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.