Advisory Opinions - Judge Rao on Separation of Powers

Episode Date: February 28, 2023

Podcast-skeptic Judge Neomi Rao joins Sarah and David on the sidelines of the National Constitution Center’s Conference to talk circuit decisions, career path rejections, and tips for young clerks. But first: a primer on the most important office you’ve never heard of. Show Notes: -The Hedgehog and the Fox in Administrative Law -Judge Rao's Dissent Learn more about your ad choices. Visit megaphone.fm/adchoices

You ready? I was born ready. Welcome to another episode of Advisory Opinions, and do we have a treat for you today. David and I are at the National Constitution Center Conference, and we are talking to Judge Naomi Rao. She has been on the D.C. Circuit since 2019. And the topics range, I'm going to tell you. What is OIRA? What is the difference between legislative power and impeachment power in Article 1? And what does she look for in a clerk? And so much more to come here on Advisory Opinions. Judge Rao, we are here live from the National Constitution

Center's conference. You just got off a panel. You are hot off the stage. This is a pretty big deal. So I'm very excited to talk to you. But I thought we'd start with just intro because your path to the bench, to your black robe is relatively unusual. And some of your experience I think will be very relevant to our conversation, specifically your OIRA experience. But you're going to need to explain what OIRA is, how you got there, what it does. Nobody has heard of OIRA. OIRA is often said to be the most important

office you've never heard of. Well. So since both of you have never really heard of it, then I can tell you why it is such an important office. So OIRA is the Office of Information and Regulatory Affairs. It is part of OMB. So it's an office in the White House. It was an office created by Ronald Reagan to oversee the administrative state. Basically, you know, the idea is the president can't really keep track of everything that's going on in all the different agencies. And so therefore, there's this office that oversees all the significant regulatory activity around the government. You know, in my view, what the OIR administrator does ultimately is operationalize the unitary executive. How does the president keep track of everything happening in the executive branch? OIRA is, I think, one of the primary mechanisms for overseeing that.

So, like, what did your day look like on a Tuesday? is there is no typical Tuesday or Wednesday or Thursday. It's kind of a crazy job. But I mean, the office as a whole, significant regulatory actions come into OIRA. We look at their cost benefit analysis. We try to figure out whether the policy is consistent with what the president wants to do. We run an interagency process with other White House offices and other interested agencies to make sure everyone is on the same page. But it's really important. We do a lot of legal review. You know, part of my mandate as the OIR administrator was to deregulate, you know, to get the administrative state off the back of ordinary Americans. And so that was sort of what drove a lot of our efforts on a day-to-day

basis. Okay. So, you know, the FAA wants to have a new regulation about air traffic controllers that they're going to come up with their little regulation that they want. And after they're done, it's going to go to you before it can actually, you know, go out for notice and comment. Yes. So they will send us a draft of a rule. We have to approve it. And, you know, they can't move forward until the OIRA review process is done. And if there's a conflict between OIRA and one of the agencies, you know, there's a process for kind of working that out at the political level. You know, there are times when I would have meetings with, you know, deputy secretary of an agency or the secretary of an agency or some group of cabinet secretaries to hash out policy differences.

Like all administrative state things pass through OIRA. And I remember… I was the regulatory czar. Yes. Or czarina. Czarina. I remember when she was named to this position. It was a big deal because you were very well known in conservative legal circles before this.

And it was like, OMG, wait till you see this, Zarina. The Catherine the Great of regulatory reform. That's what conservatives wanted and very much thought of. I'm just talking about you like you're not here, thought of you as. And so no surprise then after how many years then you were nominated to the D.C. Circuit? About two and a half years. So I'm always interested. So we know you didn't go from law school to OIRA.

I cannot say that word. And now I'm actually embarrassed that I didn't know what it was before, like actually embarrassed. And I still can't say it. So double embarrassment. OIRA. So you didn't go law school, OIRA, the bench. I'm always interested in the path to the bench. So one of the things I've learned along my path to the bench, as you say, is that there

is no path to the bench, as you say, is that there is no path to the bench and, um, working on nominations and confirmation process. Um, it's very hard to say that there's any way to predictably head off to the bench. So I will say that, but so I mean, where do you want me to start? Like post-law school? We're just talking about Steve Martin. I was born a poor black child. That is a movie quote, everyone. If you haven't seen that movie, you're missing out. It's a fabulous movie. Do you want me to start there? Graduating law school. I said graduating law school. I clerked for Judge J. Harvey Wilkinson on the Fourth Circuit when he was the chief judge. Great experience. Wonderful judge,

wonderful person. I then worked on the Senate Judiciary Committee. I had a very lofty title of counsel for nominations and constitutional law. I will tell you, it is a great title. So I worked on nominations and not so much on constitutional law because it turns out they're not that interested in that. In the year I spent there, I was asked once whether a proposed law was constitutional. Hey, once is better than zero. That is a lot better than zero. Yes. Yeah, but just once. What nominations would we remember from your time? So I guess it was, I'm just trying to think, it was the start of the Bush administration. So I started like in August. Well, yes. So there was, well, he was there and then I left to go to the Supreme Court. So I was only there the first like six months.

So we had John Ashcroft for AG, which turned out to be very controversial. Ted Olson. The judges were just starting to come in, like Michael McConnell and some of the other judges. So yeah, it was an interesting time. That's a fun time to do that, John. It was a fun time to do that. And then I clerked on the Supreme Court for Justice Thomas.

Which we're going to get back to later with when we talk about Mazars. I can also tell you how I got my clerkship if you are interested in that story. Oh, absolutely. We have a lot of law school listeners who are very interested in this kind of thing. So when I was in law school, I got a screening interview for Justice Thomas. I went and I met with Justice Thomas. Notoriously hard screening interviews. Extremely hard. They're like real. I was called on the phone and said, I would like to schedule a screening interview.

I said, okay. And I was like, okay, now. So there was no notice. They don't want you to study. No, there was no studying. Wow. That's not how they do it as much, I think, now. But at that time, that was, you know, I'm just like in my apartment in the evening and

I just, whatever. So I went and I met with Justice Thomas. I did not get the clerkship. Okay. So I was sad, but I was like, you know, and then I also had a screening interview with Brett Kavanaugh for Justice Kennedy. And that didn't end up working out because Justice Kennedy hired his fourth law clerk. And I said, okay, you know, I'm done. I've had my shots at this. I'm not reapplying. I'm not going to be one of these people who reapplies and reapplies and reapplies. So anyway, I was sitting in the Senate

cafeteria when I was working on the Senate Judiciary Committee. I was eating a sandwich. And I was only there for like 10 minutes. And Justice Thomas at that time used to eat with his clerks in the Senate cafeteria. And one of his current clerks was a friend of mine and stopped to talk to me. And then the justice says to him, well, who's that girl you were talking to? She looks familiar. And he was like, yeah, you interviewed her for a clerkship a couple of years ago. And the justice says, well, why did I not hire her? And he's like, I don't know. She's great. So that afternoon, I got a phone call from Chambers saying, we'd like to interview you

for a clerkship. I said, I haven't applied for a clerkship. I'm not sure. I'm married. I have this great job. I don't have to think about this for a second. And they were like, what is? So obviously, I went in eventually.

I interviewed. I got the clerkship the next day. And that was how I got my clerkship. So I'm extremely grateful that that happened to me because, you know, Justice Thomas has been an enormous influence in my life and a great mentor and friend for the past, you know, 20 odd years. Then you clerk for the Supreme Court for Justice Thomas, and then you move on into the wider legal world.

And what was that like? You know, when I was leaving the Supreme Court, I guess had to get another job. And my husband and I always thought about living overseas. So we decided to go to London for a couple of years. And we both worked at law firms. We had our first child overseas. And it was a great few years living in Europe and traveling all over Europe. Great time to do that. And then I came back from that to work in the White House Counsel's Office for President Bush. And, you know, while I was there, I worked on a lot of regulatory matters, also obviously judicial nominations. I was there at the time when both Chief Justice Roberts and Justice Alito were nominated and confirmed.

And I also worked on the D.C. Circuit, you know, nomination. So that was, you know, kind of a precursor of that, but so that was a great job. And from there I went to George Mason law school. Now Scalia law school, where I taught for 11 years, I primarily taught constitutional law almost every year. I taught legislation and statutory interpretation, comparative con law. Um, you know, those were the main classes I taught. And then after I got tenure, I started a center called the Center for the Study of the Administrative State. And that was kind of an academic center devoted to studying the foundations of the problems

with the administrative state. There wasn't really a center like that. And then I was nominated to be the head of OIRA. So I think that catches us up So I think that catches us up. I think that catches us up. So just totally random question. Does Great Britain have birthright citizenship? It does not. It did before, right? So the Anglo-American tradition, like we have in America, is birthright citizenship. But Margaret Thatcher, I believe, changed it in the 80s. Interesting. And so there was, I guess, a modified kind of birthright citizenship. So if

you were born there and then your parents and you stayed there for four or five years, you would become a citizen. But we weren't there long enough for my daughter to become. So she couldn't weigh in on all of the prime minister upheaval, really? Okay. That's unfortunate. But she is a natural born citizen of the United States by virtue of her not needing to be a naturalized citizen of the United States. That's unfortunate. But she is a natural born citizen of the United States by virtue of her not needing to be a naturalized citizen of the United States. That is correct. Yeah. She can still run for president. She can. That was very important. But I was just wondering if you could have a future president and prime minister,

but I don't know if they have citizenship requirements for prime minister, but I would imagine it helps. Oh yeah. I don't know. Yeah. Well, that's, you know, these are, this is where these are new frontiers of legal scholarship. Yeah. I'm sure nobody has. Oh, yeah. I don't know. Yeah. Well, that's true. These are new frontiers of legal scholarship. Yeah, I'm sure. Nobody has ever figured that out. Yeah. Okay. All right.

You're not going to ask me to produce any birth certificates. No, no, no. No. I just, random question popped into my mind. So you have written an article, The Fox and the Hedgehog, about the administrative state. I mean, you're here. We have to get your thoughts and all the things on the administrative state. What's so funny is that when I initially read the title and was jumping in, I got really confused because, and for those

who don't know, right, it's the fox knows a great many things. The hedgehog knows one very big thing. That's the quote that every fox and hedgehog, my son had a onesie that was foxes and hedgehogs like from Target. And I was like, do they even know what, why? Again, never heard of this. What? I know. Never heard of this? No, Isaiah Berlin for you? David French? I know. This is the most embarrassing podcast.

I know. Okay. Well, you'd have to read some Isaiah Berlin. I'm so sorry. Yes. He is pretty great. So what was so interesting about the article to me was not what was intended to be, I'm afraid, but rather that to me, the administrative state is very much the hedgehog, right? They're the specialists, the experts that I think has been, to skip ahead to my own ending here, the failure of the progressive movement. I don't mean progressive as we use it partisanly now. I mean, Wilsonian progressives, this idea of experts running the government will make it more efficient. It will be just a better government because experts,

hedgehogs will run the government. Whereas the Fox, the generalist who knows the big things, the great ideas, that to me is separation of powers, federalism. That's the fox. And I'm reading the piece and I'm very confused because in some ways you flipped the fox and the hedgehog. And I got, yeah, I had to then start over. I think administrative expertise is kind of a, you know, foxy quality, right? It's sort of like, like they know many things, you know, it's expertise, it's things on the ground. Whereas, I mean, you know, it's expertise, it's things on the ground. Whereas, I mean, you know, it's never a perfect analogy, right? But the hedgehog is, to me, you know, it's about the Constitution. What's the like one big thing?

I know the one big thing. The big thing is that we have separation of powers. See, totally flipped. And so to me, the administrative state, as I have already written in many places, is, you know, there are fundamental ways in which the administrative state is inconsistent with our Constitution. And I think one way, what I think is so interesting, you mentioned the, you know, the kind of the original progressives, the historical progressives, what you see is that they're very candid about the fact that their project, their project of creating a new administrative state is in direct tension with the Constitution. They acknowledge that the Constitution is about private property and individual rights and protecting these things through constitutional democracy. And they say,

we're going to have to get rid of all of that if we're going to have a robust and flourishing administrative state. What we see today, I think, is there are very few people who defend the administrative state who say it's not constitutional. They say instead, well, it furthers constitutional values. And so constitutional values have really replaced the constitution itself. But I do think it's interesting that no one today is really defending the actual constitution. I shouldn't say no one, but there's very little defense of the administrative state, you know, having independent agencies, massive delegation to agencies on the grounds that it is consistent with the actual text and structure of the

Constitution. You know, one thing that we talk about a lot on this podcast and longtime listeners know this is that we talk an enormous amount about how Congress has receded. And I hate the phrase co-equal branches of government because as I read the Constitution, Congress appears supreme in some ways. They can fire the president. They can fire members of the Supreme Court. They control the purse strings.

You can't spend a dime without Congress allegedly declares war, although it hasn't done that in a while. It strikes me that what the administrative state has done in a way that fundamentally upsets the constitutional order is as it has expanded, Congress has receded. And Congress is often happy for it to recede because it allows them to go on cable news and talk about, you know, condemn the administrative state or support it, but never actually vote on the truly hard things. And so when I think about the administrative state and the critique of the administrative state, I think of it as upsetting that fundamental order.

What are the ways in which you, if you're going to describe to a law student here, my bullet points on what specifically in the Constitution, beyond that sort of meta look, on what specifically in the Constitution, beyond that sort of meta look, what specifically in the Constitution or what is specifically problematic from the administrative state that implicates the Constitution? What are those specific things that caused you alarm? So I'll start where I always like to start, which is Article 1, Section 1 of the Constitution says all legislative powers herein granted are vested in Congress. So that means they are the limited enumerative powers of our federal government have to be, legislative powers have to be exercised by Congress. And I think Article 1, Section 1 includes a non-delegation principle that Congress cannot create other lawmakers outside of Congress. How do we figure

out what that means precisely? I know it's sometimes a difficult question, but the fundamental principle, I think, is it's almost overdetermined in the constitutional text and structure. So that, I think, is the fundamental mistake, right, is that there are these massive delegations of authority to agencies that essentially exercise, at least in some instances, what can only really be thought of as legislative power. And that upsets things in a number of ways. So one of them is that Congress is not doing these actions, which is, you know, they should be making the important decisions.

They're being made by agencies in a way that is totally different from the kind of what Scalia called the hurly-burly of the legislative process. They're being done by experts, by bureaucrats in an agency who are only focused on one thing. Congress is a group of generalists. They are representative of people from all over the country. They have to negotiate to get something done. They have in mind at all times all the things that are going on, all the the country. They have to negotiate to get something done. They have in mind at all times all the things that are going on, all the different issues. Whereas if you're inside one agency, it's not really a fault of a person who works in an agency that they've been given a

mandate to implement some part of a statute. And they do that to the best of their ability, not even necessarily attributing anything nefarious to it. It's just that that's what they're focused on. They don't necessarily see the larger picture. They don't see the trade-offs that are being made across the economy or across our society. So I think that's problematic for a number of reasons. I think COVID is such an interesting example where everyone was watching the administrative state, whether they knew it or not, much more closely than they had been at any other point, in part because we were all sitting at home.

But to exactly what you said, right, I actually thought it was very unfair, some of the attacks on the CDC that they were hurting America's economy. That's not their job. Their job was only to provide to the best of their ability and the knowledge that we had at the time. What are the best ways from a public health standpoint to prevent the spread of COVID-19? They weren't supposed to be doing the trade-offs. Frankly, in an ideal world, of course, Congress should have been doing all of that. But even aside from that, certainly the CDC is an administrative agency, to your point. They are not tasked with having hedgehogs, if you will, on the economic trade-offs or on supply chain. The CDC doesn't do supply chain, and yet they were getting blamed,

you know, for their recommendations. Look, everything's a trade-off. You were supposed to take the CDC's public health advice and then weigh that against other... Well, that's why political oversight is so important, right? The whole process of having presidential oversight is one of the only ways in which the administrative state is democratically accountable. But this gets to another problem with the administrative state, which is Chevron, that not only are you moving the legislative function over to the executive branch, but then when there is disagreement over even what that should mean, we then put even another thumb. So now we have like a thumb and a finger at least on the scale because Chevron is

to defer, Chevron deference is to defer to the administrative agency's own interpretation of their regulation. We've talked a lot of, well, we used to talk a lot about chevron is the truth yeah and then we've called it zombie precedent and that while it hasn't been overruled it's sort of wandering out there but nobody seems to care anymore because it's lacking teeth and perhaps it's in the it's still it's still in the dangerous zombie phase where it's still it's mobile and moaning around the countryside and able to bite, unlike say Lemon before it was finally ultimately torpedoed, where Lemon was in the inert zombie phase, just laying there, right? Rotted away. But I think of Chevron as being chipped away so much

that I'm not sure how much of original Chevron is left. As a judge, how do you think of Chevron to the extent you can tell us thoughts? Sure. Well, you know, over half of my docket is administrative law cases. So I think, you know, maybe Chevron is like a zombie that some judges can see it and some judges no longer see it. Right. Maybe. I don't know.

I don't cite. Oh, yeah. A poltergeist precedent. We've just coined a new term. I like that. I don't cite Chevron in very many opinions. I mean, I think, look, most regulatory challenges, we can look at a statute and we have to determine whether that action is within the statute. And so to me, most of these are just statutory questions. And so I don't often get to what people call Chevron step two, you know, is the agency acted reasonably within this authority? You know, I think there's a lot of work to be done just, judges should not be deferring legal interpretation, legal interpretation to agencies. But, you know, the real problem is non-delegation.

I mean, Chevron is a natural consequence in a way of having open-ended delegation. So, like, if we're going to let agencies regulate under some open-ended standard, you know, you can't expect judges to come along and, like, choose a different regulation under an open-ended standard, you know, you can't expect judges to come along and like choose a different regulation on an open-ended standard. So the problem is really the open-ended standard. I think it is not necessarily Chevron on its own. And we'll take a quick break to hear from our sponsor today, Aura. Ready to win Mother's Day and cement your reputation as the best gift giver in the family? Give the moms in your life an Aura digital picture frame preloaded with decades of family photos. She'll love looking back on your childhood memories and seeing what you're up to today.

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Can we do a couple seconds on non-delegation and major questions doctrine? Sure. So as I've explained this on the podcast, which I will note that nobody on the Supreme Court has actually explained it this way, so take it for what it's worth. Non-delegation is, can Congress delegate? Major questions doctrine is, did they delegate? As an originalist, you're a self-described originalist. It's very controversial. How are we supposed to think about non-delegation doctrine and major questions doctrine in the modern era? They're sort of coming back, right? Yeah. I hope so. They're there. They always have been there. They've always been there. They've always been there. So one other thing is

interesting. All of the Supreme Court's non-delegation cases, every one of them says categorically Congress cannot delegate its legislative power. Yeah, but they do. So like I'm... But so, but so, but like they recognize that it is forbidden. And then it's a question of what do we recognize as a delegation? But they all, like all of the cases agree that they can't delegate. So, so what's happening in the major questions doctrine? I don't know if I would say it's like, did they delegate? Because I think the Supreme Court's formal view is they can never delegate. So I think the major questions, doctrine is sort of like an under-inclusive part of non-delegation, right? It's, you know, it's something. It's making sure that Congress, like, at least is being forced to decide the most important questions. to decide the most important questions. You think about the Clean Air Act, right? I don't know.

There's not been, I think, serious amendments to the Clean Air Act since 1992. You think about all the science and debates about the science for climate change, and EPA goes back and forth on how to regulate greenhouse gases, but we don't have any directive from Congress about this really important political issue. That seems like a major question of a sort. And as I've said before, if you care about climate change, we're in the worst timeline because you're ping-ponging back and forth between administrations within the EPA. Obama created the Clean Power Plan rule. Trump rescinds it. Biden has his own thing that's different from Obama's or Trump's. You can't do climate change in four-year increments. So no matter which side of the debate

you're on, you still want Congress to actually have to solve this from the hurly-burly legislative compromise. Even if you don't get everything you want, it will still be better than this, I think. You know, I wrote a piece in The Atlantic several months ago that lots of people got mad at. Imagine that. I don't even know. I can't. That narrows it down not at all. I'm so sorry. But basically my point was that, you know, what the Supreme Court was doing and has been doing is essentially saying step by step, this is not the president's job. This is the, whether it's major questions and you're talking about OSHA or you're talking about EPA, whether you're going to talk about the student loan case coming up, a big part of the question is, is this within the scope of what Congress is

permitting the president to do or within the scope of what's within the power of the executive. And part of the pushback that you get isn't constitutional at all. It's not sort of centered in the Constitution at all. It's sort of centered in this notion of you're playing with fire because we all know Congress won't do its job. And so a lot of the pushback comes from this notion, not that which you describe as the legislative authority of Congress, but from the notion that we just have to recognize the world that we live in. And if you're going to remove this authority from the president, you're going to remove it from, for lack of a better term, from the political, from the prospects of a political

decision, that this is going to be, we're going to have major problems that just founder, nothing is done. And that I found that is a lot of the volcanic rage I received more from one side of the spectrum than the other to essentially say, you're dooming us because Congress is so dysfunctional. And that inaction favors conservatives. Conservatives don't mind inaction as much as liberals and progressives do. Although that's less- It's not clear that inaction now favors conservatives, given where we are.

Yes, that's a very true statement. Yeah. very, that's a very true statement. Yeah. So, you know, but from a judge's standpoint, how much are you, is it something that is supposed to enter your mind that I'm handing the ball to Congress and I know they're going to fumble? So I have maybe what some might think of as a simplistic view of the judge's role, right? My job is to say what the law is. And then the consequences and the chips kind of fall where they may. A question of how our political branches are going to address complex problems is not something for me to sort out as a judge in these individual cases. So, I mean, it's a real concern what happens if you have a

robust non-delegation principle. what kind of regulatory state will we have? Those are real political questions. They're questions of political science. They're important. But I don't know that they factor into judicial decision making. And I have to look at the Constitution. I have to look at the laws and figure out what they mean. I also think some of the, I will just say, you know, putting on my law professor hat

from some time ago, I, you know, you know, putting on my law professor hat from some time ago, I, you know, I think the concerns are a little overblown. I mean, there are lots of solutions to if there is a more robust non-delegation doctrine, you know, Congress will have to sort of figure out what it's doing. And Congress can staff up. They can have more specific legislation. They can hire more people. They control the purse strings, as you mentioned, right? So there are a lot of ways to fix the problem. And I don't know that judges need to be thinking about whether there's political will to follow the Constitution. I've noticed just in the last four to five years, when you do hit one of those walls that is nobody but Congress can do X. We've seen Congress actually do things,

you know, everything from Ukraine aid. The president can't conjure $100 billion up for Ukraine aid. That has to come through Congress. The COVID financial relief, like the PPP program, the president could never conjure that up. Congress stepped up. There are many circumstances where when only Congress can do something, Congress finally says, well, I mean, I guess we'll do our job. And it strikes me as kind of defeatist thinking to say, if we expand the sphere of the things that only Congress can do to restore it more to its constitutional role, that they're just going to not do it at all. It's blaming the wrong branch. I mean, we had this conversation here at the conference

that many people blamed Congress for inaction because they're the ones not fixing the problem. But to me, I think if you look historically, A, I think the president is largely to blame. You know, I talked about Obama's pen and phone quote. You know, the beginning of that quote is actually, I'll act with Congress where I can, but where they're deadlocked, I'll do it myself. That killed all movement on DACA because Congress is like, wait a second. So if we don't do anything, you'll just do it for us. That sounds awesome. We saw it again on bump stocks.

There were bills in both houses. And then, you know, but Republicans didn't want to take the vote because, frankly, it would have been politically harmful. Many of them would have been primaried for passing a gun regulation restricting bump stock. So then Trump was like, well, I don't want my guys taking a hard vote. I'll just take care of it. And even though everyone knew that the ATF regulation had legal infirmities, I'll put it, it killed all possibility of a bump stock ban in Congress, because why would Republicans ever then have the political risk? So I think there's historical evidence to blame the presidency that they're reacting very much within their Congress is acting within their incentives rationally to a strong administrative state and executive branch.

And I think a little bit that the courts, the Warren court, and the increase of judicial power over the last 70 years has also changed Congress's incentives to some extent. When the courts are willing to find rights and fix problems, again, Congress is like, oh, well, that's just great. Well, then I think we're good here and I'll go home on Thursdays. I agree with you that it's not a judge's job to worry about that. But I think the pushback from the left that I am most persuaded by is, okay, then stop striking down what Congress does all the time too. If your answer is Congress needs to do more, the administrative state is doing too much as a conservative judicial person, then you shouldn't be pleased when the courts then strike down an act of Congress for lack of specificity. Or,

you know, I'm thinking here about Obamacare and some of the challenges to that. And I want to talk about Mazars a little, even though that's not quite the same. It's adjacent. So what do you say to that institutionalist criticism? Not sure the solution to a more robust Congress is for courts to uphold unconstitutional laws. You know, so I mean that, I don't think you mean that either. I don't. So I think that is a tough sell. But, you know, I do think it's one of the features of some of the distortions of the

administrative state is that it creates additional distortions, right? You have delegation, and then that distorts what courts are doing. It distorts what the executive branch is. You know, delegation also unravels the unitary executive, right? It's very hard to have a unitary plan of execution when you're overseeing the current administrative state. And, you know, we're not even talking about independent agencies, which is another whole topic. But so I think... Which are a creation of Congress, funny enough. Like Congress creates an independent agency that is outside the legislative branch, but which branch is it in?

Well, it's definitely all of those agencies are executive branch agencies. There's no question in my mind. I don't think that we can, I think each branch has to do its job robustly, right? It's not that like some branch has to pull back. I think if every branch exercises its powers and not more than its powers and not less than its powers, then we have the type of checks and balances that our Constitution created. So you're going to be robust, and Congress needs to hit the weights. Congress definitely needs to hit the weights. I don't think the solution to Congress being weak is— And the president should stop doing steroids.

Illegal steroids. I like that. Yeah. Yeah, illegal steroids. The courts have been pretty good about trimming back on executive overreach. I'd love to see more. Well, not in every instance, but there was a lot of judicial checking of President Bush and President Obama and President Trump.

And it may not be as much as one would like or in every case, but I do think the courts have been a check on presidents exceeding their powers. You know, and this is much more of sort of a political, cultural thought than a legal and jurisprudential thought. But it feels to me, and it's always tough to know in the moment, it feels to me that the congressional valley, in other words, the lowest point of congressional responsibility in action has been reached. And we've started to see a bit of a revival. So electoral count act reform, respect for marriage act, there have been multiple statutes that have been passed with filibuster proof majorities through the Senate., as recently as three years ago, the thought was a filibuster-proof majority is not reachable in the current state of political polarization. So I don't know. It's

one of those things where, is that an actual change in the wind or just a momentary gust in a different direction? But I do wonder if there has been a bit of a change in the wind or just a momentary gust in a different direction? But I do wonder if there has been a bit of a change in the wind where we've seen some, we've seen the filibuster proof majorities that we didn't think that we would see as a result of some folks just stepping forward and saying, if not us, who? If not now, when? I do think an important part of this that is sometimes lost is there is a kind of a sense that it doesn't really matter if Congress takes an action or an agency takes an action. And I do think it's important to talk about why Congress matters, right? Why does Congress have to do this? Why not just the EPA or the NLRB or something like that? Why does

it matter? And I think there are lots of reasons it matters for all the things we've been talking about in terms of representation and deliberation and all the things that only happen in Congress and not in the agencies. But I think because the regulatory state is so robust, it's almost as though legislation and regulations are interchangeable. They're not interchangeable. And they have very different sources of accountability and development and deliberation. And I think we've lost sight of that a little bit. So I think even just talking about why Congress matters, not just for some formal reason, but for a really important constitutional democracy reason reason is important.

This is where I blame us media, people who cover this sort of stuff, because, again, I think the bump stocks is such a good example because it has all the pieces that you need. It has Congress trying to act, never mind this on shaky legal ground now. And I assure you, I think this will go to the Supreme Court, the Fifth Circuit case. But I assure you, if the Supreme Court strikes down the bump stock act, the headline is not banned. Sorry, the bump stock ban. That's exactly the point. If the Supreme Court strikes down the bump stock ban, the headline will read conservative court strikes down gun regulation instead of Congress. You F this up. Right. We all know Congress had the authority to do this.

There were questions, at least in the Trump administration. And again, I was at DOJ at the time. So I pick that example because it is a self-owned. There were plenty of questions at the time that thought that a president might not be able to do this. And then the courts do what they're supposed to do, which is call the balls and strike, let's say. But then they get the blame, which drags, I think, the other branch down as well. And we're seeing that in just polling about the role of the courts and trust in the Supreme Court as an institution. That's, I think, part of the delegation,

unintended consequences as well, is the courts getting dragged into fights that otherwise should have been a legislative fight. And the permanence of it, whether it's the EPA or bump stocks or anything else, like it's just not permanent when the administrative state does it the way that when Congress does it, it's not permanent. Congress could repeal it, but it is. It's a lot more concrete. Well, then the agencies are working out the details, which is their job.

But the fundamental policy choice is hard to change. Can we talk Mazars? Sure. So this is whether it became a Supreme Court case. This was about Congress subpoenaing the president, Trump's, tax records. And this went through the D.C. Circuit first. They, in a majority, in a panel majority, upheld Congress's subpoena two to one. You're the one. And I want to talk a little bit about your dissent. The Supreme Court then has an interesting

take on it. And I'm always, I love talking to circuit judges about when the Supreme Court like reverses them. In this case, like you're not, it wasn't even a reversal. It was just sort of, well, they did vacate the majority opinion. So it's seven, two, it's sent back down to revisit with new factors written by the chief, two dissents, Alito and Thomas. And boy, that Thomas dissent sure looked familiar to perhaps one of his former clerks channeling him when she was on the D.C. Circuit in dissent. So I don't know. I was just so curious to hear about the Mazar's saga. Well, I don't know. I mean, I spent a lot of time on that dissent. It was a really hard question. You did a lot of originalism. I always thought from the beginning it was a really hard case. And I read all of the relevant precedents that the parties had cited. And in my view,

the precedents didn't resolve the issue before us. And it seemed to me that there were no cases talking about the situation we had there, which is the House was seeking these tax returns from the president's accountants in order to investigate criminal wrongdoing. So things that could be, in theory, impeachable offenses. Did he violate the emoluments clause? Did he violate ethics laws, et cetera? So they were very candid that they were seeking evidence of wrongdoing. And so I worked with my clerks. We went back and we looked at all of the, you know, we looked at founding era materials about the understanding between the legislative power, power of investigation, the impeachment power. And what became clear was not only at

the founding, but kind of all the way through to the present, there was a really consistent understanding that if Congress wanted to seek evidence of wrongdoing, they had to do it through impeachment. They could not do it through their ordinary legislative investigative powers. Can I ask a question real quick? Yeah. What if, though, through their normal legislative powers, they found evidence of wrongdoing? So the amazing, there are great examples of this, where they're doing some ordinary and then it starts to seem, you know, often not for the president, but even just for a senior impeachable official, they uncover some wrongdoing. And then there are all

these debates that say, oh, well, before we go any further, we have to decide whether we're going to bring an impeachment proceeding. And this happens time and time again. So they're, you know, they're researching some episode, like why did this thing go wrong? But then if it seems that like a impeachable official could be impeached, you know, this is like some kind of criminal act or some high crime or misdemeanor, they move to impeachment. So they really were two separate powers and you had to decide which lever you were working on. That's right.

And because there's so much accountability to impeachment, right, which is different. And so my view and the history here, the history is not always so clear. I mean, this was really clear. And it was the understanding all the way through to as recently as the Clinton impeachment, when if you read the House Judiciary Reports, they talk about this history and they agree with my understanding of the history. So it seemed quite clear that, you know, maybe a committee could seek the president's tax returns for criminal purposes, but they had to do through impeachment. And there was an impeachment investigation pending at that time. So it wasn't as though there was not an avenue to seek this information through that.

And so what's your response to the question of, well, wait a minute, judge, isn't this sort of potato patato, whether it's whether we're saying it's for a legislative purpose or versus impeachment purpose? saying it's for a legislative purpose or versus impeachment purpose, why does it matter which formulation we're using? We have the authority, we have the authority to get this information. I think it actually matters a lot because to the extent Congress has some power of investigation, it is solely connected to their legislative power. They only have the ability to investigate on subjects that legislation could be had. That's sort of a phrase that's used. So, okay, so that is that power that has been recognized by the

Supreme Court. It's a very, and that they do it on the way to making legislation, fine. But the impeachment power is a very different kind of power, right? The House sits as, you know, a grand inquest. It is a kind of judicial power, right? It's talked about that way at the founding, right? The impeachment removal power, judicial powers, they're not legislative powers. They come with a very different kind of accountability, right? If you're going to bring an impeachment action against the president of the United States,

there is political accountability for that in a way that if you're in a committee just holding some oversight hearing, you don't have that same accountability. And I think the Constitution wanted that level of accountability if Congress was going to work to impeach and remove high-ranking officials. I think this also kind of goes to another important principle that the greater power in constitutional law rarely includes the lesser. You know, the great power of impeachment doesn't allow you to then seek the same thing in a different way. It's a great power because it comes with certain forms of accountability that go with that great power. And that great power doesn't just sort of follow on include the lesser power. I think most, I mean, there may be there's some counter example, but I think it's very rare that a greater power includes the lesser power

in our constitutional system of government. You know, this really in an interesting way, Sarah, connects with the conversation we just had with the authors of mine. in an interesting way, Sarah, connects with the conversation we just had with the authors of Mine. Okay. We talked to the law professors who wrote a book about property rights, but like property rights in our everyday.

Can you recline your seat on the airplane and like the scrum to get on the airplane in the first place and your place in that line? Yeah. Mine, exclamation point, is the name of the book. Yes.

Who owns the right to raise and lower the window on the window shade? We spent a lot of time on airplanes. We did. We did. That tells you how much time we spend on airplanes. That is a great question. I often do wonder that. I'm like, who does control that? I've always viewed it because I always take the window seat, but I look at it as a collective right. You do, communist. I also take the window seat and it is mine. Oh, no, no. If any person wants it raised, I raise. What? Yeah.

What if there's a split? You have three people there. One wants it raised, two want it down. Is it majority? Well, then once there's a split, then I'm the deciding justice of the Supreme Court. So the one thing I am is that, you know, I'm the Kennedy. I'm the Justice Kennedy of the window shade. But we're a little far afield,

but I had a point to make, which was one thing that we talked about when we were talking about mine, was the importance not just of the outcome, but of the process. How do you get to the outcome often matters more than the actual outcome if there's consensus about the how. And it feels like this is an underappreciated element

of American civics, is that the how matters a lot to the sustaining of the American experiment. It's not just the what. And this goes back to what you were saying, Sarah, about how the media often tends to just cover the what. So if they're writing about your dissent, Judge Rao dissents from allowing Congress to have these investigatory materials. Well, no, it's a how question.

And it strikes me that we have a real task of civic education to describe the importance of the how, not just the what. I think that's a great point, David. I also think that the American people are up for understanding the nuances of these things. I do think a lot of coverage of courts is a little bit watered down, but I think ordinary Americans can understand the Constitution and why its structures and procedures are important. And I saw this a little bit when I worked in the government because I spoke to a lot of ordinary Americans about how the administrative state was affecting them, whether they were a paper mill worker or somebody who lost their job in mining or something like this. And it was amazing to me

how so many of these ordinary Americans had a really sophisticated understanding of how the government was impacting them, what had gone wrong. I remember talking to a group of Missouri farmers and someone asked me about the non-delegation doctrine. And wasn't that, in fact, kind of at the root of many of their problems? I thought that was pretty great that a farmer from Missouri was asking about the non-delegated. I need to meet that farmer. Right. And so I just, you know, I think that civic education needs to be more robust, but I think also, you know, journalists and other people who interact with the public have an obligation to, you know, convey more detailed information so people can understand these things. And we can't be afraid of being told we're against

gun regulation because you're against the way in which a bump stock ban was promulgated. I think people can understand that. It's not as though that is beyond people's comprehension. It is not at all beyond, yes. All right, I have an important question. Which feels better, to be upheld by the Supreme Court when you're in the majority, or for the majority opinion to be vacated by the Supreme Court when you're in dissent? Both has happened. Yes. So I don't know. Never know what they're going to do down the street from our courthouse. You just hope for the best, right? This isn't like a risk aversion thing, like people would prefer not to lose money than to win money, you know? I have not been reversed by the Supreme Court. Oh, wow. You know, I'm sure it will happen one day, but it has not happened yet. Okay. Last question, I think on clerkships. Okay. What do you look for in a clerk?

Again, we have law student listeners who just like, all of a sudden it's the old EF Hutton commercials where it's EF Hutton says, and everyone leans in. Yeah. Judge Rao says, and a bunch of people leaned in. Well, so I guess I will say first that the law clerks are one of the best parts of the job of being a judge. I really fortunate to have amazing law clerks. How I got to you, by the way. I mean, I knew you were coming here, but I reached out through one

of your former law clerks. Yeah, that's right. And he sent this along and I noted, I'm like, I don't really listen to podcasts very much. But my current law clerks all suggest that everyone listens to this podcast. So I felt like- Refined taste. That's right. Exactly. So what do I look for in a law clerk? I, you know, they have to be academically very excellent because it turns out that academic excellence translates into being a good law clerk. The skills of being a good student and a law clerk are similar. Necessary, but not sufficient. That gets you into the pool. I am also looking for people who want to do interesting things with

their law degree and their clerkship. I mean, you know, so I'm interested in hiring people who have a range of different interests. Some of my clerks want to be in government. Some of them want to be academics. You know, I'm sure some will go and just be appellate partners at law firms and that's fine too. But I am interested, you know, in people who have, you know, have the right kind of ambition to do something interesting and important, make a difference in the world in whatever way they're kind of best suited to make a difference. I'm looking for people like that. I want to find people I enjoy spending time with. I spend a lot of time with my law clerks. There's some really smart kids who are sociopaths.

I'm not interested in hiring sociopaths. So I do try to screen for that. No sociopaths. Also, you know, I'm looking for kids who are nice kids, right? Who have integrity and they're good people. And when you talk to their references, they not only say how amazingly brilliant they are, but that they are also decent and good people who are liked by their peers, who are, you know, able to get along both with their peers and their professors. You know, people who are, each other, with other people in the building, that when they go out into the world, they will be good and decent people. You know, I'm not saying I can control for all of this, but this is what I'm looking for. gave me that have stayed with me my entire career about when I was just in law school. His first piece of advice, which is not what you talked about, was don't get too good at something you don't like or you'll end up doing it the rest of your life, which I thought

was smart advice. My English teacher told me the same thing. It is great advice. It's tremendous advice. It is for people who can do many things. It is one of the best pieces of advice I ever received. Yes. So that's tremendous advice. It is. For people who can do many things, it is one of the best pieces of advice I ever received. Yes. So that's great advice.

And then the other one was, and this is what directly relevant to what you said. And he was coming from a professional, you know, a corporate professional background, not legal. But he said, David, you're going to spend more waking hours with the people in your law firm than your spouse. So you better like them. And I thought, huh, because at that point I was deciding between two firms, one of which seemed to offer some slightly better opportunities. And the other one, I just loved the people. Like I just loved hanging out with them. The thought of practicing law with them made me happy.

But they didn't have quite the same menu of practice options. And then when he said that, I was like, oh, got it. And I went the direction of with the people I connected with and I liked. And it was a great decision because you're going to thrive in that environment. Where you're just great as opposed to when you're just gritting your teeth and getting through because of a career advantage or something like that. Similarly, my dad always told me you could tell the most about a person. So in Texas, there's a parking attendant, like there's a gate. You sort of see the parking guy. He said by how people treat the

parking attendant that that was like the number one thing for law clerks or anything else. Like, are they, that's like obviously a deal breaker. And when I was at the department, a lot of people just ignore, ignore, ignore the people who are kind of peripheral. They're not there. They're invisible. And that's not a great quality either. I was having trouble getting along with my, not having trouble. I just wasn't connecting with my assistant at the Department of Justice. He was clearly a fine kid, whatever. But I was like, eh, I don't know. I may move someone else into this job. And I came in one day and he was already there, of course, which is good. But at the Department of Justice, they hire to do the janitorial staff. In this case, at least, they had hired an organization that specifically hires people with disabilities. That's not unusual.

And he was in a full, I can't even tell you how far into this conversation they must have been at the point I heard it. This was not like, hey, how you doing? Or like even knowing his name, like they were in the depths of a long conversation, you know, about sports and about like the specific shot and like all of this stuff. And clearly it had been a conversation going on for weeks at that point. And it totally changed my relationship with this assistant. We've become very close because it changed my perspective on Who he was. Who he was, his kindness, his character. Because beyond being smart, I guess I don't care.

It's necessary but not sufficient. But that character means it's someone I should invest everything I've got in because someone with that character and that intelligence can do anything. Exactly. It's really a combination. Intelligence is not enough. It's really, it is necessary, but there's so many other human qualities that are important. That will bring us full circle because we're almost back to, we're almost at our normal length of a podcast because back to Justice Thomas, because it reminds me of what Justice Sotomayor said about him, that of the justices, not to say that other justices aren't good at this,

but of the justices, he knows people. He connects with people. He talks to people. I thought that was an incredibly, we brought it up a few times, an incredibly touching thing that Justice Sotomayor said about her colleague, that he was somebody who knew everyone and was known to understand and care about everyone within the Supreme Court family. It was something, I mean, I learned so many things from Justice Thomas, but that was, I never worked for someone who had that type of approach to everyone in the building. He knew, you know, if the person who's bringing books down from the library, their mother is having an operation and he knows, you know,

like about the kids of the person working in the cafeteria. I mean, it's so genuine and real. And just the way that he connected, deliberately connected with everyone around him with kindness and graciousness. It was a tremendous model, I think, for all of us. I think there's a sense that that's supposed to come naturally to people, that you're either that type of person or you're not. And I think if there's one thought to leave from this podcast, it's that, no, I think they're sociopaths, but like beyond that. No, no, you can learn to be this way. Learn to care about people, learn to cultivate that in yourself. Or just, you know, just to think about that this makes a difference to people.

And it will make a difference to you, too, to have a connection. In getting a clerkship with judgment. Exactly. Thank you so much for joining us today. You're welcome. Thank you for having me. What a treat it's been to hear you at the National Constitution Center conference here. to hear you at the National Constitution Center conference here.

And we'll be talking about many more of your opinions to come, whether you're listening or not. Well, thank you, Sarah and David. It's really great to be with you.