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William Kelley: Justice Scalia, the Nondelegation Doctrine, and Constitutional Argument
Michael Ramsey

William Kelley (Notre Dame Law School) has posted Justice Scalia, the Nondelegation Doctrine, and Constitutional Argument (Notre Dame Law Review, Vol. 92, No. 5, 2017).  Here is the abstract:

Justice Antonin Scalia wrote two major opinions considering the nondelegation doctrine. In Whitman v. American Trucking Associations, he accepted and applied a very broad, indeed virtually unlimited, view of Congress's power to delegate authority to administrative agencies that was consistent with the Court's precedents since the New Deal. In his dissent in Mistretta v. United States, however, he concluded that the constitutional structure formally barred the delegation of naked rulemaking power to an agency that was untethered to other law execution tasks. This essay analyzes Justice Scalia's nondelegation jurisprudence in light of the general jurisprudential commitments he championed throughout his tenure, in particular his preference for rules versus standards as a method of cabining judicial discretion and his devotion to constitutional originalism. The essay concludes first that Justice Scalia embraced a broad view of Congress's power to delegate because he (again, consistently with the Court's longtime understanding) believed that the line-drawing required for courts to police delegations was ultimately a matter of discretionary judgment that judges are unsuited to make. With respect to his nondelegation doctrine jurisprudence's consistency with originalism, it is a gap in his jurisprudence that he never took on that question. That gap is best understood, the essay suggests, by his attraction to the deferential nature of the Court's longstanding precedents and the doctrine of stare decisis.

This essay is part of the Notre Dame Law Review symposium on Justice Scalia.  The full issue is available here (contributions from Judge Brett Kavanaugh, Amy Coney Barrett (Notre Dame), me, Brian Fitzpatrick (Vanderbilt), Kevin Walsh (Richmond), Alan Meese (William and Mary), Abbe Gluck (Yale), Anthony Bellia (Notre Dame), William Kelley (Notre Dame), Bradford Clark (GW), Gary Lawson (BU), and Adrian Vermeule (Harvard)).  My essay is also available on SSRN: Beyond the Text: Justice Scalia's Originalism in Practice.

As to the nondelegation doctrine, Whitman was an atrocious opinion from an originalist perspective, regardless of whether the outcome was correct.   Although arguably defensible on the basis of precedent, I think it arose mainly from the Justice's concern over line-drawing problems (as Professor Kelley suggests).  Moreover, the respondents did a poor job of invoking originalist arguments.  Justice Thomas wrote, concurring in the majority opinion:

The parties to these cases who briefed the constitutional issue wrangled over constitutional doctrine with barely a nod to the text of the Constitution. Although this Court since 1928 has treated the "intelligible principle" requirement as the only constitutional limit on congressional grants of power to administrative agencies, see J. W Hampton, Jr., & Co. v. United States, 276 U. S. 394, 409 (1928), the Constitution does not speak of "intelligible principles." Rather, it speaks in much simpler terms: "All legislative Powers herein granted shall be vested in a Congress." U. S. Const., Art. 1, § 1 (emphasis added). I am not convinced that the intelligible principle doctrine serves to prevent all cessions of legislative power. I believe that there are cases in which the principle is intelligible and yet the significance of the delegated decision is simply too great for the decision to be called anything other than "legislative."

As it is, none of the parties to these cases has examined the text of the Constitution or asked us to reconsider our precedents on cessions of legislative power. On a future day, however, I would be willing to address the question whether our delegation jurisprudence has strayed too far from our Founders' understanding of separation of powers.

This failure to invoke originalist arguments would likely not happen today.  And unease over the constitutional foundations of the administrative state is stronger now as well.  If Whitman had come later, I think we would have seen a different set of briefs and opinions (although perhaps not a different result).