The rule of law as a law of law.

• Author: Calabresi, Steven G.
• Position: Response to Antonin Scalia, University of Chicago Law Review, vol. 56, p. 1175, 1989

Justice Scalia is famous for his strong rule orientation, best articulated in his 1989 article, The Rule of Law as a Law of Rules. In this Article, we explore the extent to which that rule orientation in the context of constitutional interpretation is consistent with the Constitution's original meaning. We conclude that it is far less consistent with the Constitution than is generally recognized. The use of standards rather than rules is prescribed not only by a few provisions in the Bill of Rights and the Fourteenth Amendment but also by key aspects of the 1788 constitutional text. The executive power, the necessary and proper power, and indeed the entire scheme of enumerated powers are all infused with standards, largely through the Constitution's implicit incorporation of fiduciary norms as a background principle of interpretation. The Constitution often prescribes rules, but it often does not. The law is what it is, whether or not it conforms to some abstract jurisprudential norm. The rule of law is not a law of rules. It is a law of law.

INTRODUCTION

In 1980, a law professor at the University of Chicago named Antonin Scalia advised the Supreme Court in the then-pending case of Industrial Union Department, AFL-CIO v. American Petroleum Institute (1) that, "even with all its Frankenstein-like warts, knobs, and (concededly) dangers, the unconstitutional delegation doctrine is worth hewing from the ice." (2) The chief danger of reviving the nondelegation doctrine feared by Professor Scalia was that, given "the difficulty of enunciating how much delegation is too much," (3) judicial enforcement of a nondelegation principle would be "an invitation to judicial policy making in the guise of constitutional law." (4) "But," countered Professor Scalia in response to his own concerns, "surely vague constitutional doctrines are not automatically unacceptable." (5)

In 1989, in Mistretta v. United States, (6) a Supreme Court Justice named Antonin Scalia faced a statute at least as empty and vacuous as the statute that Professor Antonin Scalia had urged the Court to invalidate on nondelegation grounds less than a decade earlier. The Sentencing Reform Act of 1984 charged the United States Sentencing Commission with devising legally binding sentencing ranges for federal offenses, (7) subject only to three broad goals, (8) four broad purposes, (9) seven incommensurable factors for determining offense categories, (10) and eleven incommensurable factors for determining offender characteristics. (11) It is hard to imagine a more open-ended grant of authority to an agency on so important a matter. Justice Scalia, without citing Professor Scalia, wrote:

But while the doctrine of unconstitutional delegation is unquestionably a fundamental element of our constitutional system, it is not an element readily enforceable by the courts. Once it is conceded, as it must be, that no statute can be entirely precise, and that some judgments, even some judgments involving policy considerations, must be left to the officers executing the law and the judges applying it, the debate over unconstitutional delegation becomes a debate not over a point of principle but over a question of degree.... [I]t is small wonder that we have almost never felt qualified to second-guess Congress regarding the permissible degree of policy judgment that can be left to those executing or applying the law. (12) While Justice Scalia dissented from the Court's judgment in Mistretta upholding the statute because the Sentencing Commission did not have even nominal executive authority to anchor its rulemaking power, (13) he made it clear that he "fully agree [d]" with the otherwise unanimous Court's "rejection of petitioner's contention that the doctrine of unconstitutional delegation of legislative authority has been violated because of the lack of intelligible, congressionally prescribed standards to guide the Commission." (14)

Moreover, in 2001, in Whitman v. American Trucking Association, (15) Justice Scalia wrote the opinion for a unanimous Court upholding against a nondelegation challenge a provision of the Clean Air Act mandating the administrative issuance of air quality standards, "the attainment and maintenance of which in the judgment of the Administrator [of the Environmental Protection Agency], based on such criteria and allowing an adequate margin of safety, are requisite to protect the public health." (16) Apart from a brief comment in a statutory interpretation case in 2012, in which the relevant statute specified no governing standard whatsoever, (17) nothing since 2001 suggests that Justice Scalia has changed his mind about enforcing the nondelegation doctrine.

What happened during the transition from Professor Scalia to Justice Scalia? And was the Professor or the Justice correct?

Part I of this Article addresses the first question, which we think has a very straightforward answer. When Professor Scalia became a judge, certain of his always-present jurisprudential inclinations came strongly to the fore. The same year that Mistretta was decided, Justice Scalia published a famous law review article entitled The Rule of Law as a Law of Rules (18) that provides crucial insight--in our view more insight than any other article or opinion that he has written--into his jurisprudential philosophy. While the article itself has the modest goal of describing how Justice Scalia thinks courts should formulate judge-made doctrinal principles, (19) the title and the sub-themes running though the piece perfectly encapsulate Justice Scalia's broad approach to constitutional (and indeed all kinds of) adjudication.

For Justice Scalia, the essence of law is impersonal rules that can be impersonally applied. While he stopped short in The Rule of Law as a Law of Rules of calling for an absolute ban on balancing tests and vague totality-of the-circumstances standards--he noted dryly that "for my sins, I will probably write some of the opinions that use them" (20)--it is clear that Justice Scalia finds those kinds of inquiries antithetical to both the judicial enterprise and the very notion of law. Indeed, he describes decisions under these kinds of vague standards as "not so much pronouncing the law in the normal sense as engaging in the less exalted function of fact finding." (21) If a legal norm is not rule-like, then for Justice Scalia it is not really law at all--or at the very least not law that is judicially enforceable.

Professor Scalia worried about this sort of thing quite a bit back in 1980, but clearly Justice Scalia, when faced with the actual task of formulating a workable nondelegation doctrine, elevated those worries to a new level. Because it is impossible to formulate the nondelegation doctrine in a fashion that does not leave considerable room for judicial discretion, (22) it is not surprising that Justice Scalia effectively declared it nonjusticiable.

We believe that almost all of Justice Scalia's jurisprudence, including some parts that are sometimes thought to be anomalous, can be understood in terms of his strong equation of law and rules. This conception of law as properly consisting only of rules generally overwhelms any other influences on Justice Scalia's decisionmaking, including influences drawn from interpretative theory. (23) Thus, on more than infrequent occasions, Justice Scalia's law-of-rules approach seems to lead to results that are inconsistent with his professed originalist methodology, which he set forth in another famous 1989 law review article called Originalism: The Lesser Evil. (24) His approach to the nondelegation doctrine is a good example, as is his treatment of the Privileges or Immunities Clause of the Fourteenth Amendment. (25)

All of this is understandable--and we say understandable rather than correct--once one grasps that The Rule of Law as a Law of Rules rather than Originalism: The Lesser Evil is the urtext for Justice Scalia's jurisprudence. Put in constitutional terms, if the "judicial Power" (26) is fundamentally the power and duty to decide cases in accordance with governing law, (27) then for Justice Scalia that amounts to the power and duty to decide cases in accordance with governing rules.

In Part II, we address whether Professor Scalia or Justice Scalia has the stronger argument on the legal acceptability of standards in constitutional law, and we come down squarely on the side of Professor Scalia. As (if we may be so bold) a matter of interpretation, (28) Justice Scalia is wrong to try to impose an across-the-board, rules-oriented presumption on the Constitution. The Constitution sometimes prescribes rules and it sometimes prescribes standards. Indeed, as we will show, it prescribes standards more often than one might think, including in the text of the Constitution of 1788. The original document is infused with standards to a degree that often escapes notice. The nondelegation doctrine is only the tip of the iceberg; all of the enumerated powers are granted against a background of fiduciary law that is largely driven by standards. If Justice Scalia refuses to enforce constitutional provisions that he does not regard as sufficiently rule-like, such as the nondelegation principle or less-than-absolute antidiscrimination norms, (29) the result will be to sustain objectively unconstitutional governmental acts and institutions or to invalidate objectively constitutional ones.

Of course, Justice Scalia does not advance his rule orientation directly as a theory of meaning; he grounds it primarily in concerns about the institutional role of courts. But, as we suggested above, his argument could be cast in interpretative terms by treating it as a reading of Article Ill's grant of the "judicial Power." (30) That is, Justice Scalia could be saying that because the judicial power is the power to apply law to particular disputes, Article III requires federal courts to apply only rules in adjudication...