Thunder Basin Coal Co. v. Reich, 510 U.S. 200, 20 (1994)

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Cite as: 510 U. S. 200 (1994)

Opinion of Scalia, J.

Justice Scalia, with whom Justice Thomas joins, concurring in part and concurring in the judgment.

I join all except Parts III-B, IV, and V of the Court's opinion. The first of these consists of a discussion of the legislative history of the Federal Mine Safety and Health Amendments Act of 1977, 30 U. S. C. 801 et seq. (1988 ed. and Supp. IV), which is found to "confir[m]," ante, at 209, the Court's interpretation of the statute. I find that discussion unnecessary to the decision. It serves to maintain the illusion that legislative history is an important factor in this Court's deciding of cases, as opposed to an omnipresent makeweight for decisions arrived at on other grounds. See Wisconsin Public Intervenor v. Mortier, 501 U. S. 597, 617, 621 (1991) (Scalia, J., concurring in judgment).

As to Part V: The only additional analysis introduced in that brief section is the proposition that "the parties' arguments concerning final agency action, a cause of action, ripeness, and exhaustion" need not be reached "[b]ecause we have resolved this dispute on statutory preclusion grounds." Ante, at 218, n. 23. That is true enough as to the claims disposed of in Part III, but quite obviously not true as to the constitutional claim disposed of in Part IV, which is rejected not on preclusion grounds but on the merits.* The alleged impediments to entertaining that claim must be considered. It suffices here to say that I do not consider them valid.

*I understand Part IV to be dealing with the issue of whether the exclusion of judicial review adjudged in Part III is constitutional. Even though, as Part III has determined, the Federal Mine Safety and Health Amendments Act of 1977 precludes judicial review of the agency action that is the subject of the present suit, the district court retains jurisdiction under the grant of general federal-question jurisdiction, see 28 U. S. C. 1331, for the limited purpose of determining whether that preclusion itself is unconstitutional and hence ineffective. Cf. Ng Fung Ho v. White, 259 U. S. 276, 282-285 (1922) (permitting habeas corpus review of deportation orders); Battaglia v. General Motors Corp., 169 F. 2d 254, 257 (CA2 1948).

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