This is not the only problem with Scalia’s dissent. I was also struck by his opening complaint that “Too many important decisions of the Federal Government are made nowadays by unelected agency officials exercising broad lawmaking authority, rather than by the people’s representatives in Congress.” I agree with that sentiment, but Scalia may have done more than any other current justice to make that a reality. See, for example, his opinion in City of Arlington v. FCC, which authorizes agencies to determine the scope of their own regulatory authority if Congress has been insufficiently clear in defining statutory limits. But that’s a subject for another day. For now, I’ll stick to noting Scalia’s embarrassing mischaracterization of the issue in American Trucking. Homer nods.
Scalia is more than willing to forget his originalist principles when they conflict with his statist preferences.
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