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Scalia's thirty-page draft dissent surprised Justice Harry Blackmun for its emotional content; Blackmun felt "it could be cut down to ten pages if Scalia omitted the screaming".

Scalia indicated that the law was an unwarranted encroachment on the executive branch by the legislative. United States challenged the United States Sentencing Commission, an independent body within the judicial branch whose members (some of whom were federal judges) were removable only for good cause.

Committee members had little taste for a second battle over Scalia and were in any event reluctant to oppose the first Italian-American Supreme Court nominee.

Scalia, who attended the hearing with his wife and nine children seated behind him, found time for a humorous exchange with Democratic Ohio Senator Howard Metzenbaum, whom he had defeated in a tennis match in, as the nominee put it, "a case of my integrity overcoming my judgment". The full Senate debated Scalia's nomination only briefly, confirming him 98–0 on September 17, 1986 and thereby making him the first Italian-American Justice.

The Court held that although Congress had authorized Hamdi's detention, Fifth Amendment due process guarantees give a citizen held in the United States as an enemy combatant [Hamdi] the right to contest that detention before a neutral decision maker.

Scalia wrote that the AUMF (Authorization for Use of Military Force Against Terrorists) could not be read to suspend habeas corpus and that the Court, faced with legislation by Congress that did not grant the president power to detain Hamdi, was trying to "Make Everything Come Out Right".

He warned, "Frequently an issue of this sort will come before the Court clad, so to speak, in sheep's clothing ... The petitioner argued that the arrangement violated separation of powers and that the United States Sentencing Guidelines promulgated by the Commission were invalid.

Eight justices joined in the majority opinion written by Blackmun, upholding the Guidelines as constitutional.

Scalia accused the majority of "spring[ing] a trap on the Executive" by ruling that it could hear cases involving persons at Guantanamo when no federal court had ever ruled that it had the authority to hear cases involving people there.In 1996, Congress passed the Line Item Veto Act, which allowed the president to cancel items from an appropriations bill (a bill authorizing spending) once passed into law. The matter rapidly reached the Supreme Court, which struck down the law as violating the Presentment Clause of the Constitution, which governs what the president is permitted to do with a bill once it has passed both houses of Congress.Scalia dissented, seeing no Presentment Clause difficulties and feeling that the act did not violate separation of powers.He was interviewed for the position of Solicitor General of the United States, but the position went to Rex E. Scalia was offered a seat on the Chicago-based United States Court of Appeals for the Seventh Circuit in early 1982 but declined it, hoping to be appointed to the highly influential United States Court of Appeals for the District of Columbia Circuit (D. That choice meant that Reagan would also have to choose a nominee to fill Rehnquist's seat as associate justice.Feeling that this might well be Reagan's last opportunity to pick a Supreme Court justice, the president and his advisers chose Scalia over Bork. Reagan wanted to appoint the first Italian-American justice.When Senate Judiciary Committee hearings on Scalia's nomination opened in August 1986, he faced a committee that had just argued divisively over the Rehnquist nomination.

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