of War of 1874, Arts. 41-46 . . . . 24

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VIII

Statutes and rules-Continued:         

Page

Antihijacking Act of 1974, Pub. L. No. 93-966,
Tit. I,  105, 88 Stat. 412-413 . . . . 44 
49 U.S.C. 1473 (c) (7) (1976) . . . . 44      
49 U.S.C. 1473 (c) (7) (B) (iii) (1976) . . . . 44
Articles of Confederation (1777) . . . . 20
British Articles of War of 1765, Section VI,
Art. II . . . . 20
Department of Defense Authorization Act, 1986,
Pub. L. No. 99-145, 534, 99 Stat. 634 (1985) . . . . 38 
Federal Death Penalty Act of 1994, Pub. L. No.
103-322, Tit. VI,  60002, 108 Stat. 1959 . . . . 46 
18 U. S. C. 3591-3598 (1994) . . . . 46
18 U.S.C. 3592(c) (1994) . . . . 47
18 U.S.C. 3592(c) (1) (1994) . . . . 46 
18 U.S.C. 3592 (c) (3) - (8) (1994) . . . . 46 
18 U.S.C. 3592 (c) (12) (1994) . . . . 46
18 U.S.C. 3592 (c) (14) (1994) . . . . 46 
Taft-Hartley Act, 29 U.S.C. 141 et seq. . . . . 29
Uniform Code of Military Justice, 10 U.S.C. 801
et seq.:
Art. 18,10 U.S.C. 818 . . . . passim
Art. 36,10 U.S.C. 836 . . . . 2, 3, 7, 29, 34, 36, 39, 40, 41, 45
Art. 36(a), 10 U.S.C. 836(a) . . . . 8, 9, 10, 13, 36, 37, 41, 44
Art. 51,10 U.S.C. 851 . . . . 33
Art. 55,10 U.S.C. 855 . . . . 2, 43,44, 3a
Art. 56,10 U.S.C. 856 . . . . passim 
Art. 60,10  U.S.C. 860 . . . . 7
Art. 66,10 U.S.C. 866 . . . . 7
Art. 71,10 U.S.C. 871 . . . . 33, 42
Art. 80,10 U.S.C. 880 . . . . 2
Art. 106a, 10 U.S.C. 906a . . . . 2, 38, 44
Art. 106a(c) (4), 10 U.S.C. 906a(c) (4) . . . . 38, 39
Art. 118,10 U.S.C. 918 . . . . passim
Art. 118 (4), 10 U.S.C. 918 (4) . . . . 46
 Art. 122,10 U.S.C. 922 . . . . 2
18 U.S.C. 351 . . . . 46
18 U.S.C. 1111 . . . . 46
18 U.S.C. 1114 . . . . 46

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IX

States and rules-Continued:         

Page

18 U.S.C. 1751 . . . . 46
21 U.S.C. 848 (e) . . . . 46
Mil. R. Evid. 606 (b) . . . . 33
Rules for Courts-Martial:
   Rule 1003 . . . . 26
   Rule 1003(d) . . . . 26
   Rule 1004 . . . . passim
   Rule 1004 (b) . . . . 4 
   Rule 1004 (c) . . . . 4
   Rule 1004 (c) (2) . . . . 45 
   Rule 1004 (c) (3) . . . . 45
   Rule 1004 (c) (4) . . . . 44
   Rule 1004 (c) (7) . . . . 46
   Rule 1004 (c) (7) (B) . . . . 6, 46
   Rule 1004 (c) (7) (C) . . . . 46
   Rule 1004 (c) (7) (F) . . . . 46 
   Rule 1004 (c) (7) (G) . . . . 46 
   Rule 1004 (c) (7) (J) . . . . 6 
   Rule 1004 (c) (8) . . . . 6, 45
   Rule 1004 (c) (9) . . . . 45

Miscellaneous:

I American State Papers Military Affairs (Lowrie
& Clarke  eds., 1832) . . . . 21 
15 Annals of Cong.:
p. 263 (1805) . . . . 22 
p.326 (1806). . . . 22, 27
pp. 326-327 (1806) . . . . 23
p. 327 (1806) . . . . 23
p. 338 (1806) . . . . 23
DOD Directive No. 5500.17 (Jan. 23, 1985) . . . . 33
Dictionary of American Biography (1936) . . . . 23
Exec. Order No. 11,030,27 Fed. Reg. 5847 (1962 ) . . . . 33
Exec. Order No. 12,460,49 Fed. Reg. 3169 (1984 ). . . . 3, 40
Exec. Order No. 12,473, 49 Fed. Reg. 17,152
(1984) . . . . 4, 32
Exec. Order No. 12,484, 49 Fed. Reg. 28, 825
(1984) . . . . 4, 32-33

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X

Miscellaneous-Continued:           

Page

Exec. Order No. 12,550,51 Fed. Reg. 6497 (1986 ) . . . . 4
Exec. Order No. 12,767, 56 Fed. Reg. 30,284
 (1991) . . . . 4
47 Fed. Reg. 3401 (1982) . . . . 33
48 Fed. Reg. 23,688 (1983) . . . . 4
H.R. Conf. Rep. No. 235, 99th Cong., 1st Sess.
  (1985) . . . . 39
H.R. Rep. No. 1051, 51st Cong., 1st Sess. (1890) . . . . 24, 35, 43
H.R. Rep. No. 491, 81st Cong., 1st Sess. (1949) . . . . 44
Manual for Courts-Martial;
   (1984 ed.) . . . . 3
   (1995 ed.) . . . . 4, 26, 44, 45, 46
Manual for Courts-Martial, U.S. Army  1917 . . . . 20, 25
Clinton Rossiter, The Supreme Court and the Com-
  mander in Chief (1976) . . . . 32
S. Rep. No. 486, 81st Cong., 1st Sess. (1949) . . . . 44
S. Rep. No. 197, 96th Cong., 1st Sess. (1979) . . . . 37
Frederick Bernays Wiener, Courts-Martial and the
  Bill of Rights: The Original Practice I, 72 Harv.
  L. Rev. 1 (1958) . . . . 21, 22, 23, 24, 28
William Winthrop, Military Law and Precedents
  (2d ed. 1920) . . . . 16, 20, 21, 24

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In the Supreme Court of the United States

OCTOBER TERM, 1995

No. 94-1966

DWIGHT J. LOVING, PETITIONER

v.

UNITED STATES OF AMERICA

   ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
   FOR THE ARMED FORGES

BRIEF FOR THE UNITED STATES

OPINIONS BELOW

The opinion of the United States Court of Appeals for
the Armed Forces (Pet. App. 1a-227a) is reported at 41
M.J. 213. The initial opinion of the United States Army
Court of Military Review, now the United States Army
Court of Criminal Appeals (Pet. App. 229a-256a), is
reported at 34 M.J. 956, and its opinion denying recon-
sideration (Pet. App. 257a-265a) is reported at 34 M.J.
1065.     

 JURISDICTION

The judgment of the United States Court of Appeals
for the Armed Forces was entered on November 10, 1994.
A petition for reconsideration was denied on February 2,
1995. Pet. App. 228a. On April 21, 1995, Chief Justice
Rehnquist extended the time within which to file a peti-
tion for a writ of certiorari to and including June 2,
1995, and the petition was filed on that date. The petition

(1)

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2

for a writ of certiorari was granted on September 27,
1995. 116 S. Ct. 39. The jurisdiction of this Court rests
upon 28 U.S.C. 1259(1) (Supp. V 1993).

STATUTES, RULE, AND
  CONSTITUTIONAL PROVISION INVOLVED

Articles 18, 36, 56, 106a, and 118 of the Uniform
Code of Military Justice, 10 U.S.C. 818, 836, 856, 906a,
and 918, and Rule for Courts-Martial 1004, are reprinted
in the Joint Appendix, J.A. 139-145, 132-138. Relevant
provisions of Articles I and II of the Constitution, and
Article 55 of the Uniform Code of Military Justice, are
reproduced in the appendix to this brief, infra, 1a-3a.

STATEMENT

Petitioner was convicted by a general court-martial of
premeditated murder, felony murder, attempted murder,
and robbery (four specifications ), in violation of Articles
118, 80, and 122 of the Uniform Code of Military Justice
(UCMJ), 10 U.S.C. 918, 880, and 922. The court sen-
tenced petitioner to death, a dishonorable discharge, and
forfeiture of all pay and allowances. The United States
Army Court of Military Review affirmed. 34 M.J. 956
(Pet. App. 229a-256a), reconsideration denied, 34 M.J.
1065 (A.C.M.R. 1992) (Pet. App. 257a-265a). The
United States Court of Appeals for the Armed Forces
affirmed. Pet. App. 1a-227a.
1. In United States v. Matthews, 16 M.J. 354 (1983),
the United States Court of Military Appeals (now the
United States Court of Appeals for the Armed Forces)
analyzed the constitutionality of Article 118 of the UCMJ,
10 U.S.C. 918, which authorizes the imposition of the
death penalty on defendants who are found guilty of cer-
tain murders. The court concluded that Furman v. Geor-
gia, 408 U.S. 238 (1972 ) (per curiam ), and its progeny,
which assessed the constitutionality of state death penalty
schemes, would apply without modification to the imposi-
tion of the death penalty in the military, at least when the

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 3

offense is not inherently military but has a civil analogue.
16 M.J. at 368-369.
After reviewing this Court's Eighth Amendment cases,
the Matthews court concluded that certain features ap-
peared in a constitutionally valid death penalty procedure:
a bifurcated sentencing proceeding; specific aggravating
circumstances to be identified by the sentencing authority;
selection of and findings on the particular aggravating
circumstances used by the sentencer to impose the death
penalty; unrestricted opportunity for the defendant to
present mitigation and extenuation evidence; and manda-
tory appellate review of the appropriateness of the sen-
tence. 16 M.J. at 377. The court found all of those
safeguards present in the military system except for a re-
quirement that court members identify the specific aggra-
vating factors upon which they relied in imposing the
death penalty. Id. at 379. Because of the absence of that
safeguard, the court reversed Matthews' death sentence.
ld. at 381-382. The court concluded, however, that either
Congress or the President, in his capacity as Commander-
in-chief and/or pursuant to the powers that Congress
delegated to him, could remedy the defect. Id. at 380
(citing Article 36 of the UCMJ, 10 U.S.C. 836).
On January 24, 1984, "[b]y the authority vested in
[him] as President by the Constitution of the United
States and by Chapter 47 of Title 10 of the United States
Code [i.e., the UCMJ]," the President responded by pro-
mulgating an amendment to the extant Manual for Courts-
Martial (Manual) that provided procedures for adjudicat-
ing cases in which the death penalty is authorized by the
UCMJ. See Exec. Order No. 12,460, 49 Fed. Reg. 3169
(1984). When a new revision of the Manual was pub-
lished later that year, the provisions of the Executive Or-
der were included as Rule for Courts-Martial (RCM)
1004. See Manual (1984 ed.). 1.

___________________(footnotes)

1 Prior to the decision in Matthews, the Department of Defense
announced and solicited comments on the proposed changes to the

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4

Briefly summarized, RCM 1004 requires that, before a
death penalty may be imposed following a general court-
martial conviction of an offense for which Congress has
expressly authorized the death penalty, the accused must
have been notified, prior to trial, of the aggravating factors
the prosecution intends to prove; the members of the
court-martial must unanimously find the existence of at
least one of the aggravating factors specified in the Rule;
the accused must be given broad latitude to present evi-
dence in extenuation and mitigation; and the members
must concur that such extenuating or mitigating circum-
stances are "substantially outweighed" by any aggravating
circumstances found to exist. See RCM 1004(b). In
addition, the Rule prescribes a list of aggravating factors,
some of which apply to all capital offenses, others of
which apply exclusively to specifically enumerated crimes.
See RCM 1004(c).
2. During the evening of December 11, 1988, peti-
tioner, an Army private stationed at Fort Hood, Texas,
robbed at gun point two different 7-Eleven convenience
stores in Killeen, Texas. In the first robbery, petitioner
fired two shots into the counter and soda fountain, which
were behind the cashier; he obtained 38. In the second

___________________(footnotes) 

Manual it was then considering for recommendation to the Presi-
dent, which included RCM 1004. See 48 Fed. Reg. 23,688 (1983) ;
Matthews, 16 M.J. at 381.
The Manual is an Executive Order. See Exec, Order No. 12,478
(Apr. 13, 1984), 49 Fed. Reg. 17,152 (1984), as amended by Exec.
Order No. 12,484 (July 13, 1984), 49 Fed. Reg. 28,825 (1984).
The Rules for Courts-Martial, which are part of the Manual,
"govern the procedures and punishments in all courts-martial and,
whenever expressly provided, preliminary, supplementary, and ap-
pellate procedures and activities." See Manual II-1. The text of
RCM 1004 was subsequently modified by additional Executive
Orders. See Exec. Order No. 12,550 (Feb. 19, 1986), 51  Fed. Reg.
6497, 6498-6499 (1986) ; Exec. Order No. 12,767 (June 27, 19911,
56 Fed. Reg. 30,284, 30,293 (1991). The most recent revision of
the Manual was issued in 1995. It included all amending Executive
Orders by the President up to that time. Unless otherwise noted,
citations to the Manual hereinafter are to the 1995 revision.

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5

robbery, petitioner fired a bullet into the cash register,
and demanded that the cashier put money in a paper bag.
As he ran out, petitioner fired a round back into the
store. He obtained approximately $52 from the second
robbery. Pet. App. 3a, 231a.
When the 7-Eleven robberies netted him only a small
amount of cash, petitioner conceived a plan to rob taxicab
drivers. On the evening of December 12, 1988, he called
a taxicab to take him from a store in Killeen to his bar-
racks at Fort Hood. The driver of the taxicab was an
active-duty soldier, Christopher Fay, who was working for
extra money. Petitioner directed Fay to a secluded area
on Fort Hood, where he demanded Fay's money at gun
point. After receiving some money from Fay, petitioner
shot him in the back of the head. "While looking at the
hole in the back of the victim's head and the blood
`gushing out,' " Pet. App, 232a, petitioner cocked his
pistol and again shot Fay in the back of the head, killing
him. Id. at 3a-4a, 23 la-232a.
Petitioner walked to his barracks and, after counting
the money he obtained from Fay, called a second taxi-
cab. That cab was driven by retired Army sergeant
Bobby Sharbino. Petitioner directed Sharbino to a se-
cluded street in Killeen, where he robbed Sharbino of
his money pouch, wallet. and other personal effects. Peti-
tioner then ordered Sharbino to lie down on a car seat
and shot him in the head, killing him. Pet. App. 4a,
232a.
Later that evening, petitioner took his girlfriend to a
nightclub in Killeen. Upon leaving, petitioner and his
girlfriend entered a taxicab driven by Howard Harrison.
After dropping his girlfriend off near her residence, peti-
tioner directed Harrison to a secluded area and robbed
him at gun point. Petitioner then attempted to kill Harri-
son. Harrison struggled with petitioner, disarmed him, and
fled. Pet. App. 4a-5a, 232a-233a.
Acting on leads provided by Harrison, law enforcement
agents, including agents of the Army Criminal Investiga-

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6

tion Command (CID), arrested petitioner in the after-
noon of December 13, 1988. Petitioner was taken to the
CID office, where, after being advised of his rights, he
made a full videotaped confession describing his crimes in
detail. Searches of the area surrounding petitioner's girl-
friend's residence, and of the residence and other places
frequented by petitioner, resulted in the recovery of the
weapon used in the murders and robberies, spent and un-
spent bullets, petitioner's blood-stained jacket, and effects
taken from the murder victims. Pet. App. 5a, 6a-7a,
232a n.2, 233a. Later, while incarcerated at the U.S.
Army facility at Fort Riley, Kansas, petitioner told a
fellow inmate that he had committed the first murder "to
see if he could get away with it," and the second murder
"because it was fun." He subsequently added that, "if
he had to do it over, the only difference is he wouldn't
get caught." Id. at 68a-69a.
An eight-member general court-martial panel unani-
mously found petitioner guilty of the premeditated murder
of Sharbino and of the felony murder of Fay. By a non-
unanimous vote, the court-martial also found petitioner
guilty of attempting to murder Harrison, of robbing Shar-
bino and Harrison, and of robbing the 7-Eleven stores,
Pet. App. 8a-9a. 2. After a hearing conducted in accord-
ance with RCM 1004, the court-martial unanimously
found, as aggravating factors, that the premeditated mur-
der of Sharbino was committed while petitioner was en-
gaged in a robbery (see RCM 1004(c) (7) (B); that, in
the felony murder of Fay, petitioner acted as the trigger-
man (see RCM 1004(c)(8); and that petitioner, having
been found guilty of the premeditated murder of Shar-
bino, was found guilty of another murder in the same
case (see RCM I004(c) (7) (J) ). Pet. App. 253a-254a.
The court-martial unanimously sentenced petitioner to

___________________(footnotes)

2 In addition, petitioner was also found guilty of the premedi -
tated murder of Fay, the robbery of Fay, and the felony murder of
Sharbino. After the findings were announced, the military judge
dismissed those specifications as multiplicitous. Pet. App. 9a.

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7

death, a dishonorable discharge, and forfeiture of all pay
and allowances. The convening authority approved the
findings and sentence. Id. at 9a, 230a. 3.
3. The Army Court of Military Review affirmed the
findings and sentence. Pet. App. 229a-256a. In accord-
ance with Article 6.6 of the UCMJ, 10 U.S.C. 866, the
court independently weighed the evidence and "agree[d]
with each of the aggravating factors found by the court-
martial." Pet. App. 254a. The Court also found "that
any extenuating and mitigating circumstances are substan-
tially outweighed by the aggravating circumstances." Ibid.
On appeal, petitioner argued that Article 118 of the
UCMJ, 10 U.S.C. 918, is unconstitutional under Furman
V. Georgia, 408 U.S. 238 ( 1972) (per curiam), in that
it does not sufficiently narrow the class of death-eligible
defendants, and that the President exceeded his authority
under the Constitution and the UCMJ in promulgating
RCM 1004 to provide specific aggravating factors. The
court found those claims foreclosed by United States V.
Curtis, 32 M.J. 252 (C.M.A. ) (J.A. 88-131), cert. de-
nied, 502 U.S. 952 (1991 ). Pet. App. 230a.
The Curtis court concluded that, under the UCMJ, the
President has long "play[ed] the major role in determin-
ing what punishments may be imposed by courts-martial."
J.A. 107. It held that several provisions of the UCMJ,
particularly Articles 18, 36, and 56, 10 U.S.C. 818, 836,
and 856, authorized the President to promulgate aggra-
vating factors for capital cases. J.A. 107-108. Relying
on Mistretta v. United States, 488 U.S. 361 (1989), the
Curtis court rejected a separation-of-powers challenge to

___________________(footnotes)

3  The "convening authority" is the commander who convenes the
court-martial. The convening authority selects the court-martial
members, directs that the accused be tried by the court-martial for
the charged offenses, and conducts a poet-trial review of the pro-
ceedings. Upon such review, he is empowered to dismiss any charge
or specification by setting aside the finding of guilty or "approve,
disapprove, commute, or suspend the sentence in whole or in part."
See Art. 60, UCMJ, 10 U. S.C.  860.

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 8

that authorization, noting that "[i]n view of [the Presi-
dent's] inherent constitutional authority [as Commander-
in-Chief of the Army and Navy], a separation-of-powers
objection has much less merit in the present context than
if the 'aggravating factors' for capital cases tried by courts-
martial had been formulated by a specially created com-
mission." J.A. 106. Curtis also rejected the contention
that Congress failed to give the President an intelligible
principle for the exercise of his authority, explaining that
adequate standards are furnished by the UCMJ'S direc-
tion in Article 36(a) that the President "shall, so far as
he considers practicable," apply "the principles of law"
that are generally recognized in the trial of criminal cases
in federal district courts. J.A. 113-122.
4. The Court of Appeals for the Armed Forces af-
firmed. Pet. App. 1a-227a. The court summarily re-
jected, on the authority of Curtis and Matthews, petition-
er's claims that the President lacked constitutional and
statutory authority to promulgate RCM 1004. Pet. App.
141a-142a.

SUMMARY OF ARGUMENT

Article 118 of the Uniform Code of Military Justice
(UCMJ) expressly provides that a servicemember who
commits premeditated or felony murder "shall suffer death
or imprisonment for life as a court-martial may direct."
10 U.S.C. 918. Rule for Courts-Martial (RCM) 1004,
first promulgated by the President in 1984, provides that
only a sub-class of those eligible for the death penalty
under Article 118-i.e., those who are guilty of certain
forms of aggravated conduct-may be sentenced to death
by a court-martial. The President's action was authorized
by other provisions of the UCMJ and by the President's
own powers under Article II of the Constitution. It does
not violate the separation-of-powers doctrine or the Eighth
Amendment.
A. The UCMJ authorizes the President's action be-
cause Articles 18 and 56 of the UCMJ provide that the

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9

President may limit the punishment that courts-martial
may impose, including-as Article 18 makes clear-"the
penalty of death when specifically authorized by" the
UCMJ. 10 U.S.C. 818, 856. Article 36(a) further pro-
vides that the President may prescribe "post-trial proce-
dures" for cases arising under the UCMJ to conform to
the "principles of law * * * generally recognized" in the
trial of federal criminal cases. 10 U.S.C. 836(a). In
addition, the constitutional powers conferred on the Presi-
dent as Commander-in-Chief independently authorize him
to regulate military punishments, within the bounds au-
thorized by statute, because such punishments always
have been understood to be an aspect of military obedi-
ence and discipline. Because the Constitution also en-
joins the President to "take Care that the Laws be faith-
fully executed," Art. II, 3, it was especially appropriate
for him to exercise his statutory and constitutional au-
thority to. promulgate RCM 1004, because by so doing
he removed arguable Eighth Amendment defects in the
procedures by which Article 118 is implemented and
thereby ensured that it is enforced as contemplated by
Congress.
There is no merit to petitioner's argument that under
separation-of-powers principles Congress alone may prom-
ulgate aggravating factors. This Court has long recog-
nized that it is appropriate for Congress to grant the
President broad authority in areas in which the Constitu-
tion also gives him independent power to act. That prin-
ciple applies with special force with respect to the armed
forces and the President's role as their Commander-in-
Chief, and Congress has a long-standing practice of leav-
ing the regulation of military punishments, including death
when authorized by statute, to the Executive. Nothing in
the Eighth Amendment requires a different conclusion,
because this Court has never construed that provision to
embody its own separation-of-powers doctrine.
B. There is no greater merit to petitioner's claim that
the UCMJ'S grant of authority to the President is not

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10

cabined by constitutionally adequate standards. In enact-
ing Articles 18 and 56, Congress must have contemplated
that the President would exercise his authority to limit
sentences by reference to the considerations that tradi-
tionally have controlled similar exercises of his discretion,
including the needs of military discipline, and the policy
of providing for evenhanded imposition of court-martial
punishments across the country. Article 36 (a ) gives the
President additional guidance by referring him to "prin-
ciples of law * * * generally recognized" by federal dis-
trict courts. Those principles include the Eighth Amend-
ment decisions of this Court and other death penalty
statutes on which the President relied in promulgating
RCM 1004.

ARGUMENT

THE PRESIDENT PROPERLY PROMULGATED RULE
FOR COURTS-MARTIAL 1004 TO LIMIT THE CLASS
OF CASES IN WHICH THE DEATH PENALTY, WHEN
IT OTHERWISE IS EXPRESSLY AUTHORIZED BY
THE UNIFORM CODE OF MILITARY JUSTICE, MAY
BE IMPOSED

The linchpin of the arguments advanced by petitioner
and his amici is the assumption, nowhere demonstrated,
that Furman v. Georgia, 408 U.S. 238 (1972), and its
progeny, rendered Article 118 of the UCMJ, 10 U.S.C.
918, in which Congress expressly authorized the death
penalty for certain murders committed by military per-
sonnel, a nullity. Because of that assumption, petitioner
contends that the President must be deemed to have de-
fined new crimes punishable by death-i. e., to have pre-
scribed "what acts would be punished as criminal offenses
and what the punishment should be for those offenses."
Pet. Br. 6; see also ACLU Br. 7. That assumption, how-
ever, is wrong. See, e.g., Dobbert v. Florida, 432 U.S.
282, 297-298 (1977 ). 4. Furman and its progeny held that

___________________(footnotes)

4 Dobbert rejected the defendant's argument that there "was! no
death penalty `in effect' in Florida" at the time of his crime because

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11

the Eighth Amendment prohibits the imposition of the
death penalty under procedures that create a substantial
risk that it will be inflicted in an arbitrary manner. See
e.g., Lewis V. Jeffers, 497 U.S. 764, 774 ( 1990). Those
cases did not rule unconstitutional Congress's judgment
that death is a lawful punishment for premeditated or
felony murder in the military justice system. 5. Instead,
as the Court of Military Appeals recognized in United
States v. Matthews, 16 M.J. 354 (1983), those cases
require only that appropriate safeguards exist in order for
a death penalty statute to be implemented in a constitu-
tional manner i.e., that the fact-finder's judgment reason-
ably separate the murder committed by the defendant
from the general class of all murders. See, e.g., Tuilaepa
V. California, 114 S. Ct. 2630, 2634-2635 (1994);
Romano V. Oklahoma, 114 S. Ct. 2004, 2009 ( 1994);
Lowenfield v. Phelps, 484 U.S. 231, 244 ( 1988 ). 6.

___________________(footnotes)

Florida had not yet acted to comply with the dictates of Furman.
Dobbert accordingly upheld retroactive application to the defendant
of that State's post-Furman capital sentencing law on the ground
that the changes were merely procedural. 432 U.S. at 296, 297.

5 See Schick v. Reed, 419 U.S. 256, 260, 267 (1974) (expressly
leaving undecided whether Furman analysis applies to the mili-
tary) ; cf. Stanford v. Kentucky, 492 U.S. 361, 372 n.4 (1989)
(citing Article 118 as appropriately informing decision whether
there is a national consensus against execution of underage offend-
ers, thereby apparently assuming that Article 118 remains in
effect) ; Weiss V. United States, 114 S. Ct. 752, 760-761 (1994)
(noting that the constitutional tests and limitations applicable in
the military context may differ from those the Court has developed
for civilian society).

6 While we need not quarrel here with Matthews' limited holding
that the Constitution requires additional findings as to aggravation
in cases brought under Article 118, this Court's subsequent cases
have cast doubt on the court's imposition of that requirement. In
Lowenfield V. Phelps, 484 U.S. 231 (1988), this Court held that the
"narrowing" required by the Eighth Amendment may be inherent
in the definition of the crime and occur at the penalty phase. See
Tuilaepa, 114 S. Ct. at 2634-2635; Romano, 114 S. Ct. at 2009
In enacting Article 118, Congress could reasonably have concluded

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12

Thus, contrary to petitioner's basic submission (Br.
39-43 ), Congress in this case has exercised its constitu-
tional authority to "creat[e] [the] offense[] [and] fix[]
* * * the punishment there for," Kinsella v. Singleton, 361
U.S. 234, 246 (1960); see Solorio v. United States, 483
U.S. 435, 438-439 (1987), by providing in Article 118
that any servicemember guilty of premeditated murder or
felony murder may be sentenced to death. "The statute,
not the [President], fixes the penalty," United States V.
Grinaud, 220 U.S. 506, 522 (1911), and the President,
"in order to administer the law and carry the statute into
effect," did "not go outside of the circle of that which
the [UCMJ] itself ha[s] affirmatively * * * treated as un-
lawful if done." Id. at 518. That power to make the
UCMJ system work in light of judicial rulings and other
changed circumstances was clearly conferred on the
President by the Constitution and by "entirely appropriate
delegations of discretionary authority by Congress."
Skinner V. Mid-America Pipeline Co., 490 U.S. 212, 222
(1989) ("without doubt" Congress may confer upon the
Executive "the authority to prescribe all needful rules
and regulations" for the enforcement of the Internal Rev-
enue Code, "including all rules and regulations as may
be necessary by reason of any alteration of law") (in-
ternal quotation marks omitted).
In addition to his constitutional authority as President,
three specific provisions of the UCM.J make clear that
the President has the power to restrict the class of defend-
ants who may be sentenced to death in the military jus-

___________________(footnotes) 

that those whom the government trains to kill have a special
obligation of restraint that makes their commission of murder
more morally culpable than the general class of homicides com-
mitted by a civilian. Such a breach of trust also impairs the
effectiveness of an essential government function, because it under-
mines public confidence in the armed forces on which the citizenry
depends for its security. Those factors serve to make Article 118
applicable "only to a subclass of defendants convicted of murder."
Tuilaepa, 114 S. Ct. at 2635.

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13

tice system. Article 18, 10 U.S.C. 818, which sets forth
the jurisdiction of general courts-martial, provides that
such courts-martial "may, under such limitations as the
President may prescribe, adjudge any punishment not
forbidden by this chapter, including the penalty of death
when specifically authorized by this chapter." Article
36(a), 10 U.S.C. 836(a), empowers the President to
prescribe "trial[] and post-trial procedures * * * for cases
arising under [the UCMJ] triable in courts-martial" by
regulations that "shall, so far as [the President] consid-
ers practicable, apply the principles of law * * * generally
recognized in the trial of criminal cases in the United
States district courts." And Article 56, 10 U.S.C. 856,
authorizes the President to limit the maximum punish-
ment a court-martial may impose.
Those provisions plainly authorize the President to pro-
vide that fewer than all the defendants whom Congress
has made eligible for the military death penalty may ac-
tually suffer that punishment, by incorporating into the
Rules for Courts-Martial (RCM) the procedures that
this Court's Eighth Amendment cases have upheld as con-
stitutionally sufficient in the civilian context. The Presi-
dent's decision to exercise his constitutional and statutory
authority in that manner not only removed any arguable
Eighth Amendment infirmity in how the military death
penalty is implemented, 7. but also is consistent with Con-
gress's long-standing practice, dating back to the framing
of the Constitution, of confiding similar decisions to the
judgment of the Executive.

A. Nothing In The Constitution Requires That Congress
     Itself  Determine which  Capital Defendants Are
     Executed

Petitioner contends (Br. 7-16, 37, 42-43) that the
Framers of the Constitution gave Congress the exclusive

___________________(footnotes)

7 Significantly, petitioner makes no claim that the aggravating
factors promulgated by the President in RCM 1004 would fail to
satisfy the Eighth Amendment's requirement of "narrowing" if
those factors had been enacted by Congress.

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14

authority to promulgate rules, regulations, and punish-
ments to be applied by courts-martial, that the Framers
never intended "the president's powers to be broad enough
to establish policy or rules for the government and regu-
lation of courts-martial," Br. 10, and that accordingly the
President's exercise of such "legislative" authority in
promulgating RCM 1004 violates the nondelegation doc-
trine and the Eighth Amendment. There is no merit to
those claims, which ignore not only the President's inde-
pendent role in the constitutional scheme but also 200
years of our Nation's history.
1. There is no basis for petitioner's suggestion (Br.
7-8) that, because Article I vests in Congress the au-
thority to make rules for the government of the armed
forces, Congress's ability to seek the aid of the Executive
in this area is subject to special restrictions. See Skinner
V. Mid-America Pipeline Co., 490 U.S. at 220-221 (no
distinction in Article I powers, including power to "raise
and support Armies" or to " `make Rules for the[ir] Gov-
ernment' * * * in terms of the scope and degree of dis-
cretionary authority that Congress may delegate to the
Executive"); see also id. at 222-223. Here, far more
pertinent than the specific head of Article I power in-
voked by Congress is the long-standing principle that the
limits on Congress's ability to confer authority on the
Executive Branch-under any of its Article I powers-
are "less stringent in cases where the entity exercising the
delegated authority itself possesses independent authority
over the subject matter." United States v. Mazurie, 419
U.S. 544, 556-557 ( 1975) (delegation to Indian tribe of
authority to regulate liquor, which gave rise to federal
criminal penalties ); see also United States ex rel. Knauff
v. Shaughnessy, 338 U.S. 537, 542-543 (1950) (immi-
gration); United States v. Chemical Foundation, Inc.,
272 U.S. 1, 12 (1926) (Commander-in-chief power);
Cargo of the Brig Aurora v. United States, 11 U.S. (7
Cranch) 382, 387-388 (1813) (foreign affairs),

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15

That principle is illustrated by United States v. Curtiss-
Wright Export Corp., 299 U.S. 304 ( 1936). In that
case, Congress had given the President authority to pro-
hibit arms sales to warring South American countries,
with whatever exceptions he might prescribe, if he should
conclude that such a prohibition would "contribute to the
re-establishment of peace" there. Id. at 312. That au-
thorization was attacked as an impermissible delegation
of Legislative power that was "controlled by no standard."
Id. at 314-315. Emphasizing the "unbroken legislative
practice * * * almost from the inception of the national
government," id. at 322, which provided for the President
to exercise primary control over matters involving foreign
affairs, this Court rejected that challenge:

  It is important to bear in mind that we are here
dealing not alone with an authority vested in the
President by an exertion of legislative power, but
with such an authority plus the very delicate, plenary
and exclusive power of the President as the sole
organ of the federal government in the field of inter-
national relations * * *.

Id. at 319-320. The Court made the same point in
Knauff, in rejecting an alien's challenge to her exclusion
from the United States pursuant to authority delegated
by statute to the President:

      [T]here is no question of inappropriate delegation
      of legislative power involved here. The exclusion of
      aliens is a fundamental act of sovereignty. The right
      to do so stems not alone from legislative power but
      is inherent in the executive power to control the
      foreign affairs of the nation. * * *
      * * * Normally Congress supplies the conditions
     of the privilege of entry into the United States. But
      because the power of exclusion of aliens is also
      inherent in the executive department of the sovereign,
      Congress may in broad terms authorize the executive
      to exercise the power, e.g., as was done here, for

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16

the best interests of the country during a time of
national emergency.
338 U.S. at 542-543.

The same is true here, because the authority exercised
by the President is "cognate to the conduct by him,"
Panama Refining Co. V. Ryan, 293 U.S. 388, 422
( 1935), of his constitutional duties. "The power of the
executive to establish rules and regulations for the govern-
ment of the army, is undoubted," United States v. Eliason,
41 U.S. (16 Pet.) 291, 301 (1842), because the Con-
stitution "invests the President, as Commander in Chief,
with the power to  * * * carry into effect all laws passed
by Congress for the conduct of war and for the govern-
ment and regulation of the Armed Forces." Ex parte
Quirin, 317 U.S. 1, 26 (1942); see also Kurtz V. Moffitt,
115 U.S. 487, 503 (1885) (army regulations providing
rewards for the capture of deserters "derive their force
from the power of the President as commander-in-chief,
and are binding upon all within the sphere of his legal and
constitutional authority"); William Winthrop, Military
Law and Precedents 31 (2d ed. 1920) (Commander-
in-Chief "may, in the due execution of the laws for the
government of the army, make needful and proper regu-
lations without any legislative authority whatever"); id.
at 27, 59.
The Commander-in-Chief's  constitutional authority easily
encompasses the regulation, within prescribed statutory
bounds, of punishments imposed in the military. As the
Court of Claims noted in a landmark case, in which this
Court later concluded that the President has inherent
power to convene courts-martial in the absence of legisla-
tion expressly prohibiting him from doing so:

     [T]here remains the significant fact in our military
     system that the President is always the commander
     in chief. Congress may increase the Army, or reduce
     the Army, or abolish it altogether; but so long as
     we have a military force Congress can not take away
     from the President the supreme command. * * *

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17
  
* * * The power to command depends upon disci-
pline, and discipline depends upon the power to
punish * * *. If the President has no authority in
matters pertaining to military tribunals unless it be
"expressly" granted by Congress, then Congress * * *
could practically defeat the express declaration of
the Constitution and strip the office of commander
in chief of all real powers of command.

Swaim v. United States, 28 Ct. Cl. 173, 221-222 ( 1893],
aff'd, 165 U.S. 553, 566 ( 1897) ("We have felt con-
strained to, at least briefly, consider the several proposi-
tions urged upon us * * *, though we might well have
contented ourselves with a reference to the able and
elaborate opinion of the Court of Claims.") . 8.
It is especially appropriate for the President to exercise
that power in order to ensure that criminal statutes duly
enacted by Congress in this setting-such as Article 118
of the UCMJ-are enforced in accordance with constitu-
tional guarantees. Article 11 of the Constitution, in addi-
tion to providing that the "President shall be Commander
in Chief of the Army and Navy," Art. II, 2, Cl.1,
imposes on the President the duty to "take Care that the
Laws be faithfully executed," Art. II, 3, and he must
swear or affirm that he will "faithfully execute the Office
* * * and will to the best of [his] Ability, preserve, pro-
tect and defend the Constitution of the United States."
Art. II, 1, Cl. 8. See also In re Neagle, 135 U.S. 1, 63-

___________________(footnotes)

8  In affirming, this Court also quoted at length from an 1835
report by the Senate Judiciary Committee. That report noted that
the 1806 Articles of War, in expressly authorizing certain named
officers to convene courts-martial, did not intend to "exclude the
inherent power residing in the President of the United States
under the Constitution. * * [Those articles do not in any
manner control or restrain the commander-in-chief of the army
from exercising the Power which the committee think, in the
absence of legislation expressly prohibitive, resides in him from
the very nature of his office. and which, as has been stated, has
always been exercised." 165 U.S. at 557-558.

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18

68 ( 1890); Rostker v. Goldberg, 453 U.S. 57, 64 ( 1981)
("we must have due regard to the fact that this Court is
not exercising a primary judgment but is sitting in judg-
ment upon those who also have taken the oath to observe
the Constitution and who have the responsibility for carry-
ing on government'"). Those constitutional duties surely
enable the President to use his authority as Commander-
in-Chief, and all authority conferred upon him by statute,
to eliminate any procedural infirmities in the administration
of the punitive articles of the UCMJ, so as to allow for
those articles to be "faithfully executed" and to retain the
force' Congress intended them to have in the governance
of the armed forces.
Indeed, the appropriateness of Congress's entrusting the
`Commander-in-Chief, in light of his special place in the
constitutional scheme, with special duties with respect to
the armed forces was recognized by this Court as early
as 1827, in Martin V. Mott, 25 U.S. (12 Wheat. ) 19.
The Court rejected Mott's challenge to the jurisdiction of
the court-martial that had convicted him for failing to
serve in the New York militia, which had been called into
`service by the President during the War of 1812 in accord-
ance with a statute authorizing him to do so when he
"judge[d] [it] necessary to repel [an] invasion." Id. at 31.
Speaking through Justice Story, the Court rejected (id.
at 32) Mott's attempt to apply to "the delegation and
exercise of this power" the "same principles * * * as
might be applied to the humblest officer in the govern-
ment":

       The power itself is confided to the executive * * *,
        to him who is, by the constitution, "the commander-
        in-chief of the militia, when called into the actual
        service of the United States," whose duty it is to
        "take care that the laws be faithfully executed," and
        whose responsibility y for an honest discharge of his
        official obligations is secured by the highest sanc-
         tions. * * * It is no answer, that such a power may
         be abused, for there is no power which is not suscepti-

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19

     ble of abuse. The remedy for this, as well as for all
     other official misconduct, if it should occur, is to
     be found in the constitution itself. In a free govern-
     ment, the danger must be remote, since, in addition
     to the high qualities which the executive must be pre-
     sumed to possess, * * * the frequency of elections,
     and the watchfulness of the representatives of the
     nation, carry with them all the checks which can be
     useful to guard against usurpation or wanton tyranny.

Id. at 31-32. 9.

2. That the President may exercise the type of author-
ity at issue here is also confirmed by Congress's long-
standing practice, from the founding of our Government,
of deferring to the President (or his subordinate, the
court-martial ) on questions of military discipline and pun-
ishment, including the circumstances that warrant the
penalty of death when otherwise authorized by statute.
"This Court has repeatedly laid down the principle that
a contemporaneous legislative exposition of the Constitu-
tion when the founders of our Government and framers
of our Constitution were actively participating in public
affairs, long acquiesced in, fixes the construction to be
given its provisions." J. W. Hampton, Jr. & Co. V. United
States, 276 U.S. 394, 412 ( 1928); see also Curtiss-Wright
Export Corp., 299 U.S. at 327-329; Stoutenburgh v. Hen-
nick, 129 U.S. 141, 147 ( 1889) (upholding grant of
lawmaking power to District of Columbia since "the cre-

___________________(footnotes)

9  Justice Story went on to reject Mott's claim-which recalls
petitioner's argument that the President's power should be more
circumscribed in peacetime that he should not have been tried
by court-martial "three years and more after the war was con-
cluded, and in a time of profound peace." 25 U.S. (12 Wheat.)  at
37. In words equally applicable to petitioner's effort to qualify the
unrestricted language of the UCMJ, Justice Story noted that the
power conferred by the statute at issue was not "in any shape
dependent upon the fact of war or peace."  Ibid.

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20

ation of municipalities exercising local self-government"
is sanctioned by "immemorial practice") . 10.
At the inception of the American Revolution, the Brit-
ish Articles of War then in effect defined offenses subject
to trial by court-martial but directed that, in the case of
most offenses, the defendant be punished "according to
the Nature of his Offense at the Discretion of the Court-
martial." See British Articles of War of 1765, Section
VI, Art. II, reprinted in Winthrop, supra, App. VII at 934
(absence without leave). The Second Continental Con-
gress adopted a similar system for imposing punishment
following a court-martial conviction. Thus, the American
Articles of War of 1775, which were based upon the
British Articles, see Manual For Courts-Martial, U.S.
Army 1917 at ix, likewise defined offenses subject to
trial by court-martial but vested the court with almost
unfettered discretion in fixing punishment. 11. The follow-
ing year, when the Continental Congress adopted a new
set of articles, it again afforded to courts-martial similar
discretion in determining an appropriate punishment. 12.
Under the Articles of Confederation, the Congress con-
tinued this practice when, in 1786, it adopted "Rules and
Articles for the administration of justice in the holding
of courts-martial." See, e.g., American Articles of War of

___________________(footnotes) 
               
10 See also Mistretta  v. United States, 488 U.S. 361, "390 (1989); 
Bowsher v. Synar, 478 U.S. 714, 723-724 (1986) ; Marsh v. Cham-
bers, 463 U.S. 783, '790 (1983) ; Walz V. Tax Comm'n, 397 U.S. 664,
678 (1970) ; Field v. Clark, 143 U.S. 649, 691 (1892).

11 See, e.g., American Articles of War of 1775, Art. VII, reprinted
in Winthrop, .supra, App. IX at 954 (defendant, upon conviction for
striking or disobeying superior officer, "shall suffer such punish-
ment as shall, according to the nature of his offense, be ordered by
the sentence of a general court-martial").

12 See, e.g., American Articles of War of 1776, Section VI, Art. 1.
reprinted in Winthrop, supra, App. X at 963 (upon conviction for
desertion, defendant "shall suffer death, or such other punishment
as by a court-martial shall be inflicted").

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21

1786, Art. 12, reprinted in Winthrop, supra, App. XI at
973 (persons causing riots in order to disturb court-
martial proceedings to be "punished at the discretion of
the said court-martial").
The adoption of the Constitution and the Bill of Rights
did not alter the antecedent understanding concerning the
proper allocation of sentencing responsibility in courts-
martial between the Congress and the Executive. While
Secretary of War Knox noted in 1789 "that the change in
the Government of the United States will require that the
articles of war be revised and adapted to the constitu-
tion," Frederick Bernays Wiener, Courts-Martial and the
Bill of Rights: The Original Practice Z, 72 Harv. L. Rev.
1, 8 (1958) (Wiener I) (quoting I American State Papers
Military Affairs 6 (Lowrie & Clarke eels., 1832)), the
First Congress evidently did not conclude that any sig-
nificant revisions would be required, because it continued
the Continental Articles of War without change in 1789,
see Act of Sept. 29, 1789, ch. 25, 4, 1 Stat. 96, and
simply reenacted them again in 1790 "as far as [they]
may be applicable to the constitution of the United
States." Act of Apr. 30, 1790, ch. 10, 13, 1 Stat.
121; see also Act of July 1, 1797, ch. 7,  8, 1 Stat. 525
(same for navy).
Congress continued to rely on established military law
in new articles for the government of the navy, which
were adopted in 1799. Those articles "follow[ed] the
Continental articles closely," were adopted "without a
word of recorded debate," Wiener I, supra, 72 Harv. L.
Rev. at 14, and provided categorically that "[a]11 murder
shall be punished with death," Act of Mar. 2, 1799, ch.
24,1, Art. 29, 1 Stat. 712-a punishment that was
made discretionary one year later. 13. Indeed, no significant

___________________(footnotes)

13 In 1800, Congress adopted new rules for the government of
the navy, which authorized, but did not require, the death penalty
in cases of murder committed "without the territorial jurisdiction"

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22

debate on the question of military punishments occurred
until 1805, when Congress undertook a more detailed
review and revision of rules for the government of the
army in order to "adapt[] [them] to the provisions under
the present government." 15 Annals of Cong. 263 (1805)
(statement of Rep. Varnum); see also Wiener I, supra,
72  Harv. L. Rev. at 8.
During debate in the House of Representatives the fol-
lowing year, Representative Campbell of Tennessee re-
peatedly moved to strike the death penalty as a punish-
ment that could permissibly be imposed by courts-martial.
According to the Annals of Congress:

  In support of this amendment, Mr. Campbell rep-
robated the idea of the lives of citizens being in the
power of a court martial. He compared soldiers to
mere machines, from the severity of the military law;
  he said almost every article in the bill was stained
  with blood; he drew a parallel between them, and
  the civil penal laws; and that when men know how
  small offenses subjected them to death, they would
  be deterred from or disgusted in serving their
  country.

15 Annals of Cong. 326 (1806); see Kinsella, 361 U.S.
at 248-249. That proposal was "strenuously opposed"
(15 Annals of Cong., 326 (1806)) by other members of
the House, who were veterans of the Revolutionary War.
See Wiener I, supra, 72 Harv. L. Rev. at 20. Those
members

___________________(footnotes)

of the United States. See Act of Apr. 23, 1800, ch. 33, 1, Art.
XXI, 2 Stat. 48. Other provisions of the 1800 articles, however,
appeared to incorporate that punishment for offenses committed in
the United States. See Art. XVII, 2 Stat. 47 ("All offenses com-
mitted by persons belonging to the navy while on shore, shall be
punished in the same manner as if they had been committed at
sea-") ; Art. XXXII, 2 Stat. 49 ("All crimes committed by persons
belonging to the navy, which are not specified in the foregoing
articles, shall be punished according to the laws and customs in
such cases at sea.").

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23

represented the necessity of the bill standing as it
had hitherto done in this respect. They drew a pic-
ture of the Army without discipline, where every
soldier might think himself at his own disposal-f
an army being ordered to attack the enemy, and an
officer refusing, and drawing his sword on his com-
manding officer. The necessity of a code of laws
for the military differing from the civil law was
demonstrated; and having, by the law as it stands,
gone through the Revolutionary war with success,
and in peace found no ill consequence arising there-
from, they thought it neither prudent nor safe to
adopt the amendment.

15 Annals of Cong. 326-327 ( 1806) . 14.  " Representative
Campbell's motion lost. Id. at 327.
Six days later, when the proposed articles of war were
again read, Mr. Campbell "moved to recommit the bill
to a select committee, with the view of modifying it so as
to render more definite the powers of courts martial, and
particularly that the power of inflicting the punishment of
death should be more guardedly bestowed." 15 Annals
of Cong. 338 ( 1806). That motion, too, was rejected,
and the bill passed as proposed. Ibid. In the Senate, the
only controversy as to punishment resulted from the
House's reduction of the number of lashes allowable for
certain infractions. The House view prevailed, and the
Senate approved the bill as well. President Jefferson signed
it on April 10, 1806. See Wiener I, supra, 72 Harv. L.

___________________(footnotes)

14 The  principal spokesman on behalf of the opponents of Repre-
sentative Campbell's amendment was Representative Tallmadge of
Connecticut, who had been a prominent officer in the Continental
Army and a confidant of general Washington. See Dictionary of
American Biography 284-285 (1936). Representative Tallmadge
"brought forward * * * instances of danger, when soldiers were
not subject to severe laws. Soldiers, he observed, were a description
of men that must be ruled with severity-and though officers were
invested with this authority, they were ever careful in exerting it."
15 Annals of Cong. 327 (1806).

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24

Rev. at 21-22. In the end, the new Articles of War-
which were intended to adapt military law to the dictates
of the Constitution, and which largely remained substan-
tively unchanged until 1916, see id. at 19 & n. 138-
continued the pre-constitutional practice of defining of-
fenses but affording to courts-martial almost unfettered
latitude in fixing punishment, including death where au-
thorized by statute. 15.
In 1890, Congress initiated the practice of directing
the President, rather than the court-martial itself, to fix
the maximum allowable punishment whenever the sen-
tence was left to the discretion of the court-martial by
the Articles of War. See Act of Sept. 27, 1890, ch. 998,
26 Stat. 491. The House Committee Report that accom-
panied the draft legislation explained that "[a]t the pres-
ent time courts-martial sitting in different parts of the
country, without a common superior, adjudge and impose
very unequal penalties for the same offense, and often, it
is believed, excessive penal ties." H.R. Rep. No. 1051,
51st Cong., 1st Sess. 1 ( 1890). In urging the legislation's
enactment, the Committee added:

  In such offenses the committee believe that there
should be some common standard, and think it very
fit that the Commander-in-Chief should have the
power to prescribe the limit.

Ibid.; see also Act of Aug. 29, 1916, ch. 418, 3, 39
Stat. 657 (Art. 45) ("Whenever the punishment for a

___________________(footnotes)

15 See Act of Apr. 10, 1806, ch. 20, 1, Art. 7, 2 Stat. 360 (upon
conviction of mutiny, defendant "shall suffer death, or such other
punishment as by a court martial shall be inflicted") ; Art. 9, 2
Stat. 361 (same-striking or disobeying a superior) ; Art. 20, 2
Stat. 362 (same-desertion j. To the same effect were the American
Articles of War of 1874, which made only minor changes to the
1806 enactment, see Wiener I, supra, 72 Harv. L. Rev. at 19 n. 138.
See Winthrop, Supra, App. XIII at 989 (Arts. 41-46) (each provid-
ing that the defendant "shall suffer death, or such other punish-
ment as a court-martial may direct").

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25

crime or offense made punishable by these "articles is left
to the discretion of the court-martial, the punishment shall
not, in time of peace, exceed such limit or limits as the
President may from time to time prescribe") . 16.  The Presi-
dent's authority to limit punishments extended to the
crimes of murder and rape, which were triable by court-
martial-except when they were committed within the
United States in time of peace-and which under Article
92 of the 1916 Articles of War were punishable by "death
or imprisonment for life, as a court-martial may direct."
39 Stat. 664.
In enacting the UCMJ in 1950, Congress repealed the
statutory limitations (as to geography and the existence
of war) on a court-martial's jurisdiction to try service-
members for murder, see Art. 118, 10 U.S.C. 918, and it
continued its long-standing practice of granting the Presi-
dent discretion to establish, within statutory limits, appro-
priate sentences and sentencing procedures in courts-
martial, see Arts. 18 and 56, 10 U.S.C. 818 and 856.
The Rules for Courts Martial, in reliance on that author-
it y, limit the permissible punishments in detail for capital
and noncapital offenses alike. 17. See United States ex rel.

___________________(footnotes)

16 Pursuant to the authority conferred by the 1890 Act, as re-
enacted in 1916, President Wilson issued an Executive Order on
December 15, 1916, prescribing in detail the maximum sentences
(including dishonorable discharge, periods of confinement at hard
labor, and forfeiture of pay) for numerous offenses, often calibrated
according to the circumstances of the particular offense. See
Manual for Courts-Martial, U.S. Army 1917 at 161-169 (reprinting
Executive Order). The 1917 Manual also included further stand-
ards for sentencing within the maxima prescribed by the President,
taking into account prior convictions, the presence or absence of
extenuating or aggravating circumstances, and the individual char-
acteristics of the accused. Id. at 159-160 (342, 343).

17 The President has exercised his authority to regulate punish-
ments imposed by courts-martial by specifying the types of punish-
ment that may be imposed, RCM 1003, and by providing a maximum
punishment for each offense within the maxima established by

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26

Toth v. Quarles, 350 U.S. 11, 20 (1955) ("punishment
can be raised or lowered at the will of the President").
In so doing, those rules do nothing more than continue
an unbroken practice that predates the Constitution itself,
and that shows that Congress has always understood the
determination of an appropriate court-martial sentence,
within maxima established by statute, properly to rest
within the competence of the President and his subordi-
nate officials who are the most directly responsible for
the maintenance of discipline within the armed forces.
Compare Mistretta v. United States, 488 U.S. 361, 395
(1989).
3. Petitioner and his amici contend, however, that the
Framers specifically intended that the Constitution would
preclude the President from playing that role in "peace-
time" with respect to "civilian" capital offenses. Pet. Br.
13-16; Navy Br. 7-12. That attempt to construct a histor-
ical argument to support petitioner's proposed rule is
deeply flawed and anachronistic in several respects.
The Fifth Amendment categorically exempts cases
"arising in the land or naval forces" from its requirement
of a grand jury indictment in every "capital or otherwise
infamous crime," which persuasively demonstrates that the
Framers contemplated that capital cases of W descrip-
tions-not merely those involving "military" offenses-
could be adjudged by the military justice system. The
Fifth Amendment also demonstrates that the Framers well
knew how to make the existence of war or peace relevant'
to a servicemember's constitutional protections, because it
states that a member of the militia may be deprived of
his right to a grand jury indictment only "when [the
militia is] in actual service in time of War or public
danger." This Court has repeatedly rejected attempts to

___________________(footnotes)

Congress. See .Manual Part IV paragraph (e) for each offense &
App. 12 (Maximum Punishment Chart). In addition, in some cases,
the President has defined aggravating circumstances that warrant
increased punishment. See, e.g., RCM 1003 (d).

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27

extend to the regular army and navy that "wartime"
limitation. See, e.g., Johnson v. Sayre  , 158 U.S. 109,
114-115 (1895); Ex parte Mason, 105 U.S. 696, 700-
701 (1881) 18.   Petitioner's attempt to impute to the
Framers a special concern with shielding soldiers from
the punishment of death is further belied by the legis-
lative debates on the 1806 Articles of War, and in the end
completely disregards the fact that significant constitu-
tional restrictions on the permissibility of the death pen-
alty even with respect to civilians are a relatively recent
development in our history. See, e.g., McGautha v. Cali-
fornia, 402 U.S. 183,207 (1971 ).
In addition, petitioner's emphasis on the "civilian" na-
ture of his capital offense is nothing but an attempt to
revive the "service connection" requirement that was re-
jected by the Court in Solorio, supra; accord Smith V.
Whitney, 116 U.S. 167, 183-184 ( 1886) ("Under every
system of military law" court-martial jurisdiction extends
to punishable acts, "whether those acts are done in the
performance of military duties, or in a civil position, or in
a social relation, or in private business"). According to
petitioner, that requirement makes sense in this context
because Congress decided only relatively recently to sub-
ject servicemembers to court-martial for capital "civilian"
offenses. Petitioner's portrayal of history is at least sub-
ject to significant question, because the regulations that
Congress adopted for the navy in 1800, while appearing
to limit the death penalty to murders committed outside
the United States, also provided that "[a]ll offences com-
mited by persons belonging to the navy while on shore,
shall be punished in the same manner as if they had been
committed at sea." Act of Apr. 23, 1800, ch. 33, 1,

___________________(footnotes)

18 See also Martin v. Mott, 25 U.S.  (12 Wheat.) at 37-38 ("The
act of 1795 is not confined in its operation to cases * * * in times
of public war. * * * It is sufficient for us to Say, that there is no
such limitation in the act itself") ; 15 Annals of Cong. 326 (1806)
(death penalty provision should remain because "in peace [we
have] found no ill consequence arising therefrom").

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28

Art. XVII, 2 Stat. 47. As this Court noted in Solorio,
"[a]mong the offenses punishable if committed at sea were
murder, embezzlement, and theft," and "[t]his broad grant
of jurisdiction to naval courts-martial would suggest that
limitations on the power of other military tribunals during
this period were the result of legislative choice rather than
want of constitutional power." 483 U.S. at 445 n. 11. In
any event, even if Congress did not authorize early courts-
martial to impose capital punishment for a broader range
of offenses, that would be extremely weak evidence of a
lack of power to do so. See O'Callahan v. Parker, 395
U.S. 258, 280 n.6 (1969) (Harlan, J., dissenting) ("On
such a theory, for example, Congress could not have per-
missibly waited, as it did, until 1875 to confer federal-
question jurisdiction on the district courts; the present-day
exercise of this jurisdiction would be unconstitutional")
(citations omitted).
Petitioner's argument also overlooks the fact that the
early Congresses were creating a system of justice for a
force that in 1789 numbered only a few hundred soldiers,
and which remained under 3,700 strong when the Bill of
Rights was adopted. See Wiener I, supra, 72 Harv. L.
Rev. at 8-9; O'Callahan, 395 U.S. at 280 (Harlan, J.,
dissenting). Murders of civilians by members of such a
small force would not have been a major problem, and
could conveniently be dealt with by requiring commanding
officers, on pain of being cashiered, to deliver the offender
to state authorities. See Wiener I, supra, 72 Harv. L. Rev.
at 10-11; see also Caldwell v. Parker, 252 U.S. 376, 381-
383 (1920) (discussing evolution of requirement). With-
out again lapsing into anachronism, petitioner cannot seri-
ously suggest that Congress's choice of that solution
reflected any special concern for limiting the soldier's
punishment, or preserving to him the benefit of any spe-
cific provision of the Bill of Rights. Not only was the
death penalty routinely inflicted by the civil courts of the
time, but also the Bill of Rights was not made applicable

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29

to the States until after the Fourteenth Amendment was
adopted nearly one hundred years later.
Petitioner can derive no greater support from case law
than from history, because the cases on which he relies
(Br.9-10) do not bear on the President's authority to
regulate court-martial proceedings involving members of
the armed forces. In Youngstown Sheet & Tube Co. v.
Sawyer, 343 U.S. 579 ( 1952), the question was whether,
as Commander-in-Chief, the President could seize private
property, when Congress had impliedly prohibited that
action in the Taft-Hartley Act. See id. at 602 (Frank-
furter, J., concurring); id. at 634, 639 (Jackson, J., con-
curring); id. at 655, 660 (Burton, J., concurring); id. at
660, 662 (Clark, J., concurring in the judgment). Simi-
larly, Ex parte Milligan, 71 U.S. (4 Wall. ) 2, 121
(1866), involved the authority of the President to direct
the trial of a civilian by a military commission in a juris-
diction where the courts remained open. And Reid v.
Covert, 354 U.S. 1 ( 1957), also involved the authority
of courts-martial to try civilians for criminal offenses. Id.
at 33 (plurality opinion) (noting "the deeply rooted and
ancient opposition in this country to the extension of
military control over civilians;' and citing, inter alia,
Milligan, supra). Reid recognized that, with respect to
members of the armed forces, "Congress has given the
President broad discretion to provide the rules governing
military trials." Id. at 38 (plurality opinion) (citing Art.
36, UCMJ, now codified at 10 U.S.C. 836). Thus, "[i]n
each of [those] cases * * * [t]he constitutional question
presented turned on the status of the persons as to whom
the military asserted its power." Schlesinger v. Council-
man, 420 U.S. 738, 759 ( 1975). For that reason, those
cases are inapposite here.
4. Petitioner is also wrong to contend that the Eighth
Amendment independently requires that a legislature, as
opposed to any other organ of government, prescribe.
aggravating factors in cases where the death penalty is
otherwise authorized by statute. That suggestion, which

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30

would transform the Eighth Amendment into a separation-
of-powers rule applicable to the States, finds no support
in this Court's cases. Cf. Dreyer v. Illinois, 187 U.S. 71,
83-84 ( 1902) (due process does not require separation of
state powers).
Petitioner observes (Br. 19-20; see also ACLU Br.
3-4) that this Court's cases addressing the adequacy of
state capital sentencing schemes have, on several occa-
sions, referred to "legislative criteria" limiting the death
penalty for certain crimes. See Zant v. Stephens, 462 U.S.
862. 877 n.15 ( 1983) (citing Gregg v. Georgia, 428
U.S. 153, 175, 184 ( 1976) (plurality opinion)). Those
decisions, however, merely reflect this Court's ordinary
practice of affording some deference to judgments that
legislatures in fact have made. See, e.g., Gregg, 428 U.S.
at 184; see id. at 175 & n.20. They cannot fairly be read
to stand for the proposition that the Eighth Amendment
requires that legislatures make such judgments. Indeed,
this Court has repeatedly recognized that aggravating
factors may be "legislative or court-imposed." Zant, 462
U.S. at 880; see also Proffitt v. Florida, 428 U.S. 242,
255-256 ( 1976) (plurality opinion) (state courts can
narrow vague statutory factor so as to "provide[ ][ ]ade-
quate guidance to those charged with the duty of recom-
mending or imposing sentences in capital cases") . 19.  This
Court's cases therefore provide a complete answer to peti-
tioner's novel attempt to transform the Eighth Amendment

___________________(footnotes)

19 See, e.g., Arave v. Creech, 113 S. Ct. 1534, 1541 (1993) (noting
that state supreme court had adopted a limiting construction and
"we believe that construction meets constitutional requirements") ;
Walton V. Arizona, 497 U.S. 639, 654 (1990) ("[T]he Arizona
Supreme Court has sought to give substance to the operative terms
['especially heinous, cruel or depraved'], and we find that its con-
struction meets constitutional requirements"; Maynard v, Cart-
wright, 486 U.S. .356, 360 (1985) (noting that state court could
have adopted narrowing requirement to validate otherwise vague
aggravating circumstance but failed to do SO) ; Jurek v. Texas, 428
U.S. 262, 272 (1976) [plurality opinion) (same) ; Godfrey V.
Georgia, 446 U.S. 420, 428-429 (1980) (plurality opinion).

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31

into a rule for the allocation of authority among branches
of the state and federal governments.
5. Petitioner suggests that a different result should ob-
tain here because vesting in the President the authority to
specify aggravating factors in military capital cases un-
constitutionally unites the power to legislate, prosecute,
and sentence in officials of one Branch. Pet. Br. 48-49;
see also Public Citizen Br. 28-29; Navy Br. 17-19. As we
have explained, however, it is Congress that has legislated,
by making murder a criminal offense, authorizing the
death penalty for it, and entrusting the implementation of
military punishments to the President. In any event, peti-
tioner's assertion, by itself, adds nothing to his claim that
Congress may not assign the authority at issue here to the
Executive at all, because, if petitioner is wrong on that
claim, this Court's cases make clear that the separation-
of-powers doctrine does not speak "to the manner in
which authority is parceled out within a single Branch."
Touby V. United States, 500 U.S. 160, 167-168 ( 1991)
(rejecting claim that Congress could not assign the power
to outlaw certain drugs to the Attorney General, rather
than the Secretary of Health and Human Services, "be-
cause [the Attorney General] wields the power to prose-
cute crimes" ).
Moreover, precisely because the military justice system
is at issue, those arguments have little force here. As this
Court has frequently noted, "[t]he military is a specialized
society separate from civilian society with laws and tradi-
tions of its own [developed] during its long history[,]
* * * [and whose] primary business * * * [is] to fight or
be ready to tight wars should the occasion arise." Coun-
cilman, 420 U.S. at 757 (internal quotation marks ,
omitted); see Goldman v. Weinberger, 475 U.S. 503, 506-
507 ( 1986); Parker V. Levy, 417 U.S. 733, 743 ( 1974);
Quarles, 350 U.S. at 17; Orloff V. Willoughby, 345 U.S.
83, 94 ( 1953); accord In re Grimley, 137 U.S. 147, 151
( 1890). Because of the military's unique role in our
society, its system of justice has always to some extent

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32

reflected the sharing of functions that petitioner decries.
See, e.g., Runkle v. United States, 122 U.S. 543, 557
(1887 ) (President's approval of court-martial sentence "is
judicial in its character"); see generally Clinton Rossiter,
The Supreme Court and the Commander in Chief 102-
103 (1976) ("The President is the fountainhead of mili-
tary justice"). That is a reflection of the fact that military
justice and punishment are aspects of military discipline,
which always has been understood to flow from the Presi-
dent's role as Commander-in-Chief. See Swaim V. United
States, 28 Ct. C1. at 221-222. To read into the Constitu-
tion at this late date a requirement that those powers be
fully distributed among different branches of government,
"[o]ne must ignore history, tradition, and practice for
[more than] two centuries." Middendorf V. Henry, 425
U.S. 25, 50 ( 1976) (Powell, J., concurring); see also
Weiss v. United States, 114 S. Ct. 752, 761-762 (1994).
More fundamentally, courts-martial are Article I courts,
see Weiss, 114 S. Ct. at 760 (holding that the Constitu-
tion does not require that military judges have a fixed
term of office); Parisi V. Davidson, 405 U.S. 34, 41 &
n.7 ( 1972); Dynes v. Hoover, 61 U.S. (20 How. ) 65,
79 (1858), and for that reason they not only are sub-
ordinate to the President's role as Commander-in-Chief
but are also subject to controls prescribed by Congress.
In the UCMJ, Congress tempered the historical practice
of leaving the infliction of punishment to the Executive
by providing significant safeguards for servicemembers.
Sentencing decisions in specific cases are not made by the
President, but are left to servicemembers who are pro-
tected against improper influence or retaliation.  20 See

___________________(footnotes)

20 Moreover, while the President ultimately is responsible for
promulgating and amending provisions of the Manual, the process
by which such amendments are issued is subject to significant
internal constraint. Cf. Mistretta, 488 U.S. at 303-304. The Secre-
tary of Defense must review the manual annually and recommend
appropriate amendments. See Exec. Order No. 12,473 (Apr. 13,
1984), 49 Fed. Reg. 17,152 (1984), as amended by Exec. Order No.

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33

Weiss, 114 S. Ct. at 762 (detailing statutory safeguards
against improper influence). The President functions only
as an additional safeguard, because no sentence of death
imposed by a court-martial may be executed unless he
subsequently approves it. See Art. 71, UCMJ, 10 U.S.C.
871. In addition, Article 51 provides that panel members
must vote by secret written ballot, and Mi1itary Rule of
Evidence 606 (b) permits court-martial members to be
questioned on "whether there was unlawful command in-
fluence," and that information may be used to impeach
the verdict. See Pet. App. 17a-18a. Finally, as this Court
noted in Weiss, "[t]he entire system * * * is overseen by
the Court of Military Appeals, which is composed of
civilian judges * * *. That Court has demonstrated its
vigilance in checking any attempts to exert improper in-
fluence." 114 S. Ct. at 762. Thus, although the authority
to promulgate aggravating factors is vested in the Presi-
dent, his "powers are not united with the powers of the
[sentencer] in a way that has meaning for separation-
of-powers analysis." See Mistretta, 488 U.S. at 393.
In sum, contrary to petitioner's contention, no prin-
ciple of constitutional law heretofore recognized by this
Court requires that Congress itself enact aggravating

___________________(footnotes)

12,484 (July 13, 1984), 49 Fed, Reg. 28,825 (1984). In turn, the
Secretary has established the Joint Service Committee on Military
Justice, consisting of one representative from the Offices of the
Judge Advocates-General of each of the armed forces and the Chief
Counsel of the Coast Guard. See DOD Directive No. 5500.17 (Jan.
23, 1985). That Committee reviews the Manual each year to ensure
that it reflects current military practice and judicial precedent.
DOD Directive No. 5500.17, para. (d). Unless expressly exempted
by the Secretary, changes proposed by the Committee must be
published in the Federal Register for notice and comment and at
least 75 days allowed for such comment. See 47 Fed. Reg. 3401
(1982) ; DOD Directive No. 5500.17, para. (e) (3). Following the
notice and comment period, the DOD General Counsel must submit
the Joint Service Committee's report to both the Office of Manage-
ment and Budget and the Department of Justice for review and
approval before it can be transmitted to the President for final
action. See Exec. Order No. 11,030, 27 Fed. Reg. 5847 (1962).

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34

factors to narrow the class of defendants who may be sen-
tenced to the death penalty that Congress expressly au-
thorized in Article 118 of the UCMJ. From the earliest
days of the Republic, Congress not only has authorized
courts-martial to impose capital punishment, but has left
to their or the President's discretion the circumstances
when that punishment should be imposed.

B. The UCMJ Authorizes Adoption Of RCM 1004 And
  Provides Constitutionally Adequate Standards For
  Doing So

Petitioner contends (Br. 16-27; see also ACLU Br. 6-
10; Public Citizen Br. 9-21) that even if the Constitution
does not always require that Congress prescribe aggra-
vating factors in capital cases, Congress has not in fact
authorized the President to do so or, if it has, Congress
failed to prescribe constitutionally adequate standards to
guide or limit the exercise of the President's judgment.
There is no merit to those claims.
1. At the outset, petitioner is wrong to maintain (Br.
21; see ACLU Br. 7; Public Citizen Br. 10, 12; Navy
Br. 14) that Articles 18, 36, and 56 of the UCMJ cannot
be read to delegate to the President any authority to es-
tablish aggravating factors in capital cases, because their
enactment substantially predated Furman. The question
is not whether Congress foresaw this particular applica-
iton of those UCMJ articles, but whether RCM 1004
comes within their plain language and general purpose-
i.e., to give the President flexibility to limit which punish-
ments may be imposed by courts-martial and authority to
ensure that the military justice system, as enacted by
Congress, works. It is not the law that a statute can have
no effect that was not specifically contemplated by the
Congress that enacted it. See Smith v. United States, 113
S. Ct. 2050, 2059 (1993) (Congress may have "had in
mind a more obvious" application of the statute "but the
language * * * is not so limited; nor can we imagine any
reason why Congress would not have wished its language

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35

to cover this situation") (internal brackets omitted);
Sedima, S.P.R.L. V. Imrex Co., 473 U.S. 479, 500
(1985); see also Moskal v. United States, 498 U.S. 103,
111 ( 1990) ("This Court has never required that every
permissible application of a statute be expressly referred
to in its legislative history").
Articles 18 and 56 of the UCMJ could not be plainer
in scope, and together they grant the President authority
to limit punishments otherwise authorized by the UCMJ.
Article 18 states that courts-martial may "adjudge any
punishment not forbidden by [the UCMJ]''-specifically
"including the penalty of death when specifically author-
ized by [the UCMJ]''-"under such limitations as the
President may prescribe." 10 U.S.C. 818. Article 56
similarly provides that punishment may not "exceed such
limits as the President may prescribe for that offense."
10 U.S.C. 856. article 118 expressly authorizes a court-
martial to sentence the defendant to death or life im-
prisonment in cases of premeditated murder or felony
murder. It is therefore plainly within the scope of Articles
18 and 56 for the President to "limit" the availability of
the death penalty under Article 118 only to those cases,
like petitioner's, that involve some form of aggravated
conduct. 21.

___________________(footnotes)

21 It is difficult to understand petitioner's conclusory assertion
that Articles 18 and 56 "are irrelevant to this case," because,
" [l]ogically, no `limit' may be set on a penalty of death." Br. 18.
If petitioner means to suggest that such authority may be exercised
only on a case-by-case basis, and that the death penalty cannot be
limited in any one case, his argument overlooks the origins of the
President's authority to "limit" punishments. Articles 18 and 66
were meant to standardize punishments across the country, see
H.R. Rep. No. 1051, supra, at 1, and the President has long exer-
cised that authority with respect to classes of cases. See, e.g.,
Carter V. McClaughry, 138 U.S. 365, 382 (1902) (discussing 1891
use of authority to limit jail terms for enlisted men, but not for
commissioned officers). Indeed, the logical implication of petition-
er's argument is that the authority to "limit" has no application

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36

An additional basis for such authority is Article 36(a)
of the UCMJ, which provides that the President may
prescribe "[pretrial, trial, and post-trial procedures" in
all "cases arising under [the UCMJ] triable in courts-
martial." 10 U.S.C. 836(a). Petitioner and his amici
maintain (Pet. Br. 18-21; ACLU Br. 8-10; Public Citizen
Br. 13-15) that Article 36 cannot support RCM 1004,
because aggravating factors in capital cases are not mat-
ters of "procedure" but are more properly classified as
"substantive." ACLU Br. 9. 22.  Apart from the difficulty
of reconciling that position with Dobbert V. Florida,
supra, 23. Congress has clearly expressed its intention that
the phrase "[pretrial, trial, and post-trial procedures"' in
Article 36(a) be broadly construed. Indeed, Congress
amended Article 36 in 1979 to disapprove statements of
the Court of Military Appeals to the effect that Article
36, as it then read, narrowly confined the President's au-

___________________(footnotes)

whatever with respect to capital cases, a position that renders
superfluous Article 18's express inclusion of capital cases within its
scope,

22 The ACLU argues (ACLU Br. 8, 10-11) that aggravating
factors in capital cases are not only matters of substance, they
"define" or are "elements of [the] crime" and must therefore be
articulated by the legislature. That is wrong. "Aggravating cir-
cumstances are not separate penalties or offenses, but are `standards
to guide the making of [the] choice' between the alternative
verdicts of death and life imprisonment." Walton, 497 U.S. at 648
(quoting Poland v. Arizona, 476 U.S. 147, 156 (1986)) ; see also
Lewis, 497 U.S. at 782 (same).

23 Dobbert held that, for purposes of the Ex Post Facto Clause
of the Constitution, U.S. Const. Art. I 9, Cl. 3, a capital sentenc-
ing mechanism was "clearly procedural" when it "simply altered
the methods employed in determining whether the death penalty
was to be imposed" and effected "no change in the quantum of
punishment attached to the crime." 432 U.S. at 293-294; accord
Jordan V. Watkins, 681 F.2d 1067, 1079 (5th Cir, 1982) ; Irving v.
State, 441 So. 2d 846, 852-853 (Miss. 1983). cert. denied. 470 U.S.
1059 (1985); State v. Coleman, 605 P.2d 1000, 1012-1015 (Mont.
1979), cert. Denied, 446 U.S. 970 (1980).

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37

thority to matters relating to the actual conduct of the
trial. 24. See S. Rep. No. 197, 96th Cong., 1st Sess. 124-
125 ( 1979). The Committee Report explained that

[it] believe[d] that [the Court of Military Appeals']
interpretation flies in the face of history; if adopted,
it would severely threaten the integrity of the mili-
tary justice system and undermine the authority of the
President as Commander-in-Chief. The committee's
amendment clarifies what it believes Congress has
always intended by enacting Article 36 and its prede-
cessors. While Congress retains the power to amend
the UCMJ to alter the military justice system, it
entrusts to the President the promulgation of regula-
tions designed to implement the Code and operate
the system.

Id. at 123; see also Reid, 354 U.S. at 38 (plurality opin-
ion ). The Commander-in-Chief's promulgation of ag-
gravating factors, in order to ensure that capital offenses
under the UCMJ remained constitutionally viable in the
aftermath of Matthews, is, without doubt, the type of rule
"designed to implement the Code and operate the system"
(S. Rep. No. 197, supra, at 123) that Congress had in
mind when it enacted and amended Article 36.
Since that amendment, Congress has made even clearer
its view that Article 36 gives the President authority to

___________________(footnotes)

24 Prior to the 1979 amendment, Article 36 authorized the Presi-
dent to prescribe "[t]he procedure, including modes of proof, in
cases before courts-martial, courts of inquiry, military commis-
sions, and other military tribunals." See Act of May 5, 1950,
ch. 169, 1, Art. 36, 64 Stat. 120. Significantly, the amendment
was expressly intended to repudiate a decision on which petitioner
relies to support his claim that Article 36 applies only to purely
procedural matters. See Br. 18, citing United States V. Ware, 1
M.J. 282, 285 & n.10 (C.M.A. 1976) (stating, in dicta, that the
phrase "cases before courts-martial" restricted the President's
rule-making authority to those aspects of the case concerning the
actual trial and excluded, by implication, pretrial and post-trial
procedures).

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38

promulgate factors that narrow the class of military ac-
cused eligible for the death penalty. In 1985, Congress 
enacted Article 106a of the UCMJ, 10 U.S.C. 906a,
which makes it a capital offense for a servicemember to
engage in espionage. See Department of Defense Author-
ization Act, 1986, Pub. L. No. 99-145, 534, 99 Stat. 
634. The new article enumerates three specific aggravat-
ing factors and further states that such aggravating factors
may also include "[a]ny other factor that may be pre-
scribed by the President by regulations under section 836
of this title (Article 36)." 10 U.S.C. 906a(c) (4). "[T]he 
fact that Congress in [1985] authorized the [President] to 
[promulgate aggravating factors under Article 36] strongly 
suggests that Congress understood" the UCMJ to
such authority. Babbitt v. Sweet Home Chapter of Com-
munities for a Great Oregon, 115 S. Ct. 2407, 2414
(1995); see NLRB v. Bell Aerospace Co., 416 U.S. 267, 
275 ( 19'74) ("recognizing] that subsequent legislation 
declaring the intent of an earlier statute is entitled to
significant weight" ). The Conference Report on the leg-
islation that became Article 106a makes the point even
more clearly. It states:

  Nothing in the new Article 106a is meant to pre-
  clude a prosecution under any other article of the
  UCMJ * * *. 
                      *  *  *  *  *
  The conferees did, however, adopt a statutory 
  formulation of capital sentencing standards for es- 
  pionage cases and intend that those standards be
  implemented in a manner consistent with the provi-
  sions of Rule for Courts-Martial 1004 of the Manual
  for Courts-Martial, 1984. The conferees do not in-
  tend that the enactment of statutory capital sen- 
  tenting standards for the new Article 106a be con- 
  strued as affecting the validity of the regulatory cap- 
  ital sentencing standards that already exist for the 
  other capital punitive articles.          

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39

H.R. Conf. Rep. No. 235, 99th Cong., 1st Sess. 425
(1985 ). 25. The conferees' endorsement of the use of RCM
1004's procedures in espionage cases, and their statement
that nothing in Article 106a would preclude prosecution
under other provisions of the UCMJ or affect the "valid-
ity" of RCM 1004, can only be read as expressing agree-
ment that RCM 1004 is a lawful exercise of Presidential
authority. 26.
There is no merit to petitioner's argument (Br. 11,
21-22, 26-27 ) that Articles 18, 36, and 56 should be
construed "narrowly" to preclude the President from
adopting RCM 1004, based on the rule of lenity and in
order to avoid doubts as to the constitutionality of those
articles. It is anomalous to invoke the rule of lenity to
support a challenge to the President's decision to restrict
the class of defendants who are eligible for the death

___________________(footnotes)

25 To minimize the significance of the 1985 legislation, petitioner
cites (Br. 24-25) Consumer Product Safety Comm'n v. GTE Syl 
vania, Inc., 447 U.S. 102, 118 n.13 (1980), for the proposition that
"subsequent legislative history provide[s] an extremely hazardous
basis for inferring the meaning of a congressional enactment."
But as the GTE case also recognized (ibid., quoting Red Lion
Broadcasting Co. V. FCC, 395 U.S. 367, 380-381 (1969) (emphasis
added) ), "[s]ubsequent legislation declaring the intent of an earlier
statute is entitled to great weight in statutory construction." In
this case, both the "subsequent legislation" (Article 106a) and its
legislative history express the view that the UCMJ already granted
to the President authority to promulgate aggravating factors in
capital cases.

26  Amicus Public Citizen argues (Br. 18-19) that Article 106a
evidences Congress's belief that the President lacks authority to
promulgate aggravating factors in capital cases, because Article
106a delegates that authority to the President only in espionage
cases. The problem with that claim is that Article 106a did not
"delegate" that authority to the President; that authority already
existed by virtue of Article 36, a provision that is not limited to
espionage cases. The point of Article 106a(c) (4) is to ensure that
the enumeration of specific factors not be interpreted to oust the
President's pre-existing authority under Article 36 to promulgate
additional factors.

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40

penalty under Article 118, since by conforming sentencing
hearings to the dictates of Furman, RCM 1004 "pro-
vid[es] capital defendants with more, rather than less,
judicial protection." Dobbert, 432 U.S. at 294-295.
It is no less odd to assert that, to avoid constitutional
questions, Articles 18, 36, and 56 must be read to prohibit
promulgation of RCM 1004, since that argument is
advanced in aid of petitioner's claim that a different pro-
vision of the UCMJ-Article 118-is unconstitutional
insofar as it authorizes the death penalty for his crimes.
Petitioner's invocation of that canon of construction also
ignores the fact that the President expressly invoked his
constitutional authority under Article II when he promul-
gated RCM 1004. See Exec. Order No. 12,460, 49 Fed.
Reg. 3169 (1984). A conclusion that Articles 18, 36,
and 56 do not themselves authorize the President's action
therefore not only would be inconsistent with the broad
language and the purpose of those provisions, but also
would require this Court to decide whether the President
has the constitutional power to do so under Article II,
even in the absence of affirmative statutory authorization.
See Parker, 417 U.S. at 744-745 (quoting Martin, 25
U.S. (12 Wheat. ) at 35-36); see also Reid, 354 U.S. at
38 & n.70 (plurality opinion).
If petitioner means to argue that the UCMJ should be
read to prohibit the President from restricting the class
of military defendants who may be sentenced to death
under Article 118, that argument would raise serious con-
stitutional questions in its own right, for we doubt that
Congress could so bluntly impair the President's authority
as Commander-in-Chief. As it happens, however, nothing
in the text or legislative history of the UCMJ remotely
suggests that Congress has prohibited the President from
adopting RCM 1004. To the contrary, the 1985 amend-
ments and the "general tenor of Congress' legislation in
this area" demonstrate that Congress has accepted and
indeed approved of such action by the President. See
Dames & Moore V. Regan, 453 U.S. 654, 678-688

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41

(1981); id. at 668-669; Haig V. Agee, 453 U.S. 280,291-
292, 300-301 (1981).
In any event, both lenity and the avoidance of inter-
pretations that would raise serious constitutional problems
are canons that apply at the end of the process of con-
struction, and then only in the face of a statutory "am-
biguity." Concrete Pipe & Prods. of California, Inc. V.
Construction Laborers Pension Trust, 113 S. Ct. 2264,
2283 ( 1993); Reno V. Koray, 115 S. Ct. 2021, 2029
(1995 ). Moreover, a statute is not ambiguous "merely
because it [is] possible to articulate a construction more
narrow than that urged by the Government." Moskal,
498 U.S. at 108. Here, with the exception of his strained
attempt to read narrowly the word "procedures" in Article
36(a)j petitioner has not even attempted to offer a co-
herent interpretation of Articles 18, 36, and 56 that is
faithful to the language of those articles, to Congress's
long-standing practice of confiding to the Executive judg-
menace as to punishment (including death) within statutory
limits, to Congress's 1985 decision to build on the
President's ability to exercise the power that petitioner
disputes, and to the need to avoid the significant constitu-
tional questions raised by petitioner's own position. For
those reasons, petitioner can derive no help from the
canons of construction he invokes.
2. Petitioner and his amici are also wrong to argue
(Pet. Br. 27-37; ACLU Br. 13-16; Public Citizen Br. 21-
25; Navy Br. 12-15) that Articles 18, 36, and 56 fail to
provide the President constitutionally adequate guidance
for the exercise of the authority they confer. To begin
with, the President's independent constitutional authority
as Commander-in-Chief of the armed forces would make
appropriate even what petitioner characterizes (Br. 31)
as a standardless authorization to regulate military sen-
tences. Compare Curtiss-Wright Export Corp., 299 U.S.
at 321-322. The President's functions under the UCMJ,
"like the Court's function in promulgating procedural
rules, are clearly attendant to a central element of the

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42

historically acknowledged mission of the [Executive]
Branch." Mistretta, 488 U.S. at 391. Where, as in this
case, the President has fulfilled his constitutional functions
by issuing rules to ensure that courts-martial impose sen-
tences in capital cases in a manner that assures their
constitutionality while protecting the needs of military
discipline, Congress has no greater duty to specify factors
he must consider than it must specify in granting power
to the federal judiciary, as an adjunct of its adjudicatory
powers under Article III, to make rules for the purpose
of ensuring that cases will be adjudicated properly. See,
e.g., id. at 387-388; Hanna v. Plumer, 380 U.S. 460,
471-472 ( 1965); Sibbach v. Wilson & Co., 312 U.S. 1,
9-10 ( 1941); Wayman v. Southard, 23 U.S. (10 Wheat. )
1, 43 ( 1825); Bank of the United States v. Halstead, 23
U.S. (10 Wheat.) 51, 61-62 (1825). 27.
Thus, it is "not necessary that Congress supply [the
President] with a specific formula for [his] guidance,"
Lichter v. United States, 334 U.S. 742, 785 ( 1948),
when, as here, it is appropriate that the President retain
flexibility to adapt the broad outlines of congressional

___________________(footnotes)

27 Moreover, in exercising that power to preclude the imposition
of the death penalty except in cases of aggravated murder, and
to require a sentence of life imprisonment in the remaining cases,
the President made a decision that is similar in kind to those he
is called upon to make when he commutes a sentence under his
constitutional power "to grant Reprieves and Pardons." Art. II,
 2, Cl. 1. See Schick V. Reed, 419 U.S. 256 (1974); Ex parte Wells,
59 U.S. (18 How.) 307 (1856) ; see also Biddle V. Perovich, 274
U.S. 480, 487 (1927) (Holmes, J.) (President may order life im-
prisonment in lieu of death sentence since "[b]y common under-
standing imprisonment for life is a less [er] penalty than death").
The President is, for that additional reason, uniquely qualified to
exercise the sentence-limiting authority granted by Articles 18 and
56 with respect to the death penalty, and, by the same token, it is
especially unlikely that Congress would have intended to withhold
the power to do so in that setting. In fact, Article 71 of the UCMJ
requires that every sentence of death shall be personality approved
by the President before it is executed, which ensures an opportunity
for commutation. See 10 U.S.C. 871.

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43

policy to changing circumstances in the specialized field
of military discipline, over which the Constitution gives
Congress and the President shared authority. See ibid.;
id. at 778-779 (Congress's power to confer "authority
* * * sufficient to effect its purposes * * * is especially
significant in connection with constitutional war powers
under which the exercise of broad discretion * * * may
be essential"); Knauff, 338 U.S. at 543. Nonetheless,
history and the background of similar provisions of mili-
tary law indicate that the nature and scope of the Presi-
dent's discretion were well understood by the political
Branches. In light of the long-standing Presidential au-
thority to limit punishments, Congress doubtless expected
(see Grimaud, 220 U.S. at 518; United States v. Bailey,
34 U.S. (9 Pet. ) 238, 255-256 (1835)) that the author-
ity conferred by Articles 18 and 56 would be exercised
by him by reference to the factors that have traditionally
informed his judgment-i.e., the needs of military dis-
cipline, evenhanded application of court-martial punish-
ments throughout the country, see H.R. Rep. No. 1051,
supra, at 1, and his own judgment regarding the sorts of
factors that would make a statutory sentence unduly harsh
as applied to specific circumstances. See American Power
& Light Co. v. SEC, 329 U.S. 90, 105 (1946) (delega-
tion is constitutionally sufficient "if Congress clearly
delineates the general policy * * * and the boundaries of
th[e] delegated authority"); see also Yakus v. United
States, 321 U.S. 414, 420, 426-427 (1944) (upholding
delegated authority to fix commodity prices that in judg-
ment of Price Administrator "will be generally fair and
equitable and will effectuate the purposes of" price control
legislation); National Broadcasting Co. v. United States,
319 U.S. 190, 225-226 ( 1943) (upholding delegation to
FCC to promulgate regulations in accordance with its
view of the public interest).
In addition, Article 18 contemplates that the President
may "prescribe * * * any punishment not forbidden" by
the UCMJ. Article 55 of the UCMJ expressly forbids the

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44

imposition of "cruel or unusual" punishments, 10 U.S.C.
855, and the legislative history of the UCMJ shows that
Congress had Article 55 specifically in mind when it
referred in Article 18 to punishments "forbidden" by the
UCMJ. See S. Rep. No. 486, 81st Cong., 1st Sess. 13
( 1949); H.R. Rep. No. 491, 81st Cong., 1st Sess. 16
( 1949). Accordingly, the President surely must be under-
stood to have the authority under Article 18 to subject
sentences to "limitations" necessary to comply with Article
55's prohibition against "cruel or unusual" punishments-
a statutory term that he could appropriately interpret
by considering, as he did, this Court's decisions construing
the parallel language of the Eighth Amendment.
The same result is compelled by the language of Article
36(a), which gives the President still further guidance.
Article 36(a) states that the court-martial rules promul-
gated by the President "shall, so far as he considers prac-
ticable, apply the principles of law and the rules of evi-
dence generally recognized in the trial of criminal cases
in the United States district courts." 10 U.S.C. 836(a).
Petitioner nonetheless argues (Br. 31-32, 34; see Pub-
lic Citizen Br. 23) that Congress established no "prin-
ciples of law" on which the President could rely, because
when RCM 1004 was first promulgated only the federal
air piracy statute contained a list of aggravating factors. 28.
By the time RCM 1004 was adopted, however, this Court

___________________(footnotes)

28 See Antihijacking Act of 1974, Pub. L. No. 93-366, Tit. I,
105, 88 Stat. 412-113, codified at 49 U.S.C. 1473 (c) (7) (1976).
Contrary to petitioner's argument (Br. 34) that the aggravating
factors in that statute bear "almost no similarity" to those later
adopted by the President, RCM 1004(c) (4) -which addresses the
creation of substantial danger to the lives of persons other than
the victim-is virtually identical to Section 1473 (c) (7) (B) (iii)
of the air piracy statute. Similarly, although petitioner maintains
(Br. 34) that the aggravating factors contained in Article 106a
could not have been relied upon by the President, the Rule was
amended in 1986 to reflect those factors. See Manual App. 21-73,
citing Art. 106a.

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45

had developed a substantial body of case law addressing
the adequacy of state capital sentencing schemes. Because
those cases set forth Eighth Amendment principles appli-
cable to any capital sentencing scheme enacted by Con-
gress, those cases plainly reflect "principles of law" that
must be "recognized" in "the trial of criminal cases in
the United States district courts." See, e.g., United
States V. Flores, 63 F.3d 1342, 1369-1373 (5th Cir.
1995 ). This Court's cases therefore afforded a firm basis
upon which the President could rely in formulating con-
stitutionally sufficient aggravating factors. 29.
This Court's decisions are not the only source on which
the President could rely in ascertaining appropriate stand-
ards pursuant to Article 36. In defining both military and
civilian capital offenses, Congress had identified, even be-
fore Furman, factors that it considered sufficiently egre-
gious to merit the death penalty. See Stanford v. Ken-
tucky, 492 U.S. 361, 372 n.4 ( 1989) (collecting laws).
The President relied heavily on those congressional judg-
ments. See Manual App. 21-69 to 21-74. For example,
aggravating factors (c) (2) and (c) (3), which involve
the creation of "substantial damage to the national se-

___________________(footnotes)

29 Gregg V. Georgia, 428 U.S. 153, 193 n.44 (1976) (lead opinion),
approved the sentencing standards found in the Model Penal Code,
and also upheld the Georgia capital sentencing scheme, which
generally follows the Model Penal Code, id. at 164-166 & n.9, 196-
198 (lead opinion) ; McCleskey v. Kemp, 481 U.S. 279, 302 & n.24
(1987) ; see also Profitt V. Florida, 428 U.S. 242, 248 n.6 (1976)
(lead opinion). The aggravating factors in Rule 1004 have, close
analogues in the Model Penal Code and the Georgia and Florida
statutes. The drafters of RCM 1004 also relied on other aspects of
this Court's Eighth Amendment case law. For example, aggravat-
ing factor's (c) (8), which limits the circumstances under which the
death penalty can be imposed for murder under the felony-murder
doctrine, and (c) (9), which specifies the circumstances tinder which
the death penalty can be imposed for the offense of rape, were
formulated to conform military capital sentencing practice to this
Court's decisions in Tison V. Arizona, 481 U.S. 137 (1987), and
Coker v. Georgia, 433 U.S. 584 (1977). See Manual App. 21-73.

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46

curity of the United States," are based on the fact that, in
both the civilian and military contexts, Congress has spe-
cifically recognized that such damage may warrant im-
position of the death penalty. See Manual App. 21-72.
Likewise, in enacting 18 U.S.C. 1111 and Article 118 (4)
of the UCMJ, 10 U.S.C. 918(4), Congress expressly au-
thorized the death penalty for homicides committed during
the perpetration of certain violent felonies, including rob-
bery. Aggravating factor (c) (7) (B), which focuses upon
the commission of a murder during the commission or
attempted commission of such felonies, and aggravating
factor (c) (7) (C), which involves the. commission of a
murder "for the purpose of receiving money or a thing
of value," both reflect that congressional determination. 30.
Thus, as the Curtis court concluded (J.A. 122), in formu-
lating aggravating factors, "the President was not set
adrift in an uncharted sea * * * [but] was guided by the
Uniform Code and other federal legislation." Indeed,
when Congress enacted a new Federal Death Penalty Act
in 1994, Pub. L. No. 103-322, Tit. VI,  60002, 108 Stat.
1959 (codified at 18 U.S.C. 3591-3598), many of the
aggravating factors it adopted for capital homicide of-
fenses were virtually identical to those earlier identified
by the President in subsection (c) (7) of RCM 1004. See,

___________________(footnotes)

30 Similarly, aggravating factors (c) (7) (F) and (c) (7) (G),
which focus upon the victim's status as a senior government official,
military superior, law enforcement officer, or public servant, are
based upon the congressional determination that such officials merit
special protection and that their murder warrants the death penalty,
See Manual App. 21-73, citing 18 U.S.C. 351, 1114, 1751. The
President recently amended aggravating factor (c) (7) (E) by the
addition of the fact that the murder was drug related. The amend-
ment was based upon the enactment of "[c]urrent federal statutes
[which] provide for a maximum punishment including the death
penalty for certain drug-related killings." Manual App. 21-73,
citing 21 U.S.C. 848 (e).

---------------------------------------- Page Break ----------------------------------------

47

e.g., 18 U.S.C 3592(c) (l), (3)-(8), (12) and (14). 31.
With the actions of the President and Congress so closely
aligned, petitioner has given this Court no sound reason
to overturn the President's judgment in promulgating
RCM 1004.

CONCLUSION

The judgment of the United States Court of Appeals
for the Armed Forces should be affirmed.

Respectfully submitted.

Drew S. DAYS, III
Solicitor General

JOHN C. KEENEY
Acting Assistant Attorney
General

EDWIN S. KNEEDLER
Deputy Solicitor General

MIGUEL A. ESTRADA
Assistant to the Solicitor
General

JOHN F. DE PUE
Attorney

JOHN M. SMITH
Colonel, USA
Government Appellate
Division

DECEMBER 1995

___________________(footnotes)

31 Significantly, Congress also provided a catch-all provision
authorizing the jury to rely on "any other aggravating factor" of
 which the defendant has received notice from the prosecutor, irre-
spective of whether the factor is listed in the statute. See 18 U.S.C.
3592 (c). That provision further undermines petitioner's contention
that the designation of specific aggravating factors is, and that
Congress would expect it to be, peculiarly a legislative choice.

---------------------------------------- Page Break ----------------------------------------

 APPENDIX

Article I of the Constitution provides in relevant part:

Section 8. [1] The Congress shall have Power
* * *

 *  *  *  *  *
[11] To declare War, grant, Letters of Marque
  and Reprisal, and make Rules concerning Cap-
  tures on Land and Water;
   [12] To raise and support Armies, but no
  Appropriation of Money to that Use shall be for
  a longer Term than two Years;
   [13] To provide and maintain a Navy;
   [14] To make Rules for the Government and
  Regulation of the land and naval Forces;
   [15] To provide for calling forth the Militia
  to execute the Laws of the Union, suppress In-
  surrections and repel Invasions;
   [16] To provide for organizing, arming, and
  disciplining, the Militia, and for governing such
  Part of them as may be employed in the Ser-
  vice of the United States, reserving to the States
  respectively, the Appointment of the Officers,
  and the Authority of training the Militia accord-
  ing to the discipline prescribed by Congress;

      *  *  *  *  *

   [18] To make all Laws which shall be neces-
  sary and proper for carrying into Execution the
  foregoing Powers, and all other Powers vested
  by this Constitution in the Government of the
  United States, or in any Department or Officer
  thereof.

(la)

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2a

Article II of the. Constitution provides in relevant part:

Section 1. [1] The executive Power shall be vested
in a President of the United States of America. * * *

* * * * *

[8] Before he enter on the Execution of his
Office, he shall take the following Oath or Af-
firmation: "I do solemnly swear (or affirm) that
I will faithfully execute the Office of President
of the United States, and will to the best of
my Ability, preserve, protect and defend the
Constitution of the United States."

Section 2. [1] The President shall be Commander
in Chief of the Army and Navy of the United States,
and of the militia of the several States, when called
into the actual Service of the United States; he may
require the Opinion, in writing, of the principal Offi-
cer in each of the executive Departments, upon any
Subject relating to the Duties of their respective
Offices, and he shall have Power to grant Reprieves
and Pardons- for offences against the United States,
except in Cases of Impeachment.

*   *   *   *   *

Section 3. He shall from time to time give to the
Congress Information of the State of the Union, and
recommend to their Consideration such Measures
as he shall judge necessary and expedient; he may,
on extraordinary Occasions, convene both Houses, or
either of them, and in Case of Disagreement between
them, with Respect to the Time of Adjournment, he
may adjourn them to such Time as he shall think
proper; he shall receive Ambassadors and other pub-
lic Ministers; he shall take Care that the Laws be
faithfully executed, and shall Commission all the
Officers of the United States.

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3a

Article 55 of the Uniform Code of Military Justice,
10 U.S.C. 855, provides:

Art. 55. Cruel and unusual punishments prohibited

Punishment by flogging, or by branding, marking,
or tattooing on the body, or any other cruel or un-
usual punishment, may not be adjudged by any court-
martial or inflicted upon any person subject to this
chapter. The use of irons, single or double, except
for the purpose of safe custody, is prohibited.

U.S. Government Printing Office: 1995  405017   40024   

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No. 94-1966

In the Supreme Court of the United States

October Term, 1995

DWIGHT J. LOVING, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE ARMED FORCES

BRIEF FOR THE UNITED STATES IN OPPOSITION

DREW S. DAYS, III
Solicitor General
Department of Justice 
Washington, D.C. 20530

JOHN M. SMITH
Colonel, USA

JAMES L. POHL
Lieutenant Colonel, USA

MICHAEL E. MULLIGAN
KENNETH G. WILSON
Captains, USA
Appellate Government Counsel
Government Appellate division
Falls Church, VA 22041-5103

---------------------------------------- Page Break ----------------------------------------

QUESTIONS PRESENTED

1. Whether the President had the authority to
promulgate Rule for Courts-Martial 1004.
2. Whether a defendant maybe sentenced to death
by a court-martial panel of fewer than twelve persons.

(I)

---------------------------------------- Page Break ----------------------------------------

TABLE OF CONTENTS

Page

Opinions below . . . . 1
Jurisdiction . . . . 1
Statement . . . . 2
Argument . . . . 9
Conclusion . . . . 24

TABLE OF AUTHORITIES

Cases:

A.L.A. Schechter Poultry Corp. v. United States, 295
U.S. 495 (1935) . . . . 13
Babbitt v. Sweet Home Chapter of Communities for a
Great Oregon, 115 S. Ct. 2407 (1995) . . . . 12
Ballew v. Georgia, 435 U.S. 223 (1978) . . . . 21
Bowsher v. Synar, 478 U.S. 714 (1986) . . . . 17
Branford v. United States, 356 F.2d 876 (7th Cir. 1966) . . . . 21
Burns v. Wilson, 346 U.S. 137 (1953) . . . . 22
California v. Brown, 479 U.S. 538 (1987) . . . . 10
Clemens v. Mississippi, 494 U.S. 738 (1990) . . . . 9
Dames & Moore v. Regan, 453 U.S. 654 (1981) . . . . 20
Dobbert v. Florida, 432 U.S. 282 (1977) . . . . 10
Dynes v. Hoover, 61 U.S. (20 How.) 65 (1858) . . . . 17
Field v. Clark, 143 U.S. 649 (1892) . . . . 13
Furman v. Georgia, 408 U.S. 238 (1972) . . . . 7, 10
Gregg v. Georgia, 428 U.S. 153 (1976) . . . . 10, 15, 16
Hanna v. Plumer, 380 U.S. 460 (1965) . . . . 15
Harris v. Alabama, 115 S. Ct. 1031 (1995) . . . . 22
Hildivin v. Florida, 490 U.S. 638 (1989) . . . . 22
Jackson v. Virginia, 443 U.S. 307 (1979) . . . . 24
King v. Moseley, 430 F.2d 732 (lOth Cir. 1970) . . . . 20-21
Kurtz v. Moffitt, 115 U.S. 487 (1885) . . . . 15
McCleskey v. Kemp, 481 U.S. 279 (1987) . . . . 10, 16
Mendrano v. Smith, 797 F.2d 1538 (lOth Cir. 1986) . . . . 20

(III)

---------------------------------------- Page Break ----------------------------------------

IV

Cases-Continued:              

Page

Milligan Ex parte, 71 U.S. (4 Wall.) 2 (1866) . . . . 20, 21
Mistretta. v. United States, 488  U.S. 361
(1989) . . . . 8, 15, 16, 18, 19
0'Callahan v. Parker, 395 U.S. 258 (1969) . . . . 20
Owens v. Markley  289 F.2d 751 (7th Cir. 1961) . . . . 21
Panama Refining Co. v. Ryan, 293 U.S. 388 (1935) . . . . 13, 14
Profitt v. Florida, 428 U.S. 242 (1976) . . . . 16
Quirin, Ex  parte, 317 U.S. 1 (1942) . . . . 9, 20, 21
Reid v. Covert, 354 U.S. 1 (1957) . . . . 20
Ryder v. United States, 115 S. Ct. 2031 (1995) . . . . 24
Schick v. Reed, 419 U.S. 256 (1974) . . . . 19
Sibbach v. Wilson & Co., 312 U.S. 1 (1941) . . . . 15
Skinner v. Mid-America Pipeline Co., 490 U.S, 212
(1989) . . . . 14-15
Solorio v. United States, 483 U.S. 435 (1987) . . . . 14, 20, 22, 23
Spaziano v. Florida, 468 U.S. 447 (1984) . . . . 9, 22
Stanford v. Kentucky, 492 U.S, 361 (1989) . . . . 16
Stone v. INS, 115 S. Ct. 1537 (1995) . . . . 12
Swaim v. United States, 165 U.S. 553 (1897) . . . . 15
United States v. Chemical Foundation. Inc., 272 U.S. 1
(1926) . . . . 14
United States v. Curtis, 32 M.J. 252 (C.M.A.), cert.
denied, 112 S. Ct. 406 (1991) . . . . 8, 9, 16, 24
United States v. Curtiss-Wright Export Corp., 299 U.S.
304 (1936) . . . . 14
United States v. Eliason, 41 U.S. (16 Pet.) 291 (1842) . . . . 15
United States v. Matthews, 16 M.J. 354 (C.M.A. 1983) . . . . 2, 3
United States v. Mazurie, 419 U.S. 544 (1975) . . .. 14
United States v. McClain, 22 -M.J. 124 (C.M.A. 1986) . . . . 20
United States v. Palenius, 2 M.J. 86 (CM.A. 1977) . . . . 24
United States v. Prescott, 2 C.M.A. 122, 6 C.MR. 122
(1952) . . . . 11

---------------------------------------- Page Break ----------------------------------------

V

Cases-Continued:                  

Page

United, States ex rel. Knauff v. Shaughnessy, 338 U.S.
537 (1950) . . . . 14 
United States ex rel. Toth v. Quarles. 350 U.S. 11 (1955) . . . . 23
Walton v. Arizona, 497 U.S. 639 (1990) . . . . 22
Wayman v. Southard, 23 U.S. (10 Wheat.) 1 (1825) . . . . 15 
Weiss v. United States, 114 S. Ct. 752 (1994) . . . . 18, 22, 23
Wells, Ex parte, 59 U.S. (18 How.) 307 (1856) . . . . 19
Whelchel v. McDonald, 340 U.S. 122 (1950) . . . . 20, 22
Williams v. Florida., 399 U.S. 78 (1970) . . . . 20, 21
Youngstown Sheet & Tube Co. v. Sawyer, 343 US. 579
(1952) . . . . 20
Zant v. Stephens, 462 U.S. 862 (1983) . . . . 13

Constitution, statutes, regulations and rules:

U.S. Const.:
Art. I:
  8:
   Cl. 14 . . . . 14, 22
   Cl. 18 . . . . 13
Art. II . . . . 20 
 2, Cl. 1 . . . . 10, 14, 19
Art. III . . . . 15, 17, 21
Amend. V . . . . 20, 21
Due Process Clause . . . . 22
Amend. VI (Jury Trial Clause) . . . . 9, 20, 21, 22
Amend. VIII . . . . 13, 22
Act of Sept. 27, 1890, ch. 998, 26 Stat. 491 . . . . 17
Articles of War of 1874, Arts. 41-46 (reprinted W. Win-
throp, Military Law and Precedents (2d ed. 1920
reprint) . . . . 17
Uniform Code of Military Justice, 10 U.S.C. 801 et seq.:
Art. 16(1)(A), 10 U.S.C. 816(1)(A) . . . . 20
Art. 18, 10 U.S.C. 818 . . . . 8, 10, 14, 18
Art. 36, 10 U.S.C. 836 . . . . 3, 8, 11, 14, 15, 16, 18

---------------------------------------- Page Break ----------------------------------------

VI

Statutes, regulations and rules-Continued:        

Page

Art. 51, 10 U.S.C. 851 . . . . 18 
Art. 52(b)(l), 10 U.S.C. 852(b)(l) . . . . 20 
Art. 56, 10 U.S.C. 856 . . . . 8, 11, 14,18,
Art. 66, 10 U.S.C. 866 . . . . 7
Art. 66(c), 10 U.S.C. 866(c) . . . . 24
Art. 80, 10 U.S.C. 880 . . . . 2
Art. 106a, 10 U.S.C. 906a . . . . 11, 14, 18
Art. 106a(c)(4) 10 U.S.C. 906a(c)(4) . . . . 11,12
Art. 118, 10 U.S.C. 918 . . . . 2, 4, 7, 10, 11,14
Art. 122, 10 U.S.C. 922 . . . . 2
Exec. Order No. 12, 473, 3 C.F.R. 201 . . . . 4
Mil. R. Evid. 606(b) . . . . 18
Rules for Courts-Martial:
Rule 1004 . . . . passim
Rule 1004(c)(7) . . . . 7
Rule 1004 (c)(7) (J) . . . . 7 
Rule 1004(c)(8) . . . . 7
Miscellaneous:
H.R. Conf. Rep. No. 235, 99th Cong., 1st Sess. (1985) . . . . 12
G. Henderson, Courts-Martial and the Constitution: The
Original Understanding, 71 Harv. I,. Rev. 293 (1957) . . . . 21
Manual , for Courts-Martial, United States, 1984 . . . . 4, 16
A. Sullivan, The President's Power to Promulgate
Death Penalty Standards, 125 Mil. L. Rev. 143
(1989) . . . . 3, 17
W. Winthrop, Military Law and Precedents (2d ed. 1920
reprint) . . . . 17

---------------------------------------- Page Break ----------------------------------------

In the Supreme Court of the United States
     
OCTOBER TERM, 1995

No. 94-1966

DWIGHT J. LOVING, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE ARMED FORCES

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the United States Court of Appeals
for the Armed Forces (Pet. App. la-227a) is reported
at 41 M.J. 213. The initial opinion of the United
States Army Court of Military Review, now the
United States Army Court of Criminal Appeals (Pet.
App. 229a-256a), is reported at 34 M.J. 956, and its
opinion denying reconsideration (Pet. App. 257a-265a)
is reported at 34 M.J. 1065.

JURISDICTION

The judgment of the United States Court of
Appeals for the Armed Forces was entered on Novem-

 (1)

---------------------------------------- Page Break ----------------------------------------

2

ber 10, 1994. A petition for reconsideration was de-
nied on February 2, 1995. Pet. App. 228a. On April 21,
1995, Chief Justice Rehnquist extended the time
within which to file a petition for a writ of certiorari
to and including June 2, 1995, and the petition was
filed on that date. The jurisdiction of this Court is
invoked under  28 U. S. C. 1259(1).

STATEMENT

Petitioner was convicted by a general court-martial
of premeditated murder, felony murder, attempted
murder, and robbery (four specifications), in violation
of Articles 118, 80, and 122, Uniform Code of Military
Justice (UCMJ), 10 U.S.C. 918, 880, and 922. The
court sentenced petitioner to death, a dishonorable
discharge, and forfeiture of all pay and allowances.
The United States Army Court of Military Review
affirmed. 34 M.J. 956, reconsideration denied, 34 M.J.
1065 (A.C.M.R. 1992) (Pet, App. 229a-265a).  The
United States Court Appeals for the Armed Forces
affirmed. Pet. App. la-227a.
1. In United States v. Matthews, 16 M.J. 354
(C.M.A. 1983), the United States Court of Military
Appeals (now the United States Court of Appeals for
the Armed Forces) analyzed the constitutionality of
the military's death penalty provisions, Article 118,
UCMJ, 10 U.S.C. 918. After reviewing this Court's
cases, the court concluded that certain common fea-
tures appeared in a constitutionally valid death penal-
ty procedure: a bifurcated sentencing proceeding spa-
civic aggravating circumstances; selection of and
findings on the particular aggravating circumstances
used by the sentencer to impose the death penalty;
unrestricted opportunity for the defendant to present
mitigation and extenuation evidence; and mandatory

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3

appellate review of the appropriateness of the seen-
Tenneco. Id. at 377.
The Matthew's court found all of those safeguards
present in the military system except for specific
aggravating factors. 1. The court held that because
court-martial members were not required to identify
specifically the aggravating factors relied upon in
assessing the death sentence, it was impossible for
appellate courts to determine whether the members
had made an individualized sentencing determination
based on the character of the defendant and the
circumstances of the crime. 16 M.J. at 379. The court
indicated that either Congress or the President, in
his capacity as Commander in Chief and/or pursuant
to the powers that Congress delegated to him, could
take corrective action. Id. at 380 (citing Art. 36,
UCMJ, 10 U.S.C. 836).

___________________(footnotes)

1 The court noted (1) that the military follows a bifurcated
sentencing procedure; (2) that "[c]retain aggravating circus-
stances, such as premeditation, specific intent, and murder
during commission of specified felonies, must be found by the
court members * * *. These findings identify the instances in
which an accused is eligible for the death penalty. After the
findings, evidence may be submitted to identify other
aggravating circumstances." 16 M.J. at 378 (citation omitted);
(3) that the defendant has an unlimited opportunity to put on
evidence in extenuation and mitigation; (4) that there is
mandatory review of the facts, law, and sentence appro-
priateness followed by a mandatory review of the law by the
Court of Military Appeals (now the Court of Appeals for the
Armed Forces); and (5) that the President, who can take any
lesser action on the sentence, must ultimately approve any death
sentence.  Ibid. See generally A. Sullivan, The President's
Power to Promulgate Death Penalty Standards, 125 Mil. L.
Rev. 143 (1989).

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4

The President responded by promulgating Rule for
Courts-Martial (RCM) 1004, which amended the Manual
for Courts-Martial to provide procedures for adjured-
icating cases in which the death penalty is authorized
for homicide by Article 118 of the Uniform Code of
Military Justice, 10 U.S.C. 918.  See Manual for
Courts-Martial, United States, 1984 (Manual).  RCM
1004, which had been circulated for public comment
before the decision in Matthew's, rectified the
deficiency identified in that opinion by enumerating
specifiency identified in that opinion by enumerating
specific aggravating factors, at least one of which the
court-martial members must unanimously find in
order to impose the death penalty.  RCM 1004 also
provides that all members of the court-martial must
concur that the aggravating circumstance(s)  substan-
tially outweigh any extenuating or mitigating cir-
cumstances be fore death can be adjudged.  The Presi-
dent caused the 1984  Manual for Courts-Martial and 
its Rules for Courts-Martial to be issued by "virtue of
the authority invested in [him] as President by the
Constitution of the United States and by Chapater 47
of Title 10 of the United  States   Code [i.e., the
UCMJ]."  Exec. Order No. 12,473, 3 C.F.R. 201 (1984
comp.).
2.  During the evening of December 11, 1988,
petitioner, an Army private stationed at Fort Hood,
Texas, robbed at gun point two different 7-Eleven
convenience stores in Killeen, Texas.  Pet. App. 3a,
231a; Pet. 4-5.  In the first robbery, petitioner fired
two shots into  the counter and soda fountain, which
were behind the cashier;  he obtained $38.  In the
second robbery, petitioner fired a bullet into the cash
register, and demanded that the cashier put money in

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5

a paper bag. As he ran out, petitioner fired a round
back into the store. He obtained approximately 52
from the second robbery. Id. at 3a, 231a.
When the 7-Eleven robberies netted him only a
small amount of cash, petitioner conceived a plan to
rob taxicab drivers. On the evening of December 12,
1988, petitioner called a taxicab to take him from a
store in Killeen to his barracks in Fort Hood. The
driver of the taxicab was an active-duty soldier,
Christopher Fay, who was working for extra money.
Petitioner directed Fay to a secluded area on Fort
Hood, where he demanded Fay's money at gun point.
After receiving some money from Fay, petitioner shot
him in the back of the head. While looking at the
bleeding wound, petitioner cocked his pistol and again
shot Fay in the back of the head. Fay died. Pet. App.
3a-4a, 231a-232a.
Petitioner fled to his barracks and, after counting
the money he obtained from Fay, called a second
taxicab.  That cab was driven by a retired Army
sergeant, Bobby Sharbino. Petitioner directed Shar-
bino to a secluded street in Killeen, where he robbed
Sharbino of his money pouch, wallet, and other
personal effects. Petitioner then ordered Sharbino to
lie down on a car seat and shot him in the head, killing
him. Pet. App. 4a, 232a.
Later that evening, petitioner took his girlfriend to
a nightclub in Killeen. Upon leaving, petitioner and
his girlfriend entered a taxicab driven by Howard
Harrison. After dropping his girlfriend off near her
residence, petitioner directed Harrison to a secluded
area and robbed him at gun point. Petitioner then
attempted to kill Harrison. Harrison struggled with

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6

petitioner, disarmed him, and fled. Pet. App. 4a-5a,
232a-233a.
Acting on leads provided by Harrison, law
enforcement agents, including agents of the Army
Criminal Investigation Command (CID), arrested
petitioner in the afternoon of December 13, 1988.
Petitioner was taken to the CID office, where, after
being advised of his rights, he made a full videotaped
confession describing his crimes in detail. Searches
of the area surrounding petitioner's girlfriend's resi-
dence, and of the residence and other places frequent-
ed by petitioner, resulted in the recovery of the
weapon used in the murders and robberies, spent and
Unspent bullets, petitioner's blood-stained jacket, and
effects taken from the murder victims. Pet. App. 232a
n.2, 233a, 5a, 7a. Later, while incarcerated at the U.S.
Army facility at Fort Riley, Kansas, petitioner told a
fellow inmate that he had committed the first murder
"to see if he could get away with it," and the second
murder "because it was fun," and that "if he had to do
it over, the only difference is he wouldn't. get caught. "
Id. at 68a-69a.
An eight-member court-martial unanimously found
petitioner guilty of the premeditated murder of
Sharbino and of the felony murder of Fay. By a non-
unanimous vote, the court-martial also found peti-
tioner guilty of attempting to murder Harrison, of
robbing Sharbino and Harrison, and of robbing the 7-
Eleven stores.  Pet. App. 8a-9a. 2. After a hearing
                   
___________________(footnotes)

2 In addition, petitioner was found guilty of the premeditated
murder of Fay, the robbery of Fay, and the felony murder of
Sharbino. After the findings were announced, the military
judge dismissed those specifications as multiplicitous. Pet. App.
9a.

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7

conducted in accordance with RCM 1004, the court-
martial unanimously found, as aggravating factors,
that the premeditated murder of Sharbino was com-
mitted while petitioner was engaged in a robbery (see
RCM 1004(c)(7)), that in the felony murder of Fay
petitioner acted as the triggerman (see RCM
1004(c)(8)), and that petitioner, having been found
guilty of the premeditated murder of Sharbino, was
found guilty of another murder in the same case (see
RCM 1004(c)(7)(J)). Pet. App. 253a-254a. The court-
martial unanimously sentenced petitioner to death, a
dishonorable discharge, and forfeiture of all pay and
allowances. The convening authority approved the
findings and sentence. Pet. App. 9a, 230a. 3.
3. The Army Court of Military Review affirmed
the findings and sentence. Pet. App. 229a-256a. In
accordance with Article 66, UCMJ, 10 U. S. C. 866, the
court independently weighed the evidence and
"agree[d] with each of the aggravating factors found
by the court-martial." Pet. App. 254a. The court also
found "that any extenuating and mitigating circum-
stances are substantially outweighed by the aggra-
vating circumstances." Ibid.
On appeal, petitioner argued that Article 118,
UCMJ, 10 U.S.C. 918, is unconstitutional under
Furman v. Georgia, 408 U.S. 238 (1972), in that it
does not sufficiently narrow the class of death-
eligible defendants, and that the President exceeded
his authority under the Constitution and the UCMJ

___________________(footnotes)

3 The "convening authority" is the commander who con-
venes the court-martial. The convening authority selects the
court-martial members, directs that the accused be tried by the
court-martial for the charged offenses, and conducts a post-trial
review of the proceedings.

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8

in promulgating RCM 1004 to provide specific
aggravating factors. The court found those claims
foreclosed by United States v. Curtis, 32 M.J. 252
(C. M. A.), cert. denied, 112 S. Ct. 406(1991). Pet. App.
230a. In that case, the Court of Military Appeals had
upheld RCM 1004 against similar attacks. See Pet.
App. 346a-384a (reproducing Curtis opinion).
The Curtis court concluded that under the Uniform
Code of Military Justice, the President has long
"play[ed] the major role in determining what punish-
ments may be imposed by courts-martial." Pet. App.
362a-363a.  It held that several provisions of the
UCMJ, particularly Articles 18, 36, and 56, UCMJ, 10
U.S.C. 818, 836, and 856, authorized the President to
promulgate aggravating factors for capital cases.
Relying on Mistretta v. United States, 488 U.S. 361
(1989), the Curtis court rejected a separation-of-
powers challenge to that delegation, noting that "[i]n
view of [the President's] inherent constitutional
authority [as Commander-in-Chief of the Armed
Forces], a separation-of-powers objection has much
less merit in the present context than if the `aggra-
vating factors' for capital cases tried by courts-
martial had been formulated by a specially created
commission." Pet. App. 361a-362a. Curtis also rejecte-
d the contention that Congress failed to give the
President an intelligible principle for the exercise of
the delegated powers, explaining that the UCMJ'S
direction in Article 36 that the President apply "the
principles of law" that are generally applied in federal
district courts constitutes an adequate standard.
Pet. App. 368a.
Petitioner also argued that only a court-martial
panel composed of 12 members can constitutionally

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9

impose the death penalty.  The Army Court of
Military Review found that claim meritless on the
authority of Curtis (Pet. App. 230a), which rejected
that claim on the grounds (1) that the jury-trial
requirement of the Sixth Amendment does not apply
to courts-martial, Pet. App. 375a-376a (citing Ex
parte Quirin, 317 U.S. 1 (1942)), (2) that a civilian
judge alone may be entrusted with imposing a death
sentence, Pet. App. 376a [citing, inter alia, Clemons
v. Mississippi, 494 U.S. 738 (1990), and Spaziano v.
Florida, 468 U.S. 447 (1984)), and (3) that the military
justice system includes significant post-sentence
safeguards to minimize the risk of erroneous imposi-
tion of the death penalty. Pet. App. 376a-377a.
3. The Court of Appeals for the Armed Forces
affirmed. Pet. App. la-227a. The court summarily
rejected, on the authority of Curtis and Matthews,
petitioner's claims that the President lacked consti-
tutional and statutory authority to promulgate R CM
1004, and that a court-martial panel of fewer than 12
members may not constitutionally  sentence a
defendant to death. Pet. App. 128a-129a (challenge to
size of court-martial panel); id. at 141a-142a (chal-
lenges to constitutionality of RCM 1004).

ARGUMENT

1. Petitioner contends that Congress has not
explicitly or implicitly delegated to the President any
authority to prescribe aggravating- factors (Pet. 14-
15), and, if Congress has done so, such delegation is
unconstitutional because that authority may not be
delegated at all (Pet. 9-11), because the delegation
impermissible combines in the President the power to
make and enforce laws (Pet. 11-14), or because Con-
gress failed to set forth sufficient standards to guide

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10

the President's exercise of his authority (Pet. 19-23).
Those claims lack merit and do not warrant review.
a. In Furman v. Georgia, 408 U.S. 238 (1972), this
Court held that the death penalty cannot be imposed
under procedures that create a substantial risk that
it will be inflicted in an arbitrary manner. See, e.g.,
McCleskey V. Kemp, 481 U.S. 279, 301 (1987);
California v. Brown, 479 U.S. 538, 541 (1987); Gregg
v. Georgia, 428 U.S. 153, 188 (1976) (lead opinion).
Contrary to petitioner's contention (Pet. 8-9), Fur-
man did not hold unconstitutional Congress's judg-
ment that the death penalty is a lawful punishment
for premeditated or felony murder in the military
justice system. See Art. 118, UCMJ, 10 U.S.C. 918.
Furman requires only that appropriate safeguards
exist in order for Article 118 to be implemented in a
constitutional manner. Compare Dobbert v. Florida,
432 U.S. 282, 293-294, 297-298 (1977) (rejecting argu-
ment that there "was no death penalty `in effect' in
Florida" at the time of defendant's crime, because
Florida had not yet acted to comply with the dictates
of Furman upholding retroactive application of
Florida's post-Furman capital sentencing law on the
ground that the changes were merely "procedural").
The President had ample authority to prescribe the
safeguards that will result in the constitutional
application of the statute that Congress enacted. In
addition to his constitutional authority as "Com-
mander in Chief of the Army and Navy," U.S. Const.
Art. II  2, Cl. 1, three provisions of the Uniform
Code of Military Justice make clear that the Presi-
dent has the power to devise sentencing procedures
for capital cases. Article 18, UCMJ, 10 U.S.C. 818,
which sets forth the jurisdiction of general courts-

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11

martial, provides that such courts-martial "may,
under such limitations as the President may pre-
scribe, adjudge any punishment not forbidden by this
chapter." Article 36, UCMJ, 10 U.S.C. 836, empowers
the President to prescribe "trial[] and post-trial
procedures * * * for cases triable in courts-martial"
by regulations that "shall, so far as [the President]
considers practicable, apply the principles of law
* * * generally recognized in the trial of criminal
cases in the United States district courts." And
Article 56, UCMJ, 10 U.S.C. 856, authorizes the
President to limit the maximum punishment a court-
martial may impose.  See, e.g., United States v.
Prescott, 2 C.M.A. 122, 124-125, 6 C.M.R. 122, 124-125
(1952). Together, those Articles authorize the Presi-
dent to prescribe whatever procedures are necessary
to assure that Article 118 can be implemented consti-
tutionally.
Any doubt as to whether the UCMJ delegates to the
President authority to promulgate RCM 1004 was
eliminated by Congress's enactment in 1985 of Article
106a, UCMJ, 10 U.S.C. 906a, which makes it a capital
offense for a servicemember to engage in espionage.
That provision lists three specific aggravating fac-
tors and further states that aggravating factors
include "[a]ny other factor that may be prescribed by
the President by regulations under [Article 36]." See
10 U.S.C. 906a(c)(4). Article 106a therefore clearly
reflects congressional understanding that the UCMJ,
including Article 36, gives the President delegated
authority to promulgate aggravating factors in
capital cases. The conference report on the legis-
lation makes the point even more clearly, stating
that:

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12

  Nothing in the new Article 106a is meant to
preclude a prosecution under any other article of
the UCMJ[.] * * *

        *****
  
The conferees did, however, adopt a statutory
formulation of capital sentencing standards for
espionage cases and intend that those standards
be implemented in a manner consistent with the
provisions of Rule for Courts-Martial 1004 of the
Manual for Courts-Martial, 1984, The conferees
do not intend that the enactment of statutory capi-
tal sentencing standards for the new Article l06a
be construed as affecting the validity of the regu-
latory capital sentencing standards that. already
exist for the other capital punitive articles.

H.R. Conf. Rep. No. 235, 99th Cong., 1st Sess. 425
(1985). Where Congress has, as it did here, passed
new legislation in specific reliance on a particular
interpretation of existing laws, there is strong rea-
son to give effect to that interpretation.  See, e.g.,
Babbitt v. Sweet Home Chapter of Communities for
a great Oregon, 115 S. Ct. 2407, 2414 (1995); Stone v.
INS, 115 S. Ct. 1537, 1545,1549 (1995). 4.

___________________(footnotes)
 
4 Petitioner suggests (Pet. 18-19) that Article 106a evidences
Congress's belief that the President lacks delegated authority to
promulgate aggravating factors in capital cases, because Article
106a delegates that authority to the President only in espionage
cases. The problem with that claim is that Article 106a(c)(4)
expressly recognizes that the President's authority to promul-
gate aggravating factors will be exercised "under section 836 of
this title (article 36)," 10 U.S.C. 906a(c)(4), a provision that is
not limited to espionage cases. There is no greater merit to
petitioner's contention that Article 106a should not be read to

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13

b. The President's exercise of that authority to
promulgate aggravating factors does not violate the
"nondelegation doctrine" or the Eighth Amendment.
Petitioner's broad claim that the Eighth Amendment
requires that Congress prescribe aggravating factors
(Pet. 9-10) is not supported by this Court's cases.
Nothing in the Eighth Amendment requires that a
legislature provide the narrowing of death-eligible
defendants required by this Court's cases. See, e.g.,
Zant v. Stephens, 462 U.S. 862, 880 (1983) (to
determine if jury's discretion is sufficiently chan-
neled in capital cases, court may look to "court-im-
posed standards to govern the jury" in its deliber-
ations).
As for the "nondelegation doctrine," it is directed
to situations in which Congress is alleged to have
given the Executive the power to "make a[] Law[],"
Art. I, 8, Cl. 18, in the first instance, rather than to
"take Care that the Laws be faithfully executed," Art.
II, 3. Panama Refining Co. v. Ryan, 293 U.S. 388,
421 (1935); Field v. Clark, 143 U.S. 649, 692 (1892). 5.

___________________(footnotes)

reflect congressional endorsement of RCM 1004, because the
conferees "clearly indicated]" that Article 106a should not be
"read as validating or invalidating" that Rule. Pet. 18. The
conferees, however, endorsed the use of RCM 1004's procedures
in espionage cases, and their statement that nothing in Article
106a would preclude prosecution under other provisions of the
UCMJ or affect the "validity" of RCM 1004, can only be read as
expressing agreement that RCM 1004 is lawful.

5 This Court has invalidated a law on the ground of improper
delegation in only two cases: Panama Refining Co. v. Ryan,
supra, and A.L.A. Schechter Poultry Corp. v. United States,
295 U.S. 495 (1935). In each of those cases, the Court found that
the statute at issue "declare[d] no policy" as to the subject
matter of the delegation and left the Executive with "unlimited

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14

Here, Congress has made the "law" governing the
conduct of servicemembers. The Constitution auth-
orizes Congress to "make Rules for the Government
and Regulation of the land and naval Forces," Art. I,
8, Cl. 14. which includes the power to define crimes
and affix their punishment, Solorio v. United States,
483 U.S. 435,438-439 (1987). Article 118 is just such a
"Rule[]"; it defines both the offense of murder and its
punishment. Congress therefore has exercised its
power to regulate the military. What Congress has
done through Articles 18, 36, 56, and 106a is to give
the President the power to ensure that Article 118
can be implemented in a constitutional manner by
courts-martial.  That power does not offend non-
delegation principles.
Contrary to petitioner's contention that the powers
already exercised by the President under the Consti-
tution make him categorically ineligible for exer-
cising additional delegated authority in this area
(Pet. 12-14), this Court has recognized that the limits
on Congress's delegation power are "less stringent in
cases where the entity exercising the delegated
authority itself possesses independent authority over
the subject matter."  United States v. Mazurie, 419
U.S. 544, 556-557 (1975); see also United States ex rel.
Knauff v. Shaughnessy, 338 US. 537, 542-543 (1950)
(immigration);  United States v. Curtiss-Wrighf
Export Corp., 299 U.S. 304, 319-322 (1936) (foreign
affairs); United States v. Chemical Foundation, Inc.,
272 U.S. 1, 12 (1926) (Commander-in-Chief power); cf.
Skinner v. Mid-America Pipeline Co., 490 U.S. 212,

___________________(footnotes)

authority to determine the policy * * * as he may see fit."
Panama Refining, 293 U.S. at 415.

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15

220-223 (1989). This is such a case. As "Commander
in Chief of the Army and Navy," Art. II, 2, Cl. 1, the
President has the inherent power to adopt measures
necessary to promote military discipline, see United
States v. Eliason, 41 U.S. (16 Pet.) 291,301-302 (1842);
see also Kurtz v. Moffitt, 115 U.S. 487, 503 (1885), or
to regulate court-martial proceedings, cf. Swaim v.
United States, 165 U.S. 553, 557-558 (1897). Indeed,
this Court has consistently held that Congress can
grant rulemaking authority to Article III courts,
since that authority is a reasonable adjunct to their
inherent power to adjudicate cases.  See, e.g.,
Mistretta v. United States, 488 U.S. 361, 387-388
(1989); Hanna v. Plumer, 380 U.S. 460 (1965); Sibbach
v. Wilson & Co., 312 U.S. 1, 9-10 (1941); Wayman v.
Southard, 23 U.S. (10 Wheat.) 1, 43 (1825). Congress
has no greater duty to specify the factors for the
President to consider when he issues rules ensuring
that courts-martial operate in a constitutional
manner than Congress must specify for the federal
courts to consider in ensuring that cases will be
adjudicated properly.
Nonetheless, Congress has not left the President
without guidance. Article 36 states that the court-
martial rules promulgated by the President "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." 10 U.S.C. 836. The "principles of
law" recognized by the district courts include consti-
tutional rules established by this Court's capital
punishment decisions. Gregg approved the sentencing
standards found in the Model Penal Code, 428 U.S. at
193-194 n.44 (lead opinion), and also upheld the

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16

Georgia capital sentencing scheme, which generally
follows the Model Penal Code, id. at 164-166 & n.9
196-198 (lead opinion); McCleskey, 481 U.S. at 302 &
n.24; see also Proffitt v. Florida, 428 U.S. 242, 248-249
n.6 (1976) (lead opinion). The aggravating factors in
Rule 1004 have close analogues in the Model Penal
Code and the Georgia and Florida statutes. See
Manual A21-69. Moreover, Article 36 is not the only
source of congressional policy in this regard.
Congress has authorized the death penalty for var-
ious offenses, Stanford v. Kentucky, 492 U.S. 361, 372
n.4 (1989) (collecting laws), and those statutes
evidence Congress's policy judgments about the con-
duct warranting that sentence. The President can
take those judgments into account in formulating
aggravating factors, and, as the court of appeals
recognized in Curtis (Pet. App. 368a-375a), RCM 1004
does just that.
Nor does it matter whether the aggravating factors
in RCM 1004 are viewed as in some sense "sub-
stantive" (Pet. 11 & n.16), because separation-of-
powers analysis "does not turn on the labeling of an
activity as `substantive' as opposed to `procedural.'"
Mistretta, 488 U.S. at 393. More important is the fact,
that the delegation challenged by petitioner "pose[s 1
no threat of undermining the integrity of the
[Executive] Branch or of expanding [its] powers
* * *  beyond constitutional bounds,"  ibid., for
several reasons. First, as this Court recognized in
Mistretta, "the [federal] sentencing function long has
been a peculiarly shared responsibility among the
Branches of Government and has never been thought
of as the exclusive constitutional province of any one
Branch." Id. at 390. In the military context, that

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17

responsibility has been historically shared princi-
pally by the Legislative and Executive Branches,
because courts-martial have never been thought to be
Article III courts. See Dynes v. Hoover, 61 U.S. (20
How.) 65,79 (1858). 6. Second, the President's exercise
of such rulemaking authority does not improperly
consolidate the prosecution and sentencing functions,
because the sentencing decision is left to serv-
icemembers who are protected against improper in-

___________________(footnotes)

6 Congress has traditionally left sentencing in military
prosecutions largely to the Executive Branch. Most of the
offenses enumerated in the Articles of War of 1776 provided
that the sentence upon conviction would be determined by the
judgment of the court-martial. See W. Winthrop, Military Law
and Precedents App. X. at 961-967 (2d ed. 1920 reprint). That
practice was continued when Congress revised the Articles of
War in 1806 and 1874, id. App. XII, at 976-981; App. XIII, at 986-
991, and it extended to capital offenses. See, e.g., Articles of
War of 1874, Arts. 41-46 (each providing that defendant "shall
suffer death, or such other punishment as a court-martial may
direct"). In 1890 Congress directed that whenever the sentence
was left to the discretion of the court-martial by the Articles of
War, "the punishment * * * shall not, in time of peace, be in
excess of a limit which the President may prescribe." Act of
Sept. 27, 1890, ch. 998, 26 Stat. 491. Thus, a long history,
predating the Constitution itself, shows that Congress has always
understood the determination of court-martial sentences to be a
matter properly resting within the special competence of the
Executive Branch officials most directly responsible for the
maintenance of military discipline.  See A. Sullivan, The
President's Power to Promulgate Death Penalty Standards, 125
Mil. L. Rev. 143, 157 (1989). Cf. Bowsher v. Synar, 478 U.S.
714, 723-724 (1986) (historical evidence is a valuable guide in
separation of powers controversies).

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18

fluence or retaliation. Cf. Mistretta, 488 U.S. at 393-
395. 7.
Third, Articles. 18, 36, 56, and 106a do not allow the
President to impose capital punishment in cases
where Congress has not itself authorized that pen-

___________________(footnotes)

7 Contrary to petitioner's repeated suggestions that the
President or military commanders can easily exert improper
influence over courts-martial and their members (Pet. 26-28 &
nn.28, 31), the military justice system includes strong safeguards
to prevent that from occurring.  This Court recently found
those safeguards significant in concluding that the Constitution
does not require that military judges be given a fixed term of
office:

Article 26 * * * protects against command influence by
precluding a convening officer or any commanding officer
from preparing or reviewing any report concerning the
effectiveness, fitness, or efficiency of a military judge relat-
ing to his judicial duties. Ibid. Article 37 prohibits conven-
ing officers from censuring, reprimanding, or admonishing
a military judge [or court-martial member] "with respect to
the findings or sentence adjudged by the court, or with
respect to any other exercise of its or his functions in the
conduct of the proceeding." 10 U.S.C.  837. Any officer
who "knowingly and intentionally fails to enforce or com-
ply" with Article 37 "shall be punished as a court-martial
may direct." Article 98, UCMJ, 10 U.S.C. 898.

Weiss v. United States, 114 S. Ct. 752, 762 (1994). In addition,
Article 51, 10 U.S.C. 851, provides that panel members must
vote by secret written ballot, and Mil. R. Evid. 606(b) permits
court-martial members to be questioned on "whether there was
unlawful command influence," and that information may be
used to impeach the verdict. See Pet. App. l7a-18a. Finally, as
this Court recently noted, "[t]he entire system * " * is
overseen by the Court of Military Appeals, which is composed
entirely of civilian judges * * *. That court has demonstrated
its vigilance in checking any attempts to exert improper
influence." Weiss. 114 S. Ct. at 762.

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19

alty. Those Articles only allow the President to limit
or regulate its use. The President has always had the
power to reduce a servicemernber's sentence under
his power "to grant Reprieves and Pardons," Art. II, 
2, Cl. 1, regardless of minimum and maximum
penalties set by law. Schick v. Reed, 419 U.S. 256
(1974); Ex parte Wells, 59 U.S. (18 How.) 307 (1856).
And the President's power to channel the imposition
of the death penalty is a reasonable adjunct to his
authority to regulate courts-martial. Cf. Mistretta,
488 U.S. at 395-396. While RCM 1004, like the Sen-
tencing Guidelines upheld in Mistretta, may influence
servicemembers' actions, the Rule does not "bind or
regulate the primary conduct" of servicemen, and
does "no more than fetter the discretion of [courts-
martial] to do what they have done for generations-
impose sentences within the broad limits established
by Congress." 488 U.S. at 396.
Finally, Congress's judgment that the President
should have the authority to promulgate sentencing
procedures, including aggravating factors for capital
or noncapital cases, is sensible. This Court's decis-
ions in cases such as Gregg have identified various
procedures that satisfy the concerns underlying
Furman. Because the President adopts the Manual
for use by courts-martial, Congress could reasonably
have believed that the President is in the best posi-
tion to ensure that the procedures required by this
Court's cases can be implemented quickly and revised
when necessary in that specialized field, just as he
can ensure that courts-martial follow whatever other
rules are imposed by this Court or the military
courts. Congress also could have believed that the
President is in a better position to determine what

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20

factors are necessary to ensure adequate military
discipline.  In those circumstances, the combined
effect of the President's inherent Article 11 power and
the authority given him by the UCMJ means that the
President's power to adopt rules such as Rule 1004 is
at its zenith. See, e.g., Dames & Moore v. Regan, 453
U.S. 654, 668 (1981); Youngstown Sheet & Tube Co. v.
Sawyer, 343 U.S. 579, 637 (1952) (Jackson, J.,
concurring).
2. Petitioner also contends (Pet. 23-28) that the
military sentencing procedures are unconstitutional
because they allow a capital sentence to be imposed
when, as was the case here, the court-martial panel
consists of fewer than 12 members.  See Article
16(1)(A), UCMJ, 10 U.S.C. 816(1)(A) (general court-
martial may consist of "a military judge and not less
than five members"); see also Article 52(b)(l), UCMJ,
10 U.S.C. 852(b)(1) (unanimity required when court-
martial imposes sentence of death). That claim finds
no support in the controlling decisions of this Court.
While petitioner relies on this Court's decisions
construing the Sixth Amendment Jury Trial Clause,
Pet. 24, 26 (citing Williams v. Florida, 399 U.S. 78
(1970), and Ballew v. Georgia, 435 U.S. 223 (1978)), it
is well settled that the Jury Trial Clause does not
apply to courts-martial. E.g., Ex parte Milligan, 71
U.S. (4 Wall.) 2, 123 (1866) 8. The Fifth Amendment

___________________(footnotes)

8 See also Ex parte Quirin, 317 U.S. I, 40-41 (1942); Whelchel
V. McDonald, 340 U.S. 122, 127 (1950); Reid v. Covert, 354 U.S.
1, 19 (1957) (plurality opinion); 0'Callahan v. Parker, 395 U.S.
258, 261 (1969), overruled on other grounds, Solorio v. United
States, 483 U.S. 435 (1987); United States v. McClain, 22 M.J.
124, 128 (C.M.A. 1986). Accord Mendrano v. Smith, 797 F.2d
1538, 1544 (10th Cir. 1986); King v. Moseley, 430 F.2d 732, 734

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21

specifically exempts "cases arising in the land or
naval forces" from the requirement of an indictment
by a grand jury for serious crimes. By drafting the
Fifth Amendment in that manner, "the framers of the
Constitution, doubtless, meant to limit the right of
trial by jury, in the sixth amendment, to those
persons who were subject to indictment or present-
ment in the fifth." Ex parte Milligan, 71 U.S. (4
Wall.) at 123. As the Court explained in Ex parte
Quirin, 317 U.S. 1,39 (1942), neither Article III of the
Constitution nor the Sixth Amendment requires a
trial by jury in the military, because those provisions
were intended "to preserve unimpaired trial by jury
in all those cases in which it had been recognized by
the common law * * * , but not to bring within the
sweep of the guaranty those cases in which it was
then well understood that a jury trial could not be
demanded as of right."  Accordingly, because peti-
tioner had no Sixth Amendment right to a trial by a
petit jury, he also had no right under the Jury Trial
Clause to a court-martial panel composed of 12 per-
sons. 9.

___________________(footnotes)

(l0th Cir. 1970); Branford v. United States, 356 F.2d 876, 877
(7th Cir. 1966); Owens v. Markley, 289 F.2d 751, 752 (7th Cir.
1961). See generally G. Henderson, Courts-Martial and the
Constitution: The Original Understanding, 71 Harv. L. Rev. 293
(1957).

9 In any event, an eight-person panel, as petitioner had,
would be sufficiently large to satisfy the Constitution. Williams
V. Florida, 399 U.S. 78, 86-103 (1970) (a six-person jury is
sufficient). Petitioner's reliance (Pet. 26) on Ballew v. Georgia,
435 U.S. 223 (1978), is misplaced, because Ballew involved a five-
person jury, whereas the panel in appellant's case had eight
members. Indeed, petitioner does not claim that the panel was
too small to find him guilty, but only to sentence him.  The

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22

Petitioner's reliance on the Eighth Amendment is
similarly misplaced. The Eighth Amendment does
not guarantee a defendant in a capital case (or in any
other) the right to have the jury fix his punishment,
even when a sentence requires specific finding-s of
fact. See, e.g., Harris v. Alabama. 115 S. Ct. 1031,
1034-1035 (1995); Walton v. Arizona, 497 U.S. 639.648
(1990); Spaziano v. Florida, 468 U.S. 447, 459 (1984.
Thus, while petitioner is correct that this Court's
cases reflect the need for a higher degree of reli-
ability in capital cases. this Court has repeatedly
rejected the claim that jury sentencing is an indis-
pensable means to achieving that reliability.
Petitioner's claim fares no better under the Due
Process Clause. Pet. 24-25 & n.26. The Constitution
authorizes Congress to "make Rules for the Govern-
ment and Regulation of the land and naval Force s,"
Art. I, 8, Cl. 14, and grants Congress "primary
responsibility for the delicate task of balancing the
rights of servicemen against the needs of the
military." Solorio v. United States, 483 U.S. 435, 447
(1987). See also Burns v. Wilson, 346 U.S. 137, 140
(1953) (plurality opinion). Congress's judgment about
the number of members that may appropriately com-
prise a court-martial is entitled to special deference,
not only because "[t]he constitution of courts-martial,
like other matters relating to their organization and
administration * * * is a matter appropriate for
congressional action," `Whelchel v. McDonald, 340
U.S. 122, 127 (1950); see also Weiss v. United States,
114 S. Ct. 752, 760-761 (1994), but also because the

___________________(footnotes)

Sixth Amendment, however, does not require jury sentencing at
all, even in capital cases. See, e.g., Hildwin v. Florida, 490 U. S.
638, 639-640 (1989) (per curiam).

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23

practices at issue have been carried forward from the
earliest days of our nation. Cf. Solorio v. United
States, 483 U.S. at 447.
In support of his due process argument, petitioner
relies heavily (Pet. 24-25) on the fact that many
States leave the capital sentencing decision to 12
jurors, rather than to some fewer number. Because
some States, such as Florida and Arizona, leave the
final decision to the trial judge, rather than to the
jury, there is no societal consensus as to 12-person
sentencing. And, in any event, the state experience is
in the civilian capital sentencing context and there-
fore does not bear on the proper sentencing pro-
cedures for courts-martial. Compare Weiss v. United
States, 114 S. Ct. at 760-761. In the military context,
Congress's judgment as to the appropriate size of
courts-martial is a reasonable one.  The essential
function of the military is "to fight or be ready to
fight wars should the occasion arise." United States
ex rel. Toth v. Quarles, 350 U.S. 11, 17 (1955). When
servicemembers are diverted from that function by
the need to serve as court-martial panel members,
"the basic fighting purpose of armies is not served."
Ibid. Congress reasonably determined that the rights
of servicemen are adequately protected by the court-
martial process without insisting on the further
diversion of resources that would be required
to provide 12-member panels in each case. 10.

___________________(footnotes)

10 Moreover, as the court of appeals noted in Curtis,
defendants found guilty and sentenced to death by courts-
martial enjoy safeguards not available to persons convicted and
sentenced to death in civilian courts, including the convening
authority's power to commute the sentence and the fact that "a

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24

CONCLUSION

The petition for a writ of certiorari should be
denied.

Respectfully submitted.

DREW S. DAYS, III
Solicitor General 

JOHN M. SMITH
Colonel, USA

JAMES L. POHL
Lieutenant Colonel, USA

MICHAEL E. MuLLIGAN
KENNETH G. WILSON
Captains, USA
Appellate Government Counsel
Government Appellate division
Falls Church, VA 22041-5013

SEPTEMBER 1995

___________________(footnotes)

Court of Military Review, composed of trained appellate
military judges, must thoroughly review the law, the facts, and
the appropriateness of the accused's sentence." Pet. App. 377a;
see also id. at 152s (opinion below) ("the convening authority
may set aside or reduce the sentence for any reason"). Indeed,
unlike civilian appellate courts that review sufficiency claims
under a deferential standard, Jackson v. Virginia, 443 U.S. 307,
319 1979), military courts have required the prosecution
independently to prove the defendant's guilt before a court of
military review. A court of military review must independently
review the record and be convinced of the correctness of the
court-martial panel's findings, including its ultimate finding
that the accused is guilty, before the findings may be upheld.
See Art. 66(c), UCMJ. 10 U.S.C. 866(c); United States v.
Palenius, 2 M.J. 86, 91 n.7 (C.M.A. 1977); see also Ryder v.
United States, 115 S. Ct. 2031, 2037-20.38 (1995); Pet. App. 152a
(opinion below).