Is the Administrative State Morally Legitimate?

Adam J. White (00:00:00):
Good afternoon everybody. Welcome. Welcome to all of you who are here and all of you who are watching online. I’m Adam White from the American Enterprise Institute and it’s my pleasure to welcome you all to this conversation on the question of whether the administrative state is morally legitimate. It’s a particular pleasure to get to do this event with our friends at the Catholic University of America’s Project on Constitutional Originalism and the Catholic Intellectual Tradition. And with that, I will turn it over to my friend, Professor Chad Squitieri.

Chad Squitieri (00:00:32):
Great, so it’s so great to be with you all here today. For those of you that don’t know me, my name is Chad Squitieri. I am a Assistant Professor of Law at the Catholic University of America’s Columbus School of Law, where I also serve as a fellow within the Project on Constitutional Originalism and the Catholic Intellectual Tradition or CIT for short. So at CIT, we promote scholarship, examining the relationship between American constitutionalism and the Catholic intellectual tradition. And that tradition is rich and deep and includes figures such as St. Augustine and St. Thomas Aquinas, but also figures that didn’t hear the gospels such as Cicero and Aristotle. So at CIT, we promote our mission through events such as this, guest lectures, conferences, and fellowship opportunities for young lawyers and law students. And today we’re of course co-hosting with AEI. So I think Adam and the rest of you all AEI for your hospitality and all of the work that went into today’s event.

So today’s event is titled in the form of a question, Is the Administrative State Morally Legitimate? And to help answer that question, we’re joined by some experts in administrative law. And the way today’s panel will work is we’ll have each of our panelists will offer about a 10 minute opening presentation and then I’ll ask them maybe a question or two to get the conversation going. And then when all of our panelists have finished, I’ll ask the panel themselves some additional more questions to kick off the Q&A. But perhaps most importantly then we will turn to audience Q&A, so both online and for those of you here with us today. So online you can submit questions to that emails on the event webpage. You can also submit questions on Twitter by using the hashtag #aeiadminlaw. So we will start off by hearing from The Honorable Paul Ray.

Paul Ray is a director of the Thomas A. Roe Institute for Economic Policy Studies at the Heritage Foundation. In 2020, the United States Senate confirmed him as administrator of the Office of Information and Regulatory Affairs or OIRA, within the White House’s Office of Management and Budget. So prior to OIRA, he served as a counselor to the US Secretary of Labor and a law clerk to judge Debra Ann Livingston on the United States Court of Appeals for the Second Circuit, as well as a law clerk to Justice Samuel Alito of the United States Supreme Court. He’s a graduate of Harvard Law and Hillsdale College. So I’ll turn it over to Paul.

Paul Ray (00:03:10):
Great, well thank you Chad and thank you all for having me today. Really a pleasure to be here. So the question that’s our topic today seems to ask for a yes or no answer. I’m not going to give one of those, at least right now my opening remarks. What I want to do is raise a respect in which the administrative state is morally problematic. That’s a different thing than answering the question outright. And I want to raise what you might call a moral problem about the administrative state. And to do that, I want to draw on the work of John Finnis. I don’t know if there are John Finnis readers in the audience. Well I know some of you are John Finnis readers who are in the audience. So I’d like really you can think of what I’m about to say as a prolonged meditation, not prolonged too long, don’t worry.

But a prolonged meditation on the good of practical reasonableness that Finnis talks about in his body of work. So as those of you who are Finnis readers know, he offers in his work that practical reasonableness is a basic human good. We are better off being practically reasonable than not being practically reasonable. And what it means to be practically reasonable is to pursue goods intelligently. So that is to say practical reasonableness is kind of a funny good because it consists in pursuing other goods intelligently. So in other words, in any situation in which you might pursue some good, say the good of aesthetic appreciation or friendship or healthy living, there are in play two potential goods, the good you might achieve through your efforts and the good of being at work in practical reasonableness to achieve it. So in every opportunity to engage in what we might call a human end, there are not one but two basic human goods or basic human values in play.

So if we are to, well briefly, a sort of quick way to encapsulate this idea is that it’s better to be a cause than not to be a cause. We’re better off being causes of our own thriving and the thriving of others than having, than sort of stumbling upon that thriving. So if we want to be at work in practical reasonableness, we need opportunities to do that. And part of the common good of any society would be a set of opportunities that create chances to be at work in practical reason. Those opportunities can be found in the subject matter that the government regulates, and in the operations of the government as well. So that is to say one part of the aim of politics can be realized in part in political practice itself. The good of politics is partly a reflexive good. Politics, if it’s a reasonable politics aims among other things at being, allowing people to be at work in practical reason. And they can be at work in practical reason in politics itself as well as in all the activities of life that politics regulates.

Now of course, societies may and often must prioritize goods other than practical reason in various political choices, but it would be arbitrary to disregard the desirability of the exercise of practical reason. So in other words, it would be arbitrary for a society to structure its governing institutions in a way that disregards the value of practical reason. Okay. And of course the same would be true for any attempts, any theoretical attempts to justify one particular institution or another. Any theoretical attempt to say that this or that system is good or bad, that doesn’t take into account opportunities that people have to participate in practical reason is an inadequate justification. So I think this is the theoretical underpinning for something familiar to those who follow Catholic social thought, which is subsidiarity. I don’t know if subsidiarity, does that ring a bell for folks in the room? Yeah. So subsidiarity, the word or a cognate of the word rather appeared in a papal encyclical for the first time in 1931 in Quadragesimo anno. But the concept dates back to Rerum Novarum at the end of the 19th century.

The teaching in the Encyclicals is that smaller bodies, the bodies of civil society are denatured in some way if their responsibilities are taken away from them and assume by a central authority. And I think the framework that I’ve laid out here is the theoretical underpinning for that assertion. That is to say the various groups of civil society provide really important opportunities for people who are not the political rulers of society, to engage in acts of practical reason to pursue the good for themselves, their neighbors, their communities, their churches, their businesses, et cetera. If we don’t have those groups undertaking important work, if everything is done by the government, then there isn’t an opportunity for people who are not rulers to engage in the good of practical reason.

So there are three important applications of this principle that I want to talk about. One is, it follows that if a matter could be handled by a smaller group and not by the government, that there’s a lot of value in leaving the matter with the smaller group. And so the government, if it’s going to act reasonably, would never take on a decision, take a decision away from a smaller group unless it absolutely has to because when the government does so even if it can take care of the immediate need as well as the smaller group can, it’s deprived the members of the smaller group of the opportunity to engage in practical reason. So that’s one application.

The second application is that the central authority doesn’t just have an obligation to respect the ongoing work of the groups of civil society, but also has an obligation to affirmatively foster their ability to engage in important work. So that could look like making sure that a good physical and economic infrastructure are in place for the civil society groups to conduct their work. And a third application is that when the central authority must intervene, the intervention should be targeted in terms of both scope and time. The central authority should respond only to the failure of the smaller group that’s warranted the intervention and it should evacuate the field as soon as it can. It should intervene with a view toward getting the smaller group back on its feet as soon as possible.

So I think if we look at the US administrative system, what you see is that it does not measure up to these three applications that I’ve described just now. So you will not be surprised to hear that agencies have a tendency to focus myopically on their missions, on doing whatever the thing is that they are especially suited to do. They don’t tend to think a great deal about the opportunities for practical reason that they are depriving groups of when they pursue their missions. And that’s not surprising under Weber’s work. Of course we know that a defining mark of bureaucracy is that it pursues or that a bureaucratic agency pursues a specialized mission. It has a certain set of enumerated tasks that it pursues, tends to pursue at all costs. It’s not very good at balancing pursuit of its enumerated tasks with other more generalized objectives like the need to foster opportunities for practical reason.

But I think where the US administrative system really fails to comport with the applications of subsidiarity that I’m describing is when we consider that the central authorities intervention should be limited, and especially when we consider that the central authority ought to intervene with a view toward ending its own intervention as soon as possible. It’s a truism around Washington that once a regulatory program is created, it will be there forever. And Congress very rarely revises statutes that create programs. Agencies rarely revise their regulations and when they do revise their regulations, it’s usually not to eliminate a program altogether, it’s to modify the regulations in some way. So it’s quite rare for the central authority to vacate the field once it’s entered it. So these are a couple of points in which I think the US administrative system does not measure up to the norms of subsidiarity. And with that I yield the balance of my time.

Chad Squitieri (00:13:01):
Great. Well thank you very much for those remarks. My first question is to focus on that point about subsidiarity and evacuating the field. So we sometimes use subsidiarity and federalism almost interchangeably, but there are course important differences. One difference being with federalism, if the higher order of the federal government has the authority, they can act without a consideration of whether it is appropriate. Whereas under subsidiarity you need that secondary question. So as you know, it’s often the case that if the federal government comes in and acts, they rarely evacuate. So how, are there tools that could be deployed within the administrative state or do they have to perhaps come from outside such as sunset statutory provisions or something like that, that would encourage federal officials to not just exercise authority because they have it and they can but to only exercise authority when it’s appropriate to do so? What types of tools could be use to ensure that?

Paul Ray (00:14:04):
Yeah, yeah. So one of the marks of the genius of the founders is that they understood that if government has authority, it’s going to tend to exercise it. So there are pretty serious limits on our ability to force agencies to take subsidiarity into account if they have power that would allow them not to take it into account. So the principle thing that ought to be done is to deprive the agencies of some of their power. That said, there are ways to use the Administrative Procedure Act in helpful ways to enforce subsidiarian values.

There have been some cases, I’m thinking of one in the DC circuit in particular that have held that because the agency failed to find that states weren’t already adequately addressing the problem, that the regulation was arbitrary and capricious, it was unreasonable, irrational for the agency not to consider whether states were already adequately addressing the problem. And I think more could be done on that front, whether by states and other actors who are pursuing problems or solutions to problems that agencies want to tackle, informing the agencies of why their efforts are already adequate or through legislation that requires agencies to give serious consideration to that possibility.

Chad Squitieri (00:15:30):
Great. The other question I wanted to ask you concerns your comments about that focus of particular administrative agencies. So working at a Catholic university, one writing that’s important to me is St. John Henry Newman who wrote on what the meaning of a university is. And one of those arguments in a nutshell is all the various forms of study and the pursuit of knowledge are connected. And he compared this to, “The man of one idea… “, to quote, “… whose life lies in the cultivation of just one science.” The idea being when you’re an expert in one area, everything looks like a nail that fits your hammer. So I think one entity that could help correct that and bring multiple expertise together is OIRA. So I would just be curious in your thoughts whether you think OIRA lives up to that task, bringing multiple broader scope to bear on various questions and perhaps in answering it, if you could just reminder our audience briefly of the importance of OIRA, which I’m sure is very, most of our audience I’m sure is already well familiar.

Paul Ray (00:16:36):
Well, if most of the audience is already familiar with OIRA, that would be a first, except when addressing OIRA. So OIRA is the Office of Information and Regulatory Affairs. It’s an office within OMB, which is, it’s itself a department of the White House. OIRA receives every significant regulation that agencies propose to issue except for regulations from the independent agencies. And the agencies under executive order are not allowed to issue a regulation until OIRA signs off on it. So when OIRA receives a regulation, it reviews the cost benefit analysis of the regulation and it also invites the views of every other relevant agency and office throughout the government. So if there’s a regulation from HHS about health insurance, well that regulation would go to the Labor Department and Treasury, certainly because those are two departments that have a lot to do with the provision of health insurance for various reasons. They would go to the Domestic Policy Office in the White House, might go to White House Council as well.

So OIRA, in addition to serving its own role of analyzing costs and benefits, serves as an information and views aggregator, it pulls together the views of agencies across the government. And Chad, to your point, you’re absolutely right. OIRA does help the agencies compensate a little bit for their own necessary limitations that are baked into their missions. So I think that is a helpful point. That said, you’re still not getting the diversity of views that you say would get in Congress, right. And I think that’s an important difference.

Chad Squitieri (00:18:28):
Great. Well I stopped listening when you said I was right, so I figured. Well, thank you for those comments. I think we’ll turn things over now to Adam to hear his opening remarks before going to some panel wide argument or questions and answers. So Adam White is a senior fellow at AEI and a co-director of The C. Boyden Gray Center for the Study of the Administrative State at George Mason. He also serves as a public member of the administrative conference of the United States and will be the next chair of the ABAs administrative law section. Adam has published widely in law reviews and national publications such as Wall Street Journal and National Affairs. He previously served as a law clerk to Judge David B. Sentelle on the DC circuit and he earned his degrees from Harvard Law School and the University of Iowa. So Adam, take it away.

Adam J. White (00:19:16):
Thanks Chad. One of the great challenges of following Paul on a panel like this is normally on a panel like this in DC, if I’m on with an experienced government official, I say, “Well, I can beat them on the theory.” And if I’m on a panel with a bunch of academics, I say, “Well, I could beat them on the practicality side.” But with Paul, you can’t beat him on either. So I’m just going to do sports jokes for the rest of this panel. The question again, Is the Administrative State Morally Legitimate? And I’ll start with where I’ll finish, the administrative state, it’s not moral, not nor is it inherently immoral, but administration rightly understood, has profound moral stakes. And the modern administrative state now does seem to undermine a lot of the ways in which administration can and should and must reinforce or at least help to foster morality.

I’ll start with just a discussion of modern administrative state, limited to… That would be a much longer conversation, but the modern administrative state in terms of these moral questions. Of course the administrative state today does immoral things, but that’s true of any part of government in any time, whether in legislation and execution or in adjudication. Of course there will be from time to time governing institutions that if not outright undermine morality or doing immoral things will impede morality or help to undermine the morality of the public. In administration, I suppose that’s especially true. In the administration of war, in the administration of capital punishment and other matters of life and death. In criminal justice, matters touching on religion and the practice of religion and so on. So for me, in thinking about the question today, I try to frame it for myself as more like this, does the administrative state tend to make people more or less moral?

And my answer is that I think the modern administrative state does have a tendency to demoralize in two senses of the word. And I’m going to explore both of those, the ways in which the administrative state can make us less moral and the ways in which the administrative state tends to demoralize us as citizens. In terms of making us less moral. Let me start with in a roundabout way, I’ll get to that point, but I’ll start as always with Hamilton because I can definitely beat Paul on Federalist quotes. Any student of administration, any student of the modern administrative state, administrative law will read Federalist 70 and Hamilton’s reflections on the need for energy in the executive. But of course it’s important to read the lines that follow that famous quip. Why is energy in the executive good thing? Well, Hamilton offers a few reasons and he begins with maybe the obvious ones in foreign policy and national security.

But then he says the steady administration of the laws, and I’ve long thought that that particular phrasing of it is really underappreciated. Steady administration. You can have energetic administration that isn’t necessarily steady. You can have steady administration that isn’t necessarily energetic. Hamilton thought you needed both and you needed energy for the sake of steady administration. Well, why was steady administration so important? You get a sense of his, you get a sense of Hamilton’s sense of steady administration in Federalist 70 and in the Federalist papers that follow, where he discusses the election of the president, the president’s ability to run for reelection, the need for a four year term. Time and time again, Hamilton returns to the theme of the dangers of what he calls mutable administration, right? The risk that if a president can’t run for reelection, a president doesn’t serve a reasonably long term. The danger is that each new administration will come in, come in quickly and change everything.

Since there are very few millennials in the room, I can refer to the Etch A Sketch. When I talk about Etch A Sketch’s, it’s lost on millennials. But Hamilton recognized the difference of treating government the way we as kids treated Etch A Sketch’s. You take whatever was written on it, you shake it, it all goes away and you have a clean slate. For Hamilton, a mutable administration was the surest way to undermine people’s trust in government and trust in one another. Just as Madison wrote earlier in the Federalist about the need to foster a healthy sense of veneration for our constitution and laws. Hamilton makes clear in the Federalist that steady good administration is another way in which you build not veneration. Veneration of the administrative state I guess would be a different kind of moral question, but at least a trust in confidence that laws on the books now would be enforced reasonably and with reasonable certainty in the years ahead.

And that if a law’s going to change, it’ll be changed through the legislatures more so than through the executive branch. Of course, each new executive is going to recalibrate. That’s inevitable and it’s truly a good thing in a nation where elections have consequences, but you can have too much of a good thing and there’s a risk that, too much change from one administration to the next will create too much uncertainty.

So I guess the way I think of good administration then is that good administration, good study administration helps to clarify, it helps to create more certainty, less uncertainty, less opacity, fewer shadows and more transparency, more clarity. Why is that a good thing? Well, as Hamilton emphasized, because all of us know, you need that certainty, that steadiness in administration so that you can live your lives. So that you can plan, you can build, you go on knowing basically what the law is. And of course the laws, again, they’ll change, Congress will change them, administrations will change, but at least more or less we have a sense of what our rights are and what our obligations are. And if nothing else that helps us to get along in some ways more easily with one another. We know what the baseline rules are for day to day living. We know how to change those rules if we want to, but we know they’re not going to change too often. And we have this baseline level with good laws in place, a baseline level of trust that we can build on with one another.

Without steady administration of the laws. With this sense that with every new presidential election, everything is up for grabs, it undermines a lot of things. It undermines our trust in government. It undermines the way in which we take law seriously as law. But also if our rights and obligations are constantly changing, we have to approach one another at least in our legal relationships with a greater degree of suspicion and doubt. We have to lawyer everything up and speaking as a recovering lawyer, I mean I don’t like to pick on lawyers too much. When the lawyers are constantly involved in everything and constantly trying to game out what’s around the corner instead of what the law is today, it just reduces us to a lesser version of ourselves. Again, this presumes good laws in the first place, or at least not bad laws in the first place. But with good laws or bad laws in place, bad administration has a way of making things worse. Good administration has a way of making things at least a little better.

So that’s the sense in which I worry the modern administrative state makes us less moral, by requiring us to act with greater suspicion and cynicism and doubt about what the law is and what our relationships to one another through the law are. But when I said the administrative state demoralizes us in both senses of the word, I do mean it demoralizes us in the more common sense. That it makes us weary of government, it makes us weary of trying to participate in government. It makes us think that there’s really no sense in getting involved in government at the local level, at the national level, if all the really important things are going to happen exclusively through the administrative state. It’s one of the reasons why Congress has become in many ways a much more cynical and much more reactive and much more accusatory body because we assume that all the action is in administration and the administrative state.

So it demoralizes us as citizens by giving us less reason to really want to devote ourselves to governing institutions. And also by the way, since the modern administration is a federal administrator or the modern administrative state is a federal administrative state, there’s even less reason as Paul emphasized to get involved with governing institutions or civic institutions at the state or local level or even at the non-governmental level. We assume that everything is going to happen at the federal level in federal administration. And it’s why by the way, our politics today center around presidential elections and each presidential election campaign has a kind of flavor of regime change to it. We become basically two, for politically engaged people, we become two warring tribes, two war camps, each one devoted to either the party that’s in power, which is to say in charge of the administrative state or the party that’s out of power and waits for the opportunity to win the election, put the proper government back into place and seize command of the tools of power in government. There too again, I think is a real demoralization of our lives as citizens.

Now thinking about Hamilton, the line I keep coming back to over and over again in recent years it’s in, it appears first in Federalist 68 and Hamilton liked it so much he ends up quoting it back to himself and his readers in Federalist 76, he thought only judges and professors cite themselves. Hamilton did too. He says in Federalist 68, which is by the electoral college, he says, “The true test of a constitution is its tendency and aptitude to produce good administration.” That’s pretty remarkable when you consider everything that Hamilton wrote about, thought about in constitutional government to say that not just a good test or a true test, but, “The true test of a constitution is its tendency and aptitude to produce a good administration.” I think about that a lot because I think that challenge is before us now more than any other time in a recent memory, trying to think through what type of administration does our system tend to produce now.

And I think it tends to produce the kind of system that we’ve been discussing now in our criticism of the administrative state. Okay, one last point about morality and the administrative state. Good constitutional administration is faith based, I don’t mean in the sense of a faith-based initiative that we think about, it’s faith based in the sense of faithful administration, faithful execution of the laws. There’s a reason why the framers put into our constitution an oath for the president. Other government officials and judges and members of Congress, they all swear oaths now too. The president’s oath is in the Constitution and for a reason. The framers knew that the president would have a unique power and opportunity and temptation to execute the laws unfaithfully. Either to refuse or fail to faithfully execute laws they don’t like or to take the laws they do and maybe take them too far.

So there the President swears an oath to faithfully execute his office and of course has the duty in the constitution to faithfully execute the laws. We have that oath for a reason. The presidents can execute laws that are vague. Laws are always vague no matter how hard you try to write them carefully. Federalist 37, to keep quoting Federalists, right? But Madison and Hamilton recognized you’re always going to have some vagueness maybe around the margins, maybe at the heart of the law, hopefully just at the margins. Good administration has to be an effort at liquidation, an effort to clarify and create certainty in the place of uncertainty. Modern administration tends to do the opposite and it raises real questions of whether presidents are being faithful to their oath, to faithfully execute the laws. If the administrative state demoralizes then good Republican, small or Republican administration can re-moralize. It can make us more moral towards one another and more moral towards our governing institution. Again, the modern administrative state is not moral, but constitutional administration can be and in our era must be. Thanks John.

Chad Squitieri (00:32:31):
Great. Well thank you very much for that Adam. And I didn’t hear Paul correct any of the Federalist citations, so I assume they were all correct.

Adam J. White (00:32:38):

Chad Squitieri (00:32:39):
Your point about the switches between policy of different presidential administrations. So Aquinas of course mentions that the mere change in law is prejudicial to the common good, right?

Adam J. White (00:32:52):

Chad Squitieri (00:32:53):
A similar point to what you’re making. And I think we, there’s this political incentive when a new presidential administration comes in power, they want to capitalize on their policy. So we have these heavy shifts between administration, between administration. So I want to ask you how we might go about limiting those heavy shifts. So one way we might go about doing this, and perhaps you can break news tonight and tell us you’re dropping, is like a Wilsonian type idea. Where insulate these administrators from politics and they’re going to be experts and just act in a non-political way. Another idea might be some form of liquidation. And so my question first part is just how do we limit it? Or maybe just secondly, as originalists, do originalists need to start thinking about how to constrain those types of changes similar to how originalists over the decades up till now have considered how to interact with stare decisis in the judicial space.

Adam J. White (00:33:56):
Yeah. Justice Thomas and Justice Scalia both in their time on the court, their times on the court both wrote brilliantly on this. And they’re both absolutely right. The challenge is, they disagree with each other and the question is how could they both be right at the same time? Here’s how I see it. Scalia wrote that in an era of broad delegation of power from Congress to agencies, presidential elections have to have consequences. The courts, instead of micromanaging policy judgments should give administrations space with things like Chevron deference, to make policy judgments, then people can vote for a president and those elections will have consequences. And I agree with that. Justice Thomas is right though, because at the end of the day, the law has to be the law. Congress writes these laws, the administrations execute them, but the courts have to say what the law is at the end when they decide cases. And there’s a risk that too much, that judicial deference becomes judicial abdication. At the very least it’s not really treating law as law anymore, it’s treating it as like putty. Policy putty.

The way I think they both got it right, which is to say I disagree slightly with each of them. I mean who am I? But I’m here on this panel. I think Scalia’s right in the short term, I think when a law is new, it’s good for the courts, if there’s genuine ambiguity or vagueness, I think it’s probably good for the courts to leave a little space for administrations to try to liquidate the meaning of it. And that requires good faith on the part of the administration. But give them some space. But at some point the court does have to say what the law is. And I think it should learn from the work of administration. But at the end of the day it has to impose some certainty on this so that we can channel our political energy then not back to administrations, but back to Congress.

Chad Squitieri (00:35:56):
Well, picking up on your point about back to Congress, since we are here today talking about morality, I thought one good place to look would be the moral virtues. One of course being fortitude or courage. And when I think about how that might apply to the modern administrative state, I look at a congress who does not appear to have much fortitude in the sense that there are often dangerous political decisions to be made in the sense that if you come out the wrong way, you’ll be voted out of office. So the answer is rather than to be courageous and answer those decisions as Congress, it’s simply to punt it to an administrative agency and say go do good and figure that out for us. So my question is, do you think that read on the current landscape is correct? And if so, how can we encourage Congress to have more fortitude to take on these questions themselves?

Adam J. White (00:36:45):
Yeah, I’ll try to be quick. I’ll just say this. Oftentimes folks in our shoes tend to say, Oh, Madison said there’d be ambition, counteracting ambition. We have to worry about Congress doing too much. We don’t have that anymore today, Congress doesn’t want to do anything except pass the buck and there’s no ambition left. That’s not true at all. Ambition still counteracts ambition. Today, one party’s ambition to be on Fox News counteracts the other party’s ambition to be on MSNBC. And just as Madison said, “… the in interests of the man should be attached to the rights of the place.” That’s why ambition has been kind of deformed now. Right now the greatest rights of the place, being a member of Congress, the greatest right is the right of publicity. This platform, the hearings and elsewhere to say what you think to make your opinions known.

Congress has much more interest institutionally in doing that than in actually legislating. Why is that? Well, it goes to your second point. Congress has delegated so much power to agencies and with every delegation, big or small, they changed their own incentives, going forward. Because with each delegation they created a greater interest in doing oversight hearings. More opportunities for oversight. We’ve reached a point now today where there’s so much to oversee, there’s less time to legislate. Just really quick, and I promise I’ll shut up. Maybe the greatest sign of where things have gone wrong is this. We’re supposed to have a Congress that looks forward and writes, looks to the future and writes broad laws. We have presidents who look to the here and now execute the law now make prudential judgements, but focus on the present. And a court that looks at what’s happened, the laws that were passed and the facts that occurred and decides cases.

Congress delegated all of, so much power to the executive that the executive now has to mostly act like a legislature. They have to draw broad rules to govern going forward. They still do execution in the here and now, but mostly the administrative state’s in the business of rule making. Meanwhile, the courts faced with this onslaught of rules. Sometimes ones that come about very quickly, they find themselves more and more having to intervene, being called upon by litigants to intervene and they have to make prudential judgments, especially with things like preliminary injunctions. Decide what’s the law probably mean and what are the equities at stake and what’s the action we take now.

In some ways, district judges today are the most energetic part of government. They’re acting in some many, many ways like an executive. What’s Congress doing this whole time? They’re just waiting for everything to happen. They look at the laws that were made by agencies, they look at the facts that occurred and they sit in judgment like a court of public opinion. The hearings actually look like a court. They sit arrayed like the Supreme Court and they just kind of speak their mind and cash judgment. They’re acting like courts and it all started with delegation.

Chad Squitieri (00:39:40):
Great, Well thank you very much for that. So now we’ll turn to our third administrative law expert today, Professor Jenn Mascott. Professor Mascott is an assistant professor of law at the Antonin Scalia school of Law where she also serves as a co-executive director of The C. Boyden Gray Center for the Study of the Administrative State. Professor Mascott has published in a variety of law reviews and her scholarship has been cited extensively including by the Supreme Court. She recently returned to George Mason after taking a leave of absence to serve in government where she had a double appointment as both associate deputy Assistant Attorney General and a deputy within the Office of Legal Counsel. She previously served as a law clerk to both Justice Thomas on the Supreme Court and then Judge Kavanaugh on the DC circuit. And she is a graduate of George Washington University School of Law and the University of Maryland at College Park. So Professor Mascott, I turn it over to you.

Jennifer Mascott (00:40:33):
Well thanks so much for having me, appreciate the discussion so far. And I guess I will start by just resisting a little bit, the title of the panel today, Is the Administrative State Moral? Because I guess I think it might depend which administrative state or whose administrative state we’re talking about. So if we’re thinking about morality as good, something objectively true, something objectively right? I’m not sure that we could say that one particular form of government or set of procedures necessarily is perfectly moral and all of the others are not. I mean, I take a little bit more of a, I guess a perhaps Augustinian views perhaps differently than some of my co-panelists. Where I’m not sure that any system of government made up by flawed humans is going to be perfect. So how would we evaluate the morality of our administrative state? And I think it would be if our administrative state has legal justification and is a system that is consistent with law.

So yeah, one thing that’s great about our constitutional structure I think in our founding document is that it, I think acknowledged sort of human nature and human conduct with some of the principles that Adam and others are talking about. Where each of us left to our own devices, each individual is going to have the temptation to power and so therefore tried to structure a government with a set of procedures that would counteract our basis instincts and would not allow a group of individuals to coalesce with too much power unchecked. And so if I was going to evaluate the morality of our US administrative state, I suppose it would be is it consistent with the system, the document that was supposed to authorize its creation, authorized the institution of the federal government. And so in that sense, I guess I’d be perhaps, can I claim the position as the most formalist or positivist here on the panel? Would that be okay?

Paul Ray (00:42:47):
It’s yours Jenn.

Jennifer Mascott (00:42:48):
I see Paul giving me a little bit of a look. But, so I really do think, I mean we can look at precedent, we can look at pragmatics, we can look at what works, we can think about a system of government certainly needs to be consistent with truth, with justice, allow those things to flourish. But for me, I’m looking paramount to what is the constitution, what’s the structure that the constitution puts in place and is a system operating within those confines? And then even if it doesn’t work the best or there’s too much precedent, we don’t necessarily evaluate it as to what works best from a modern standpoint. We have to always look back to its legitimacy. And so evaluating under that metric, unfortunately I think there are many components of today’s administrative state that really are not in any way legitimately operating under the constitutional system.

And to the extent that we’re going to debate that, I think it’s within a certain range of history. I mean it is the case that not all of us have spent a lot of time in the founding documents. We’re often looking at something from a 21st century mindset. And so there is a lot of work to be done to figure out what administrative structures were in place, what does legislative power mean, executive power, what were the framers trying to institute? But even when there’s a lot of debate or uncertainty, I mean we’re really talking about 200, less than 250 years ago. There are a lot of source documents that debates within a relatively, I think, narrow range of disagreement, at least when you compare our system of government and contrast it with other systems around the world. And so I think it’s a debate worth having and it’s worth looking back at how far our structures have strayed.

And I think the main actually for formalists or for those who are concerned about our administrative state operating only within the confines of the constitutional structure, which would not really have a fourth administrative state, it would have departments underneath the executive power. So I think that’s probably the main deviation right now. And a lot would be solved if actually all of the administrative entities were only operating under statutory power that Congress gave them and then completely subserving it to the executive. Because it’d be interesting how much delegation and other course correction would have to take place if the executive really did have to meaningfully supervise I think all of the executive agencies and then they had to operate consistent only with their statutory confines. But I think as a strategic matter, I think the biggest question to answer is just whether we are here thinking about philosophical principles or the law or we’re litigators or we’re instructors in the classroom is how much of this can we take on at which point in time and there’s so much to peel back, what’s strategically the first deviation or first problem to solve, right?

Because we can talk about the ideal of where we need to go, go back to limited government. We have not necessarily all justices who are in agreement I think on how to get there or what errors they would want to fix or be willing to fix and how stare decisis layers on. And so in a given case or in a given course or in a given paper, are we going to take on everything and go back to absolute purism or are we going, something that’s pure or are we going to think about incrementally of how to get back and return to first principles? And I fear sometimes that when we want to just as a practical matter, get rid immediately of whatever the immorality or deviation is from the administrative state, that what happens is we settle and we say that something is true or is correct or is the original understanding that really isn’t because we’re trying to say originalism, because originalism is consistent with the system of government we think we can obtain now.And so one would hope for example, if one’s a justice on the Supreme Court, they might just honestly say, well as an original matter the executive branch would look like X, we’ve got stare decisis, we don’t have a will to move it here. I can’t get five votes so we’re going to move it 1% back in that correct direction rather than suggesting that what we have now under modern principles in modern government looks anything at all like the administrative state that was authorized. The one final point, I also do worry a little bit too, and I’m sure folks in the panel will disagree, agree with me or at least have thoughts on this, when folks either who are here or not here talk about common good or morality in the government administrative state. Sometimes I fear that we are giving the impression that the administrative state or the government can move us toward the common good in and of itself, just the government institution can do it, is responsible for it.

So I mean the beauty of our constitutional structure is that it actually puts in place procedures. It doesn’t often tell us substantively what to do and it puts in place procedures that actually done correctly are going to lead to limited federal government and leave a lot of space for other institutions like the church, religious institutions, the family to operate, which I think is critically important and is really the only way that society or community or our institutions are going to move back to more of a moral place, because there’s such a set of deep flaws in the human condition that we certainly cannot hope that our government’s going to solve that or the administrative state will ever itself be able to be moral or an agent effectuating a common good.

Chad Squitieri (00:48:37):
Thank you. So to engage with your point about looking at it from I guess more of a formalistic lens and the idea that there is no headless fourth branch of government, there are instead officers of the United States working within the government, you’ve done some work on The Appointments Clause. So I was wondering if you can just share with us a little bit about that work and what that might tell us about what the framers thought about who would be exercising the federal authority?

Jennifer Mascott (00:49:01):
So The Appointments Clauses gives just a limited set of procedures that are authorized for selecting officers. And I think the way maybe that ties into the broader theme of today is that the procedures that are put in place by the constitution is to give a lot of accountability. Where does the accountability come from? Partly it comes from one branch sharpening another branch as Adam said. But ultimately each branch at the federal levels we all know to varying degrees, particularly the political branches, the ones making policy, Congress making, executive carrying it out are accountable back to the electorate. And so obviously the branches on their own are not going to be able to bring accountability. It’s the power to be able to vote people out of office who are errant and taking too much power. And so when we’re structuring a government, The Appointments Clause was a way to keep accountability for the president in selecting officers to fill, well under modern doctrine, important positions in the government.

I guess the thesis of my initial paper was that the original meaning suggested officers of the United States really was a large category of people who were carrying out any kind of governmental duty. And so really the accountability would extend all the way through essentially down to the lowest levels of the executive branch. And that would mean, I mean through the president’s executive power, he’d have the ability to be able to supervise everybody so that there would be accountability back to the elected head at the top of the executive department. The other thing that’s interesting about The Appointments Clause and it’s provision of officers of the United States is that it implies that congress has to establish anything that’s an office of the United States by law.

And so there’s accountability too because the president on his or her own cannot just unilaterally create new positions, staff a huge executive operation that was clearly partly to respond to the abuse, the felt abuse of the English monarch sending officers, officials over to sort of dominate us obviously in the colonial era. And so congress has to create the position, the president or other folks that Congress specifies have to fill the spots. And I think in that it’s such a enormous responsibility of supervision either directly by the president or all of his subordinates all the way down. There is a little bit of a slowing down the operation I think effect of that accountability that is consistent with this restrained nature of government.

Chad Squitieri (00:51:38):
Thank you. And then I guess to ask about the point you made towards the tail end of your opening remarks regarding roles for private institutions such as the church or more local entities. You’ve elsewhere written that the constitution outlines some purposes domestic tranquility, the blessings of liberty, general welfare, but does not necessarily say that the federal government itself needs to pursue all those purposes, instead there should be a role for perhaps private entities and more local entities. So my question to you is, do you think the current administrative state leaves enough room for private and local entities? And if not, how can we improve that?

Jennifer Mascott (00:52:22):
Yes. So I think you are quoting from a review that I wrote of one of Adrian Vermeule’s books where he suggests that there are several core moral principles of administrative law and he seems to have a very rosy picture about how our administrative state is very close to effectuating this common good, but for a few procedural tweaks here and there. And his couple hundred page book with Cass Sunstein will guide us to the shared principles that will help bring that morality. So it was responding to that because I think there’s a lot of reliance on the preamble, the constitution’s reference to general welfare and this idea again that government can completely bring it about. Whereas I think if you read the preamble in conjunction with the constitution, the suggestion is that the constitution will set in place a limited set of structures that will allow common good and general welfare to flourish in large part through private and religious institutions.

And if one believes that, then certainly no, today’s administrative state that often prizes efficiency overall else is diametrically opposed to that. I mean look, if we compare our system to what’s happening often around the world, I mean there’s an awful lot of evil and oppression out there and in comparison, somehow blessedly over 200 some years we’ve been able to operate with a fair amount of freedom. But not everybody who’s operating with power has a vision of trying to, I think preserve liberty. And so the larger that our institutions become, the more all encompassing, the more at risk we are.

Chad Squitieri (00:54:02):
Great. All right, so then I’ll turn over to more of a panel wide question and answer portion now maybe the question or two. And then turn it over to the audience both here and don’t forget online. So my first question is for the whole panel, maybe Paul you can kick us off, given that it does have an OIRA aspect to it. Considering, and now that everyone knows what is OIRA is. Consider as far back as at least Reagan, the executive branch through cost benefit analysis has been really dominated by that form of decision making. And we can think of that I think as using a particular moral lens, consequentialism or utilitarianism. So my question is, do you think the current administrative state is too focused on that type of consequentialist perspective to the detriment of other perspectives such as deontology, which would hold that there are just certain actions that are themselves immoral whether or not they have enough benefits to outweigh the cost?

Paul Ray (00:55:11):
Yeah, so well first of all I have to say if there were any OIRA desk officers in the room, their heads would be exploding right now and they’d be saying the agencies are dominated by cost benefit analysis, what? They would not agree with that characterization. But I see the point. So I would say this, the cost benefit analysis to which regulations are subject occurs within certain parameters. Some of those parameters are statutory, but others of those parameters are immoral, right. Even if a statute were to allow the achieving of great benefits by committing murder per regulatory directive, agencies would quite rightly decline to go out and murder people, even if that were the most beneficial thing for them to do.And I can’t think of any regulation which an agency said, we think what we’re about to do is probably a really bad thing to do, but cost benefit analysis makes me do it. I think the agencies do, do and authorize things that I think are morally bad or are wrong, but it’s because they don’t think they’re morally bad and wrong. I would say. So I don’t think that there’s the, that the actual results of adherence to cost benefit analysis have that result.

Chad Squitieri (00:56:35):
Great. And any of our other panelist have a thought?

Jennifer Mascott (00:56:40):
Well, I mean I don’t know the cost benefit analysis, would you agree? It’s somewhat though inherently malleable. I mean because now the factors I think being used perhaps by the Biden administration would be different than the Trump administration. So I do think as a net positive, the cost benefit analysis is getting agencies to think about efficiency in a way they didn’t before. But it strikes me as even with anything, if it’s put in certain hands the values, it allows values that may or may not be ones with which we would agree or think are better morally or less good morally to be put in as benefits. Perhaps, not to the extreme.

I think that Paul’s initial hypo, because again, I think in a positive way we do still have sort of a minimum shared set of values in our country and system of government that helps to keep us from really going outside certain bounds. But there’s a lot of the inner core that’s really subject to disagreement. And so the question with all of this is who is going to make the determination about which moral values the government is going to support or impose? And so the less control the government has, the less risk we are at if those values get steered in the wrong direction.

Adam J. White (00:57:59):
I guess I’d just say OIRA is one of the greatest sort of achievements in regulatory reform-

Jennifer Mascott (00:58:05):
Here, here.

Adam J. White (00:58:05):
… and limited government that we’ve seen in decades and it’s a reminder of Justice Thomas’s wisdom in an article before he became a justice that the challenge of government isn’t choosing between good values or institutions but building institutions that embody good values. And in many, many ways, OIRA did that. But I am sympathetic to the concern that after 40 years and despite or Paul’s best efforts and his successes, that there is sort of a flavor of technocracy around OIRA’s role that wasn’t the original plan. OIRA in its original executive orders and even under 12866, the Clinton Order, it requires consideration of many other values. And under Paul’s leadership, OIRA really pursued that part of its mission, but the cost benefit side of it does become a little technocratic and I worry that it gives short shrift to other values.

I just say it’s not, it’s much easier to run a cost benefit analysis on a program that will close down jobs or casinos say, than on a government program that’s going to impede attendance at church. How do you run a cost benefit analysis on that? So I do worry about that and I’ve got a piece recently in this online magazine called Mosaic by the Tikvah Fund, this month where I try to explore that with respect to religious liberty.

Jennifer Mascott (00:59:30):
I mean, so I love Paul and OIRA is great. I mean OIRA, we work with OIRA a lot of DOJ, so this is not me. OIRA is great, they’re doing good work and I actually found it, the folks there to be quite efficient and good and pleasant and really working closely with the other folks that you would expect them to work with. At the same time, I find it very sad and concerning that Adam, my dear colleague Adam is describing this as the greatest regulatory reform in 40 years. Then we are not aspiring high enough because OIRA’s fine, but I mean even within OIRA, are not most of the OIRA employees civil servants? They’re not political employees even. So even OIRA, which is allegedly within the executive office of the president, is not fully responsive to him or her. And so I fear we have fallen short in our reg reform.

Adam J. White (01:00:24):
That’s all true. I’m grading on a curve.

Paul Ray (01:00:27):
I will concede, argue into only that OIRA will not save the world. Close, but not quite.

Chad Squitieri (01:00:36):
Well. Great. All right, so another question I have is Professor Mascott, you mentioned the Professor Sunstein and Vermeule book and one of the takeaways from that book is just pointing out that much of administrative law is what we might think of judge made law, judge made common law really. And there’s like these limitations on agency action that cannot be easily traced to statutory or constitutional limitations. So my question for each of you is, do you think those types of judicial decisions which do appear to make administrative agency a bit more palatable, are those an appropriate exercise of the judicial power or should we instead be looking outside of the judiciary to implement those types of limitations on agency action?

Jennifer Mascott (01:01:29):
Well, which one are two specific principles are you referring to?

Chad Squitieri (01:01:33):
So I guess requirements that limitations on applying law retroactively or requirements that you give, be develop law transparently. I mean to use perhaps a new invention, the major questions doctrine, for example. So limitations which are not clearly rooted in statutory or constitutional limitations, but nonetheless limit admitted agency actions.

Jennifer Mascott (01:02:06):
I mean, I don’t necessarily think transparency should be an independent value and post on administrative agencies. No. I mean, I think sometimes folks who are supporting that are talking about what works best and what’s fair and what’s right. But I mean, unless Congress, I mean, I am a big fan of Congress imposing proactive reporting requirements in a sense, because I think that’s a lawful way for Congress to get information from the executive branch without going through the song and dance of oversight. But no, I don’t think when somebody is exercising executive power properly understood that there should necessarily be some extra expectation that it be transparent. In fact, if you look at the constitutional text, the branch of government, that the Constitution imposes explicit reporting requirements on is Congress, not in any way on the executive. So I would agree. I agree on that. I think that’s just a good governance idea that people are trying to impose, but that wrongly applied can actually impede the effectiveness of executive operation.

Adam J. White (01:03:11):
Yeah, yeah, I agree. The APA is law and of course it, like any of the law, it should be enforced on its own terms and not with judicial adjustments. I have mixed feelings about the APA for reasons that Jenn just sort of suggested, that it tries to govern administration by making it look more like legislation or more like adjudication. We teach administrative law and what do you do? You spend weeks on rule making and how it’s quasi legislative. You spend weeks on adjudication and how it’s quasi court like. The APA is largely a task making administration look less executive and there’s a real loss in that.

Paul Ray (01:03:54):
So I support the procedural protections of the APA and I would love to see Congress enact more and more rigorous procedural protections. That said, I am skeptical of the ability of procedural protections to constrain the president’s power in a serious way. It can constrain the power of individual agencies. But of course the president has it his command, many agencies with many various powers. And so it’s very easy when a particular option is off the table for a particular issue or a particular regulation for the president to turn to another agency, to issue another regulation that may, I mean of course would do something slightly different than the first regulation would have, but accomplishes the same overall presidential objective. And this is my concern with Vermeule’s procedural argument, is that it applies at the level of individual rule makings, but the president is never making his plans on the basis of individual rule makings.

That’s why you see in executive orders, there will be an overarching objective that the president very candidly declares in section one or two and then very often a series of other sections directing consideration of rule makings from many different agencies under many different statutes, all to pursue that one presidential objective. So the presidential decision making that goes into pursuing a particular political objective is in no way constrained by these procedures. Instead, the president will say to a trusted advisor, I would like to do large thing X. How would I do that? And his counselors will all think about how he might do it and report back that under the relevant law, including the procedural protections of the APA, we think you might do the following six things and they’ll pick out some of them to do. So the procedural protections in no way shape the political objectives the president is able to pursue.

Chad Squitieri (01:06:07):
Great. Your comment about the president’s choice as reminds me of just of a quip I remember learning in law school from my professional responsibility professor. It was a quote attributed to JP Morgan, I think, who said, “I don’t hire lawyers to tell me what I can’t do. I hire lawyers who tell me how to do it.” So just kind of brought that to mind. Before turning over to audience questions out. Just have one more question a bit more for each of our panelists. What changes in administrative law do you think we should be keeping our eye on at the Supreme Court level over the next say five to 10 years? Anything that jumps out to you all?

Jennifer Mascott (01:06:46):
Well, I mean there’s a couple cases percolating, I think in the lower courts that, I mean this term, two cases the court has, are mostly on jurisdictional questions Axon versus FTC and Cochran versus SEC, which you’re trying to get at I think a key critical structural point, which is are there constitutional problems with the tenure protections for agency adjudicators. Who in previous years people haven’t thought about a lot, but they are wielding quite a bit of power because they can impose significantly very large fines that the agency almost always upholds or they can prohibit people from, like strip people’s licenses to engage in their chosen profession. But this term, the court’s just looking at whether you have to, a very basic question, whether essentially you have to raise that challenge within the agency structure first or do the article three courts have jurisdiction at an earlier point to be able to hear the challenge. And it’s a question that would impact perhaps several years of litigation within or challenges within agencies.

Will the court take on the more threshold question about the structure and agencies? I hope it will. People are trying to get creative with making the court take on the question about how much officers have to be subordinate to the president’s agenda so that the president when he has the ideas that Paul is talking about, can fire those he needs to fire or instruct people to do certain things, and we don’t sit around having silly debates about whether the president should really be able to tell the FTC what to do or whether its agenda should be compliant with that. And so there is a case that the Fifth Circuit decided Jarkesy versus SEC, that right within the one opinion essentially says that the agency, people are not getting a proper jury trial right when their rights are adjudicated within agencies. The Congress has delegated too much power to agencies to decide whether to bring in-house enforcement proceedings or go to court and whether there are improper removal protections.

I don’t, as of a week or two ago, the En Banc petition had not been ruled on, so we don’t know if the Fifth Circuit will rehear it En Banc yet or whether it will go straight up to the court. Walmart is raising something that’s trying to, with the FTC, an argument that’s trying to get the court to revisit Humphrey’s executor in sort of a unique kind of a way. The court will eventually have to rule on some of these decisions and hopefully won’t continue to just do so around the margins. The one final complicating thing is I think the justices are struggling with, many of them do have a first principle’s conservative view, small government view of the Constitution.

But because of that, I think some in particular Justice Thomas and Justice Gorsuch are starting to evaluate what that means from their own remedial authority standpoint. And so will that mean that even if these cases reach them, they have modest remedies that then keep them from effectuating some of the structural change? Maybe, which would mean it really does leave it in the Court of Congress to, I think take action. So we’ll see structurally, Congress doesn’t have a lot of incentive to act right now.

Paul Ray (01:10:10):
Yeah, I agree with all of that. I’d say also really the West Virginia case, the recent major questions case opened up a new frontier. There are many, many factors in the Chief Justice’s opinion for the court. It’s not clear which factors have to be present to trigger application of the major questions doctrine. And so I think the court is going to be called on to flush out the contours of that test in the next couple of years.

Adam J. White (01:10:38):
Of course, there’s the deference and delegation debates, in Chad’s recent article on non delegation is a must read for that reason. I tend to think of a lot of cases that have come through the court recently are sort of sleeper administrative law or administrative state cases. The New York gun case, it was a Second Amendment case, but so much of the court’s analysis really did reflect the administrative issue in the background, the sheer amount of discretion that the licensing officials had really colored the court’s view of New York’s law and was really central to their decision. But in terms of straight sort of federal administrative state issues, I’d say the most interesting case I’m watching right now is the one on the Fifth Circuit where they declared unconstitutional the consumer financial protection bureau’s funding mechanism. The CFPB doesn’t get appropriations from Congress. Congress just gave it the power to go to the Fed every year and demand something like 12% of the fed’s operating expenses. It’s a pretty sweet deal.

I’m not neutral on this. A decade ago I was litigating this issue and I was still in private practice, but I’ve continued to follow it. And I think in some ways the best way to understand it is it’s about the power of the purse. And Congress’s appropriations power, in some ways is just a sheer delegation of power. Congress delegating its power of the purse in whole to the CFPB for the CFPB’s purposes. It’s not about user fees funding part of the budget. The CFPB just declares its own appropriations. They give a one page letter to the Fed that says, We would like our $600 million now, and they get it. The Fed writes a one page letter saying, Here you go. And I think, I don’t think this case wasn’t litigated as non delegation, but for me it’s a huge non delegation case. It reminds me of the dangers that Scalia saw in the sentencing commission in the Mistretta case. The CFPB for power of the purse purposes is operating like, as Scalia said in Mistretta, “… a junior varsity Congress.”

Chad Squitieri (01:12:34):
Great. Well, thank you very much to our panelists. We’ll turn over now to audience questions. Anyone in the room, perhaps in the front right here? I believe we have a microphone coming your way.

Michael Maibach (01:12:46):
Thank you. Excellent conversation. Thank you very much. I’m Michael Maibach with a James Wilson Institute. Maybe I could frame the question this way. It seems that there are four functions of the Congress. One is to confirm officials, at least the Senate. Two, pass and repeal laws. Three, appropriate funds and four, oversight. And that one is the one that seems to be at the center of this discussion because we have a $4 trillion government now. So isn’t this, since you like Federalist Papers, Federalist 45 problem, Madisonian, the federal government’s powers will be limited, so don’t we really have a federalism problem with all these administrative agencies.

Paul Ray (01:13:34):
Yeah, absolutely. So over the course of the last century or so, Congress basically every year has created new powers and given them to agencies. Sometimes it’s created new agencies and given them new powers. And all of those, Congress almost never goes back to revise its work. It almost never goes back and takes away power that it once gave to an agency. Sometimes it does that, but quite rarely. And so the result is essentially a one way ratchet for each agency. And then when you take into account, I said earlier that all those agencies report to the president in some way, the independent agencies much less so. What you have is a very deep unknowably deep reservoir of presidential power. The president doesn’t know his powers, no one knows the president’s powers. That’s why you have, I think, quite shocking instances like the eviction moratorium where it was felt to be desirable from a policy perspective that people not be evicted during COVID, understandable desire. And it was discovered that CDC had this quarantine authority that could be used, some lawyers thought to pursue that objective.

And you see that with the most recently with student loan, to my mind, debacle. So you have the creation of these authorities that are responsive to particular urgencies that remain on the books forever, and that all continue to enlarge this pool of power. And so the president can’t do everything, but no one knows what he can do, and that’s pretty problematic.

Adam J. White (01:15:22):
Well, I’d agree with that. I would say we need oversight because of these delegations. It’s interesting that the same year that Congress enacted the APA for greater judicial oversight of administration, Congress also passed the Congressional Reorganization Act to reorganize itself to gear towards oversight at least as much if not more than legislation. Oversight’s important, but I think it’s now become the horse instead of the cart. And the legislation now takes up such a small role. I worry a lot frankly about the style of oversight now, where hearings call not just government officials ahead to come to for account, but the extent to which oversight has become a tool of political oversight of the public bringing the private sector into these hearings and haranging them outside of the protections of the judicial process. I think we should worry about that a lot, especially when it’s a president’s own party sort of in conjunction with or parallel to the Justice Department, purporting to oversee the public rather than government.

Paul Ray (01:16:31):
I think that’s totally right. I would offer that Congress may not have gotten the bargain and thought it was getting when it authorized the agencies and then thought it could control them through the oversight process.

Adam J. White (01:16:44):

Paul Ray (01:16:46):
If the question is a committee of jurisdiction versus an agency and it’s head, then very often the committee is more powerful. That’s not so if it’s the committee versus the president. And as presidential control, appropriately has become more robust over the agencies, the oversight mechanism has become less effective. You’re going to be hard for us to find a cabinet secretary who departs from his boss’s will to please the committee.

Chad Squitieri (01:17:18):
Any other questions? In the back middle?

Kent Lassman (01:17:21):
Thank you. Thank you very much. I’m Kent Lassman with the Competitive Enterprise Institute. And picking up on our title this evening, if the moral legitimacy of our government, as we’re told in the Declaration of Independence, comes from the consent of the governed, is it legitimate for independent agencies not to be accountable to the political branches of government in the creation and promulgation of rules? Right now, we have approximately 25 to one ratio of rules to laws. Is that legitimate? Is that moral?

Jennifer Mascott (01:18:07):
Well, no. I mean it’s not, no, it’s not operating obviously consistently with the constitutional supervisory structure. And it’s all based on Humphrey’s executor. What’s interestingly, this Walmart case where FTCs brought an enforcement action against them is trying to get the court to revisit really the impact of Humphrey’s by observing that in Humphrey’s executor, even though it’s been used by the Supreme Court to justify all sort of manner of independent power operating free from executive supervision. It was really just endorsing that for fairly modest kind of investigative and study functions back in the 1930s. And now the modern state, administrative state is empowered by Congress is doing significantly more.

And so perhaps if anyone ever gets the Supreme Court to squarely consider that issue, it would not let it sort of respect for precedent or desire to issue opinions that are as consistent with precedent as it can intrude on reexamining what the modern agencies are doing now with vastly different power than they had in the past. But I mean, obviously no, and the problem is because again, no individual officer or entity can be purely good on their own, and they need a structure within which to operate. And so if the independent agency is supposed to help the corruption, for the corruption of the political presidents, the trouble is there’s nobody to watch the independent Commissioner or the independent counsel or whoever else might be operating with unrestrained power.

Paul Ray (01:19:49):
So it’s certainly much better for an agency to be supervised by the president, than to be supervised by no one. That said, the founders did not think that accountability, even to the people was enough to create a just government. That’s why you have the protections that are described in Federalist 10. That the concern with taking political accountability as a sole safeguard is that the politically accountable actor has tremendous incentives and ability to create tyranny of the majority, to find a set of issues around which he can cobble together a majority. The Congress has great difficulty in doing that. It’s subject to certain procedures that make it difficult for it to do that. The President is not subject to those same procedures. So the President finds it distressingly easy, it seems to me, to assemble a majority that operates in precisely the way that Madison’s worried about in Federalist 10. To be clear, even that is better than no accountability to the people through the President, but it’s certainly not a panacea. It’s not enough standing alone.

Adam J. White (01:21:22):
That was all well put. I can’t add to that.

Jennifer Mascott (01:21:24):
Well, and that I think brings back into the Federalist point from earlier if it’s, I mean, it’s clearly not enough, the federal level. Hopefully we have states operating the background also. And the problem with the Federalist breakdown obviously has been, as Justice Thomas points out, critical to the [inaudible 01:21:41] of the government.

Adam J. White (01:21:44):
Do we have time for one last question? I saw a hand over here.

Chad Squitieri (01:21:46):
Here. Yeah, we got time for one last question. We’ll take it from the room.

Adam J. White (01:21:52):
While we’re waiting. Just a good time to point out that CEI just put out the latest 10,000 Commandments report, right?

JP Hogan (01:21:58):
JP Hogan. Federalist 1 uses the Constitution as for inducements of philanthropy in later preservation of property. So it seemed to imply that if you’re using the executive as a metaphor for socialism or authoritarianism, that would be unconstitutional. And then the metric is, I was trying to wrap this down into one tweet but it doesn’t fit. So it seems the executive state has that limit of the first order of the Constitution is allowed to be people almost as pilgrims going forth to self-govern in religion, locally. So where is the metric besides that, on whether is moral 51 votes, 60 votes, two-thirds vote? If it’s contrary to even Federalist 1?

Adam J. White (01:22:49):
I guess I would just say I don’t know what the ideal line is, but the more that has to be done through Congress, through at least a majority, and oftentimes through procedures that require some kind of super majority or the process of elections, I’m hopeful that, that legislative process has less risk of profound moral errors. Those processes will at least elevate more viewpoints and remind each member of Congress of everything else that’s at stake outside of their narrow interests. I don’t have as much confidence with administrations. With administrations, you’ll get more, you’ll surely get great things, and you’ll also get surely worse things. And for government, I would just like to focus on avoiding the worst things.

Chad Squitieri (01:23:36):
All right. Well, with that please join me in thanking our panelists for coming today.

Adam J. White (01:23:41):
Thank you.

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