Scalia in the Pages of Regulation

As Walter Olson has noted, before Antonin Scalia became a federal judge and ultimately a Supreme Court justice, he spent part of his career working in public policy, including a stint as editor-in-chief (and other roles) of Regulation, which was then published by the American Enterprise Institute and now is published by Cato. Scalia wrote articles for the magazine himself and edited those written by others. The sharp analysis and rhetorical wit he would later display on the Court can be seen in Regulation’s pages.

For example, in this 1979 article he argued against the Legislative Veto, a proposal to give Congress the broad power to disapprove specific regulations through resolution (which could not be overturned by presidential veto). Though Scalia was often skeptical of federal regulatory policy, he was also skeptical of this effort to constrain it, because it further removed Congress from its constitutional duty to set policy. He wrote:

Has the difficulty really been that Congress has tried repeatedly to reverse the results of agency rulemaking through legislation but has been stymied by the President? I am not aware of a single instance. … The problem has been, quite simply, that both houses have had neither the time nor the inclination to review agency rulemaking, just as they have had neither the time nor the inclination to write more detailed legislation in the first place, which would render the most significant rulemaking unnecessary.

In the same vein, this 1980 Scalia article examined the judicial implications of congressional delegation of authority to executive agencies. Such delegation is worrisome and constitutionally dubious, he acknowledged; lawmakers dodge the difficult policy questions, leaving them to agency staff. However, the proposed remedy for this delegation—having the courts settle such issues when discerning legislative intent—is even more worrisome and dubious, he argued. Rather, Congress should fulfill its duties under the Constitution:

The sorts of judgments alluded to above—how great is the need for prompt action, how extensive is the social consensus on the vague legislated objective, and so forth—are much more appropriate for a representative assembly than for a hermetically sealed committee of nine lawyers. In earlier times heated constitutional debate did take place at the congressional level.

Later that year he contributed to Regulation’s special issue, “On Saving the Kingdom,” which featured suggestions to President-Elect Ronald Reagan from eight of the nation’s top regulatory experts. (Another contributor was Bill Niskanen, who would join Reagan’s Council of Economic Advisers and later become chairman of the Cato Institute—and another editor of Regulation). Scalia’s article, on the Federal Trade Commission, focuses on very specific topics, including whether Reagan’s appointment power could significantly alter the policy decisions of the five-member commission (at least initially), and the need to reform the FTC’s powers and objectives. But at the end, Scalia floated a big-picture question that is still relevant today: given the Department of Justice’s antitrust division and the consumer-protection powers of several federal agencies, is the FTC necessary? He wrote:

Total elimination of the commission's antitrust powers would be politically most difficult; there also is some policy argument against it, namely, that it is only the commission's pro-competitive, antitrust responsibilities that have given it any internal balance and prevented it from becoming, in effect, a single-mission consumer protection agency. Perhaps the most that can be recommended along these lines at the present time is the establishment of a task force to consider the antitrust enforcement issue. It might consider, at the same time, consolidation within the FTC (or elsewhere) of the various, and sometimes overlapping, consumer protection responsibilities now entrusted to other agencies—the Consumer Product Safety Commission, the Food and Drug Administration, and the Department of Agriculture, to mention only a few.

Scalia’s short article in the first issue of 1981, boldly titled, “Regulatory Reform: The Game Has Changed,” continued to offer regulatory advice to the new administration. He noted that, historically, Republican administrations had focused on regulatory reforms intended to obstruct future Democratic administrations from making new rules; early Reagan reform proposals offered more such efforts. The problem, he lamented, is the Reaganites weren’t realizing the field had reversed: instead of obstructing future rulemakings, they should be vigorously writing rules that embodied their own economic and political theories:

Executive-enfeebling measures such as those discussed above do not specifically deter regulation. What they deter is change. Imposed upon a regulation-prone executive, they will on balance slow the increase of regulation; but imposed upon an executive that is seeking to dissolve the encrusted regulation of past decades, they will impede the dissolution. Regulatory reformers who do not recognize this fact, and who continue to support the unmodified proposals of the past as though the fundamental game had not been altered, will be scoring points for the other team.

The final article of his tenure as editor-in-chief offered a surprising critical review of the federal Freedom of Information Act. Scalia agreed with the ideals behind FOIA, but not the law that ultimately resulted (following amendments in 1974) and its consequences. He wrote:

When one compares what the Freedom of Information Act was in contemplation with what it has turned out to be in reality, it is apparent that something went wrong. The act and its amendments were promoted as a means of finding out about the operations of government; they have been used largely as a means of obtaining data in the government's hands concerning private institutions. They were promoted as a boon to the press, the public interest group, the little guy; they have been used most frequently by corporate lawyers. They were promoted as a minimal imposition on the operations of government; they have greatly burdened investigative agencies and the courts. … What happened in the 1974 amendments to the Freedom of Information Act is similar to what happened in much of the regulatory legislation and rulemaking of that era: an entirely desirable objective was pursued single-mindedly to the exclusion of equally valid competing interests. In the currently favored terminology, a lack of cost-benefit analysis; in more commonsensical terms, a loss of all sense of proportion.

Displaying his trademark wit, he concluded of FOIA, “It is the Taj Mahal of the Doctrine of Unanticipated Consequences, the Sistine Chapel of Cost- Benefit Analysis Ignored.”

These articles remind readers of Scalia’s skill in communicating complex and important issues to a general audience. Such talents are as important—and scarce—today as they were in the 1970s and 1980s.