And to question the constitutionality of these agencies at this late date would be to sound the death-knell for the unitary executive theory . . .. . . which might explain why Justice Scalia wrote only for himself in Morrison (with Chief Justice Rehnquist writing for the Court in an opinion rejecting most of the UE theory).The one-sided vote in Morrison might be explained, in part, by an case that was argued two years previously: President Reagan's Solicitor General, Charles Fried,… [read post]

Thus, I think it helpful in considering the application of the factors identified in Whiten, to bear in mind the facts of Whiten as they compare to this case.Another factor mentioned in Whiten as part of the proportionality analysis is the need to consider the totality of all other penalties including compensatory damages imposed on the defendant. [read post]