Loving v. United States

RESPONDENT: United States
LOCATION: Virginia Military Institute

DOCKET NO.: 94-1966
DECIDED BY: Rehnquist Court (1986-2005)
LOWER COURT: United States Court of Appeals for the Armed Forces

CITATION: 517 US 748 (1996)
ARGUED: Jan 09, 1996
DECIDED: Jun 03, 1996

Edwin S. Kneedler - Argued the cause for the respondent
John H. Blume - Argued the cause for the petitioner

Facts of the case

A general court-martial found Dwight J. Loving, an Army private, guilty of both premeditated murder and felony murder under Article 118 of the Uniform Code of Military Justice. The court-martial sentenced Loving to death based on the aggravating factors that the premeditated murder was committed during a robbery and that he had committed a second murder. The commander who convened the court-martial approved the findings and sentence. In affirming, the U.S. Army Court of Military Review and the U.S. Court of Appeals for the Armed Forces rejected Loving's contention that the President lacked the authority to prescribe aggravating factors in capital murder cases that enabled the court-martial to sentence him to death. Loving claimed that the separation-of-powers principle prevented the President from promulgating the Executive Order.


Does the President have the authority, consistent with the separation-of-powers principle, to prescribe aggravating factors that permit a court-martial to impose the death penalty upon a member of the armed forces convicted of murder?

Media for Loving v. United States

Audio Transcription for Oral Argument - January 09, 1996 in Loving v. United States

William H. Rehnquist:

We'll hear argument now in No. 94-1966, Dwight Loving v. United States.

Mr. Blume.

John H. Blume:

Mr. Chief Justice, may it please the Court--

This case presents several questions regarding whether and under what circumstances the President is permitted to create aggravating factors for military capital cases.

In this Court we have presented several challenges to the creation of these factors, ranging from the most broad to this is a nondelegatable power to the most narrow, that Congress failed to provide the President with an intelligible principle.

In considering all of these issues, however, some historical perspective is necessary.

In Article I, section 8, clause 14, the Framers gave to Congress and not the President the plenary power to make rules for the Government regulation of the land and naval forces.

They did so for a reason and from a very historical vantage point.

Not only were they distrustful of executive control of the military in general, but they were wary of broad court martial jurisdiction.

The Framers and those who influenced their political thought had lived under martial law and had witnessed and suffered through the abuses of military power.

Antonin Scalia:

Mr. Lowenfield, before you go too much further... I'm sorry.

Mr. Blume.

I'm thinking of the case I'm going to ask you about.

There... most of your argument is based on separation of powers.

There is another separation of powers issue it seems to me and that is the standing problem.

Even if we assume that the President has no power to specify what crimes shall be subject to the death penalty, Congress itself in 10 U.S.C., section 918 has specified two.

It has specifically said that anyone who unlawfully kills a human being when he, number one, has a premeditated design to kill, and number four, is engaged in the perpetration or attempted perpetration of burglary, sodomy, rape, robbery or aggravated arson.

In those two instances, Congress has said he shall suffer death or imprisonment for life.

Now, it seems to me that if that specification is sufficient, it doesn't matter whether or not the President has authority to add additional aggravating circumstances so long as those two suffice.

Is it clear that those two alone don't suffice?

Premeditated design to kill or killing in the perpetration of those particular crimes?

John H. Blume:

Yes, Justice Scalia, I think it's clear that does not suffice.

All article 118 is... it sets forth four theories under which you can be found guilty of murder.

One is premeditated and number four is a felony murder theory.

This is much like every murder statute--

Antonin Scalia:

No, it doesn't.

No, it's quite different because the way 918... this is on page 145 of the joint appendix, by the way.

The way 918 ends is, in all four of those situations specified he's guilty of murder and shall suffer such punishment as a court martial may direct.

And if it ended there, then you would possibly be into the argument that you want to make to us whether the President has the authority to specify what shall obtain the death penalty.

It doesn't end there, though.