Administrative Agencies and the Separation of Powers [Showcase IV]

[Music] my name is Kevin Newsome I am a brand-new baby judge on the eleventh circuit and very pleased to be off but today I have the distinct honor of moderating which is to say getting out of the way of this all-star panel to talk to you about the administrative agencies the administrative state really in the separation of powers this is deepwater and we've got an outstanding panel to discuss it with you I want to introduce them very briefly and then as I said I intend to skedaddle and let them do what they do best but our first speaker to my far right will be Gary Lawson he is known to all of you he is the Philip aspect professor of law at Boston University and a founding member of the Federalist Society he clerked not once but twice for Justice Scalia first on the DC Circuit and then at the Supreme Court he has a graduate of Yale Law School and as particularly relevant today is the author of an oft cited federal administrative law case book to his left is John Harrison who's the James Madison distinguished professor at the University of Virginia he teaches a range of public law subjects there he clerked for Robert Bork on the DC Circuit and then served as the deputy assistant attorney general or the head I can never quite keep track of the hierarchy and at DOJ the head of the office of legal counsel and is also a graduate of Yale Law School then immediately to my right is Kevin stack who is the Lee s and Charles a spear chair in law at Vanderbilt University in Nashville teaches as well a variety of public law subjects Clerk both for Kimball wood and for Wallace Toshima of the Ninth Circuit he has authored a number of articles on today's topic administrative law including one that recently won a smattering of awards for the best authored piece in that in that area he too is a graduate of Yale Law School you may be just discovering something of a disturbing pattern here I for one am immediately to my left is Professor Akhil amar who is the sterling professor of law and political science at Yale University specializes in constitutional law and public law subjects he clerked for then judge Breyer on the first circuit he is an exceedingly prolific author and scholar as you know he just came from another program across the way he too is a graduate of Yale Law School and I will not hijack the proceedings here and I warned him that I was going to do this but I will tell you that Professor Omar is essentially the reason that I went to law school I as a college junior didn't much know what I wanted to do and I took a class called American Constitutional History that was a an original source document class so we read the text of the Constitution and the Federalist Papers and the cases and I really fell in love with that class and over the Christmas break was at home channel surfing where I came across one Akhil amar presenting as I recall at a Federalist Society event about the Fourteenth Amendment and incorporation and I said that is what I want to do so a special thanks to Professor Amara and batting in the 5 hole our cleanup hitter will be Philip hamburger who is the Maurice and Hilda Friedman professor of law at Columbia University he is an expert in constitutional law in history among other things he is the author of numerous influential books including is particularly relevant today a book called his administrative law unlawful and I'm sorry to report he too is a graduate of Yale Law School my only consolation for the Harvard Ian's and others in the room is Chief Justice Roberts recent remark at the bicentennial of Harvard Law School in Minar a minority of my colleagues in their regrets so I intend as I said to let the experts speak for themselves but very briefly let me just address what we intend to do here today the question for this panel is whether the modern administrative state can be squared with separation of powers principles generally in the United States Constitution for instance to what extent does the 21st century administrative state impinge on Congress's article 1 power the president's Article 2 powers and the judiciary's article 3 powers to what extent might a single agency combining those functions and pins upon all three simultaneously and might modern state somewhat perhaps more provocatively unfairly even dilute the right to vote with that what I'd like to do is to turn it over to our panel each of them will make initial introductory remarks and then we will begin a more free flow of ideas and I do hope that you will utilize the the microphone here in the middle of the room to ask your own questions when the time arises so first to Geary Lawson on my far right [Applause] thank you well and by the way three of us were there at the same time so it's really bad almost 25 years ago I gave a talk called the rise and rise of the administrative state and it the idea was just to take a survey of the Constitution the administrative state and so the answer to Judge Newsom's questions no that cannot be squared but what I want to do today is a quarter century later take a retrospective to see where we stand in the state of the administrative state the answer is still going to be no but the question is do we understand differently or better today why that is so than we did 25 years ago and has anything at all changed in either directions oh I'm gonna take that very quick survey through article 3 article to article 1 in whirlwind fashion so let me start with with article 3 to what extent does executive adjudication administrative adjudication encroach on functions that can only be performed by constitutional judicial institutions and by judicial institutions I mean constitutional judges and constitutional juries both are important components of the of the constitutional judicial process and what we knew a quarter century ago I think is that it was okay for executive agents to hand out veterans benefits and it probably wasn't okay for executive agents to hand out gazillion dollar fines with only limited judicial review and and I think we still know that today but I think we know it a whole lot better today than we did then and the key to all of this is found in comments from must-eat Calabresi on the very first day of this conference you need article 3 judicial process not executive process when someone is being deprived of life liberty or property and I mean real life liberty or property not welfare benefits but yes including reputation there's their mistakes in both directions on that and why do we know this well because judicial process of law just as judicial process that's what due process of law means and three years after the Constitution was ratified there was an amendment that clarified and qualified something that was already there from 1788 onward by specifying that no person shall be deprived of life liberty or property without due process of law well how do we know that it was in there from 1788 onward well I have a very long article coming out any day now that that explains that but we know it largely because of the efforts of people like Nathan Chapman and Mike McConnell Phillip hamburger Timothy sandifer and others but that's that's really the the key to all of this you need to know whether someone is being deprived of life liberty or property and as Randy Barnett just pointed out in the last debate it's not the due process question a clause it's the due process of law clause right due process of law just is decision by an appropriate judicial actor in accordance with law this goes back almost a thousand years and one of the implications of this that goes well beyond today I'm not going to explore it for you here but I want people to think about it is if that's right a due process of law is much more about substance than it is about procedure for those who are accustomed of thinking of substantive due process as an oxymoron there's actually a better case for procedural due process being an oxymoron because due process of law concerns what executive actors can do it does not concern by what procedures they can do it because if they can't do it it doesn't matter what procedures they use to do it the Secretary of the Navy could put on a robe call in a jury use rules of evidence and still can't preside over a criminal trial you just there's certain things that the Constitution says can only be done by certain kinds of actors the Constitution is an allocation of roles and functions and the function of depriving people of life liberty or property can only be performed under due process of law by judicial actors we had Paul Simon in the in the last event here all invoke those eminent legal theorists Marvin Gaye and Tammi Terrell ain't nothing like the real thing baby and what what you need for deprivation of life liberty or property is the real thing so doctrinally i think we're pretty much where we were 25 years ago at that time the the doctrine was that DoublePlay combination of Crowell to Thomas to Shore and I think we're pretty much still there today people who are tempted to try to find glimmers of hope in some random language in a case like Stern versus Marshall I think are about to get flattened in the coming term in the in the oil States case but but but we'll see so doctrinally we still have a very very long way to go some of that gap could be closed if people listen to Steve calibration and replace administrative law judges with actual article 3 judges but I'll believe that when I see it all right where do we stand in the world of article 2 well 25 years ago something I did not talk about in connection with the administrative state was the appointments process and in retrospect that was probably a mistake as as the saying goes personnel is policy and much of the Constitution is about personnel and we know actually some things about the appointments process today that we didn't know quite as well a quarter century ago in terms of who is an officer of the United States we heard earlier from Jennifer mascot impressive research sheds a great deal of light on this Seth Gilman is across the ocean in Ireland has also contributed much to our understanding of who's an officer and it's much more expansive I think then a lot of us thought 25 years ago I have long wondered about people like patent examiner's who always struck me as among the most important powerful people in the government why aren't the officers of the United States well if if Jennifer mascot is right they are and certainly administrative law judges would appear to be officers of the United States as Linda Chellam told us we'll see the courts are split on that one doctrinally we also know I think a lot more now than we did then about what makes someone a principal officer and for this I think we have to thank Justice Scalia he was the lone dissenting voice in Morris and versus Olson which said essentially principal officers are whoever the Supreme Court thinks ought to be principal officers at a given moment in time Justice Scalia in a lone dissent said no no way ma'am if somebody is issuing final decisions on behalf of the executive with no internal review except maybe by the president if you believe in a strong form of a unitary executive that has to be a principal officer and although one be hold nine years later Justice Scalia's dissenting comments find their way into a unanimous majority opinion in Edmund versus United States and a decade ago Steve calibration and I did a fairly extensive analysis of the use of the word inferior in the Constitution in the appointments clause in the article one tribunals clause in an article 3 and telsa please Justice Scalia was right okay so we do know some things about what makes somebody a principal officer that we that we didn't know then what about the main event under article two though the theory of the unitary executive now in this conference so far we've actually heard a number of things about the unitary executive what we haven't heard is a single comprehend of account of what exactly it means does the Constitution create a unitary executive well of course it does that's an easy question the harder question is what concretely that provides does it mean that the president has to be able to remove all executive officials does it mean that the president can directly exercise all statutory authority that Congress prescribes during a previous panel today DG of mom's I and Kevin stack both said no one takes that position I think if Sai Prakash was here he might have a different view I'm officially agnostic on that one but I'm pretty sure that if the president issues an instruction and a subordinate tries to do something inconsistent with it that the president has effectively vetoed that person's instruction but that's the same thing I would have said 25 years ago I think we know more about the history of the unitary executive thanks to some extensive research by Steve caliber AC Chris you and Sai Prakash among others I don't know that we're any closer to having a Creole clear consensus on exactly what the functional powers of the president are so that would be something useful to know and you know doctrinally you know what's that's that's a mess but the other thing I really wanted to focus on here and I still have two minutes so yay for me is the article one problem the delegation or more precisely the sub delegation of legislative authority now the the principle against sub delegation of legislative authority is perhaps the most over determined principle in the Constitution there are any number of independent lines of reasoning that can get you there but I think today we we know the right one and the people who deserve credit for this one are Philip hamburger and my occasional co-author Robert Nadel s'en here is the story if you're looking at the Constitution in the 18th century and trying to situate it among the kinds of documents that it most looks like it most looks like something part of a family of documents called fiduciary instruments to be more specific I would say a power of attorney but there are any number of other fiduciary instruments that would also have a strong claim and the thing is what all of those fiduciary instruments of that era had in common across all of their different dimensions is all of them had as a background principle of interpretation a rule against sub delegation of discretionary authority when power of trust is reposed in a person they are supposed to exercise it not have someone else do so except under quite specifically cabin to circumstances Express authorization not in the Constitution a very strict notion of necessity or custom which will not support most of what happens so I think we know better more clearly than we did then about the principle of sub-delegation doctrinally where are we well we've got one more justice than we used to have who will take that seriously we do not have a Congress that will take this seriously read the tarp legislation from before right we're here Secretary of Treasury here's three quarters of a trillion dollars go go do something what we do have and and and I'm gonna go back to the very first presentation I'm almost done very first presentation of this panel which was a Senator cotton pointing out some of the ways in which in the first year the Trump administration has sent certain things back to Congress things that said no this is not within our authority so I want to take that one step further the president has a pen and the president has a phone how about if the next time Congress sends a piece of mush to the President's desk the president takes that pen writes the word veto on it picks up the phone to Ryan and McConnell and says hey why don't you send me something that would actually function as a real law nothing stops the president from doing not only would it start moving us closer to perhaps the clearest and most overdetermined of all constitutional principles but just imagine the wailing and gnashing of teeth that would result it's great so conclusion nine and a half years ago a now former president intoned this was the moment when the rise of the oceans began to slow query could this possibly be the moment when the rise and rise and rise of the administrative state begins to slow time will tell thank you [Applause] law professors tends toward intellectual imperialism I'm going to engage in some intellectual decolonization and although my field is separation of powers I'm going to say that when it comes to administrative agencies in the administrative state the fundamental questions aren't about separation of powers the constitutional question that's fundamental their concerns the scope of the powers of Congress and the policy political and constitutional political questions that are fundamental to the administrative state involved the proper size of government the question what issues should be decided collectively what issues should be decided by private people to make that point I'm going to talk about the Federal Communications Commission and by that I mean both the agency of that name the Federal Communications Commission and more important the article by that title the Federal Communications Commission and volume 2 of the Journal of law and economics how good can our article that has as its title the name of a federal regulatory agency be good enough to win you the Nobel Prize Federal Communications Commission by Ronald Coase has the first enunciation of the Coase theorem which was then elaborated on the next year in the problem of social cost KO's didn't like the way Congress has set up broadcasting in the Federal Communications Commission he favored what we would call privatization of the airwaves in contrast to the structure that Congress had created back in the 1920s Congress had decided quite self-consciously that the airwaves belong to the public not to any private person they are not to become objects of private property rather they will continue as the property of the public and be administered by the government first the federal Radio Commission than the Federal Communications Commission on behalf of the public the government will allow private broadcasters licenses permission to use this asset that belongs to the public on terms that the agency thinks are consistent with the public interest and the agency was given very considerable discretion in doing that my main point about separation of powers is that grants of discretion like that are completely unproblematic with respect to the executive power and the executive function for an agency to exercise discretion and giving out that kind of benefit letting private people participate in some public interests is just fine the executive power is the power to use the assets of the government material and juridical like control of the airwaves to accomplish the goals of the government as set out in the law pursuant to constraints set out in the law that's what the executive power is and in the performance of those functions the exercise of discretion is common and perfectly constitutional for example the executive conducts Wars decides what targets to attack uses the juridical combatant immunity and physical f15 assets of the government and exercises a great deal of discretion in doing so in enforcing the law the executive branch uses a very important juridical asset of the government which is the cause of action to prosecute people for violating the law and exercises a great deal of discretion in doing that that is just fine that is the executive power at work administering the assets of the public like for example the airwaves now you may be thinking but wait the airwaves can't be property the airwaves are not a physical object haven't you heard of special relativity there is no ether that's true there is no ether but the concept of property including the concept of public property is broader than physical objects as anybody who understands an electoral property knows the actual structure of property public and private is the combination of a general prohibition on some kind of activity like for example entering on black acre along with a power in somebody the owner who may be a private person or maybe the public to give permission to do what is otherwise forbidden that's the structure that's the structure that underlies the kind of regulation that the FCC engages in and it involves as I say an unproblematic exercise of discretion form of the executive power it's just property in this case it's public property that mode of regulation creating a public interest creating public property and allowing private people to participate in it on conditions set on behalf of the public by the government goes all the way back the first Congress for example regulated the Indian trade by imposing a general prohibition was called the non-intercourse Act on conducting commerce with the Indians then said the president can license commerce with the Indians making commerce with the Indians not a private but a public matter and putting the executive on behalf of the public the president in charge of administering that asset of the public another important Antebellum regulation regulation of steamboats safety took the same form there was a general prohibition on using an asset of the public the navigable waters of the United States without a license that was first done in creating the licensing scheme for the coasting trade then in the 1830s and 1840s Congress added steamboat regulation and the substantial amount of discretion to that structure continuing to use the form of licensing to use some asset of the public there excuse me the navigable waters of the United States which the Supreme Court in the 1850s in the wheeling bridge case said are a public right not a private right so changing the rules about them didn't constitute deprivation of private rights how far does this structure reach how much regulation with executive discretion can Congress create by creating public interests and then giving private people permission to participate in them like trade with the Indians like broadcasting like using the navigable waters in the United States that depends on the scope of congressional power that's why I say the fundamental question having to do with the scope of the the convertible constitutional law question having to do with the administrative agencies in the administrative state is about congressional power can congress forbid banking across state lines without a federal license can congress forbid discharges into the navigable waters of the united states by sources of pollution without a license can congress forbid discharges into the air by and here i'm about to use a phrase that will cause the heart of every adllaw lawyer in this room to beat faster a stationary source that too is a question of congressional power questions of separation of powers of the executive power and limitations of it as I say secondary far less important barely important at all in fact in this in a lot of in a lot of respects those questions are basic to the Constitution what can Congress do the growth of the administrative state is the growth of the scope of congressional power not just the scope of executive power and the fundamental question of constitutional politics is how broad should the power of the government in this case the power of the federal government be what should be private what should be public for example how much of health care should be administered by the public through trillions of dollars worth of spending programs that's about the size of the public sector that is a fundamental question when it comes to spending the public's money exercises of discretion by the executive are as I say routine the last point I want to make about this the fundamental nature of the question what should be public what should be private is that that has been a basic maybe the basic question of American constitutional law and American constitutional politics throughout the country's history in the antebellum period the basic doctrine of American constitutional law was private rights are sacred the legislature may not take the property of a and give it to be that was the protection of the private but courts also acts recognized the police power and authority to control the private in the interests of the public what should be private what should be public after the Civil War the courts began to develop what we now call quite inappropriately substantive due process and there are two as a keel and Randy we're talking about at lunch the one of the fundamental questions I would say the fundamental question is how much redistribution through regulation is permissible the line between pipe private rights and the interests of the public basic to that and the courts develop doctrines like for example here's a wonderful phrase that tells you what you need to know like the concept of a business affected with a public interest what is a business effected with a public interest it is a private business that is sufficiently public to be subject to a substantial amount of regulation did all that go away in the 1930s when the courts basically gave up on the idea of saying no redistribution through regulation no another set of issues having to do with what is public what is private what is individual and what is collective came to the fore that's what the modern constitutional doctrine often called individual rights of freedom of speech privacy religious liberty are all about to what extent our morals for example properly regulated in the interests of the public Randy was talking about this at lunch and the public morals and the moral environment in which we all live and to what extent are those questions appropriately private continues to be a dominating question in American constitutional law one of the really interesting things that happens in American constitutional law is what happens when two of the great modern themes protection of certain kinds of Liberty of conduct like speech and the other great modern principle redistribution is fine not so much in the 19th century couldn't take the property of a and give it to be 21st century what do you think the government is for what happens when those two principles collide with one another what happens when there is regulation of speech that is in the interest of achieving distribution goals the answer is citizens united gets decided and people's heads explode but that question what is public what is private is the basic question of American constitutional politics the basic question of American constitutional law is what is the scope of congressional power under the Constitution and those are what the struggle over the administrative state and administrative agencies are really about thanks so much judge Newsom for the introduction and also I'm grateful to the organizers of the panel for the invitation to speak today I think my role in panels to stir the pot just a little bit but I know plenty of people on this panel who are very comfortable with stirring the pot so I'm I don't think I'll be out of favor so thanks to Professor Lawson this audience has just heard an excellent overview of separation of challenge powers challenges and the state of the current law with regard to administrative government and one of those challenges that's been gaining new adherents both on and off the bench is the idea that the combination of agency functions violates separation of powers as we all know agencies have the power to make rules to conduct Abdo dication and to engage in enforcement actions and so the combination of functions objection says allowing the same officials often at the top of agencies to participate in these functions rulemaking of jude occasion and enforcement violates the separation of powers so after giving a brief overview of the current law and makes several arguments or try and convince you or some of you this that the combination of functions doesn't violate separation of powers specific i'm going to argue that there's no freestanding separation of powers principle that prohibits agencies from extra exercising combined functions in my view the real concerns that motivate combination of functions challenges are objections about fairness and the Due Process Clause provides the most suitable constitutional vehicle for registering and policing concerns so the challenge to agencies combination of functions is not a new one it was a stated crisply 25 years ago and press Lawson's article in the past few years it's gained some new adherence from scholars a very different perspective including professor hamburger professor Dorf have both pressed the point issues also been raised in the Supreme Court Chief Justice Roberts provided I think the most prominent discussion in a dissenting opinion in city of Arlington in 2013 they are the Chief Justice began as many challenges to combination of functions due by quoting James Madison from Federalist number 47 it's a quote I think what we failure to familiar to many in the room the accumulation of all powers legislative executive and judiciary in the same hands may justly be pronounced the very definition of tyranny the Chief Justice went on although modern administrative agencies fit most comfortably within the executive branch as a practical matter they exercised legislative power executive power and judicial power this accumulation the Chief Justice seemed to imply poorly fits within our constitutional plan let me first explain why under current law the combination of functions doesn't violate separation of powers the current law reflects Justice Scalia's formal view of separation of powers it can be stated very briefly when agencies engage in rulemaking and when agencies engage in adjudication they exercise executive power as Justice Scalia wrote in city of Arlington under our constitutional plan they must exercise executive power the reason is simple because no legislative power may be delegated to agencies and likewise no judicial power may be vested interest rate of agencies so agencies as part of the executive branch exercised only executive power and because agencies exercised only executive power their combination of functions is not a combination of powers in the separation of powers since the current law says agencies simply don't possess a combination of constitutional powers now critics of the current law are not satisfied with that response at all they assert as Chief Justice Roberts did in city of Arlington that as a practical matter agencies do exercise legislative power and judicial power so my first point is that many objections to combination of functions are really objections to delegation doctrines they're really objecting to delegation doctrines which they view as improperly permitting agencies to exercise legislative and judicial power from this perspective the presence of combination indicates a prior failure of the delegation doctrine so delegation doctrine this sense operates as a kind of indicator light that there's another violation has occurred but doesn't say to separate an independent ground for constitutional violation my second point is that objections to combination of functions are frequently inconsistent in their use of formalist and functionalist reasoning and then a that Akins end that a consistent formalist or a consistent functionalist doesn't find a problem with combination of functions so first let me explain the inconsistency when Chief Justice Roberts says that as a practical matter agencies exercise legislative and judicial power he's identifying the agency's actions based on their function as in the thought when agencies engage in rulemaking their their function as a practical matter look legislative this way of thinking identifies the type of power the agencies exercised in the in terms of the way in which it functions but the objections to combination of functions marries this functional identification of the type of power with the formalist understanding of the separation of powers prohibition that that prohibition being that formulas prohibition being the executive officers may only exercise executive power it is this melding of a functionalist out of Education of the type of power and a formalist understanding of the prohibition that brings the combination of functions objection to life but neither a consistent formalist nor a consistent functionalist reaches that conclusion for consistent formalist like Justice Scalia there's no combination of functions problem because agency only agencies only exercise executive power and likewise suppose hold our seats for a second here suppose we go all in for a functionalist reading of separation of powers it's not at all clear why combination of functions violates the looser functionalist imperative to maintain overall balance between the branches my third point is that the Madisonian prohibition in Federalist 47 doesn't bar a combination of functions nor is there any other freestanding constitutional principle that does the Madisonian prohibition is against the accumulation of all powers legislative executive and judiciary in the same hands but Madison makes very clear that he's referring to the possibility that the whole power of one department is exercised by the same hands which possess the whole power of another department but no one claims that administrative agencies exercise the whole legislative power or the whole judicial power and so the mere combination of the exercise of some legislative and some judicial power and the executive does not violate the Madisonian prohibition in Federalist 47 we could keep looking but there's no prohibition on executive officers exercising some legislative in some executive functions the Madisonian prohibition and the general idea of separated powers may offer a good explanation or rationale for the allocation of powers to the separate constitutionally recognized bodies but as dean john manning has cautioned we should not confuse a justification for the design of our Constitution with a free-standing separation of powers principle and there is no other freestanding separation of powers principle that requires any subordinate body with when within one of the branches to have the same internal structure as the Constitution of 1789 as Professor Sunstein's and verme you'll put the point so even if separation of powers does not prohibit agencies combination of functions I think there are some real concerns that motivate combination of functions challenges and I see these concerns as fundamentally concerns about fairness most important concern as I see it is the worry that administrative adjudication out impartial and somehow formally or informally their position as part of administrative agencies makes them more likely to decide decision in favor of the outcome that agency enforcement officials seek that concern falls directly in the heartland of due process which requires a neutral objec so my conclusion then is that administrative agencies combination of functions don't violate separation of powers on either formalist functionalist I need your foremost or functionalist understandings but if the combination of functions generates it but if combination of functions generates genuine fairness concerns we should develop our due process law that effort won't leave to lead to invalidating multi function agencies it rather calls on lawyers to be engaged reformers of a legal process within the administrative agencies pressing the premises of the rule of law just as they are with the civil justice system and the criminal justice system thank you [Applause] it's been so long since we got together but it's good to see you again so here's and this always an honor to be with you here's the good news Gary Lawson and I do go way back and and he can be a bit of a doom and gloom person but but Gary I would say glass is half-full so and and I think I'm closer than two - Kevin's position let's talk about some of the big Administrative Law controversies of the last century and let me pick up where I left off across the hallway in the long run my claim is practice often works itself back to the constitutional text that's the fundamental thesis of this book called America's unwritten Constitution so for a long time the text for example says freedom of speech of the press we're not doing it now we are it it says the privileges and immunities which really means among other things incorporation for many years we're not doing that now we are sometimes actually people say well substantive due process is made up and even if you thought actually process only means process and we've heard some accounts of it has to be of law but even if you thought substantive due process is made up and then there's people say oh and so that shows the Constitution's text is irrelevant and look at the privileges or amused cause courts don't enforce it so that shows the Constitution is irrelevant I said well actually each one might be the answer to the other what the courts are calling substantive due process maybe is just better conceptualized as as privileges or immunities or you say the courts making are making up one-person one-vote jurisprudence but actually you are and therefore you know the Constitution's text doesn't mean anything but you also say the Republican form of government Clause isn't taken seriously and the right to vote language a section 2 of the Fourteenth Amendment isn't taken seriously well actually maybe the right to vote jurisprudence although maybe mislabeled we call it equal protection is better understood as a republican government Clause as the right to vote which appears in Fourteenth Amendment section 2 but also the fifteenth nineteen twenty fourth twenty six so maybe actually even when courts are giving things the wrong labels they actually are getting closer to what the Constitution really des and doesn't say so that's a fundamental thesis of America's constitute unwritten Constitution that the war in court which everyone said made all sorts of things app well it actually gave you free speech and free press and the text actually says that gave you incorporation the Bill of Rights and the text actually says that it gave you a right to vote and the text says that five times it gave you a religious equality in the text and really says that too it gave you racial and interracial segregation the text really does say racial equality so now how about the administrative state so here are some of the half-full aspects of this story so we had this practice hundreds of laws that had these things in them called legislative vetoes and the court when the case finally got to the Court Chadha laughed this device out of court and rightly so because from a formalist point of view you see it has to be what is this legislative veto it has to be their legislative executive or judicial power because those are the only three kinds of powers in the document and if it's legislative it requires bicameral prism and presentment and the legislative veto didn't do that and if it's executive or judicial in general legislatures can't do that absent some specific Clause authorizing them to do something judicial like impeachment or judging the qualifications and elections of each members this is just a formalist proof and it prevails and there's only one Justice who ever thought otherwise unfortunately he's also a Yale Law School graduate the Byron white but he is no longer on the court and and that's because actually the practice eventually was brought into alignment with the Constitution now we have this other big innovation invention independent counsels and they prevailed for a while but Justice Scalia looked at his copy the Constitution says how can you be inferior and independent at the same time and the answer is you can't and eventually I think actually although he was alone in dissent in that case heroic the way John Marshall Harlan was heroic and dissent and Plessy because it really did say equal and eventually actually see Brown repudiates Plessy and we get back to equal so to Justice Scalia and he is heroic in the way that John Marshall Harlan was in plus he says it really says inferior and you're not an inferior officer when you have all this independence and I think and I was with him from day one I'm proud to report I have students here in the audience who who can attest to that because I'm a formless Kevin on this and and I think the world did come around to that point of view and as Gary mentioned Scalia himself writing for the court in a case called United States versus Edmund actually wrote major portions of his descent into US reports and inferior and alq means well inferior which generally means you're supposed to have as superior because it's not in fear doesn't mean small it's a relational concept you have to be inferior to something else like if you're on a court it's inferior to the Supreme Court which some judges understand other judges Steve Reinhardt don't so that's the obligatory Ninth Circuit and joke but but it's a relational concept and then fear has to have a superior and that's actually where we are I think and the Independent Counsel law failed we don't have it anymore and that's again more sign that the the glass really is half-full and getting fuller all the time that the practice is maybe gradually but eventually working itself pure as measured by the practice now what so I've told you about independent councils and I've told you about legislative vetoes I could tell you about Buckley versus Valeo not on the citizens united part of it and by the way I'll defend Citizens United I think it's getting the First Amendment right so I'm with the Conservatives on the court on that but I do think campaign contributions are quite different and Buckley versus Leo distinguishes between campaign contributions and and ads that have an effect only if they do have an effect because they persuade voters one person one vote secret ballot on Election Day and people get to decide what will persuade them but Buckley also even though I think is fundamentally right in its deep structure which actually supports the result in citizens united is a separation of powers administrative law case because Congress actually tried to pass in in that that that statute was a kind of crazy statute in which actually the the Congress actually passed this pretty outlandish it was the law the statute said that two members of this Federal Election Commission were to be formally named by the Senate leader two others by the Speaker of the House the final two by the president with all six members to confirm by both houses of Congress and when the statute reached the court the justices disagreed about all sorts of other things but again they laughed that out of court now finally the elephant in the room what about professor independent agencies well I think the independent agencies I'm going to be a formalist of a certain sort in the Kevin stack Scalia tradition are actually executive agencies their executive branch agencies of a certain sort that and legislative courts are neither legislative nor courts their executive agency you know it since it's neither holy nor Roman nor an empire they are because they actually are you see these so independent agencies who appoints them not Congress not any part of Congress not the house not the Senate not the Senate leader not to speak with us they tried to do that and the court said no appointed by the president every single person on a so-called independent agency now how removes them the president and only the president has the power of unilateral removal apart from the impeachment process which is also provided for does the Senate actually participate in removal or do it itself no does the house do it no these are now by what term of office do they sit and do they are they removable at will or for a cause well that does distinguish cabinet officers from independent agencies but here's the thing see the text of the Constitution doesn't actually clearly specify the rules of removal to the same extent it actually specifies the rule of appointment they're appointed by President with Senate confirmation just like the cabin officers are and if you cut sent a confirmation out of the loop that the person has to be inferior see Scalia in Morrison versus Olson so the only these are appointed by the president confirmed by the Senate removable by the president and only the president that's cabin officers independent agencies the only question is is it at will or for cause and the Constitution doesn't you see tell us very much about that now the decision of 1789 does tell us that basically it glosses the text and by the way when you read Federalist Papers Hamilton says the Senate's going to have to be involved in removal as well as appointment and he backtracks on that position and repudiates it in 1789 and I think he's right to repudiate it but what the scope of the decision of 1789 is it all a Senate compromise or can it be a subset and I think the text can plausibly read to say that for a subset of Senate conferees you can have good cause and and by the way what what counts for a good cause well one thing that might be good cause is defiance of a lawful presidential order who at the present as superintendent in chief and who takes care is supposed to take care that the laws be faithfully executed he doesn't execute them but he takes carries that that others do I'm gonna my time is at an end but I do want to maybe in the Q&A if you have are interested tell you what distinguishes what are the distinguishing features that permit certain folks to be removable only for a cause whereas other folks are covered by the decision of 79 they have to be removable at will and in a nutshell and I'll give you the functional reasons why in the structural reasons why if you are removable only for good cause you basically need to be on a multi-member Commission this is the fundamental thesis of Judge Cavanaugh in a case that's now back up on bunk in the DC Circuit and I'm with him on that and I don't know how he's going to do in the DC Circuit but my prediction is he will is if that view is the core the correct view and therefore will prevail on the Supreme Court because we are actually living in a world where the glass is half-full and getting fuller every day thank you very much [Applause] well I have a slightly different thesis I'm not going to talk about separation of powers and that's perhaps why I was put at the end I'm gonna talk about the administrative threat to civil liberties administrative power is the single greatest threat to civil liberties in our era no single development in our legal system deprives more Americans of more constitutional rights the constitutional problems with administrative power are usually said to lie in the separation of powers or if you want to be expansive you might add federalism and that's all very interesting but that's only half the story and I think not the most interesting half in addition administrative power violates constitutional rights and this is a central Civil Liberties issue to understand this I want to focus on five topics and we're just gonna do it very briefly first to process second Gary's third judicial violations of procedural rights for the transformation of procedural guarantees into mere options for power and fifth equal voting rights first due process the fifth amendment guarantees the due process of law and in defense of administrative adjudication it is said that due process is sentry a limit on the courts not so much on other parts of government or an alternative it is said that administrative adjudication provides all the process that is due surely the smarmy astrays in American jurisprudence but guarantees of due process of law developed precisely to bar any binding adjudication outside the courts by binding adjudication I mean adjudicatory edicts that create legal obligation this was true already in England I won't bore you with 15th century English history it was also true more centrally for us in America notably in the fifth amendment one of the earliest academic commentators on the u.s. bill of rights and George Tucker lectures in 1790s from 1791 onwards on the US Constitution and he quotes the Fifth Amendment's Due Process Clause and concludes and I quote due process of law must then be had before a Judicial Court or judicial magistrate that's what due process of law meant and similarly Chancellor Kant explains the due process of law means law in its regular course of administration through the courts of law and justice story echoes both Tucker and Kent so much for administrative adjudication nonetheless the government nowadays relies on administrative proceedings for example to collect fines and other penalties administrative adjudication repeatedly violates the due process of law in other words it's not just about what happens in courts and standards and courts it's about keeping it in the courts second jury rights I know juries sympathy duddy to many people but like due process jury rights bar binding adjudications outside the courts juries are available as has already been pointed out only in the courts and the right to a jury in criminal or civil cases thus precludes binding adjudication in other tribunals this is not the place to recite the evidence although I might add it includes early constitutional cases from the 1780s repeated such decisions early Americans clearly understood the role of juries and jury rights and blocking binding ducation outside the courts nonetheless of course the Supreme Court nowadays allows the government alleged interest in congressionally authorized administrative adjudication to trump the right to a jury in their perverse locution the government's public rights defeat private assertions of the Constitution's jury rights it's quite astonishing you recast government power not necessarily even constitutional government power and you call it a public right and somehow that defeats ones merely private constitutional rights third Judicial we have to talk about judicial violations of procedural rights because it's not just of course in the administrative agencies the loss of procedural rights in administrative tribunals gets defended by the courts and so the deaf of procedural rights persists in the courts and the result is a double violation of Rights first by the agencies then by the courts themselves and what this really means is before the courts really worry about administrative agencies and their constitutional problems the courts need to look at themselves they're joining the constitutional violations to take the clearest example in appeals to circuit courts the judges regularly defer to agencies as we all know they defer to agencies in the law under Chevron our or meets get more respect they defer to agencies on the facts and relying on the administrative record and they thereby abandon their office or duty of independent judgment the Supreme Court obviously has noted this but that's not the end of the argument of course there's an even more serious problem where the government is a party to a case the various deference doctrines require the judges to engage in systematic judicial bias in favor of the legal and factual positions of one of the parties and of course the most powerful party which is clearly a violations due process of law put bluntly Chevron deference is Chevron bias our deference is our bias and so forth all such deference grossly violates the most basic due process right to be judged without any judicial pre commitment to the other party in defense of administrative process the courts have systematically corrupted their own process that redoubled the constitutional dangerous fourth we've seen a transformation of procedural guarantees into mere options for government power what do I mean by this as a result of administrative adjudication the government now enjoys ambidextrous enforcement whereas the government once could engage in binding adjudication against Americans only to the courts in the judges it now can choose administrative adjudication sometimes Congress alone makes this choice sometimes Congress authorizes an agencies such as the SEC to make the selection and one way or another the government can act ambidextrous Lee argue through the courts and their judges juries and due process or through administrative adjudication and it's foe process administrative proceedings thereby changed very nature procedural rights it's actually mistake to think of them as rights anymore such rights traditionally were assurances against government there now but one of the choices government has in its exercise of power procedural rights have thereby been transformed in the very nature they're no longer guarantees for the people in the whole they now typically are merely options for the government and it's difficult therefore to think of a more serious civil liberties problem for the 21st century I'd like to close fifth with equal voting rights the most basic administrative assault on civil liberties concerns equal voting rights the two preeminent developments in the federal government since the Civil War have been equal voting rights and the administrative state and the question therefore is is there a connection the explanation is not hard to find equal suffrage was widely accepted by American elites but the results prompted misgivings when educated Americans worried about the boisterousness of representative politics and the tenancy of newly enfranchised groups to redirect progressive reforms they sought a more elevated mode of governance in which educated Americans were more dominant some early progressives of course were quite candid about this and Woodrow Wilson the gift that keeps on giving Woodrow Wilson the most preeminent most voluble in some ways most learned although and completely most learned early advocate of administrative power the United States certainly was one of most influential complained and these are quotations certainly not my language when the Reformers bewildered he said by the need to persuade a voting majority of several millions he worried especially about the diversity of the nation which meant the reformer needed to influence and I quote the mind not of Americans of the older stocks only but also of Irishmen Germans and Negroes he elaborated this point by observing the bulk of mankind is rigidly unfill Asafa coal and nowadays the bulk of mankind votes and where is this unfilled bulk of mankind more multifarious in its composition than in the United States accordingly and again I'm quoting in order to get a foot for any new doctrine one must influence the minds cast in every mould of race minds inheriting every bias of environment warped by the histories of a score different nations warmed or chilled closed or expanded by almost every climate of the globe rather than tried to persuade such persons Wilson welcomed administrative governance the people could still have their republic but much legislative power would be shifted to an unelected body and into the hands of the right sort of people far from being merely a matter of racism although there was that this has been a transfer of legislative power to the knowledge class we need not a class to find in Marxist terms nor even a class that's specially knowledgeable but rather persons as an identity or a sense of self-worth centers on their knowledge and an appreciating the authority they've attributed to their knowledge and distrusting the tumultuous politics of diverse people they've gradually moved legislative power out of Congress and into administrative agencies to be exercised in more genteel ways by persons like well themselves in short enfranchised masses have disappointed those who think they know better of course when legislative powers were moved from the representatives of a diverse people there are implications for minorities so leaving aside Wilson's overt racism the problem is the relocation of lawmaking powers step further wave from the people and into the hands of a relatively homogenized class so even when exercised was solicitude for minorities it's a sort of power exercised from above and those who dominate the administrative state have always been if not white men then at least members of the knowledge class administrative power thus cannot be understood apart from equal voting rights although the district redistribution of legislative power has gratified the knowledge class of which of course were all members but we just have false consciousness it makes a mockery this makes a mockery of the struggle for equal voting rights it reduces equal voting rights to a sort of bait and switch on a grand scale and it confirms how severely administrative power threatens civil liberties in some administrative power is profound threat to civil liberties and instead of talking about this merely as separation of powers or federalism we have to add perhaps Center on the civil liberties it denies the due process of law it violates the right to a jury it corrupts not only administrative process but also the judicial process itself it's in the courts not just in the agencies and it transforms procedural rights from guarantees to the people into mere options for power for the government and last but not least it undermines makes a mockery of equating rights this is the fate of civil liberties in America I want to close with two final points first I've summarized some of this in a little booklet if you're interested I free copies here afterwards that you can come up and get and then second I've recently founded a new civil liberties organization the new civil liberties Alliance and we're now hiring and we're going to be litigating these issues and I think it will be fun thank you all right well I I'd like to encourage you to use the microphones as I said earlier I will I'll toss one out to kick us off but please come forward with your questions for our panelists I guess we've heard to the entire panel we've heard glass half-full assessments glass half-empty or potentially entirely empty assessments and I guess I'm curious from each of you whether you sort of in whether you envision the vector is heading in a downward direction or an upward direction what you think the sort of the next likeliest realistic solutions are to the extent there are problems are they in doctrines Gary talked about doctrines are they in doctrines that reference article one and doctrines that reference article two or article three or are they federalism based solutions where do you see the the current court if at all likely to be most interested in beginning to solve the problems that some of you have identified start wherever you'd like Gary well I mean I I think the easiest way to make it first let me say Akhil is write the vector is going in the right direction it's just that the magnitude is very very small I mean Akhil has pointed out some of the triumphs of formalism and they're real we could even add that in free enterprise fund I believe for the first time in a majority Supreme Court opinion the article two vesting clause was identified as a source of power so it's not as though nothing has has happened the question is how much has happened give the analogy here back at 25 years ago I think my best line didn't have to do with separation of powers it had to do with the enumerated powers or is that talking about the doctrine of enumerated powers is like talking about the redemption of Imperial Chinese bonds and one year after that article was published the Lopez decision came down and then a few years later Morrison came down and if your after that and if I became down so all of a sudden am I looking like a fool well no the bonds still aren't worth very much because those are our little nibbles at the very margins if the Supreme Court tomorrow said manufacturing is in commerce or contracts for insurance are not commerce if then we'd be talking but we're not and I think something along those lines is also true of the of the formalists to triumph we're winning on the things that don't actually slow down the Leviathan yeah the legislative meet is a big deal struck down more statutes in one decision than every other Supreme Court decision in the history prior to that time had done a small thing Buckley versus Valeo big deal actually to invalidate a congressional statute for the first time in 40 years on separation of powers grounds but do any of these things actually affect the fundamental operation of the administrative state no the things that get it that are exactly the things that John Harrison was talking about things about the doctrine of enumerated powers what do I think is the best way to get at that simplest way is for the President to veto the bloody things Congress wants to give the president all kinds of power president doesn't have to take it yes presidents have traditionally taken taken it right ah conventional wisdom is that the presidents will always take it well the one thing that Donald Trump might be able to undo his conventional wisdom I think it would be really cool have you said to Congress no I'm not going to take this unconstitutional grant of power but so that would be my prescription for how to get to where we're going and and where where the vector if you just let the the judges aren't going to get there Congress isn't gonna get there III don't see that I don't see the vector having enough of a magnitude to to push push them to others have thoughts before we take audience questions you'd like to express yeah please I was very struck by Phillips really powerful presentation on his last point which is maybe the deepest of all about the right to vote I think I have a somewhat different diagnosis I think it is under assault in all sorts of voter suppression efforts purges making it very difficult to get the requisite kind of of government ID making it hard to vote on Election Day rather than easy but in the long run if we can really protect that right to vote these are the people that vote errs elect presents and Senators and they put people on the court and if courts are not willing to step forward very aggressively this connects to something earlier that Phillips says you know in a way that they are blessing what has been done by a certain kind of judicial process by their blessing that you could say they're delegating they're deferring their abdicating it and in the long run it is very difficult to force people to do what they don't think needs to be done you know you says well it should be judges and judges are saying it's okay with us and the judges who are saying it's okay with us are picked by presidents are picked by senators who are I'm selected in a world in which more black people are voting today than when I was born so that is progress and again I think there has been backsliding on that I would focus more on the invalidation of the Voting Rights Act in the Shelby County case as a real cause for for concern so the most important right of all is the right to vote but that actually is ultimately a right to pick not to sue the presents are the Senators are who the members of Congress are but ultimately who your judges are thank you first is this working first of us to a keels point it's a point I just say that though we should be very concerned about retail violations right to vote we equally have to be serious about the wholesale deprivation of the right to vote and we've turned a blind eye to that and that needs to change as to the question that the judge raised I don't think doctrines works really at stake here it's reality as people realize the reality of what has happened a lot of doctrine I think will look like leaves in the wind yeah it's just on this larger question I certainly agree that over time we've definitely seen a growth in a ministry of government and I agree with John Harrison that that's largely a congressional sorry sorry about that largely a congressional issue Congress has been driving those delegations I guess I maybe this is a question of maybe I'm defending doctrine here you know we have I teach administrative law and I practice administrative law and there are many real constraints on agencies that are real rationality constraints that make it very hard for them to do things that to undo things where they previously found facts and then to find new facts and so I think that the arbitrariness review can be a very effective tool of what we're concerned about is arbitrary and capricious lawmaking then you know I would think to double down an arbitrary review and also on due process the Supreme Court has held that a combination of investigative and adjudicative functions doesn't per se violate constant due process but it certainly opened the door that an unreasonable risk could violate due process and I think there's grounds to develop the scope of due process law around obtrude occation so that involves applying due process to administrative adjudicators as it does currently under the law I'd like to say that the principle that structural principles and separation of powers interact with the differences among different kinds of interests private rights and non private rights public rights and other kind interest is also manifest in with respect to adjudication as well as with respect to sort of the difference between legislation and execution and if I understand where the historically based understanding of the due process clauses that Gary and Phillip are talking about they apply to life liberty and property in the sense of property and sense of old property yes and hence have no bearing for example on the procedures that the Department of Education uses in deciding whether in educational institutions funding from the federal government is to be withdrawn pursuant to title 6 yes all right let's have some audience questions in front yes thank you Paul caminar local attorney and a muscle senior fellow of the administrative conference at the United States a professional lawsuit in the opening remarks you had good scenario there where Congress sends mush to the president he said he should veto that and send it back I quite agree but what if he signs that mush and now the next thing that goes before the courts number reminded of an old maple old mill commercial where the kids pushed this oatmeal or a mush in front of Mikey they said give it to Mikey he'll eat anything so are we saying give this mush to the court though adjudicate anything another was at what point since the court is supposed to say there dude is what the law is that the law is mush should they just say just no law here on this provision or do they defer to some agency that attempts to put some lipstick on the pig by putting out some regulation saying here's what we think this mush is so what point do the courts to say there's just no law here and this is mush and and and we're gonna send it back to Congress what what what should they do if they are enforcing the Constitution or what will they in fact do in the real world I mean again we're we're well it's not law it's not law that's an easy question as I said that the principle against sub-delegation is is as clear as unambiguous as unarguable a constitutional principle as there is that one's that one's a slam dunk precise form of the unitary executive that's a tough nugget sub-delegation not a tough nugget where do we stand doctrinally well you know we know the answer to that to cases in 1935 maybe one in 1936 and then and you know the only thing I will say is the vector has moved a little bit Justice Scalia believed in a constitutional non delegation principle he just didn't believe that judges should do anything with it we don't know this for 100% fact but we know this for about a 98.6% fact that justice Gorsuch has a slightly different view but the last time I added that counted up to two so I I'm not expecting a recessive the imperial bonds are still not not quite at par would be the way I would put it but as a constitutional matter it's it's it's it's as easy a case as you'll ever find thank you all right so just before we go to the back just to sort of follow on to that sort of realistically I mean we got there for a moment into what we think the the current court might actually be prepared to do do others have views about what the current court might actually be prepared to do where to to on non delegation any are there other possibilities I I think there may now well be a majority to require strong presidential control of agencies and to undo to a large extent Humphreys executor in Morrison I think that's a real possibility others have thoughts at a minimum I do think that Judge Cavanaugh is very thoughtful approach in a panel decision on the DC Circuit against now on bonk about whether Richard Cordray can be insulated from a removal at will on the analogy to independent agencies and that cabinet says no because he's not on a commission the way the SEC is a commission and the F EC is a commission and the FTC is a commission and commissions have different structures that do and enable Congress to create for removability merely at will but for you have a single head of an entity that has to be created on more on the model of the decision of 1789 removability out will I do think that there would be five votes to support that quite modest kind of expansion of Myers and and cutting back of Humphreys executor I could also and I can tell you some of the reasons why if people are interested but there are also things that you could even if you tried to create a commission you couldn't because the powers that are exercised our powers that interact very fully with specific enumerated powers of the present above and beyond the vesting clause like the pardon power the commander-in-chief power the the superintendent in chief power to the coordination power to take care that all the laws be faithfully executed there are specific things the opinion in writing clause they're specific grants of express presidential enumerated powers so to speak above and beyond the vesting clause that do help us think about which entities have to be created on the cabinet model if I mean it just whether the court is really ready to reconsider those doctrines I'm not sure but so we have possibilities it sounds like a remote possibility in article one and somewhat more realistic possibility and article two in a not inconceivable possibility in article three yeah interesting all right yes sir in the back exactly onco professor hamburger i was struck by your eloquent defense of the right to a jury and I think that that is something that absolutely cuts and cuts against the administrative state I was curious and I know this is a slight tangent but I was curious your thoughts on another threat to the right to jury obviously the Seventh Amendment protects a textual right to jury in civil trials is there a similar problem created by the federal policy favoring arbitration and or something like the Federal Arbitration Act and I know you don't have to go into great detail because it's a little bit off topic but I was curious because I appreciated your your strong words in favor of the right to a jury I don't think there's anything necessarily problematic with arbitration in connection with the jury rights the Federal Arbitration Act to the extent it pushes judges and parties to consider it when perhaps they wouldn't and to the extent judges actually pressure parties to abandon my trickery maybe there's more at stake there all right yes ma'am I'm sorry you putting it to me yes sorry I've got these bright lights in my face I'm not I can sort of barely see you body Wachtel oh I think I'll address this to John Harrison because I liked your sort of broad cultural approach but please take up the mood of Akhil amar as to the law working itself clean and some of the outrage professor Hammond this should be easy I these days I happen to be the mind goes to issues of Taxation and I noticed on the previous panel that delightful luncheon discussion that Randy Barnett although he was concerned about impositions through regulation on people's Liberty he was willing to throw under the bus impositions through this taxing and spending power and of course you had professor Emil who was beguiling Lee constantly referring to modest redistribution which made my mind go - what about massive redistribution like income tax rates in the 60% level estate tax rates at 50% I can assure you that for people who own a small business that is really crushing I mean that is of no small moment at all in terms of the possibility of the law moving to some sort of consideration of is that an appropriate thing for Congress to be doing do you think there is any hope or is that completely of a mind of the last century and I will note on this that in France recently the public did pass a 75% imposition on taxes over a million dollars the courts stepped in and reduced it I don't exactly want the courts to be doing that here but does that give anybody inspiration particularly you professor Harrison I think on one hand the fiscal state is overwhelmingly important much more important probably than the regulatory state on the other hand I also think Congress has enormous power to tax as a killed said at lunch the 16th amendment is designed to reinforce that I also think that when it comes to spending assuming Congress has power to spend that grants of discretion are fine I don't I don't say maybe unlike Gary I don't see a problem with tarp it seems to me the same thing for Congress to say war is declared on Mexico here's the army beat Mexico and here's 750 billion dollars say of the financial system from collapse I think again I'm going to double down on the principle that the really important issues have to do with the power of Congress and the question whether Congress in fact has general power to spend money for the general welfare is a fundamental one I think no and of course if the country moved anywhere toward implementing that Princip there would be a massive constitutional crisis because I just said Social Security is unconstitutional and there would be a constitutional amendment very quickly which I think would be a good thing it is much better to have the backbone of the America the American government is a pension fund with nuclear weapons it is much better to have the backbone of the American federal government Social Security Medicare and Medicaid be constitutional then be well okay if the Supreme Court kind of said that they are that they are constitutional but notice those are questions about the powers of Congress please if I may just threw in my own two cents on this I think it's worth stepping back from the spending and benefits side to recognize that although there are very few limits on how the government spends and distributes benefits and that's probably a good thing spending and benefits increasingly are used as a mode of regulation and that's a more complicated matter the reality is when the government wants to obey the pathways of governance its first move is towards the administrative state to executive command the next step which is even less constrained as towards conditions on spending and to the degree licensing and other conditions are used as mode of regulation there very interesting constitutional problems and even pursue them now but I don't think we can just wave a hand at all spending benefits and say there's not really much of an issue there there are issues there it's under under developed and doctrine that it will be developed further as yours come by anyone else before we move on it's 30 seconds please if I'm right that the Constitution is a species of fiduciary instrument and I am right that the Constitution is a species of fiduciary instrument that may contain some kinds of constraints on those kinds of processes that will bear for people in this room a perhaps uncomfortable resemblance to substantive due process and substantive equal protection both of which I think have as an original matter a fairly strong kind of grounding at least as against Congress not against the states but at least as against Congress just something to think about all right please Joe Cosby you already started answering my question when I heard professor Lawson's presentation and professor Harrison they scented me to be at odds professor lawson was saying fiduciary document and so therefore the power couldn't be like the things the executive cannot do and then professor Harrison saying there's lots of things the executive can do of course they can do almost anything can you square those and also professor Lawson's references to the non delegation theory with professor Harrison's depiction of the Constitution I mean our zone of disagreement is actually pretty modest I agree with everything that John said about the spending power I've said so in print on multiple occasions and in terms of what it is that can and cannot be subdivided I think we would just have to have what I don't think would be a very long a conversation about where exactly the sub delegation principle comes from which powers are just executive in character and therefore not subject to analysis under sub delegation but I actually think it's a fairly modest fairly modest zone of disagreement all right so I need to go to the back microphone first because he's been patiently waiting hi this is kind of for anyone does Congress have the authority to tell courts not to apply Chevron or 7l rock deference by statute I mean I've written on that I'm not not in that context but in in a slightly different context and I think the answer is no I don't think Congress can tell courts how to go about deciding cases anymore that it can tell the president how to go about executing executive functions any more than the president or the courts can tell Congress how to go about doing its job so when you're dealing with decision-making methodologies no I do not think Congress has that power I know of at least one person who has some modest disagreement with me on that score and he thinks that Congress does have some power like that that justice that just as Congress can enact the federal rules of evidence that tell courts how to make decisions and how do you make Jim and Congress can impose generalizations about what are and are not sound inferences on evidence I think Congress has a certain amount of power to do that as to the methodologies that the courts use in identifying what the law is so for example I think that Congress can legislate about the rules of stary decisis which is a methodology about determining what the law is and hence I think the Congress has some authority to do something like Chevron insofar as Chevron is about actual interpretation as opposed to what it's actually usually about and was about in Chevron which is definite agency policy maker we have dueling articles on that equation and federal rules of Criminal Procedure and Civil Procedure it does become a little more complicated in constitutional cases but where the substantive law of issue is a statutory case the argument would be it's also somewhat like a dictionary Act Congress is basically it's not that different than two substantively legislating what actually that the fundamental rule of decision which is another way of saying law is and we should in fairness bring in in addition to professor's Lawson and Harrison Nick Quinn Rosencrantz has made an article I'm in the Harvard Law Review attaboy attaboy although he wrote it as a student at Yale Law School under my supervision Yunis that was a setup on on exactly that was a setup on just this question and I do commend it to you so it's Nick when Rosencrantz is made an article in the Harvard Harvard Law Review and even just from a conventional administrative law perspective I think the conventional understanding of Chevron is that it's a assumption about what Congress's actual intentions were loosely fitted to 706 of the APA if Congress clearly could repeal the standards of judicial review in the APA I think along with company with John Harris on this and so I think that also Congress could reverse the Chevron presence I can't help no Dean as a former corporate lawyer that you can say the same thing in different ways and one can avoid this question altogether if Congress were smart simply by having a general statute saying ambiguity does not mean authorization for the delegation etc it's very simple yes sir for statutory questions for constitutional questions it is a little bit different and whether Congress could legislate rules of stary decisis for example for constitutional questions I think raises you know yet other issues and we'd also probably have to bring into that conversation brother Michael Paul Sims article on this topic as well I was just I don't even want to know where he went to law school you know already he was my roommate yes sir please hi my name is Lawrence Koch and I'm a practitioner but I also have run a non-profit that looks at comparative international law and the influence of international law on US law and whether US law is international law I know professor Lawson you've written on the treaty Clause versus the use of executive agreements by by the president and this question is for everybody on the panel what do you see going forward on the increasing reference and use of international legal concepts that come from legal systems that are not like ours civil law Napoleonic European legal systems used both on the continent of Europe and within the many former colonies of the European states are now being compared to and actually borrowed from by many in the academic and judicial communities so what would your prognosis be and just for administrative purposes we'll have to make this the last question and wrap it up in about the next three or four minutes so that the next panel can begin it I will defer to a keel on this one I suspect he knows more than the rest of us combined on that question absolutely not but I do have a few pages on this at the very end it's actually in the afterword of America's unwritten Constitution and I personally advocate only a very modest role I tend to think that the supreme law of our land I don't know why is our Constitution and I do think and the preeminent scholar of comparative constitutional law is the founder of the Federalist Society Steve calabria has a spectacular case book on this that I highly commend to you and of course he did go to Yale Law School but but one purpose for which international law I think is permissible is when we're trying to predict effects of certain things if similar consec create similar effects the reason that we have to be very cautious is very few of the systems around the world are even democratic constitutions actually are like ours in very strong ways the 50 state constitutions are much more like ours written constitutions presidential Astacio our Constitution is written presidential to party and federal and they're not that many places around the world that have that combination so you have to even be careful borrowing from these foreign regimes when you're trying to think that similar causes will have similar effects as an example can I hold on one second I I won't draw your attention to a recent book by AJ beliya and Brad Clarke which discusses international law in our legal system but I think I'd like to bring it back to administrative power if you want to know the importance of in legal doctrines in our legal system just look at administrative power in the 19th century we borrowed much of our administrative doctrine straight from Prussia so you know what I think about that yes and I you know I'm so sorry but if the risk of shutting it down I think we have to because we've got a very important and interesting panel coming in and I want to give them time so please join me in thanking our panel

Channel: The Federalist Society

Views: 5,556

Keywords: FedSoc2017, nlc, lawyers, convention, federalist society, conservative, libertarian, administrative law, agencies, administrative state, Constitution, separation of powers, federalism

Id: QoHwTr0L6RA

Length: 96min 52sec (5812 seconds)

Published: Wed Nov 22 2017