Part 1 in this series discussed Justice Scalia’s originalism and talent as a wordsmith. It is worthwhile to dedicate the second part of this series to the structural Constitution because of its immense importance in his work.
Indeed, Scalia regularly emphasized the importance of the structural commands of the Constitution as even more crucial to protecting the rights of citizens than the Bill of Rights itself. “[I]t is a mistake to think that the Bill of Rights is the defining, or even the most important, feature of American democracy. Virtually all the countries of the world today have bills of rights,” Scalia pointed out. He quoted one modern constitution that included an impressive list of rights even more sweeping than those in the U.S. Constitution, including “freedom of speech, of the press, and of assembly, meetings, street processions and demonstrations,” the “freedom of conscience,” and “the right . . . to criticize” government institutions—“Persecution for criticism is prohibited.” The catch was that these rights were found not in a nation that was a model of freedom, but in the 1977 Constitution of the U.S.S.R.
They were not worth the paper they were printed on, as are the human rights guarantees of a large number of still-extant countries governed by Presidents-for-Life. They are what the Framers of our Constitution called “parchment guarantees,” because the real constitutions of those countries—the provisions that establish the institutions of government—do not prevent the centralization of power in one man or one party, thus enabling the guarantees to be ignored. Structure is everything.
Scalia identified two structural features of the U.S. Constitution that especially safeguard liberty: separation of powers and federalism.
Perhaps one of the most prominent opinions penned by the justice was his lone dissent in Morrison v. Olson (1988) that still stands as a landmark articulating the importance of the separation of powers and the authority of the president over the executive branch. The logic of his arguments is a major driving force behind this term’s cases, like Trump v. Slaughter, dealing with the president’s power over executive officers.
In Morrison Scalia warned against the dangers of the independent counsel created by the Ethics in Government Act of 1978 with the now-famous phrase: “[T]his wolf comes as a wolf.” The majority in that case upheld the constitutionality of the independent counsel, empowered to investigate and prosecute executive branch officials, who was appointed by a three-judge panel and not subject to removal by the president; the attorney general could remove her for “good cause.”
Scalia warned that vesting prosecutorial power in an officer removable only for cause and beyond presidential control violated the foundational command that began Article II: “The executive Power shall be vested in a President of the United States.” Quoting that language, Scalia emphasized that “this does not mean some of the executive power, but all of the executive power.” His entire opinion decimated the majority’s reasoning that the existence of for-cause removal left some power in the hands of the Executive: Claiming the executive branch retained control because of “[t]he Attorney General’s ‘power to remove the counsel for “good cause,”’” he wrote, “is somewhat like referring to shackles as an effective means of locomotion.” And Scalia disagreed with the Court that the independent counsel was an inferior rather than a principal officer because she could not be subordinate to the attorney general if he had no right to remove her without cause: That limitation was “specifically intended to ensure that she be independent of, not subordinate to, the President and the Attorney General.”
Scalia’s dissent is a tour de force that has only improved with age, picking up adherents even among Democrats who had supported independent counsels in the post-Watergate era (at least when it benefited them politically). Janet Reno, President Clinton’s attorney general, supported reauthorization of the independent counsel in 1993, only to do an about-face in 1999, after President Clinton was investigated by Ken Starr. She testified before a Senate committee about the independent counsel statute’s “flaws” that “cannot be corrected within our constitutional framework” and explicitly referenced Scalia’s dissent. In 2015, Justice Elena Kagan called Scalia’s opinion “one of the greatest dissents ever written and every year it gets better.”
Scalia enforced the constitutional limits of the judicial authority, most notably through enforcing the traditional doctrine of standing. In 1983, before he was on the Court, Scalia wrote in the Suffolk University Law Review that standing is “a crucial and inseparable element of that principle [of separation of powers], whose disregard will inevitably produce—as it has during the past few decades—an overjudicialization of the processes of self-governance.”
Scalia also helped ensure the legislative branch retained its proper constitutional authority. His lone dissent in Mistretta v. United States (1989) applied the nondelegation doctrine to take issue with Congress’ creation of the U.S. Sentencing Commission, which nominally existed as part of the judicial branch but exercised legislative power to create binding sentencing guidelines. Scalia noted that “judicial and legislative powers have never been thought delegable.” And contrary to the view of the majority, Scalia said “this case is not about commingling” of powers, “but about the creation of a new Branch altogether, a sort of junior-varsity Congress.”
Scalia’s administrative law jurisprudence is one area in which his commitment to separation of powers took time to mature. Early in his career, Scalia promoted Chevron deference, the doctrine that requires courts to defer to agencies’ reasonable interpretations of ambiguous statutes. Indeed, he is sometimes mistaken for the author of Chevron U.S.A. v. Natural Resources Defense Council (1984)—it was actually written by Justice John Paul Stevens two years before he arrived on the Court. At the time, judges were known for activist rulings in cases involving agency regulations, so deference may have seemed prudent to cabin in an undisciplined judicial branch.
In Auer v. Robbins (1997), Scalia wrote the Court’s opinion that took deference one step further and held that courts should defer to agencies’ interpretations of their own regulations. But he seems to have reconsidered this decision toward the end of his life. In Decker v. Northwest Environmental Defense Center (2013), writing alone and in partial dissent, Scalia declared that Auer deference “contravenes one of the great rules of separation of powers: He who writes a law must not adjudge its violation.” He called for “abandoning Auer” in his concurrence in the judgment in Perez v. Mortgage Bankers Association (2015). Scalia also questioned in dissent in United States v. Mead Corp. (2001) “whether Chevron was faithful to the text of the Administrative Procedure Act . . . which it did not even bother to cite.” It is unclear—and may remain unclear until all of the justice’s papers are released years from now—how far his retreat from Chevron had progressed by the time of his death. But the Court did quote his Perez opinion when it recently overturned Chevron deference in Loper Bright Enterprises v. Raimondo (2024). As for Auer, future Justice Brett Kavanaugh predicted in 2016 that it “will someday be overruled and that Justice Scalia’s dissent in Decker will be the law of the land.” From his lips to God’s ears.
Justice Scalia also championed the Constitution’s federalism as protecting liberty and recognized that it was inextricably linked to the separation of powers. In Printz v. United States (1997), writing for the majority, he struck down provisions of the Brady Handgun Violence Prevention Act that required state law enforcement officers to conduct background checks: “The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program.” His opinion called attention to the effect that the anti-commandeering principle involved in this question of federalism would have on “the separation and equilibration of powers between the three branches of the Federal Government itself.”
Justice Scalia approached constitutional structure with the care of an architect. He understood that seemingly small deviations from constitutional design can, over time, fundamentally undermine our system of self-government. A little erosion of separation of powers here, a seemingly small compromise on federalism there: These could add up to a government very different from what the Constitution establishes, and that has significant consequences for the preservation of liberty.
This is the second item in a three-part series. You can read the first part here.