Academic journal article Notre Dame Law Review

Justice Scalia, the Nondelegation Doctrine, and Constitutional Argument

Academic journal article Notre Dame Law Review

Justice Scalia, the Nondelegation Doctrine, and Constitutional Argument

Article excerpt


Justice Antonin Scalia wrote two major opinions applying the nondelegation doctrine: in Mistretta v. United States, (1) he wrote a lone dissent concluding that Congress's establishment of the United States Sentencing Commission was unconstitutional because the Commission had been assigned no function by Congress other than the making of rules, the Sentencing Guidelines. Such "pure" lawmaking by a "junior-varsity Congress," Justice Scalia concluded, was inconsistent with the Constitution's basic division of powers. (2) In Whitman v. American Trucking Ass'ns, (3) he wrote for a unanimous Court upholding a very broad delegation of rulemaking power to the Environmental Protection Agency (EPA), and along the way acknowledged that Congress's power to assign policymaking discretion to agencies extended to raw exercises of discretion from among a range of possibilities that was apparently genuinely unlimited. This Essay examines Justice Scalia's approach to the nondelegation doctrine through the lens of these two cases and how they reflect larger themes and tensions in his jurisprudence.

When Justice Scalia believed that the Constitution, properly understood, left a decision to the realm of discretionary judgment rather than the application of a legal rule, he was a fierce proponent of the Court's staying the hand of judicial power and deferring to the outcome of the political process. At the same time, however, he was equally confident in the exercise of judicial power when he concluded that the Constitution, again properly understood, ruled out of bounds the outcome of the political process. In this Essay, I argue that his nondelegation jurisprudence is best understood by examining the nature of the underlying arguments used in giving effect to these base line commitments; these cases show great skepticism about balancing tests requiring judges to draw lines determining how much of something is "too much," and great confidence in structural or categorical constitutional arguments. Although critics have observed that this divide ultimately lacks substance--and that Justice Scalia's jurisprudence thus falls into troubling inconsistency between his behavior and his stated understanding of the judicial role--this Essay suggests that there might be reasons apart from inconsistency to explain his conduct.

Part I of this Essay canvasses Justice Scalia's approach to the nondelegation doctrine by examining his two most prominent opinions in that field, Mistretta and Whitman. Part II critically examines the nature of the arguments he makes in those cases, and what his approach has to tell us about his overall approach to the judicial role. Part III concludes.


A. Mistretta v. United States: The Sentencing Commission as "Junior-Varsity" Congress

The Supreme Court has had no fiercer defender of the nondelegation principle than Justice Antonin Scalia, and no more deferential implementer of that principle when it came to applying it in real cases. The nondelegation doctrine holds at its core that it "is a principle universally recognized as vital to the integrity and maintenance" of our constitutional system (4) that Congress simply cannot delegate the "legislative power" to anyone, while also recognizing that Congress "may commit something to the discretion of the other departments, and the precise boundary of this power is a subject of delicate and difficult inquiry." (5) In unpacking these propositions, I begin with Mistretta v. United States, the 1989 case that upheld the constitutionality of the United States Sentencing Commission and its function of issuing binding guidelines to govern criminal sentencing in federal courts.

The Sentencing Reform Act of 1984 (6) was the product of a long policy debate about how best to accomplish the twin goals of individual justice and consistency across cases. …

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