Advisory Opinions - The Future of the Administrative State | Interview: Adam White

Episode Date: November 27, 2025

Sarah Isgur invites Adam White, co-director of the Antonin Scalia Law School’s C. Boyden Gray Center for the Study of the Administrative State, to identify the major administrative law issues on the horizon in the next five to 10 years. The Agenda:—The Roberts Court and the Trump Term—The legislative veto—Immigration and Naturalization Service v. Chadha—Decline of congressional power—Supreme Court reform and the future of judicial powers Show Notes:—Adam's currently nameless newsletter at AEI—Adam's column at SCOTUSblog—The Foreshadow Docket—Is Humphrey’s Executor headed for Slaughter? Advisory Opinions is a production of The Dispatch, a digital media company covering politics, policy, and culture from a non-partisan, conservative perspective. To access all of The Dispatch’s offerings—including access to all of our articles, members-only newsletters, and bonus podcast episodes—click here. If you’d like to remove all ads from your podcast experience, consider becoming a premium Dispatch member by clicking here. Learn more about your ad choices. Visit megaphone.fm/adchoices

Ready? I was born ready. Welcome to advisory opinions. I'm Sarah Isger. David French is off, I don't know, doing Thanksgiving. What a loser. So instead, we have Adam White joining us. And look, guys, this is going to be a slow build on, you know, not, this is going to be different than past advisory opinions. We're not going to just go through the, you know, our agenda of cases. Instead, think of this like Beethoven's 7th Symphony second movement. It's going to start out and you're going to be like, that's nice, whatever, but it's going to build and build until the

very end when the music swells and tears come to your eyes as you realize it's all come together the bundle of sticks in one grand finale. So, stay tuned. Advisory Opinions. Here we go. I want to talk to my fellow attorneys for a moment. Do you really want to spend time on the technical side of briefing, blue booking, tables, appendix assembly, bait stamping? Or would you rather focus on your argument? Type law can take your draft and exhibits and transform them into a court-ready, rule-compliant, e-brief and appendix overnight. They've helped prepare over 10,000 filings in courts across the country, even SCOTUS. Learn more at typelaw.com and use referral code advisory to save 10% on your first order. That's typelaw.com. At Capital One, we're more

than just a credit card company. We're people just like you who believe in the power of yes. Yes to new opportunities. Yes to second chances. Yes to a fresh start. That's why we've helped over four million Canadians get access to a credit card because at Capital One, we say yes, so you don't have to hear another no. What will you do with your yes? Get the yes you've been waiting for at Capital One.ca.ca.com slash yes. Terms and conditions apply. All right, and we've got special guest, Adam J. White. Wait, what does the J stand for? Jeffrey. Oh, that's exciting. I should have said Justice, right? I should Adam Justice White. Well, I mean, it's like the Fifth Circuit judge who the courthouse is named after. Minor wisdom. I mean, nobody can beat that

as a judge. A learned hand was pretty good, but not a judge. All right, you co-direct the Antonin Scalia Law School C. Boyden Gray Center for the study of the administrative state. You're at the American Enterprise Institute, where, by the way, you have a new newsletter that will put in the show notes that you don't have a name for. So that's weird. And then you, of course, have your, newsletter over at SCOTUS blog, major questions. My favorite newsletter headline for that that you have is is Humphrey's executor headed for slaughter? Get it? Ha ha ha ha. Yeah, I don't I don't just leave the dad jokes at home. I bring them to the office. And you were on President Biden's Supreme Court Commission. We're definitely going to have to talk about that. You kind of do a little bit of

everything. Can we start with the, I mean, this is like the longest name ever. the Antonin Scalia Law School, C. Boyden Gray Center for the study of the administrative state. What would you just say you do there? Let me tell you, Sarah. It's even more glamorous than it sounds. Before I jump in, I just want to say it's a pleasure to be here. I've always wanted to sit by designation on this podcast, and this is my great chance. Thank you so much. Sarah, so here's what I do around here, both at the C. Boyden Gray Center at AEI.

I've been focused for years. Ever since you and I first met many years ago when I was still a lawyer, and you wanted to be a lawyer, that was a very long time ago, I focused on the collision of the administrative state and courts. The two parts of government that are least democratically accountable, the parts of government where we take part of government and we put it off to people who don't stand for election, whether it's the agencies and their bureaucracy or the courts in their bureaucracy. And we live in an amazing time where both of these parts of government, which can move incredibly fast, if they want to, are the central drivers of our politics.

And watching that collision play out, it's always been fascinating, but especially now. Yeah, but what does the Boyden Gray Center do? Oh, what does the Center do? Well, so this was created years ago by a law professor friend of mine named Naomi Rao. Back around 2014, she realized that the big question of our time was going to be the collision of the courts and the administrative state. It was already bubbling up in the courts and elsewhere, and she created a research center that basically, and this is going to sound so boring, people, please don't fall asleep as you're driving on your Thanksgiving vacations listening to this. But what we do is we try to look out over the horizon five, ten years, what will be the big administrative law issues five or ten years from now. And we reach out to academics and say, come to a roundtable, let's write about these things, let's debate them.

but let's make it interesting. Let's not just have it be a bunch of academics talking to each other in their own echo chamber. Let's bring in practitioners, sometimes judges, sometimes policymakers, and let's really think about what's going to be over the horizon five years from now. It's a lot of fun in an extremely nerdy way. And I got to say, when my friend Professor Rao asked me to run it for her, she had just gotten plucked up to go to the Trump White House in 2017, she said, Adam, could you run this for me for maybe a year or something until I come back? I said, you bet buddy. And it turned out she became a judge. And I'm now one year, or eight years into a one year favor for my friend, Professor Naomi Rao. I don't know what came over since then. She hasn't returned my calls. She's out there somewhere. Who knows? Okay. So what's the answer to that question? Where is the administrative state five to ten years from now? Because I feel like we don't totally know where the administrative state will be six months from now. you know, I think of this term, I think everyone thinks of this term, right, as like the structural

constitution term. The tariff case, the slaughter case about independent agencies and the Cook case about removal power are going to have such a profound effect. You know, can you give me the range of what things look like after this term? Like on the one side, you know, all the cases go this way? On the other side, all the cases go this way? I think somebody was at Chemerinsky on the, on Scotus blog, referred to this as the Trump term, which something like that. I suppose that's right. There's two kinds of cases to think about this year, Sarah. And I call them the who cases and the what cases. The basic way to think about the Supreme Court's interactions with administration are the who cases and the what cases. And as simple, simplistic really as that sounds, I think a lot of people have missed this basic point. And it's not new. For the last 15 years, the Roberts Court over and over again in cases involving the president's constitutional power to remove the heads of agencies, over and over again, the court has affirmed the president's power.

Whether it was the CFPB case or whether it was the federal housing finance case or whether it was the Sarbanes-Oxley case from 15 years ago, over and over and over again, the court has reaffirmed the president's power to remove the heads of agencies, this constitutional power. And I think that'll play out in the FTC case that's coming up next month, the slaughter case. That's the who cases. But then there's the what cases. And the what cases are about how much policy discretion a president has. And for 15 years over and over again, the Roberts Court has repeatedly squeezed presidents on their policymaking discretion.

From Obama to Trump to Biden to Trump, over and over again, the through line has been putting guardrails on the president. policymaking discretion. Again, we even saw that in the last Trump term in the census case, in the citizenship or the immigration policy case, and then, of course, the major questions doctrine cases. Over and over again, the court has squeezed presidents on the what cases and expanded presidential power on the who cases, and I think that's going to continue through this year. A lot of people this year, in the first year of the Trump administration, have been, have fallen for a total head fake of the shadow docket cases. Wait, I'm sorry, this is the dispatch. I need to use

the approved terminology. The interim docket. Is that what we're calling it, Sarah? The interim docket, trademark dispatch. The interim docket has been a total headfake because the people have read far too much into the court's decisions or non-decisions. And I think they have set themselves up to misunderstand what the court is about to do, beginning, I think, with the tariffs case. Yeah. Speaking of that, so friend of the pod, Judge Trevor McFadden over on the D.C. District Court has a new law review article out called a response to the foreshadow docket. And this is a response to another law review article. This is how law review articles work, y'all. And it's interesting, too, because Judge McFadden had written an article about the

emergency docket, interim docket, like in 2021, which was, it's sort of this, like, fascinating like, fossil of a law review article, because you can kind of see what everyone was thinking in 2021 about this docket that actually changed dramatically in the next four years. Okay, so now, you know, people have been going back and forth. I know you've read this piece as well, but his point, and I should say he wrote this with DOJ guy, Vett and Kapoor, by the way. But anyway, their argument is the Supreme Court's interim docket decisions should be treated as binding precedent by the lower courts versus Professor Bert Wang's view that they're just foreshadowing future law. I was literally losing

sleep before, it was like right before McFadden sent this to me. And I'm just like sitting there in my head and I'm like, how can decisions that are meant to be on this interim basis, you know, making sort of these like snap judgment calls while a case is pending as to what the status quo is, be precedential for anything except lower courts thinking about what the status quo should be. Does that sense? Like, it can only be precedential for other interim decisions, you know, preliminary injunction and stay motions because it like, it doesn't work. It's like columns. How can an interim decision be precedential on something not interim? Can, I mean, am I making sense? How would you think about this? Sarah, you're making sense. And I think that, and I could be wrong, I'm pretty sure

I read McFadden, Judge McFadden, the same way. Now, as you said, he and his co-author are responding to another article by Bert Wong of Columbia Law School. Bert Wong, by the way, like Sarah, went to a small law school outside of Boston. He was a classmate of mine, extremely smart guy up at Columbia now. Anyway, so, Professor Wong's article called the foreshadow docket, clever name, his point was that the shadow docket, should be best understood as simply almost like a leaked draft opinion. It's giving the lower courts a sense of where the Supreme Court is going to wind up on the final merits of an issue. And Adam, wait, this is like, this was part of my heartburn the other night. Because I was

thinking about Bert's thesis. The whole, there's like the, there might be a name for it. Lower courts are not supposed to anticipate what the Supreme Court is doing in their decision. And this is like a doctrine that just because you think, for instance, that the Supreme Court is going to overturn Roe v. Wade, you as a circuit judge, for instance, are still bound by Roe v. Wade. You don't get to say, I think they're going to overturn this. So I'm going to go ahead and say that this law, you know, is constitutional or something. And then everyone stares at the Supreme Court to see what they'll do. No, you are bound by precedent until it is overturned.

You don't get to anticipate, for instance, we all know they're going to overturn. executor so you can go ahead and start anticipating that in your decisions. But what else is Bert saying other than that's sort of what the interim docket would be doing is giving them hints about what they're thinking. Like, I mean, I think Humphrey's executor is a great example where it sure looks like based on the interim docket that they're going to overturn Humphrey's executor. So how can you apply that precedent that you're, for instance, allowing the president to remove Rebecca Slaughter without anticipating the fact that they're going to overturn Humphrey's executor, where there's like play in the joints there that I don't understand.

No, it's a real challenge, especially when the court maybe isn't even overturning an old president. Again, we're all watching the Supreme Court for the last few months as it's signal pretty clearly that either it's going to overturn Humphrey's executor or, more likely, I think, the court is going to read Humphrey's executor narrowly and hold that the current version of the FTC with its current powers doesn't actually fit within Humphrey's executor anymore. But anyway, what's more complicated, I think, are the places where there isn't clear precedent to begin with. the court issues an interim docket order that lays down a marker, and the lower courts have to think about what that means going forward, especially if the circuit itself has precedent that might

be in tension with the Supreme Court's signal of where it's going. The upshot of Professor Wong's paper was that, as I understood it, the lower courts should give less weight to the Supreme Court's shadow docket orders, that they might signal where the court is headed, but until you get a final judgment on the merits, the lower courts should not give it too much weight. Judge McFadden, as I read him, is pushing the other way, saying, no, actually, the lower courts should give more weight than that when you get a new interim docket order.

That's how I took it. One of the challenges, though, Sarah, and I feel like we're getting pretty philosophical for Thanksgiving week, one of the challenges here is that there's sort of a metaphysical discussion, around whether the court actually is undermining or sowing the seeds for a future reversal of precedent. Again, the classic case of this is what's happening around independent agencies at Humphrey's executor. Justice Kagan has been ringing alarms in at least one dissent, maybe more, saying, look, my colleagues have already overturned Humphrey's executor or they say they're going to.

And I don't think that's necessarily the case. you can just as easily look at the same recent orders from the court and say the court might overturn Humphrey's executor. It might just read it more narrowly. There's sort of a debate about, well, if they read it narrowly, have they effectively overturned it? Right. I think one of the challenges here is that the justices themselves and the judges are all speaking pretty loosely about what they think they're doing here with precedent. It's not helping. It's one of the challenges I think of doing so much in the interim docket. is that the court's own explanations are pretty brief or non-existent. A lot of the public's understanding of these interim docket orders is colored by either the dissents or by the punditry

around these cases. Maybe the best understanding of the majority in these shadow docket decisions where they don't issue a majority might well be in the Solicitor General's briefs and the Solicitor General's characterizations of what's happening. But one of the challenges here really is, and I'm not blaming the court, they're reacting to an extremely fast-moving administration and extremely fast-moving district judges, is to try to keep a lid on this and to try to impose some process on this without front-loading all of their merits opinions into the front ends of cases. So, okay, the McFadden piece, sorry, Kapoor, I know we're going to keep leaving your name off this. The McFadden article kind of puts these into three buckets, right? There's the interim

docket decisions that have majority opinions. Number two, the interim docket decisions without majority opinions. And three, unexplained denials, meaning they just kind of like brush it off. So really what we're talking about here in terms of precedential value has to really only be number one, right? They write something in the majority opinion. The problem is not even those are created equal. You know, sometimes there's like one sentence. So yeah, it's kind of an opinion, kind of, but maybe there's a 10-page dissent that describes what the majority has done and there's still a holding and you're still getting these like reprimands from the justices saying, you know, this is precedential. How dare you not follow our decision? And I, again, I think you

still have my problem where, as you say, nobody has spelled out what they're precedential for. Are they also only precedential for these status quo decisions? Or are you supposed to look at the interim docket decisions for final decisions? So to like make this less theoretical. And let's keep using the independent agencies example. You know, President Trump fires someone from the NRLB or whatever, the SEC. Okay, so we fire someone at an independent agency that has only for cause removal. And it's like gone through everything. We're on the final decision from the circuit court. What are they supposed to look to? Only Humphrey's executor because it's the final decision of whether he could remove someone and they're not supposed to anticipate what the court is

doing with Slaughter. Or are they supposed to look at the fact that they allow the president to remove Rebecca Slaughter and say, you know, the same way that the FTC is different now, the SEC is different, like for all the reasons that they could have allowed that, the same applies to the SEC, or, I mean, there's just very little to go from in the Rebecca Slaughter interim docket decision. So if you're a judge right now, if you're Judge McFadden right now, who wrote this, how are you supposed to apply the Rebecca Slaughter interim docket decision before you have a slaughter decision? Well, it's a benchmark of, As you said earlier, one of like the basic rules of being a circuit judge is that you follow

the Supreme Court, you don't get out ahead of it. And even when it looks like the court is headed in a particular direction, maybe overturning a precedent, until the Supreme Court says we've overturned that precedent, you have to keep following it. But how are you supposed to marry the two? How could they remove, like, are you supposed to guess why they allowed Trump to remove Rebecca Slaughter, but not overturn Humphrey's executor? I think what it means is, you have to read, maybe this is a new canon of construction, the interim docket canon, the canon of constitutional avoidance, right? I think what falls to the lower courts, to whenever possible, read the latest interim docket order in harmony with existing precedent.

I think that's important, by the way, like underline that, that what you just said, because I haven't heard anyone else say that, but I think that has to be true. While the whole world is losing its mind and its hair is on fire and it's screaming, the Supreme Court is overturning things or about to overturn things, the job of a judge is to let the Supreme Court overturn its own precedents when it gets around to it. And until that moment, continue to read the existing precedents as being on the books, read the latest orders out of the Supreme Court as not overturning those precedents, but we're going to read. read the latest orders out of the Supreme Court as not overturning those precedents, but working within the framework of those precedents. Now, I don't want to be naive here. Sometimes the court does, over a long period of time, effectively overturn its precedence.

I'm thinking of the lemon test in religious liberty, and please don't ask me to recite what this is. This is not my thing. The Lemon Test for Establishment Clause violations has been pretty well recognized that that has been more or less dead letter for a very long time. It's the precedent that dare not speak its name anymore. The justices don't rely on it. Sometimes the court does, over time, walk away from precedents. But I'd say I would treat that as the exception, not the rule.

And so what I'm saying here again is, I think the best way for lower courts to approach this is to always assume that the court, court has not overturned a precedent until the court says so. And to read things like this, so to get concrete again, to read the shadow docket orders on the NLRB as suggesting that that the NLRB, something about the current NLRB simply does not fit the Humphrey's Executor framework. Maybe someday the court will overturn Humphrey's executor, but until then, assume it's good law because it is, and assume that the NLRB order, in Wilcox is somehow an application of Humphreys, not a subtle implicit renunciation of Humphreys. All right.

When we get back, I want to dive into INS v. Chata, which Adam said was not good Thanksgiving material for people, and he's just wrong. He's wrong. So we're going to do it. The one-house legislative veto, buckle up cats and kittens. It's going to be really fun. What if you could give a gift that keeps your favorite holiday moments alive, not just once a year, but every single day?

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Business. So join the more than 400,000 Canadian entrepreneurs who already count on us, and contact Desjardin today. we'd love to talk business. Okay, Adam, you're just wrong about this. And so we're going to talk about it because when I think about the tariff case and we're just like sitting around every day, as I'm sure all of you are, waiting for the tariff decision.

By the way, do you agree with my idea here, you know, when asked about when I thought we'd get a tariff decision? On the one hand, it's a merits docket case, and on the other hand, it feels like they might want to get a decision out sooner than, like, June, for instance. I don't think we'll get one before the new year. You know, Ginsburg used to always be the first out with a decision in December since she's left the court. It has slid into January now these days. But my take is, for every week that we don't have a decision, let's call it January 1, good news for Trump. As in the longer they let it percolate, the more likely it is they're going to uphold his tariffs.

Now, again, I think it's very unlikely we would get a decision the first week of January no matter what. So that every week from January 1st on, it's like a very low percentage that you're adding to the Trump side of the ledger. But at some point, when you get into April, for instance, and we haven't heard about tariffs, I'm going to start thinking this is looking better and better for Trump just based on timing. because if they were going to strike down these tariffs, and this goes back to the interim docket, that they have allowed to be in effect while this case is pending, the longer they let them go, the more I think the interim docket decision was meaningful on that. Wow, this is tough, sir.

I got to say, I don't know how to read the delay. Just a couple of days ago, if there's a delay, just a couple days ago, I was listening to Bloomberg on the way into work, and the Commerce Secretary was on the air. saying that they fully expect to win, but even if they don't win, they have plans B, C, D, and E to keep most of the tariffs in place. And who knows, maybe the Supreme Court hears that kind of thing out there in the ether and thinks, well, we don't need a rush because whichever way we go, not a whole lot's going to change on the ground.

I'll tell you, Sarah, I was a little bit more optimistic than you about a quick decision. In my new AEI newsletter, check the show notes. In my new AEI newsletter, I'm used that maybe we'd even get a decision before Christmas. Who knows? I think the court could definitely get a full merits decision out in a month. I don't think that would be a stretch for this court, especially when its current merits docket is pretty thin. That would be bad news for Trump, in my view. Do you think, or do you not think the timing matters at all? Like, the timing doesn't tell us anything. I don't know. I was thinking about this in another case, not to digress, but when the court announced that it was going to

hear the case about the Federal Reserve Board of Governors member who got fired or Trump tried to fire Lisa Cook. I thought they would put that. They said they said right away they would do it in January. I was thinking first week of January and as soon as they, or second week of January, and they announced eventually they were going to hear the case on like January 21st. And I started thinking, well, that's kind of wild because in February, I think the new Federal Reserve Bank presidents are up for nomination. And the board of governors has a review of that. And I And so I started to think, well, maybe that means the court is, is inclined to keep cooking in office. And you can drive yourself crazy trying to make those predictions.

I think you're basically right, though, that the longer this case lingers, if nothing else, it suggests that the court thinks this is a very hard case, the longer this lingers. And so maybe that means it's looking more and more in Trump's favor. I mean, I have to say, you know, we did the SCOTUS blog, live blog together. I came out of that thinking this felt like a 6-3 or 7-2 case with either Roberts writing the majority or maybe giving it to Justice Kavanaugh so that he could write a majority that would keep him on board. And I thought, we'll get this by Christmas. But here we are.

It's almost the end of November. And we don't have a decision yet, not that we would have. And it's easy to start thinking, well, maybe this will bleed into January. Okay. So one of the issues in the oral argument was that A.E. IPA, the statute in question from 1977, was passed during the era of legislative vetoes. And that, you know, if Congress gave away this power, it always thought that it could just veto a presidential tariff without much fanfare. And Gorsuch brings this up that without the veto, the, it's almost like a mirror

image. In fact, Congress has given away so much power that it can never get back. Because the president could veto any efforts to get it back. And therefore, it's almost a text, I mean, a canon of construction. If there's ambiguity in the text, read it in a way that Congress can at least take back its power if it wanted to. And if you read this for Trump having the power to impose these tariffs, it would be very, very hard for Congress to ever get this back. But I realized that on this podcast, we have never done a deep dive into the legislative veto and the crazy world that existed for a short amount of time where not only could the president veto acts of Congress, but Congress, in fact, just one house of Congress, could veto acts of the president?

And I wanted to talk about the case, and then I wanted to talk about some of the implications of what that would look like in the modern era and where conservatives and liberals fall on the legislative veto? Like, is this an ideological fight at all? And, like, why no one talks about this anymore? And I will admit, yes, this is because it came up. Don't laugh. We were having a play date with some other lawyer parents. And this was a conversation about, like, what the world would look like with the legislative veto, because again, my life is really nerdy these days. Okay. So, INSV Chata is a 1983 case. And it's kind of weird facts. Adam, have you ever gone into the facts of this case?

I mean, I teach it from time to time. Okay, so yes. Okay, so this guy Chata was born in Kenya to Indian parents. And after, and he has a, he came to the United States on a British passport as an exchange student in Ohio at school. Okay, but then Kenya declares independence while he's in Ohio. he is not a legitimate citizen of Kenya because his parents were Indian, but he's also not Indian because he was born in Kenya, and he's not British because he was, you know, in Kenya.

So he's stateless. And so even though he is deportable because he's overstayed his student visa at this point, the INS judge is like, eh, you can stay. But under the law that Congress passed, A whole list of deportable aliens that can stay goes over to the House of Representatives and they go through it and cross out people's names. And Chata is one of the names that they basically say, no, deport him. It is done without debate or even a recorded vote. So the House of Representatives votes to deport Chata, as in to veto the decision by the executive branch not to deport him.

I guess what I find interesting is because when I think of legislative veto, I think of like a regulation or a tariff, for instance, some act of the president. This is like one dude's ability to stay in the United States. Anyway, the question goes up to the Supreme Court, did the Immigration and Nationality Act, which allowed for this one-house veto of executive actions violate the separation of powers doctrine? 7-2 decision that, yeah, it definitely did, that you can't basically add new structures into the Constitution that weren't already there. But Rehnquist and White are in dissent on this. So just to run through what the court looked like at that point, Berger, Brennan, Marshall, Blackman, Powell, Stevens, and O'Connor say violates the structural, you know, separation of powers. White and Rehnquist say, nah, it looked okay to me.

This, I mean, pretty well cuts liberal to conservative. If you were to, like, map out the court, you know, all nine justices at that point. I mean, you can quibble over it. Certainly, Rehnquist is the most conservative at that point. Okay. So first of all, Adam, you teach this case. What do you tell your students on doctrine before we get to, like, the world since 1983? You mentioned that Justice Gorsuch brought up by NSV Chata, and since I always love like the Supreme Court coaching tree stuff, I just want to point out that Gorsuch clerked for Justice White, who as you mentioned is in dissent. Also clerked, by the way, for Justice Kennedy, for Justice Kennedy, who decided this case as a Ninth Circuit judge. It was Justice Kennedy's opinion is what went up to the Supreme Court. And those were both important, and I'll get back to him in a second. But the basic premise of this of this is,

right, that the world was a crazy place for about a good chunk of the 20th century, where suddenly Congress's job was to sit in review of what the executive branch did. And it's not just with these legislative vetoes. You had in 1947, Congress passes a law to reorganize itself to basically make itself mainly a better oversight body of Congress. You have the Administrative Procedure Act, which reorganizes the courts to make the courts a better oversight body for Congress. As soon as Congress started delegating enormous powers to the executive branch, it's thinking mainly in terms of how do we make those broad delegations of power, safe for democracy, safe for the rule of law. And a lot of it went back to what we think of as legislative

vetoes. The executive branch would have enormous policymaking discretion in an area, but Congress, sometimes by one house voting, sometimes by both house voting, could veto something the executive branch does. This gets to the Supreme Court, and the Supreme Court says, this is crazy. Have you not heard of the separation of powers? Have you not seen Schoolhouse Rock? The way this works is that Congress passes a law. One House of Congress, then the other house, then they present it to the Supreme Court.

Or they presented to the Supreme Court, I guess that's Freudian slip here. They present it to the president, and he signs it or not. That's the way lawmaking works. And then Congress is off the scene. Congress, you've done your job. You can take a break now. It's in the president's hands. This whole idea of Congress being able to do something with legal effect

through without the president's signature, like absent overcoming a veto, but just doing it by majority vote without the president's signature is crazy. And even crazier is letting one house of Congress negate presidential action on its own. And so that's INSV Chata's holding that this statute allowed Congress to do something with legal effect without bicameralism and presentment. But Justice White's dissent is great because even though I think the court got a right in Chata that, yeah, this whole thing is unconstitutional, he points out the obvious point. There's no way, no way Congress would have delegated all that power to the executive branch over the, the course of 50, 60, 70 years without including this legislative veto. And so in many ways, INSV Chata, by striking down the legislative veto, accomplishes in one fell swoop the biggest practical

transfer power from one branch to the other. Now, should INSC Chata have just gone all in and said, we're actually not just declaring the one house veto unconstitutional? We're declaring all of these statutes unconstitutional, that would have been pretty wild. That would have been repealing basically the entire 20th century of congressional legislation. But by getting rid of the vetoes and leaving these delegations in place, you left an enormous amount of power in the hands, presidents. And now in cases like the tariff case, we have to interpret those grants of power without the legislative vetoes tacked on. Yeah, I mean, in law school, you learn about the bundle of sticks when it comes to property law, at least I did. I hope, by the way, like I talk about

the bundle of sticks all the freaking time. And sometimes I think to myself, I wonder if that was only in my class. I hope that's like a universal. Anyway, like here we can think of the legislation as a bundle of sticks. And you get into this whole thing called severability law of when you find one piece of legislation to be a problem for any reason. It's unconstitutional. It, you know, does something without the Commerce Clause authority, whatever. Can you simply excise out the sort of tumor and leave the rest of the patient there? Or do you just like kill off, you know, euthanize the patient? And is this too violent?

You got really dark there. This is dark. But like severability laws a whole thing. And your point, Adam, is that it's really not that INS v. Chata is wrong. It's that the severability conversation is the one that changes the constitutional structure as we know it of these three branches and contributes to the fall. of Congress because it thought it had retained some power. Then the court takes that away, but doesn't, you know, but severs it. And so, you know, when the founders, when we think about the founders, like, and what they were concerned about, they were concerned about a tyrannical

president, a president who kept trying to accumulate power, they wouldn't be shocked by finding out that presidents, in fact, tried to accumulate a lot of power. What they would be shocked by is that Congress was so willing to give it away, except, and this is why I wanted to do and S. Vichata, maybe Congress wasn't that eager to give it away. Maybe they tried to sort of have it both ways. Maybe that was stupid of them or naive. But the court ended up saying that they had given away this power. And from 1983 on, you do see the slow decline of Congress because they can never, as Gorsuch says, they can never get that power back once granted to the president without a veto-proof majority. Yeah. I just want to say my favorite episode of South Park

is the one where Cartman goes back to the Philadelphia Convention. And there's an enormous debate. I think the subject was over how to make a United States that can levy a lot of wars, that can levy a lot of wars, but still claim to be like an anti-war country. And they come up with a proposal, as Benjamin Franklin says, in his great wisdom, where we shall have our cake and eat it to, and we will call that country America. And there is something to that here, that Congress was giving away a lot of power. power in ways that troubled many justices then and should trouble us now. But it thought it was

hanging on to power by giving itself this veto. And what we found was in the long run, those mechanisms break down, and not just because they're unconstitutional. Congress is not built to be like a perpetual review body. That's not what Congress was built for. Congress was built to look to the future and make laws for the future, not to sit around like a Supreme Court of Review casting judgment on what the president does with individual veto actions. That's not what Congress was built for.

And Congress's efforts to make itself that body, while well-intentioned, I think, show that it was just not sustainable. I've got to say on severability, that's one of my favorite sort of, philosophical topics to muse on for just a little bit, but not too long, because it's a great question for judicial conservatives. What is judicial restraint? If you think there's a provision, one provision in a 50 or 500-page law, one provision is unconstitutional. Well, what's judicial restraint?

Is judicial restraint just striking down that one provision and leaving the rest? Or is judicial restraint saying, Congress passed a certain law, we're not going to red pencil it and uphold some parts of the deal, but not others, a deal that nobody voted for will strike down the whole thing. I don't know the answer to that, but it's a hard one. I actually feel really strongly about this. Because I think if you've worked in politics, you feel really strongly about this. And I mean worked in Congress, worked in campaigns, like really seeing how the sausage is made. Every single piece of a deal is necessary to that deal.

And so to your point, Adam, if you excise, that one tumor, the whole thing would not have passed that way. Now, maybe they would have just made some different deal. There would have been something else that would have been totally legal, but we'll never know, not our job. Now, I think it raises the stakes a huge amount, as you say, and might make judges think twice for better or worse about saying that that one provision has to go, because I think you have to strike down the whole law. Now, there's this other problem where Congress will sometimes put in a severability clause. Sometimes?

Yeah, often. Practically always. And so I don't, the severability clause thing is kind of interesting because what if Congress says, if you find this provision problematic for any way and strike it down, please just excise the tumor. And they did vote on that severability clause, so they understood that it might get, you know, chopped up. I do feel a little bit differently if that is clearly applicable.

Like, you know, they're like sort of throwing a Hail Mary and they're like, I don't know, let's see how this goes. They knew McConnell v. FEC had all sorts of potential First Amendment problems and everyone voting on it would have known that certain pieces of that might get struck down or not. But even so, I would always lean strongly against severability. And I think the law right now is the opposite. You lean in favor of severability. Well, I have to admit, as much as I've pondered this over the years, I've never been able to to come to a satisfactory answer. So I'm going to do Isgar deference here, and I'm just going to differ to Sarah. And I'm going to bring it back to when you originally raised this in the

context of the tariffs case. This is a fascinating question. Justice Gorsuch raises a fascinating question. IEPA was enacted with a legislative veto, if I remember correctly, that legislative veto isn't there anymore, right? So you don't have that easy legislative mechanism for shutting down an emergency declaration. How do you read the rest of the statute? On the one hand, you might read the rest of the statute narrowly now and say, well, without that veto there, we need to be, you know, Congress wanted limits on presidential power, so we should be wary. We should be, we should be skeptical of the president's broad use of this tariff making power that he claims is under IEPA. So you say, okay, we're going to read, we're going to read these powers narrowly

because the legislative veto isn't there anymore. Or you say, look, Congress passed broad powers with a legislative veto. The legislative veto is gone, but the broad powers are there. I'm curious, I think Justice Gorsuch, if I had a bet, he'll wind up on the side of the court that is not reading a tariff power into IEPA. But I'm kind of curious where he comes out with that line of thinking. is a great question. I think as a canon of construction, it's interesting, even though, again, I think probably the whole law needed to be struck down at that point, because there's multiple

pieces that Congress could have thought the legislative veto would be in, as you point out. One, they're simply like, yeah, if the president uses this power for something we don't like, like a tariff, for instance, or we think the tariffs are too high or stupid or the wrong country, we can, by one house, vote that we don't like that, and it would be gone. But there's also the declaration of an emergency itself, which the way IEPA is written, basically gives the president broad and I would argue unreviewable power. Whenever the president feels that there's an emergency and we're not going to define what an emergency is, then he has, he opens up this treasure chest of goodies. But if you know that there's a one-house veto, they also basically

thought they would get to review that emergency as well. They did. They gave it away. They gave this away too quickly, like somebody who opened up their email and found an email from a deposed prince who said, if you just send me your money, I will put it to good use. Congress thought they had an easy way out of this, and it turns out they didn't. But let me just get, can I get back to a point you made along the way, Sarah, because I don't want to let it go here. You said the founders would be sort of horrified by how Congress is not defending its power. And like, obviously that's true. Obviously, that's true. But, but Madison said, the interests of the officer should be attached to the rights of the place, right?

Congress is going to defend Congress's powers. And I think one of the things we've learned in hindsight, thinking about 100 years of delegating power to the president, is Congress managed to shift its own incentives. Every time Congress delegated some power to the executive branch, often for very, very good reasons, or what it thought was good reasons, it shifted its own incentives.

It created more need for a, Oversight, more opportunity for oversight, more political bang for the buck in oversight. And if the viewers could see me here in my magisterial office, they would see me making like the hands of a scale, right? And the more that Congress delegates, they're putting more weight on the oversight side of the scale. And they're slowly shifting their own incentives so that here we are in 2025, and Congress has basically reshifted itself entirely into an oversight posture. most of what it does is oversight hearings. Most of what it does is backward looking, complaining or praising what happened five minutes ago or 50 years ago, instead of, as I said, sort of looking forward and passing laws. So it's not that Congress isn't doing anything,

it's doing a lot. And it's not that Congress isn't doing something related to its institutional interests. It is. It's just that Congress itself, when it delegated these powers, didn't just change the presidency, didn't just change the courts, changed itself unwittingly. And now we have to figure out, as a country, how to back the truck up when, as anybody's ever had to back up a truck knows, the way you got in there is not the way you're going to get out of there. All right. When we come back, I want to apply this logic to independent agencies and talk a little bit in the last few minutes about the Supreme Court Commission that you were on and the future of, Supreme Court reform. We'll be right back. Black Friday is here at IKEA and the clock is taking on savings you won't want to miss. Join IKEA family for free today and unlock deals on everything from holiday must-haves to cozy

at-home essentials, all the little and big things you need to make this season shine. But don't wait. Like leftovers at midnight, our Black Friday offers won't last. shop now at ikea.ca slash black friday ikea bring home to life so in the same way that congress sort of creates this bundle of sticks where it's going to give the president huge amounts of power but also retain the ability to veto things it doesn't like that the president does isn't that exactly how to think about these independent agencies that it gives the president all of these employees to do all of these regulatory things but it leaves little strings attached.

You know, the strings might be that Republicans and Democrats both have to appoint this number of people or that you can't remove this person except in X and Y and Z categories, and that once again, you have the Supreme Court basically saying, that's a cute bundle of sticks you have. We're going to keep the fact that you created the FTC and all these alphabet agencies, but we're going to get rid of part of the deal of how you created them that prevent the president from having such a huge grant of power. And you talked about the who's and the what's cases, and I like that. But I want to think of this as the bundle of sticks problem. I mean, how could the independence, so-called, be severable from the existence of the agency?

I mean, that's a really great question. And it's an interesting way to think about it, that Congress gave this agency enormous powers because they thought it would be independent. And also, by the way, because it has this multi-member structure and often a bipartisanship requirement, and all of this was sort of tied up into one thing. And now we're thinking about taking away, the court taking away that one stick. We're really going with a bundle of sticks metaphor. This is great. They're taking away that one stick independence and saying, okay, the rest stays and now it's subject to presidential control. And this came up, by the way, in the CFPB case, the CFPB funding case.

where it was one thing to have this independent agency with this automatic funding stream from the Federal Reserve, that's pretty dangerous. If you take away, but now what we have is that same agency, it's no longer independent from the president after the seal of law case. And now you have this enormous funding stream from the Federal Reserve basically going right to White House control. Congress surely didn't intend that either.

Sarah, not to get too center for the study of the administrative state on you, it just rolls off the tongue, by the way. But one of the funny things about all of this is that when Congress started creating those agencies a long time ago, right? At least the 1880s, right, with the Interstate Commerce Commission, but there was even a few before that. This was not about independence from the president. These agencies were created to kind of nudge courts out of the way. They didn't want interstate railroad questions to be regulated by juries. especially not local juries or federal judges. They wanted these bodies that were kind of like a court, but not entirely a court, right,

to actually over time develop policy in a, as they said, quasi-judicial way. That's what these agencies were about, the ICC, the FTC, and so on. It wasn't until FDR, really, that we started saying, oh, wait, this is just basically executive power, right? This is executive power. We've spent now almost a century thinking about these independent agencies, their connection to the presidency, but the first ones were really built from the ground up to be kind of like courts, to nudge courts out of the way. And over time, as these agencies became more and more powerful, they also became less judicious, right? Like, they certainly

don't act like a court. Whatever one thinks of the FCC today or the Federal Trade Commission under Lena Khan, like nobody was confusing these people with learned at hand, right? Nobody, Nobody. These are now basically fast-moving regulatory agencies. And so we're now in a, we're in this posture of trying to either subject them to greater presidential control by taking away their independence or with the non-delegation doctrine taking away some of their powers. But honestly, I think you're going to have to work on both sides of that equation or you're going to wind up with these turbocharged agencies in the hands of the president. Whether it's the president's power, if the FTC is an independent, the president's power. The president's power. over the FTC's consumer protection regulations or antitrust, or depending on how the Federal Reserve fight comes out. And I think I agreed with the court's sense that the Federal Reserve is fundamentally different from other agencies. Imagine the president with total control over the Federal Reserve. That would be a nightmare. Not just this president, any president. The court is going to have to think holistically about this as they start pulling these sticks out of the bundle.

So my take is that you give the president full autonomy over the who, as you say. So the independence of the agencies is gone, but the agencies stay. And they report to the president at the direction of the president, policy and personnel and all of it. Under the tariff case and the major questions doctrine cases, you pull a lot of power away from the presidency back over to Congress, force them to legislate more, be more clear when they legislate because if there's an emerging problem, we're not just going to go back to old statutes and read in new powers. I think that's, right, that's your, like, basic structural constitution argument that we're going to create a new bundle of sticks, that the executive power is complete, that congressional power, though, has to be clear and explicit to give power over to that new, more powerful executive. But I guess what's interesting to me and why I wanted to have this conversation with you is because if you actually go back, whether it's, as you say, to the end of the 19th century when Congress starts doing this, that's not actually what the original idea was.

And we're going to create this thing that we feel is the, you know, extreme separation of powers, as I've said, like you get on your side of the car, you get on your side of the car, Congress stop touching the president, Mr. President, stop breathing on Congress. We're going to put a pillow in between you. And if you keep doing this, we're going to turn the Constitution right around. And that sounds really good in sort of a law school dorm room way, but it's not like you can just hit the rewind button and that's what it looked like. As you say, this wasn't even meant to be an administrative state and the executive. It was actually meant to be something more like a judicial branch or a judicial power. And I think the whole thing is basically my punchline is you can't unwind it because the deal is made by Congress, whether it's the legislative veto or the independence of the agencies, you can't. You can't. can't unwind now without starting over. Yeah, you can't unwind. You can't rewind. Maybe what the court is doing is just hitting like the 30 second backward button on its podcast app and saying,

we're just at the margins going to rein this in, right? We're going to recalibrate Chevron deference. We're going to recalibrate the way we're interpreting statutes. We're going to, you know, make things at the margin. I don't think the court is going to begin the world anew again. But it's basically like they're going to re-back. balance the two branches, not just rewind the way the two branches were originally or something. Like the court is going to refashion out of clay two branches of government that never were in a way. By at least it's substantive decisions, like the major questions, doctrine cases, it seems to think that what it's doing is putting more balls back in Congress's court, right, which is good.

And the theory, and we'll see if this works out, who knows, but the theory is, By putting greater interpretive limits on an agency's substantive powers, people who want to change the laws, instead of going to the agency, we'll go back to Congress. Make lobbyists great again. Wow, that's happy Thanksgiving, everybody. I actually, by the way, there's a lot of people, like lobbyists has this, like, bad connotation. You have, I mean, we cannot fathom the number of small organizations that have lobby days on the hill.

There's like hundreds per day. And they're adorable. And I don't mean that in a pejorative way. It's actually the way things were supposed to happen. And I go speak to a lot of these groups. And I actually have a whole thing about, like, lobbying is the way it's supposed to work. You are supposed to go to Congress and explain what your needs are, why you need this bill or don't want that bill, that in fact, we should be heralding lobbyists as the true heroes of the republic as compared to, going to a regulatory agency and trying to like screw over your competitor by having more regulations because you're a bigger company and you don't think they can hire the lawyers to deal with it. Yeah, I mean, I agree with that, except with a caveat that on some of those lobbyist days, they go to Congress and their member of Congress says, you make excellent points. I am on your side. And that's why I'm going to write a sternly worded letter to the deputy administrator of Social Security. right? To the extent that Congress sees itself as our lobbyists in chief, right, and that their job is to go lobby the folks with real power, which is to say the agencies. Like, that's not great. But I agree with your basic point. Your point about how we're reading these old statutes, can I bring up something about the tariff case that I found just totally fascinating? I mean, now that I've teased, how could you not let me? The further we get away from that oral argument, the more I

I really enjoy the contrast between what Justice Barrett was trying to do and Justice Kavanaugh. Justice Barrett keeps asking, really for Solicitor General Sauer, she keeps asking him, can you find any other example of another law that uses the word regulate to imply tariffs? and she's looking at IEPA, you know, our entire world centers right now around a statute that sounds like a sneeze. She's trying to interpret IEPA in line with other statutes. Meanwhile, Justice Kavanaugh is fascinated by President Nixon's actions under the previous statute, TWA, Trading with the Enemy's Act. What did Nixon do? how did Nixon characterize it? How did the Justice Department characterize it? And then Congress, when it

passes IEPA, how did it understand what it just happened in the Nixon administration in the courts? And so Kavanaugh is thinking about what Congress intended with an eye to what had happened in the six or seven years before. And Justice Barrett is thinking, what did Congress intend in light of sort of the broader body, of law, the seamless cloth idea of law. Now, maybe Kavanaugh and Barrett are both thinking about these things in both ways, but in an era where the textualists have these subtle distinctions amongst themselves, and textualism is going to be built out in a variety of different directions with different justices. I thought that contrast between Barrett and Kavanaugh, without overdoing it, was just really, really fascinating. And it points in a couple of different directions for textualism.

Okay, before we go, it seems to me that regardless of how the Supreme Court rules specifically on the tariff case, you know, one side is going to be very angry at the court and call once again for Supreme Court reforms. You were on the Biden Supreme Court Commission. And there was some, I mean, I followed every draft of that, listened to all the hearings. It were like eight hours apiece. I loved it. There was some controversy in the end. two of the conservatives left the Supreme Court Commission. What do you think the future of Supreme Court reform is specifically after the tariff decision when people are like, screw them, we've got to change this. This isn't working. Oh, that brings back memories, Sarah.

Those were great days. Back when I was on a commission, our critics called us the court packing commission. Our fans called us the court packing commission. And a lot of my colleagues called it, I think implicitly they were calling it the court to pack, the commission to pack the court, but only a little, and because the other side started it. And by the way, one of those commissioners who left by the end, Jack Goldsmith, he also has a new article out on the interim docket, so please check it out, folks. It's in the Harvard Law Review. Mercifully, our commission ended up, I think, accomplishing what all good commissions do,

which is to take up a lot of time and energy and sort of defuse the situation. I'm actually rather proud of the report. I think the report we put out did a good job of accounting for the history of these issues. Exactly what I was going to say. I still turned to it to go back to the history because I thought it laid it out as succinctly as one could fairly. Yeah. And I have an entire, I have two entire shelves in my office dedicated to previous commissions that were created to study court reform. So we were just the latest in a long tradition of time-sucking commissions. But I thought the work we did was pretty good. And I think in some ways, what I took out of that, much to my surprise, what I took out of that experience was sort of an awareness of the

challenges that both the cert side of the court, its discretion for picking its cases and the interim docket side of the court, its discretion to choose when to intervene and how, really is the most challenging part of the court's work. I showed up at the commission opposed to court packing and I left opposed to court packing. I showed up kind of open to judicial term limits and I left firmly opposed to them. I think it would be a catastrophe. But on the parts of the court's work that are the most discretionary, I found that that work really sort of stirred up in me much more interest in how challenging this is. I think we really have underestimated until now how the Congress's decision in 1925 to give the court so much discretion over its work

would change the public's perception of the court, would change the justice's own perception of the court. While we're getting nerdy here, there's a great law review article came out recently by Robert Post of Yale looking back to the decision of 1925, the act of 1925, and showing how profoundly it changed the country's understanding of the court and also the court's understanding of the court. And so if there was one silver lining on serving on that commission, other than being Fox News famous for five seconds, it would be, I think, I think it was the first time that we've really grappled with in a pretty even-handed way the court's interim docket and the court's cert work and how much of a challenge those things are to our classic conception

of a court that's bound by a rule of law and has to decide cases out of duty rather than out of discretion. And with that, thank you, Adam White, for joining us. Now, you're going to be back for the slaughter case because we are doing a live podcast after the arguments end in slaughter, as we did for tariffs. And you're going to be one of our sideline commentators. We'll have Amy Howe, of course, from the steps of the courthouse, and Adam White, our subject matter expert calling the game. Happy Thanksgiving, y'all. That's it for us today. If you like what we're doing here, there are a few easy ways to support us. You can rate, review, and subscribe to the show on your podcast player of choice to help new listeners find us. And we hope you'll consider becoming a

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at the dispatch.com. We read everything, even the ones that say David's right. that's going to do it for our show today thanks so much for tuning in we'll see you next time