Delegations to the President

Delegations of Legislative Power to the President in Areas of Shared Authority

It was asserted in United States v. Curtiss-Wright Corporation 1 that the delegation of discretion in dealing with foreign relations stands upon a different footing than the transfer of authority to regulate domestic concerns. There the Court upheld a joint resolution of Congress making it unlawful to sell arms to certain warring countries upon certain findings by the President, a typically contingent type of delegation. But Justice Sutherland for the Court proclaimed that the President is largely free of the constitutional constraints imposed by the nondelegation doctrine when he acts in foreign affairs.2 Whether or not the President is the “sole organ of the nation” in its foreign relations, as asserted in Curtiss- Wright,146 a lesser standard of delegation is applied in foreign affairs and other areas of power shared by the President and Congress.

More about Delegations to the President

Sixty years later, the Court, relying on Curtiss-Wright, reinforced such a distinction in a case involving the President's authority over military justice.3 The Court in Loving v. United States 4 approved a virtually standardless delegation to the President. Article 118 of the Uniform Code of Military Justice (UCMJ) 5 provides for the death penalty for premeditated murder and felony murder, but the statute does not comport with the Court's capital punishment jurisprudence. Generally, application of the death sentence must be cabined by standards that require the sentencing authority to narrow the class of convicted persons to be so sentenced and justify the individual imposition of the sentence.6 In 1984, the President promulgated standards that purported to supply the constitutional validity the UCMJ needed.7

Delegations to the President: Developments

The Court in Loving held that Congress could delegate to the President the authority to prescribe standards for the imposition of the death penalty under military law&emdash;Congress's power under Article I, § 8, cl. 14, is not exclusive&emdash;and that Congress had done so in the UCMJ by providing that the punishment imposed by a courtmartial may not exceed “such limits as the President may prescribe.” 8 Acknowledging that a delegation must contain some “intelligible principle” to guide the recipient of the delegation, the Court nonetheless held this not to be true when the delegation was made to the President in his role as Commander-in-Chief. “The same limitations on delegation do not apply” if the entity authorized to exercise delegated authority itself possesses independent authority over the subject matter. The President's responsibilities as Commanderin- Chief require him to superintend the military, including the courtsmartial, and thus the delegated duty is interlinked with duties already assigned the President by the Constitution.9

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References

This text about Delegations to the President is based on “The Constitution of the United States of America: Analysis and Interpretation”, published by the U.S. Government Printing Office.

[Footnote 1] 299 U.S. 304, 319-29 (1936).

[Footnote 2] 299 U.S. at 319-22. For a particularly strong, recent assertion of the point, see Haig v. Agee, 453 U.S. 280, 291-92 (1981). This view also informs the Court's analysis in Dames & Moore v. Regan, 453 U.S. 654 (1981). See also United States v. Chemical Foundation, 272 U.S. 1 (1926) (Trading With Enemy Act delegation to dispose of seized enemy property).$$146 299 U.S. at 319.

[Footnote 3] Loving v. United States, 517 U.S. 748, 772-73 (1996).

[Footnote 4] 517 U.S. 748 (1996).

[Footnote 5] 10 U.S.C. §§ 918(1), (4).

[Footnote 6] The Court assumed the applicability of Furman v. Georgia, 408 U.S. 238 (1972), and its progeny, to the military, 517 U.S. at 755-56, a point on which Justice Thomas disagreed, id. at 777.

[Footnote 7] Rule for Courts-Martial; see 517 U.S. at 754.

[Footnote 8] 10 U.S.C. §§ 818, 836(a), 856.

[Footnote 9] 517 U.S. at 771-74. See also United States v. Mazurie, 419 U.S. 544, 556-57 (1974) (limits on delegation are “less stringent” when delegation is made to an Indian tribe that can exercise independent sovereign authority over the subject matter).

Tables of Contents

• Delegations to the President and other Topics in the Contents – Article 1 of the U.S. Constitution
• U.S. Constitutional Law Category
• List of amendments to the U.S. Constitution
• Delegations to the President and other Topics in the Constitution Contents
• Interpretation of the U.S. Constitution (Table of Contents)
• Clauses of the Constitution (Table of Contents)