Justice Scalia, the nondelegation doctrine, and constitutional argument.

AuthorKelley, William K.
PositionAntonin Scalia


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.


    1. 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. The solution upon which Congress arrived was the creation of a commission that was charged with developing binding sentencing guidelines. (7) Litigation challenging this scheme's constitutionality on nondelegation grounds quickly followed, and Mistretta became the vehicle that the Court chose to decide whether Congress had gone too far in empowering the Commission to make binding rules on a matter of such great and far-reaching importance.

      As it turned out, the Court had little difficulty in upholding the constitutionality of the Commission and its power to issue the sentencing guidelines. Justice Blackmun wrote an opinion for eight Justices that rejected the nondelegation challenge in conventional doctrinal terms. The Court began by acknowledging, as it always has, "that 'the integrity and maintenance of the system of government ordained by the Constitution' mandate that Congress generally cannot delegate its legislative power to another Branch." (8) The Court then noted, again as it always has, that this principle does not stand in the way of Congress's obtaining the assistance of the other branches "according to common sense and the inherent necessities" of the situation. (9) Justice Blackmun then stated what by then had long been--and continues to be--the canonical doctrinal formulation for determining whether Congress has gone so far in delegating power as to cross the line from invoking the Executive's assistance to authorizing the Executive to engage in pure legislation: "So long as Congress 'shall lay down by legislative act an intelligible principle to which the person or body authorized to [exercise the delegated authority] is directed to conform, such legislative action is not a forbidden delegation of legislative power.'" (10)

      The majority opinion in Mistretta then proceeded to analyze the constitutionality of the Sentencing Reform Act in purely conventional nondelegation terms. It wasn't, as these things go, a hard case. Congress had provided ample guidance to the Commission as to how to discharge its functions. Indeed, the Court "harbored no doubt" that the Act had provided unusually detailed guidance in delegating power, since it had made explicit the various policies to which the Commission was to give priority, as well as the factors that the Commission was to consider in implementing those priorities. (11) In addition, Congress had stated clearly the form that the exercise of delegated power must take--the promulgation of specific sentencing guidelines. (12) The Court did acknowledge that the Sentencing Commission had been given very broad power (the promulgation of binding sentencing rules) over something that was very important (all federal criminal sentencing). But the Court was untroubled by the breadth and importance of the delegation, and frankly acknowledged--as it often had before (13)--that broad delegations will often include room for the Executive to exercise significant policymaking discretion. (14) Finally the Court added that the labor-intensive, detailed work of developing guidelines to cover every federal crime, while also taking account of the circumstances of individual defendants, was simply beyond Congress's practical ability to do itself. (15) This was just the sort of context calling for Congress to make the broad policy choices while leaving the detail work to experts. (16)

      Justice Scalia dissented alone. (17) He began by asserting the central importance to his view of the Constitution of the nondelegation principle. Indeed, he said, "[i]t is difficult to imagine a principle more essential to democratic government than that upon which the doctrine of unconstitutional delegation is founded." (18) The system depends on the fundamental proposition that Congress must make and be responsible for the basic policies that govern the nation--and it is simply incompatible with that baseline necessity to grant unbounded policymaking discretion to the Executive. Having emphasized the central importance of the nondelegation principle, however, Justice Scalia went on to acknowledge the inevitability of open-ended delegations to the Executive, and the absence of any principled way to draw a line between acceptable and unacceptable degrees of policymaking discretion. As he put it, the nondelegation principle is not "readily enforceable by the courts" because drawing that line is in reality not "a point of principle but [one] of degree." (19)

      But Justice Scalia nonetheless dissented because he believed that the Sentencing Commission and the task assigned to it by Congress--the promulgation of binding sentencing guidelines--suffered from a basic structural constitutional defect. "Precisely because the scope of delegation is largely uncontrollable by the courts," he said it is all the more important that the Court "must be particularly rigorous in preserving the Constitution's structural restrictions that deter excessive delegation." (20)

      How did the Sentencing Reform Act run afoul of those "structural restrictions"? Justice Scalia went back to basics. He argued that the constitutional basis for permitting delegation of authority to traditional agencies was that the use of delegated power--including the power to make binding rules and authoritatively resolve adjudications--was, as a matter of constitutional power, law execution. Indeed, it must be, for if an agency is not engaged in law execution, it is necessarily acting unconstitutionally because the only power vested in the second branch is the power to execute the law. (21) Because the Constitution's basic division of powers insists that only Congress can legislate, it is simply beyond Congress's power to authorize any other actor actually to do so. (22) That is the very essence of the nondelegation doctrine--the Court has always understood the line between permissible and impermissible delegations to be the line between permitting broad discretion in fulfilling Congress's statutory commands (okay) and providing no limit at all on that discretion (not okay)...

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