Adam White:
All set. Great. Well welcome everybody, and thank you so much for joining us today. My name is Adam White. I’m a senior fellow here at AEI. And when I’m not here at AEI, I’m across the river at the Scalia Law School leading the Center for the Study of the Administrative State. And needless to say, there’s a lot to study these days from the waves of judicial opinions, the new executive orders and the eminent rulemakings, and also the debates that are happening on Congress. There’s just more and more to discuss in terms of the basic rules that govern administrative agencies. But needless to say, sometimes the most important rules are the unwritten ones. In administrative law, of course, the argument, at least back to Vermont Yankee, if not earlier, was that the courts should stick with the written rules of the APA and not add on top of them.
But that’s easier said than done. And despite Vermont Yankee and other decisions, we have time and time again to seen the courts think broadly about administrative law and the basic principles that undergird it. And hence our discussion today about unwritten administrative law. We’re really lucky to be joined by three great scholars of administrative law and process. They’ve written widely on this and we thought this would be a great opportunity to bring them together for a conversation and your questions.
The event’s co-sponsored, really, really organized by the Catholic University’s Law School Center for the Constitution and the Catholic Intellectual Tradition, which was founded by our AEI colleague, Joel Alicea. He’s unable to join us today, but we are joined by his colleague, Chad Squitieri. Chad is an assistant professor of law at Catholic University’s Columbus School of Law. He now directs the law school’s Separation of Powers Institute. And I also want to add, he recently won the law school’s award for outstanding professor of evening classes. I’m not quite sure what that means. I don’t know.
Chad Squitieri:
I kept them awake, I guess.
Adam White:
I guess. I kept thinking about administrative law after dark, what that would be like. But Chad, we’re so glad you could join us. We’re also joined sitting next to me by Jud Campbell. He’s a professor of law at Stanford. He arrived there recently from the Richmond School of Law, although it’s a homecoming of sorts for him. Jud previously was the director of the Stanford Law School’s Center for… the Constitutional Law Center. This year he won the Federalist Society’s Joseph Story Award for the leading young law professor. Is that a fair way of putting it?
Jud Campbell:
I love being young, so that’s a… Yeah.
Adam White:
He’s a great scholar of American constitutional history and the principles that undergird it. But first we’re going to hear from John Duffy. John is a professor of law at the University of Virginia. He is one of the nation’s leading scholars of administrative law and intellectual property, and really thinking hard about the intersection of those two fields. Since I’ve gone into everybody’s awards, I’ll point out that John was one of American Lawyer’s top 25 most important people in intellectual property. Did they give you a specific ranking in the top 25?
John Duffy:
I don’t remember that, no.
Adam White:
But most importantly for today’s purposes, John wrote, well, he clerked for Justice Scalia, he served in the Office of Legal Counsel, and he wrote an article titled Administrative Common Law and Judicial Review, which really is the origin of today’s conversations. So we’ll start with Professor Duffy.
John Duffy:
Okay, thank you. I will move to the podium and talk about this. So I became interested in this topic when I was clerking for Justice Scalia. And at the time in the court there was a case pending, which administrative law lawyers will know called Darby V. Cisneros, which was a very interesting case. I found it absolutely fascinating because what happened there was that the court, the lower court, the Fourth Circuit dismissed or held the case was barred for failure to exhaust administrative remedies. And there’s a large amount of case law failure to exhaust administrative remedies with the basic tenor of the case law being that you have to exhaust all administrative remedies that are available.
Now the only problem with that is that there’s a specific provision of the APA that says if the agency is going to force you to exhaust an interagency appeal inside the agency, the agency has to require it by regulation and make the agency action inoperative in the meantime while you’re taking the appeal. It’s very clear language. And the leading treatise writer of the 20th century, Ken Davis in administrative law said, “This provision is customarily ignored by the courts.” And I thought, well, this can’t be, just can’t be.
And so I was actually reviewing a cert petition at the initial stage and I read the whole cert petition and the person’s relying exclusively on the APA, on the text of the APA. And I thought, well, it sounds like a good argument. I read the lower court opinion. That statute is not cited at all by the lower court. I think, well, I know what’s happening here. They got good appellate counsel, they came up with a new argument. They didn’t raise this below, therefore it’s procedurally defaulted. But then I look at the government’s brief by the Solicitor General’s office, they wouldn’t miss this trick. They wouldn’t miss, oh, it’s procedurally defaulted, so don’t bother. They have a whole argument about why, well, there’s administrative common law and it’s fine.
So the court wound up calling for the record in part because I thought it was absolutely incredible that it was raised below and the court ignored it. It turns out when you get their brief, that was like their number one argument. It was literally their number one argument. It was the argument they spent the most time on in the appellate brief. The Fourth Circuit did exactly what Ken Davis said, which is they totally ignored it. The court granted cert and reversed unanimously and I think basically said, “Well, the APA does control here and it displaces any administrative common law to the contrary.” And the court sort of mused that this seemed kind of an amazing thing that happened over 40 years, nearly a half century after the enactment of the APA, that this had just been ignored entirely.
And I thought that was very interesting. And so when I became an academic, I decided that I would try to actually see if this is a problem elsewhere. And I found several areas, ripeness, which I found, and I have a great line in this, I’m very happy about it, ripeness had never been used before one judicial decision in any Supreme Court decision other than to describe the condition of fruit. It wasn’t in the APA, and there’s something similar in the APA that you could interpret and maybe get some close to this idea of ripeness but ripeness is not in the APA. I’m still waiting for ripeness to be overruled.
Vermont Yankee, weirdly enough, and we’re going to have a discussion about Vermont Yankee, I thought that this would be a centerpiece for not having administrative common law, but it turns out Vermont Yankee didn’t grapple with the crucial sections of the APA, which are much harder. We might discuss this in question and answer more because I know Chad’s going to talk about that. Chevron was my big whale that I closed the article with saying this is completely inconsistent with 706. It was quite radical to do this at the time.
Indeed, the next, a couple year, it was just the next year, the article, the ink was barely dry. And I was at the Scalia law clerk reunion and got into an argument with of all people Larry Lessig. And he was pro-Chevron and I was like, “It’s totally inconsistent with the statute.” And lo and behold at this reunion, Justice Scalia sits down next to us. He’s sort of going around the tables after the meal’s over. And I thought, in what crazy world is it that I get into an argument with Larry Lessig and I’ve got the anti-Scalia position? I mean, it just made no sense because he was still very pro-Chevron in that era. I thought, I’m trying to get the statute respected, section 706.
And I think that’s still a very interesting thing. I recently did a small symposium piece in the George Mason Law Review and I went through all the briefs and it really is interesting to see a different era, which is the 1980s. Nobody cited the first sentence of section 706, which the court ultimately in the Loper Bright case relied upon and said, “This is our statutory basis for overruling Chevron.” But a lot of it deals with a change in culture. Simply nobody made that argument. It was cited section 706 in any capacity, it was only cited by Amici, and it wasn’t the first sentence, it was the arbitrary and capricious test, which was cited on some tangential point.
We continue to see this dynamic. Corner Post decided last year was a issue about the statute of limitations, which says pretty clearly that you have six years to bring a claim against the United States government, including APA claims six years after the action accrues. And the lower courts beginning with the Ninth Circuit in the 1980s, well need I say more? But the Ninth Circuit in the 1980s just said, well, that can’t be. Instead we’ll interpret this as six years from the date of final agency action, that it’s basically interpreting what is the statute of limitations into something called the statute of repose, which have very different triggering mechanisms.
Well, last year the Supreme Court, well actually two years ago the Supreme Court granted cert on this issue. It was a lopsided circuit in favor of interpreting this as final agency action. It was like eight to one, but they reversed, not unanimously, but still all the textualists said, “Look, accrue has a particular meaning.” And so that I think is another example where when the court actually focuses on the statute, it displaces the administrative common law.
I will say that one of the things I thought in my old article I did that was I think sort of helped me understand how this happened is I found an old quote from Judge Friendly, Fred Friendly that talked about… It was a very famous article in praise of Erie and of the new federal common law. And there he said, “Yes, there’s no more common law at the federal courts because of the Erie decision, but we’re going to continue the common law tradition with using statutory law as sort of our springboard. But we will do that with only,” and these are quotes from the smallest bit of legislating or even a tiny bit of legislative history, and then we’re off to the races to develop common law.
I think that is a different philosophy of the federal courts and that really is what led to this in administrative. And I’m happy to… We’ll have, I think, a vigorous conversation about this. I also want to talk, I hope in our conversation about not going too far. There are places in the statute that I think are open for judge-made law to interpret certain words as long as they start with the statute and pretty [inaudible 00:12:15].
Adam White:
Would you like to say a few words about that now before you-
John Duffy:
Well, yeah, I would just say this. There are some in the field of regulation I study, which is intellectual property, there are things like fair use that are in the statute, but I think were developed judicially and Congress wanted to validate those and not necessarily, so if you ask the question, well, fair use, when that was incorporated in the statute in the 1970s, what did they think about training AIs back then? I think you quickly realized that they could not imagine that. And there’s other, in the obviousness, pardon me, in the patent law, there’s an important word called obviousness that I’ve written like four articles and litigated the most recent case at the Supreme Court on the doctrine. I think that that’s, it’s in the statute, you’re not totally departing from the statute, but that is something that needs judicial interpretation, and that looking at policy then, looking about, well, there’s different perspectives on how we should interpret looking at policy then might not be a bad idea, but we can talk about that more I think. Thank you very much.
Adam White:
That was really great. I feel bad, I was looking at you because I was interested and I think you thought I was giving you the evil eye that your time was up, but not at all. That was great. Next we’ll hear from Jud.
Jud Campbell:
All right, thanks so much. So I’m a bit of an imposter here. I’m not an administrative law scholar, I’m an intellectual historian, but I do study the way that the founders in particular thought about different sources of fundamental law and particularly unwritten law. And so I’m going to talk about that to try to give some perspective to a broader our conversation. And since there’s an unwritten rule specifying that panelists have to make three points, I’m going to stick to that and I’ll start by talking about how the founders thought about different sources of law and then mention a couple examples that relate to administrative law and then just wrap up with a couple of reflections about where we are.
So let’s start with how the founders thought. The founders are steeped in the British tradition and think that there are basically three types of law. There’s natural law, law that predates human institutions. Basically the law of reason that is preserved in a state of civil society. And so this is where you get people like Blackstone saying that the positive law has to accord with the natural law. It’s in a sense part of our law. But natural law is also usually legally under-determinant. So it lacks legal specificity. For example, it is a principle of natural law that in order to enter into a contract you have to have sufficient discretion, but it’s unclear what the point at which you have that sufficient discretion is. And so you need positive law to step in and supply legal specificity. In other words, natural law generally is not law in the judicially enforceable sense. There are two other types of positive law, and the most important of these for common law jurisdictions is customary law, which is thought to have authority through longstanding use and its tacit acceptance.
And then of course there’s enacted law, quintessentially statutes, but it could also be ordinances or even constitutional provisions. So there are these three different sources of law and one of the trickiest aspects of founding era legal thinking is that the three different types are not neatly divided. So I’ll give just a couple examples here. First, natural law being under-determinant requires positive law specification. But what that means is that when you have positive law, it isn’t neatly divided from the underlying natural law. So it’s sort of like in modern terms, how you can’t take a provision of the CFR and just read it in total isolation from the underlying statute that authorizes it, rather you have to see the two as interconnected. And so that’s sort of the way they’re thinking about an interplay between natural law and enacted positive law.
And then a second example of how these different sources of law aren’t neatly divided is that you can have provisions of enacted statutes or enacted constitutional provisions that are simply declaratory, that simply make reference to some other provision of law that’s grounded in natural law or grounded in customary law. And so what that means is just because it’s textually specified doesn’t mean the nature of the law that it references is textual. It might be customary or it might be natural. And so what that meant is that even certain provisions of statutes or of constitutional texts were not always judicially enforceable. You could have a written provision that lacks the legal specificity because it’s simply referring to some preexisting natural right.
This is all pretty abstract, so I want to turn now to the second part of the remarks and just flesh out a couple examples that are connected to administrative law. And I’ll start with one that I’ve written a fair amount about, which is speech and press freedoms. So today we treat speech and press freedoms as things that come from the constitution. This is where we get the notion that these are First Amendment rights, that the rights are grounded in constitutional text. And of course, because they’re constitutionally enumerated, we treat them as judicially enforceable. We also don’t treat them as particularly relevant for conversations involving administrative law. So you might be a little confused, I’ll get around to that in a second.
The drafters of the Bill of Rights though had a different way of thinking. So for the most part, they thought that they were just enumerating customary and natural rights. Rights that already existed and already had fundamental status. Several of the members of the first Congress explicitly refer to the amendments as declaratory. This also explains why there basically are no debates about most of the amendments aside from the ones that actually create new law like the Establishment Clause. It also illuminates why we have the Ninth Amendment, an amendment that reflects that the rights are not coming from text. And so they are intending this reference to speech and press freedoms in the First Amendment in this way as references back to existing customary and natural law rules.
Okay, so what does this have to do with administrative law? Well, one of the customary rules is actually a non-delegation rule. It’s the idea that you can’t have delegations of authority to restrict press freedom to administrative officials, to licensors. And so one of the really important customary legal rules that the First Amendment makes reference to but does not itself create is a kind of non-delegation rule. Decisions about how to restrict expressive freedom have to be made by the people themselves through legislatures and through juries.
All right, so that’s just one way in which customary law imposed a non-delegation rule. What about a broader non-delegation doctrine? So here I have not done original research, I just have to rely on the work of other scholars, but I do want to suggest that we can better understand some of the debates about non-delegation at the founding by keeping in mind this different way of thinking about the relationship between legal text, determinacy and judicial review.
So today we tend to locate the source of non-delegation doctrine in the vesting clauses. So that’s of course where Justice Gorsuch begins in his Gundy dissent. But from a historical standpoint, there’s very little reason to think that the vesting clauses themselves are the source of a non-delegation rule. So the principle of non-delegation has plenty of grounding in founding era materials. It’s very well established as a background principle that the people have to consent personally or through their representatives to legal restraints. And also it’s well established that placing arbitrary discretionary power in the hands of an executive official is the essence of arbitrary government. Neither of those ideas comes from the vesting clause. And as far as I can tell, nobody at the founding references the vesting clause when trying to make a non-delegation argument. Instead, the founders are embracing a principle of non-delegation that has its source elsewhere.
The other aspect of this that’s crucial though is that principle might be legally under-determinant. And so it might not be the case that we can just go back to the history and locate a fully fleshed out theory of non-delegation. It could be the sort of thing like a principle of natural law that requires further positive law specification. I should add though that maybe judges can use the principle at the margins to influence how they think about positive law. Again, thinking about the interplay of positive law and underlying natural law principles. The other example I’ll mention for administrative law purposes is the notion that all public power has to be exercised in promotion of the common good. This is a kind of err principle of all founding era constitutionalism. The idea that government has to be impartial, that all exercises of public power have to be exercised in promotion of the interests of the political society and its members as a whole, not the interests of the politicians or members of their tribe.
Again, that’s picked up in various ways by constitutional text, the Take Care Clause say, but there’s no reason to think that you need the constitutional text in order to have a recognition of that basic principle. Again, though, that basic principle may not be legally determinant, it may not be the sort of thing that judges can step in every time somebody argues that there’s been a violation of a principle of impartiality, it may not be the case that judges can step in and enforce that. And so what we have to think then about are other modes of constitutional enforcement, other ways of thinking about the relationship between law and politics as opposed to just focusing so much on judges.
I want to end with two related thoughts about where we are today. Both are about how we kind of tend to link written law, legal determinacy and judicial review. And the first is that if we want to recover how the founders thought, we can’t take that linkage between written law, legal determinacy and judicial review. We can’t take that linkage for granted. We assume that anytime something is textually specified, it’s legally determinant and therefore judicially enforceable. But that isn’t how the founders thought. There are references in text to all these under-determinant legal principles. And so we might need positive law specificity to come in, positive law to come in and specify before we can actually take hold of that as a matter of judicially enforceable law. There’s just lots of fundamental law at the founding that’s not fully determined.
And then the flip side is equally important, I think. By linking written text, legal determinacy and judicial review, we tend to assume that whenever a question of public law is not addressed by constitutional tax or by statute, it simply becomes a question of politics totally ungoverned by law. And the founders had a much more vibrant notion of legal restraint. Written text, legal determinacy and judicial enforcement are only part of a broader way of thinking about law and about constitutional culture.
The founders envisioned that you have reliance on customary law as well, as well as background principles that inform exercises of public power. And this was especially important with respect to this notion that public power had to be exercised in promotion of the common good. These were things that had to shape political behavior even when they weren’t judicially enforceable. But of course, this means you need some sort of broader constitutional and legal culture that is capable of facilitating that kind of adherence to basic norms. And I really worry that we’ve lost that, that by putting so much emphasis on judicial review, we’ve sort of lost the capacity to think more broadly about how these other less determined legal sources could inform our politics. Thanks.
Adam White:
Great. Thanks John. That was great. Last we’ll hear from Chad.
Jud Campbell:
Thanks.
Adam White:
That’s great, thank you.
Chad Squitieri:
I think the clap was for Jud’s comments, not for me coming to the stage, but I’m happy to take them. Well, thanks Adam for having us here, and thanks everyone for coming and watching online. So the kind of beginnings of this panel was an early paper idea that I wanted to work on, and I just have the title right now and I’m thinking through it and I thought, what better way than to invite a bunch of smart people to come think through these topics? So I’m really appreciative of the comments so far. And the paper idea deals with the following problem. I’m a textualist and I see a lot of justices on the Supreme Court that are textualists, but I see a lot of so-called administrative common law, and I think a lot of that administrative common law seems good and even correct and right.
So I’m thinking through how can that be? And so the kind of initial idea of the paper that I have so far is called Vermont Yankee Doodle, right? Just have the title, Vermont Yankee Doodle. And that’s a play on words that I think would only work on a small number of people and probably a non-negligible number of those people are in this room. But to kind of flesh it out a little bit, it’s a play on words with two things. One is a very important Supreme Court case called Vermont Yankee that we’ve heard a little bit about. And then another is of course a famous Revolutionary War song called Yankee Doodle. So let me explain what I see as the similarities between these two.
So let’s start with Yankee Doodle, right? I’m sure we’re familiar with this tune, but the relevant part goes as follows. Yankee Doodle went to town riding on a pony, stuck a feather in his cap and called it macaroni. So for those that don’t know, in the 18th century, macaroni was a pejorative term for someone that wore rather extravagant high-end clothing, perhaps thought a little too highly of themselves. And Yankee Doodle was of course, a somewhat dismissive term that British soldiers used to refer to Americans, in particular kind of disheveled American soldiers. So the kind of gist of that song is that this disheveled American soldier doesn’t automatically become a man of high fashion simply by sticking the feather in his hat and declaring himself to be a man of high fashion.
So That’s the Yankee Doodle part of the puzzle. What about Vermont Yankee? Well, as mentioned Vermont Yankee is a very important administrative law case from the Supreme Court, and the case can be read in different ways, but in general, the case stands for the proposition that courts may not impose procedural constraints on agency action unless those procedural constraints are required by a source of law like a statute or the Constitution. And usually when we’re talking about a statute, we’re talking about the APA, the Administrative Procedure Act.
Despite Vermont Yankee though, and its kind of demand that courts stop creating law that’s not based in a statute or constitution, we see a lot of administrative common law, which suggests that Vermont Yankee has not really worked. So like how Mr. Yankee Doodle can’t just magically declare himself to be a man of high fashion with the feather, perhaps the Supreme Court can’t just magically do away with unwritten administrative law simply by declaring it to be, right? There might be something that we’re missing here. So that’s kind of the early idea.
So with the remainder of my time, I want to focus on two things. First, I want to offer some examples of these unwritten forms of administrative law that I’m referring to, the ones that suggest that Vermont Yankee has perhaps been a failure. And second, I want to offer the beginnings of an explanation as to why I think perhaps Vermont Yankee was doomed to begin with. So turning to that first part, the unwritten procedural constraints on agency action that exist despite Vermont Yankee.
A lot of professors have written about this, including John. I’ll just here use the work of professors Gary Lawson and Jack Beermann who have noted that there are significant numbers of important administrative law doctrines that do seem to fly squarely in the face of all but the most unreasonably narrow understandings of the Vermont Yankee decisions. So one example of this is a judicial prohibition on ex parte communications with an agency during informal rulemakings. The APA makes clear that you can’t have these ex parte communications during formal rulemakings, but not informal rulemakings. But nonetheless, we kind of have this unwritten rule that’s developed in judicial case law saying you can’t have those ex parte communications in the informal context. Seems in tension with Vermont Yankee.
A second example is the DC Circuit precedent requiring that administrative rulemakers must recuse themselves when there’s been a clear and convincing showing that the department member has an unalterably closed mind on matters that are critical to the disposition of the proceeding. Again, there’s nothing in the APA that clearly requires that sort of recusal, and because we’re talking about rulemakings rather than adjudications, and rulemakings are typically more general and forward looking as compared to adjudications being more narrow and backwards looking, it’s unlikely that there’s really a lot of due process weight that’s being carried. So again, another kind of unwritten procedural rule, it seems like a really good rule to have, but nonetheless, perhaps seems a little bit in tension with Vermont Yankee.
Then a third example is kind of the beefed up forms of notice that courts require agencies to give during their notice and comment rulemaking proceedings.
So in the past, perhaps more concise forms of notice would suffice under the APA, but today more lengthy notice is required. And again, the APA doesn’t clearly require this, but nonetheless it seems like a pretty good idea. Another example, which I won’t go into more detail, is operating more at a constitutional level, which is the major questions doctrine. There, the idea seems to be saying that if Congress perhaps wants an agency to answer a question of major political and economic significance, then Congress is going to have to jump through a procedural hoop and give particularly clear congressional authorization to an agency to do that.
Where does this come from? Not particularly clear, but one, justice, Justice Barrett offers a defense that draws on just kind of fundamental human interactions, right? She gives an example of a mother going out of town, gives a credit card to the babysitter and says, “Make sure the kids have fun.” And she says that includes normal things like taking the kids to the movie theaters or something. It doesn’t include major authority like taking the kids on an out of state amusement park trip or something like that. So there she’s suggesting that there is this fundamental truth about how humans interact about language. She’s not creating that, she’s just observing it as a fact out in the world and then she’s applying that to a particular context of administrative law, Congress giving authorities to agencies. So those are some examples of these unwritten rules that I’m talking about.
With my final part, I want to explain why do we have those? Why has Vermont Yankee kind of perhaps failed in stopping the creation of these unwritten rules of administrative law? And I have three potential explanations. So one explanation would operate on a constitutional level. And so pursuant to this explanation, Vermont Yankee could have been wrong about something inherent about how a co-equal judicial power is to police lines between the co-equal executive and the co-equal legislative powers.
So in the administrative law context, we have executive agents exercising power granted in part by legislators in Congress, and courts are often asked to identify the legal limits concerning the interplay between the executive and the legislative branches. And it might be that courts have realized that to properly serve as a co-equal branch, they have a responsibility to help police constitutional lines, and courts cannot limit themselves to only those aspects of law that the two policed branches, the Congress and the president, have decided to codify into written law. Put differently, perhaps there are a unwritten aspects of law that are an important parts of the judicial power that’s vested in the Article III courts that’s important to carrying out this task. So viewed in these terms, language in Vermont Yankee suggesting that courts must not go any further than the warring political factions had agreed to in the APA.
That might be incorrect. It might be that courts have an obligation to look at all types of law that are accessible by the federal judicial power, and that includes unwritten procedural constraints on agency actions. That’s one potential explanation about why Vermont Yankee has more or less failed. A second explanation operates not at the constitutional level, but at the statutory level. This explanation would hold that there might be something special about the Administrative Procedure Act that requires courts to apply unwritten law. This would mean I think that Vermont Yankee had a wrong reading of the APA because Vermont Yankee relied on the idea that the APA was a grand political compromise that would ensure that courts only enforce the limits that the warring factions in Congress had agreed to in the text of the APA. But it might simply be that Vermont Yankee misread the APA and that later courts applying the APA have found themselves in a need to run afoul of Vermont Yankee’s misreading of the APA rather than run afoul of the APA itself.
So here I’m thinking of something like Section 706 of the APA, which requires that the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. So this provision was of course interpreted by the court in Loper Bright in which the court said that courts must not rigidly defer to agency’s interpretations of law, but must instead exercise their own independent judgment and give a statute its best reading. So it might be that to decide all questions of law or to interpret constitutional and statutory provisions in light of their best reading as courts are required to do after Loper Bright, perhaps that requires bringing to bear some aspects of unwritten law.
Finally, a third explanation might be that judges are actually in full compliance with Vermont Yankee because Vermont Yankee could be read as prohibiting judges from creating law but not prohibiting judges from finding law. So this of course turns on deeper philosophical differences between creating law and finding law. And here I build off the work of lots of folks, including Jud, but here in particular Professor Steve Sachs, which is not to say that either of them agree with my points here today, but I’m just using their work as kind of a starting part.
Recall back to my initial example of Yankee Doodle, right? Why does Yankee Doodle not magically become a macaroni when he declares himself to be one? Well, it’s in part because Yankee Doodle has no legal authority to change the laws of fashion. The unwritten rules of fashion determine that. And certain people in society like fashion magazine editors or something like that might be able to or might be better equipped to find those rules of fashion. But even those magazine editors are not really creating the rules of fashion, they’re simply finding that unwritten law of fashion and then writing about it in their magazine columns or what have you.
And that might be what’s going on in the administrative law context, right? There might could be legal norms that relate inherently to the task of judicial bodies reviewing the work of executive agencies acting pursuant to legislative authority, and perhaps courts are slowly finding those unwritten aspects of law, finding them not creating them, and then applying them in the administrative law context. So in that context, in that view, there is no tension with Vermont Yankee. The courts are actually doing what they’re supposed to be doing.
So that’s the gist of what I wanted to share. The Vermont Yankee court sought to put an end to courts applying unwritten procedural requirements on agencies, but given the range of unwritten procedural requirements that continue to exist after Vermont Yankee, it seems that that case has more or less failed. And that might be because Vermont Yankee had to fail, right? Like how someone can’t magically declare themselves to be fashionable, perhaps the court can’t magically declare that unwritten law doesn’t exist. So there, I’ll stop.
Adam White:
Great. Thanks, Chad. That was great. Thank you. I do want to pick up, maybe start with exploring the question about the major questions doctrine, but before we get into that, we’ve already sort of discussed a lot. I’m just curious if anybody would like to react immediately to anything that’s been said so far. John, do you want me to give you the first shot?
John Duffy:
Well, I’m actually skeptical about Vermont Yankee. I wasn’t when I started writing the article, but then I realized that Vermont Yankee doesn’t look at the relevant portions of the statute, and I found that deeply disturbing. The issue in Vermont Yankee was can the courts overturn a decision about what procedural steps should be taken? Let’s take a sort of simple example. Let’s say somebody requests an oral hearing in a rulemaking which is permissible but not required under the APA. Well, they have discretion. And Vermont Yankee says the agency has discretion to do more than what the APA requires. Well, issues of discretion, if we’re now in judicial review, are subject to review under 706(2)(A), which is the arbitrary and capricious test.
If you walk through the linkages, the APA expressly says that preliminary or procedural decisions made in the course of reaching a final agency action are subject to judicial review on the final agency action. So simply saying, as Vermont Yankee does, it’s not required, but of course the agency has discretion to do it does not answer the question in the case. It simply doesn’t. It instead says, well, why… That’s all about 553 and about what’s required under rulemaking. But things that are not required are subject to review of the agency’s exercise of discretion under the arbitrary and capricious test. That’s all of what it applies to. It’s not just arbitrary and capricious. Section 706(2)(A) expressly says that abuse of discretion is another grounds. So discretionary decisions are subject to judicial review.
So it is actually not grappling with the crucial question, which is, is this agency discretionary decision about what forms of hearing rights to give in an informal rulemaking, what sort of judicial review is available? And they seem to say, “Well, either no judicial review or judicial review only in extremely compelling circumstances.” They actually say that. So they don’t really adhere to the no judicial review, except if another statute or the constitution requires it, they’ve got this extremely compelling circumstances.
I don’t know where that comes from. It’s not in the APA. If you say they don’t have any authority at all to add procedural requirements, then you can’t justify the extremely compelling circumstances. You have to stick and say it’s got to be in the text, it’s got to be in some statute or in the constitution. But extremely compelling circumstances is in there. And so I walked through the APA. I think there is a reading of the APA that could justify what the court did in the case itself, but it’s hard to get there and it does have other implications. One of the ways in which this comes up is what about when a rulemaking is challenged? A rulemaking that’s just about agency procedure is challenged in judicial review?
Now, most of the people in this room would know that agency rules about internal agency procedures don’t have to go through notice and comment rulemaking, but they are subject to judicial review. And the DC Circuit there has actually said, I think correctly, that despite Vermont Yankee, they can engage in judicial review of sort of the arbitrariness or capriciousness or abuse of discretion of the agency structuring of their own procedural rules. They sort of give halfsies to Vermont Yankee. They say, “But we won’t overturn it too often.” And it’s neither fish nor fail. It’s the arbitrary and capricious test sort of cut back a little bit. And that’s just I think an incoherent compromise.
I’m actually worried about Vermont Yankee because it doesn’t really grapple with the text of the crucial provisions that should have been at issue there, which is what sort of judicial review do you get when an agency has made a procedural decision? And the current DC Circuit law sort of is a little muddled on this very point, and it comes up where agencies make procedural rules and they just sort of muddle through.
So that’s a sort of very specific comment about Vermont Yankee. So you say it stuck a feather in the hat and called it macaroni. I think it mistook a feather. It was a stick on the ground, and what they thought was a feather wasn’t even a feather because they thought they were being textualist, but I think they were wrong.
Adam White:
Chad, anything more on that? It is a little ironic that Vermont Yankee is the seminal case on the court saying, we’re going to bind ourselves to the APA, but in itself, it doesn’t come out of the APA necessarily.
Chad Squitieri:
Yeah, no, I hadn’t thought about that and it’s a fascinating perspective. And as you’re saying, I’m thinking in another way, a more charitable way, you might say Vermont Yankee was even more right than they thought it was. When they say agencies have discretion, you can only review that if it’s some provision of law. And by the way, there is a provision of law and we can review it. So they just left the back half left off. So I really appreciate that comment.
I had a comment on Jud’s point about the non-delegation doctrine, and you talked about kind of the source or perhaps where we might find the source of it and questioned, I think, maybe Article I or the vesting clauses as the source. And in some of my own work, I’ve tried to identify the source as a necessary and proper clause. So I don’t know if that might be a more acceptable source giving your understanding of how the founding generation understood about how to make law and how to make law in necessary and proper means, and whether making law a necessary and proper law would include that kind of non-delegation concept, unwritten concept that you referred to. So I just didn’t know if you had any thoughts about that.
Jud Campbell:
Yeah, sure. So I think from a modern perspective, it’s important to have a textual hook. So I encourage you as a legal scholar to find that textual hook and run with it. I will say that if the founding-
Adam White:
Not make it up, but find it.
Jud Campbell:
Yeah, exactly. You got to find the law. The founders though, are pretty emphatic that the necessary and proper clause itself is just a declaratory provision that states a principle that would exist even if the clause weren’t enumerated. That is to say, when you have a power to do a major thing, you have the power to do the minor things that are adjacent to the major thing. Relating to your point, if you have a major power, a power to create regulations of commerce, you also lack the power to do things that violate other aspects of constitutional law, and so which includes unwritten potentially, unwritten constitutional law.
So the power to regulate commerce for instance, might not give Congress the ability to abrogate state sovereign immunity, because it could be that that’s a background principle that we recognize even in absence of written texts that enumerates that principle. And so to engage in a regulation of commerce that abrogates sovereign immunity would be a violation of background fundamental law. We can call that an improper use of congressional power, but I don’t think we… And so I have nothing against invoking the text. I think the text is actually quite helpful in many cases for illuminating, teaching us some of these background principles, but it is not a necessary component of making an argument if you’re working from a founding era perspective.
Adam White:
Chad, any reactions to that or John, any further thoughts on the non-delegation question?
John Duffy:
I actually think I’m going to get into that when we go to major questions because I think that’s the obvious place to talk about it.
Adam White:
We’ll just talk about that then next. I mean, obviously one of the most significant developments in the Supreme Court and the lower courts around administrative law has been the development of the major questions doctrine to really shape the way that courts and agencies think about statutory interpretation. Is that all just a matter of unwritten administrative law? And if so, is it that in a good way or in a way that we should be very worried about? Let’s start with Chad.
Chad Squitieri:
So I think that in large part, yes, it is an aspect of unwritten administrative law, and there’s at least two defenses of it on the court so far. The first is the Gorsuch defense, who I think sees the major questions doctrine as like a substantive cannon promoting some sort of constitutional value, presumably the non-delegation value. But if you look at his writing and the majority in West Virginia, they never really say when they created the major questions doctrine, they kind of act as if it was always there, or at least according to Gorsuch, started coming around with the rise of the modern administrative state.
I think there’s something to that, right? Why would we see something like the major questions doctrine when there was no need for it? And it would make sense that it starts to come around as historical matter with the regulation of railroads and modern federal regulatory power. And then the other defense is the Barrett defense that I mentioned, and it’s also kind of an unwritten defense where she’s saying this is something inherent in human interactions and I’m applying it to the administrative law context. So I think both of the two key defenses of the major questions doctrine are, if you look at them, kind of say that it’s an unwritten aspect of law.
Adam White:
Yeah, I think when you talk about Gorsuch’s approach and his view of history, that’s really been elaborated now at much greater length by Lue Capozzi at Jones Day among others, really trying to trace the rise of the major questions doctrine, if not by that name, corresponding with the rise of modern administration. John, what do you think?
John Duffy:
Well, the major questions doctrine, I’m still not come to rest on it. I think that it is akin to, and this is really the Gorsuch position, I think, it’s akin to the canon of constitutional doubt that says that you construe statutes away from serious constitutional questions. It’s important to realize that that canon is very much prevalent in administrative law. It’s very old too. There’s a 19th century case that I teach with Justice Holmes on the Supreme Judicial Court of Massachusetts, and he invokes this canon. So it’s a very, very old canon, and it is very powerful in the sense that you don’t have to prove it’s unconstitutional. There’s a separate canon that says between two interpretations of a statute, one of which would be unconstitutional, and one of which would be constitutional, you should choose the one that’s constitutional, and more scholars think that’s a valid canon.
I’ve heard Judge Easterbrook justifies that one, but not the one on constitutional data saying he assumes that when Congress acts they wanted to do something rather than to do nothing, and I think that’s fair. But the rule about constitutional doubt to simply construe a statute away from serious constitutional questions is very powerful. It probably lies at the base of the rule in the APA that the president of the United States and the Executive Office of the President is not an agency, even though if you look at the express definition of agency, it includes any authority under the United States government. And you’d say like, “Well, if you look at today’s president and say, “Is he exercising authority under the United States?” It sure seems like he thinks he is. Every time he signs an executive order in big bold letters, it sure looks like he’s an authority of the United States.
But I think the theory of why he’s not interpreted to be an agency is that there’s at least some serious questions of imposing these sorts of procedural rules on something that’s not a creature of statute, something that has direct constitutional power. But there are many other examples in administrative law of constitutional doubt. I think NLRB v. Catholic Bishops, Catholic Bishops case, it says that teachers in parochial high schools or parochial schools are not employees for purposes of the NLRA, and you can’t get that interpretation out of the language at all.
Indeed, if you say tort law and tax law, are they employees? The answer is yes, yes, and yes again, but to say that this statute which has a sweeping definition of employee just simply doesn’t include them, you have to sort of invoke some sort of constitutional shadow to sort of say, well, we’re bending the ordinary meaning of the words around that. So I think that might justify the major questions doctrine. Of course, this canon of constitutional doubt is itself hugely controversial right now. All the substantive canons are sort of under intellectual question. I think this is one that is likely to survive, but I think it presents its own intellectual conundrums.
Adam White:
Right. Jud, any further thoughts on this?
Jud Campbell:
Yeah, so just two things. One is at least from a founding era perspective, there’s a whole range of different ways of looking at statutes that are not textually grounded that have to do with background principles, implications, and a lot of this relates back to what I mentioned earlier, that you’re supposed to read positive law in tandem with principles of natural law. And so the idea that you would do this in a kind of iterative way rather than just focusing on the text makes a good deal of sense. The other thing I’ll say just as an outside observer to this debate is that I do think that the major questions doctrine is a nice illustration of how there are different types of unwritten law that are at play here. And I even wonder whether, I mean, I don’t think we need to engage in a lot of word policing, but I wonder whether Justice Barrett’s approach even properly belongs in the category of unwritten law.
So you could have unwritten principles of administrative law that are essentially supplying substantive rules or procedural rules. You could have principles of administrative law that are supplying interpretive devices for how to construe statutes. That’s a different thing, right? A background rule might supply procedure, background rule might supply a way of construing a statute. Those are just two different ways of thinking about background law. I do think that substantive canons are a type of unwritten law because I think that there is a law of interpretation, and I am a full supporter of the Will Baude and Steve Sachs move here to say the devices through which we read statutes are themselves informed by law.
At the same time, the Justice Barrett approach might just be, this is how we construe the meaning of language, not as a matter of the law through which we read statutes. It’s not a legal lens, rather it’s just a natural language lens. And so as natural users of the English language, we read certain words in light of context, not a legal context, but just a practical context. And so it’s a very different type. I mean, you could think of it as an unwritten rule in the sense that it’s specifying something about the meaning of words that is not wholly isolated to their particular semantic content. But that’s a different type of lens through which to read statutes than what I would think of as kind of a legal lens, a lens that supplements what a natural user of English language would think.
Adam White:
Given all the thoughtful administrative law experts in the room, we’re going to go to audience questions a little earlier than usual. I’ve got a few big picture questions and one I might save, but one more while the microphones are getting ready. Just the big picture question, I guess is given the choice between encouraging judges to think in terms of unwritten administrative law, urging them to recoil from the thought, shouldn’t we err on the side of judicial restraint? I mean, one doctrine of unwritten administrative law that might be one of the most consequential of the last 60 years was the DC Circuit’s decision in Calvert Cliffs where they took another procedural statute, the National Environmental Policy Act, Judge Skelly Wright and the court construed it very broadly in terms of procedural requirements and judicial review.
And here we are 50 years later where it’s incredibly difficult to build anything substantial in terms of national infrastructure. And we even have books out now from Ezra Klein and others of the New York Times saying, “Oh, it’s actually really hard to build in America. Maybe we should reform NEPA.” When in fact, maybe the problem was just a very significant judicial gloss on top of NEPA that caused these problems. At every turn, the judges generally don’t have to be encouraged to not restrain themselves. They have to be encouraged to restrain themselves for all the reasons that Justice Scalia was writing about back when he was think tank Scalia, think tank scholar Scalia here at AEI in the late 1970s/1980s.
And so granting sort of all the arguments you’ve made along the way and going beyond just the written confines of the APA and recognizing a role for unwritten administrative law, isn’t there a great danger of tempting judges to get creative? It’s one thing to say they should just find these unwritten doctrines of administrative law, but judges tend to find a lot of, I guess, feathers that are actually sticks. They’re very good at making up laws, very hard to constrain themselves to just finding these things. Shouldn’t we just err on the side of judicial restraint and get out of this entire business?
Chad Squitieri:
So I hear that, and I agree in the sense that judges can’t just say things because they think it’s a good idea. I’m still very hesitant and want to see some sort of source of the well. But the other side of that ledger, particularly in a constitutional context, is that if, say the executive is overstepping and the judiciary steps back, there’s a power vacuum and we still have unconstitutional action. So I think a judge needs to think carefully and say, “Is there really no law here for me to apply?” If so, then okay, that’s the end of the judicial role. But I think they need to think about it quite carefully.
Adam White:
Yeah, this feels like a throwback to the Scalia-Epstein debate at Cato in the eighties where Justice Scalia argued in favor of judicial restraint on the constitutional issues. And Professor Epstein said, “You know, sometimes agencies exceed their powers too. We need to worry about that side of the ledger too.” But John, Jud, just big picture, why shouldn’t we all just worry that the errs will constantly be on the side of judicial overreach and we should just embrace a protective rule in favor of judicial restraint when in doubt?
John Duffy:
Well, I think that you can’t make policy off of one data point. So you could look at the NEPA and say, well, maybe that-
Adam White:
I’ve got more data points.
John Duffy:
Okay, you’ve got more data points. But I think they’re probably contrary data points. I think that one of the unique features about the Anglo-American tradition is a common law tradition. And you especially note this when you go overseas and you talk to people who live in a civil law tradition and ask them about what they think about our tradition. And they are always struck by how the judges feel like they can take into account some degree of policy. Now, they may get that policy wrong, and that’s unfortunate, but I think our legislature to some degree knows that that is the way judges act.
In fact, when I started writing the article on administrative common law and judicial review, the target I thought I would attack the most is something called non-statutory judicial review, things that are outside the APA. And I wound up digging and digging and digging and finding that I think that that is statutorily authorized law that the Congress gave the courts in the 19th century equity jurisdiction, and you could sue for an injunction against officials who were overstepping their bounds. And the English law was pretty clear about that. And I think Congress, when they gave equity power to the courts, meant for them to be equitable judges, and so suits against officials in their official capacity were something that followed that tradition.
So that I found there was power in judges. And the most amazing thing in an article where I’ve got five different parts of the article, four of which are saying judges are taking too much power, and only one of which is the one about equity jurisdiction, saying that in fact, that one piece is where judges actually do have legitimate power to make law. That’s the First Circuit cite I got on that piece by Judge McConnell who cited that article and said, on this judicial review, unwritten judicial review, pardon me, non-statutory judicial review, there is a theory to justify it.
And he cited my article and I thought, this is odd that you can never go bankrupt sort of telling judges you have a lot of power. Here’s an article that’s all about, four-fifths of it is you’re exercising too much power, one-fifth is, but here you have a lot of power. And that’s the first circuit cite I get as a young untenured professor. I thought like, well, go figure. So I think that is the way things work. On the other end, that is part of our Anglo-American tradition. I don’t want to go to a civil law society, and that is a very Scalia-esque reaction I think, because Justice Scalia didn’t want to force us to be a Napoleonic code country either.
Adam White:
True. Jud, any?
Jud Campbell:
Yeah, so I tend to think that focusing on written law is a little bit of a sideshow and that really the key issue is legal determinacy and that from a founding era standpoint, legal determinacy can come from text, but it could also come from customary law, and also that written constitutional provisions or statutes aren’t necessarily legally determinant. And so it isn’t the case that judges could not enforce any unwritten law. I think they could sometimes enforce customary law, but it’s also not the case that just because something was written down, that makes it fully judicially enforceable. And so I think as long as there are some legal source that judges can rely on that supplies sufficient determinacy, trusting judges to apply that law is something that our legal system presupposes. But I would be very worried about judges stepping in and making up legal rules, particularly in an area where things are constantly evolving, maybe judges aren’t in the best position to decide and so on.
Adam White:
Yeah. Chad, last word before we open it up.
Chad Squitieri:
One more thing on that. I think another important point here are methodological commitments of the justices. So for example, substantive canon context, there’s a lot of debate whether textualists can embrace substantive canons because that seems to be bending or distorting statutory texts. And then Professor Barrett has this amazing Boston University Law Review article, I think it’s probably my favorite Law Review article, where she walks through and says, “As a textualist, when can you embrace it? When can you embrace certain substantive canons?” And I think having a methodological commitment can relieve some of the worry that you mentioned in your question.
Adam White:
And I can just hawk the Gray Center’s wares for a second on one of our most recent working papers, I think it’s still on the home page, is Professor Michael Ramsey thinking about the major questions doctrine and the history of American substantive canons. Well, let’s open up the floor. There’s a couple microphones here, so raise your hand and the microphone will find you. And Philip Wallach is the first, this hand and the next one will be right over here actually.
Philip Wallach:
Thanks for a great discussion. I’m Phil Wallach here at AEI. Congress is lurking in the background when you’re talking about the APA. It’s an extraordinary congressional intervention into the whole practice of government regulation of the administrative state. It’s Congress saying, “Something has gone wrong here in the last 20 years, it’s gotten away from us, it’s become unaccountable. We need a big reform.”
Now going back to Professor Duffy’s open comments, it seems that they didn’t actually do a very good job making sure that the requirements they put in place in the APA were actually heeded in many cases in the decades that followed its enactment. It really is an unusual moment of engagement where Congress after World War II comes and says, “We need to get involved in the way that this whole process is functioning.” I guess just curious how you see ongoing engagement from the Congress or periodic engagement as able to shed light on sort of how the unwritten rules are working, whether Congress is in a position to sort of pass judgment on it and what that means about some of the concerns kicking around Congress today.
John Duffy:
Well, I think it’s an amazing story that the APA was passed unanimously by both houses of Congress. That just blows your mind if you’re sitting here in the 21st century in our current political environment and say there was not one dissenting vote and it was signed into law by the president, President Truman. Of course, Roosevelt had vetoed the first attempt at an APA and then there was World War II and at the end of World War II, 1946 is when the APA actually gets done. But given the sort of bipartisan support for the APA, it is amazing that there are very specific provisions of the APA that were, as Ken Davis said, ignored. And by ignored, I mean you can make it your lead argument in your brief and it won’t wind up in the judicial opinion. And that was in 1990, 1991. And I just think that this was extraordinary. And it’s not just the APA, it’s a respect for statutes that I think mid 20th century just was not so prevalent.
I recently saw on the AdLaw professor’s listserv blog, I hope I can quote him, Jerry Mishaw, great administrative law scholar who said one of his colleagues used to say that statutes are defined as those things in block quotes and judicial opinions that Yale law students don’t read. And I thought, boy, that might’ve been true. It’s not true anymore I hope, I don’t know Yale Law School, but certainly at the University of Virginia and the University of Chicago and some other schools, we read the statutes. But I think it was a philosophy. And if you read this friendly article, which is a very prominent mid-twentieth century article, and Judge Friendly was, remember, he was considered a very conservative judge. He wasn’t one of the DC Circuit sort of relatively liberal judges, he was considered a pro-business conservative judge. And he has this article that just sort of says, “We’re ready to go off to the races, give us a bit of legislative history and we’re running.”
And that seemed to be what the philosophy of the era was. And that’s much different than I think what you’re talking about in terms of saying there might be some unwritten law out there, but we have to think about the text. It’s a very different just era than what we have now, which is why I think we’re finding more of these surprising things. Corner Post just last year. And the court is like, how could this have gone on for so long? I think there are more out there. And ripeness is number one on my list of made-up doctrines, just totally manufactured. And I think it should be replaced by the commands of the APA, which is similar but not identical.
Adam White:
Next question’s right here. It’s coming over behind you.
Speaker 6:
Thank you for that very erudite, intellectual and apolitical statement, or I should say discussion. And I’m hopeful that this question is something of a follow-on to Adam’s so as to be acceptable, which is, so right now the courts are at the white-hot center of what we’re reading about in terms of bringing in a new political program. And although it is not strictly related to administrative law, it certainly is to unwritten law. I wonder if any of you have thoughts about how what you have spoken about today connects into what we read about in the papers. You’ve got a hundred lawsuits to choose from. Any comment would be welcome.
Adam White:
Who wants to be relevant? Go ahead. Who’s first? Chad, I’m putting you on the spot because you’re the co-host and you live here in Washington.
Chad Squitieri:
So I would say it kind of goes to Adam’s concern, courts should do a lot of self-introspection, I think, and make sure that when they are inserting themselves into very big political disputes that they actually have the authority to be doing that and they’re not overstepping into authority that’s either vested in the executive most frequently or the legislative branch. So that’d be my response to that.
Adam White:
John, Chad?
John Duffy:
Well, my reaction, maybe we’ll just go down the line. My reaction is that whenever a colleague and I get discussing these issues is that I always confess deep ignorance about some of the technicalities, which I think judges should look at. And also, I think it’s very important to emphasize the role of lawyers. I love emphasizing that because I’m teaching by and large people who are going to become lawyers, and I think they have a tremendous amount of power. Recently I talked about, I did, as I mentioned, a symposium piece about Chevron, and I read all the briefs that were filed in Chevron and nobody, nobody cited the first sentence of section 706. Nobody talked about it. Even though the lower court law, you could find lots of… Lower court law was unanimous saying the first sentence of section 706 when it said courts are to decide all questions of law. That meant independent judgment or de novo review.
But there was no split on that at all. And so I think lawyers have to be particular and find written law that regulates these things. Like when people ask, “Can you fire this employee?” I know enough about the civil service statutes because I used to work with them when I was in the Department of Justice. That was part of my little docket of things that I did at the Office of Legal Counsel. I know enough to know it’s very complicated. And so you just can’t sort of paint with a broad brush and say, “Well, it’s surely unconstitutional, or it’s surely lawful. See Article II or see Article I.” That just seems like a very broad brush.
And I think that when you get down to a lot of these issues, they involve statutes. I think Congress can grant tenure protections to certainly the civil service. I don’t know if that’s a good idea or not. I’ve been debating that with some other colleagues about what’s optimal amounts of tenure. But even the dissent in Morrison v. Olson by Justice Scalia accepts that non-officers, people who are called employees in the jargon of the Appointments Clause, that those people can have some tenure protection. And it depends on those statutes that are hugely complex. And I just don’t have the time to read all of them, specifically for the 100 lawsuits that are out there pending about all kinds of different issues. I don’t have time to read them all. And that’s my reaction is there is a lot of complication and we are going through the courts. The courts do have a role to engage in judicial review of these things.
Adam White:
Jud, anything to add?
Jud Campbell:
So in the vein of John’s remarks that the details matter, I’m a founding intellectual historian, so I’m going to avoid opining on the details of any of the current goings-on. But I do think that, and this ties back to the previous question as well, a lot of the current moment is downstream of a just fundamentally different legal culture, and that we would be a lot better off with a different legal culture. And so we put a lot of these issues in courts because we distrust our politics and our politics is so dysfunctional. We put a lot of these issues in the hands of the executive branch because Congress has not proven itself capable recently of gaining the trust of both sides, right? I mean, the level of trust in congressional institutions is so low right now.
And it’s really hard to figure out a way out because once you lose trust, and you lose the institutional capacity, your ability to rebuild the sort of norms that are necessary to foster a broader legal and constitutional culture have really disappeared. And so I think a lot of the challenge of trying to figure out what to do today is about how to best maintain a constitutional and legal culture given the enormous changes that we’ve seen. So although I am extremely nostalgic for an earlier age, I’m not sure what the answer is now. I think it would be-
Adam White:
That’s actually our mission statement here at AEI.
Jud Campbell:
I think it’s a really hard thing. I mean, I do take seriously the need for greater judicial review today than the founders would’ve accepted, given a lot of the intervening changes that we’ve had in society, the complexity, the scope of power that’s granted to the administrative state and so on. But I think it’s regrettable in a lot of ways.
Adam White:
I know John wants to jump in, but we only have three minutes left and I got one question that I want us to end on. So do you mind if I jump right into it or do you want a quick comment?
John Duffy:
Well, just a quick comment. I’m not sure that earlier era you should be nostalgic for. Marbury v. Madison was an intense and brutal fight. The pre-war, the pre-Civil War era was involved in intense and brutal political fights. And de Tocqueville said nothing that’s controversial in American society fails to wind up in front of the courts. So I think the courts have always been part of our political culture. Maybe I haven’t read enough of the founding sources. I mean, there might’ve been a constitutional moment for maybe a decade where everybody was happy, but then it seems normal politics took over.
Adam White:
You know John, in Harvey Mansfield’s translation of Tocqueville, I’m pretty sure the line is there’s scarcely a political issue that doesn’t sooner or later get a judicial resolution. It seems these days it’s a lot sooner than later in all the various cases.
But just one last question, we’ve got two minutes. Maybe Loper Bright is ushering in a new era of APA originalism or textualism. We’re really going to scrutinize administrative law by reference to the words of the APA. And I can think of any number of places where this could pop up. Justice Kavanaugh, when he was on the DC Circuit, worried that maybe a lot of judicial doctrines like the Portland Cement Doctrine get way beyond what the APA requires.
There’s been, John, as you know better than anybody, there’s been great debates around the remedial provisions and 706 and vacate and set aside. There could be debates over what Congress meant by arbitrary and capricious. I mean, I can think of any number of things. So just really quickly as we go, do you see any particular doctrine that’s particularly ripe, so to speak, for reconsideration right now in the courts with an eye to APA originalism? And we’ll start here with Jud and you’re not the administrative law specialist, so you can pass if you want.
Jud Campbell:
Yeah, I’m not sure I can opine on this one.
Adam White:
All right. John?
John Duffy:
Ripeness is my number one thing. It’s totally made up. The APA has different rules. They’re similar but different. I’d love to see ripeness go down. And by the way, in terms of Loper Bright, Loper Bright I think is a continuation of a process that started that once you turn to textualism, then a lot of things change. And I would cite Darby v. Cisneros, as long ago as that is, as a watershed case where the court itself, and the opinion says, “Gee, this seems surprising that it took 46 years to think about this.” I would look to that as the beginning.
Adam White:
Chad?
Chad Squitieri:
When I think of APA originalism, the kind of doctrine that comes to mind right now is our deference. So with Loper Bright overruling Chevron, which I think was a good thing, the natural question is our deference also going to be overruled? Because that’s also relying on 706 of the APA. But there’s an interesting historical question there, because Seminole Rock, which is a case before our, it’s essentially the same thing, was decided in 1945, one year before the APA. So perhaps 706 kind of encodes a historical understanding of our deference, but not encode or codify a historical understanding of Chevron. So that’s one case I would look for.
Adam White:
Well, and our has now been kind of supplemented by Kisor deference, which for law professors who like puns in their title, the articles about Kisor deference practically write themselves. But please join me in thanking our guests today. Thank you. Great.
