American Thought Leaders - How Landmark SCOTUS Ruling on Chevron Deference Curbs Federal Agency Power: Philip Hamburger

Episode Date: July 9, 2024

In a major decision last week, the Supreme Court overturned the Chevron doctrine in a 6–3 vote.Critics called Chevron the “Lord Voldemort” of administrative law. So what was Chevron deference exactly? How did it transform the federal government? And what are the implications of this recent Supreme Court decision?In this episode, I do a deep dive with constitutional law scholar and Columbia Law professor Philip Hamburger. He’s the founder and CEO of the New Civil Liberties Alliance, which argued the two relevant cases in front of the Supreme Court.Views expressed in this video are opinions of the host and guest, and do not necessarily reflect the views of The Epoch Times.

In a major decision, the Supreme Court recently overturned the Chevron Deference Doctrine. Critics called it the Lord Voldemort of administrative law. So what is this obscurely named doctrine, really? How did it transform the federal government? And what are the implications of the recent Supreme Court decision? If they're going to hand off rulemaking to agencies, it should be authorized by Congress. And I think that will be a pressure on Congress to actually get back to its legislative function. In this episode, I do a deep dive with constitutional law scholar and Columbia Law professor Philip Hamburger. He's the founder and CEO of the New

Civil Liberties Alliance, which argued the case in front of the Supreme Court. This is American Thought Leaders, and I'm Jan Jekielek. Philip Hamburger, such a pleasure to have you on American Thought Leaders. Thank you. It's a great pleasure to be here. Well, we're going to talk about the exciting topic of administrative law today. I mean, I'm kind of joking. It is actually really exciting, but it doesn't sound it at first glance. There's a couple of really major Supreme Court cases which have been decided in the realm of administrative law. There's one key one, and people have been hearing this term,

Chevron deference. You hear it and you wonder to yourself, what could that possibly be? Why don't you give me a picture here? I must say that I knew Chevron was on the way out when I was taking a taxi here in New York City and the taxi driver wanted to talk to me about Chevron and how bad it was. So that was a clear sign to me that Chevron was on the way out. So what is Chevron? Chevron was this old case from exactly 40 years ago. Without going into undue detail, it was a case involving emissions from plants, and a statute limited the amount of bad emissions from plants.

The question was, how do you measure the amount of emissions? The statute used the word stationary source. The question was, what did that mean? And of course no one really knew and the statute didn't explain it. It was actually a blank. It was a great uncertainty. It was a genuine ambiguity. So the Supreme Court in its wisdom suggested that well the court did not have to figure out what it meant, but what it could do is defer to the agency in trying to understand what that meant. And so developed the so-called

Chevron test, in which when one encounters an ambiguity or even just a silence in a statute, when an administrative agency interprets that by issuing a rule interpreting it, the courts will defer to that interpretation in certain circumstances if in fact it's a genuine ambiguity, there isn't clarity in the statute, and then if it's a reasonable interpretation or plausible interpretation, which of course is a little odd because normally a court will take the best interpretation of a statute, not just one that somebody proposes that is not unreasonable.

Fast forward to today, we have some fishermen that come to the NCLA and want to try to figure something out. Tell me about this case that was one of the key cases. It actually begins with the water. If you're fishing in the Pacific, which has very intensive fishing, there's a different set of regulations that I don't want to go into. But if you're in the Atlantic fisheries, which is what this case is about, and there's a regime in which the National Maritime and Fisheries Service sets up councils to determine how to limit fishing so as to preserve the fisheries. It's not an unreasonable thing to do. The question is how do you do it? has rules developed by these councils providing that there should be observers on boats to observe the catch and figure out whether or not there's overfishing.

In other words, rather than send out its own boats to figure out whether there's overfishing, the agency wants observers on your boat to see what you're doing. This is something of an intrusion on a small boat, to say the least. What's more, the agency requires that you pay for the observers on your own boat. This is a little odd. A, it's rather expensive, $700-plus a day, which of course could turn out to be more than you're actually earning. But also, the underlying statute doesn't require this.

And this is the key point. The statute is silent as to who pays for these observers in the Atlantic fisheries. And so the owner of the Relentless and some other boats in Rhode Island and Massachusetts sued. They said, we shouldn't have to pay for your observers. You want to have observers on our boats, that's bad enough, but you want us to pay for it? That really is outrageous, particularly when we can't afford this, and what's more, the statute doesn't require it. So of course, the agency comes back and says, well, there's a silencer ambiguity, and the court should defer to our interpretation. That's the crux of this.

Forty years ago, do you think the court had any idea that their decision would turn into this very wide-ranging, what's called Chevron doctrine? It seems rather doubtful. They probably didn't understand quite what would happen to it. They undoubtedly thought they were developing a little piece of doctrine, but they didn't realize it would become an entire judicial regime in which the role of judges would be changed, no longer exercising independent judgment but deferring to executive agencies as to what the law is. It's quite improbable they understood that. If they had thought of that, they would, of course, have written the opinion rather differently because they would have noticed a host of problems that

have since arisen. So what exactly developed? Well, we've now reached a situation under Chevron in which any agency that can find an ambiguity or silence in a statute, And of course, most statutes are filled with ambiguity and little silences. Any agency that wants to get something done that it's not been authorized to do by Congress can scour its statute to find the ambiguity or silence, and then say, aha, there's an ambiguity, or aha, there's a silence. Therefore, we can issue rules interpreting that ambiguity or silence, and the courts

have to defer to us if it's not too unreasonable. The net effect is a double one. One, it empowers the agencies to do all sorts of things that Congress never empowered them to do. On the other hand, it deprives the judiciary of its role in interpreting law and deciding what the law is. And so it profoundly changes the role of the judges and profoundly empowers agencies. There's a third consequence, isn't it? Because the way Congress approaches lawmaking actually shifts, right?

Right. So there are these funny secondary effects. And one of them is indeed that Congress observes all of this and thinks, aha, we don't have to amend our statutes. In effect, the agencies will do it for us. And so it's like much of administrative so-called law. It actually infantilizes Congress. I don't think Congress is actually incapable, but there's a great danger that if you relieve it of its responsibilities, it will just put its feet up, have a drink, and watch the world go by. That's what it's done. That's quite an indictment. Explain to me what you're saying here. If you tell a small child, you don't have to do the dishes or you don't have to clear your plate, they're not going to fight you on that.

And if you tell an able-bodied adult, you don't have to earn a living, they'll say, okay. And if you tell Congress, you don't actually have to think about amending your laws or adjusting them or approving them now and then. They'll find other things to do like fundraising and socializing and trying to get reelected. It used to be Congressmen and women were actually quite able drafters. Draftsmanship and the compromises that go into drafting statutes were a large part of what they did, and they were quite proud of it. That wasn't that long ago. But Chevron profoundly undermines that. And so it leaves us with a Congress that can focus on things that seem, by comparison, I suppose, important to them, like the fundraising and less sober dealmaking. I've seen a huge range of different interpretations of the implications of this

decision. So maybe if you can just tell me, what was the decision exactly? And what are the implications in your view? Because I've heard all the way from, this is a small, this is a relatively small thing, all the way to, this is a dramatic thing, no one's going to listen to experts anymore, or the whole administrative law doctrine has been upended. What's the reality? I suppose there's a half-truth to each. It is very important because, as Justice Roberts said, he's recognizing our mistake. I think it's admirable, actually, for a court to recognize its errors, particularly the

Supreme Court, because there's no appeal from the Supreme Court to another court. That's good, and I think that should be recognized as an important event. Will it actually change much on the ground? That's less clear. Why do I say that? For one thing, I know some administrative law experts who are confident that most agencies have already adjusted. Ten years ago, the Supreme Court stopped following Chevron.

Some lower courts continue to follow it. But for ten years, it's already been the walking dead. So in a sense, this is just a coroner's certificate, and we already knew that the thing was dead. Explain that to me a little more. About ten years ago, beginning around 2014, 2015, the Supreme Court no longer relied on Chevron and its decisions. There were hints from some of the justices that they understood why, that there was something deeply wrong with the doctrine that undermined the rule of law and the nature of what a judge is, that it gave the agencies power, the Congress hadn't given them, and so they stopped following

it. So some less sophisticated circuits, like the Federal Circuit, followed it a year or two ago. But many circuits actually already just tried to weave in and out around it. So on the whole, it's been of greatly diminished significance for the last decade. And so in that sense, it already didn't really matter that much. Now, I don't think it actually matters that much for another reason. I don't want to downplay it too much, but this is not an earth shattering change. In a sense, this is not an attack on the administrative state. It actually holds administrative ideals. If you think about what legitimizes the administrative state, administrative lawmaking, it has always been, for the 20th century, that there's been

prior legislative authorization and subsequent judicial review. That sort of sandwiches administrative power and is meant to be very reassuring. So even if administrative power is a deviation from the Constitution, we're told, don't worry about it. Congress has authorized it. We have democratic authorization upfront, and you have the independent judiciary reviewing it afterwards. So there's a degree of safety in all of this. Chevron undermined that. Chevron said, okay, agencies, you can make regulations without Congress intending for you to do so. And then also said that the judges will defer to that rulemaking, that interpretation, even when the judges would have reached another decision about what the law was if they acted independently.

So Chevron undermines the protections that justify administrative power, both before and after the fact. So in fact, one could view this as it actually means restoring the justifications for administrative power, in which case this isn't really an attack on administrative power. It gets rid of the excesses of administrative power beyond its justifications. Now, I'm a little skeptical even of the justifications, but it does make some sense that if you're going to cut back on administrative power, you're going to do it in a way that actually restores administrative ideals. I think that's what happened here. Fascinating. So that's one side. You said there's a half-truth on the other side as well. The half-truth is that there's a degree of truth-telling here from the court. Chevron

was based on a fiction, and countless scholars and judges have called it a fiction. The fiction was that Congress, through ambiguity and silence, intended agencies to exercise extra rulemaking power. Everybody knows that that was just a fiction. Since when is silence really authorization? Since when is ambiguity authorization if it's genuine ambiguity? It's healthy to have a court just recognize the truth, simply to say, no, this was a mistake, this was based on a fiction, this doctrine was wrong. That's actually reassuring, I think, for Americans who want judges who don't mind telling the truth and don't mind saying we're wrong. You and I, in any organization, if we make a mistake, we'll be called on it. And the most immature thing you can do is to say, no,

no, I didn't make a mistake. The mature thing to do that all adults learn to do in this country is to say, oops, that was a mistake. I'm going to fix it. I'm sorry. So perhaps that's also a worthy thing to have happen in the judiciary. It's good that they can be mature enough and not so brittle to say, yeah, we made a mistake. We're going to fix it. That's good. That's an absolutely fascinating take. Tell me a little bit about your background. You've written a tome, I would call it, on administrative law and asking the question whether administrative law is in fact unlawful, if I recall correctly. This is a subject that you have thought about

quite a bit. Tell me a little bit about where you come from and what you do. For a long time, I was just an historian. I studied 17th century English law, slowly moved my way into 18th century America and then 19th century America. I didn't focus on administrative power. I didn't really pay much attention to it. But by a series of accidents, it got my attention. Administrative power was being used actually to censor my friends in the sciences and social

sciences. And actually for three years, I didn't want to pursue that. I thought, let someone else inquire into that, because administrative law is boring. But eventually I got into it and I started studying it. And after studying that particular area involving institutional review boards, which have a very bad effect on the study of science, I then began to realize that there's an interesting

relationship between the history and modern law. Not a matter of original intent, it's not about that, but there are certain patterns in governance. When a system of law is established with constitutional limits, always those in power seek to expand beyond them. One of the standard ways of doing that is to create parallel institutions, to create a system of control that's not law, but it's sort of rules or other modes of control. That was true in the 17th century, and it turns out that that's also true nowadays.

And so that led me to a clear understanding of administrative power that turned out to be, to hit a nerve, to be persuasive to people, which is that it's a series of evasions. If you have a system requiring you to rule by law, perhaps if you want more power, you want to have rule by rules. And then if you don't like that, you can have rule by subtle threats and other modes of persuasion. And so there's a sort of a cascade down from elevated modes of governance to less elevated modes of governance with less accountability. So that turned out to be fun to write about. And so I ended up being very involved now in contemporary administrative power, which is a lot of fun. I was wrong in thinking it was boring.

But laws are rules. Yes. But they're rules made by the constituted authority, namely Congress. And then we have mere rules, which are not laws, and those are made by agencies. And when they find it too frustrating to make a rule, they'll give you guidance. And when they don't want to issue guidance,

because they don't even want to say publicly what they're doing, they'll have a little conversation with you and they'll make a little threat of regulatory harassment and so forth. So there really is a decline to ever less lawful means. Administrative law as it's taught is a very elevated thing. There's notice and comment rulemaking. It's not quite law, but at least it's rules and all sorts of restraints. And if the administrative state stuck with that, it wouldn't be so worrisome.

But unfortunately, all the guide rails have fallen aside. So it's important at least to restore the administrative ideals and I would say to restore the rule of law. This is very interesting what you're saying because you're saying that there's an important place for administrative agencies, let's say, and it's important for them to play the role that they're playing, that they should play, and this can be helpful to guide them in that direction. If we're going to have an administrative state, and some people think that's inevitable or desirable, we can debate that.

But if we're going to have an administrative state, it surely should work through rules, not lesser means of control. And it surely should do it with congressional authorization. And this case and another case called Cargill, which we litigated, reinforce that there are statutory bounds and agencies should work within those. It's not too much to expect.

Of course, it's very important for the judiciary because the judiciary's central role is for judges to exercise independent judgment about the law of the land. That tradition of independent judgment is actually something I spent years studying and wrote an unreadable book on. But I traveled up and down these coasts looking at old archives, finding old constitutional cases from the 1780s in the States. It turns out that early Americans were well aware of this tradition of independent judgment. And that's the foundation of cases such as Marbury v. Madison, where Justice Marshall says this is the province of the judges, is

to interpret and exercise independent judgment. And so the case Loper Bright and the Relentless cases decided this week in overturning Chevron hark back to Marbury v. Madison, as Roberts notes, you know, he decides it on statutory grounds. He says, the statute, the Administrative Procedure Act, requiring judges to decide questions of law, is merely reflecting this age-old tradition we have in which judges exercise their own judgment. The moment they defer to someone else's judgment, they're not being judges. Now, can I say a little more on that? Sure.

Here it gets actually quite interesting. For a long time, people thought that Chevron was a separation of powers problem. So there are a thousand law review articles on the constitutional problems involving separation of powers. But it became important, I thought, to ask another question, is what does it do to litigants in court? And what happens in court is very disturbing because usually the government is bringing an action against an individual or company. In other words, these are regulatory enforcement actions by agencies. In other words, the agency is one of the parties, and an American is the defendant. In those circumstances, what does Chevron do? It tells the judges, you should be biased in favor of, you should prefer the legal position

of the agency, the government, in a dispute with any other American. The net effect is systematic judicial bias in favor of the government against others in judicial proceedings, even when you get to court on review. Well, that's actually a due process problem. That's scandalous. And I think that was one of the problems that helped turn the judges away from Chevron. They don't want to admit that, of course, because then a lot of other deference doctrines fall. But we can't have a judiciary being biased in its proceedings. That's of central importance here. And I think the Supreme Court realized it doesn't want to be engaged in judicial bias in its cases, so they couldn't follow Chevron anymore. What are the broader implications now? Let's do one

of the criticisms. No one's going to listen to experts anymore. The experts have been disempowered. That's a big one I've seen. Right. I'm not sure that's really true. First of all, in interpreting statutes, the experts actually are the judges. Lawyers are pretty expert. Judges are meant to be immensely expert in interpreting statutes. So to the extent this is about ambiguity and silence in a statute, the experts are the judges. But what about the experts in policy, which I think what those concerns really focus on? The experts in policy are still there. They may be in the agencies, they may be in the private sector, and they'll still have a voice.

The question is, will they first be authorized by Congress or not? When a judge encounters an ambiguity, a genuine ambiguity they can't resolve through statutory interpretation or silence in a statute, what that judge now needs to do is simply say, the statute doesn't say anything on this. The net result of that is that Congress then will have to come in and say, oh, we're authorizing the agency to make rules on the subject. In other words, to rely on its experts to develop rules and do exactly what they were doing on Chevron.

The only difference is Congress will have to come in and authorize that, which is actually of some importance because that's actually a fundamental justification for having administrative rulemaking, that there's a statute underneath it. So in some senses, this actually buttresses administrative power. It certainly doesn't remove expertise. It simply requires Congress to authorize that process of agency rulemaking depending on their experts. Mind you, the expertise vision of administrative power is a little out of date. That prevailed in the mid-20th century, but Justice Kagan, when she was a law professor, wrote a very important article, a well-received article called Presidential Administration, in which she points out that increasingly the policies adopted by agencies are directed from the White House, at least reviewed by the White House and sometimes even directed by it.

And of course these days we see all of government administrative power cutting across agencies. Translation, politics, presidential politics and power drives ultimately most rulemaking of any significance. So if something really matters, the White House involvement will always be there. So it's hard to talk about administrative law resting primarily on expertise these days. That's not to say there isn't expertise, but as Kagan's scholarship shows, this is largely driven from the White House these days. And that's not about expertise. That's about presidential politics. Absolutely fascinating. You mentioned that it's been 10 years or so that this Chevron doctrine has been kind of downplayed, especially at the Supreme Court level. But my sense is that you have all sorts of these kinds of deferences having

been made across all sorts of statutes, basically. Right. There are all sorts of deference doctrines. You could call them the children of Chevron, but some of them predate Chevron. They're all named after various cases. Mead-Skidmore deference to informal guidance and interpretation. There is Kaiser-Auer deference to agency interpretations of their rules. There's Stinson deference, there's Griggs deference, all these little deference doctrines. One might ask, what's going to happen to them? But even just Chevron itself, presumably there's all sorts of rules that have been made by agencies which now are in question. Oh, you're talking about the rules? Got it.

Right. But I'd like're talking about the rule. Got it. You were talking about the other difference. I see. But I'd like to talk about that too. Right. Okay. So let's talk about the agency rules. Yes, there probably is some indeterminate amount of agency rulemaking that depends on the Chevron for its authorization. How much there really is, I don't know.

At a recent conference I was at, there was rather strong opinion from academics, very distinguished academics, that in fact the agencies had already adjusted, that in fact they were not as dependent upon Chevron as they used to be. But I don't know myself. That's not something I've studied. But I suspect it's somewhere halfway in between. There will be some things that are dislodged, some rules that are dislodged. And that simply means that Congress will have to come back and provide extra authorization for the

rules or adopt them itself by statute. And there'll be other instances where the agencies have found other mechanisms to accomplish their policy, and they're not dependent on Chevron. Well, but there would also be examples where Congress doesn't like the rule. Right. So there'll be some instances where Congress won't adopt the rule. That's true. But that's our political process. And actually, this is actually an important matter, there's scholarship by Michael Rappaport and John McGuinness, which shows that policy adopted by Congress is apt to be relatively moderate because it involves compromise back and forth, which used to be the hallmark of congressional conversation. When legislation or rulemaking is passed off to agencies, and Chevron puts that on steroids,

of course, there's a risk. There's a risk that the regulatory policy will be relatively extreme because it's driven by presidential White House control. This is problematic for a number of reasons. One, one might distrust extremes. I think that's not unreasonable. There's a lot to be said for compromise. Not everyone sees the truth. One needs to talk to other people. But the other danger, of course, is that when all the regulatory power of the federal government

is in the hands of agencies under some degree of control or restraint by the White House, then everything turns in a presidential election. Too much turns on it. I think this is one reason why presidential elections have become a sort of warfare. Presidential elections become existential events, and this leads to all sorts of misbehavior from all directions. One party has a monopoly on that.

That's a disaster for the country. That's tearing us apart. There's a lot to be said, therefore, for not having so much depend on presidents, but more on representation in Congress. To the degree that Chevron has shifted power to agencies under presidential control, again citing Elena Kagan, one might worry that that's been very dangerous and it's exacerbated the tensions in the country. And so it's very healthy to pull back from that. So getting rid of Chevron does that. That surely is wholesome.

The other day I was speaking with a Texas state senator, and he told me something which was very interesting. And I'm curious if you want to comment on it. He said there's a lot of anticipation in industry that Chevron will be struck down. The impact on industry, he said, was the lobbying dollars are shifting to the states. They're shifting in anticipation of Chevron being struck down because there were hints of that already. It could mean that they're shifting to the state. That's very interesting. I would have thought there'd also be a shift to Congress. In fact, I've argued to congressmen and their aides that if they want to raise more money, they should actually do more lawmaking and

take up their constitutional responsibilities. It didn't seem to move them. But I would have thought, yes, lobbying money would shift to the representative bodies, Congress and apparently also the states. I didn't know that. The danger, of course, is that a lot of the influencing that goes on involving large corporations in particular is through the agencies. The agencies have very close relations with the other bureaucratic organizations, large corporations. And that's at the cost, usually, of others, including small businesses or medium-sized businesses and, of course, the public.

We often think of agencies, I mean, the progressive story was agencies will control big business. I don't know that it works that way. There's some evidence that big business influences agencies, right? Who controls whom? I don't know that it works that way. There's some evidence that big business influences agencies. Who controls whom? I don't know. Let's talk about these other deference doctrines. Actually, one of them was challenged when it comes to Jarcacy. Let's talk about the deference doctrines, and then let's talk about juries and jar cases, just to break it up into parts. There are other deference doctrines. They run by the names of

their cases. There's usually pairs of cases like Mead-Skidmore. And just as a quick reminder to our viewers, deference doctrines just mean that the judiciary says, I'm going to give preference to another interpretation. Right. Which is, of course, as I said earlier, rather troubling. It categorically favors one party's legal position over another, which is very odd, and I think actually unconstitutional, because it denies the rest of us due process. So there are other deference doctrines.

There's Kaiser-Auer deference, a deference to agency interpretations of their own rules. There's Mead-Skidmore deference to informal agency interpretations, including guidance. And there's Stinson deference and Griggs deference and so forth. These are all little mini-deference doctrines. And they all suffer the same basic problem, which is that the judges are giving up their own independent judgment and giving a leg up to one party. It's always the most powerful party, of course, the government. This is not the way judges are meant to act.

This case did not, Loper, Bright, and Relentless, these two cases didn't resolve the fate of those deference doctrines, but it does hint that they also perhaps have to be cast aside. Two other deference doctrines did go by the wayside. There's something that's called City of Arlington Deference, which is where a court will decide the boundaries of its own jurisdiction, and another one called Brand X Dock of Deference, where agency interpretation will defeat a court holding, which is astonishing. These were both mini versions of Chevron Dock of Deference. They took applications of Chevron in extreme circumstances.

Those I think have fallen as of this week. However, I will defer to the future to worry about those. That can all wait. Now, let's talk about jarcasy. The SEC v. Jarcasy presents itself as a jury case, and that in itself is already profoundly important because so much of what's at stake in these cases are our

constitutional rights vis-a-vis the administrative state. The administrative state is often thought to be a matter of separation of powers, but it's actually a great threat to our civil liberties. And administrative adjudication has more or less wiped out our jury rights, our Seventh Amendment civil jury rights. Okay, explain that. So when the agency wants to pursue a case against you for violating its rules, what will it do? It could go to a district court. Some of them can go to a district court. The SEC, Securities Exchange Commission, was one of those.

It could go to a district court and say, the Justice Department will enforce the regulations against you in front of a real judge with a jury and all the panoply of constitutional rights you have as a defendant. But an alternative, the SEC could also say, we're just going to prosecute you in-house in front of our administrative law judges, who aren't really judges, they're just employees of the agency. And the problem there was that these judges not only are not real judges, but they don't provide juries. So the SEC, when it found that it was prevailing better in its own in-house court rather than in the real courts, no surprise, around 2014 it was actually quite candid in suggesting it would just switch more cases from real courts to its own courts, where indeed they have something like a 99% victory rate.

This is a problem for many reasons, due process reasons, but also, of course, jury rights reasons. The Jarcacy case challenged the denial of jury rights, and blessedly the Supreme Court recognized jury rights. There was some risk under a prior case called Atlas Roofing. They would simply say, when the government proceeds against you administratively, you don't get jury rights, which was astonishing. Now, this is relevant for Chevron because there are two types of deference generally.

Courts defer to agencies on questions of law that include Chevron deference, but they also defer to agencies on questions of law, that includes Chevron deference, but they also defer to agencies on questions of fact. And when an agency proceeds against you in its own in-house proceedings without a jury, the administrative law judge, an agency employee, creates an administrative record, writes up what he thinks the facts are, and that becomes the facts of the case. And the judges will defer to that, so it doesn't go to a jury or even to a real judge. So the case overturning Chevron didn't deal with fact deference. It was decided on narrow enough grounds that wasn't affected. But the restoration of jury rights in the Jarcacy case means that increasingly cases will come to the courts with a jury, and therefore

there'll be no room for fact deference to the agencies. So we are seeing a restoration of the judicial role, both directly as to deference to law and indirectly to the restoration of jury rights. And that's, I think, profoundly important. Fact deference is sort of a funny term, because it's basically like, who decides the facts? That's profound, right? It's a profound import looking back at the recent years. There's been a lot of debate about what the facts are. What is disinformation? These kinds of questions. The funny thing is that under the regime that existed until this week, if you were prosecuted,

let's say by the SEC in its own in-house proceedings, and then you appeal to a court, you petition actually to a circuit court, you've got two problems. There's deference to the agency on the law and there's deference to the agency on the facts. Well, as law school we're taught there are two ways to win, on the law or the facts. Apparently, the court will be biased against you on both grounds. So it was very desirable that the Supreme Court back away from that sort of injustice. It was a gross violation of due process. And so it's very gratifying to see it being more centered and going back to its traditional role of actually deciding cases for itself. I want to reiterate that because that's

very interesting. I hadn't certainly thought about this, that actually both of these cases together have a much more significant implication. The cases actually restore each part of government to its own role. The courts now will be deciding with their own independent judgment what cases come before them. The executive agencies will be confined to making rules within their scope of congressional authorization. And Congress will have to authorize rulemaking if it wants it to happen. So whether this goes far enough is another question, but this is, I think, highly desirable. If one wants to have an administrative state that's defensible, that doesn't look like an assault on people's constitutional rights and on the structure of the government, I think one has to have each part of government a little more centered in

its traditional role. And that's, I think, what happened this week. So how will this impact Congress now? Well, we'll see. Hopefully, Congress will be resuming its role of authorizing agencies to make rules. Ideally, I confess, I'd rather see it resuming its real constitutional role of actually making the law, not handing it off to agencies. But if they're going to hand off rulemaking to agencies, so that agencies do the regulation, it should be authorized by Congress. And I think that will be a pressure on Congress to actually get back to its legislative function. That's a good thing. So I've had a number of people on the show from the NCLA, which is actually this group that you

founded that's had a number of cases in front of the Supreme Court recently, including these ones related to Chevron deference. So just tell me a little bit about the NCLA. The NCLA is a civil rights organization that sues administrative agencies to reduce their unconstitutional power and defend our civil liberties. We go equally after each administration, regardless of its politics, but to go strategically after types of power that cut across agencies that are unconstitutional. And I suppose it's a little improbable that I'm involved with it because, of course, traditionally I just studied the past. But about six or seven years ago, I became interested in contemporary litigation, and I ended up

founding this organization. And to my astonishment, it's actually been quite successful. We have three cases in Supreme Court this summer, and we've already been able to make a real difference, which is nice. Well, again, this has been an absolutely fascinating discussion. A final thought as we finish? A final thought? None of this is settled. Every case is not the last word. It's a continuing conversation from all directions. Rather than see the Jarcacy case or Loper-Bride or Relentless as resolving this. It's an invitation for

those who disagree to bring better arguments and for those who agree to agree with the cases to buttress them and reconsider the alternatives. The conversation is what lawyers and judges do and it should be done, I think, moderately and with full respect to the opposing points of view, all of which are very reasonable. That means that one can never say there's a settled point when this is finished, the conversation is over. Well, Philip Hamburger, it's such a pleasure to have had you on. Great pleasure to be here. Thank you so much. Thank you all for joining Philip Hamburger and me on this episode of American Thought Leaders. I'm your host, Jan Jekielek.