This article explores the tensions between Justice Scalia’s originalism and his lenient approach to the nondelegation doctrine. While I have only skimmed the piece, it appears to tell a story similar to the one that I would.
Justice Scalia wrote two significant opinions on the nondelegation doctrine – the doctrine that places limits on Congress’s power to delegate legislative power to executive branch agencies. One was his concurring opinion in Mistretta v. United States. In Mistretta, Scalia held that the delegation to the Sentencing Commission of the power to announce binding Sentencing Guidelines was unconstitutional. While Scalia was the only Justice who would have struck down the delegation, his argument was almost entirely focused on the unusual powers of the Sentencing Commission. Unlike other agencies, it did nothing else besides promulgating these guidelines. Thus, it was a junior varsity Congress.
By contrast, Scalia’s argument would not condemn other agencies, because they also did other things, which were executive. So the EPA both enforces the environmental laws and passes regulations under those laws. Thus, it avoids Scalia’s condemnation of the Sentencing Commission as a junior varsity Congress. Every year, my students are confused by Scalia’s opinion. They think he is tough on delegations to agencies. But he is not. Every other agency delegation passes the test.
What about the fact that Congress might be conferring broad discretion to an agency to write regulations? Scalia addressed this by saying the distinction between excessive discretion and constrained discretion could not be drawn. It was a distinction of degree, not of kind. Thus, he would not enforce it, leaving it to constitutional structure as a kind of political question.
The second Scalia opinion was Whitman v. American Trucking. Unlike Mistretta, Scalia was writing for the entire Court this time, and so his opinion was different. This time Scalia appeared to apply the precedents, claiming that these delegation precedents allowed ample discretion to be conferred on agencies. And he was correct – they did allow ample discretion – although Scalia wrote the opinion in a way that appeared to embrace the ampleness of the allowable discretion, rather than to discourage it.
Scalia never addressed the original meaning on this subject, and thus his opinions are open to serious criticism. Perhaps Scalia would have found the precedents overrode the original meaning, but he never addressed the argument. And one gets the impression, from Scalia’s Mistretta opinion, that he liked the precedents. They allowed him to avoid the difficult task of distinguishing between permissible and impermissible delegations, something that would have required judges to draw unclear lines. Scalia hated having judges engage in such a task.
Contrast Scalia here with Justice Thomas. In American Trucking, Justice Thomas concurred, noting that he doubted the precedents were consistent with the original meaning and that he was willing to reexamine the constitutionality of the lenient nondelegation doctrine in a suitable case.
Some years later, in Department Of Transportation. v. Association Of American Railroads, Justice Thomas wrote a long opinion for himself articulating what he believed the proper approach to nondelegation was. It is hard to imagine Justice Scalia joining this opinion, which would hold many current delegations to be unconstitutional. Unfortunately, though, Justice Thomas does not really solve or even seriously address the problem that so troubled Justice Scalia – distinguishing between permissible and impermissible delegations in a principled way.