Chad Squitieri (00:00:03):
Well, thank you all for coming. Let us begin as we do with all our on campus events with a prayer. In the name of the Father, and of Son, and of the Holy Spirit.
Paul J. Ray (00:00:11):
Amen.
Chad Squitieri (00:00:12):
Amen. Hail, Mary, full of grace, the Lord is with thee. Blessed art thou among women and blessed is the fruit of thy womb, Jesus. Holy Mary, Mother of God, pray for us sinners, now and not the hour for our death. Amen. In the name of the Father, and of the Son, and of the Holy Spirit. Amen.
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Well, thank you all very much for coming. My name is Chad Squitieri. I’m a professor here at Catholic University. And I’m very excited to be here discussing our panel entitled Practical Reason in the Administrative State. We’re delighted to be joined by two of our distinguished speakers. So let me begin by introducing them.
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On my left is the Honorable Paul J. Ray. He is the director of the Thomas A. Roe Institute for Economic Policy Studies at the Heritage Foundation. Previously, he was the administrator for the Office of Information and Regulatory Affairs or OIRA. And prior to that, he served as counselor to the US Secretary of Labor. He clerked for Judge Debra Ann Livingston of the United States Court of Appeals for the Second Circuit, and Justice Samuel A. Alito of the United States Supreme Court. He earned his law degree from Harvard Law School where he served on the Harvard Law Review, and his bachelor’s degree from Hillsdale College. And perhaps most importantly, he’s in the midst of authoring a new book which is the topic of our discussion here today. So looking forward to that.
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To my right is Professor Daniel Burns. He’s an associate professor at the University of Dallas where he teaches a variety of political science courses, including some courses that might be of particular value to our discussion today, such as Principles of American Politics, and Courses on Aristotle, Augustine, and Aquinas. He also has of course published widely in those areas and related areas. Professor Burns previously served as deputy director of the Joint Economic Committee of the United States Congress, and also as a senior policy advisor in the Office for Civil Rights at the US Department of Health and Human Services. Earning his PhD from Boston College and his bachelor’s degree from Williams College. And perhaps most importantly, he was previously a research associate here at CUA. So we wish him a warm welcome back.
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The schedule of today’s events will be as follows. As soon as I’m done talking, I’ll turn it over to Paul who will kick us off with some opening remarks, then Dan will offer a response. Then we’ll allow Paul to have a short reply about five minutes or so. Then I’ll ask our panelists some questions. Then perhaps most excitingly, I’ll turn it over to our audience to ask questions. So please start thinking about what questions you might want to ask our panelists. So without any further ado, I’ll turn it over to you, Paul.
Paul J. Ray (00:02:55):
All right. Well, thanks, Chad, for the kinds reduction. And thank you to CUA, Joel, and the rest of the program for the invitation to come here. I’m very excited to be with you. I’d like to open with the three quotations and some commentary. Can you guys hear me okay? Might pick it up. Okay, good.
Speaker 5 (00:03:14):
[inaudible 00:03:14].
Paul J. Ray (00:03:15):
Oh, really?
Chad Squitieri (00:03:15):
Amplifying. It’s for the-
Paul J. Ray (00:03:16):
Oh, okay. Okay.
Chad Squitieri (00:03:17):
… folks around the world watching this live.
Paul J. Ray (00:03:19):
That’s good to know. That’s good to know. The millions of people in all time zones. So I want to know about natural law as they ought. All right. Like I said, I want to open with three quotations and some commentary on those quotations. The first is from St. Thomas Aquinas from the Summa. There Thomas takes up the question of God’s providence. He observes that God acts through agents. For instance, he doesn’t just bring forth food sufficient for all people, but entrusts the task to farmers, cooks, bakers, et cetera.
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The food you’re eating right now, God did not just create ex nihilo, right? Although he could have. Now a human leader often governs through agents because he has to. He can’t be everywhere at once, he can’t think of everything at once, but God can and is and does. Yet he too governs through agents. And so we might ask, why is that? Thomas says it is, quote, “Not on account of any defect in God’s power, but by reason of the abundance of his goodness so that the dignity of causation is imparted even to creatures.” End quote.
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There is a kind of dignity, Thomas says, to causing good things, and God wants to give that dignity to his creatures. We are better off bringing about good than always only receiving it. We’re better off as moral agents whose actions bear fruit in our own lives and the lives of those around us, than as futile putty in the hands of circumstances and other people. Indeed, we are so much better off as moral agents that God designed the world the way he did to give us chances to cause the good.
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Now let’s be clear. Thomas’ point is not that it’s good to bring about just anything. In fact, following Saint Augustine, he would say that someone who brings about vice or harm has made only a privation and so isn’t a cause properly speaking at all. The point is that it’s good to bring about things that are themselves good. Now Thomas’ argument is imminently consistent with human experience. We start our own businesses, design our own homes, tend to our own gardens, write our own poems and love letters. We raise our own children.
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Each of these things could be left partly or wholly to others outsourced, if you will. And doing them ourselves often involves much effort or risk. Yet we do them and other things like them, believing we would otherwise miss out on much of life’s meaning. We do these things because we sense it is good to do them rather than just having them done for us. So whenever there’s a need for some good thing, say food to be grown or house to be built, there are not one but two goods in play, the good of the food or house and the good of providing it. And a reasonable person that is someone with eyes open to the truth of things, cares about both kinds of goods.
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Consider a father whose teenager asks to help with family dinner. Let’s suppose his father wants tasty food for his family, but he wants his child to be able to make a gift of her service to the family too. And these goods may well be intention, letting his daughter help with dinner may well mean burnt hot dogs rather than gourmet faire. But which good he should choose while it depends on his family’s circumstances raises a real question for him. My point is that he caress about both goods. He may well trade off the good of a tasting nutritious dinner for the sake of giving his daughter the opportunity to give a gift of service to her family.
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So as truth has important lessons for all domains of human life, including politics, the goal of politics is human thriving, and part of what it means for a human being to thrive is to be a cause of goodness in his own life and the lives of others. So any sound politics must aim at opportunities for each and every member of the community to bring about the good. Of course that is not all the politics aims at, but a politics that disregards the need for its citizens to thrive by exercising moral agency is a politics unworthy of man.
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One domain in which a sound politics seeks chances for moral agency is in politics itself. For politics is of course a sphere in which it’s possible to do good for ourselves and others so rulers and citizens who are attuned to the demands of human nature seek out political structures that give widespread opportunities for citizens to bring about the good. The goal of my book that I just mentioned is to form some ideas of political structures that offer such widespread opportunities and then see how the American administrative state measures up against them.
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To identify structures that give pride of place to moral agency, I turn to the American founding. To explain why I do that, I want to offer the second quotation which is from James Madison. Madison writes, he wrote this for the end of his life, quote, “It is the misfortune, if not the reproach of other nations, that their governments have not been freely and deliberately established by themselves. But it is the boast of ours that such has been its source,” end quote.
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This seems evident in Madison’s statement was widely shared among the founding generation. Many of them believed that the American distinctive was that for the first time in history, a people freely deliberated about and chose a form of government for itself. You can read the first paragraph of Federalist 1 [inaudible 00:08:58] is the same understanding. Madison’s point of course is not that Americans were better off for the chance to shape their government in just any old way. Few of any of the founders would’ve had time for that kind of nonsense.
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Rather, he thought of a fine and noble thing that the common people for the first time had a chance to be causes in the most thoroughgoing way of their own good governance, of their own wise political order and just laws. It seems to me that Madison had a lively sense of the dignity of human causation, just as Aquinas did, and was glad that in America, the common people were able to enjoy that dignity in a new and excellent way. Unsurprisingly, the American founders valued opportunities for moral causation, not just in creating the Constitution but in the political structures which that Constitution provides.
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There are three main ways in which the Constitution offers chances for ordinary people to cause good things for themselves and others. First, the Constitution creates a regime of limited government. The federal government was intended to exercise only carefully enumerated powers those which the states could not effectively employ. All other powers will be exercised by the states and their towns, or by what we would today call civil society. Churches, synagogues, schools, charitable associations, businesses, families, and of course individual persons.
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By limiting the central government’s powers, the Constitution created opportunities for many people to use their own initiative and ingenuity to improve their lives and the lives entrusted to their care rather than just service cogs in wheels turned by Washington. Now the principle at work here has a name familiar to many of you, I expect. That name is of course subsidiarity. The term comes from a 1931 encyclical, Quadragesimo Anno by Pope Pius XI. He writes there, quote, “Just as it is gravely wrong…” This is not one of the three quotes, this is like a bonus quote.
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“Just as it is gravely wrong to take from individuals what they can accomplish by their own initiative and industry and give it to the community, so also it is an injustice and at the same time a grave evil and disturbance of right order to assign to a greater and higher association what lesser and subordinate organizations can do.” There are a few reasons for this principle that Popes have given over the years, and a main one is that subsidiarity gives people working alone and together the chance to cause good. Or as Pope Benedict XVI put it back in 2008, subsidiarity creates opportunities to love.
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The second way the Constitution offers chances for moral agency is its creation of a system of representation through which the people can cause their own common good. The people that elect the representatives, and therefore can choose the values and the highest level objectives for the polity leaving to the representatives the task of discovering the best way to achieve those values and objectives. Now if we are all self-aware, we know how often emotions or selfish desires cloud our vision of what is good for our communities.
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The founders responding to this insight built a set of mechanisms to prevent the people’s representatives from being dominated by popular passion or private interests. Representatives would thus find it easier to pursue objectives picked out by the people’s reason, by their common sense and justice. And after all, it is following the direction of reason that makes us causes of good rather than mere instruments of our passions or selfish interests.
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Third, the Constitution secures a legislative process that promotes the rule of law in two senses. First, it is designed to produce laws that are clear, public, intelligible, and stable, thus enabling citizens to plan their lives and reliance on the laws. And second, the legislative process is designed to take into account the reasonable goals of all Americans, and therefore to invite compliance with the law as a way to achieve our own ends rather than acting merely because we’re driven to it by the threat of force. In both these senses, the rule of law fostered by the Constitution treats Americans is agents called to pursue the good rather than his raw material to be molded by the rulers.
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We now come to the administrative state in our third quotation. In 1940, Congress passed the Logan-Walter Bill which would’ve subjected actions by many of the newly created new deal agencies to additional judicial controls. FDR vetoed the legislation on the grounds that it would entangle the agencies in legal wrangling in court. In his veto message he wrote, quote, “Today, in sustaining American ideals of justice, an ounce of action is worth more than a pound of argument,” end quote.
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This quotation encapsulates the urgency many Americans felt in the great depression’s wake and also their desire for greater efficiency in government. The new dealers were happy to trade off the goods that can be achieved in argument and deliberating about how to bring about the good for the sake of greater government efficiency in action. The New Deal thus marked a turn away from the value of causation. Going forward, government would focus just on getting things done and not on the value that citizens find in doing them. The result was a dramatic narrowing of opportunities for everyday men and women to play the role of protagonists in their own lives and the lives of their communities.
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Now we should not for a moment minimize the extraordinary suffering that Americans experience in the Great Depression. More to the point for our purposes, we shouldn’t for a moment forget the suffering of so many of our fellow citizens today. So it’s understandable that we would want government to have power to help these people. The foundational premises of the administrative state at its point of origin and today, though it is not by caring too much for those that aims to help but too little. What we should seek for everyone is not just the meeting of material needs as vital as these are.
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We must remember though that there are a ways station on route to the fullness of the good life. A life not just of surviving but of thriving, including the exercise of human agency. We should seek for all people, including those the agencies are designed most of all to help the chance to be agents, even heroes, in their own stories and the stories of their communities. The administrative state, I argue my book, fails to live up to that ideal. In the first place, it centralizes power in Washington. It consists of agencies with broad powers to take care of matters that could be left to states, towns, and civil society.
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Think for instance of the US Labor Department which regulates a vast number of workplaces, including those with just one or two employees and which do not transact business across state lines. Think of the EPA or the Army Corps of Engineers which regulate purely interstate waters that could easily be governed by state or local law or even by neighborhood agreements. Or think of the Food and Drug Administration which regulates the diameter of spaghetti down to a hundredth of an inch. Again, regardless of whether it ever crosses state lines.
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Further, because the agencies are designed to achieve specialized missions, they tend to prioritize success in these missions over the good, the citizens experience, enclosing good for themselves. The job of EPA is to bring about clean air, clean water, and clean land, not to look out for chances for citizens to cause these things for themselves. EPA success in the eyes of Congress and its other stakeholders is based on how well it achieves its specialized goals, not on how well it promotes opportunities for moral agency. And the agency, as you might imagine, acts accordingly. This state of affairs dramatically limits the chances for men and women across the country to make a difference in their own lives and those of their communities.
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Second, the administrative state takes away chances for the people to cause their own common good, and does so in two ways. It entrusts some decisions to agency staff who, because they’re unelected, do not channel the people’s choices about values and highest level objectives. By doing so, the administrative state inserts a fatal break between public servants and the people’s choices. Other decisions are entrusted to the president and his political team. While the president is certainly responsive to popular demands, the presidency lacks the protections against faction the founders built into the legislative process. For this reason, presidential rulemaking is more easily corrupted by popular passions and the pursuit of special interests than his legislation. By giving legislative power to the president, the administrative state makes it harder for the people’s reason to rule public affairs.
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Third, the administrative state undermines the rule of law. It results in regulations that are complex, obscure, many immutable, which threaten to reduce to guesswork citizens’ efforts to pursue the good. And because these regulations quite evidently vary with changes in White House control and stand on rationales that are unintelligible to the average person, citizens understandably have a hard time believing that compliance is reasonable pursuit of their own ends rather than obeisance to force and guile. I think the state of affairs contributes to our increasingly frayed relationships with citizens who disagree with us politically. We feel we’re in a kind of tussle with them for the controls of the regulatory death star.
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So what’s to be done? Well, that is the obvious question, which is why I asked it. But my book’s point isn’t to answer it. It’s a diagnosis rather than a treatment plan. So I’ll just say here that it’s vital not to let the perfect be the enemy of the good. The administrative structures I’ve described aren’t ongoing anywhere, anytime soon, but we can make them better. Some of the regulatory reforms in which I was honored to play a role in the White House did just that, and we can talk about those in questions if you guys want.
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The most important thing, and the thing I most of all hope readers take away from the book is that chances for moral agency matter. They matter for our decisions as citizens for the policies we advocate and the candidates we elect. We shouldn’t succumb to the temptation to seize the administrative apparatus which lies so near and temptingly at hand, and critically and uncritically use it to achieve our policy goals. By doing that, we would lose goods more valuable than all the policy victories we would gain.
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Of course, there is a need for strong federal governance on some issues, and either statesmen nor citizens should hesitate to employ it when necessary. But we should do so always with an eye to the goods that we and our fellow citizens can achieve, and a system of government that creates widespread opportunities to contribute the best we have of wisdom and hard work to the success of our own lives and those we love and of our communities. Thank you.
Chad Squitieri (00:19:53):
Thank you very much. That was very helpful. For the administrative law students in the room, the obvious question that you asked I think that would be the type of obvious question that if an agency did not ask it, they might run afoul on the 706(2)(A) standard. So I’ll turn it over to Professor Burns for his response.
Daniel Burns (00:20:10):
Thank you very much, Chad. And thank you, Joel and Kevin, who just had to leave, but I’m really grateful and honored by the invitation to speak here. I’m especially pleased to be talking about such an outstanding book manuscript. I say this as somebody who doesn’t like most books, particularly most recent books. I loved Paul’s book. Between the philosophical side of the book and the policy side of the book, I think he’s probably better qualified to write it than maybe anybody in the country right now.
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The philosophical arguments are beautiful, lucidly argued, almost encyclopedic footnotes, Aristotle, John Finnis, and everybody in between. Specifically, American sections offered the best introduction that I know of to the nature of our administrative state and its vices. Paul, as you can tell, doesn’t wear on his sleeve the very high level government position that he’s held, but I think that experience must surely help to explain how it’s possible for him to have written such a lively and engaging book about the administrative state. And sorry, those of you who are in administrative law, but that’s just what I think.
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I could go on like this. I end up agreeing with about 98% of his diagnosis and I think 95% of his theoretical foundation’s. Agreement is boring, I don’t want to be boring. Let me drill down on those few remaining percentage points. I see three gaps in the argument of Paul’s book. All of these are points that I think he could develop further, and that I would say especially those of us who are sympathetic as I am to his overall argument ought to be giving serious thought to.
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I see one gap in the way that Paul describes American federalism. He says something that I’ve heard a lot of American conservatives say, which is that the natural law principle of subsidiarity is reflected in our federal constitution because we’ve limited the federal government to certain enumerated powers so as to preserve the necessary breathing space for all the smaller subsidiary organizations in which we can exercise our practical reason and thus flourish. Those smaller organizations include, he says, states and local governments, and also businesses, nonprofits, houses of worship, et cetera.
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Now it seems to me that one of these things is not like the others. Only one of those things, state governments. Only one item in that list was explicitly protected from the federal government in the original constitution. Most of us, most of the time, when we’re exercising our practical reason, are not doing so through our state governments as relevant as those are. We’re usually exercising our practical reason in our local governments, businesses, nonprofits, houses of worship, schools, and so on, everything else on that list.
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But even the amended federal constitution, however expansively you want to interpret it, still does relatively little to protect all of those crucial substate institutions. Mostly they are left at the mercy of the state governments, which could crush all of those institutions if they wanted to. There is a state police power. There is no federal police power. I’m told this has become controversial in some law schools. It seems obvious to me.
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The whole Tocquevillian world of substate institutions and voluntary associations is arguably the best and most important feature of the American practice of subsidiarity. If the states were not doing their job in protecting that world, then our constitutional federalism would be doing very little to serve the cause of subsidiarity and it might even be impeding that cause. And I think we all know that today this Tocquevillian world of civil society is nowhere near as strong or as flourishing as it was back when Tocqueville visited the US.
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And so I conclude, to my first point, Paul’s basic defense of federalism over and against the national administrative state will need, in our time, to be supplemented by a defense of our state governments such as they are and of their current role in maintaining American civil society such as it is. Because I assume you’re especially hoping to reach those readers who might be inclined to think that this old-fashioned constitutionalism is nice but outdated, that it doesn’t respond to the challenges of our time.
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Those challenges, to be clear, are above all the disintegration of the American family, which is the main institution that draws most of us into the exercise of our practical reason. Connected to that are of course also the hauling out of neighborhoods and other local institutions, the atomization and stultification promoted by our communications technologies, and the terrifying and seemingly uncontrollable epidemic of drug abuse both prescription and none.
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I personally would stand up in federal court and offer some pretty creative readings of the commerce clause if I thought that by doing so I could help the government make a significant dent in any of the major challenges that I just listed. And I don’t even think that Paul’s argument would rule out my doing so in principle. But I also assume that in at least most policy areas, the federal government would be even worse at addressing today’s gravest threats to subsidiarity and practical reason than the state governments already are. And I realize that’s saying something.
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I just think that this assumption of mine ought to be defended concretely as I’m not capable of defending it by those who can say more than I can about the current capacities of our state governments and the many aspects of our civil society that it seems like the states are in fact still protecting, either relatively well all things considered or at least better than the federal government could. So that’s the first gap that I see.
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Here’s the second. Paul gives a wonderful summary of the ideological origins of the administrative state and the political theories of Woodrow Wilson and others, but I think he then needs to be more careful not to sound as if he thought that the Wilsonian origins of our federal agencies were now impeding good policymaking by limiting our existing agencies to the type of apolitical technocratic value neutral decision-making that Wilsonian theory would demand. Because what I take Paul’s more serious critique to be is that our bureaucrats are quite capable of making value-laden properly political decisions and that they do so all the time.
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The problem with the Wilsonian theory is that it lets them hide this fact from others and even from themselves, thereafter all just following the science. Behind the Wilsonian technocratic rhetoric is of course, as COVID reminded us, if we didn’t already know, a very specific set of cultural and class-based moral opinions inculcated by the cultural and educational institutions that have been forming the souls of our decision makers since long before they got hired as federal bureaucrats. When these folks say rational and objective, they mean obvious. When they say obvious, they mean obvious to any right-thinking person. When they say right-thinking person, they mean their friends, none of whom voted for Trump.
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None of this would’ve surprised Aristotle who took for granted that the most important thing about any institution with the character of the human beings who run it. Once we reject Wilsonian theory, we become free to ask the Aristotelian questions that actually determine how our bureaucracy works in practice, what kind of human beings are running that bureaucracy? What are their virtues and their vices, both moral and intellectual? And most relevantly, how do those virtues and vices compare to the virtues and vices of other Americans today?
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I’m still waiting for the conservative book that will frankly assess the human virtues and vices of our professional managerial class, including and especially its government lawyers who run our administrative state. It seems to me that their virtues are considerable. Paul actually goes further in this direction than any other conservative I’ve heard from. He has a really memorable passage of the manuscript where he just talks about his own experiences with federal bureaucrats and how patriotic and hardworking they are. I think we need to talk more about that, about the virtues and about the vice that tend to accompany them if we’re ever going to arrive at a full on Aristotelian evaluation as I would like to of our administrative state in its current form.
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Third and final gap. Paul’s natural law defense of practical rationality does not simply rely on Professor John Finnis and his so-called new natural law theory, but it does draw on that theory at some points. I’m a proponent of the old natural law theory, the one of Cicero and Thomas Aquinas. This is a debate that is dear to the heart of Catholic philosophy nerds, even though or perhaps precisely because that debate rarely has any practical relevance whatsoever. But I think I may have found one point of practical relevance here actually.
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The new natural law theory is cosmopolitan. It speaks of basic goods, and it argues, as Paul himself argues, that a rational person would in principle work to secure more of those goods for any and all of his fellow human beings. The old natural law theory would’ve regarded that claim as either false, or if true, then practically irrelevant. For practical purposes, the old natural law says, “We seek to secure goods for our friends, our relatives, and our fellow citizens. As we read in Plato’s credo, the Father land is more honorable, reverend, and sacred than mother and father and all ancestors, and is held of greater account both among gods and among human beings with any sense. This is what is just by nature,” close quote.
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According to the old natural law as distinct from the new, our concrete and sacred obligations, including our reverence for our native country and its inherited constitution are at least as basic as any other basic good. Socratic philosophy presupposes that awareness of sacred obligation. It seeks to educate it. It does not think that philosophy could either create or replace that pre-philosophic moral awareness. That awareness, I should mention, is pulsing through the pages of Paul’s book. The manuscript that I read was manifestly written by a patriot with a strong sense of his sacred obligations. I don’t know if you guys have noticed, but you don’t trip over those in Washington, DC.
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But readers who are unfortunate enough not to already feel in themselves, the awareness of those sacred obligations, are very unlikely to be moved by any of Paul’s philosophical arguments. That’s their loss and also our countries. Now I’m all in favor of writing books for law students. Y’all are actually a pretty important part of how this country runs. But the limitations of philosophical rationality and therefore of all the books that people like us can write, inclined me to think that the more fundamental problems leading to the growth of our administrative state have been found in the moral and patriotic formation of American high school and college students, rather than in the philosophical arguments like these manuscripts that will and should get discussed in American law schools, as much as I love those arguments.
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And if I’m right about that last point, then our problem today would seem to be even more intractable than anything that Paul has discussed. We may find some ways of rolling back some parts of the administrative state, but no one seems to know what to do with the decadent educational institutions that led to it. And so I wonder whether you, Paul, would agree with me in that council of despair about our nation’s morally formative institutions. And to the extent that you do, if you do it all, I would wonder how this reasoned despair might affect your practical determinations about what to do now with the administrative state we have. Thank you.
Chad Squitieri (00:31:45):
Well, thank you very much for that response. And then Paul, a brief moment for a reply.
Paul J. Ray (00:31:50):
Yeah, yeah. Well, first of all, I want to say we’re having this event before my book has been released or even finished, which is why Dan mentioned to me he seen a manuscript. That is basically just a ploy, a selfish ploy on my part so I can get the benefits of Dan’s thoughts before the book’s finalized so I can work them in. So Dan, I want to thank you for that success, but in all seriousness, thank you for the kind remarks. They’re much more attribute to your generosity and friendship, which I’ve benefited so often over the years than to the merits of the manuscript for the record, but it’s very, very kind of you. Thank you. Yeah. So to the first point-
Daniel Burns (00:32:31):
See me on panels with books I don’t like Paul.
Paul J. Ray (00:32:37):
No. So the first point, I agree with all that. The constitution’s limits on federal power of course apply regardless of the beneficiary of the limits, that is to say they limit the federal government from occupying space occupied by the states or by civil society equally. But it’s true that in that unoccupied space, free from federal intervention, states are able to displace civil society groups at their option. And I think what the founders would say is that they would rely on the people of the states to ensure that the states don’t displace the, I used the phrase the Tocquevillian world, operative at the time of the founding. I like that phrase quite a bit.
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I think the founders would say that they rely on the people of the states to have the kind of good sense that prevents that from happening. And that’s a subsidiary in response. Subsidiarity teaches that when an intervention is needed, it’s best for the intervention itself to come from a lower authority rather than higher authority to the extent that’s possible. So I think that the existence of the thick civil society that Tocqueville bears witness to in the 1830s, so some 35, 40 years after the convention bears witness to the fact that at the time of the founding, the founders had a pretty good judgment that the states wouldn’t displace civil society for the foreseeable future. Of course, we don’t live in anything like that Tocquevillian world today, that goes without saying.
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And so I don’t think that the founders would be at all surprised at the idea that we might need to, for instance, augmented federal powers to respond to new challenges over time. They would of course say that that should be done through the constitutional amendment process rather than sort of, I don’t know, pull out of the ether. But I don’t think they would be troubled to learn that hundreds of years after the founding, there were new problems that would require new federal powers to respond to them. So I don’t disagree with that.
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And I agree that you do see… I mean, gosh, you can just think of some of the COVID restrictions in some states on houses of worship and other places to realize that there really is a risk on certain issues of states displacing civil society, and there’s a risk of states failing to protect civil society in other domains. Yeah, so I think we’re on the same page there. So to Dan’s second point, about Wilsonian expertise, yes, here too, I agree. The Wilsonian vision was never implemented because it can’t be. It might be possible for very, very uninteresting questions to offer purely technocratic answers, but certainly not for any…
(00:35:43):
I mean, if agencies answered only those kinds of questions, we wouldn’t be having this lunch right now, right? We’re here because they answer really important questions. So there’s actually basically total consensus in the literature on the administrative agencies that no one sticks up for the Wilsonian vision right now. Everyone acknowledges that the agencies resolve core political questions all the time, and of course they do. There’s not really a way they couldn’t do that.
(00:36:15):
Dan, I love the way you said that the agency career staff import value judgements and conceal that even from themselves at times. I think that’s a really important point to understand. Doubtless there are bad apples in the agencies who deliberately cloak what appear to themselves to be value judgements in the language of expertise to hide what they’re doing. But there are also, and I think although this can prove it either way, I think that far more common is our political decisions that the agency staff don’t realize are political. And we can talk about if you guys want to later during questions about how they could fail to realize it.
(00:37:05):
But for now, I’ll just say that typically decisions about human values don’t improve through lack of awareness that you’re making them. So that’s worth noting. And I do certainly agree that we can very much profit by a serious study of the character of agency staff. Most people pay no attention to that, and the few people who do pay attention to it kind of often caricature the characters of the staff, which I think is not helpful. Chad, I know you’re doing work in this space. I don’t want to steal your thunder or give a sneak preview if it’s not…
Daniel Burns (00:37:46):
Yeah, I appreciate your-
Paul J. Ray (00:37:47):
I’ll read for it, but…
Daniel Burns (00:37:48):
… your comments on that.
Paul J. Ray (00:37:49):
Yeah. Okay. So to Dan’s third point, yes. I had say even from within the new natural law tradition, we can affirm that our efforts on behalf of ourselves and others to achieve human thriving take place within the context of the various groups of which we’re members, including quite preeminently, our families in our country. And to find a point on it, I believe that natural law counsels me to work for the good of America because I’m an American who lives in America. So I think also by the way, that by doing so, I’m doing the best thing I can do for those who live in other countries, broadly speaking. We’re all better off when the citizens of each country work for the good of their country. This is a point that you can find in theirselves politics.
(00:38:48):
So I agree with that. Yeah, that brings me to the point about moral formation. And so I’ll just note that concerns about moral formation really are the driving concerns of this book. One thing I noticed in my time in the White House is that Politico is inside the Beltway, always talked about regulatory issues in terms of efficiency. So president’s speeches, White House talking points were always about the number of jobs that were created, GDP growth, et cetera, et cetera, driven by regulatory reform. And those are relevant considerations, no doubt.
(00:39:30):
But part of my job in the White House was to meet with everyday Americans who would come to Washington and talk about regulatory issues, and they most emphatically did not talk just about efficiency. They did talk about efficiency that was relevant to them, but they also talked about… Well, they talked about how it just seemed better for them to get to decide issues than for Washington to get to decide them. I think of some of you may be familiar with the waters of the United States regulation. In Trump administration, we changed that. And Obama regulation that had expanded federal jurisdiction to cover many small waterways.
(00:40:08):
There were some economic consequences, but it was not a regulation driven by desire to increase economic efficiency. People around the country felt very strongly about this issue, even though very few of them, maybe none of them, could trace significant economic benefits that they were deriving from the new regulation. But nevertheless, they thought it was really important somehow that they should get to decide how to use their water resources efficiency aside. And what I found in these conversations with folks from around the country was that they had a sense that a full human life included the opportunity to make decisions like that, but they didn’t really have a theoretical framework to talk about it.
(00:40:50):
So one thing this book seeks to do is to provide a kind of theoretical framework for why, even putting efficiency aside, the opportunity to make decisions like that matter. Hopefully the theoretical framework can be of assistance to people who already have sound moral intuitions on this point and can educate some of us inside the Beltway who may lack them. I’m mindful I’ve gone on beyond five minutes, so I’ll stop there.
Chad Squitieri (00:41:15):
No, thank you both very much for your comments. So let me start with just a couple of questions and then again, we’ll turn it over the audience. So please start thinking about what you might want to ask. Paul, I’ll start with you and touching on that subsidiarity point again, but more so not necessarily the state and the localities or the related institutions, but relationship between the federal government and the state. So your point about a limited federal government leaving room for this subsidiarity principle to apply, I agree with that.
(00:41:46):
But of course, as you know, our constitutional system of federalism can be distinguished from subsidiarity in some important ways. And at least one way is that at least under a modern understanding of federalism, if the federal government has a federal power to act? That’s the end of the question, the federal government acts. Whereas the subsidiarity principle will require the federal government to pause and say, “Well, first, can the lower order handle this without me acting?” So my question is there something in the federal lawmaking process, the Article 1, Section 7 lawmaking process that narrows the gulf between that sincerity and federals in principle that’s missing in the regulatory process?
Paul J. Ray (00:42:29):
Yeah, it’s a really important question. So the short answer is yes, and the slightly longer answer is… So before the 17th Amendment of course, some subsidiary groups, that is to say states, had a role, had a voice in the legislative process. So they had an opportunity to push back on laws that would trench upon… And incentives of course, to push back on federal laws that would occupy areas in which the states felt they were entitled to be active.
(00:43:06):
Obviously not the case after the 17th amendment. Even so, though, I think you’ll find the executive branch’s proclivity or bias toward action, toward intervention is just a lot higher and was thought of the founding to be a lot higher than congresses. Hamilton famously remarks that the president will be known for his energy in execution. And that’s certainly the case in my experience. Presidents tend to want to act even more than Congress does. So I think even in a post-17th amendment world, I think the answer is yes.
Chad Squitieri (00:43:48):
And I think also maybe a little bit of a 16th amendment too, where if the federal purses are so much larger and they can attach conditions to state action, it kind of changes that dynamic. Dan, question for you. Towards the end of your remarks, you mentioned the importance of looking at the virtue and vices of the individuals that do staff our administrative state. So are there particular virtues that our administrators might need? And if so, how can we instill those virtues any administrators, or is it just at the high schools and the local levels before that? Or what can be done?
Daniel Burns (00:44:27):
I mean, the question of how to form human beings morally is obviously a very big one that I don’t want to have to get too far into. Although I think those high schools and colleges that seem to be doing it at least better than average, which is a very low bar right now in this country, seemed to show that it has a lot to do with role models. Obviously both coaches and teachers. Sorry, let me go back a little bit.
(00:45:01):
If you just trust the ancients on this as I do, coaches are as important as teachers. Almost everyone who’s done sports knows that Plato knew it. Everybody forgot it, starting with Dewey. A physical education is as important as curricular education. Everyone who’s been in a sports for the moral formation. Everyone who’s been in a sports team knows that. Everybody in this country forgot that, starting with Dewey. Not only physical, but also musical education, that basically concerts are as important as sports games, dances, and other social events at which parents are actually present. That is to say people learning that having fun does not involve running away from your parents, but can involve being around them and that they actually can be fun too.
(00:45:48):
Experiences like that, along with the history and literature curriculum, which have got to be the heart of… Well, they form the heart. So they’re the most important aspects of the curriculum to the extent that what we now call content has a role to play, which it does. It just not as big a role as everyone assumes, but it’s a significant one. And liturgy. I mean, if it’s a school that doesn’t regularly pray in some form or another, it’s just much worse at forming people. And Cicero thought that, and he was pretty skeptical about the gods they were praying to, but he still thought that if you didn’t pray, it was a big problem for moral formation.
(00:46:24):
Those sorts of things, and we could get into lots of details about that. As far as what the virtues are, I think for any kind of holder of political office, the two most important ones are prudence and justice. Justice requires a lot of self-control. It requires not favoring your friends at the expense of your enemies. It requires weighing things impartially, not letting your biases get in the way. I think that the people who staff our bureaucracy are pretty good at that in a lot of ways, I think are federal judges are really, for the most part, remarkably good at it. I mean, the really controversial cases are like… Who was it? Prominent appeals court just gave a talk about this at Stanford. Now I’m forgetting with the judge’s name. [inaudible 00:47:09]?
Speaker 5 (00:47:08):
Duncan.
Daniel Burns (00:47:11):
Duncan, that’s right. Judge Duncan just talked about this. The really controversial
Chad Squitieri (00:47:16):
He’s resident juris here this year.
Daniel Burns (00:47:17):
Say that again?
Chad Squitieri (00:47:17):
He’s a resident juris here this year actually.
Daniel Burns (00:47:18):
Oh, what am… Sorry, I didn’t look these things up better. The really controversial ones where the judges are just showing appalling moral blind spots. It’s like 5% of the cases. For the most part, it’s really amazing that these are… And they disagree because smart people can disagree about hard questions, but the degree to which they really are just weighing the evidence, trying to say what does the objective laws say about the objective facts of this objective situation is. It’s amazing.
(00:47:45):
Our judges are for the most part, quite go to that. And our administrators are for the most part, not that bad at it. Although you look at a few things like culture war issues, and they just become amazingly stupid very quickly on just a relatively narrow range of issues. So that’s what I mean by the virtues and the vice. And again, I think you have to weigh that against whatever would replace them. Because our politicians, for the most part, our directly elected officials, they don’t have those virtues to the same degree. They have some other virtues. But impartiality, not as good.
Chad Squitieri (00:48:19):
Okay. Well, thank you for that. I’ll just add, I hope it by me sharing before we talk, your point about kids having fun with the parents as well. It sounds like you had a fun field trip for one of your children coming up, but it did involve going to a library. So I guess different understandings of fun. Let’s turn it over to the audience. Does anyone have any questions for either of our panelists? And we do have a microphone, so yes, we’ll start with the gentleman in the front here. And if you could please wait till you have that microphone just for the folks online.
Speaker 6 (00:48:54):
Regarded your discussion on the nuclear family, what do you think are the greatest threats to the nuclear family unit present today in today’s era?
Daniel Burns (00:49:02):
I think the former White House staffer should answer that first.
Paul J. Ray (00:49:10):
Oh, goodness. I was in OIRA administrator through these issues a lot more than I do. I mean, surely the notion that family breakdown has to lead the head that lists there, I would think.
Speaker 6 (00:49:33):
Would you say plays an aspect of that as well too? The erosion of it at least?
Paul J. Ray (00:49:38):
Yeah, surely.
Daniel Burns (00:49:39):
It does. Although the social science suggests that that’s circular. People are as likely to start going to church more often because they had a kid as they are to have a kid because they’re religious. In fact, it seems like the lowering birth rate might be as much a cause of the decline in religiosity as it is in effect. It’s obviously extremely hard to measure these things. It’s extremely hard to measure these things. One thing I learned being a fake social scientist for six months for the federal government is good social science is extremely difficult. Anyone who claimed it’s not is a charlatan.
(00:50:14):
One thing that became clear also from those numbers is that right now, I mean the divorce revolution happened and the divorce rate is stabilized. In fact, I think it might even be declining because people aren’t getting married in the first place. The major threat right now to families is that they’re not forming in the first place, even more so than they’re breaking up. Now obviously part of why they’re forming up, they’re not forming is that people are afraid of divorcing. So again, there’s circularity here.
(00:50:41):
And the threat… I mean, how does a culture erode? A culture erodes in all sorts of ways, but once it’s eroded, it’s extremely difficult to put back together. It’s the old, the guy is lying in a ditch with a stiletto in his back. It doesn’t mean that if you pull the stiletto back out, he stands up again. If we were to tighten up divorce laws, for example, right now, we would only discourage more people from getting married. And I think that the loosening divorce laws had a lot to do with the mess we’re in now, but I don’t see a way back out of that. Oh, much of one. I don’t see why we couldn’t have three sessions of mandatory counseling before a divorce. There’s some really low level. There’s a few things we can do to make it a little bit harder, just a little bit harder. But those are tweaks. On the fundamental problem, I don’t know what we do about that.
Chad Squitieri (00:51:26):
Great. Another question. I’ll go to my fellow administrative law professor in the front here.
Speaker 7 (00:51:30):
Well, thank you. I haven’t had the-
Chad Squitieri (00:51:33):
It’s not amplified, but it’s just for the-
Speaker 7 (00:51:35):
Thank you. I haven’t had the pleasure of reading your own manuscript, so forgive me. But at first I have to thank you. I never thought that when I was working in the Reagan White House, I was engaged in the buying agency. My children will be very impressed. I have to say philosophies out of my pay grade, I suppose. I did major in it. But I’m going to just talk about the Minister of Lawyer. What do you want government to do to meet your requirements?
(00:52:07):
First of all, you say the Constitution is the divinely inspired document in some way. And one reason, I guess, is because you say the people and it was written by the people, they wrote it. Well, of course, I don’t want to dwell on this, but it was only written by white people, not by Blacks, not by women. More important, you want subsidiarity. So what do you do about public goods? Isn’t there some situations that need a federal response? You raise the FDA, don’t we want to rule about oxycotin throughout the country? You want everyone to go into Las Vegas to buy it up.
(00:52:53):
And even the spaghetti, which you point out. I don’t know much about that rule, but I presume it’s to give a standardization and characterization so that people get to eat spaghetti, but it’s something. Yeah. I mean, I do know about how much chocolate should be in chocolate milk. Now that’s something people even want to know. I do know whether chocolate bar should have any chocolate in it or not. That’s what’s something going on nationally. These are things the FDA does, and it just seems to me that subsidiarity ignores that there are a lot of things that need a federal response.
(00:53:31):
Similarly, when you talk about expertise, that we should have values. Well, I would assume that even subsidiarity, I would hope that the civic associations and the businesses would want to have experts. I mean, it’s not that denigration [inaudible 00:54:00] you don’t like the values. I agree completely that there should be transparency. But the problem with the transparency is that doesn’t fit in with any politics, subsidiarity or not. Take State Farm. The question is, the court said you have to give reasons as to why you don’t want to have the seatbelt.
(00:54:18):
Well, one good reason, and you notice that rent was said. Well, it’s a change in administrations. Well, one good reason would’ve been if they had written, the reason we’re changing this is because we have a big interest in the health of Detroit. Parentheses not stated, rather than in the safety of drivers. Of course, government want to say that. When I was listening to labor and the White House would tell me, “Reject any rule that’s not cause benefit.” So I’d say, “Fine. Do you want me to say that we can’t follow our statutory mandate to protect the workers in OSHA because of course benefit?” “No, no, no, no, no, no, no.”
(00:55:05):
So I think this attack on expertise, which of course is because of somehow got elected with Wilson, who you know better than I when he was president was didn’t want government as administration, he wanted government as politics. But is a little overborne. Now more granular, what is the APA? You talk about Wilson Logan Act, the predecessor of the APA. What’s that supposed to? What do you want to be done? I mean, do you want more due process and adjudication? Well, that’s saying you don’t want to administrative adjudication. You may not have it after the present Supreme Court. But what does that mean? That means you won’t have… You’d have workman’s comp cases, workmans waiting 10 years to get any compensation because of due process.
(00:56:03):
I don’t know how this fits in with natural law, but there’s a view Justice Frankford wrote about the Cadi under a Palm Tree, Eastern Justice. Where you went to the Cadi, you went to the rabbi, you went to the guru. I like to go to the rabbi. You went to the guru and you say, “Here’s the problem.” And he’d give you a situation based on justice, but not based on precedent. Not based on rule of law, based on values. So if you want to push rule of law all the way, you’re going to reduce the opportunity for the introduction of values, and you’re going to make common people wait for years to get workman’s comp, which was created for informality. So I can go on and on, but I think the question is what do you want to do to the APA? Rulemaking.
(00:57:04):
Now we used to think that informal rulemaking was a great opportunity for transparency for public participation. And in fact, in the ’80s, the statute said, “Let’s pay people to come and participate.” Now we don’t because we have the internet that they could do it. So if that’s not sufficient, do you want to add formal hearings? Now formal hearings, again, take years. 10 years to decide how much peanut should be in peanut butter. Now maybe that’s more due process, and maybe it’s less efficient.
(00:57:48):
But forget about efficiency. It’s also values. I mean, if I want to do good in government and I want to think about the persons in need, I want to think about the climate, all these things on different than efficiency. And people may have different views on what climate should do. People should have different views in how you deal with smallpox.
Chad Squitieri (00:58:18):
Just for, Tyler, I think-
Speaker 7 (00:58:19):
I’m finishing now. But my point is that I like to know what are your granular solutions to administrative law issues?
Daniel Burns (00:58:28):
If I Could just jump in for a sec to piggyback and focus a little. I mean, I do want to say in Paul’s defense, I left the manuscript back in my hotel room, but the Wilson was Professor Wilson, not President Wilson. And in a way, they seem like two very different men, but I think the Wilson we were talking about was the theoretician, rather than… Of course, he discovered that in practice, his theories don’t work out that well, which I think is a problem for the theories. And talk about what you want the federal government to do. You mentioned drugs. I’d like you to especially respond to drugs. It seems to me like the area of federal policy that most obviously cries out for an expanded role for the federal government, basically the states, is the drug problem. I’m not as concerned with whether they sell white chocolate in Nebraska and not in Texas, but oxycontin I am.
Paul J. Ray (00:59:13):
Right, right. So at the risk of fighting the hypo, the book is a book about political morality. It’s about the values that we should care about more than about what are the measures that we should implement. So any law you can pass sits at the confluence of multiple values. The courts talked about this quite a bit, that no statute pursues one value with single mind and zealotry. They’re always trade-offs, and so you’re trying to get more of X, but keep the losses to Y at a minimum.
(00:59:55):
The reason for the book is really that I thought the value of being a cause is overlooked often in our deliberations about the administrative state. And I think we should stop overlooking it, which measures, which structures we have once we’ve started thinking again about the good of agency as a real kind of human thriving. Well, those are really important prudential questions, but they’re not ones that my book sets out to answer, right? So I certainly agree that we should care about all the things that you mentioned that we should care about. We should certainly care about the drug problem.
(01:00:33):
And maybe just to say with the drug example, it may well be that where the drug problems are concerned, we say, “Look. Yeah, there’s a loss to agency values by having a unified federal response, but the goods of a unified federal response outweigh that.” That would be a perfectly reasonable thing to say. And whether it’s pride or not, I’m no drug policy expert, so I’m not going to opine on that. That will be the way you would think about that question. What you shouldn’t do but what politicians do all the time is think all that matters is the outcome. It’s not true. All that matters is the outcome. The outcome matters, but so do the opportunities for thriving in bringing about the outcome. And that’s what I’m arguing for.
Daniel Burns (01:01:28):
Let me push you a little bit more. This is what I meant my first question to be directed at. Isn’t it the case? I mean, politicians are no good at articulating most things, but part of what they have in mind when they’re talking about the outcome is precisely that if somebody is addicted to drugs, he has no agency in his life.
Paul J. Ray (01:01:42):
Right.
Daniel Burns (01:01:42):
And when they talk about the outcome being that people don’t get addicted to drugs, that’s a precondition for them, exercising practical rationality.
Paul J. Ray (01:01:50):
That’s right.
Daniel Burns (01:01:51):
And whether they exercise practical rationality in voting for the state representative that sets the exact number of border patrol agents is much, much less important than whether they get addicted to drugs. And so actually it seems to me that your emphasis on the political aspect of practical reason, risk obscuring all the ways in which actually our abilities to exercise practical reason depend on what it sounds… Sometimes it sounds like you’re dismissing as mirror outcomes, but I would say they’re not mere outcomes. They’re the preconditions for exactly the type of flourishing you’re talking about.
Paul J. Ray (01:02:23):
That’s right. So good politics aims at the good of agency in multiple ways. One way it does so is by creating conditions that allow you to be an agent in your family if you’re not being addicted to drugs. In the workplace, by being a skilled worker. All these in your community by having the kind of privacy and some modicum of property to contribute to community endeavors rather than always worrying, like if you’re on the cusp of not having adequate resources. Yeah. So all of that’s right. And that’s why these questions are difficult.
(01:03:05):
My point here is that we can’t focus even just on those outcomes alone. We have to be mindful of the agency it’s enabled by those outcomes, and also of the agency that’s enabled in trying to achieve those outcomes. There are opportunities for agency that are relevant to basically every policy choice and often in multiple ways, and we need to remember that.
Chad Squitieri (01:03:29):
Well, thank you for that. We unfortunately run out of time. Before we leave, Paul, could you tell us when and where those interested might be able to find your book?
Paul J. Ray (01:03:38):
Not today. Book isn’t out yet. This is the equivalent of a teaser trailer. I was hoping there’d be dramatic music in the background or something like that. Maybe a visual explosion.
Chad Squitieri (01:03:48):
We can put [inaudible 01:03:50].
Paul J. Ray (01:03:50):
Okay, good. Good. Thank you.
Daniel Burns (01:03:51):
[inaudible 01:03:52].
Paul J. Ray (01:03:52):
Yeah. Well, great. But yeah, coming soon. We’ll post all details when it’s out.
Chad Squitieri (01:03:56):
Great. Please join me in giving our guests a round of applause.