Mistretta v. United States

Justice Scalia dissented, writing, "because I can find no place within our constitutional system for an agency created by Congress to exercise no governmental power other than the making of laws." The problem with the commission, he held, was precisely its lack of judicial or executive powers. He was concerned that responsibility for making laws could be delegated to "experts" in a given field-- people with no official accountability. "How tempting," he wrote,

to create an expert Medical Commission (mostly M.D.'s, with perhaps a few Ph.D.'s in moral philosophy) to dispose of such thorny, `no-win' political issues as the withholding of life-support systems in federally funded hospitals, or the use of fetal tissue for research.

The commission, in Scalia's view, was an unelected body with the powers of an elective legislature.

Scalia particularly took issue with the Court's holding on the commission's location. The fact that Congress chose to locate the commission within the judicial branch, he suggested, was merely a trick of language, but it did not change the facts. In accordance with its ruling in Humphrey's Executor v. United States (1935), the Court should ask which of the three branches controlled the commission, as the answer would solve the question of its location. Citing his dissent in Morrison v. Olson (1988), which upheld a statute providing for an independent counsel to investigate members of the executive branch, Scalia held that the Court's present decision made its earlier ruling seem logical by comparison. The Court had already--wrongly, in his opinion-- authorized the creation of offices within the executive branch that were not subject to ordinary standards of accountability; now, by extending that principle to the judicial branch, it had made a mistake "we will live to regret . . . Ignoring the Constitution's strict guidelines regarding separation of powers, Scalia concluded, the Court had in effect created "a new Branch altogether, a sort of junior-varsity Congress."