Panel I: How We Got Here – The Supreme Court’s “Anti-Administrativist” Turn? - FedSoc Events

Episode Transcript
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Speaker 1 (00:03):
All right, good evening everyone, and thank you all for
being here today. My name is Alfred Kalentar, one of
the panel coordinators for this symposium. This evening's panel is
called How We Got Here? The Supreme Court's Anti Administrative
is Turn. A lot has happened recently in the world
of administrative law, and the field looks quite different than
it once did. From Chevron to in Low Perbrite to

(00:24):
the non delegation and the major Questions doctrines. This panel
will explore the interplay between the Supreme Court and Congress
in shaping the dynamics of modern administrative law and provide
insight into where administrative law is headed and potential legal
and policyhoform directions. Our moderator for tonight's panel is the
Honorable Chad Railer of the US Court of Appeals for
the Sixth Circuit. He sits in Columbus, Ohio, despite being

(00:47):
a double Wolverine, having received both his BA and a
jd from the univer Versity of Michigan, where he is
also a lecturer and teaches a class in presidential Powers.
After graduating, he clerked for Judge Allen Norris on the
Sixth Circuit and practiced law at Jones Day, where he
spent ten years as a partner arguing cases before the
Supreme Court of Ohio, the US Court of Appeals for

(01:08):
the Sixth Circuit, and the US Supreme Court. Judge Radler
served as Acting Assistant Attorney General for the Civil Division
of the DOJ from twenty seventeen to twenty nineteen and
was confirmed to serve as a judge on the Sixth
Circuit in twenty nineteen and now on to our panelists.
Professor Jennifer Mascott graduated from the George Washington University Law

(01:28):
School and as a former law clerk to then Judge
Brett Kavanaugh on the d C Circuit and to Justice
Clarence Thomas on the U Supreme Court. After teaching at
the Antonin Scullia Law School of George Mason University, she
joined the faculty of Catholic University of America Columbus School
of Law, where she serves as founding Director of the
Separation of Powers Institute. From twenty nineteen through twenty twenty one,

(01:49):
Professor Mascot served in the DOJ as a Deputy Assistant
Attorney General in the Office of Legal Council and then
as an Associate Deputy Attorney General. She has also been
nominated by President Trump to be General Counsel of the
US Department of Education. She writes in the areas of
administrative and constitutional law, theories of constitutional and statutory interpretation,
and the constitutional structural separation of powers. Professor Niani Mendelssohn

(02:14):
is the Joseph L. Sacks Collegiate Professor of Law at
the University of Michigan. She received her j d from
Yale University and clerked for Judge Pierre Leval on the
Southern District of New York and for Judge John Walker
Junior on the Second Circuit. Before joining the Michigan Law faculty,
Professor Mendelssohn served for several years as an attorney with
the DOJ's Environment and a Natural Resources Division. She teaches

(02:36):
and conducts research in the areas of administrative law, environmental law,
statutory interpretation, and the legislative process. Professor Thomas Merrill is
the Charles Evans Hughes Professor of Law at Columbia Law School.
He received this j d from the University of Chicago
Law School and clerk for Chief Judge David Basilon on
the d C Circuit and for Justice Harry Blackman on

(02:56):
the US Supreme Court. Professor Merrill was a Deputy Soloie
General of the dj and an associate at Sidney Austin,
where he also served as council for more than twenty years.
Some of his main areas of specialty include administrative law, legislation,
public policy, and judicial review of agency action. General Aaron
Neilson is a law professor at BYU Law who is

(03:16):
on leave to serve as Solicitator General of Texas Very Nice.
He received his jd from Harvard Law School and as
an LM from the University of Cambridge. He previously was
a partner at Kirkland and Ellis and clerked for Judge
Jerry Smith on the Fifth Circuit, Judge Janice Rogers Brown
on the d C Circuit, and Justice Samuel Alito on
the US Supreme Court. Professor Jeffrey Podginowski is the Blchiney

(03:41):
Family Professor of Law Notre Dame Law School, where he
has served on the faculty since twenty ten. He received
his jd from Harvard Law School, after which he clerked
for then Judge John Roberts on the d C Circuit
and then for Justice Anthony Kennedy on the U. S.
Supreme Court. Before joining the faculty Notre Dame Law School,
Professor Progenowski practiced law with Lathman and Watkins in Washington, DC.
His main areas of research are administrative law, general jurisprudence,

(04:05):
legal interpretation, private law theory, and torts. There will be
time for questions at the end, so please keep any
questions you have in mind that may arise during the panel.
And now I will turn over the floor to this
evening's moderator, Judge Rayler.

Speaker 2 (04:22):
Perry. Thank you, Alfred. So those of you who are
here for the last panel, and we're also here for
the recording of the Advisory Opinions podcast, we'll be disappointed
to learn this is the first panel that Sarah Isger
is not moderating, so you're stuck with me. But I
think we're going to a great, great discussion over the
next hour and a half. Welcome everyone, Dan Arbor, So
this is my alma mater. I took secure transactions in

(04:45):
this room about thirty years ago. You're in the best
college town in America. I'm going to say, with judicial
impartiality aside, you're the best law school in America, and
I think you're in store for a terrific weekend. So
congratulations to the chapter here at Michigan Law School for
putting on this event. This is a terrific event. You've
done a wonderful, wonderful job, and we're all in store

(05:07):
for a great weekend. As I mentioned, thank you to
Professor Walker specifically for putting together the curriculum for this weekend,
and thank you to all the students for being here. Yeah,
there's not much of a hearty round of applause yourself.
I feel like we should do it again. But look,
there's a lot of things you could have been doing

(05:27):
this weekend. It could certainly been in a warmer place
than Michigan in March. But you're all here one to learn,
but two I hope sort of looking forward, you know
you'll make great connections through this conference and through other programs.
In twenty years, will be counting all of you to
be sitting up here and guiding us through the legal
issues of the day. So congratulations on starting that journey.

(05:48):
We look forward to seeing your success in the coming years.
So our topic today is administrative law and the Supreme Court.
We're going to sort of survey recent decisions from this
pre court, some issues that have been resolved to some extents,
some issues that are currently pending. It's really a renaissance
period for ad ministry of law. I think we'd all
agree on that. To sort of paraphrase Justice Kagan, in

(06:12):
a sense, we are all administrative law scholars. Now. It's
a topic that's been hard to avoid but also incredibly interesting.
We've had some groundbreaking decisions from the Supreme Court, we
have our cases pending there, and as I mentioned, we
have a really wonderful panel to work through some of
those matters. So the format for our discussion is going

(06:33):
to be maybe a little different than how we run
some Federal Society programs. We're going to have one speaker
speak for about five to seven minutes on a specific topic,
and then everyone else will have about ten minutes or
so for everyone else to join in on the conversation.
Then we'll move to another topic. We're going to sort
of start with some issues that the Supreme Court has decided,
then moved to maybe some issues that are a little
less settled at the Court. And Professor Merrilan, I think

(06:55):
you're going to start us off with a case some
of you may heard of, lob We're Bright and its implications.

Speaker 3 (07:03):
Thank you, Judge.

Speaker 4 (07:04):
So the Supreme Court does appear to be remaking administrative law,
and in no instance more dramatically than in the Low
per Bright Enterprises Versus Marimondo decision, which overruled the Chevron doctrine.
To describe Chevron as a mainstay of administrative law would
be a gross understatement. The case was by far the

(07:26):
most widely cited, I think one counts that had been
cited by eighteen thousand federal courts, and it was applied
by the Supreme Court itself in over one hundred cases.
The two step Chevron approach to agency interpretations of law
was applied by the Supreme Court in over one hundred cases.
So from the time of Chevron's decision in eighty four

(07:49):
up to the overruling of Chevron in twenty twenty four
in Low per Bright this was a kind of cornerstone
of administrative law, so quite a seismic change. The proximate
cause of the overruling of Chevron, I think is quite
easy to pinpoint. The proximate cause was Justice antonin Scalia's

(08:10):
untimely death in early twenty sixteen. And I say that
because Justice Scalia was by far the most fervent proponent
of Chevron on the Supreme Court throughout his entire tenure
sitting there. There's some small intimations that maybe he was
beginning to wonder about it before he died, but there
were just intimations. His replacement, Neil Gorsuch, was a fer

(08:35):
opponent of Chevron, And so once Justice Gorsuch was joined
by just Judge Kavanaugh, who was also a Chevron skeptic,
you had a majority of justices on the Court who'd
expressed at least some doubts about Chevron. So Chevron's demise
was at that point more or less I think inevitable.

(08:55):
So for the Federal Society, I think an interesting question
would be, why did us a Scalia, who was kind
of an icon of the conservative legal movement and of
certainly the Federalist society, Why was he so adamantly in
favor of the Chevron doctrine? Why was he such a
diehard supporter of Chevron throughout his career If you look

(09:17):
at his writings, his explanation, to the extent he gave
one really was that he liked Chevron because it was
rule like, and Chevron Justice Sclee, of course, was a
big proponent of rules rather than standards, and he thought
Chevron was certainly compared to the law that existed before.
Chevron was a relatively rule like doctrine. I don't think

(09:40):
it was myself. I think it was a sort of
the two step thing had a sort of rule like aspect.
But both steps, if you will, were very much open
ended standards. The first step was, you know, is the
agency is the statute ambiguous or clear? The second step was, well,
if it's ambiguous, it was the agency interpretation reasonable or
unreason Well, those are both really broad standards. And so

(10:03):
I have a little trouble thinking that Scalia, who understood
this very well, was really enamored of Sevron because of
its rule like qualities. The better explanation, or the only
other one I can really come up with, maybe my
panelists will have some better ideas, is that Scalia joined
the bench at a time when the central policy issue

(10:25):
involving regulation was really the trade off between the market
or market type mechanisms and command and control regulation, and
chev Scalia was what today our progressive friends would derisively
call a neoliberal. He liked the market and he liked
market mechanisms. He was the editor of Regulation magazine published

(10:48):
by the American Enterprise Institute before he went on the bench.
So I think Justice Scalia thought that this trend in
the seventies and eighties was a good one, and once
he got on the d C circuit, he looked around
in me he saw all these ancient lions from the
New Deal era who fervently believed in command and control
regulation and were dead set against deregulation. So I think

(11:12):
Justice Scalia saw the Chevron doctrine as a kind of
both symbolically and actually useful doctrine for trying to change
the locus of legal policy making from the courts, which
he thought were dominated by these troglodites in the d
C circuit, to agencies, which at least at that time

(11:32):
were seen as sort of forward thinking entities that were
promoting deregulation of the transportation sector, in some other sectors
like energy and also even in the environmental area. Chevron
was a perfect encapsulation of this, because in the che
Chevron case, the Supreme Court decided before Scleia I was

(11:55):
under the court overturned a decision by Ruth Bader Ginsburg
for the DC's Circuit that rejected the use of the
bubble policy by EPA, which was a sort of market
mechanism trying to make regulation more efficient anyway. So I
think that explains why Scalia sort of at a deeper
level like the Chevron doctor, and he thought it was

(12:16):
a way of disciplining willful judges, particularly DC Circuit judges
that were trying to prevent helpful block helpful changes in
regulatory policy. Times change, and by the time of the
second Obama administration a very different set of issues emerged.

(12:38):
This is a period you will recall when Obama announced
that even though he'd lost control of Congress and was
no longer able to get climate change regulations passed, he
was no longer able to get the DOCA program, the
Dreamers program enacted into law. He announced that he had
a pen and a phone and he would try to
achieve these through regulatory and so the Homeland Security Department

(13:02):
was sort of charged with promulgating a large scale amnesty
for certain classes of immigrants as a matter of regulation,
and the EPA, after the failure to enact climate legislation,
started manipulating the environmental statutes in order to eventually force
everybody to drive an electric car and to put coal

(13:24):
burning power plants out of business. And so I think
the conservative legal movement saw itself in a very different
climate than Scalia was in when he first started thinking
about these problems in the nineteen eighties, and they viewed
the Chevron doctrine, perhaps not entirely fairly. They thought it
was a sort of symbol of using the administrative state

(13:46):
as a vehicle for sort of enacting essentially legislation without
Congress buying into the legislative program. The president was sort
of naming himself the legislator in chief, and Chevron was
the vehicle by which the agencies were trying to put
these programs into effects. So I think the conservative jurists

(14:08):
and thinkers had a radically negative view of Chevron based
on this particular climate in which they found themselves. Okay,
so that's the amateur political science from me. In terms
of legal doctrine, Almost all the justices that had something
negative to say about Chevron had a different complaint. I

(14:29):
think for Chief Justice Roberts and probably for Justice Alito,
the big complaint was based on the case of City
of Arlington versus FCC, where Justice Scalia got five votes
for the proposition that Chevron should apply to determining the
scope of the agency's authority. In other words, if the
statute was ambiguous as to whether the agency had authority

(14:51):
or jurisdiction over something, that Chevron doctrine would be applied.
This sent Chief Justice Roberts, along with the Leedo and
Kennedy ballistic, this can't possibly be right, and I think
they were correct about that, And they dissented in that case,
and so this conservative movie splits. In twenty thirteen, in
the Arlington case, the other new justices had slightly different

(15:14):
takes on things, or in one case, an older judge,
Justice Thomas did an interesting flip flop and decided, after
having been a loyal Chevron proponent for many years, he
decided it was unconstitutional, either because it violated the Article
three powers of the federal courts or because it represented
a kind of unwarranted delegation of authority to agencies from

(15:34):
Congress without an adequate control. Justice gorsucht of joined Thomas
in that constitutional critique. He also emphasized certain populous themes.
Interestingly enough, He thought that Chevron was an example of
bias against ordinary people, as he called them, who came
up against the federal bureaucracy. The federal bureaucracy would always

(15:56):
win because of Chevron, and he thought this was a
violation of basic principles of equality. Justice Kavanaugh wrote a
Larview article saying that Chevron was lousy because it was
based on this key step. Step one was based on
ambiguity versus clarity, and as he analyzed the situation, every
judge has a different notion of what ambiguity means, and

(16:18):
so Chevron was hopelessly unpredictable for that reason. Once Loper
Bride was before the court, Chief Justice Roberts sort of
drew from all these themes to one degree or another,
except for the populace theme of justice course such, but
he packaged it in the form of a critique that

(16:40):
Chevron violates the Administrative Procedure Act. So the key analytical
aspects of Loper Bride are to figure out what sort
of judicial review was permitted before nineteen forty six when
the APA was passed. Then to establish through legislative history
of all things that the APA was intended to ratify

(17:03):
or adopt the approach to judicial review prior to nineteen
forty six, and the conclusion was that since there was
nothing like Chevron before nineteen forty six, Chevron violates the APA.
So that's the key analytics about the case. Interestingly enough, though,
in the course of describing the pre APA case law,

(17:28):
Justice Roberts sets forth three ways in which courts in
the future might draw upon agency interpretations in their own work.
The key proposition he comes up with is that judges
always have to exercise independent judgment. They always have to
look for the best answer to every statutory interpretation question.

(17:49):
But he says there are three ways in which you
can utilize the agency's views in a constructive sort of
way to decide what the best meaning of the statute is.
One was the sort of ratified these older cases that
say that if the agency's interpretation is long standing and consistent,
or if it was contemporaneous with the enactment of the statute,
the courts can draw upon that of giving extra weight

(18:11):
to the agency's views. The second was the venerable Skidmore case,
which had always been limited to situations where the agencies
did not have a legal authority decisional authority, but Roberts
sort of transforms it into a general kind of canon
of interpretation, saying that if the agency's interpretation is persuasive
because it's based on expertise, experience, thorough reasoning, and so forth,

(18:34):
that the courts can also drop up on skidmore. And finally,
and perhaps most interestingly, he says that if Congress has
signaled either expressly, explicitly or implicitly that the Congress expects
the agency to have a role in interpreting the statute,
that the courts should give weight to agencies under those circumstances.

(18:55):
Justice Kagan wrote a dissent in as you usual, Justice
Kagan includes accuse the majority of a power grab. Actually
she didn't actually use the phrase. I just looked at
the opinion. She said it was grasping for power. But anyway,
the same idea. So Justice Kagan says, we're grasping for power.
What she thought was happening here was that the Court

(19:18):
was taking away interpretive authority from the agencies and transferring
it to itself. So this was a form of judicial
aggrandizement at the expense of the Article two agencies. I
think if you read the opinion. It doesn't the majority
doesn't try to justify itself in those terms at all.
Maybe understandably the opinion itself, I think is it fitting

(19:42):
and keeping with the theme of this conference, is trying
to resurrect a notion of legislative supremacy the various, particularly
this notion that the judges are supposed to exercise independent
judgment and always come up with the best interpretation of
the statute. I think that that is grounded in the
understanding that the judges, if they're doing their job correctly,

(20:04):
are going to try to figure out what the original
public meaning of the statute was at the time it
was enacted, and that's what Congress really wanted the statute
to meet. And so if judges will interpret statutes that way,
they're going to be reinforcing the power of Congress, rather
than deferring to administrative interpretations that may deviate quite a
bit from what Congress anticipated originally. Also, I think this

(20:25):
theme about Congress being empowered to signal whether it wants
the agency to have an interpreting rule or wants the
courts to perform as a default purely interpreted role, is
also a signal that the Court is interested in empowering
Congress to be in charge of how the statutory interpretation
enterprise is supposed to be conducted. So I think that,

(20:46):
if you take them at their word, what was motivating
the court in Low per Bright was really a power shift,
But it was an attempt to shift power in terms
of making policy away from the executive branch to the
Article one legislative branch. Now, maybe practically speaking this has
the effect of empowering the judiciary because of Congress's failure

(21:10):
to do much legislating these days. So from a realistic perspective,
maybe it does empower the judiciary. But the vision of
the case, the division of the decision, I think, is
one in which we're trying to get back to a
world in which Congress is the primary policy maker, and

(21:30):
in that sense, to reinforce, at least in part, the
original structure of the Constitution that was ratified by the Framers.

Speaker 2 (21:37):
Great, thank you for that summary. I don't want to
necessarily call anybody, but we can have a five to
ten minute sort of fallow up discussion across the panelists.
Mostly I saw Professor Mendelson taking the most notes. So
maybe I'll start with you. If you want to.

Speaker 5 (21:51):
Begin sure, so you know, thank you for that super
interesting analysis of the case. I just add one one
put comment at this point. I mean, I think even
if the kind of vision of Low or Bright is
to shift more power to Congress by honoring the statutes,

(22:13):
we do have to worry that in practice it's not
going to end up functioning that way.

Speaker 6 (22:16):
And in a couple of ways.

Speaker 5 (22:18):
One is the courts focus on the original public meaning
of the statute and its indication that lower courts should
conduct analysis in that way I think is going to
result in more frozen statutes, even when Congress is deliberately
chosen you know, capacious language. So, for example, in the
Federal Food, Drug and Cosmetic Act, Congress wanted the FDA

(22:39):
to regulate drugs.

Speaker 6 (22:40):
I think we all agree that whatever we might think.

Speaker 5 (22:43):
About the government, generally that having safe drugs available to
the public is a valuable function. And of course, in
nineteen thirty eight, we didn't have antihistamines and we didn't
have you know, immunotherapy treatments for cancer, and so one
concern about a kind of a frozen the kind of
frozen approach that court is signaling might be the best
approach in Loberbright is that it won't really honor a

(23:04):
broader intent by Congress in using broad words, that these
words have new applications over time. I also think there's
a concern about Loberbright, that that even if Chevron was unpredictable,
that in application, Loberbright is going to be quite unpredictable.
The Skidmore standard was never easy to predict how it

(23:25):
would play out in practice.

Speaker 6 (23:26):
And the Court seems to be doubling down on Skidmore.

Speaker 5 (23:28):
So I think these are both things to watch for
as we move forward and as lower pride gets supplied
in the lower courts.

Speaker 2 (23:35):
Anyone else.

Speaker 3 (23:39):
I'll hop in.

Speaker 7 (23:41):
So thank you, Tom, and I learned tons about Chevron
from reading your work, and this is this is a
great presentation. A couple of thoughts, kind of my own
thoughts on the kind of the JV political science of
why things changed. And I think, you know, there's always
going to be multiple vectors explain any any particular event,

(24:02):
but other other things to look at, possibly or at
least that kind of complicates the political picture. Is you
nevertheless had justices looking to overturn Chevron, and the people
the sour that the you know, the souring turn definitely
occurred with Obama and the pen, but it did continue
when Donald Trump had the pen and the telephone as well.

(24:26):
And if if it's if it's if it's a kind
of meta politics is kind of a long game metapolitics,
which with with kind of not clear political valance, because
if we're going to be kind of if we're kind
of rooting for, you know, certain regulatory sides, you think
that there would be maybe a little bit more flexibility

(24:46):
on on on whether to get rid of Chevron under
under under under competing regimes. And I've been thinking about
for a while about other possible or additional reasons why
it changed. And and this is probably just kind of
that occupational hazard of being a theorist, but I think,
like I think changes in interpretive theory had a lot

(25:06):
to do with it.

Speaker 8 (25:08):
Uh.

Speaker 7 (25:08):
I guess a couple a couple two kind of changes
in thinking about textualism and formalism I think went on
first earlier on you know, there was an earlier idea
that you know, Chevron would kind of serve as a
as a non delegation proxy that if you know, if
we if we don't defer to the agencies, Congress will

(25:29):
do more and and and say things specifically because they'd rather,
you know, they'd rather not kind of share power with
with the president and that and that just yeah, oh yeah,
over yeah and and so well, you know, Chevron would
kind of well, Chevron could kind of serve as a
not as a as a as a kind of non
delegation doctrine in the sense of like it would incentivize

(25:51):
Congress to speak clearly because otherwise you'd be giving power
to the president. And that just didn't happen, right, uh,
at least kind of that wasn't born out. And I
think another part of it is kind of the change
in way I think textualism and formalism thought about itself.
I think if you kind of read the early eighties
or you know, the eighties early nineties scholarship about textualism,

(26:14):
there's much more of a legal realist cast to it
that when when the law runs out, it's just kind
of policy choice, and there's kind of this kind of
a closer kind of on off, like they're citing Max
rate In and all the legal realists, and there's there's
a sense of like, yes, there, you know, when law
runs out, it's policy you've got Judge Silberman writing his
famous paper about the line between law and policy and
kind of embracing that when the law runs out, it's

(26:36):
it's political choice. But as interpret interpreted formalism and textualism
developed over the past ten or fifteen years, you know,
for better or worse, the you know, the form that
kind of formalism doesn't tend to think, at least on
questions of law, that things run out, that there are
better or worse interpretations, at least when we're doing kind

(26:57):
of law as opposed to policy and kind of believing
that we can draw lines between law and legal lawyers
questions and policy questions.

Speaker 3 (27:07):
You can say, look, if.

Speaker 7 (27:08):
We're in Chevron, if we're an interpretive you know, legal
question world, we can do go at what the best
answer is, and what I think the best answer is
if I'm a textualist, is you know, it's going to
whatever the canons are the tools spit out as opposed
to know which could be different than my kind of
policy preferences. But if we're kind of in a not
if we're kind of in an arbitrary, compricious world where

(27:28):
it's just like you know, reasonableness or in the public
anterest or something like that, there's no lawyers tools to
operate with, so we do arbitrary and compriciousness, and maybe
we'll be more willing to be deferential on that, for
depending within about the non delegation doctrine. But I do
think at least with I mean, there's an increasing faith
among some textualists, whether it's kind of naive or not,

(27:51):
that you can court a off questions of interpretation from
questions to policy. And then if you kind of run
through all the tools and the questions of legal interpretation,
there may not be one one right answer, but there
may be one that's better than the other. And what
you think is better than the other doesn't necessarily run
on what your policy preferences are. And that may be
a wrong way of thinking about legal interpretation. But if

(28:13):
you read, if you read kind of textualists in the
past ten or fifteen years, there's a more legalist turn
to it, and I think once you buy into that,
you're less likely to buy into the Chevron framework saying, look,
when I'm not sure, I'm just making choice. I'm just
making political choices within the space. And I think that
might have something to do with the shift as well.

Speaker 4 (28:34):
Can I respond to some of these points, Nina, I
agree that the unpredictability is going to go up. Oh,
I'm enough of a realist to think that's inevitable. So
the wrap against Chevron, as it's articulated lower Bride, is
that this ambiguity threshold is hopelessly difficult to pin down.

(28:59):
Different judges have different ideas about what ambiguity means. Well,
the Court has now turned over legal interpretation to every
district judge in the country, and so unless you somehow
magically think that they're all going to be on the
same textualist wavelength as the Supreme Court, there's going to
be a lot of discord. I agree with that. I

(29:24):
don't think there can be a simple political theory that
says that, you know, the justices are going to support
whoever appointed them, who happens to be in power at
the time.

Speaker 3 (29:33):
It just doesn't work.

Speaker 4 (29:35):
Chevron kept cruising right along with the Republican majority Supreme
Court through the Clinton administration, and as you point out,
it keeps right and cruising along at least and then
falls apart during the Trump administration. So a crude theory
would be that once Trump gets elected the first time around,
the justices would all revert to being loyal Chevron advocates.

(29:57):
But it didn't happen on interpretive theory. I think there's
somebody what you're saying. But on the other hand, Justice
Scalia was a kind of formalist. He believed in the textualism,
he believed in rules and all that sort of stuff
and bright line black and white answers. And he was
the advocate for Chevron. He was the number one cheerleader.

(30:18):
So I don't think there's a clear contradiction between interpretive
theory and Chevron. There made me some tension. I mean,
people like Gorsuch and so forth may have had some
interactive effect the interpretive thing and the hostility to Chevron,
but not for Sclia.

Speaker 2 (30:34):
Let me jump in for a second to make sure
we all this could be like a game of jeopardy
where we just hit the light first and I have
the winner. But Professor Mascott, I think you wanted to
say a couple of things.

Speaker 9 (30:42):
Oh but I know, I well, thank you. I just
was going to say it is true obviously that Chevron
had some I guess virtues of through the deference, allowing
there to be an easier decision in some ways. But
I think the methodology itself actually had a fair amount
of uncertainty at times as well, which is one reason

(31:02):
it took you up more than one hundred pages or
so in a lot of ad log case books, because
the Court itself, in some ways I think had tension
in applying it. Right, Is it a sufficiently formal agency
document or form of action for us to apply Chevron?
Is it actually a statute that the agency is jurisdiction
over or has power under, or multiple agencies interpreting it?

(31:24):
And then how to step one work? I also like
Professor Merrill's point it actually is a striking that the
justices first started really writing serious questions about Chevron in
twenty fifteen during the Obama years, and then stuck with
it all the way through at the Trump administration, and
then finally found it and consisted with the APA during

(31:45):
the Biden administration. The one final thing is, and I
think this has come up in all the comments, but
that it's easy when you just hear the top level
holding of Lope or Bright to think agencies don't get
difference anymore, and as a lot of the common are
sort of hinting at Actually there's still a lot of
difference in the policy space. It's just a matter of

(32:06):
drawing the line between where the law runs out and
where agencies have policy discretion. So it'll look a lot different,
and I'll be curious to see over the years what
work litigants asks the Supreme Court to do now on
operationalizing what policy discretion is supposed to look like. So, essentially,
under the APA, once the Court tells us what the
legal standard is, which might be broad. It might say,

(32:27):
agency make the air safe or agency lower mercury levels.
And then what's that supposed to look like? So the
APA says, just find it unlawful if it's arbitrary, capricious,
and so thinking through a little bit more, how tough
that standard should or shouldn't be, what kind of evidence
the agency has to show. There aren't a ton of

(32:49):
clear rules of the road on that right now, and
we'll see if courts are called in more on that,
if the Supreme Court has to weigh in in future years.

Speaker 2 (33:01):
Okay, why don't we move on to our next topic,
which has also been treated by the courts, sometimes very expressly,
sometimes less so. And that's major Questions Doctrine, Professor Pochanowski,
I think you're going to take the lead here.

Speaker 3 (33:14):
Thank you, judge.

Speaker 7 (33:16):
So I mean, first, I agree with Professor Merrill that
I don't think Chevron is.

Speaker 3 (33:23):
Don't worry, this is about major questions. I'm not just
gonna take up my time.

Speaker 7 (33:27):
I do agree with them that I think chevron is
more about understanding what the judicial role is in the
nature of interpretation as a kind of bolstering the legislature.
I think it's more an idea about what what what
the judicial rule, what the judicial role is, as opposed
to a way of kind of empowering Congress. So I
agree with Professor Mandelson on that as well. This is
ostensibly one whether it works or not, this is one

(33:49):
doctrine that I think is you know, directly geared at
trying to you know, power, you know, supercharge the impetuous wartechs.
That's the theme of our of our conference here and
and and the and it's called the major Questions doctrine.
And the the gist of the Major Questions Doctrine that

(34:11):
what we're calling it now is the basic insight is
if it looks like an agency is trying to do
something really really big with a provision that maybe in
isolation or maybe even kind of on its own, seems
to allow it to do that. But if you look
at the broader context, just like there might there may
be a slight misfit for that, there's going to be

(34:32):
some discomfort about that. That One of one of the
kind of the the impulse was Jessice Scalia and the
MCI cases. Congress doesn't tend to hide elephants in mouseholes,
right If if there's kind of this ancillary provision which
is kind of vague or ambiguous, and all of a
sudden boom, the agency has.

Speaker 3 (34:49):
A whole bunch of power.

Speaker 7 (34:52):
The courts are going to tend to look askance at that,
and there's there's a there's a common sense notion to that,
and the question is how far, how far do we
take it, and how do we operation it right?

Speaker 3 (35:02):
And so for so one of the earlier, early kind.

Speaker 7 (35:07):
Of important cases about that goes to the Pure Food
and Drug Act right where you had uh. It defines
a drug as a article other than food intended to
affect the structure or any function of the body. And
the Clinton FDA wanted to regulate cigarettes under under the FDA,
and nicotine is an article other than food intended to

(35:27):
affect the structure or any function of the body. I
mean that seems you know, tenable. You know it does.
The cigarette companies are certainly intending it to affect the
structure and function of your body because they wanted you
to buy more cigarettes, right and so, but if you
if you so, if you look at an isolation, you've
had a pretty good argument that that the FDA is

(35:49):
the power to regulate tobacco. And this this case came
up when Chevron was was still existing, and the court
looked at the you know that not only that provision,
but the broader structure of the Act, other tobacco legislation,
the unique political history of tobacco, and decided and said,
notwithstanding this kind of individual provision, we think the broader

(36:11):
structure of the Act and the Code as a whole
suggests that Congress did not want the FDA to regulate tobacco.
And as an almost as an afterthought, they said, you know,
and we are not going to give Chevron difference on
this matter, because we don't think it's sensible to think
that Congress would delegate ay interpretive authority to agencies on

(36:34):
major questions like this that they're going to do it,
we'd expect them to speak a little bit more clearly.

Speaker 3 (36:39):
And so cases like this.

Speaker 7 (36:41):
Trundled along for a while, and for a while, the
major questions doctrine before it was kind of formulated is
that was essentially kind of a Chevron escape patch. Whether
we're deciding whether Chevron applies or whether if it applies,
were at step one, the agency loses because there's a
major question and it's not plausible. A. The Court doesn't
think it's plausible to think the agency has this power
a fortiore, we don't think Congress delegated the authority to

(37:02):
kind of make that decision.

Speaker 3 (37:03):
Right.

Speaker 7 (37:04):
And then, as as Professor Merrell said, Chevron died. And
but the major question doctrine lives and is arguably or
not arguably is certainly stronger right. And so the question
is what kind of what kind of canon of interpretation
is is it? And there's and there's disagreement about this,

(37:25):
I think, and I think the cases can be read
in a number of different ways.

Speaker 3 (37:30):
One question is one.

Speaker 7 (37:31):
Formulation, and I think I think Justice Alito and Justice
Justice Gorse, it's like to frame it this way. It
is it's something like a clear statement rule. So if
you remember from your statute or interpretation or leg red classes,
there's some things where Congress some places where Congress has
to speak clearly to to reach a certain result. So
retroactive application of civil statutes or extra territorial application of statutes,

(37:52):
there's an imply you can read it on its face
and looks like it should be applied extra territorially or
applied abroad, but there's an implied limitation unless Congress speaks
clearly that we wanted applied abroad or we wanted applied retroactively.
If the if the Major Questions doctrine is like that,
it's a very powerful uh, it's a very powerful canon.

(38:15):
So if Congress wants to do something big, they got
to speak clearly about it and with with with particularity.

Speaker 2 (38:21):
Right.

Speaker 3 (38:22):
That's one way of one way of understanding what the
Major Questions doctrine is.

Speaker 7 (38:27):
Another maybe something is kind of an ambiguity or type
vagueness or ambiguity or vauneness kind of tie breaker, maybe
something like the rule of lenity. Right, if it's if
the statue is not otherwise clear, you know, if it's not.
If it's a major question, we're going to err on
the side of saying Congress, you know, hasn't delegated the
agency of this power.

Speaker 3 (38:47):
A third way of understanding and justice.

Speaker 7 (38:49):
Barrett I think tried to in her her concurrence in
the Nebraska versus Biden's student loans case, which may or
may not, you know, hit some people in this room powerfully. Uh,
that this is just an order. This is a way
of kind of understanding ordinary meaning. We don't think, you know,
it's it's the way language works. We don't do big

(39:10):
things through muffled hints, right, and so we're not This
is not a dice loading canon.

Speaker 2 (39:14):
Uh.

Speaker 7 (39:15):
This is not something that the rule of lenity. It's
just the way ordinary kind of language works. If Congress
is going to do something big, presumably they're going to
say it with a little bit more particularity as opposed
to in a an et cetera clause or in an ambiguity.

Speaker 2 (39:27):
Right.

Speaker 7 (39:29):
So there's debate about that, and then there's then there's
the deeper question. This is especially for for textual So
especially for textualists. I mean a lot of people who
who are non textualists, who are you know, big fans
of the administrative state, this is this this doctor is
an anathema, right, It hamstrings government in a way that's
really troublesome. And are you know, could you know undermine

(39:52):
actual with Congress Man to Congress in fact intended it's
but it's also challenging for for textualists, right because you
have to ask, what's the what's the justification for this
for this canon?

Speaker 3 (40:05):
Right? One justification could be and you get this a.

Speaker 7 (40:08):
Little bit from Justice Alito and Justice Courcious is it's
we're kind of protecting substantive non delegation values, right, And
if that's what's going on here, in the same way
that you know, we have substantive canon, normative canons about
extra territoriality or retroactivity, we might say, well, what gives
you the right to do that?

Speaker 3 (40:27):
Is this going to be too?

Speaker 7 (40:28):
Is this is this a specific kind of substantive canon
that Congress knows about and complan around, or is this
kind of this free wheeling thing that hey, I don't
like non delegation. I'm scared to enforce the non delegation doctrine,
so I'm just going to kind of do this thing.
Do you get to do that if you're a textualist
or are you starting to look like a purpose of this,
are starting to look like a dynamic interpreter. And I
think Justice Barrett was very sensitive to that in her

(40:49):
Nebraska concurrence.

Speaker 3 (40:51):
Her argument is like, look.

Speaker 7 (40:52):
This is a this is a way of kind of
you know, you understanding how ordinary meaning works. It's a
good estimator of how a reasonable reader of legal English
would understand these terms. And that would be you know,
that would be a happier story if you're a textalist
who likes the likes Major Question doctrine. But there's gonna
be a challenge for that as well. So and and

(41:13):
and I don't think the challenge is necessarily a pro
or deregulatory valance, because you can imagine invoking the Major
Question doctrine to radically deregulatory provisions. You know, you can
read a vague statute to require cost benefit analysis if
every time you're going to do something and that's a big,

(41:34):
major change, the Major Questions Doctrine would not like that, right, So.

Speaker 3 (41:37):
You can imagine it. It often will.

Speaker 7 (41:39):
Practically break regulation, but it could break deregulation too. But
it goes to the delegation versus non delegation. You have
a backdrop, You have a backdrop assumption that Congress doesn't
like to delegate.

Speaker 3 (41:51):
And that may be true or that may not be true.

Speaker 7 (41:54):
And then the question is is that a reasonable estimation
of original meaning or legislative intent to assume that Congress
doesn't want to doesn't want to delegate. We may not
want them to delegate, We may want the imperious vortex
to do more things, but sometimes Congress might. And so
the question is is that presumption kind of across the

(42:15):
board a good estimation of what original meeting is?

Speaker 3 (42:18):
And I've talked enough, so I'll stop.

Speaker 2 (42:21):
Great any reactions.

Speaker 4 (42:22):
Sure, I'm going to go out on a limb and
predict that the Major Questions doctrine is dead.

Speaker 10 (42:28):
It's not dead, it is dead.

Speaker 4 (42:32):
It's dead because the Supreme Court can do anything that
wanted to do under the Major Questions doctrine under lower Bright,
using independent judgment about the meaning of statutes and invoking
these canons against surprising and deviant agency interpretations. And also
the Major Questions doctrine, if you take seriously the theory

(42:54):
of Loper Bright, maybe we shouldn't. It's a Robert's opinion
after all, But the theory is that, you know, the
courts can't do anything that wasn't done before nineteen forty six.
And you can scan the entire jurisprudence before nineteen forty
six and you won't find anything like the major questions doctrine.
So the major questions doctrine violates the central legal theory

(43:14):
of the low propride opinion.

Speaker 2 (43:16):
I think we need to hear from General Nielsen.

Speaker 11 (43:19):
Yeah, so I'm going to speak as Professor Nilson generally,
but as General Nielsen, I have litigated major questions cases
very recently, as recently as Wednesday.

Speaker 10 (43:31):
In the Supreme Guard.

Speaker 11 (43:32):
So no, Like I used to be pretty skeptical of
the major questions doctrine when it first was emerging, because
I'm like, how can anybody possibly tell the difference between
a major and a non major question?

Speaker 10 (43:45):
And that seems like a real big problem for a doctrine.

Speaker 11 (43:48):
Then I started to teach civil procedure and I realized
we actually do this all the time. Remember where you
took all of your cases about international shoe and you
read all of the cases and you've got a body
of law.

Speaker 10 (43:58):
And then you could reine rules and kind of do
it that way.

Speaker 11 (44:02):
So look, I'm a believer now in the major questions doctrine,
you know, and I see cases where like you need
a Major Questions doctrone. Biden me Nebraska is a case
that just jumps off the page. We had one earlier,
I guess last year a follow on after they already
lost Biden Nebraska, they try to do it again for

(44:22):
four hundred and seventy five billion dollars. And I got
to argue with a four hundred and seventy five billion dollar
case to say, like, before you can spend half a
trillion dollars, I point to something clear in the statute
before you can do that. And I think that is
the kind of common sense that is driving the doctrine.

Speaker 5 (44:40):
Okay, So I'll just say a huge benefit of lower
Bright is that now we don't have to teach Chefron
step zero. For those of you take an administrative la
our legislation regulation, it's it's a terrible part of the
cheff Oon doctrine is Professor Mascatt was observing earlier. But
now we have to teach the major questions doctrine, which
I think is actually extreme unpredictable.

Speaker 6 (45:00):
We don't have we don't have.

Speaker 5 (45:02):
Objective criteria for significant, significant economic or a political impact.
I think one question we actually have to consider is
whether maybe at some point in the future, it will
turn out that significant economic impact becomes a question of fact.
And if that's true, you know, what is the Court
supposed to do with lower court rulings. I want to
make a second point, though, you know, this conference is

(45:23):
about Congress, and my concern with the Major Questions Doctrine
is for Congress, the MQD is a little bit of
a gotcha game for Congress. You know, as others have
already observed, these are cases where the text is capacious
enough to include the issue on the table, especially I
think for West Virginia versus EPA, when we're talking about
a system of emissions production that was the issue in

(45:44):
the case. The court conceded, Look, there's a textual basis
for this, but it still wouldn't read the statute to
cover the action, even though Congress could come back in
and uh and change the statute correct the understanding if
it turns out that the text.

Speaker 6 (45:59):
Was not actually what they had in mind.

Speaker 5 (46:01):
But the problem is that if you lose a major
questions doctrine case. Even if the broad language seem to
authorize the action, you've got to go back to Congress.
Congress has to legislate twice to get the outcome that
it wanted, and that's I think that's an overly heavy
burden on Congress, especially if what we want to do
is is revive congressional revive congressional deliberations and encourage them.

Speaker 2 (46:25):
Okay, we have a few more topics to cover. I
sort of like this dead or alive a theme. So
the first one under that heading, pressor Mendelson, you're going
to talk about the notion of independence, independent agencies, watchdogs
and the like.

Speaker 6 (46:43):
Okay, all right, well we'll see.

Speaker 5 (46:45):
So I haven't had a chance to say this yet,
but I am so delighted to be included in this
discussion this evening, and thank you to the Federalist Society
for inviting me. I promise to keep these remarks on
independence brief. So I'm actually not going to review the
kind of many Supreme Court opinions that have upheld independent
agency structures. Instead, will simply say, as everybody knows, that
the Court has taken a far more dubious view of

(47:06):
independent structures starting with the Peekaboo decision in twenty ten
and seal a law in twenty twenty dealing with the
Consumer Financial Protection Bureau. So what I want to instead
do is focus on where we're headed and where we
might be headed. So the nineteen thirty five ruling and
Humphrey's executor upholding multi member commission structures seems likely to
be revisited very soon. The case involving Kathy Harris, the

(47:32):
chair of the Merit Systems Protection Board, is coming up
through the courts, as well as the Gwynn Wilcox case
involving the National Labor Relations Board. There were district court
opinions rendered in both those in connection with both those
removals in the last week, and they're clearly going to
work up through the courts. The central challenge here when
we're talking about independence, at least that's a way I
want to talk about it this evening is four cause

(47:54):
removal restrictions. So our four cause removal restrictions acceptable to
provide a small measure of independence, or whether instead does
the constitution require the president to have plenary, you know,
at will removal authority for all these senior agency officials.
So I want to make two points about this. First
is the question of whether independence for officials is appropriate

(48:17):
is really a very nuanced question. We got some flavor
of this in the civil in the Civil service debate
earlier this evening, so it's a very nuanced question. The
second point is this is a question where Congress is
better equipped overall, you know, to weigh the concerns. So
on independence, you know, there's no dispute that there has
to be a core of presidential control, and there already is.

(48:38):
When we're talking about independence in the agencies, we're really
talking only about very moderate independence where we have it
at all. So every executive officer and employee is already
subject to supervision and firing even under a four cause
removal restriction. You know, any official that abuses or neglects
their authority can get fired. So what do we gain
from greater presidential control through at will removal. We get

(49:02):
more supervision ideally, and we hope more electoral accountability through
the presidential election.

Speaker 6 (49:08):
But these gains.

Speaker 5 (49:09):
Are far from clear for the full array of government
decisions that we're talking about. So those kinds of benefits
electoral accountability, political control, political supervision I think are most
valuable for broad and.

Speaker 6 (49:21):
Visible policy decisions.

Speaker 5 (49:23):
So do we set motor vehicle standards stringently enough that
as a practical matter, we're going to get.

Speaker 6 (49:28):
A lot more evs. I think that's a strong case.

Speaker 5 (49:31):
For closer political supervision there and a process that engages
voter views and that ways in favor of political control.
And of course we already have at will removal for
the heads of the EPA and the Transportation Department. But
for important settings, unfettered political control through the removal power
has you know, dubious benefits and distinct risks, and greater

(49:53):
independence can really be valuable. Lots of settings, as they say,
have already come up this evening, but I especially want
to focus on adjudication, enforcement, and particular decisions that implicate
entities and individuals case specific issues to make I hope
a pretty straightforward point. A voter just isn't likely to

(50:15):
choose a presidential candidate based on the size of a
penalty an agency official sought for securities fraud, or how
an agency inspected worker safety in a particular factory, or
whether an agency granted or denied a permit to discharge
suit or denied disability benefits, and a president or presidential

(50:36):
staff may not be well equipped to systematically supervised decisions
like this against the backdrop of the removal power. And
the flip side here is there are distinct risks in
these settings. There's a distinct risk of mischief from what
we might call the dark side of political control, especially
with cases that are likely to fly beneath the public's radar. So,
of course, the classic example here of political leadership that

(50:59):
wants to punished enemies or reward friends is you know Nixon,
the Nixit administration asking the IRS to conduct politically motivated
tax audits. Again, that's the classic example. That kind of
risk could infect other decisions, pharmaceutical approvals, broadcast licensed decisions, and.

Speaker 6 (51:15):
Those kinds of risks could be worsened with unfettered removal power.

Speaker 5 (51:19):
And these are areas where the ELECTROC is just less
well equipped to investigate or detect or kind of bring
these issues out into the open, into the sunlight, even
with four cause removal restrictions. We see criticism of some
agency adjudicators and want to call out especially the FCC
and the SEC, both of which have been the subject
of academic studies. The critique is these adjudicators have been

(51:41):
too cozy with enforcement officials. Eliminating removal restrictions for adjudicators
could make that kind of problem, you know, worse. So
these kinds of concerns are the reason why for many
years we've had a bipartisan norm of independence in these settings.
So the norm has been that White House staff typically
won't be in contact with line and horsement officials or

(52:01):
agency officials deciding individual cases. That norm is the subject
of long standing White House Council memos and writings by Professor.

Speaker 6 (52:08):
Adrian Fromule and for education.

Speaker 5 (52:11):
Of course, as came up earlier in the evening, we
have a strong American commitment to independent, neutral adjudicators, embodying.

Speaker 6 (52:17):
In our Article three a tradition.

Speaker 5 (52:19):
So it's bedrock that we have to have accountable agency decisions.

Speaker 6 (52:23):
We have to have constrained agency decisions.

Speaker 5 (52:26):
But rather than instituting at will removal and getting rid
of the moderate independence we have in some settings, we
might sometimes be better served by other checks on agency
mistakes or overreach. Those could include internal agency appeals, those
could include judicial review.

Speaker 6 (52:43):
All right, so all this leads to the second point.

Speaker 5 (52:45):
These are complicated considerations. They are competing considerations. For the
most part, Congress is where is where these decisions ought
to be made. Congress has a lot more experienced designing
these institutions, gets a far broader vi you on their
function through oversight, appropriations, deliberations. That's probably why Congress is
the focus of this conference, maybe not the only reason.

(53:08):
Congress is designed and redesigned dispute resolution regimes over the decades.
I don't want to use up too much more time,
but you know, just take the way government contractor disputes
are resolved. Congress has retooled that regime countless times to
respond to concerns about government contractors that they be treated
fairly by agency adjudicators when there are disputes with disputes

(53:30):
about their payments.

Speaker 6 (53:31):
And their performance.

Speaker 5 (53:32):
And of course, if the concern is political accountability, Congress
is our most accountable institution, not just for creating programs
like this dispute resolution devices, but also for designing them,
including a reasonable level of independence that helps decisions get
made more appropriately. So I think, you know justice school
has already been invoked tonight. I think his you know,

(53:54):
famous language from Mistreta on delegation should be repurposed here
as well. You know, on questions if institutional design, including
how to structure regimes that give people a sense that
they're being treated fairly by the government, judges should rarely
second guess Congress, and I think that should go for
the quite moderate assurances of independence that Congress has built

(54:14):
into the current system.

Speaker 2 (54:17):
Thank you any reaction responses.

Speaker 4 (54:21):
So you think that making everybody an at well employee
would be too much accountability? But is giving them for
cause protection too much insulation? In my ad loss seminar
the other day, I made the comment, which I thought
was true, that no president had ever dismissed anybody in

(54:43):
the executive branch based under an at will and for
cause removal standard. And of course one of my smart
ale like the students, did an Internet search and came
up with the fact that two auditors were dismissed in
the nineteen twenties and the Treasury Department under.

Speaker 3 (54:57):
For cause protection.

Speaker 4 (54:59):
But that's not very robust tradition. So is for cause
too much protection for these of independence or do you
think there's it's got to be one or the other.

Speaker 5 (55:12):
I mean, I think it's it's a hard question. To
answer the firings that we've seen in the last couple
of weeks. There's been no effort to present cause, but
not out of the question that there could have been cause.
And I think this is really an effort to us
is an effort more to create a test case rather
than really answering the question about whether for cause protections
are adequate.

Speaker 4 (55:31):
Well, surely the Trump administration is not going to defend
in the.

Speaker 5 (55:34):
Ground that there was cause, right, So I think it's
I think it's a difficult question to answer.

Speaker 6 (55:39):
Is the point?

Speaker 9 (55:40):
Well, actually, on I mean, it is interesting that the
courts have not really done much interpretation of cause, So
it would be interesting if there were a third kind
where the president directed somebody to do something and they said.

Speaker 6 (55:51):
No, and then it's that cause.

Speaker 9 (55:53):
But the other thing is, I think for the rank
and file the civil service, there's another layer that sometimes
we don't talk about as much, which is the Merit
Systems protect Action Board. So whether or not legally there's
cause to dismiss somebody who's doing drugs at work, or
not really listening to their supervisor or not working efficiently,
they have the procedural rights to be in the statutes

(56:13):
to be able to challenge it, so procedurally it can
take a really long time. So there's a layer of
an extra decision maker who's actually not squarely within the
accountability supervision line of the supervisor doing the disciplining. So
even if we thought cause wasn't too burdensome, that whole
structure really stands to be I think re examined because

(56:36):
it does create a big deterrent to feeling like one
can adequately supervise one's employees.

Speaker 6 (56:42):
I think in the federal government, I think the.

Speaker 5 (56:46):
I think these are fair points, and I think the
point to be made here is if the MSPB process
takes too long and it overly burdens the effort to
remove genuinely poor performing civil servants from the.

Speaker 6 (56:59):
Rant, Congress needs to fix that.

Speaker 5 (57:02):
And the answer here shouldn't necessarily be to constitutionalize it
through a ruling on separation of powers. I will say
one other thing, just an answer to the point that
you made about or maybe Judge Reeler, you made this point.
What if the president directed directed an employee to take
an action and they refused. The Court has put down
a marker on this in Collins versus Yellen there's a
dicta suggesting that if a direct order is issued to

(57:25):
someone and they refuse.

Speaker 6 (57:27):
To take it, that that could be cause.

Speaker 5 (57:29):
And so it may be that the you know, it
may be that the four cause protections will end up
providing even greater authority to fire than some people may
first have thought.

Speaker 10 (57:38):
Professor Nielsen, Yeah, that's my fault.

Speaker 11 (57:44):
I was the Court of POI of Amikis and Collins,
and I made that argument to try to save the agency,
and instead they took it and they said, yeah, and
your agency still a constitutional So sorry about that.

Speaker 7 (57:59):
Now. No.

Speaker 10 (58:00):
I think this is a.

Speaker 11 (58:01):
Really complicated area because we can conflate different things. I
think that most of there'll be disagreements, and you know,
if you watch the podcast taping earlier disagreements on this.
But I think a lot of people think that, especially
higher up, if you have somebody who just disagrees with
the president, like that seems kind of strange because we

(58:21):
elected the president, this is law. The president has the
you know, the executive power vested, and there's someone who's
like running the CFPB or something. I think a lot
of people say that doesn't seem quite right. That you
could be your entire term as president and never be
able to control the CFPB. That doesn't seem correct. You
run on this, that's your platform, and then you can
never do anything about it. So that's I think where

(58:42):
the Supreme Court is. The Supreme Court's looking at that
high level question. Now the mechanics of addressing that high
level question have implications to go way beyond that high
level question, including the adjudication stuff that we were hearing
earlier today. So the question is what do you do
about that? And I have some ideas about what you
can do about that, but I think it is really problematic,
especially when you talk about adjudication, because they are exercising

(59:05):
executive power. The executive power is the same executive power
that applies to the head of the CFUB.

Speaker 10 (59:10):
So how do you sort all that out?

Speaker 11 (59:13):
And I think that if we don't pay attention to
some of the trickier implications and just look at the
high levels, that we're going to miss some important things.
I think we have some answers that can help with that,
but you need to look at the whole.

Speaker 10 (59:26):
Thing, and you pick a one on the stick, you
pick up the other two.

Speaker 9 (59:31):
I just want to make a quick point about Congress
and its electoral role. And that's obviously true, and this
came up with Professor Chafitz on the podcast earlier today.
So if Congress is elected, shouldn't we be deferring to
them more often? And obviously we do want Congress to
have a robust role, and they are the ones that
are most directly elected, particularly in.

Speaker 6 (59:51):
The House representatives.

Speaker 9 (59:53):
But I do I also think it's important to think
through and this doesn't necessarily get written about a lot.

Speaker 6 (59:58):
I tried to start unpacking.

Speaker 9 (59:59):
Up a little bit in a piece a few years
back dealing with the very very interesting topic of seventeen
eighty nine customs laws. So I'm not sure that piece
was that widely read. But I think there's a difference,
Like Congress has a different electoral composition obviously than the president, right,
so it's sort of I mean, it's you have to, really,

(01:00:23):
I guess, think about this carefully whether it's relevant. But
Congress is elected district by district, state by state. The
president obviously the electoral College is a little bit of
a more national flavor. But I think those are all
intentional structures by the Framers. And so even though Congress,
of course we want to respect its will to the
extent that it's putting in place something that we come

(01:00:45):
to understand undeniably intrudes on the executive power, and that
being the ability to be able to fire a high
level person. Or even if we find that the mspb's
too constraining on the hierarchical structure within a given agency,
even though Congress is elected, that's then going to intrude
on the will of another elected actor, the President, that's

(01:01:07):
representing slightly different interests in a slightly different way than Congress.
So I don't think we can just kind of conflate
the whole system as always protect what the first elected
body did. We have to we do at some point,
have to do a little bit more theoretical work and
figuring out where executive power begins and congressional power ends.

(01:01:28):
And I do expect the Supreme Court to have a
number of occasions in the next few years to look
at this much more closely. I will say one last
thing and try to echo old school Justice Thomas, where
I think a lot of these questions would be much
easier if the federal government we're not doing as many
things in the first place, and color me skeptical that

(01:01:49):
we're ever going to be able to come up with
a really rational understanding of the division between Congress and
the executive when at the end of the day, the
federal government is just doing way more than the frame
ever in visions. So there's going to be tensions so
long as that continues to.

Speaker 6 (01:02:03):
Be the case.

Speaker 9 (01:02:04):
So power back to the states and the people.

Speaker 2 (01:02:13):
Okay, I think, Professor Nielsen, you're going to tackle our
next topic to start, and that is agency expertise.

Speaker 11 (01:02:19):
Sure, so this has come up a little bit in
both the unitary executive and the difference a major questions piece.
And here's the way administrative law typically works. One of
the arguments you will make in favor of the agency is, well,
the agency is better at this. The agency has the expertise.

(01:02:39):
So we need to make sure that our doctrines reflect
the fact that the agency is better at this and
they have the expertise, which is, you know, in many cases,
surely true agencies are better at a lot of things.
But yet that argument hasn't carried a lot of punch
anymore so in lowp or Bright. That was one of
the themes of Justice Kagan's Descent. Go back to Justice

(01:03:01):
Bryer in the Peekaboo case. That was the theme of
why we need independence for independent agencies, and it's just
not doing anything right now. It's not working. The argument
does not work with the current court. So why so
I'm going to tell a little bit of a story
from my hypothesis why I think that is the case.

(01:03:23):
So first, I'm going to start off with the major
questions doctrine, like where did this come from? And it
goes back we heard some of it, and again this
is simplified. Everything simplified, But just kind of go with
me on this one. Is President Clinton gets elected and
for the first time in generations, loses the House of

(01:03:45):
Representatives in nineteen ninety four, and so he doesn't have
Congress anymore. But President Clinton wants to do a good job,
he wants to be a successful president, but he can't
get legislation through. When he tries, he has to give
up massive amounts in the bargaining.

Speaker 10 (01:03:58):
Table, see what he did with welfare.

Speaker 11 (01:04:01):
So he goes and he has really smart people around him,
including then you know, Professor Kagan, Alena Kagan, and they say, well,
we're going to look through all of the old statutes
and we're going to find places where there's delegations and
then we're going to use them to do our current
policy stuff. And I'm not making this up. You can
go read Elena Kagan's article Presidential Administration.

Speaker 10 (01:04:22):
That's what he said that they did.

Speaker 11 (01:04:24):
So they started doing this and they found all this
old kind of statutes and then they tried to do
things with it, and the court it's like, well, can
you do it or can you not? And then we
get into some of the issues the major questions doctrine
and chevron. Okay, well, I think something similar is happening
with agency expertise. And I'm going to quote a student note.

(01:04:46):
So this is I think one of the most important
student notes ever written. This was written nineteen ninety two
in the Harvard Law Review. This is why learn it
hand would never consult legislative history today. And it shows
that students has been outside more than one hundred times.
So when you're working on that, like there's a dream
there it is, you can write, you can write the article.

(01:05:07):
But this is what the student notes says, and this
is why he thought the learned hand wouldn't.

Speaker 10 (01:05:12):
Use legislative history today.

Speaker 11 (01:05:14):
A critical problem occurs when a judge consults the legislative
history to resolve an interpretive question. As soon as the
judge is introduced, or more precisely, as soon as people
realize the judge is listening, the records produced thereafter become corrupted.
Whatever motives political actors had X and TEA and making
statements that incidentally became part of the record, they did
not have the antidemocratic motive that they do now today

(01:05:37):
into eject statements intended solely to influence the later interpretation
of the statute. In particular, political actors now have great
incentives who try to shape legislative history to indicate support
for results that could not have one majority support in Congress.
In other words, expertise has value if no one realizes
that expertise has value. But once we realize that expertise

(01:05:57):
has value, and the courts think that expertise has value,
then you're going to try to weaponize that expertise to
achieve the results that you couldn't otherwise have done. So
otherwise you'll lean into your expertise to try to make
it more persuasive.

Speaker 10 (01:06:11):
And the person who is the expert on.

Speaker 11 (01:06:14):
This in the academy is Wendy Wagner. Wendy Wagner is
not a conservative. She is one of the good, you know,
great administrative law professors, and she wrote an.

Speaker 10 (01:06:24):
Article this is thirty years ago.

Speaker 11 (01:06:28):
Called the science Charade in Toxic Toxic Risk Regulation or
she makes the same point. She says, agencies know that
courts defer to them if they're doing technical stuff. So
agencies will take their policy choices and they'll embed it
in technical stuff and then that way they get the difference.
And if you do that long enough, people start to

(01:06:51):
figure out what's going on, and that creates a problem.
Now you don't know if it's actually technicals that has
to be technical, or is it technical because you want
to get it through judicial review.

Speaker 10 (01:07:02):
And it's the same.

Speaker 11 (01:07:03):
I think this mechanism of you look around, you say, well,
we try to use old statutes, and now, of course
an't really un let's use old statutes, I'll say anymore, Well,
now we're going to lean into expertise. And then sorts
starts to realize, well, you're doing the same thing. It's
not actually an expertise question here, it's a policy choice,
and you've dressed it up in complicated jargon. But it's

(01:07:25):
actually not that complicated.

Speaker 10 (01:07:27):
Now.

Speaker 11 (01:07:28):
The problem is sometimes it is that complicated and judges
have a hard time figuring out which one is which.
But if you've called Cride a wolf too many times,
judges are skeptical, and I think that is part of
the problem that we have to deal with, is what
do you do when there's a policy division in the country.
Smart people are looking for ways to make those policy gains,

(01:07:51):
and judges think they're being played. And I think that
is the danger we have with expertise right now, and
we need to try to get that back, because there
really is expertise, but I'm not quite sure how to
do that.

Speaker 10 (01:08:02):
So that's that's my take on that one.

Speaker 2 (01:08:05):
So in terms of a live or dead construct, to alive.

Speaker 11 (01:08:09):
I guess it's dying because you're not getting people. Courts
are not giving a great deal of respect to agency
expertise anymore. I think that might be for good in
a lot of cases, but there's a danger that they're
gonna there's gonna be air costs if you don't respect expertise.

Speaker 2 (01:08:31):
Sir Pochanowski, I don't know. In for a penny, in
for a pound, but okay, anybody else want to weigh
in on expertise.

Speaker 5 (01:08:42):
It's really somebody, come on, I think you're one hundred
percent correct, and I hope you have a solution.

Speaker 4 (01:08:52):
I'm not sure that. I mean, I think I think
the Supreme Court is kind of into this old time
religion stuff, you know, originalism, textualism, traditions and history. And
when you're into that stuff as heavily as the courts are,
there's no room for sort of worrying about scientific expertise

(01:09:16):
or what are the scientists think and so forth. It's
just they're not in that game anymore.

Speaker 11 (01:09:22):
Even in the world of arbitrary and capricious though, you're
not getting the same sort of respect, which really those
are just policy choices and the agency can't say, well,
we think this is the right answer, and of course,
oh well, you're regulating this really complicated thing. So you're
probably right. You're going to see cases where courts are
much more likely to say, well, wait a minute, is
that really correct? So I agree with you on the

(01:09:44):
interpretation stuff, that's the old time religion. But what do
you do when you're talking about, you know, move away
from that where it really is delegated policy choices and
they still are fairly skeptical, which you'll see in some
of the cases.

Speaker 10 (01:09:55):
Again, like you can pick the cases.

Speaker 11 (01:09:59):
There are a case is out there where they invoke
this is a complicated thing, not a pure statutory interpretation question.

Speaker 10 (01:10:04):
And of course, nonetheless you'll say.

Speaker 7 (01:10:06):
Uhh yeah, so I think, I think, I think these
are really interesting points. So I mean, in an ideal world,
which we're not in, you can you can imagine the
old time religion on the on the law side of
the kind of law policy divide being courted off from
like the policy world, and you can imagine the old
time religion reinforcing it. So if you have a certain

(01:10:27):
understanding of kind of textualism and formalism, it's like, I'm
really comfortable doing lawyer stuff, right, but when I'm in
kind of like what's an adequate margin of safety or
you know how many parts per million of benzene? Like, look,
my toolkit does not work there? Right, So in an
ideal where you like, the old time religion can reinforce
you to say, hey, look, arbitrary and capricious review is
arbitrary Corpercio's view, and could even encourage a kind of

(01:10:48):
light touch, particularly light touch on arbitrary and capricious review
in the sense of, like, you know, I don't want
to I don't want to get in there, and uh
and kind of muck it up now, which kind of
makes the Professor Neil point all the more poignant. If
they start distrusting what's going on in the arbitrary, arbitrary
and capricious realm, it's troublesome. On the other hand, maybe

(01:11:12):
one way out of the problem would just be kind
of accepting it in the sense of, like, look, if
this is the world of policy choice, and we're judges
who don't know, you know, expertise, and we can't sort
out good science from bad science, and this is really
the realm of policy choice, and your policy choice is
to actually kind of do bad science for your political ends.

(01:11:35):
Who are we to who are we to? You know,
who are we to mess with that? That's that's your
policy choice. And as long as you're kind of acting
within the confines of the statute, we've got nothing to
say about that.

Speaker 5 (01:11:45):
I have a question for Professor Nielsen or General Nielsen.
We don't we don't choose your capacity.

Speaker 6 (01:11:54):
I clearly I.

Speaker 5 (01:11:55):
Was just sitting here thinking, I was thinking, you know,
this is the sort of thing where we're talking about,
you know, civil case, we would have expert witnesses in
the like. That's clearly something that would be quite challenging
in the context review of agency actions, which is why
we do them on the record. But what about you know,
innovations like a greater use of special master to review
an agency record help help the courts distinguish what's legitimately

(01:12:17):
a technical call from what's addressed up technical call.

Speaker 6 (01:12:20):
Would that have any potential?

Speaker 7 (01:12:22):
Yep.

Speaker 11 (01:12:23):
So the first article I wrote as a law professor,
which I don't think anybody likes, but but I like
it is in defense of formal rulemaking, which which I
kind of that's kind of what I thought. You know,

(01:12:43):
I'm like, boy, and this goes back to my time
in practice. There were times where I know, when you
take a deposition of the other sites, expert like what
you can get and though you can get those admissions,
and they are very important admissions as to what's really
going on, and it makes a very complicated thing much
because you've got them down, You've got them pinned down.

Speaker 10 (01:13:03):
There's no dancing around on that.

Speaker 11 (01:13:05):
And if you have the same experts, which often are
the same experts that are doing it for the agency
on a rule and then they're doing it in litigation
about the same thing. I was sure would like to
be able sometimes just to sit down and see what
we can get on that record. Maybe not quite a
special Master, but it was certainly clarified the scope of
a massive rule making record if you actually had some admissions.

Speaker 5 (01:13:30):
Well, I think that gets us to Professor Mascot's dream.
If we bring back formal rulemaking, definitely power will leave
the federal government and go back to the states and
the people.

Speaker 2 (01:13:42):
Okay, well, it's getting late to discuss formal rule making,
so let's move on to something a little spicier. This
is a very live issue, Professor Mascow, you're going to
discuss delegation.

Speaker 9 (01:13:55):
Okay, Well, I will just try to give a bit
of context and then hopefully we'll have some juicy, spicy
talk up here about delegation. But for those of you
who have not yet taken admin law, or even those
who have, essentially, when the Court is looking at this
question of delegation, it's all about when Congress enacts a statute,
is there is such a thing as the statue of

(01:14:16):
being so broad that it essentially gives no standard, no
intelligible principles, the current standard to the executive branch, such
that Congress is actually delegated away it's lawmaking power. I
mean as almost as though Congress is said to the
executive we don't feel like doing this anymore. You go
make the laws. And you know, it's a kind of

(01:14:38):
a one on one hand, it takes a lot of
hubris to make the constitutional claim because you're essentially saying
that when Congress has gone through by cameralism and presentment
with the offum, with the president's signature, that's still nonetheless
what it's done is not good enough, and it's actually
delegating too much power to the executive branch. So it's

(01:15:00):
you know, it really requires a lot to be able to,
I guess, successfully make the claim and make the argument.
I think it's become a lot more salient over the years,
or ones that litigants have brought a lot more in
recent years because statutes are so broad and agencies are
exercising so much power that it starts to feel like
agencies are actually almost making little many new codes when

(01:15:24):
they're issuing, promulgating regulations that are having a lot of
impact on the American people. From a common sense standpoint,
it often feels like the executive branch or agencies are
actually doing things that are binding us, that are controlling us.
And it's not really Congress after all. So what does
the Supreme Court said about this? Well, in the nineteen thirties,
in two cases, the Supreme Court, when FDR was in power,

(01:15:46):
essentially said, yes, Congress got it wrong. These statutes were
too broad. They violated the intelligible principle. But there are
many statutes that have terms like in the public interest,
very broad standards that the Supreme Court has to to
find violate the intelligible principle. The Supreme Court considered the
question in a twenty eighteen case Justice Kagan, I always

(01:16:09):
get this mix. It was Kagan a not Soto Mayor right,
who wrote the opinion made an interesting point in a case.
Some folks thought this would be a successful non delegation
case because it was in a political context where it
was thought maybe you would get folks on both sides
of the aisle because it was dealing with kind of
the distasteful topic of sex offender registration. But Justice Kagan

(01:16:32):
in the case did something interesting where she said, you
can't just look at the statutory provision itself and the standard,
whether it be public interest or whatever. And in that case,
the particular provision had actually not given the Attorney General
in and of itself, right there in the provision a
standard to use for how he was supposed to decide
whether to retroactively apply these reporting provisions to folks. But

(01:16:55):
she looked at the rest of the statutory scheme, which
any good texture lists, I think or formalist would.

Speaker 6 (01:17:01):
Say that you should do.

Speaker 9 (01:17:02):
So you have to look within the statutory scheme to
figure out what's going on and what the standard is.
And if you can find some kind of guiding principle there,
then it's good enough. Litigans continue to bring challenges about delegation.
Where the delegation issue is coming up. Mostly this term
is in a related but separate question about, rather than
the dividing line between Congress and the executive branch, is

(01:17:26):
there an instance where Congress is giving too much power
to private actors to essentially exercise governmental authority. And maybe
there that's even more troubling because they don't have to
take an oath to uphold the Constitution, and they haven't
been authorized with any governmental power at all. It's coming
up in the particular factual context of the Federal Communications
Commission and the Universal Service Fund. And I don't want

(01:17:51):
to get down into the nuts and bolts of predicting
how the Court's going to come down in that case,
except just to note that when you're talking about delegating
power to private actors, one thing you have to think
about that's a little bit different, and something that's not
necessarily top of mind is is the authority or the
standard that the private actor is carrying out actually an

(01:18:13):
exercise of governmental authority or are they just like researching,
imposing a standard, making recommendations. So I think in this
particular case, the Court will not only look to whether
there is guidance given for the power that's been exercised
under the statute, but whether the type of power is
actually this is our expertise, we're just giving you information.

(01:18:37):
Now you decide, or are we definitively binding the American people.
And we don't even have any kind of governmental oath
backing us backing us at all, And so delegation, most
broadly is just a question of making sure that whoever's
issuing the decision in a particular instance, is the constitutional

(01:18:58):
actor that was designed to do it under the constitutional scheme.
When we talk about is there a line of power
that we need to enforce better between Congress and the executive,
I think many folks would say, of course, yes there is.
How do we get there? Is it delegation challenges? Is
it more closely interpreting statutory schemes. Is it going back

(01:19:21):
and finding commerce clause problems? I think the Supreme Court,
maybe you all, and maybe with this I'll punt it
to everybody. I think maybe not in the private delegation case,
but in the questions between Congress and the executive as
they come up that the Supreme Court is still a
ways away from weighing in on that, because many of

(01:19:41):
the justices, even on the more conservative orsprudential side, are
very uneasy with unsettling old standards like intelligible principle unless
they have a new standard to come up with, and
it's hard to get much more open ended. I think
then figuring out well, even the Justice Gorsich standard right,

(01:20:02):
of well, it's a delegation problem when the agency's making
the rule to buy in the public. Of course, that's true,
But what exactly like does that mean and where's the
line and how does one enforce it? And I just
think it's gonna be really hard to get folks like
Justice Barrett to go along with that unless somebody can
come up with an alternate standard or test to impose.

Speaker 4 (01:20:28):
This universal service case is what's it called the.

Speaker 6 (01:20:32):
Name of the case Consumer's research?

Speaker 4 (01:20:33):
Consumer's research? Yeah, I mean there are a number of off
ramps here that might give the court the opportunity to
write a juicy opinion without actually, you know, hull hog
reviving the non delegation doctrine. I mean there used to
be some cases. I know this because a student will
a paper about this years ago. For me, the sort

(01:20:56):
of favorite sub delegation, you know that there had to
be some kind of specific authorization for a sub delegation.
So I don't know if that's true or not in
the Federal Communications Act that there was an authorization of
sub delegating the authority to set these universal service fees
or not, but that would be a way to tackle that.
There's an interesting article written recently by a guy named

(01:21:18):
Alexander Vallak at Emory who takes the position with some
credibility that there The Court has never invalidated a delegation
on the ground that the delegation was to a private party.
There's some dicted to that effect, like in the Scheckter
Poultry case, but actually the delegation there was to the
President of the United States, you know, so there's you know,

(01:21:40):
there may be some interest. But you could also say
that private delegations that you could create the doctor and
the private delegations are bad. So I think you could
sort of you could tackle it on the grounds that
there's been no actual delegation, not actual delegation of authority
to sub delegate, or there's no actual delegation of authority

(01:22:00):
to delegate to private party, And that would be a
way of writing at significant opinion but not you know,
sort of doing what cours that you wanted to do
in Gandhi.

Speaker 7 (01:22:12):
Yeah, I tend to agree with Professor Mascot's prediction about
whether the Court is going to directly take it on.
I think the you know, the kind of legalist formalist
persons like you know, give me a rule, like give
me give me a judicially manageable standard to work, as
opposed to like too much is too much?

Speaker 3 (01:22:28):
And I think it's going to make them, make them.

Speaker 7 (01:22:31):
Hesitant, and unless they find you know, it's funny think
that Gandhi like you basically you have just justice Gorsus
are saying, hey, law professors, scholars, give me, give me
some tests, you know, give us, you know, you know,
work it out. I mean, I think unless they kind
of stumble, unless they kind of get something that they
feel is tractable, I mean, maybe they maybe someone will
get excited about Gary laws is like, we need to

(01:22:51):
look to the eighteenth century agency law to understand how
delegation works, and then we can, like, you know, that
seems kind of if we're getting the old time religion,
that might be something, you know, I could see someone
like Justice Thomas embracing or something like that.

Speaker 3 (01:23:03):
But I think if you look.

Speaker 4 (01:23:04):
At agency treatises from the early twentieth century, there was
this rule against sub delegation with that express authority.

Speaker 7 (01:23:12):
But I mean, I think until they feel at least
I think until like too have a more tractable standard,
I think they're going to be really scared of reviving it.

Speaker 5 (01:23:26):
I tend to agree with all these comments that it's
it's really hard to come up with a more tractable standard,
and the Court might be reluctant, as Professor Mascot says,
to disturb the old doctor, unless they can really come
up with something great. That said, I just wanted to
give a shout out to Professor Walker, who's filed to
meet us brief in this case. I think for the
Chamber of Commerce right proposing a new standard, so maybe

(01:23:46):
the Court will take a look at that. On the
private delegation issue, this is a tough issue, I think.

Speaker 6 (01:23:52):
I think your student's right that.

Speaker 5 (01:23:55):
Private delegation has come up in a lot of cases,
but the Court hasn't really directly tackled it, and in
this case they might be able to dodge it because
formal or not, the FCC did appear I think to
exercise the final decision. But there are lots and lots
of settings across the government where to a greater or
lesser degree, government action is substantially influenced by private action.

(01:24:16):
And so for the Court to actually open this up,
but I think, would open up an enormous number of issues.
One that is of a special interest to me is
the large number of privately drafted standards that agencies adopt
into incorporation by reference right into federal law. That's not
an issue in this particular case. It's in a special
issue in these other settings, which involve a whole array

(01:24:38):
of things like toy safety standards and pipeline safety standards
and all kinds of issues. But those are actually not
available to the public, and so there are some important
checks that are missing.

Speaker 6 (01:24:49):
On this kind of private delegation.

Speaker 5 (01:24:50):
And I think if the Court gets interested in it,
it may it might actually want to tackle some of
these issues.

Speaker 10 (01:24:57):
Just real fast.

Speaker 11 (01:24:59):
The problem with the nondel gation doctrine is it's so
hard to apply. There's a couple of ways context that
you could do it. One is really big and one
is small. One is I think the private non delegation doctrine.
I think that's one that they could do, and pretty precisely.
I don't even know if it's an Article one problem,

(01:25:19):
it's an Article two problem, Like I don't understand how
these people they haven't taken an oath, they haven't been appointed,
they're exercising government power, Like what are we talking about
non delegation. They can get the first the first step
on those ones, correct, and but the second part is
the other line which Justice Thomas has suggested, which they

(01:25:41):
are not. I don't think there are five votes for
would be how about we did the line between public
versus private rights and if it's a public right, sure
you'll let them delegate, but not for private rights. That
would be a huge, huge, huge change. I don't think
that there are five votes for that yet. But that's
where the Court is thinking about. Is give us a line.

(01:26:02):
And those are a couple of lines that have been
thrown out there. Gary Lawson, we've mentioned him.

Speaker 10 (01:26:09):
John.

Speaker 11 (01:26:09):
You had a book called like What Is the Test?
And there's like twelve authors and they all had a
different tests. I don't think that's the helpful book. Like
the book would be like give us a test, give
us the one test, and the twelve is twelve is
worse than none.

Speaker 10 (01:26:28):
So I don't know. I think that's the problem.

Speaker 2 (01:26:32):
Okay, maybe I'll ask one question, but then we'll have
some time for questions from the audience. So we talked
about the first set of cases, major questions Loper Bright.
You know, in some ways that was the Supreme Court
maybe protecting the interests of Congress and making sure that
all essentially, you know, policy isn't decided about the executive

(01:26:55):
branch as opposed to Congress Article one. We have this
great title for the program, Viving the impetus of Vortex
and petrous Vortex. I've heard this maybe said similarly on
some podcasts recently making Congress Great Again. But any thoughts
on whether Congress will regain its footing as you know

(01:27:16):
sort of? I think the first moll equals across the
three branches, which is I think with the framers intended
and had devised or is that asking too much? Any
predictions or thoughts on ways Congress might or can reassert
its authority.

Speaker 11 (01:27:36):
So this is with some trepidation, but among conservatives, we
generally don't like Congress to get too big because we
don't like big government and Congress as part of the government.
It seems to me that if we want Congress to
be able to do some of the things that we
are saying that we want Congress to do like, we

(01:27:57):
need to make sure Congress has the tools to do it.
So their staffs need to be bigger. Take some of
the resources from the executive branch and bring it back
to the legislative branch. Get bigger staffs, bring in experts,
bring in the type of you know, expertise that we
that we want and bring it within the legislative branch,
and the initial people who will oppose that will be us,

(01:28:19):
because we will say that is not what we want.
We don't want a huge Congress, which I understand that instinct,
and I don't really want a huge Congress either.

Speaker 10 (01:28:29):
But if we want.

Speaker 11 (01:28:30):
To have the expertise to be within the federal government
but not within the agencies, well then where are you
going to put it? So that would suggest that Congress
needs to invest more in itself.

Speaker 4 (01:28:44):
Yeah, I would add to that that. I mean, I
think the Watergate reforms were a disaster because they sort
of did away with the seniority system and democratize Congress
and so forth, and that reduced the opportunity for people
to devote their careers to being you know, a senator
or a congressman or something like that, which would then

(01:29:04):
give them some significant power and an institutional interest in
resisting the erosion of Congress's prerogatives and powers. So, I mean,
it was kind of, you know, the old system was
all of these southern barons who were in Congress wherever

(01:29:25):
had a sort of distasteful aspect to it. But actually
I think that made Congress a more effective counterweight to
the other branches than what we've seen more recently, where
people are in Congress for one or two terms and
then they know rotate off to k straight.

Speaker 5 (01:29:44):
I'll just add, I actually think some of the issues
we've been discussing this evening are things that we really
need to tackle or to a greater extent, if we're
concerned about leaving space for Congress. And I want to
call out two issues in particular, the major Questions doctrine
and the independent agency rulings.

Speaker 6 (01:30:01):
I think in.

Speaker 5 (01:30:02):
These areas the Court is expressing maybe non delegation as well.
The Court is expressing concern that somehow Congress isn't deliberating
in the right way. Congress should be more specific if
it wants to delegate power to agencies and the like,
because the Court's not so sure that Congress has actually
thought about issues carefully. But it might be fair to

(01:30:24):
say Congress might be doing the job it wants to do.

Speaker 6 (01:30:27):
It might be delegated.

Speaker 5 (01:30:29):
It might be creating programs and asking agencies to run
those programs. Certainly has plenty of other sorts of power,
whether that's oversight or appropriations or weighing in on confirmation.
I don't think Congress is ignoring the administrative state at all.
And so one thing that might support Congress is for
the courts to give Congress a little bit of extra

(01:30:50):
space to take actions that maybe don't fit exactly what
the courts have in mind, but that could be empowering
for Congress.

Speaker 2 (01:31:00):
Okay, are there questions from the audience. Okay, we'll start
in the back here, then we'll come up front.

Speaker 12 (01:31:15):
First of all, thank you so much to all of
you for coming. My question is we had some discussion
earlier about whether the Major Questions doctrine is textualists or
purpose a list, or whether it's some mix. And I'm
curious what all the panelists views on that are, to
what extent it can be justified as textualist or whether
it's just kind of a compromise on the way to

(01:31:37):
non delegation. But yeah, that's my question.

Speaker 3 (01:31:39):
Thank you.

Speaker 7 (01:31:41):
I mean, I think it's I think it's from its
most defensible form.

Speaker 3 (01:31:45):
It's funny we mentioned Gary Lawson. He's got in his
case book.

Speaker 7 (01:31:49):
There's a there's a big discussion about whether you should
have a presumption that agency adjudication.

Speaker 3 (01:31:54):
Is formal or informal.

Speaker 7 (01:31:55):
There's a whole bunch of tests about whether it's formal
and informal, and he sites. I think a somewhat obscure
larview articles is like you just shouldn't have a presumption.
You should just kind of read the statute and suggest
whether it points towards formal or informal adjudication. And I
think I think the best way at approaching it, and
to the extent there is kind of a maybe left
of the doctrine. You just kind of like ordinary interpretation,

(01:32:17):
and if it seems like an elephant and a mousehole,
it probably is. There may be some context where maybe
something vague suggests something something big, and just kind of
read it like that. So I think I think I
think having it as a clear statement rule is troublesome
from a textualist perspective. I think Chad Scutari is trying
to make as a decent argument about how you can
possibly ground in it. But I think I think as

(01:32:40):
a kind of a textualist formalist matter, I'm not sure
I'm a big fan of like presumptions one way or
the other.

Speaker 10 (01:32:51):
I think both.

Speaker 6 (01:32:56):
I don't think it's textualist.

Speaker 5 (01:32:59):
I the utmost respect for Justice Barrett, who I think
took the best shot at trying to say, look, nobody
understands these broad words to carry very significant authority with them.
And I think probably, you know, there hasn't been systematic
evidence yet, there's been some empirical work on this, but
I think probably congressional staffers and ordinary folks actually do

(01:33:20):
understand broad delegations just to be broad delegations, and to
that extent, they are elephants. There's not a mousehole here.
They're just an elephant. And the court acknowledges that. In
lots of these cases. It says, look, if you look
at the text, it kind of seems like it covers it.
But we've got to hesitate, We've got to look at
the legislative context. We just don't think that's what they
were after. That kind of move is not classic textuals.

(01:33:43):
It's much closer to a purpose based interpretation or the
deployment of a substantive canon, which you know, clear statement
canons are about saying, look, we're going to put a
thumb on the scale in favor of a particular substantive result,
and we want to see very specific language. I think
most people would consider substantive can to be in some
tension with textualism. The best defense for them is they've

(01:34:06):
been around a long time, so Congress can draft around
them if they want to. But the major Questions doctrine
is new, and it's been applied to statutes that were
drafted long before it was created. So that's that's a
tough justification for it.

Speaker 7 (01:34:17):
And I do think part of it turns on whether
you think the textualists can use the mischief rule, because
it feels a lot like the mischief rule.

Speaker 9 (01:34:25):
I mean, I just don't think the way it showed
up in West virgin Universus EPA was really a ton
like a substantive canon. So I kind of see it
as textualists and almost somewhat tautological, like if the statute
authorizes a big thing, it's going to be evident from
the face of the statute that this is supposed to
be done. And in the particular statuted issue, there was

(01:34:46):
one that was enacted many decades earlier, and so I
think the Court was essentially saying, you know, we got
to we understand agencies are trying to creatively operate in
the statute, but this is something that Congress was not
going to be seen as living and breathing in the
statutory text, and we want to see authority for it
in the language and structure itself.

Speaker 2 (01:35:09):
Okay, I think we had a question here up front.

Speaker 8 (01:35:12):
So I'm not a lawyer, so I don't know what
I don't know in law, but I do have a
lot of experience being investigated agencies, and so my question
is about expertise because that this has been a phenomenal
panel for me. Really, it's been really helpful and it's

(01:35:33):
very insightful for me. But what I noticed when I
was investigating I spent twenty years in surgery, twenty years
and pathology medicine. I work in technology, and when the
federal trade admission came in, I could not believe the
lawyers that didn't know what they were doing, that had
no frame of reference on the absurdity of what they
were accusing. But they didn't get cleaned on that for

(01:35:54):
eight years to the eleventh Circuit cleaned their clock. So
what is there inside the system that is expertise assumptive?
It is assigned? Is it just expert until you fall
in your face? I don't see anything because everything's so
sophisticated now it's actually terrifying. And you see it in

(01:36:16):
cybersecurity right now because all the regulatory rapp res have
been operating for twenty years failing everywhere.

Speaker 11 (01:36:27):
I guess, yeah, Thom says, I'm the expert on expertise,
which is which is which is terrifying. But I will
say this, you know again, I'm speaking as Professor Nielsen,
but i've you do learn a lot of information when
you're in government. A lot of people are compiling information

(01:36:49):
and giving it to you that you come up all
the time. And I realized, I am not an expert.

Speaker 10 (01:36:55):
I'm just I'm just apella lawyer. I'm not even the
trial lawyer.

Speaker 11 (01:36:58):
But I learned I learned stuff from a lot of
different people over a while. So I ended there is
something where people get good at things because they're hearing
from a whole bunch of people. Now in every individual case,
is their expertise? No, are they are using expertise wisely? No,
Sometimes they have no expertise at all because no one's
thought about it, but they still think that they do.

(01:37:19):
That's a problem too. But there is real expertise out
there and I think that's why it's it's tricky.

Speaker 10 (01:37:27):
How do we sess that out?

Speaker 2 (01:37:33):
Okay, there's one last question over here.

Speaker 13 (01:37:38):
Thank you also very much. I think that's something that
we forget about often, are the people that these policies affect.
And I was hoping to be the only person affected
by one of these agencies. But my family's farm one
day had some EPA agents show up and you know,
tell us that either they were gonna seize our farm
or find us money that we didn't have. And we

(01:37:59):
ended up having to do is spend money that we
didn't have to build infrastructure that was beholden to what
they wanted. Thank God for the Great Stay of Texas,
though as I said earlier, I'm not from there, because
they fought it and then the Farm Bureau fought it
with the waters of the United States Act. So what
I think we've seen here is less chevron defference and

(01:38:20):
more like a chevron obsequence. And so what I know
is that I have the utmost faith in Congress's abilities
to use agency deference as a way to avoid accountability
for these policies. And so are you not worried about
the application of skidmore if that's what's left over that
in its application, it's going to lead the exact same

(01:38:42):
outcomes as Chevron did previously.

Speaker 4 (01:38:53):
Yes, yes, we are worried about Skidmore. No one really
knows exactly what's give more means either, So we've got
this coming and going all over the place here.

Speaker 5 (01:39:07):
I think Skidmore might give someone like you a little
bit more comfort that ultimately a court needs to be
persuaded that the agency position is.

Speaker 6 (01:39:16):
The correct position.

Speaker 5 (01:39:18):
It does move power, interpretive power away from the agency
into the courts, and if you think that's a good thing,
it should. It should increase accountability for agency malfeasons in
the courts.

Speaker 7 (01:39:30):
Yeah, I mean, one way it might perfect. One way
it might change a little bit. Again, this would be
if you're under skid more or its kind of close
to Novo, and if we don't know what skid more means,
who knows. But if you're under Chevron, if you the
agency agency asked what can I get away with?

Speaker 8 (01:39:45):
Right?

Speaker 7 (01:39:45):
You know what what interpretation counts as reasonable? Without Chevron,
you have to ask what do you think the court's
going to think the right answer is? And that's going
to shift, you know, for better or worse, shift power
to lawyers within agencies, right, and and it kind of
changes the decision making framework as opposed to can I
say this is reasonable, as opposed to you, can I
convince a court of this? And of course that depends

(01:40:07):
on how how much bite Skidmore has. If Skidmore's lots
of bite, we're back to chevron Land. But that at
least kind of changes the decision making framework. So some
of the biggest change may not be in the courts,
but it may be within the agencies themselves.

Speaker 4 (01:40:17):
We've just turned testimony that the lawyers don't know what
they're talking about either.

Speaker 2 (01:40:26):
Okay, well, when it comes to administrative a lot of expertise,
you can't be at the five up here, so please
join me in thanking them.

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Panel I: How We Got Here – The Supreme Court’s “Anti-Administrativist” Turn?

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.css-14f5ked{margin:0;word-break:break-word;display:-webkit-box;-webkit-box-orient:vertical;box-orient:vertical;-webkit-line-clamp:2;overflow:hidden;}Panel I: How We Got Here – The Supreme Court’s “Anti-Administrativist” Turn?