In yesterday’s post about the Supreme Court’s possible revival of the non-delegation doctrine, I remarked, “If I recall correctly, Justice Antonin Scalia was wary of the arbitrary line-drawing that robust judicial enforcement would entail but was open to the idea that some such enforcement might be necessary.”
A friend points me to this 1980 article by then-Professor Scalia, which ends thus:
Recently, however, the notion seems to have taken root that if a constitutional prohibition is not enforceable through the courts it does not exist. Where that mind set obtains, the congressional barrier to unconstitutional action disappears unless reinforced by judicial affirmation. So even those who do not relish the prospect of regular judicial enforcement of the unconstitutional delegation doctrine might well support the Court’s making an example of one –just one — of the many enactments that appear to violate the principle. The educational effect on Congress might well be substantial.
If you’re interested in the topic, the whole thing is worth reading, as is Scalia’s dissent in Mistretta v. U.S. (1989).