Arthur N. Rupe Debate: Public Servants or Permanent Rulers? The Future of the Civil Service

Featuring:

Prof. John F. Duffy, Samuel H. McCoy II Professor of Law and Director of the Center on Intellectual Property Law, University of Virginia School of Law
Prof. Christopher J. Walker, Professor, University of Michigan Law School
Moderator: Sarah Isgur, Senior Editor, The Dispatch

Episode Transcript

Speaker 1 (00:03):
Good evening, Federalists and guests. We're gonna go ahead and
get started. My name is Catherine Slovinski. I serve as
the chapter president here in Michigan Law and on behalf
of our chapter. Welcome to the forty fourth annual National
Student Symposium. It is pretty remarkable that for the next

(00:26):
couple of days, the majority of people roaming these halls
will be Federalists. Our chapter worked diligently this past year
to ensure that you will experience what the society has
to offer, which includes an incredible professional community. Hosting this
event and at this scale can only be done with

(00:47):
a tenacious team, and I want to thank our team
for it. It also doesn't come about unless we have
a common vision, and this vision is something that was
passed down to us from previous generations of Michigan Law
spedialists Here at our chapter. Since this is our fourth
time hosting the Student Symposium, you'll meet a lot of

(01:11):
our team and some of this influential alumni throughout the week,
so make sure to thank them or ask them about
previous years in symposia. Our peers, often behind keyboards, spare
no imagination when coming up with labels for us, so
I believe that it's important that our mission is restated.

(01:33):
We are a collection of conservatives and libertarians broadly defined,
and we agree on three fundamental values. The first one
is that the state exists to protect freedom. The second
is that the separation of governmental powers is central to
our constitution. And third that it is emphatically the province

(01:54):
and duty of the judiciary to say what the law
is and not what it should be. The rest is
to be debated and is eventually decided. Yet I found
my intellectual home within the Federalist Society not just because
of these principles, but also the manner in which FEDSOCK
members engage in conversation and complex legal issues. Namely, we

(02:17):
recognize that good faith is a priori to any discussion,
that courage is necessary for both defending and even changing
your views, and that curiosity is the best driver for
any conversation. I am proud to say that the faculty
here in Michigan Law embraces these values and supports our

(02:39):
efforts to promote the enthusiastic exchange of ideas. They are
a source of strength for our chapter, and we are
very grateful for the faculty staff and administrators who have
been involved with our events or even mentored our members.
Dean log epitomizes the non FEDSOCK affiliated administrator who values

(03:01):
and supports our work. Professor Kyle Loge is the Interim
Dean and Douglas Akon Collegiate Professor at Law here in
Michigan Law. He teaches and writes primarily in the areas
of torts, tax and insurance. Dean Loge has also written
on a variety of topics related to law policy and
legal theory. He has published numerous articles in leading law

(03:25):
reviews and co authored one of the leading insurance case lawbooks.
He has been a member of the American Legal Law
Institute since twenty ten and was the Associate Reporter for
the Alised Restatement of Law of Liability Insurance. Dean low
has served in a number of administrative roles here at

(03:48):
the Law school, including the Associate Dean for Academic Affairs
and most recently the Associate Dean for Faculty and Research
before being appointed Interim Dean. He has received his BA
from summa cum laude from Auburn University and his jd
from YO Law School. Before joining Michigan Law, he was
a tax attorney in Atlanta. Dean Log is beloved by

(04:11):
faculty and students alike. His unwavering commitment to our symposium
and our bid and our poll process help this weekend
become a reality. Please help me in welcoming Dean Log.

Speaker 2 (04:32):
Thank you so much, Catherine for that introduction. It is
my great pleasure to welcome you all here to the
University of Michigan Law School for what promises to be
a deeply enriching symposium. The theme of the event, as
I was told, the role of Congress and administrative state.
I'm now seeing reviving the impetuous vortex, which I really like.
This theme confronts one of the most pressing and complex

(04:54):
sets of questions in modern American governance. As the courts
increase their scrutiny and cut back on the discrep ession
of administrative agencies. How Congress wields or elects not to
wield is powers of oversight, legislation and guidance will profoundly
shape the legal landscape of our country. In this symposium,
we will hear vigorous discussion debate even of whether the

(05:16):
civil service should be seen more as a source of
unaccountable and obstructive power, or as a source of impartial
and consistent expertise, or maybe a sum of both. We
will hear discussion of the consequences of the Supreme Court's
evolving position on agency authority and the extent to which
Congress should reclaim or maintain its legislative responsibilities as a
check on the executive branch. We will hear discussion of

(05:38):
proposals for regulatory reform, debates over presidential power, and ideas
for changes to the judiciary itself, all with an eye
toward preserving or perhaps optimizing the separation of powers. By
addressing these intertwined issues, your conversations will help to clarify
and highlight Congress's evolving role in guiding and constraining the

(05:58):
administrative state and the executive These pivotal debates, of course,
find fertile ground within law schools and the University of
Michigan law schools no exception. The mission of all law
schools is not simply to convey the technical elements of
the law. As every student here knows, legal educators aspire
to illuminate laws broader moral and social dimensions. So today

(06:21):
we gather united in our mutual commitment to the open
and robust exchange of ideas, a tradition that forms the
cornerstone both the legal education and of our democracy, and
its tradition has long been alive and well here at Michigan.
The students will have heard this many times for me
since I've been Interramdane. One of our central goals here

(06:41):
is to create an environment in which ideas, even controversial ones,
can be freely discussed and debated with civility, professionalism.

Speaker 3 (06:49):
And mutual respect.

Speaker 2 (06:51):
I am proud to say that these values are embodied
in our student chapter of the Federalist Society, which was
founded in nineteen eighty five by three one else. Speakers
that year included Chairman of the Civil Rights Commission, Clarence Pendleton,
Professor raul Berger, and then law Professor Antonin Scalia chapter,
Lore tells us that Professor Scalia was picked up from

(07:11):
the airport that's for the symposium by future US Senator
Peter Fitzgerald. I'm also told that Scalia, while here sampled
a classic an Arbor Barr's rendition of New York pizza.
I'm heard I'm told that he scoffed at it. I
wish I had the exact words, but those are lost to.

Speaker 4 (07:28):
The sands of time.

Speaker 2 (07:29):
As you may not know, this is not FEDSOX Student's
first symposium here. We did it back in nineteen eighty
nine before I was here, when the symposium title was Property,
the Founding, the Welfare State and Beyond. Then we hosted
again in two thousand and eight when I was here,
when the symposium was entitled The People and the Courts,
and we would have hosted in twenty twenty had COVID

(07:50):
not intervened and canceled the event again. We are very
proud of our FEDSOX Student chapter. In twenty twenty four,
it was recognized with the Alexander Hamilton Award for Most
Improved Chapter and was a finalist in three other award categories,
including the James Madison Award.

Speaker 4 (08:03):
For Chapter of the Year.

Speaker 2 (08:05):
Our Fedsock chapter regularly hosts events, discussions, and debates that
encourage students to critically engage with the great legal questions
of our time, and honestly, the Federal Society Chapter here
is considered by many faculty to be the best source
of that kind of critical engagement within the law school community.
By fostering a culture of open dialogue. The chapter encourages
students to explore beyond their comfort zones and to engage

(08:29):
substantively with ideas that may challenge their own. This willingness
to engage with differing opinions builds a foundation for effective
advocacy and leadership qualities that are essential for future legal professionals.
So give me a minute here just to recognize again
some people who are in the leadership of the FEDSOCK chapters,
just so we can recognize them with applause. Wait until

(08:49):
the end if you don't mind, of course, President Catherine Slovinski,
Vice President Ryan Carmody, Treasurer Zachary English, and then some
posium co directors Caleb Chadwell and J. J.

Speaker 4 (09:00):
Marshall.

Speaker 2 (09:00):
Please join me in thanking these amazing law students and
their colleagues in their leadership and dedication and ensuring this event.

Speaker 3 (09:07):
Would be the best it could possibly be.

Speaker 2 (09:18):
And I'm gonna I'm gonna keep his on time here
and not keep you much longer. I honestly, now, really,
all I want to do is also think the faculty
advisors who have played a pivotal role in helping FEDSOC
be what it is. I see, Professor Chris Walker is
here upfront. Chris is obviously instrumental to the success of
this endeavor, and Professor's Dan Crane and Adam Pritchard I

(09:41):
don't see, but they're also advisors, and we want to
thank all three of them. I want to thank everybody
for being here. I am going to have to leave.
I wish I could stay for the debate. I love
the topic. It's going to be super interesting. I have
to be somewhere else, but I want to thank you

(10:01):
again for coming, for your dedication to intellectual engagement, and
for embodying the spirit of constructive dialogue here at Michigan
Law today. In all ways, our doors are open and
our minds are too. Welcome to ann Arbraha.

Speaker 4 (10:13):
Has anyone else said go blue yet?

Speaker 3 (10:15):
Go blue?

Speaker 5 (10:28):
So good evening in a warm welcome to the University
of Michigan. From my side, my name is Caleb Chadwell,
and I'm the symposium planning director. If you're in the back,
feel free to filter in, and more people if they
come filter And while I'm speaking, I'm just here to
give you an introduction to the symposium at large, and
also introduce our first debate.

Speaker 4 (10:45):
So thank you.

Speaker 5 (10:46):
Dean log again for your remarks, and we want to
again express our gratitude to both you and our administration
for your commitment to a robust exchange of ideas and
the pursuit of knowledge. This institution daily proofs that collegiality
and excellence are not mutually exclusive. I want to start
off by also acknowledging that an event of this magnitude

(11:06):
simply does not happen without long nights and countless hours
of effort. Let's start by giving a hand to the
entire sixty plus person symposium team who made this happen,
as Dean Logue alluded to. We also want to acknowledge
that the symposium was supposed to be here in March

(11:27):
of twenty twenty, unfortunately was canceled due to the pandemic.
We truly do stand on the shoulders of the previous
generation of the Michigan Law Federalist Society, particularly Kelly Macher
and Adam Steinhilber, who I should note you have the
opportunity to hear from tomorrow on our lunch panels, so
if you see them, thank them as well. Before we

(11:47):
turn to the top of it at hand, I think
it is necessary and proper to give you a brief
introduction to the University of Michigan at Large. To my right,
out across State Street, stands the functional center of campus,
the beautiful Michigan Union. Constructed in nineteen seventeen. It was
designed by architect Irving Pond, who is a student. In
eighteen seventy nine, scored the very first touchdown in Michigan

(12:09):
football history. Above the entrance to this building stand two
sculptures which capture the ethos of this university, the student
and the athlete. They symbolize the importance of both study
and recreation, work and play in one's educational experience. We
believe this symposium fully encapsulates this ideal. Over the course
of these days, we will have over ten hours of

(12:31):
programming in this room, giving you the opportunity to hear
from many of our nation's top judges and scholars. Complementing this,
we will have a robust weekend of network and socializing,
culminating at a banquet at the largest stadium in the
western world. We encourage you to fully embrace a balanced
mindset of the student and athlete. While here, come ready
to engage with the panels and debates, ask informed questions,

(12:52):
but please, please, please also do not neglect to get
to know each other and make new friends or revive
old connections. Arning to the topic at hand, Congress reviving
the impetuous vortex. Today, it almost seems quaint that in
Federalists forty eight, Madison was concerned with Congress being the
branch of government most likely to overstep its bounds. Most

(13:12):
of us are familiar with the plot. Over time, Congress
has either delegated its authority or allowed an ever ambitious
executive branch to run rough shot over it. But the
Supreme Court has recently pushed back against some executive excesses
and offered Congress a path to once again exert more
political control. This weekend, we will explore weather and to

(13:33):
what extent Congress can or even should, seize an exercise
latent authority to legislate. We do not expect to arrive
at a conclusive answer to this question by Saturday evening,
but we do expect to have a greater collective understanding
of the factors at play and what is at stake.
So tonight we'll first set the stage through both a
debate on the future of the civil service as well

(13:54):
as a panel examining recent developments and administrative law. Tomorrow,
we dive into what the separation of powers look like
in action, the interplay between Congress and the administrative state,
the scope of the executive and legislative powers, and then
end with a discussion of Congress and the Judiciary. Our
goal is to leave ample time after each of these
for audience ques Q and A, so please do take

(14:17):
advantage of the opportunity to wrestle with ideas and arguments. So,
without further ado, I would like to introduce our grand
opening of the weekend and welcome, welcome, our debaters and
moderator to the stage. In a world where DOGE is
dominating the headlines, this Arthur N Roop Debate will hash
out whether we should consider civil service employees, public servants,

(14:38):
or permanent rulers. To moderate this roop debate, we have
Sarah Isger who's a senior editor at The Dispatch and
host of the Advisory Opinions podcast, which those of you
who were here at four o'clock her live taping up
was very good. She served in the DOJ as the
Director of the Office of Public Affairs and senior counsel
to the Deputy Attorney General during the Russia investigation. She

(14:59):
was also the deputy campaign manager for Carly Fiorina's presidential campaign.
She's a graduate of Harvard Law School in Northwestern University
and clerk for Judge Edith Jones of the Fifth Circuit
and now for our Debaters. Professor John F. Duffy is
the Samuel H. McCoy Professor of Law and Class of
nineteen sixty six Research Professor of Law at the University

(15:22):
of Virginia School of Law, Professor Duffie There. Professor Duffy
has published articles on a wide range of administrative law
and regulatory issues in the flagship journals at Chicago, Yale, Stanford, Virginia,
and the Supreme Court Review, among others. His nineteen ninety
eight article Administrative Common Law and Judicial Review was one
of the first articles to criticize the Chevron doctrine as

(15:43):
being irreconcilable with section seven oh six of the APA.
It won the ABA Scholarship Award and Administrative Law and
it led The New York Times in Wall Street Journal
to agree that he was quote a different kind of
law professor and one of the lucky few whose writings
actually wind up changing the law. Duffy clerks on the
DC Circuit for Judge Stephen Williams and on the Supreme

(16:04):
Court for Justice Antonin Scalia. While clerking, he became known
as Justice Scalia's quote hapless law clerk who had been
tasked with unearthing three quarters of a century of legislative
history that made quote no difference to the outcome in
an otherwise forgettable case. That's very unfortunate. In earlier days,
Duffy enjoyed being a professional blackjack player unwelcome in all

(16:28):
Atlantic city casinos, and a semi professional roadrunner. He holds
an av in physics from Harvard and a jd from
the University of Chicago. And then we have our very
own Professor Chris Walker. Walker's publications have appeared in the
flagship law reviews here at Michigan, California, and Stanford, among others.
His article Legislating in the Shadows was selected as the

(16:50):
recipient of the twenty sixteen American Association of Law School's
Scholarly Papers Competition Award. His book, Constraining Bureaucracy Beyond Judicial
Review is forthcoming. He's one of the most cited ADMIN
law professors nationwide. He clerked for Justice Anthony Kennedy on
the Supreme Court, and worked for several years at a
litigation boutique in Washington, d c. And on the Civil

(17:11):
Appellate staff at the DOJ. In twenty seventeen, he served
as an academic fellow on the Senate Judiciary Committee, working
on the Gorsach Supreme Court confirmation as well as on
regulatory reform legislation for Utah Senator Orrin Hatch. Outside Michigan,
law Walker is a Senior Fellow at the Administrative Conference
of the United States and a past chair of the
ABA Section of Administrative Law and Regulatory Practice. He also

(17:34):
is a regular blogger at the Yale Journal on Regulation.
In twenty twenty two, he received the Federalist Society's Joseph
Story Award. He holds a BA from Brigham Young, MPP
from Harvard, and jd from Stanford University. And he lives
here in ann Arbor with his lovely family, and we
are absolutely incredibly fortunate to have him as our Federalist
Society Chapter Advisor after he spent more than a decade

(17:54):
at the Ohio State University. Is that the correct article usage.
I want you to be very hap me still lost
to Michigan. Can't be the champs unless you beat the champs.
All right, in all seriousness, the success of this weekend
is also largely attributed to him, and we're beyond fortunate
to have him here at Michigan. Sarah over to you.

Speaker 6 (18:17):
All right. I feel like we need that opening music
from Hamilton about the cabinet room debates, because they told
me they sat me in the middle in case this
thing gets physical. Each professor is going to give about
five minutes of remarks. In doing so, I hope you

(18:38):
will be clear to define. But who we're talking about.
Is it administrative law judges, is it principal officers, is
it inferior officers? Is it civil service protection. There's a
whole lot when it comes to these removal powers. So
define who we're talking about, and define whether we're talking
about the should versus the could, you know, the policy

(18:58):
benefits versus the legal restraints. And just for those who
weren't in the taping earlier, I'll just note it's so
exciting to see all of you guys here, and my
third year as a law student, this is where the
student symposium was, So I'm having a lot of nostalgia
walking through these halls, and I will just note that
it is here that I met my best friend who

(19:20):
is now my neighbor, and our schools are in pre
school together, and we have Sunday dinner every week. So
do make it a real point not just to learn
from the panels, but to invest in those students who
you're getting to meet from other schools, because you never
know who's going to be living next to you. And
our children are betrothed, so you know who knows. So

(19:41):
with that you are starting us off, Professor Walker.

Speaker 7 (19:45):
Awesome, and I'm defending in the Civil Service, we did
pull straws is what we actually think. But I do
want to start out though by saying that today the
vast majority of lawmaking happens of the federal within the
ministrative state.

Speaker 8 (20:00):
It's not Congress, it's not courts.

Speaker 7 (20:02):
It's federal agencies, hundreds of them doing communications and rule
makings and guidance and compliance and supervision and enforcement.

Speaker 8 (20:11):
And that's really where all the action is. And part
of that is.

Speaker 7 (20:14):
We're going to talk throughout the whole symposium because Congress
isn't necessarily doing everything that should be doing, and courts
can't handle all that. So this is really where the
power is today. And because of that, I'm going to
argue versus a policy matter, and then I'll get to
the constitutional that a professionalized civil service is critical for
those of us, those of us who are conservatives and

(20:35):
libertarians that believe in the rule of law, that want
free markets and want the protection of liberty, we need
a professionalized civil service.

Speaker 8 (20:45):
And the vision that I have for the civil service
is not unique.

Speaker 7 (20:47):
To me, is that it's a model of political accountability.
In other words, political leadership of the agency has the
final say on any major policy making, but they that
decision on neutral, competent, expert professionalized civil servants. Those are scientists, economists, lawyers,

(21:09):
policy experts that are on the ground and have the
knowledge to develop a record and to find facts and
to analyze scientific arguments, and to make sure that whatever
policies that federal agency wants to make are grounded in
the best science, the best technical expertise.

Speaker 8 (21:27):
And also for us and them, their lawyers are You're
all going to be aspiring lawyers and the best legal arguments.
So that's the civil service.

Speaker 7 (21:34):
And when I say it that way, it should be
kind of self evident why we would want to professionalize
civil service because they are the ones that are going
to check a government that overreaches its power. They're the
ones that are going to make sure that policy is
based on expertise that it is, that it minimizes costs
and maximizes benefits, and then it creates good in the public.

(21:57):
They're also the ones going to make sure that there's
a transparent profits within the administrative state, to capture abuse
and allow for Congress and for outside experts to weigh
and and for courts to evaluate what agencies do.

Speaker 8 (22:10):
Without a professionalized.

Speaker 7 (22:11):
Civil service, we end up in a world where all
that matters is politics. And that might be good when
you're a person's in the White House, but it's really
really awful whether or not. So that's kind of my
policy argument. Now, John are going to go back and forth.
I don't think that means that there shouldn't be any
civil service reform.

Speaker 8 (22:26):
There should.

Speaker 7 (22:27):
It's hard to fire civil servants that aren't good at
their jobs or have lasted longer than they should be.
But we have to make sure that we maintain a
professionalized civil service and create a culture that attracts the
best and the brightest to make sure that our federal administrative.

Speaker 8 (22:45):
State works well.

Speaker 7 (22:46):
Now, the last thing I want to turn to is, well,
what about the constitutional arguments? Unitary executive theory is completely
consistent with this political accountability vision of a professionalized civil service.
And I think the kind of best example that is
a case by the Supreme Court in the United States
versus arth Rex, where the Court basically says that a

(23:07):
political leadership or political final decision making authority by the
agency head.

Speaker 8 (23:11):
Is constitutionally required.

Speaker 7 (23:12):
They don't quite say that, but that's kind of the
vision that you see in the majority opinion. And so
how I view this as a constitutional matter is that
so long as the agency head is removable at will
by the president and has final decision making authority, it's
perfectly legitimate and fine for removal protections to apply to
many inferior officers and to most civil servants. The employees

(23:36):
that aren't aren't political appointees. And not only is it
politically fine, it is necessary. If what we care about
is the rule of law and liberty and free markets,
we're not going to have that if we have this.
And we're not speaking in the abstract either, I mean,
we see an assault on the civil service today, demoralizes
civil service, destroying the professional professionalization of it, something that

(24:00):
I think at least some of us in the room,
I hope all of you by the end of the debate,
I'll convince you should really view that as a misstep
in the current administration's approach to the administrative state.

Speaker 8 (24:10):
So John's going to tell me why I'm really wrong
or something.

Speaker 6 (24:15):
Professor Duffy, why is he so so horribly misguided?

Speaker 9 (24:22):
Thank the Federalist Society for inviting me in the University
of Michigan Law School, for hosting me. I hail from
another great flagship state university, so I wore my University
of Virginia, Tai. I thought you'd all appreciate that. I'll
appreciate that here at the University of Michigan. And apparently
there's some who's here too.

Speaker 4 (24:41):
So first, I think.

Speaker 9 (24:43):
I want to debate not a hypothetical civil service, but
the actual civil service. And in our discussions, you know,
Chris actually said he wants it professional, best and brightest, neutral,
and actually you said, but you and admitted in emails
you said, there's a there's a tilt. There's a tilt.

(25:04):
There's a tilt, a tilt to the civil service. So
I actually wanted to figure out what that tilt was.

Speaker 4 (25:11):
So I went in, and I think this is something
you should do.

Speaker 9 (25:14):
There's there's the Federal Election Commission has data on contributions
and you can search by employer. So I took a
relatively modest sized agency so I could do it relatively quickly.

Speaker 4 (25:27):
So I took.

Speaker 9 (25:27):
NOAH, which is, you know, National Oceanic and Atmospheric Administration.
I thought it would be interesting to sort of see
that it's not too many. In the last year, ninety
two percent of donations by dollars went to Democrats and
ninety percent in the sheer number. So and you might think, well,
that's a democratic administration, so you know, maybe that's a tilt.

(25:51):
By the way, if you if you want to know
what a tilt is, that's more of a tilt than
Vladimir Putin won his last election by He only won
it by eight So I think that's that's a tilt
of pretty big proportions.

Speaker 4 (26:06):
But even in.

Speaker 9 (26:06):
Twenty twenty under a Republican administration, seventy six percent of
the dollar donations went to Democrats.

Speaker 4 (26:14):
By my account, I could be.

Speaker 9 (26:15):
Off by a few points here and eighty five percent
of the number eighty And actually it's more numero because
if you look at the twenty twenty, a lot of
them were large donations to Trump, but they were the heads,
they were the top people who are political appointees. So
it means if I were able to have enough time
to call those out, I think you'd find that the
civil service underneath of that leadership is extraordinarily skewed in

(26:42):
one way, and that I think is is really ultimately
terrible because it loses confidence of the American people in
the adjudication, in both the adjudicatory functions and the policy
making functions. It's true that you said that it would
be great to have these neutral experts and in theory

(27:02):
like I've read. I've read all the progressive theorists who
came up with this, and they had this idea of
a neutral agency that would really be.

Speaker 4 (27:12):
Led by science.

Speaker 9 (27:13):
There was even a progressive theorist who was kind of
influential before he left academics. He talked about the science
of administration, which we're both the administrative law professors, so
we actually like that idea, and I'm from science. I
like that idea this. This professor was named Woodrow Wilson.
He left the academy did some other stuff, but I

(27:35):
think he had you know, I think the aspiration is
is nice, but the reality that we have today is
nothing like that.

Speaker 4 (27:44):
With maybe the exception of the FED.

Speaker 9 (27:46):
Actually the FED is kind of interesting because I think
people think that the FED, you know, even Donald Trump.

Speaker 4 (27:53):
I think box that like you know, so far box,
box doesn't mean you don't throw the ball. It means
you throw it. Maybe after thinking a little.

Speaker 9 (28:00):
Bit too much, but box a little bit about interfering
with the FED, because I think there's some plausibility in
our modern age to the idea that there's some economic science.
It's embryonic, to be sure, it's still developing, but in
many of these agencies, I think the imbalance is really
really destructive of any claim to neutrality or best and brightest.

(28:24):
And we see this, by the way, and you know,
this is something that for academics you see all the time.
It turns out that academic institutions, high level academic institutions
like the University of Michigan, always say they're hiring the
best and brightest, but somehow, somehow, it turns out that
if you're ninety ten, like I think Virginia is, you're
called a conservative.

Speaker 10 (28:45):
Law school with good cause, because there's schools like Georgetown
that has like, you know, eighty people on their faculty
or something like that, and there's like one or two
people who could plausibly be called conservatives.

Speaker 4 (28:58):
So it is it.

Speaker 9 (29:00):
It is kind of interesting that these crucial institutions in
our society that are supposed to be meuocratic have become
wildly in bounced.

Speaker 4 (29:08):
I think that is.

Speaker 9 (29:09):
A big challenge to our society, not just to the
administrative state, but I think to other institutions like the
media and like higher education as well.

Speaker 4 (29:19):
I think that's a really big problem.

Speaker 9 (29:21):
Now I do want to talk about adjudication a little bit,
because I know that you mentioned Arthrex.

Speaker 4 (29:27):
But it's actually interesting.

Speaker 9 (29:29):
I used to think I'm sort of the converted person here,
so I'm more radical. Right, once you get to be
a convert, you're more radical. I used to think that
the argument that, like, at least for adjudicators, it made
sense for them to have a lot of tenure protection.

Speaker 4 (29:44):
I'm now doubtful.

Speaker 9 (29:46):
One thing that I think is very interesting is that
almost all states have some form of judicial elections. Michigan
actually has an interesting system that people actually referred to
as the Michigan system. So it a mix a mix,
a mixture of sort of partisan and non partisan, but
there's definitely elections. In fact, there's a I know there's

(30:06):
a judge here. I won't call her out by name,
but who used to sit on the Mystician Supreme Court.
And I'm pretty sure I had to go through an election.
She's now a federal judge, so she doesn't have to
worry about that for the rest of her life. But
I think that that is important because it shows and
in fact, there's a recent example of Judge Aaron Persky,
who is kind of famous California judge who's certain sentenced

(30:28):
this is just hard to say, a rapist to six months,
and it outraged the citizenry of California, and his recall
election was led by a Stanford law professor at your
at your alma mater, and I think that that was
very controversial. But that shows that even in core functions
of adjudication, it is consistent, deeply consistent with our traditions

(30:52):
to have some sort of democratic check so that the
adjudicators reflect the value of the society that is that
is installing them. And I think that's why, you know, weirdly,
I think that's why there's so much push to defend
the civil service right now. There's no other institution in
our society that's in our government exclude universities, but in

(31:16):
our government that's like ninety ten except for the civil service.
You know that you can't get that kind of a
tilt in other major institutions. But even if it and
and so there's there's also this problem of long tenure,
even if the even if there weren't a political dimension
to this. So imagine I always think when teaching administrative

(31:36):
law and looking at Article two, it's always interesting to
try to find something that is analogous in Article three.
So one good thing that's relevant to many law students here.
Many of you might be applying to clerk right, And
you could imagine if the clerks were civil servants who
were hired by justices who are long gone or long dead,

(31:58):
and they still were there, but you know, Justice Thomas
would have to have some law clerks picked by Thurgood Marshall,
or that Amy Cony Barrett would have to have Ginsburg
Law clerks.

Speaker 4 (32:09):
I think that you could say that that's.

Speaker 9 (32:11):
Perfectly constitutional, but I'm just not sure that's a good thing.
I'm not sure it's good. I also think that you know,
having some you know, having those strong tenure protections can
really hamstring the ability of the person to do their
work and the way they want to do their work.
And of course with law clerks, you know the article

(32:31):
three courts pick their own clerks. It's a very personal
relationship and those are employees. It is mureacratic, though I
think it's very clearly meureaucratic.

Speaker 4 (32:42):
Although and in fact I think good.

Speaker 9 (32:45):
Judges, really good judges, aren't afraid to pick people of
the other side.

Speaker 4 (32:50):
They do try to strive for a mix.

Speaker 9 (32:52):
When I was clerking for Justice Scali, I am confident
that there was at least two registered Democrats because I
was one of them. Believe it or not, Like I am,
I am, I have I have moderated or the political
things that matter have gone the other way. But there
were so is half his law clerks were registered Democrats

(33:13):
and so I and I think he did that because
he wasn't scared of that. But I think he wanted
to not have ninety percent one way or.

Speaker 4 (33:22):
The other way.

Speaker 9 (33:23):
So I think that that's that's important. Arthur X points
I think to less civil service protections, not more civil
service protections, because the fact of the matter is, and
this is the Arthur X case arose out of the
Patent office, and I teach patentaw I'm one of the
rare people who teach you whose ad law.

Speaker 4 (33:41):
In the field of regulation.

Speaker 9 (33:43):
I especially follow is intellectual property, especially the patent system,
but also copyrights and trademarks. And the number of cases
is in the hundreds easily per per year, hundreds and one.
There's only one person who's appointed by the President with
the advice and consent of the Senate, and that's the

(34:04):
director of the Patent and Trademark Office. And that person
has to do in theory review all these decisions. It's
impossible as a pragmatic matter, So that person really needs
to have trust.

Speaker 4 (34:17):
In those adjudicators.

Speaker 9 (34:19):
He or she has to have really good trust that
they're that they're applying the same policy that he would
or she would in the absence. Finally, I think it's interesting.
I always have thought it's a hard hypothetical. There's a
due process issue here, and I think we should talk
about that. Maybe we can talk about in the question
and answer. But I always wondered if a I think

(34:39):
it's unconstitutional if if the president calls up an adjudicator and.

Speaker 4 (34:44):
Says you must rule in X way. And there's two
reasons for that.

Speaker 9 (34:49):
First, there's the Morgan versus United States case, which says
a basic due process thing, which is that he who hears,
he who listens to the evidence, reads the record, that's
the person who has to decide. So if the president
calls up an adjudicator and says you have to decide
one way, and the adjudicator says, well, if you read
the briefs, and the president says, I don't have time
to read the briefs, I think that there is a

(35:10):
constitutional problem there. But that again points to the idea
that you have to have trust in your adjudicators. Your
civil servants will pardon me. Your adjudicators they don't. They
may not be civil servants. You have to have trust
in them that they're adjudicating the right way, and that
I think we can have a longer discussion about that,
but I think that the idea of trust within the

(35:30):
executive branch. And one final thought, if Congress really wants
independence and a political completely meureocratic system. There are a
bunch of adjudicators who are available to do that work,
and we already talked about them. We mentioned the courts,
you know, so they're perfectly there, and you know they're

(35:51):
perfectly willing.

Speaker 4 (35:52):
Remember the New Deal and progressive you're a theorist.

Speaker 9 (35:55):
Who built the administrative state did it because they didn't
like the courts, sort of the law nearer.

Speaker 4 (36:00):
They didn't like the court so much, so they built this.

Speaker 9 (36:03):
So if you want a political you want bureaucratic people,
super bright you know, young law clerks to do all
the grunt work, and very smart judges.

Speaker 4 (36:12):
Article three courts. That's the solution.

Speaker 6 (36:15):
There's a lot to bite off there, So let's try
to put this into a few chunks. Okay, let's start
with the first chunk on the Wilsonian progressive ideal, which
I think you were describing versus the reality of what's happened,
and that, if anything, the administrative state has grown to
replace Congress in a lot of ways, and that that

(36:36):
is due to the idea of expertise, and the reality
may be quite different, and we may be living in
a time where that progressive ideal of expertise has come
to its inevitable de numa, and we revert back to
political accountability and self government. So, just from the policy standpoint,
why don't you answer that aspect? First?

Speaker 7 (36:57):
Yeah, I mean, John only raise some good points. None
of them are persuasive, but they're good. I mean they're
worth grappling with. I mean, I think on the first one.
On the political point, you know, I've interviewed probably almost
a thousand agency, you know, career civil servants for the
last you know, fifteen years, an academic, and yeah, I
don't think party affiliation matches well with merit. I mean,

(37:20):
I do think they are hired based on marrit and
they take their job very seriously for the most part.
And I think that's kind of as I kind of
think through that, like is it ninety percent?

Speaker 8 (37:28):
Well, that's part of our problem.

Speaker 7 (37:30):
Quite frankly, it's a are we creating an environment we're
conservatives and libertarians want to work in government. I mean,
that's that's an issue, the same type of issue we
have with academics and universities as well. But I guess
the bigger issue I have with that is, like, well,
what's the alternative. I mean the alternative I think is
have them all be politicals and so we'd be filling

(37:50):
up agencies with hundreds of thousands of political folks that
I mean, it would be in a whole system of
and that just undercuts.

Speaker 8 (37:59):
All the rule of law issues.

Speaker 7 (38:01):
So I can take a squishy leftist like lefty like
center left lawyer or economist and to kind of trust
that they're going to be a better check on a
Democratic president, then I can on a Democrat that worked
in the campaign and got the job because they worked
in the campaign, and we have a spoil system. So
I guess I'm just not convinced. I mean, you've fagged

(38:23):
another debate maybe we should have of like how do
we make sure that the administry stays more ideologically diverse.
I think that's a really important debate to have. But
you're not offering a solution to me about how we
protect the rule of law, markets and liberty just by
pointing out that ninety percent one agency it gives And
I'd also like, how many lots of center right folks

(38:45):
just don't give money. I mean, I'm thinking Derek Muller
is working all this looking at universities if you look
at the universities, like, oh, look, there's only one Republican
at that university. It's like the reality is a lot
of us conservatives are small sea conservatives, like we're not
involved in politics. We're here because we're serious scholars or
serious So I think if you actually looked at the
at the methodology, you wouldn't find ninety percent. Now would

(39:08):
you find more than fifty percent?

Speaker 8 (39:10):
Sure? Is it a problem? Yes? Is the solution to
get rid of the civil service? I think it's a.

Speaker 7 (39:15):
Really really just it just falls apart when you start
thinking about that.

Speaker 6 (39:20):
So I'm going to give you the last word on
this one because we tried it your way for a
long time and poor President Garfield is there being tortured
with people sticking fingers.

Speaker 11 (39:32):
In, you know, a bullet hole.

Speaker 6 (39:34):
You know, they're inventing air conditioning for him and X
rays and he languishes. Man, he's not a fan of
your plan at all. Well, I guess the question is,
isn't there a Chesterton's fence aspect to this? We tried
it that way, We've changed it for a reason. If
you're going to destroy the fence, what's the alternative?

Speaker 4 (39:53):
So I'll say two things.

Speaker 9 (39:55):
One is one of the places where I think there's
a lot of meritocracies in OMB, which is in Executive
Office of the President, which does cost benefit analysis, has
done it since the nineteen the early nineteen eighties, through
multiple administrations, and there is, of course a lot of
what they're doing is being counting. Is that there's a
bunch of economists in that that try to actually put

(40:16):
numbers on things.

Speaker 4 (40:17):
And I think that you know, don't we don't see.

Speaker 9 (40:22):
I think we see less distrust of that process than
some of the more politicized agencies. The other thing, and
you know that I've got a solution that I was
going to get to because I said, flo I floated
it in an email. But I think I think that
there there is a lot of, you know, sort of
theory behind sort of a sixty forty split. Some of

(40:43):
the agencies at their leadership level have a political.

Speaker 4 (40:48):
Balance requirement which is never quite balanced.

Speaker 9 (40:50):
It's usually sixty forty except for the Federal Election Commission,
which is which is which is truly balanced, and therefore
it's it deadlocks a lot. It's got an even number
of members, and it really does require fifty to fifty
and it deadlocks a lot, which is which is an issue.
But many agencies have this sixty forty rule, which is
very old. You know that no more than three can

(41:13):
be no more three or five can be of the
same political party. And I think the people who put
that in had some wisdom, but they forgot about the
whole agency when they wrote those statutes. They thought about
the agency meaning just the five people, and they didn't
think of the agency being this immense set of bureaucrats

(41:34):
who really wield a tremendous amount of power.

Speaker 4 (41:38):
So if we had a.

Speaker 9 (41:39):
Sixty forty bureaucracy, I think, and then you know, it
shifted every election, every election when the political wins change,
you know, forty percent stay twenty percent are political people
or forty five, you know, fifty five whatever.

Speaker 4 (41:57):
We had some sort of more balanced.

Speaker 9 (41:59):
System, I think that would be useful, and I think
there's a way to get that. There's actually interesting, very
interesting First Amendment issues for those people. There was a
case that came up from the from the state of
Delaware about trying that does try to balance its political.

Speaker 4 (42:16):
Court of chancery, and there was interesting questions there about
whether that violated the First Amendment.

Speaker 9 (42:21):
I think there's a way to do it that that
could make sense, which is that you have to pick
one side of the political spectrum that you have political
do you have.

Speaker 4 (42:28):
Tenure protection against firing?

Speaker 9 (42:31):
And if you get up to forty percent, then you
can't pick political protection from that side, And so you
could you because this is a problem with lying, you know,
if you say, and I've had even colleagues say to
this to me that they're a conservative. I had one
and I'm like, well, wait a minute. You know, don't
you like, aren't you like an exclusive democratic downer? It's like,

(42:52):
oh yeah, oh yeah, because I'm intelligent. I had a
colleague who said, you know, a lot of people in
our faculty or most of our facult conservative. I said, well,
how many people do you think voted for George W.

Speaker 4 (43:03):
Bush? And she said, well, not very many, because they're intelligent.

Speaker 9 (43:07):
And I thought that's the sort of view that like,
we're all conservatives here. There's lots of conservatives, and in fact,
you know they're not. And I think you've got to
sort of get people to reveal their actual preferences. So
what you say is, okay, you're a conservative, you need
protection against being fired from the Democrats, you can get
that protection. Only forty percent in the agency could get

(43:29):
that protection, and the other forty percent could get that
and there'd be some degree of balance, just like there
is for the multi member the heads of.

Speaker 4 (43:37):
The multi member commissions.

Speaker 9 (43:38):
Maybe that kind of hypothetical system would work. I'd love
to talk to you about that, about some theoretical way
in which we could have a radically different civil service
that would be maybe more professional, more balanced, and less
slanted tilted, tilted, tilted.

Speaker 6 (43:54):
I want to make sure we have enough time to
spend on administrative law judges. But since he is for
you to respond, well, I don't.

Speaker 7 (44:01):
Want to respond to that, because I think it's an
idea that maybe you'd have to I don't like it,
but I did want to respond, But I want to
respond to your broader vision. And I think the whole
like unelected bureaucrats line is like really tired.

Speaker 8 (44:14):
I mean, we don't live.

Speaker 7 (44:15):
In an administrative state where unelected creer civil servants are
making major decisions that aren't reviewed by political leadership. And
if we are, show me some really examples of that.
We live in a world where of presidential administration, where
the agency heads are making the final decisions when it matters,
and I.

Speaker 8 (44:33):
Think that's what Arthrex is all about. The Court at
Arthrex had a fork in the road.

Speaker 7 (44:38):
And they could have said, we're going to remove the
tenure protections for administrative patent judges, these administrat of judges
that we're going to get to in a second, or
we're going to give the agency had final decision making authority,
and Chief Justice Roberts Right for the Court said, my
vision of the administrative state is final decision making authority.

Speaker 8 (44:54):
And that's what we have. In essence, that's what we
already had.

Speaker 7 (44:56):
And so I don't when I hear this kind of like, oh,
I'm worried about these officials unless you can show they're
actually biased and how they make decisions. If we can
create a professionalized civil service where they're hired and fired
based on merit, then the political leadership political control, like
I can live with that. That's a good system to
be in. I'm not sure about some of them not

(45:17):
being able to be fired if they're Democrats or Republicans
or And one thing I will note on that front, though,
is that could go both ways. Not all agencies lean left.
I mean go visit immigration customs enforcement, and it leans
very right, and so does a lot of the law
enforcement at the federal level. And so I agree that
you could go both ways, but I don't think that's
the way to run a professionalized civil service.

Speaker 6 (45:37):
All right, I want to narrow this down to the
administrative law judges because there are so many different types
of civil servants. They all are doing different things. You're
saying they're not making big decisions. You're saying, you know,
they're sort of faux experts, or they're bad at their jobs.
So we're going to focus on the administrative law judges
for the rest of this conversation. Professor Duffy does not
believe that they need a political adjudicators for administrative law judges.

Speaker 11 (46:04):
You disagree with this.

Speaker 6 (46:05):
I want to read, well a little piece from this
Law Review article that you wrote along with Professor Nielsen,
who was talking about some of this earlier. The more
entrenched the unitary executive theory becomes, reformers argue, the greater
the risk that decisional independence will collapse. Reformers therefore have
advanced sweeping proposals to save agency adjudication, including most prominently

(46:28):
creating a new central panel agency to house agency adjudicators,
expanding the Article one courts, or even moving agency adjudication
into Article three courts. This article examines these proposals and
explains why none of them will work. So you think
that they should be protected, but what we have right

(46:50):
now doesn't seem to.

Speaker 11 (46:51):
Be working very well.

Speaker 7 (46:53):
Yeah, And just to be clear, so we're now the
Spring Court is called administrative law judges, and I think
we call pretty much every other ministry of judge an
officer of the United States, I mean, and in Lucia, that's.

Speaker 8 (47:02):
Kind of where we're at.

Speaker 7 (47:03):
So we're not talking about traditional civil servants anymore, although
they are still hired through somewhat of a merit process. No,
there's more politics involved, and at least for now, they
still have four CAUs removal protections.

Speaker 8 (47:14):
So that's kind of that. Just to make clearly, that's
the world ruines.

Speaker 7 (47:16):
So we're a little bit we're moving from the civil
servants that have some removal protections but not as much.
Ministry of law judges have a lot more. And so
in this world, John's proposal of let's just have Article
three judges do all of this. Any guesses how many
administrative law judges. Administrative judges there are out there. I
think it's about thirteen thousand. So we're going to go

(47:38):
and sendate confirmed thirteen thousand new judges to hear social
security cases, immigration cases, veteran cases.

Speaker 8 (47:45):
Patent examinations.

Speaker 7 (47:47):
I mean, the reason why Congress created agency adjudication is
to provide for an ability for individuals to appear before
an agency in lower stakes issues without a lawyer, and
for an agency or for the governmit to vary very
quickly and efficiently and effectively and consistently adjudicate millions of claims.
And so that's kind of the vast majority of these

(48:08):
adjudications are public benefits cases. And maybe we'd have a
different debate about the private rights or kind of civil
penalty stuff. But when I think of an administrative law
judge or aministrat of judge, they're dealing with benefits and
in that context, there's no way they can go in
an Article three court. I mean that you can't move
that many cases there, and the amount of money that
the government would spend of adjudicating those cases in Article

(48:29):
three court, the amount of money that individuals have to
spend in hiring lawyers I mean, I think there's a
really good reason why Congress designed a system to have
those cases done more effectively. The problem that happens, though,
is if we take the unitary executive turn all the
way and administrative law judges can be fired at will,
we're not going to ever have the confidence that those

(48:51):
judges are basing their decisions on law and fact and
creating an administrative record based on neutral competence. I mean,
you're always going to be afraid that that judge is
doing whatever the political head of the agency wants.

Speaker 8 (49:03):
And that's just a really really really bad way to
run an ammunication system. The better way to run it.

Speaker 7 (49:08):
Which is the same theme I said at the outset,
is the standard model of the Administrate Procedure Act that
you have a tenured, protected merits hired administrative judge or
miministry of law judge, create the administrative record, do the hearing,
find the facts, and make an initial decision, and then
if the head of the agency, the political head of
the agency, doesn't like that decision, the political head of

(49:29):
the agency can reverse it. And if John says, well
there's only one political head at the p TAB, well
that political head can create an appellate body within the
agency that helps sort through that and the like. I'm
not saying that the political head has to decide everyone.
And that's the standard model that Congress envisioned in nineteen
forty six, actually a little afterwards because'm end of the APA,

(49:51):
but that's the standard model. We have the Ministry Procedure
Act and without that, and John and I have thought
about this in the.

Speaker 8 (49:56):
Pages of the Federal Register.

Speaker 7 (49:57):
We had a kind of a drag out in a
mi the strait of conference the United States Plenary Session
about this that that that's critical and to get rid
of those removal protections really does run into a world
of unfairness that I think we just, you know, kind
of destroy the system that was set up by Congress
and serves a lot of important purposes along those lines.

Speaker 6 (50:16):
Will you just quickly add to that though this is
your should ye, Will you add your constitutional log loss
on why administrative law judges protection is okay with you
if the president doesn't have at will removal power.

Speaker 7 (50:30):
Yeah, because ultimately the head of the agency, Kent has
the final substance of decision and that and that and
that adjudication. And by way, I'm not representing the left version.
I'm somewhere in the middle right. I'm a unitary executives
that's proposing a vision that has political leadership make the
final decision. There are other folks, including some of my
colleagues will speak later tonight, that have ran against this right.

(50:51):
But in this category, that's the way you balance the
control between making sure we have fair, impartial trial level
ammunications and political control. Now, if we had someone else
here debating to my left, they would say, well, Chris,
like that political control is really awful, Like we don't
want politics and judging, we want these Article three judges.
And my response is no, no, no, no. That's what

(51:12):
happens is that the Ministry of Lodges creates a record
that everyone can look at, that the agency can look at,
that the public can look at, the reviewing court can
look at, and that will kind of control some of
that on the constitutional front.

Speaker 8 (51:25):
This is this is Arthrex.

Speaker 7 (51:26):
In my opinion, this is this is entirely consistent with
the Supreme Court's decision in the United States for Arthrex
the lower level officials, and even if we look back
to Justice Scalia's famous to sen and Morrison versus Olsen,
he had absolutely no doubt that an administrative law judge
would be able to have removal protections as an inferior officer,
which he probably didn't think they were infeor officers at

(51:47):
the time.

Speaker 8 (51:47):
That was before we had Lujia.

Speaker 7 (51:49):
But there's no doubt in his mind that because they
don't make the final decision, or better said, because the
agency I can always review their decision before it becomes final,
that that's enough as a institutional matter for the president
to be able to control that that executive agency.

Speaker 6 (52:04):
Is that enough for Okay, I need you to answer
the should and the constitutional question.

Speaker 4 (52:11):
So the one thing. There are three things I think
that are interesting here.

Speaker 9 (52:15):
First of all, I think it's true in the States
that there's a lot more democratic check on the lower
level judges often than on the higher level judges. That
a lot of the lower level judges are elected. In
some states, you know, do insulate do more insulation of their.

Speaker 4 (52:30):
Higher level judges.

Speaker 9 (52:31):
So it seems and I have not fully theorized this,
it seems odd that, you know, in the administrative state,
we're creating an adjudication system that's sort of upside down
from what you know our traditions in this area have.
I like the idea of an appellate body. I think
that's good. I think one of the objections to a
civil service and just having one political point is that

(52:54):
that one political pointee gets swamped with work and cannot
effectively manage the administrative state. I think that even violates
the very functionalist test in the majority opinion on Morrison
versus Olsen. And you know, if you're if you're hearing
an ex Scalia cleric something saying something kind about the
majority opinion and Morrison versus Olsen, you've got to think

(53:15):
that's the outer limit to where somebody is going to go.
But but the idea would be that you can't effectively,
you know, run your department if you're only one person
and you've got thousands of adjudicators you're supposed to be
UH overseeing. That actually argues in favor of the So
the Trump position that was UH was called Schedule F

(53:40):
in his last term, and now I think is called
UH policy. And it's actually it's abbreviated PC, which I
thought is kind of hilarious because it's P and C.
You know, it's it's we're gonna be more PC. I
guess in this now, but anyway, it's it's it's sort
of creating this a larger group of people who are
exempt from civil service protections who could get more that

(54:03):
you could have more removal power over. So I think
that that was one thing on Schedule F.

Speaker 6 (54:09):
So yeah, I sort of visualize this as like, right
now we've got these people who aren't protected from civil
service protections than all of this Schedule F just sort
of shifts it down a bit, and you still have
all of these folks down here who would remain protected.

Speaker 11 (54:25):
Are you okay with that?

Speaker 9 (54:26):
So I think that you know, you certainly don't need
to have You can have civil service protections for the
people who, you know, run the boiler in the Justice
Department main building as long as the Justice Department main
building continues to be owned by.

Speaker 4 (54:44):
The federal government.

Speaker 9 (54:45):
If those of you who are readers of the Washington Post,
there was some uncertainty about that the other day.

Speaker 6 (54:49):
And is that because you think Congress has the constitutional
authority to place limits on the president's removal power.

Speaker 9 (54:55):
That's actually interesting because you talked about the policy issue
and how we don't like the spoil system. If that's
really true, the executive can create a system of tenure
protection inside the executive branch. I mean one of the
great answers that the progressive era literature on this was
extremely interesting because they thought a lot about democracy and

(55:16):
how the civil service and expert agencies that they were proposing,
whether that was consistent with democracy. And they had a
really good theoretical answer, which is that people could the
people could choose expertise. And I think the executive the
same thing works in the executive To extend that Chris
wants to push more power into the executive branch, I'll say, fine,

(55:38):
the executive branch can choose or not to choose to
have a sort of professionalized system.

Speaker 4 (55:46):
And I think that's what Schedule F is.

Speaker 9 (55:48):
That the President Trump wants to move it down a
little bit. I don't think he wants to get rid
of it all. So I think with the adjudicators, with
the Social Security benefit adjudicators, I don't think it anybody
wants to hire thirteen thousand new judges every four years.

Speaker 6 (56:05):
Okay, I want to leave enough time for questions so
you can say what you want, but I want both
of you to answer the question that I just asked
and felt like I did not get an answer to
which is, according to your theories, what power does Congress
have to limit the president's removal authority? Not the should
only the power of Congress, But go ahead, and then that's.

Speaker 8 (56:27):
What I was going to say.

Speaker 7 (56:29):
So as I start out the very beginning, we're going
to get back to the Congress has given the ministry's
state a ton of power to control lawmaking, to do
regulatory activities, and the civil service is a tool that
Congress has created, the removal protections. And when I say
not just rural protect it's hiring based on merit and
firing based on merit. Is a tool that done to

(56:50):
rein it in to make sure that we don't have
some president come in that doesn't respect norms, traditions, science, facts, law, reality,
and that we have like this kind of check within
the executive branch. So I think it's perfectly, hopefully that's
really clear, perfectly constitutionally appropriate for Congress to come in
when it comes to most civil servants and a lot

(57:14):
of inferior officers to have that in fact, I think,
and I think it's a policy matter, it's necessary. Otherwise
we've given so much power to the administrative state. It's
not going to be coming back anytime soon in the
Supreme Court, as we'll talk of the next panel is trying, but.

Speaker 8 (57:28):
It's not going to come back anytime soon.

Speaker 7 (57:30):
And if what you care about is liberty, rule of law,
and free markets, you need to let Congress allow those
checks in the process to make sure that a political
executive branch doesn't just run us over.

Speaker 6 (57:41):
But you don't think the Tenure of Office Act was
constitutional or that Myers? You know you can require it.
Can Congress require advice and consent on the way out too?

Speaker 11 (57:52):
No?

Speaker 7 (57:53):
No, I'm not disputing Myers. I'm not talking about political leadership.
I mean, we could have a whole other conversation about that,
and I but like, but I'm really much more focused
on lower level.

Speaker 8 (58:02):
And fear officers and the civil service, the.

Speaker 11 (58:04):
Employees over to you last word.

Speaker 9 (58:10):
The one word I really disagree with this. It's perfectly,
perfectly constitutional, perfectly I think is them them's fighting words,
I think, and I I how much can Congress do?
I take it as a compliment that I didn't answer
your question. Maybe I have a career in politics ahead
of me, but I think the answer is a lot

(58:30):
less than it's been doing historically, and I less.

Speaker 11 (58:33):
Than remains not an answer to my question.

Speaker 9 (58:36):
It's not a firm answer, it's not it's not a
it's not a clear line. But we're definitely trying to
solve what I think is a serious constitutional problem about
the dysfunction inside the executive branch. And that is a
constitutional problem having an agency that is, you know, swimming
against the chief executive and his political appointees. That's not

(58:58):
that is a constitutional problem.

Speaker 4 (58:59):
That's not just to Paul's problem.

Speaker 6 (59:02):
All right, turning this over to you, guys, phrase your questions, uh,
succinctly and aggressively.

Speaker 11 (59:11):
And loudly.

Speaker 6 (59:14):
Oh hold on, sorry, there is a Mike Good.

Speaker 12 (59:19):
So my question is for Professor Walker, you express some
distaste in something like a spoils system in which all
sort of new appointees would be politicals. And my retort
to that be, wouldn't that be more honest? Wouldn't that
be sort of reaffirmed that elections have consequences? I asked,
just because having spent some time at oh PM as
a political in the last administration, what we found is

(59:41):
we literally had to cut out careers from every last
decision making process. Project, et cetera, that we had for
constant subversion, slow walking, threats of leaks. And given that's
true and that will always be true, just iron low
of bureaucracy, is it not true that, as a right
wing person the only recourse I'm left with is a
doge ended flamethrower.

Speaker 8 (01:00:02):
Yeah. I mean again, you would really need to. I mean,
you can give me.

Speaker 7 (01:00:08):
A few bad examples of civil servants that have gone wild,
and we're talking about hundreds of millions of government employees,
and I just don't think that's that's that's reality. Are
those are experiences with the bad apples.

Speaker 8 (01:00:23):
And I do think when it comes to civil service reform.

Speaker 7 (01:00:26):
I do think you have to sort that out, and
you know, certain types of bureaucratic resistance should be four
cause ground reasons for firing. I also think that schedule
the accepted service is when you move people into a
schedule F when they have a policy making role. My view,
and there's a more renewed debate among academics, I think
that is consistent with Congress's command to have a schedule

(01:00:50):
F to go after kind of the policy making role
and reduce some of their of their tenure protections. But
I don't think like you can give me an example
of like zero point one percent of servants acting poorly
and say that that means we should get rid of
the ninety ninety nine point nine percent. And I'd much
rather have a little bit of subversion or bureaucratic resistance

(01:01:13):
might be better warn than have just a bunch of
rough shod political decision making without those checks.

Speaker 8 (01:01:19):
So they're trade offs. I don't think the trade offs
you're describing are remotely.

Speaker 7 (01:01:23):
Persuasive enough to get rid of the civil service. If anything,
I think it could provide you with thousands of examples
of civil servants that help push back against overreach by
political that wasn't like justified by law, for instance. And
I can look at those examples on both sides, whether
it's a democratic or Republican white House.

Speaker 8 (01:01:40):
So again, they're just.

Speaker 7 (01:01:40):
Trade offs, kind of similar to I hate. Maybe I
shouldn't give this example, but John's already opened the door
to it. Like law professors in a law faculty, right,
we give tenure in order to encourage a free exchange
of ideas and of course courage just to take chances.
Does that mean that every time we give tenure, that
it's going to be a success story.

Speaker 8 (01:01:59):
No do.

Speaker 7 (01:01:59):
I think it's the end of the day, that it's
a balance and not positive. I do, actually, I think
that it does create more knowledge and protects good ideas
and controversial ideas.

Speaker 8 (01:02:07):
And John's going to plead disagree with me. And now
I kind of withdraw that whole analogy.

Speaker 7 (01:02:12):
But you want to say, I do want to hear
stories about some of your faculty though.

Speaker 9 (01:02:15):
Now the thing I'm going to say is the one tenure.
I'm absolutely in favor of his professor's tenure.

Speaker 4 (01:02:20):
Now that I've got it.

Speaker 6 (01:02:25):
Have a race here to see how many questions that
we can get. So this gentleman had his hands up.

Speaker 13 (01:02:30):
Thank you so much for this. Could you so this
whole business towards the beginning of your back and forth
about the ninety percent? Are you saying that at Noah
ninety percent of the political donations that came from its
employees went to Democratic political candidates? Is that what you're saying?

Speaker 9 (01:02:52):
Ninety two by dollar amount? Ninety But that's I mean,
I'm using a database I could have discounted. You know,
I'd love to see better. I've seen other published studies
of other other agents.

Speaker 6 (01:03:03):
So just clear, it's not that ninety percent of Noah employees.
It's only we're taking only the employees who gave money.

Speaker 4 (01:03:09):
That's right.

Speaker 9 (01:03:10):
So that's actually Chris's rejoinder to that is only a
small people give money. Small section of people give money,
and therefore and they might tilt democratic.

Speaker 13 (01:03:19):
I gess, so, Professor Walker, are you saying then your
retort is that those who tend to vote Democrat are
on average more generous towards political campaigns.

Speaker 4 (01:03:29):
Is that your retort?

Speaker 13 (01:03:30):
Can I jump because that's a really interesting thing if
that's If that's arguably true.

Speaker 6 (01:03:36):
So, as a former political operative on the panel, the
percentage of Americans who give money to any political candidate
are very small, It's under two percent, and they tend
to be high activist types. So what you actually want
is the percentage of Noah employees who gave money at all.
I'm guessing it's going to be an incredibly small percentage.
Those are going to be activist types, and as it

(01:03:57):
turns out, the activist types who then seek the government
work are going to be more likely to be democratic
activist types. And I can point to other places where
the activists two percent are going to be Republican activist types.
And I think this went to your point that we
should maybe look into why those activist types are drawn
to government service when conservatives aren't.

Speaker 11 (01:04:17):
But the real question is what percentage of Noah.

Speaker 6 (01:04:19):
Employees that includes, And it's going to be a relatively
small one, Thank you so much, though nevertheless interesting.

Speaker 11 (01:04:31):
Can we go to the front row here? Sorry, yeah,
we've hold on, We've got a mike.

Speaker 14 (01:04:39):
I wonder John, if some of your numbers, I mean,
the really shocking numbers would be the number of people
had voted for the Democrats as opposed to Republicans, and
the presidential election Ian DC is like way over ninety
percent for the Democrats. But I wonder to what extent
the changing nature of regulation is responsible for some of
this plus self selection effects. So up through the New Deal,

(01:04:59):
regular was pretty much economic regulation. You know, if you
wanted to go to work for the Federal Power Commission,
you were going to be licensing power dams. And maybe
the type of people that would be attracted to that
work would be not necessarily all progressive lefties. They might
be interested in a career in the dam business or
something like that. But once you get, you know, the

(01:05:20):
Civil Rights Acts passed, the environmental Acts passed, and so
on and so forth, you've got a whole different type
of regulation. Who's going to be attracted to work for
the EPA, I mean, it's going to be people that
are sort of interested in protecting nature and the environment
and so forth. Good example is the Interior Department, you know,
the Interior Department. The Fish and Wildlife division of the
Interior Apartment used to be focused on, you know, increasing

(01:05:41):
yields of fish and streams so that people could catch them.
Now they are supposed to enforce the Endangerous Species Act,
you know. And who's going to go to work for
the Fish and Wildlife Service once they're in charge of
administering the Dangerous Species Act. It's going to be a
bunch of progressives that are interested in saving species and
so forth. So maybe some of this tilted. What we
see is a function of the type of laws that

(01:06:02):
were passed starting in the sixties that were oriented to
different types of externality problems or had different idealistic valances,
rather than the economic regulation that preceded it.

Speaker 9 (01:06:14):
I agree with you, but I do think that that actually,
if you take Professor Walker's view, you should want to
have some balance in the agency. You should want to
have some people who say, yes, maybe Congress has passed
this Endangered Species Act, but let's not go overboard. You
want that voice in the machine.

Speaker 4 (01:06:34):
You don't want to go.

Speaker 9 (01:06:35):
Through the machine only in the Republican administrations and people
fighting the regulations when the Republican administration says this is
too far. You want people in the Democratic administration saying
this is too far too And our civil service, our
meritocratic civil service, supposedly might have this huge bias and

(01:06:56):
we have to confront how to deal with them.

Speaker 11 (01:06:58):
Isn't that an argument that comes though? Should be doing that.

Speaker 6 (01:07:01):
They should be the ones changing the regulations. They should
be the ones changing the civil service protection if they
think it's a problem, since they're the politically accountable ones
that are supposed to be responding to this problem.

Speaker 9 (01:07:10):
Not if not if it if the civil service protections
are hamstringing the effectiveness of the of the executive branch.

Speaker 11 (01:07:20):
My my man here in the blue tie. Yeah you yeah,
that guy?

Speaker 8 (01:07:26):
Is this a plant? John?

Speaker 15 (01:07:31):
Awesome? Thank you guys so very much for all of this.
I have a question for Professor Walker about a merit.

Speaker 11 (01:07:37):
Are you from Texas?

Speaker 4 (01:07:38):
I'm from Virginia.

Speaker 11 (01:07:40):
It was a plant.

Speaker 15 (01:07:41):
I'm sorry, sorry, sorry, So let me let me let's
start over.

Speaker 4 (01:07:46):
I forgot where I was.

Speaker 15 (01:07:47):
So I am a recovering economist. I look forward to
being a recovering lawyer. And and so I I have
a question about the merits that you talk about, because
as an economist, you know, I guess the merit would
be we do time series forecast really really well. The
problem there is, like Professor Duffy, I can choose to
miscount my data. I mean, maybe it's ninety two percent
here is. And so I'm concerned with what it means

(01:08:09):
that the decisions that these individuals make matter, right, you said,
they don't make the decisions that matter. So even if
we say that arth Rex is holding, it actually controls
the actions of these individuals, the subsequent actions that are
being made by these heads of these agencies are going
to be biased by the small decisions like miscounting data

(01:08:30):
from people like me in the economics department. So what
do you say about these individuals that can bias the
beginning product that actually comes to the agency heads at
the end.

Speaker 7 (01:08:41):
Yeah, I mean I think that's why it's so important
in the Administry Procedure Act that when it comes to
rule making, that we require agencies to disclose all the
data on which.

Speaker 8 (01:08:49):
They rely and that we allow for public examination.

Speaker 7 (01:08:51):
I could tell you it'd be a lot worse, my guess,
as if we hired those economists based on politics than
if we had tried to have some sort of merit
based system to make sure that they're not hired based
on partisan kind of affiliation. So I mean, but but yeah,
I think I think the public transparency aspects are one
way to get around that. And in the immunication context
that's actually harder. We don't have economists working on ammunications

(01:09:13):
the same way. But those are some of the things
I think in the education context we have to think
about a little more carefully is how is the record created?
But that public knows. The commet process is just critical
to provide a check on on what the agency does,
both the political and the civil service.

Speaker 9 (01:09:28):
I think that what the point is though, that even
on the might on the smallest data points, I think
you should worry about political slants. And I take that
for both directions. So take something like inflation data, you
know when you're saying that in the Bidy administration, now
inflation isn't that bad.

Speaker 4 (01:09:44):
Look it's going down a little bit.

Speaker 9 (01:09:46):
I got nervous, and frankly, if this administration it goes
down a lot, you know, and and and there has
been some purges of of the of of the people.

Speaker 4 (01:09:56):
Then I'd worry even more.

Speaker 9 (01:09:58):
And I think that I would be very comfortable if
you had a panel of ten experts and who were
politically balanced and they said, you know, we agree on
this unanimously.

Speaker 7 (01:10:10):
And we have those They're called advisory committees commissions, right,
I mean agencies. Congress has created another tool to check
how the agency is functioning by having balance advisory commissions.

Speaker 9 (01:10:20):
That they're not, they're not the workforce.

Speaker 7 (01:10:23):
They I mean, they have a tremendous effect though on
how I'm checking how agencies are functioning, and it's not.
Congress already has your idea, and they work quite well
when they're balanced and their professional in their.

Speaker 9 (01:10:35):
Even when the workforce counting the data is totally unbalanced.

Speaker 8 (01:10:39):
No, I'm not saying that I didn't want. I don't
mean to buy into your hypo. I don't think that's how,
but but I do think that, like, if what you're.

Speaker 7 (01:10:46):
Worried about is having a balanced group of individuals overseeing
the agency, does like Congress already solved that problem. I
think they can work a little bit better than they do,
and lots of though.

Speaker 4 (01:10:54):
That's how I think the.

Speaker 6 (01:10:55):
Question we are what's standing between you and those drink
tickets going to good use? I do have a quick question, though,
for a show of hands, not which way or who
believes what, but who here had their mind changed on
any small issue or large issue tonight in this debate?
Raise your hand if you changed your mind on anything
A lot that thrills my heart. And with that no,

(01:11:23):
absolutely not all right. I hope this was a wonderful
kickoff to what will be an incredible weekend for everyone here.

Speaker 11 (01:11:30):
Please enjoy