Justice Scalia, the Nondelegation Doctrine, and Constitutional Argument

23 Pages Posted: 5 Sep 2017

Date Written: May 2017


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.

Keywords: Scalia, Nondelegation Doctrine, Mistretta, Whitman, originalism, separation of powers, judicial discretion, stare decisis, precedent

JEL Classification: K10, K30, K40

Suggested Citation

Kelley, William, Justice Scalia, the Nondelegation Doctrine, and Constitutional Argument (May 2017). Notre Dame Law Review, Vol. 92, No. 5, 2017, Available at SSRN: https://ssrn.com/abstract=3029235

William Kelley (Contact Author)

Notre Dame Law School ( email )

P.O. Box 780
Notre Dame, IN 46556-0780
United States

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