Panel III: Congress and the Administrative State: Prospects for Regulatory Reform

Episode Transcript
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Speaker 1 (00:03):
Have our most beloved fed SOOC Michion Fed SoC Member,
come up and introduce our panel, the friendliest the least controversial.

Speaker 2 (00:12):
Please welcome Leah Humboldt.

Speaker 3 (00:21):
Hi. Everyone.

Speaker 4 (00:25):
We're going to give a moment for our speakers to
arrive as you're coming in. If you could don't be
shy and sit near the front, you'll not only have
the best few, but you'll also help prevent some awkward
filings in at the last moment when our speakers are discussing.
So to the extent you can, we'd love it if
you can join us in the front or in the
middle of the road to give people the opportunity to
sit at the ends of ay. Come in a minute late,

(01:00):
all right, we're ready to get started with our third
panel of the symposium.

Speaker 3 (01:05):
In Federalists fifty.

Speaker 4 (01:06):
One, James Madison famously asserted that in Republican government, the
legislative authority necessarily predominates. Yet in today's administrative state, most
federal laws are crafted through agency issued regulations rather than
direct congressional acts. This shift reflects an evolving balance of power,
where framework statutes like the APA dictate how agencies operate,

(01:28):
make rules, and resolve disputes. This panel will explore the
prospects for regulatory reform as a path toward reviving Congress's
traditional lawmaking authority. Panelists will discuss the potential benefits and
drawbacks of reforming the APA and similar statutes.

Speaker 3 (01:43):
They will evaluate how.

Speaker 4 (01:45):
Changes could empower Congress to reclaim its constitutionally intended role,
while assessing the practical implications of such a shift for
government functionality and public accountability. Our moderator for this third
panel is Judge Naomi Rao. She sits on the United
States Court of Appeals for the d C Circuit. She's
a graduate of Yale College and the University of Chicago

(02:06):
Law School. She served as a law clerk to Judge J.
Harvey Wilkinson, the third of the US Court of Appeals
for the Fourth Circuit, and as a law clerk to
Justice Clarence Thomas. Between her clerkships, Judge Row served as
Council for Nominations and Constitutional Law to the US Senate
Committee on the Judiciary from two thousand and five.

Speaker 3 (02:24):
To two thousand and six.

Speaker 4 (02:25):
She served as Special Assistant and Associate White House Council
to the President from two thousand and six to twenty seventeen,
Judge Row was a professor at the Antoninscalia Law School
at George Mason University, where she taught constitutional law, legislation
and stack, statutory interpretation, and the history and foundations of
the administrative State. In twenty fourteen, she founded the Center

(02:48):
for the Study of the Administrative State, a nonprofit center
that promoted academic scholarship and public policy debates about administrative law.
In July twenty seventeen, she was appointed to serve as
the administrator of AIRA in the Omb. She served in
this position until her appointment to the d C Circuit
and now onto Our Panelists. Professor Nicholas Bagley is the

(03:10):
Thomas Long Professor of Law at the University of Michigan
Law School. He served as special council and then Chief
legal Counsel to the Michigan Governor Greutch and Whitmer. His
academic work has been published widely, including in the Harvard
Law Review and the Columbia Law Review. He contributes frequently
to popular outlets, including The New York Times and The Atlantic.
Professor Bagley's forthcoming book, Why We Can't Have Nice Things?

(03:32):
How the Law Is Holding America Back, tells a story
of how the laws that are supposed to make American
government work better have stimmied American progress. Before joining Michigan Law,
Professor Bagley was an attorney with the Appellate Staff in
the Civil Division of DOJ, where he argued a dozen
cases before the US Court of Appeals, enacted as lead Council,
and many more. Professor Bagley graduated from NYU Law after

(03:55):
earning his BA in English from Yale. He clerked for
Justice John Paul Stevens in the USA Supreme Court and
for the Honorable David Tatle on.

Speaker 3 (04:02):
The d C Circuit.

Speaker 4 (04:04):
Before his legal career, Professor Bagley taught eighth grade English
in New York City public schools.

Speaker 3 (04:08):
To teach for America.

Speaker 4 (04:11):
Professor Emily Bremer was going to join us, but is
unfortunately sick and can't join us today.

Speaker 3 (04:16):
So instead we.

Speaker 4 (04:17):
Have our very own Professor Walker generously filling in for her.
And you heard all about Professor Professor Walker's wonderful accolades yesterday.
Our next panelist is Professor Jennifer no She is the
Ruth Wyatt Ruth Wyatt Rosenston Professor of Law at Chicago
Law School. She's a senior Fellow of the Administrative Conference

(04:37):
of the US and a former senior advisor at OWIRA.
Professor Noe is a graduate of Yale College and Yale
Law School, and received a master's in philosophy in politics
from Oxford as a Marshall Scholar. After law school, she
was a clerk to Judge Richard Posner of the Seventh
Circuit and then just to Stephen Bryer of the U
s Supreme Court. Our final panelist is the Honorable John

(05:00):
Are the Honorable Paul J.

Speaker 2 (05:01):
Ray.

Speaker 4 (05:02):
He is the director of the Thomas Rowe Institute for
Economic Policy Studies at the Heritage Foundation. He previously served
as administrator of OHIRA, where he supervised the review of
hundreds of regulations and led federal efforts on regulatory reform.
Mister Ray is a graduate of Hillsdale College and Harvard
Law School, where he served on the Harvard Law Review.

(05:23):
After law school, he was a law clerk to Judge
Debora Ann Livingston of the Second Circuit and then to
Justice Aledo on the US Supreme Court. He's a member
of the Executive Committee of the Federalist Society's Administrative Law
Practice Group and serves on the board of innovations in
peace building international And with that I will hand things
over to our moderator.

Speaker 5 (05:46):
Thanks Process, Thanks, thanks so much for that nice introduction.

Speaker 6 (05:53):
It's really a pleasure to be here.

Speaker 5 (05:56):
I remember many years ago when I was a student
at Chicago, we hosted the Student Convention and it was
a it was a massive undertaking of organization, and that
was a time when like the Federal Society main office
had like ten people in it. So really, you know,
we did a lot of the organizing ourselves, and so
I know how much work goes into a conference like this,

(06:16):
So thank you to all the student organizers and of
course to the Federal Society for bringing together this great conference.

Speaker 6 (06:24):
So our panel today is.

Speaker 5 (06:26):
Going to be about regulatory reform in Congress. And you know,
there's of course a lot of regulatory reform underway in
the executive branch, and so perhaps it is especially timely
now to take a step back and think about what
exactly it is that the executive branch should be.

Speaker 6 (06:43):
Doing with respect to reform. What is it that Congress
can do, should do.

Speaker 7 (06:49):
Well?

Speaker 5 (06:49):
Congress ever do anything at all? You know, these are
some of the questions that I think we'll be discussing
on the panel today.

Speaker 6 (06:56):
And I like that the title for.

Speaker 5 (07:00):
This conference, Reviving the Impetuous Vortex, because you know, it
seems today that you know, Congress, he's more like kind
of a mild breeze, you know, over over Washington, you know,
impetuous vortex. It seems like something from a very long
time ago. But but we do have a very esteem
panel to talk about these issues. They're going to have

(07:23):
short introductions and then we're gonna, you know, have a
moderated discussion, and I encourage you all to be thinking
about questions for our panelists.

Speaker 6 (07:31):
And with that, Paul Ray is going to to kick
us off.

Speaker 7 (07:35):
All right, very good, can you guys hear me? All right, Well,
it's a pleasure to be here with you all. Thank
you for putting on.

Speaker 8 (07:42):
This wonderful event, and it's a it's a great joy
to sit at the table again with Judge Rerewl many
many hours spending that at a Whira, although a differently
shaped table.

Speaker 7 (07:51):
But yeah, so I want to do two things in
these very brief opening remarks.

Speaker 8 (07:55):
I want to talk about the regulatory reform underway in
the executive branch right now. And I want to talk
about why notwithstanding the pretty apparent, far reaching significance of
that executive driven reform, that we need congressionally driven reform
as well. And I'm going to limit myself to talking
about reforms to the regulatory process. I'm not going to

(08:18):
touch on the substant of regular regulatory reforms that the
Trump administration is either made or undertaken to do. And
that of course means that I won't be talking about
everyone's four letter word doge, whose changes appear to be
mostly mostly substant so far, they appear to have left
the regulatory process more or less the way they found it.

(08:38):
So yeah, So the last seven weeks have w just
a pretty astonishing number of reforms to the regulatory process,
beginning with an order E fourteen one four eight that
rescinded by my count, about seventy three seventy four of
President Biden's executive orders. Some of those Biden orders had

(09:02):
rescinded a number of of orders from the first TRUP
administration modifying the regulatory process. So the effect of E.
Fourteen one four eight is to bring back to life
to revive those first term executive orders. So now there
are orders in place regulating agency guidance practices, calling for

(09:23):
agencies to implement best practices and enforcement and adjudication, commanding
agencies to make advisory opinions more widely available, demanding that
regulations be signed off by political appointees rather than career staff,
addressing MENSRAA, requirements and regulations, et cetera, et cetera separately
in a different EO, President Trump directed OMB to re
promulgate the two thousand and three version of OMB Circular

(09:44):
A four, which doubtless all of you have read recently.
You should in all SERI races because a governms agency
costs benefit analysis and is a tremendously important important document.
Ricky Rivez, the outgoing OIRA administrator, ha modified OMB Circular
A four, and President Trump's commanded the old version be

(10:05):
brought back.

Speaker 7 (10:07):
Second, President Trump has revived his to.

Speaker 8 (10:10):
What's known as his two for one Executive Order, except
it's no longer two for one. It's it's ten for one.
As you may have heard, this is EU fourteen one
two UH. He also revived the reg budgeting requirement from
the first term, with agency regulatory budgets to be set
by the OMB director and UH and third UH and
quite differently from the first term. President Trump expanded a

(10:32):
LIRA review to cover the independent agencies in most almost
ray indeed.

Speaker 6 (10:41):
Is there hooray, No, no, we're not doing that.

Speaker 8 (10:47):
Dedrel I think refers to the fact that Ohia administrators
at both parties for many decades have have argued for this,
for this change, but no other. But it hadn't happened
until until now, so rather rather exciting. So now these
are important changes, no doubt about it. And they've of
course all been the product of unilateral presidential action. No
congressional action has been taken yet. I want to suggest

(11:10):
that for the most significant reforms, we do need congressional action,
and that's for three reasons. WI I want to touch
on very briefly before passing the baton. First, many, perhaps
all of these changes are destined to be temporary. Indeed,
regulatory process reforms are are temporary, apparently in the.

Speaker 7 (11:35):
Just in standard order.

Speaker 8 (11:36):
At this point of course, many of the reforms that
President Trump just recently recently made have already been rescinded
once in the in the Biden Biden term, so they're
likely to be rescinded again. And I think quite unfortunately
that the newer actions are likely to be reversed as well,

(11:56):
and when the next democratic administration takes office. I think
that extension of AI review to the independent agencies shouldn't
be a politically controversial issue, but manifestly it is when
when it occurs in conjunction with other, you know, more
politically sensitive changes that are happening right now. So Congress
can make permanent changes, the president can't make permanent changes,

(12:20):
and in today's political climate, has changes driven by the
White House are not likely to be permanent. Second, there's
there's just a lot that even presidents who want to
make the most aggressive kinds of changes to the regulatory
process can't make. Exhibit A is, of course, the gamut
of district court litigation that that just about any important

(12:42):
regulation from administration of either party has to run these days.
I could mention others, but I'm pretty short on time,
so I'll move on and just say. Third, and perhaps
most importantly, aggressive presidential regulatory reform, whether it's regulatory or
deregulatory in nature, actually has the effect of expanding the

(13:04):
presidential footprint, even if it contracts the federal regulatory footprint.
It's a bit paradoxical but I think it's true. The
more aggressively presidents regulate or deregulate.

Speaker 7 (13:18):
The more they seem to be the.

Speaker 8 (13:20):
Arbiter of domestic policy, really a kind of legislator in chief,
And the more the presidency therefore seems an existentially necessary
prize for our various domestic factions to fight over. So
if we think, and I want to hope to explain
later in response to questions, what we ought to think
that one of the gravest problems that our regulatory system
poses is its tendency to exacerbate factionalism and hints to

(13:42):
divide Americans, then we should be concerned about regulatory reform
driven solely from the White House, and we should welcome
the role of Congress, whose role, after all, the Founders
would have said, is to establish laws that are supported
by a broad consensus of Americans.

Speaker 6 (13:56):
Thank you, Thanks so much, Paul. Thanks. We'll hear from
Professor Bagley.

Speaker 2 (14:03):
Yeah.

Speaker 9 (14:03):
I am thrilled to be here and happy to pick
up on where Paul left off, because I couldn't agree
more so many of the challenges that we face our
downstream of the fact that Congress is so dysfunctional, so
riven by political polarization. Bringing Congress back into the picture
would be terrific. But there's a reason that Congress doesn't
tend to get into the picture when it comes to

(14:25):
regulatory reform. It's because it's not especially sexy for any
particular industry group. It's not particularly sexy for any individual
member of Congress. When you say to your constituents, I
am going to change the APA, they do not thrill
to your words, and so it is very difficult to
build a coalition for regulatory reform. It's easy for an

(14:46):
industry to seek a handout or to seek some kind
of regulatory relief that's targeted. It is quite hard to
get anybody to tinker with the terms of the APA.
On top of that, it's doubly hard because during our
Republican a minute, you might think they'd be inclined to
adopt tighter rules on the administrative state. After all, the
concern about unelected bureaucrats imposing their will on Americans is

(15:10):
pretty prominent in conservative legal thinking. But the trouble is
that constraints when you're in charge aren't so great.

Speaker 10 (15:18):
You'd prefer not.

Speaker 9 (15:19):
To be constrained. So there's no way that President Trump
is going to sign the Rains Act. He doesn't want
to be rained in. He's not going to sign the
Regulatory Accountability Act. He doesn't want accountability, and that means
that you're not going to get that kind of congressional reform.
Which is why I'm going to focus fight the prompt
a little bit and focus my comments on what we're
seeing emerge from the executive branch and why I think

(15:41):
it's an unfortunate missed opportunity to perhaps open up a
conversation with Congress. So I am going to talk about
that four letter word Doge. So Doge, of course, is
a little bit hard to pin down, but I think
the place you want to start in trying to understand
what Doge was all about was ap from the vig

(16:01):
Ramaswami and Elon Musk at the end of last year
in the Wall Street Journal laying out kind of three
big objectives. First was personnel reform in the federal government.
The second was regulatory reform and really regulatory cutbacks, cutting
back on regulations that are holding America back. And the
third was immense budget cutting to the tune of potentially
two trillion dollars. This if you kind of got stripped

(16:24):
away the verbidge a little bit and really kind of
peered at what they said actually looked a lot like
the kinds of you know, Blue Ribbon Commission type reforms
that we've seen across different administrations, especially conservative administrations. It
was a call for more limited government, for reductions in
federal spending, and for efficiency in government. But there was

(16:48):
a tell, there was a little little mention in the piece.
They said, we're not gonna We're not going to work
with Congress. We're going to do this all on our
own and within eighteen months.

Speaker 10 (16:58):
And I think when you saw that, you thought to
your you might.

Speaker 9 (17:00):
Have thought to yourself, wait a minute, how is this
exactly going to work? Because when it comes to regulatory reform,
getting rid of regulations requires you to walk through a
rulemaking process. It is time intensive, it's resource intensive, it's difficult.
Getting anything done on regulatory reform is challenging. It's easier
to work through Congress. They can sweep aside regulations in

(17:21):
one fell swoop. On the budget, well, you know, the
biggest spending in the federal budget is the entitlement programs Medicare, Medicaid,
and Social Security. You can't change spending by tinkering with
you know, executive branch programs that are you know, when
it comes to overall deficits just a blip.

Speaker 10 (17:43):
So that too requires you.

Speaker 9 (17:44):
To work through Congress, and they weren't inclined, and that
left personnel reform. But there too, the Civil Service Reform
Act is the law, and that's going to constrain what
they are able to do. There are lots of problems
in the civil service and lots of reforms that we
should pursue. It is way too hard to hire and

(18:06):
it's way too hard to fire people. That is absolutely
the case. And both parties have been unwilling or unable
to actually address the very real problems that we've got
in our civil service system.

Speaker 10 (18:17):
But in order to fix them, you got to work
through Congress. So what happens.

Speaker 9 (18:21):
So the President takes office and vivik Ramaswami is dudged
out of DOGE and we are left with Elon Musk
who says, I'm not going to work through Congress, so
I've got to cut the budget, cut personnel. I'm gonna
not really worry too much about regulations. I guess they'll
work themselves out at some point. And what you see

(18:44):
him doing is using the tools that he has to
try to make as many changes as he can. But
of course he's tightly constrained. He can only cancel contracts,
he can only roll up some fairly minor in the
grand scheme of things federal agencies. He can't touch the
big picture stuff. So instead he goes through and he.

Speaker 10 (19:08):
Vandalizes.

Speaker 9 (19:10):
He fires as many people as he can, he rolls
up as many contracts as he dislikes, without much care
about whether those bureaucrats are good, effective, or whether they
are in fact, and whether those programs are good or effective.
The idea seems to be we can always bring it
back at some later point, But of course it is

(19:30):
much easier to destroy than it is to create. You
might have thought that Dog's charge was to improve government deficiency,
just to pick and choose among those programs that worked
well and those that didn't. But instead they seem to
be going at the federal bureaucracy with a pretty tiny chainsaw.

(19:52):
The upshot of all of this is a missed opportunity
to reform government. Because it is the case that Dog
is onto something important. The federal government does not work
as well as it should, It is layered over with process,
it is encumbered by intrusive judicial review. Sorry, it is

(20:15):
way too hard to channel our public priorities into policy.

Speaker 10 (20:20):
And I think that even though I am not aligned.

Speaker 9 (20:23):
With the current administration, I think in general, we need
to be much more receptive to the possibility that needed
changes have to come. That we need to be able
to move quickly and effectively that when Congress passes the
Inflation Reduction Act, we can actually spend the money to
build in this country, that we can actually adopt regulations

(20:44):
that respond to the current moment. Right, So, there are
changes that are needed, but nothing constructive is going to
come out of DOGE.

Speaker 10 (20:53):
It is regulatory reform theater.

Speaker 9 (20:57):
And once it's done, once Musk goes back to his companies,
once he just leaves the rubble, it's going to be
that much harder to hire good people to come into
the federal government. Why would you want to sign up
for a lower paying job to serve the public when
the next Republican administration might come in with the same
tiny chainsaw. Why would you sign up if that's the

(21:17):
kind of job security you're going to get. So again,
there are real problems that doses identified and the real
missed opportunity to actually address them in a fundamental and
lasting way. And I am concerned that we will all
bear the costs collectively for this this vandalism.

Speaker 5 (21:37):
I have a lot of questions about that, but I'm
we're in hear from Professor nonex.

Speaker 11 (21:42):
Great, Okay, So I'm going to pick up on a
few themes that I've already been brought out in some
of the comments. One is going to be the likelihood
of congressional transubstantive regulatory reform. Despite the theme of this symposium,
I think I'm going to say, I'm not holding my breath,
and I'm going to look at a little bit history
as to why I'm not. The second theme, I think

(22:03):
is the stability or longevity of regulatory reform, and a
little bit contrary to Paul, I think I'm going to
say that, actually, we have seen a lot more stability
right EO twelve eight sixty six, thirteen five sixty three.
They have lasted, you know, throughout different bipartisan administrations.

Speaker 3 (22:19):
I'm going to sort of puzzle about why that is.

Speaker 11 (22:22):
And sort of reflect on, you know, what those trends
might portend for the future.

Speaker 3 (22:27):
Of bipartisan reform.

Speaker 11 (22:29):
And then the last thing to pick up on Professor
Bagley's remarks, I'm going to focus a little bit more
on what I'm going to call sort of the ex
anti policy making from DOGE and so on, as opposed
to I think reg reforms overwhelming focus on the review
of agency rules after the agencies have have drafted them,

(22:49):
and I want to say there should be a lot
more focus on the earlier stage of the review now
the agency rulemaking process. Okay, so first, in terms of
the likelihood of reform, history is obviously not destiny, but
I think it is worth reflecting on successful moments since
the passage of the APA where there has been regulatory reform.

(23:11):
And I would say there have been really only two
bursts of it. The first was in nineteen eighty when
we have the passage of the Regulatory Flexibility Act and
the Paperwork Reduction Act.

Speaker 3 (23:23):
And it's notable that both of those.

Speaker 11 (23:26):
Were signed by Democratic President Carter and with Democratic Congresses,
and you know, this was a time of great economic stagflation.

Speaker 3 (23:35):
And I think part of my claim is going to be.

Speaker 11 (23:37):
That Congress successfully passes transubs into regular reform when they
need to take credit and symbolic politics that they are
doing something to address burden some regulations and you know,
macroeconomic conditions.

Speaker 3 (23:54):
Fast forward about fifteen years.

Speaker 11 (23:56):
The second burst I think of successful regulatory reform was
in nineteen ninety five to nineteen ninety six. You had
the passage of AMRA, the Unfunded Mandates Reform Act, and
then you also had in nineteen ninety six the Small
Business Regulatory Enforcement At which basically extended various parts of
the reg Flax Act. And then critically, of course, you

(24:16):
also the Congressional Review Act passed as a subsection of
that bill. And these were signed again by a Democratic president,
President Clinton, after heavy midterm losses in nineteen ninety four,
right amongst economic conditions, and he had to really be
able to say, I've got unfunded mandates, you know, and
we're also going to bring Congress back into the picture.

(24:40):
And that leaves me with some like puzzles as to
why reg reform hasn't passed.

Speaker 3 (24:46):
I don't have good answers, and I think.

Speaker 11 (24:48):
Maybe some of what FRSSA baglasaid might touch on this,
but you know, there's a puzzle. In two thousand and
three to two thousand and seven, we had a Republican president,
George W.

Speaker 3 (24:57):
Bush, with Republican.

Speaker 11 (24:58):
Congresses with very bills that look like the Rains Act,
the Regulatory Accountability Act, and so on. And you know,
these deregulatory presidents who you know are saying they want
reg reform, they just don't get traction. You know, they
die in they die in a lot of the committees.
The same is true in twenty seventeen to twenty nineteen,
right with President Trump and a Republican unified control of Congress.

Speaker 3 (25:22):
You know why didn't why, you know.

Speaker 11 (25:24):
Despite these appetite for this, you know, why didn't these
bills pass? And I think it's some combination of either
the macroeconomic conditions, but I suspect a lot of it
is because.

Speaker 3 (25:38):
Well, first of course, it's the filibusters. So you know,
you do you do, you do? You do need to
have some measure of bipartisan agreement.

Speaker 11 (25:44):
But more importantly, I think when you have unified control
with an executive branch that is already doing a lot
of reg reform, right, it does not behoove your own
party to say we're going to put shackles on the process.

Speaker 3 (25:57):
And I think for the same reasons, I am not.

Speaker 11 (26:00):
Holding my breath for a lot of these bills to
pass in the next few years. The second kind of
related point to this is that even when Congress does
manage to pass legislation, it needs to give both politically
and I think practically speaking, it needs to give a
lot of executive discretion to the president. If you look

(26:24):
at the history, the legislative history of you know, some
of the statutes I already discussed, there is you know,
hand to hand combat in making sure that a lot
of the provisions leave a lot of discretion for implementation,
you know, to the executive branch. I mean not least
AWIRA is one of the main actors. And a lot
of these bills you have Paperwork Reduction Act and so on.

Speaker 3 (26:48):
In addition to that, a lot of these statutes just
have so many terms that are just completely undefined.

Speaker 11 (26:55):
You know, the reg flex right, what is a significant
economic impact on a substantial number of small entities?

Speaker 3 (27:01):
Right.

Speaker 11 (27:03):
A lot of these analyzes requirements have just been folded
into the reg review EO twelve eight sixty six process.
The point just is is that you know, in practice,
the president it is just has a lot of discretion.
You know, under the statutes that have passed really to
make these regulatory reforms his own, and I suspect that

(27:24):
to continue. So finally, let me just kind of reflect
on some of the areas where I suspect we will
continue to see bipartisan presidential executive actions and regulatory reform,
because part of my thesis is that's that's where it's
going to be, and that's where it's going to remain

(27:45):
for all the dynamics that I've just discussed. And again,
I think that all of these features can be identified
in the executive orders that have persisted throughout many decades
again twelve eight sixty six and EO thirteen five sixty
three in the Obama administration, in the Clint administration. Okay,
so one is presidents want control, and we could get

(28:09):
into a whole, you know, sort of discussion which I
will not get into now about you know what exactly
the text of.

Speaker 3 (28:15):
The eos say.

Speaker 11 (28:16):
But you know, as a matter of practice, presidents have
been a certain control over the review of guidance documents,
and you know, more overtly, you know, and with Bush
and Trump, but democratic presidents too, in with different features.
There is a Orzac memo in the Obama administration, but
certainly as a matter of practice, there has been review

(28:37):
of guidance documents for a long time, and I suspect
that that that I suspect that to continue, and I
will see I think we will see an expansion of that.
For example, with NOFOHS notices of funding opportunities, you know,
with the importance of spending, I think you're going to
see a lot more executive branch oversight of of some
of those features. Secondly, there is language and EOTOS six

(29:00):
six about the importance of retrospective review. Right every president
wants to see kind of what regulations are on the
books and ask whether they should be revisited. There have
been various initiatives in different administrations from both Republicans and
Democrats to do to do more of that.

Speaker 3 (29:18):
I think it could be done in much better.

Speaker 11 (29:20):
Ways, and I think I hope some of the conversation
will be about the ways that, you know, presidents can
continue to do that in better ways. Third presidents of
both parties have endorsed cost benefit analysis, and I think
a really important principle that presidents have been really working

(29:41):
out is how to do it proportionately, meaning ensuring that
the most important regulations have what the technical term regulatory
impact analyses. For you know, now it's back to one
hundred million dollars or more, ensuring that the resources are
spent effectively, and you know, being more flexible about you know,
the rule that don't perhaps warrant the cost benefit analysis.

(30:05):
And then finally, as I alluded to in the beginning,
I think that presidents will continue to and need to
be more thoughtful about what I have called the ex
anti policy making process. So you know, EO twelve eighty
six six of course already has a process for some
of that. You know, those of you are in the
in the weeds and nerdy about this, know about the
unified Regulatory Agenda and the regulatory plan, and you know,

(30:29):
by most accounts, we could talk about the reasons why
they haven't been very robust mechanisms for prioritization and ex
ante control, by by which I mean sort of more
guidance to the agency before they go off and draft
the regulation. And I and I think that you know,
the Biden administration had a Domestic Policy Directive, which to

(30:55):
my knowledge was the first time that they started to
formalize some of this process and.

Speaker 3 (31:00):
I would like to see those trends continue.

Speaker 11 (31:02):
I think that is a very important mechanism and set
of norms and tools for ensuring that the policy, the
regulatory policy process is more rationalized. I would like to
see more cost benefit analysis at that earlier stage, you know,
because by the time that the rule comes in.

Speaker 3 (31:19):
For a review, I think it's too late. So I
will end there.

Speaker 11 (31:22):
I do have great hopes for bipartis and regulatory reform,
but I think the President is going to continue to
be the one.

Speaker 6 (31:28):
To push that. Okay, thank you, Professor Walker.

Speaker 7 (31:33):
Awesome.

Speaker 2 (31:34):
So, how many of you have not taken administrative law yet? Okay?

Speaker 7 (31:39):
Good?

Speaker 2 (31:40):
So I the Administry Procedure Act. If you don't end
up taking administrative law and you end up wanting to
challenge an.

Speaker 5 (31:48):
Agency action, everybody has to take administration, I think.

Speaker 2 (31:52):
So all of law now it is all of law.
So the Ministry of Procedure Act, though, kind of sets
the default rules for how agencies can regulate and how
courts review agency actions. And if you graduate from law
school without taking a myistry of law, which judge rows as,
you can't do, but you know, some of you might.

(32:12):
You might when you get into practice be like, well,
I'm just gonna look at the Administrative proceed To Act
and I'm going to follow, and I'm going to kind
of and I'll bring my lawsuit based on what the
text of the Ministry Percy Direct says. Those either taking
a mystery the Ministry of Law are laughing because the
text of the Ministry Perceed Direct isn't remotely what the
Ministry Perceed Direct means.

Speaker 7 (32:32):
Today.

Speaker 2 (32:33):
The mismatch between judicial doctrine and regulatory practice and the
text of the Ministry Perceed Ract is humongous and I
could spend a whole bunch of time talking about, but
I'm not going to. But I just want to kind
of flag that. Now, that doesn't mean the Congress hasn't
at times tinkered with the Ministry Proceed Direct. It was
enacted in nineteen forty six, and there have been about
sixteen amendments over the years, but it really hasn't been

(32:54):
the major amender of the Ministry Persued Direct. That's been
Judge Rows Court and the Supreme Court. They've rewritten the
Ministry Proceed Direct to modernize it to modern regulatory practice.
There's been a move amongst some textualists and originalists for
courts to return to the original procedure Administry Procedure Act.
I think that's an awful idea. I mean, probably the

(33:16):
worst they could possibly do. These are entrench practice the
reliance interest. There's predictability in the law, and it really
should be Congress that amends the Ministry Price Ract. And
I do think that Congress should have meend the Ministry
of proced To Act and quite frankly, adopt almost everything
courts have done as a global matter. The one area
where I want to say that Congress should do it

(33:38):
differently is and it kind of builds on what Professor
no was saying, is that if Congress does modernize the
Ministry Procedi Act, it should adopt a proportionality principle. In
other words, if it is a major, major policy making,
Congress should require agencies to engage a more procedure. Maybe

(34:00):
if it's a billion dollar rule, Congress should have to
require agencies to do formal rulemaking with a hearing, with depositions,
with testimony, with cross examination. And similarly, when courts review
major rules or really major rules, or what the Regulatory
Accountability A called high impact rules, they should also require

(34:22):
more It should be more search and review. Similarly, when
an AGENC changes its position, we should require it to
provide reasons, and the industry should be better reasons, more
reasons than if we're regulated on a blank slate. So
on one side of the proportionality principle is if it's
a really really important issue or a very huge, high
impact economic rule or other regulatory action, we should require

(34:47):
more of the agency and courts. Both Congress and courts
should require more through the Missurpercy dract. On the flip side, though,
if it is a very very minor fillip the details
implementation action, agency shouldn't have to engage a much process
at all. Maybe a general notice of what they're thinking
of doing in a final rule with a short statement

(35:08):
of basis and purpose. That's what the Mystry and Procedure
Actor originally required. And so I kind of view this
as if we're going to engage in Congress doing this,
that you have that kind of proportionality approach. The version
of the Regulatory Countability Act in the Senate that had
some by parties to support during the first Trump administration

(35:29):
actually did this on the high end. So when it
came to a billion dollar rules and some million dollar
rule one hundred million dollar rules that required more process.
But I think that that's kind of an example where
you might go. Now, you might say, if you took
administrative law, courts have already done this, and I think
that's actually entirely true, not as much as I want

(35:49):
them to, but at least on the high impact rules.
You see this, courts have changed arbitrary and capricious review
under the Ministry Procedure Actor require a harder look when
agencies change their positions or when the issue is really
really important. In Loper Bright on the flip side, and this,
I hope we kind of have more scholarship on this courts.

(36:10):
I think I think the Court said in Loper Bright
that if it's just filling up the details and statutes,
we're going to leave that to the agency and we're
not going to exercise our independent judgment on how agencies
fill up the details. And then the last point that
I'll end on is, of course, the major questions doctrine
is where a court where the court has kind of said,
when it's a really really major question, we want to

(36:33):
send it back to Congress. And I have argued, and
I think I would love to see Congress if they
end up doing modernizing the ministry. Proceed direct also codify
a process for Congress to fast track, up down review
judicial decisions that invalidate regulations on major questions doctrine grounds.
In other words, similar to the Congression Review Act that

(36:54):
Professor No mentioned. If a court says that the agency
does not have the power to regulate because it's trying
to regulate a major question without clear authorization, Congress, through
a fast tracked process, without amendments, without a filibuster, can
up down vote that and say no, actually, now we're
giving the agency clear authorization for that rule or any
substantially similar rule. So I hope, like if you take

(37:17):
anything out from the few minutes, I just kind of
talked about this that when we're thinking about regulatory reform,
we have to really be thinking about proportionality, and for
really important stuff, major value judgements, high impact rules, we
should require agencies to do more and should give courts
more power to review them. And for little the details,

(37:38):
we should really brush away the procedural requirements and a
harder look review and all our agencies do their job
in a fast, reasonable and efficient manner.

Speaker 5 (37:51):
Okay, this is there's a lot of radical agreement on
this panel.

Speaker 6 (37:56):
So let me start by asking you a question.

Speaker 5 (37:59):
So arguably we're at we're at a political moment where
there's a lot of attention on sort of the big
picture of how the administrative state has grown over time
and how that growth is inconsistent with certain fundamental features
of the Constitution. It is, you know, an intrusion on

(38:23):
a lot of individual liberties, whether those are social, political, religious,
or economic. That the bureaucracy is bloated and inefficient. You know,
these are sort of like the big picture things that
you know, Doge and the current administration are tackling, and
so I guess I'm interested in the panels thoughts on

(38:45):
is can Congress do anything about those questions?

Speaker 3 (38:48):
Right?

Speaker 5 (38:48):
What is you know, a lot of the reforms that
we've talked about are you're kind of on the margins.

Speaker 6 (38:54):
How do we review things?

Speaker 5 (38:55):
You know, how do we you know, how do we
do cause benefit analysis or something? And these are really
important questions. I was the Owire administrator. I think they're
really important questions. But something bigger is underway in the
executive branch and so and you can say it's good
it's bad, but if Congress should be addressing some of
those big questions, and maybe Congress, you know, to really

(39:20):
have those reforms take hold, or have them take hold
in a lasting way, you have to have Congress do something.
I mean, what are the chances of that type of
substantive reform in Congress, because that is sort of the
big regulatory reform question in a sense.

Speaker 9 (39:37):
I think people underestimate the demand for government and the
demand even for regulation, including from private sector actors. And
so there's a conceit that runs through that what we
can do if we can just squeeze hard enough, we
can squeeze the federal government into a tiny little box.

(39:57):
And I think a lot of the rhetoric of unelected
bureaucrat it's a lot of the concerns about you know,
heightening judicial review, about more process, about even getting rid
of civil servants, and shrinking the size of the federal workforce.
Respond to that impulse that something has gone awry. I
actually don't think anything has gone awry constitutionally. I don't
think the Constitution has anything to say about the size

(40:18):
or scope of the federal bureaucracy. Like I think it's
up to Congress, And that's where I think what we're
seeing from the executive branch. I think it's going to
run headlong into the entrenched interests that have led to
the development of this regulatory state. So I don't think
we're likely to see big changes, Like what would that
look like?

Speaker 10 (40:37):
Like do you want to get rid of medicare? Like specific,
do you want to get rid of Social Security?

Speaker 5 (40:41):
Well? What about what about substantive statues? So a lot
of the statues that we've talked about are more structural,
But what about statutes that you know, withdraw delegated authority
from agencies, Right, so the agencies are doing less or
Congress can reduce the budgets of those agencies, or reduce
the size of those agencies, you know, to maybe.

Speaker 6 (41:04):
Sharpen and reduce their missions.

Speaker 5 (41:06):
Right, There could be substantive statutes that simply just take
power away from the.

Speaker 9 (41:11):
Executive Yeah, great, get it through Congress. I just think
it's much harder. It's easy to talk about it in
the abstract, but actually getting this through Congress when there
are there's the demands for this kind of government action
are often quite real. And I guess what I was
taking a step back often what I hear is, let's
cripple the bureaucracy and that will somehow lead to a

(41:32):
smaller state.

Speaker 10 (41:33):
And I actually think that's just not true.

Speaker 9 (41:35):
What you get is a crippled, big bureaucracy and that's
like bad for everyone. Like what I would like is
a more effective bureaucracy that responds to what Congress wants.
And if Congress wants to shrink the size of the
regulatory state, great, that's fine. But I think trying to
do it on the back end through our legal tools,
I think is the wrong way to go.

Speaker 10 (41:54):
About the problem.

Speaker 5 (41:55):
And you don't think you don't think there's any appetite politically, there.

Speaker 9 (42:00):
Might be some in local areas, and like again, like
I think, go for it, but I think the conceit
that like what the American public wants is a radical
diminution in the size of the federal government.

Speaker 10 (42:10):
Yeah, sure, in the abstract and the like what specifically
do you mean? And I think as soon as you ask,
what was that?

Speaker 12 (42:19):
Education?

Speaker 9 (42:20):
Fine, but like the Department of Education is like a
tiny little part of the federal government, Like it's not
a big deal, like in terms of federal spending or
actually effect on the ground. Most education work happens locally
at the state and local level, so you know, fine,
but you're still fiddling at the margins.

Speaker 3 (42:40):
Yeah, just two thoughts on this.

Speaker 11 (42:42):
So I think part of the answer to your question
depends a little bit on and you clarified a little bit.

Speaker 3 (42:47):
But I think there's like two dimensions on which we
can understand, like what can Congress do to be like
Doge right?

Speaker 11 (42:52):
So one is I'll start with a substantive and then
the second is like government efficiency, like what could it
do with government efficiency?

Speaker 3 (42:59):
So, you know, on the substance, we just had a.

Speaker 11 (43:03):
Whole panel where I came out kind of thinking, gosh,
there really isn't much Congress does effectively in revisiting you know,
a lot of its old statutes.

Speaker 3 (43:16):
So then that leaves me with, gosh, isn't.

Speaker 11 (43:18):
There more of a role for the executive branch, who
is the arguably the best positioned to understand, you know,
which statutes are dated? You know what authorities do we
need to serve more of the information expertise provision to Congress. Right,
Like we heard that Congress needs a lot more staff. Well,

(43:40):
the executive branch has that staff, Like let's have some
more cross pollination, you know, and there's a number of
different tools that have already sort of a risen to
help with that. So there's, for example, a lot of
detailing that happens between the branches.

Speaker 3 (43:55):
I would love to see that continue, but more in
a targeted way.

Speaker 11 (43:58):
I would love to be creative to think about how
can we get the executive branch to tee up in
some systematic way, proposals to Congress to revisit some of
its substantive statutory authorities.

Speaker 3 (44:12):
Now, I don't know.

Speaker 11 (44:13):
How optimistic or pessimistic we might be about that, but
you know, this is the kind of cross institutional dialogue
that I would love to see more of. The second
just thought about efficiency. You know, Congress has tried to
create tools for that. They created the Inspectors General, They've

(44:33):
created the Government Accountability Office, and you know, we can
talk about, you know, the limitations that each have, but
you know, there is an institution that is supposed to
exist for that, and I think I would like to
see more of the debate about, you know, how can
we improve these institutions because to me, what I see
as the squandering of the potential of DOGE, because I

(44:56):
do think that there is so much a radical reform
that that does need to be done, you know, I mean,
don't get me started on how hard it is to
change technology and government like nightmare, and it should not
be the nightmare.

Speaker 3 (45:08):
But what I think the opportunity that's being squandered is
doing that through.

Speaker 11 (45:14):
Despite Musk's claims about transparency, I think that it's not
true transparency in terms of you know, like the Inspectors General.
You know, there are reports and there are processes that
I think could help legitimize some of these radical reforms
that have them stay longer and garner more public support.

Speaker 5 (45:35):
Can I just ask either for you and also for
the other speakers to just say, I mean, if there
is sort of a sense that there is a lot
more that could be done, and I think there's some
agreement that there are a lot of things that could
be improved in the government. We may disagree on how
far to go or what to address first, But in
that scenario, isn't there a place for the executive who

(45:57):
can act with energy and dispatch?

Speaker 13 (45:59):
Right?

Speaker 5 (46:00):
You know, when I was the head of a wire
I often said my primary role was to operationalize the
unitary executive. You know, that was sort of how I
thought about my role. And you know, so you know,
you know, there are various criticisms. You could launch a doge,
but like maybe something like that is necessary to get

(46:20):
things moving, even if it's not perfect or you know,
I mean, the executive branch is the one that's well
situated to get things going if there are problems. So
I'm interested in your paneless thoughts about that.

Speaker 8 (46:33):
Yeah, so I couldn't agree more with that. I think
what we what we need is the energy of the
executive to get things started and the stability that Congress
can confer to wind things up or to make the
changes permanent.

Speaker 7 (46:45):
Right.

Speaker 8 (46:45):
And the problem that I see is that is that
we don't have the ladder, and indeed we are probably
Congress is disincentivized to act, and because voters are disincentivized
to demand congressional action. And the reason that DISTANCE and
advised to do that is because the executive can can
make a lot of changes without without congressional action. As

(47:09):
I made the case for a few minutes ago. It
can't make the kind of of changes that we actually
need at the end of the day, but it can
certainly do enough that it can kind of frankly draw
attention to its to its activity and and and capture
the attention of voters who may be persuaded that all
they need to do is channel their aspirations for regulatory
reform into the into the executive branch.

Speaker 7 (47:31):
I think would be quite a bit better off if if.

Speaker 8 (47:33):
There was widespread acknowledgment that the executive is an indispensable
initiator of action on regulatory reform, but Congress's blessing is
needed to at the end of the road.

Speaker 2 (47:46):
Yeah, I'm the first kind of larger Like, is Congress
going to do anything? My answer is, well, you kind
of have to start with maybe a conference of the
five hundred or six hundred sharpest conservatively or Tarrian future
lawyers and leaders and government and sit down for a
day and a half and talk about how we really
need to revitalize Congress and hopefully someone on the left

(48:09):
is doing something similar, and we start having these conversations
about what do we want our government to look like.
And once we have those conversations, where I see the
Supreme growing as kind of in ways that seem a
little bit in conflict on the surface but actually make
perfect sense when you put them together, and one is
a unitary executive that the political leadership that the president

(48:32):
ultimately is going to be controlling all the power that
Congress has given and maybe the constitution we can debate
about the power the Constitution is the president. And on
the flip side, we also see Supreme Court saying, but president,
you cannot use the administrative state to use old statutes
or misfit statutes to make major value judgments that we

(48:53):
have not given you. You know, there's going to reinvigorate
non delegation or major questions, or we'll pro bright get
to Chevron. And I kind of see the first you're like, well,
that doesn't that get rid of presidential power or no, No,
these aren't actually entirely consistent. A president that has the
energy to do whatever Congress has given them, but a
president that does not have the legal ability to do

(49:15):
things that Congress or the Constitution does doesn't allow them.
And I think that's the vision. And if you think
about kind of proportionality and things like that, it's trying.
I think if you're reading Justice Gorsic in Chief Justice Roberts,
they're trying to send a message that we think Congress
should make the major value judgments now, is that is
a right right? As an original matter, I have no idea.

(49:35):
I also am not like a huge fan. I think
about administrative state through originalist terms because what we have
today is not what we had then, and so I'm
kind of trying to operate in a second best world.
But in that second best world, I see these that
the Court is trying to kind of push Congress to
do its role. Now, they're not going to do its
role just because the Court reintegrates an on delegation doctor

(49:56):
and gets a chevron. I mean that that's wildly unrealistic.
But I do think they're trying to kind of signal
that that's the vision of government that the current majority
of the Supreme Court has. As a policy matter. I
actually really love that vision. Let's put a side presidential
community and other stuff, which I think is just a sideshow,
But the core value of president is the one that's
making kind of controlling the executive branch. But Congress is

(50:16):
making the major value judgments. Is a world I can
live in. Fortunately, we don't really have the Congress doing
that yet, but I hope they do.

Speaker 11 (50:25):
Just offer a thought on this too, And I think
it also speaks to what policing about Congress's role. So
I absolutely agree that the executive branch has such an
important role in initiating and it is not a coincidence
that I think DOJE had a precursor right the US
Digital Service, like in the executive branch, and because I
think the executive branch, again consistent with an earlier theme

(50:46):
that I proposed, has the information to know sort of
what structural, transubstantive reforms are really necessary.

Speaker 3 (50:53):
But what I would like to see.

Speaker 11 (50:55):
Is Congress through the structure of the Executive Office of
the President. I think that's a real role where they
could have created a statutory office for something like the
US Digital Service, you know, that would create a home
within the EOP for a lot of these initiatives to
be put forward. That would have the benefit of not

(51:17):
having a Doge like entity where we're worried that this
is just unconstrained discretion. And at the same time, usually
when you look at the history of these statutory offices,
they're often coupled with transparency enhancing measures like reports to Congress,
for example, And I think that that's a really promising
area to address some of the real needs I think
in government right now, I.

Speaker 2 (51:39):
Wanted to pick up where Jennifer or Professor Noah's that
on like agencies playing a role in legislative process. I mean,
it turns out, surprise, every single agency has a legislati
affairs office and they review every single piece of legislation
that relates to them because Congress reaches out to them
and ask for technical drafting assistance. And I'd have to
note if what Professor Adler mentioned the last panel became

(52:02):
reality and we had regular reauthorization of statutes as government agencies,
guess what's going to happen. Those technical drafting experts of
the agencies are going to sit down with the Congressional
staff and say, this is where we need you to
tinker with the statute. We need a little bit more
authority here, or maybe you can get rid of this
section because we don't do that anymore. And so it's
already the infrastructure is already in place for what Jennifer

(52:24):
Professor no visions, but we don't have a process in
Congress to kind of engage on that. I think that's
something that could really happen if we started to have
more regular authorization that happens in the Farm bill all
the time. The USDA comes to the table, and you
see kind of some bigger, big changes happens with the
FAA when they do reauthorization, think about drones. Unlike, the
agency came in and help Congress kind of figure out

(52:45):
how to give the right authority to the agency in
order to kind of address those emerging problems. So we
have that infrastructure, we just have to use it more.

Speaker 5 (52:55):
Okay, there were some comments about the Court's role in
all of this, so I'm interested to know from the panelists.
You know, it seems to be a lot of the
judicial developments in terms of administrative law and the regulatory
state are a kind of conversation between courts and the
executive branch. You know, Okay, we're going to cut back

(53:16):
on Chevron deference. You know, major questions doctrine. Major questions
doctrine is really sort of a signal to the executive branch.
You know, you can't address major questions unless you have
explicit statutory authority. But what the Court hasn't done, the
Supreme Court hasn't done, is engage in I think, in
that same kind of way with doctrines that more directly

(53:36):
operate on Congress, like the non delegation doctrine.

Speaker 6 (53:39):
And so.

Speaker 5 (53:42):
Well, one, I guess I'm curious. Do you think that
is at like, sort of at a high level an
accurate description of what the Court is doing? And do
you have any thoughts about why that might be the case,
and yeah, do we.

Speaker 6 (53:56):
Think you know?

Speaker 5 (53:57):
No, I've written a lot about non delegation. I think
it's important, but we'll see.

Speaker 9 (54:02):
Yeah, yeah, I think that's a reasonably fair characterization. I
might push back and say that the intensity of judicial
constitutional scrutiny of Congressional action on the First Amendment space
has intensified. You could argue that the major Questions doctrine
is in fact the revitalization sort of sub rosa of
the non delegation doctrine. I think you could make arguments

(54:24):
about the way that, you know, aggressive statutory interpretation as
a way of pushing back on Congress.

Speaker 10 (54:31):
But I think in general you're right.

Speaker 9 (54:33):
But the reason for that is because we believe in
legislative supremacy. We believe in a democratic process that Congress
is supposed to control. I think we've lost track of
that a bit, in part because Congress has been so
dysfunctional and so riven, and you know, they don't do
nearly as much on substantive legislation as they once did.

(54:53):
And I think, what theme you're hearing from all of us?
I think I think it's safe to say that we
would disagree vehemently about the content of Congressional legislation, but
I think all of us would want Congress to get
back into the mix. And I think what I find
disturbing about the current moment is not that the courts
aren't doing more to ride herd on I think it

(55:14):
will be a huge mistake. What I find disturbing is
the lack of interest from the Trump administration and turning
to Congress for almost anything. And that worries me as
a long term trend, I mean, as a way of
diminishing the role of Congress, of diminishing the importance of
the rule of law. You know, the way that the

(55:35):
Trump administration is treating legal constraints as often as a
really just ignore, bulldozing them in ways that I think
are quite troubling for the long term health of the republic.

Speaker 6 (55:44):
Isn't that a development that's been going on for some time? Though?

Speaker 5 (55:47):
Right President Obama said, I have a phone and a pen, right,
I mean, this isn't It isn't anything.

Speaker 9 (55:52):
If you have a dysfunctional Congress, it creates lots of
incentives for the president to push back and to push
up to the limits of his or her legal authority.
But you know, there was a long discussion at the
previous panel about whether what's happening today is a difference
in degree or of kind. We could debate that, and
I'm the first person to admit that, yes, there have

(56:14):
been excesses under both previous Democratic and Republican administrations.

Speaker 10 (56:19):
This feels different to me.

Speaker 9 (56:20):
We could argue whether it is, but this feels systematically
like a cavalier disregard for what came before in a
way that I think is troubling and potentially quite destabilizing.

Speaker 2 (56:33):
Jew I think you're like largely right, although at the
same time, what immediately came to mind is anytime that
and this is press or Medicin's this is more hurting
any of the Congress tried to kind of innovate in
ways to either make it easier to legislate or control
the executive branch. The Court takes a formalist turn, which

(56:54):
I completely understand, and a lot of times I agree
with them, but they you know, one House feedo. That's
a brilliant tool to try to get legislation going, and
we can't do that controller generate general like, we need
to try to get a more fiscally responsible executive branch,
independent agency heads that are by part like that have

(57:14):
partisan balance or slight majority for the president, so that
we can have kind of more vibrant, like controlled I mean,
all of these I can go on and on, but like.

Speaker 5 (57:23):
So we should fix Congress by having them do lots
of unconstitutional things.

Speaker 6 (57:27):
You know, I would I would that your proposal of
Professor Walker, I.

Speaker 2 (57:32):
Would welcome a constitutional amendment to bring back the one
House feto. Really I would. Yeah, I like the one
House feto now and I probably wouldn't have said that
ten years ago. But I'm trying to find ways to
make it easier for Congress to legislate so that Congress
addresses the major questions. And if one of those is
that it has the ability to take back some of

(57:52):
that power off it doesn't like if one House I
like that. I like that. I mean, we got to
think of it now. The other independent stuff, it's a
little bit more complicated obviously civil service, huge fan of
I think when it comes to agency had leadership, I'm
more of the unitary executive camp. But I do think
when it comes to one house feed, don't I like that?
Do I think it's consistent with the constitution. No, I'm
a pretty big formalist, but I also think the constitutions

(58:12):
should be more easily amendable. That might be a good
topic for.

Speaker 5 (58:16):
The next So you're happy with our second best administrative
law world.

Speaker 2 (58:20):
He's happy with it.

Speaker 6 (58:21):
You said you're happy with it. That's what you said.

Speaker 2 (58:23):
Well, I'm happy not being constrained by originalism when it
comes to the Ministry of State.

Speaker 6 (58:32):
And I'm the judger. I can't say anything, you know.

Speaker 5 (58:35):
Because all these cases are come before me, and you know,
and Professor Walker says he likes our second Brest post
New Deal administrative world.

Speaker 6 (58:45):
We need somebody else on the pail.

Speaker 2 (58:48):
He needs you to be in a public court, not
a trial court job, because you just completely completely misrepresented
by Judge Brown and I have been friends for a
very very long time. Just the same thing. There you go.

Speaker 11 (59:03):
Can I just offer a quick thought because I think
your suggestion is a really implicit or not like an
intriguing one that like maybe there's some argument to be
made that if the Court is going to be continued
to push the major questions doctor and post lope or
bright question mark, whether that should or can't will happen,

(59:25):
that there should be a related push for the courts
to scrutinize a little bit more how policy is made
within Congress.

Speaker 3 (59:36):
Okay, and that could be take a bunch of different forms.

Speaker 11 (59:38):
I was talking to Professor Mendelsohn last night about this
notion of legislative due process, you know, like maybe there
needs to come with it, you know, making sure that
like the process in Congress is actually you know, kind
of structured obviously by cameras and presentment, but even like
more than that to make these policy decisions in wise ways.

Speaker 3 (01:00:00):
And there's there's also the potential for like a little
bit more substantive review, maybe.

Speaker 11 (01:00:06):
More you know, not quite a pa arbitrariness, you know,
but you know, I think that you know, with you know,
with these grants should come some response, not grants, but
with these you know, kind of returning you know, making
sure that Congress is making these decisions question mark. I mean,
maybe there should be more roll over the courts to

(01:00:26):
make sure that that's exercise responsibility responsibly huge separation of
powers worries of course, but I think that, you know,
there's something intriguing there for for us to think about.

Speaker 2 (01:00:40):
I don't know, it's do we I mean, so we
make it even harder for Congress to legislate then, right,
Like my whole thing is, I want to make it
easier sort of get rid of the filibuster. I want
to make it easier for Congress to legislate and to
and to address the major value judgments. And I do
think it would be an absolute disaster a filibuster too.
And part of the problem is, and we were talking

(01:01:01):
about this on the side, like also when we think
about courts, like we generally think about the Supreme Court
because that's like what we do in law school, right,
you read the Supreme Court cases and a Minstry of
law or the DC Circuit cases because they're basically the
Supreme Court for ministry of law. But where is this
going to be played out. It's going to be played
out in the Eastern District of Texas and in you know,
it's going to be these nationwide forum shopping and so

(01:01:24):
I would really worry about giving the power to courts
to be reviewing the legislative process and then to allow
for some random judge in Texas or Hawaii wherever, to
be the one that makes the decision that then the
court has to I just I know, I want Congress
to have a lot of runway when it comes to legislation.

(01:01:47):
I'm trigued by the idea. I know you throw it
out to be preocative, but that would make it really,
really nervous.

Speaker 6 (01:01:55):
We open up to questions from the students. Are there,
How is it working with the microphones?

Speaker 2 (01:02:00):
Yeah?

Speaker 6 (01:02:00):
Okay, start over here. Oh what?

Speaker 7 (01:02:03):
Oh?

Speaker 6 (01:02:04):
Sorry, did you want to say something, Paul? Oh well, yeah,
I was.

Speaker 11 (01:02:09):
Just going to say, you know, like like Froze Bucks,
I think we'd all want Congress to become more involved,
but I'm not even if we want to make it easier.
I would rather have them not be involved than make bad,
bad policy decisions that aren't informed by like information.

Speaker 3 (01:02:25):
That's just a throwaway line, but I'm less sort of
like just Congress than any you know, for any reason.
I want them.

Speaker 11 (01:02:31):
I want everybody to make good policy decisions, and I
want to think about how can we empower them to
do that.

Speaker 14 (01:02:46):
Thank you to all of you. I'm Andrew Olson Threel
Notre Dame. Professor Bagley raised one motivation for regulatory reform,
which was, you know, when the Biden administration wanted to
quickly spend several trillion dollars, it couldn't. I have a
different motivation, which is the enormous burden that the current

(01:03:07):
regulatory system poses imposes on the American people. The most
recent number I've seen estimates that the CODA Federal Regulations
is now over one hundred and ninety thousand pages long.
And during the first Trump administration, despite the fact that
President Trump staffed Ohira with people who were firmly committed
to his vision of repealing at least two regulations for

(01:03:29):
every new one, the Pacific Legal Foundation claims that the
CODA Federal Regulations still increased by fifteen hundred pages.

Speaker 6 (01:03:37):
A lot of that was deregulatory actions.

Speaker 14 (01:03:41):
Okay, not all right, be a great debate later between
the two of you. So my question is it sounds
like the panel has been interested in how we can
pursue more perfect regulations. I would like massively fewer of them.

(01:04:03):
I would like to actually see the regulatory burden decrease.
Ronald Reagan often gets credit from conservatives for tax reform.
He said he wanted to simplify the tax code. The
length of the tax code doubled in length while Reagan
was president. And it seems to me like everyone talking
about reform is interested in allowing that kind of thing
to happen continually, forever into the future. Is there any
prospect for actually reducing the regulatory burden on the American people?

Speaker 2 (01:04:26):
And if so, what does it look like?

Speaker 7 (01:04:28):
Thank you?

Speaker 8 (01:04:28):
Yeah, So it's a good it's a good question. So,
first of all, we have to distinguish a course between
the length of the CFR and the and the burden
that that it imposes. Right, length and complexity are a
couple of factors that go into burden, but they're not
the only ones, uh to jud Drow's points. So, but
but putting that aside, look, I think I think professor
Bagley put it put it nicely. People want to have

(01:04:51):
fewer burdens and regulations and the right to want that.
They are very burdensome, right, and it does get in
the way of the CFR, and it's a current formats
in the way of many individuals and small businesses trying
to you know, go about their their their daily operations
and lives at the same time, though they also they do,

(01:05:13):
or at least in the past did when Congress created
the authorizing statutes, want particular particular goods that.

Speaker 7 (01:05:21):
That these provisions of the CFR are aiming at.

Speaker 8 (01:05:24):
So I think if you read Federals forty nine and fifty,
you find the Madison was pretty skeptical that constitutional deliberation,
that is to say, deliberation about the kind of constitution
you should have can can adequately occur in regular sort
of standard order politics. That you have to have a
special a special moment and a special process set aside

(01:05:48):
from the day to day of politics in which to
deliberate about those things, because if you don't, your desires
for good constitutional procedures come into conflict with uh, with
your your passions about the daily sort of uh, daily
political fights that you're that you're having, and the and
the the goods that can be pursued in day to

(01:06:09):
day politics. I think the reason that, notwithstanding that in
my view, quite quite intolerable burden of of of the CFR,
and not just the CFR, but the guidance interpreting it
and preambles and injudicatory opinions, et cetera. The reason that
that we don't see a will to action on that

(01:06:30):
is is that people are torn, right, And because people
are torn, Uh, Congress is torn and and and doesn't act. Now,
there's there's more to it than that, but I think
that's a that's a good place to begin. I want
to say also, though, that you know Congress has acted,
has acted piecemeal.

Speaker 7 (01:06:47):
Right.

Speaker 8 (01:06:48):
I think if if you'd said to any member of
Congress when when authorizing the administrative state in its current form,
do you do you want this kind of this kind
of burden right and describe the burden as you just did,
they would say no, right. But no one ever asked
them that question in an actionable form. They always ask

(01:07:08):
do you want to fix this problem, this very concrete problem,
by adding two pages of the CFR, to which the
answer is unfortunately too often yes, right. So that point
is just to reinforce the idea that you it's it's very,
very difficult to undertake the kind of reform that you
were describing in the ordinary political process, with all its
all of its passions and interests, I'll just add.

Speaker 9 (01:07:32):
I think I think that's right, and I'll co sign
everything you said there. The trying to do it at
the back end through judicial review, for example, I think
is a pretty bad way to go about it. I
think to the extent you're worried about procedural craft, I
am too worried about it, both for making it possible
for government to act and also make it possible for
the private sector to act. And one thing we lose

(01:07:53):
track of is any private sector initiative of any scope
or scale depends on government working effectively. You need permits,
you need permissions, and many of those permits and permissions,
as much as you might dislike them, aren't going away.

Speaker 10 (01:08:06):
And for lots of good reasons.

Speaker 9 (01:08:07):
We actually think it's important that you get a clean
air permit before you set up a new major manufacturing facility.

Speaker 10 (01:08:12):
And so when you.

Speaker 9 (01:08:13):
Dig down, you think like, oh, yeah, I don't love
regulations in the abstract, but that one's going to be
I agree we need some sort of So I think
getting private sector moving quickly entails some measure of government liberation.
And I think that's a counterintuitive move, and I think
one that i'd like to see more people play with.
If what you want is more private sector freedom, hampering

(01:08:35):
the government's ability to get rid of the procedural craft
strikes me as it's actually potentially counterproductive. There is a
risk of overregulation always when you liberate government, no question,
but there's also a risky that they just sit pat
and let the stuff just accumulate, so, you know, without

(01:08:56):
Congress on the scene, Like, it's really hard to get
that kind of reform. But I think trying to do
it the courts is just starting from the wrong end
of the picture.

Speaker 11 (01:09:03):
Okay, just a really quick I think it's like useful
to distinguish between different kinds of regulatory burdens. Like I
think that there are like administrative burdens, you know, we're
talking about like CFR complexity, you know, as distinguished from
there's a bunch of different ways you could you know,
to name this concept, but it's like regulatory costs or

(01:09:25):
just compliance costs and so on. I think we can
all be on the same page that it's a great
project to reduce administrative burdens.

Speaker 3 (01:09:32):
I think we would get a lot of bipartisan support
for that.

Speaker 11 (01:09:36):
But I don't I frankly don't understand the just the
singular focus on like regulatory costs, because regulations have benefits
as well, and I just puzzle of, like, how can
we not think in that benefit terms.

Speaker 3 (01:09:47):
I don't want to open a discusion about the regultorary budget,
but I just don't I don't understand why we would
think in that way.

Speaker 13 (01:09:52):
So Hi, So I was wondering, generally, what role does
ideological polarization play in the issue of why you can't
get regulatory reform, because, as Professor No pointed out, there
was reform in the eighties and nineties, which is around

(01:10:14):
the time when Democrats started to get a double digit
lead among the educated segment of the population. And so
I'm wondering if part of the calculus is just well,
in absence of regulatory reform, if we kind of just
let the civil service do what we want, we can
reasonably expect that low level personnel and mid level policy

(01:10:35):
makers can kind of be expected to be generally liberal
in their sympathies, and so they kind of have a
vested interest in not wanting to reform the bureaucracy as
it exists. I wonder if you have any thoughts on this.

Speaker 7 (01:10:47):
Thank you.

Speaker 2 (01:10:51):
I would just say I don't agree to all the
Professor Bagley that it's not a sexy topic for reform.
I mean, dose is all people want to talk about
right now. No, but no, but like but like doses
all people. I think there should and there can be
bipartisan support for for regulatory reform uh in Congress. I

(01:11:12):
just you look at how popular there is on this
waste and and and and I think I think progressives
or liberals also kind of will be able to see
some areas where it's politically popular for them to also
stand up and at least the ones kind of kind
of closer to the middle, like Fetterman or someone say yeah, yeah,
let's like let's let's make government work again. Let's let's
let's and so so on that front on the kind

(01:11:34):
of ideological balance. I mean, we had the debate last night,
and John One, I think apparently because you all, like
ninety nine percent of you all want to get to
the civil source anyways. But but I just think it's
just wildly overstated that the career civil service is like
out there to to you know, pursue some leftist and
and I also think just when you have political control

(01:11:56):
of an agency, that that matters a lot less. Now,
that doesn't mean that agencies aren't mission driven. Of course
they are, and also their outlier agencies like the ep
I don't know how many conservatives are going to go
work at the EPA as a civil servant. So that well,
let's have a conversation about specific agencies, which by the way,
does not include Noah. I spent way last night. I
couldn't go to sleep. I was looking at Noah. I mean,

(01:12:18):
there are a bunch of hurricane chasers like they're wonderful
people I've interviewed, like no John.

Speaker 7 (01:12:23):
No.

Speaker 2 (01:12:23):
But I don't want to revisit debate from last night.
But if you want to talk about the EPA, sure,
If you want to talk about ice on the other side, sure,
But I think as a general matter, we just don't
have this kind of wildly untamed civil service across the
administrative state.

Speaker 8 (01:12:38):
I think the ideological divide does matter on this question,
but I think the significance is more as follows that
those conservatives are a little more willing generally to favor
you know, less restrictive regulatory environment to promote private action

(01:13:00):
and uh, and you know, Democratic members of Congress, Uh,
Liberal Democratic members of Congress are a little more likely
to be worried about things like environmental harms and possible
malfeasts by by private economic actors and and and such things.

Speaker 2 (01:13:15):
Uh.

Speaker 8 (01:13:16):
And that comes down to a you know, a difference
in values that's not likely to to be resolved in Congress.
It's I think more likely to result in Uh. I
think you could see uh is uh you know, the
two sides coming to agreement on on some sort of

(01:13:36):
of moderate measures to you know, between between their two
sets of priorities.

Speaker 3 (01:13:41):
Uh.

Speaker 8 (01:13:42):
But uh, I think one reason you don't see that
is it's a lot easier and and and and more
and more sexy to use the term of the morning, uh,
to to to inveigh against what the president of the party,
contrary to yours, is doing. And and then and then
you cheer the action that the president of your party takes.

Speaker 5 (01:14:05):
Can I just say, you know, it's interesting with ideological
there's a lot of discussion about, you know, the bureaucracy
and things like that. And I have to say, my
experience at Auira overseeing a lot of the deregulatory efforts
in the first Trump administration is that perhaps the biggest
problem with getting things done is a lack of political
leadership at agencies, and honestly, that's often a bigger problem,

(01:14:29):
the intractability of even the president's appointees to do the
things that the president has said should be done in
the agencies. And you know, there are lots of reasons
for that, but honestly, I think in the agencies where
there is strong political leadership, there are always people within
the agency that those political appointees can work with to

(01:14:50):
get their things done. You know, they're going to be
bad actors in any organization or federal government or agency,
but by and large, where the agentencies were effective, it
was because they had strong political leadership, and where they
were ineffective, it was easy for those folks to say
it was the bureaucracy, but you know, it's often it's

(01:15:10):
important to look closely at what political leadership is doing
in those contexts where nothing is getting done.

Speaker 1 (01:15:26):
Hello, thank you so much to everybody for this panel.
My question is I tend to agree with Professor Walker
that Major Questions Doctrine has not really jump started legislation.
But that said, I'm very interested in Judge Row's point
about non delegation, and so I'm curious whether the panelists
think that, given what Professor Bagley said, there's a lot

(01:15:49):
of demand for these sorts of regulatory actions, whether non
delegation would be the sort of jump start that the
legislative branch needs.

Speaker 7 (01:15:59):
No.

Speaker 9 (01:16:01):
I mean, the non delegation doctrine is a constraint. It
takes deals off the table that you might otherwise want
to cut, and it makes it harder for Congress to
get done what would like to get done. And it
does so, I should add, without any kind of constitutional license.
There's no non delegation clause in the US Constitution. There's
no hint historical grounding for the non delegation doctrine. It is,

(01:16:25):
it is so, so you know, setting all that aside,
I think it would be just destructive to the kind
of rebuilding Congress project, which, look, you might not be
on board. A lot of folk distrust Congress. Nobody likes Congress.
But if you think Congress needs to play a more
assertive role, you know, getting the courts to back off
is what you should be investing in.

Speaker 5 (01:16:48):
I'm not gonna I'm not going to argue with you
about the history, but but you know, I have found actually,
you know, I've tended, you know, I've had written articles
about non delegation. But I have an as a judge
in how often it is that the courts the Congress
sometimes does legislate quite specifically.

Speaker 12 (01:17:07):
And.

Speaker 5 (01:17:09):
Oftentimes even in those cases, courts just sort of ignore
what Congress wrote.

Speaker 6 (01:17:14):
And I feel like that.

Speaker 5 (01:17:16):
Is sometimes an underappreciated problem, and so courts are sometimes
maybe not fully incentivizing Congress to write careful statutes because
sometimes when they do, courts sort of brush past them anyway.
So I do think it's a problem that many agencies
have open ended delegated authority. But it is also the

(01:17:36):
case that sometimes Congress is quite specific and courts aren't
paying attention.

Speaker 2 (01:17:40):
So on the non delegation point, I agree with Frser
Badley that a very strong version could be really, really,
really destructive if you want Congress to work, I will say,
and Presser Mendelson kind hinted to this last night on
the panel. Go read the US Chambers and brief in

(01:18:01):
the consumer research case the FCC Universal Service Fund, and
not surprisingly, you're going to see a proportionality principle approach
to the non delegation doctrine that looks a lot like
the Major Questions doctrine. In other words, that the more
important the question that Congress is given to the agency,
the more we expect more instructions from Congress. There may

(01:18:23):
be some things that are just so important that Congress
can't delegate them away at all. And then importantly for
anything that's minor implementation, like we really should that's a
policy decision and leave it to leave it to leave
it to the agency. And I think if they have
adopted that type of approach, it might work, but it

(01:18:44):
does make me really nervous to kind of jolt the
system with a really aggressive non delegation doctrin, which which
is why I don't think they'll do it at all.
I think that they're going to stick with littleber Bride
in Major Questions doctrine and less. Judge Row keeps on writing.
I mean, I haven't seen judge. You've been on the
bench for a while now, penalty.

Speaker 12 (01:19:02):
What's going on?

Speaker 6 (01:19:03):
This is the federalist socieber.

Speaker 5 (01:19:05):
Where I've been waiting deal no non doctation, maybe the
unitary Executive a little bit like like I'm not.

Speaker 3 (01:19:13):
Sure what's happening.

Speaker 2 (01:19:14):
I've been waiting. I mean, you know, you've been on
the bench for a long time. I've been waiting for
your opinion that provides an administrable standard for the non
delegation doctrine?

Speaker 15 (01:19:24):
Where is it?

Speaker 6 (01:19:25):
Got a good case for it? But it'll you know,
I'm you know, I'm still waiting now, you know.

Speaker 8 (01:19:34):
No, So I I do want to say, of course,
Professor Bagley is right that robust non delegation principal or
really any real non delegation too, would wait for it,
wait for it, would would take deals off the table.
But they're terrible deals that we shouldn't let Congress make
in the first place, and that that in fact the Constitution.

Speaker 2 (01:19:53):
Doesn't so uh right.

Speaker 7 (01:19:56):
So look, if you can find.

Speaker 8 (01:19:58):
A member of Congress who doesn't want to do something
in favor of clean water, I would love to meet
that guy.

Speaker 7 (01:20:02):
I don't think he exists. Every member of Congress wants
to do that.

Speaker 8 (01:20:05):
What they don't want to do is they don't want
to impose make the real choices that impose costs on
their constituents or the interests.

Speaker 7 (01:20:13):
That favor them.

Speaker 8 (01:20:13):
Right, So what they do is they reach deals that
that do something in favor of clean water. But what
it does is give power to an agency to do
something about clean water, and then they get to take
credit for doing something in favor of something that everyone
cares about, and they don't have to bear the cost
of making the hard decisions that implement the standard. Indeed,

(01:20:34):
they get to complain about the standard once it's once
the agency is acted. Right, So maybe a robust or again,
any real non delegation principle would require that Congress, when
it wants to take credit for doing something in favor
of clean water, could actually do something in favor of
clean water and actually enact substance of standards. That seems
like a like a great kind of deal to encourage

(01:20:55):
Congress to make. I also want to say, you know,
every ever graduating class at Harvard Law School, here's words
from a professor there from the I think, late nineteenth
century about the wise restraints that make men free. Maybe
Congress needs some wise restraints to make it free to act.
Maybe it actually can't act the deals that it would
make under an appropriate non delegation principle.

Speaker 2 (01:21:20):
Notice how he said maybe, though, I just got to like,
let's completely deconstruct the entire administrative state, and maybe it'll work.
Maybe it'll get Congress I want a little more certain questions.

Speaker 5 (01:21:29):
One is the non delegation principle constitutionally required?

Speaker 6 (01:21:33):
That's the first question.

Speaker 5 (01:21:34):
And if it is, then then do that because that's
what the Constitution requires. And I mean, you know, there
are other questions about, you know, the political valence of
what would happen in Congress, but those are there are
two separate questions at least I would submit humbly as
the moderator. Okay, maybe a question in the back. I

(01:21:55):
can't see what the lights, but why don't you give
the microphone to somebody in the back since you've had
a bunch of people of a friend.

Speaker 12 (01:22:05):
Hi, I had a question for Professor Bagley. So you
mentioned the phrase legislative supremacy, which is a phrase that
I usually hear referring to the British form of government,
not the American one. And I guess I'm just wondering
what you meant by that in the context of the
American system and whether we are ought to be one
of legislative supremacy.

Speaker 9 (01:22:26):
Yeah, no, it's a fair point, right, So using the
term loosely to refer to the fact that we are
a republic under the rule of law, and that In fact,
Congress is the and to be that confers power on
the executive branch to act and not to act, and
that Congress gets to set the terms of the game.
That doesn't mean that the Constitution doesn't impose constraints, but

(01:22:46):
those constraints tend to be pretty loose in practice. And
so when you're thinking about like who's driving the bus,
I think sometimes we're inclined to think the president is
driving the bus. But it's Article one for a reason, right,
that the Congress is the one that really is in charge.
And I do fear that in important ways we're losing
track of that. And I think all of us up

(01:23:06):
here think there's got to be a way to bring
Congress back into the picture in a more nimble, assertive
sort of thoughtful way. But to be honest, the politics
of it make it really hard.

Speaker 4 (01:23:21):
Here.

Speaker 16 (01:23:25):
Thank you all for being here today. My question has
to do with this non delegation issue, and we talk
about procedural rules in the context of agency law as
sometimes doing real work, i e. Having a procedural requirement
that an agency has to go through before they do something.
And I don't think we lose a lot of sleep
when an agency can't pass a rule because it can't

(01:23:47):
follow the right procedure. So, given the constitutional requirements of
bicameralism and presentment, it seems like there might be a
procedural rule for Congress before it passes law, and that
to the founders that difficulty was not a bug but
a feature. So if we want Congress or all this
law that does all this great stuff that we've all
been talking about today, why not leave it to the

(01:24:09):
states and make Congress follow the procedures the Constitution sets out.

Speaker 10 (01:24:13):
Thank you.

Speaker 2 (01:24:17):
I definitely don't think that we should allow agencies to
do something that I didn't go through by camals and presentment.
Definitely definitely agree with that. Hi.

Speaker 17 (01:24:43):
My name is Maria Valeramo one L at Notre Dame
Law School. My question is professor for professor No, can
you expand on your point that transparency in the regulatory
reform process would improve the permanence and effectiveness of doja's actions.

Speaker 2 (01:25:00):
Yeah.

Speaker 11 (01:25:01):
Sure, I mean, I think it's part of the theme
that we're trying to bring out about the possibility of
longevity and bipartisanship. I mean, I think a lot of
the outcry on the left in addition to the constitutional
concerns and someone it's just that.

Speaker 3 (01:25:20):
A bunch of things.

Speaker 11 (01:25:20):
So, you know, how we are understanding and learning about
DOGE seems to be through the media and like reports,
and there's a lot of skepticism that the media is
you know, who controls it, you know, and you know,
you know, obviously Musk is you know, using using x
to to talk a lot about this, and obviously there's

(01:25:42):
a conflict of interest and when we can rely on
on that and so so point number one is just about,
you know, the real possibility that does is doing.

Speaker 3 (01:25:51):
A lot of good things.

Speaker 11 (01:25:52):
I believe that, I believe that it that it has
the potential to, it may have already done a lot
of the good things. And I think that having more
more transparency and a sense of I think process often
affords legitimacy. There's often too much process, but I think
it has serves that value as well.

Speaker 3 (01:26:10):
And so that was kind of the thinking that like,
if we could have more of that, I think.

Speaker 11 (01:26:17):
It could substantively result in some really good reforms for
government that I think a lot.

Speaker 3 (01:26:22):
Of us would think need to happen.

Speaker 11 (01:26:24):
And then in addition to that provides some you know,
longevity to efforts like dose to continue continue these efforts.

Speaker 8 (01:26:32):
So I don't disagree that the the goods that Professor
No describes would would tend to follow from from those
kinds of of process and transparency reforms. What you would
we need to talk about what you would lose though also,
and what you would lose would would be would be
the executive support for the for the initiative, and related

(01:26:54):
to that, the the effectiveness of the of the initiative
on account of diminished energy.

Speaker 7 (01:26:59):
Right.

Speaker 8 (01:27:00):
So there's a reason that the Federals links energy and secrecy, right,
and also energy and unitaryiness right or sing or singleness.
So to the the the more a particular actor is
constrained by by process in general and and and and
transparency forcing procedures in particular, the harder it is for

(01:27:24):
it to be an an adequate channel for for presidential energy.

Speaker 7 (01:27:28):
So I think, uh, you would you would? You would
lose what.

Speaker 8 (01:27:33):
To my mind is the distinguishing and probably most promising
feature of of the DOGE effort.

Speaker 6 (01:27:42):
There's the question here.

Speaker 15 (01:27:50):
Hi, thank you. I can't get up because the desk
is my way here.

Speaker 7 (01:27:53):
My name is Eddie.

Speaker 15 (01:27:54):
I'm too well at Notre Dame law. And we've been
talking a lot about the as Judge raw pointed out,
policy outcomes, normative judgments about the administrative state. And you know,
ever since I heard about the Federal Society, you know,
maybe a decade ago, like one of the main problems

(01:28:15):
is it's emphatically the providence and duty of the judiciary
to say what the law is and not what the
law ought to be. And we openly acknowledge we are
nowhere near following the APA's text, which is what governs
this whole thing, which is passed by Congress, which was
authorized by the Constitution. So there's a major authority issue

(01:28:37):
that we haven't really talked about for some reason in
this feedslock panel. I was wondering about that, and then
I have my pocket Constitution in front of me. I
had to put out to make sure and Section one
of Article one says, all legislative powers herein granted, shall

(01:28:57):
be invested in the Congress United States. And then maybe
it was Federalist forty five that said, you know, the
powers of the federal government are few and defined. I
might be getting the number wrong, but it's one of them.
So we're talking and Tom brought the point which wasn't
answered about by cameralism and presentment, and how that needs
to happen to get federal law passed. How do we

(01:29:17):
get so far? Why are we not talking about that?
Why are we just talking about whether you know this
could be good or bad? Why not talk about the
fact that, like, do these people have the power to
rule over us?

Speaker 3 (01:29:30):
Probably not.

Speaker 6 (01:29:36):
We can add you to the panel, you guys, I.

Speaker 2 (01:29:43):
Will just say quickly, you know, I think it is
a very different panel to talk about Article one powers
and what congresshould be able to do. And I'm with
you that the powers that Congress uses today and quite
friendly that the Court has blessed them to use under
the Commis clause for instance, or just wildly disproportionate to
what that clause means. And so I'm with you on that.

(01:30:04):
That's not really this panel though. I mean, we're kind
of your right, we're kind of, but we have bought
into the idea that what we have. I do think though,
when it comes to statuary interpretation and that judges have
they do to say what the law is and not
what it should be. My worry is actually the should
be part as well, and I think the way that
the administrative law was kind of set up when it

(01:30:24):
came to that was to try to separate judges out
from their policy preferences. So the judges said what the
law was is what does the law mean? And leave
to the agency the policy side of that. And I
think what we're seeing now after Lower Bright and that's
a different panel, is we're seeing judges making the policy
judgments now in ways that whenever I hear the fetsack,

(01:30:48):
you know, judges are here to say what the law
is and know what it should be. I'm like, are
we still actually being faithful to that or not? I'm
not sure. I think that's a different panel as well.
But stary decisis is our law. It is the way
that we interpret statutes. And to do a full textualist
project to kind of rewrite the APA in response to
the courts were writing.

Speaker 7 (01:31:07):
And the e p A.

Speaker 2 (01:31:08):
I think it's kind of deeply ironic and weird. But
maybe that's not the greatest answer. Judge rawl disagree with
me in all this, but she can't because these cases
are going to come before.

Speaker 5 (01:31:17):
So they do this to a torture for me, you know,
just make me a moderator, I can't say anything. No, well,
we are out of time, so if you could join
me in thanking this wonderful panel,

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