The Daily Signal - Can the Court Control the Administrative State?

Episode Date: May 21, 2022

John Yoo discusses the prospects for the Supreme Court to enact tremendous reform of how the administrative state engages in law-making. Spurred by a 2019 dissenting opinion written by Justice Neil Gorsuch in U.S. v. Gundy that called for a revival of the so-called "nondelegation doctrine", Yoo describes how the Court would curtail Congress from transferring lawmaking power to federal agencies. Yoo notes, "the question the Roberts court has to face is, do we think that the courts, by trying to constrain how far Congress can go, can actually force Congress to become more accountable and take responsibility for these tough policy choices, even when Congress doesn't want to do it? I think that's a very, very hard question. You could see the court making these decisions in the way that place limits on what Congress can do, place limits on what the administrative state can do." Hosted on Acast. See acast.com/privacy for more information. Learn more about your ad choices. Visit megaphone.fm/adchoices

This is the Saturday edition of the Daily Signal podcast. I'm Richard Reinch. Today I'm joined by John U. Law Professor at the University of California, Berkeley, School of Law, to discuss a new book he has edited with the American Enterprise Institute called The Administrative State Before the Supreme Court. Welcome to this Saturday edition of the Daily Signal podcast.

We're talking with John U about the administrative state and prospects for a form of this immense size. burden of the federal government. John U. is a professor of law at the University of California, Berkeley. He's a visiting fellow at the Hoover Institution and a senior fellow at the American Enterprise Institute. He has published numerous books, academic and popular, including war by other means, an insider's account of the war on terror, defender-in-chief Donald Trump's fight for presidential power, and point of attack, preventive war, international law, and global warfare, among other volumes. He's also published widely in law reviews and in popular publications like National Review and the Wall Street Journal.

And he's the co-host with Richard Epstein of the popular Law Talk podcast. John New, thank you for coming on. Hey, it's great to be with you. You should have pointed out the hardest job of all those jobs I have is keeping Richard Epstein to 45, minutes in a podcast. No, that is. That is true. I've interviewed Richard Epstein and I think it was about an hour long interview. I talked to all four minutes. And I had to fight to get those four minutes. Exactly. I was like, how'd you get four minutes? That's four times better than I usually do. So, yeah, well, I was the host. You're merely one of one of two with Richard Epstein.

So the topic of our conversation is the administrative state. I think it's a term that's emerged as a popular term, an established term. Philip Hamburger, I think, really etched it into our language with his book on the morality of administrative law and the administrative state. You're the editor of a new volume, along with Peter Wallace and called the Administrative State before the Supreme Court. which features a dozen contributors thinking about ways, prospects for reforming this beast through Supreme Court rule. What prospects are there in the current term for reform of the administrative state? Well, Richard, thanks for having me on, first of all, and congratulations on your new podcast here. I was a regular listener of all your podcasts. So this is great to finally be on again

with you. So the reason we did this book is because I bet when we look back in history on the Roberts Court and ask, what did it do? How do you define what the Roberts Court was compared with the Rehnquist Court or who knows the future Katanji Brown Jackson Court? You know, what did it do? And one of its, I think, likely major achievements will be reigning in the administrative state, which I think many would agree has become out of control, unmooried. to any system of democracy, the COVID lockdowns and the role of the CDC and Dr. Fauci and Dr. Birx and so on. I just sort of showed, I think, to regular people, the power that the administrative state has without any real democratic accountability. And so steadily,

piece by piece, the Roberts Court has been chipping away at the power and the of the bureaucracy. And I think it's going to, it could well culminate. And that's why we wrote the book, culminate in the next year or two with some very significant changes in the way that the administrative state operates. And, you know, to most of the word administrative state, right, their eyes glaze over. They start reaching for the beer and changing the channel. But what we mean by administrative state is probably that branch of the national government that has the most effect on your daily life, my daily life. So you think about who decides the mile per gallon requirements for your car, it's the administrative state. Who decides most of the rules in your

tax return? It's the administrative state. And you could go on and on. And so I think that the courts under the Roberts period are trying to restore some more democratic accountability to that system of government. Thinking about the Roberts Court has a whole, where do you think they've been most effective in this regard? And I ask that question because, you know, my perspective as sort of an armchair, you know, intellectual evaluating the administrative state is we hear a lot of discussion. A lot of fancy conservative speech has given about limiting the size of the administrative state.

A lot of Republican legislators who go on Fox News. and talk about abuses the administrative state has worked. And yet it seems that there's very little reform of its workings. And this has been true since I really came of age politically. And watching these things is like, when does this ever really change? And it seems there's just so few people who have put forward ideas for actually limiting it that are workable. What do you think is new here? I think that's a fair criticism of the conservative legal movement is, you know, there have been a lot of promises made.

Progress has been gradual and slow, and I think this area is much like that, as it has been in other areas that conservatives care about, like abortion, although that might change this year with the Dobbs case. Who knows? And with the administrative state, I would say one of the big achievements, I think, came to the fore during, COVID during the lockdowns in the three major losses that the Biden administration has had in the courts. And it goes to the fundamental question we take up in this book, which is how far can Congress go and giving away its power to pass the laws in our society and handing that over to bureaucrats who are there for their careers, who are not elected by anybody, can't be fired to anybody, barely managed by anybody.

So take the three Biden administration initiatives that have been frustrated by the courts. The first one was this claim that the federal government could stop all evictions in the country for the length of the pandemic emergency. And then the second one more recently was that the federal government require everybody basically who works for a company to get a vaccine. And then the third one was the one that just got struck down last week. by a district judge in Florida was, can the federal government require people to wear masks? So in each of those three cases, the Roberts Court, over the vigorous objection of the Obama

justices, was that we're not going to presume that Congress intends to give away broad power over society or the economy unless it clearly says so. And surprisingly, just that little seems to me common sense idea. had the effect of blocking the eviction moratorium, had the effect of blocking the national vaccine mandate and now of blocking the mask mandate, because Congress never addressed any of those specifically. Even to the extent they did,

you would think that Congress would have said, we rely on the Constitution's basic framework, which is that states are in charge of public health. And so I think like that's where, you know, the American people, right, people who are not lawyers, There's people who are, you know, right? They're just doing their jobs, you know, supporting their families, going to church, you doing all things.

They're not into law and politics. But that's when they saw, I think, the practical results of this. Again, we're just in the beginning of it, in the middle of it, of this Roberts Court effort to contain the claim of bureaucrats like a Dr. Fauci, who just went on TV, I think, just a few days ago and said, I don't think courts should be allowed to second guess the CDC. Why don't doctors get to decide whether there's a mask mandate? So, right, and my response was, welcome to the Constitution, Dr. Fauci. But that's right, he went on TV and he said that.

He said, I don't think judges should be allowed to review what the scientists at CDC do. Are there cases in this current term that look promising for further rollback of the administrative state's powers? Yes, in fact, there's one big one. You know, when we started working on this book over two years ago, we had no idea what would be on the docket of the court, but we could see what was coming down the road. In fact, the justices themselves have been calling for some cases to be brought that would allow them to reconsider this question, which in the technical legal phrase is a non-delegation doctrine. But again, the idea of how far can Congress go and giving away its powers and what decisions does Congress have to make rather than, say, the EPA or the CDC have to make? So there is one big case involving a lawsuit by West Virginia versus EPA, which involves a very technical. rule about what do plants have to do in terms of equipment to reduce pollution. But the main thing is,

I think this would surprise a lot of, you know, non-specialists, just, you know, people, you know, voters, if they knew that all of our environmental laws are not made by Congress, they're made by the EPA. The Clean Air Act basically only has one sentence to it that matters, which just says to the EPA, you know, set standards. for air quality advancing the public interest. And so in the past, the Supreme Court has said, that's a legitimate delegation of power to the EPA, which means the EBA can do anything.

If all you have to do is say, we're doing this in the public interest, which is not defined in the law, what's the limit on the powers of the EPA, especially when they're going to start claiming that global warming justifies all manner of restrictions on what we do when energy we use. So that case is before the Supreme Court.

If the court really swings for the fences and says, Congress can't just delegate all of its authority over the air or the water or energy to the agencies, that could be a revolution in the way our government works. Yes, that's what I want to talk to about thinking about the administrative state. I mean, you said it's the part of the federal government that really affects, you know, the most areas of our lives. The administrative state got incredibly large, though, I would argue, through political demand for regulation, particularly for environmental regulation in the 1970s. And also just putting on thinking historically about the construction of the

administrative state under President Roosevelt, you know, the idea being we're going to regulate the economy sector by sector. So we've got to have really strong administrative agents. agencies to do that. If we're going to pull back on that power, could the court actually do that with a strong opinion telling Congress, no, no, no, you can't delegate authority anymore? Or is it, it's going to have to be more than the courts. It's really going to have to be Congress accepting that standard. And we have no indication they're willing to do that. You know, Richard, I'm going to have to have a talk with the new president of heritage, because I don't like this new policy of having podcast hosts that know a lot.

I really don't like this. You know too much. So I think that's a really good question that you could say, and it's not that you could say, I think it's accurate that we voted for people in Congress and this is what they delivered. And we keep those same people in office. And what they do, there's a, there's a, I think, how do it? There's a, it's not sinister. I think it's just, it's dysfunctional.

There's a dysfunctional political incentive here. If you're a member of Congress, you know the people generally like the environment, but you don't know exactly what you want to do. You know exactly what the people want. So what do you do? You do exactly what they did. And the Clean Air Act or the Clean Water Act, you give all the power to the agencies. And then you can say, I did something about it.

But then when the agency issues the real rules that govern us, like are we going to require electric cars, or are we going to require extraordinarily high mile per gallon requirements when gas is, at least in California, we're getting closer and closer to $7 a gallon out here. And that turns out to be unpopular. Then you seek members of Congress on TV blaming these administrative agencies to whom they gave the power to make the decision in the first place.

So the political dynamic, as you point, Richard, encourages these kinds of delegations because you're not going to get reelected and as a member of Congress if you set the mile per gallon for your car or if you ban old-fashioned water heaters or you vote to ban old-fashioned air conditioners. So you want to kick all those controversial questions over to someone else and then you run for a reelection because you brought the local water project or highway improvement to your district. So one way to put it, Richard, is my answer to you is, unfortunately, we're at a stage, I think, where you're right, where Congress left to its own devices would just continue to do this. And so the question, the hard question is if we,

and this is the question the Roberts Court has to face is, do we think that the courts, by trying to constrain how far Congress can go, can actually force Congress to become more accountable and take responsibility for these tough policy choices, even when Congress doesn't want to do it. I think that's a very, very hard question. You could see the court making these decisions in the way that we hope in the book to place limits on what Congress can do, place limits on what administrative state can do. And without a Congress that wants to cooperate, without a president that wants to cooperate, like the ones we have with President Reagan. and the president Bush, and I argued in my Defender and Chief book, actually, and President Trump, if you don't have presidents and Congresses are interested in reigning in the administrative state on their own end,

then maybe all you've done is paused its growth. One question that comes to mind, as I started reading more and learning more about the administrative state and its relationship to Congress, is Congress itself now institutionally organized, almost in a subordinate role? old of the administrative state. And that is, I know the administrative state is created by congressional statutes. It's interesting you note in the introduction essay to the book, maybe 20 laws will pass in a given congressional session, but something like a thousand regs will be passed in a given congressional session.

So the mismatch there is obvious. But I've just wondered, you know, do they, I mean, and I think on one level, maybe this is an that comparison. You know, when you watch these hearings of bureaucrats, high-level bureaucrats, who seem to have abused power, have done something wrong, and they're brought before Congress, they don't fear Congress. You can tell the way they testify. They're not really fearing these guys. And it's just an impression in my mind that Congress sees itself largely for its own expedient reasons, which you pointed out as sort of almost in a clientele relationship with the administrative state. Maybe I could

switch from my scholarly outsider perspective and switch to one of my many jobs I've had, which at one point I was, General Counsel at the Senate Judiciary Committee when Orrin Hatch, who just passed away,

was a chairman, and I think very accomplished one of our most accomplished senators in my lifetime. So one is, I think Congress has plenty of tools to rein in the agencies if they wanted to. You are right that when you see these agency heads up in, particularly the House, I'm struck by the disdain that they almost openly have for the people that they allegedly work for. But as someone

who worked in Congress, I know exactly how to snap their attention to, which is cut their funding. And that's like, you know, yeah, listen up now, Dr. Fauci. We're going to cut the CDC's budget by a third. or we're going to zero out positions. And you will see immediate rapid responses from the bureaucracy. And Congress, and that's your thing. It's very easy to change funding levels. You just stick a ride or in a bill that has to pass. And it's not subject to the problems that you have, as you point out, passing one of the few 20 or 50 laws that might pass in Congress and give a year.

Because Congress has to pass appropriations for every agency, generally to do it every year. I think there's a way for Congress to really regain the power if they want. But you have a harder question. Again, it's related to your first question. Does Congress really want to? And if they wanted to, what would they have to change? What would Congress have to change about itself? So this brings up this larger philosophical question,

which is whether Congress should even be doing any of this. Because I've always thought that the genius of American constitutional government was its radical decentralization. that we push decisions down to the states over most affairs of life. And a lot of states push their decisions down to cities and counties. And that leads to a lot of accountability because we directly observe those people because they're closer to us. And it means that you have a lot of experimentation, competition, and independence between the states. And so ideally what I always thought would be a great system.

is returned to the pre-progressive era system of government, which is the federal government is in charge of national security defense. It's main administrative role as a rule of law, enforcement of law, so most of the federal presence in most places is the courts, maybe, and then let the states take care of most of the areas of life. Now, the progressives, what they did, and these administrative law doctrines are at the heart of what they decided to do, was they replaced it with a kind of teutonic,

I was using a Prussian approach to bureaucracy. I think the great villain in this story is Woodrow Wilson. You know, Woodrow Wilson, you know, as President of Princeton, great political scientists. You know, his works are still used in colleges and universities. He goes off and he studies German theories of administration. And he comes back to the United States, writes books, and he tries to implement them as president. And the progressive view is all decisions are just scientific and technical decisions. decisions. Dr. Fauci actually is the ultimate Wilsonian bureaucrat. So you want them to be as

removed and isolated from political pressure as possible. And the way to do that is give them as much power as you can over the country and then keep them as far away from politicians as you can. Because politics is just dirty. Politics will just mess with their decisions and distort the right policies in our country. I, like that's the really the fundamental fights of Congress really wants to re-insert themselves. They have to take a side in that. And that's, they have to fight for, it seems strange. But they, that Congress have to do. But Congress has to fight for the importance of politics. Yeah. Thinking about, so here's where I'm, I get a little more less pessimistic. And it was sparked by something you said about the expertise, the scientific applicability of these

administrative agencies of knowledge to power and problems. And no one believes in that anymore. It's, I mean, a certain progressive elite class does, but I think they've discredited themselves now for many decades. And it seems to me, and maybe I'm being too optimistic here, something after COVID has happened. Yeah. And in the American people, something just right now with the way our elites have mismanaged the regulation of fossil fuel companies or, you know, through all sorts of incentives have moved capital away from those companies. and now we need them to be operating and they can't. I think a lot of, it seems to me that's really gone. What's really here is the naked politics of the administrative state.

And the abuse, the abuses, the size, it seems to me it's all pointing towards some level of reform in the coming years. The volume that you were the editor of is all, it seems to be it was triggered by, Justice Gorsuch's dissent in the Gundy case. And he's trying to indicate in that dissent a way back to regulating the administrative state more sharply and the delegation of power they received from Congress. Talk about that dissent and what you make of it. So, for your first, I completely agree with your view on how, if you want to look at the ultimate expression of this progressive view of government, it was, I think, the COVID lockdowns. I mean, what an incredible exertion of power to tell everyone you have to stay in your house. It's hard to remember these. You can't go to Thanksgiving dinner with your family.

Unless you have an essential job. Yeah, exactly. Remember all of the things that were, I mean, the level of detail that our lives, right, were subjected, managed by the federal government. It's now that we're reopening and at least some parts of the country, maybe not California, but maybe where you are in Indiana or Washington, D.C. or whatever. Oh, yeah. Right? that it's like night and day, but it may be hard to remember how far the government went in telling all of us where we could go, who we could be with, where we were allowed to eat, where we had to shop. I mean, I think the founders would have been astounded by that claim of government power. And the fact that we're now starting to see, because of federalism, because of the states and their differences, that the states that opened up faster had better economic results and were no worse off than the average. in COVID figures, we're starting to see that a lot of these experts were making it up.

They didn't know what they were doing or they were just guessing, and they bet trillions of dollars, thousands of lives on these educated guesses. So anyway, I quite agree with you that if there's something that's going to focus the mind of the American people on the need for reform, as you say, it's going to be our experience during COVID and the lockdowns. It comes to Gorsuch, this is interesting. This is all, of course, not sparked by COVID, although the justices who have been most critical of the administrative state

were also the ones who were most protective of individual freedoms and liberty during the COVID cases. So actually it goes back to Justice Thomas a little bit farther ago. In the interest of full disclosure, I clerked for Justice Thomas too many years ago. But just Thomas wrote an opinion saying, you know, we ought to reexamine this non-delegation doctrine, you know, this deferential approach we give to the administrative state that's been around since the New Deal. And but he was a lonely voice. In fact, often it was funny, conservatives in the judiciary, often sometimes were some of the most pro-administrative state people. They were Justice Scalia or Judge Bork, very pro-administrative state. Yeah. And a lot of this, because I think they came in with the Reagan administration. There's a whole political story to this. So then Justice Thomas puts out that solo dissent in those cases. And then Justice Gorsuch writes this very strong, also agreeing argument in this Gundy case, which is a minor case about sentencing of sex offenders. But he also said, look, there has to be a limit in how far, Congress can give away its powers and how much authority agencies can have. And I think there should be

a test. Justice Kavanaugh signs those opinions. And Justice Alito said, he said, in this case, I'm not going to go along. But I do think if their right case came along, I think I would go along with Thomas Kavanaugh and Gorsuch. So they're right there, right? Because you're almost at the most important rule of the Supreme Court, which is the rule of five, all you need is five people. So if, you know, Amy Coney Barrett happens to agree with those other justices, then yes, this Gundy dissent inspired by this Thomas earlier dissent will make its presence known and you really start to see a very significant reduction, I think, in some of these powers. Now, the one thing you said, Richard, in one of your earlier questions is very interesting is what does it mean for the other laws? What does it mean for

Congress? You could at least see the court going back and saying, okay, all these older laws where we let Congress get away with it, essentially saying, just clean all the water, clean all the air, do it as, you know, we're not going to give you any standards, do whatever you want. Maybe the court invalidates them and forces today's Congress to say, well, if you really mean it, then perhaps a new law that has more detail. And so if you really want to give away power to the agencies, we're going to do it, we're going to do it in a very clear way that the American people can understand and hold you accountable for. And even if Congress has to go through that exercise, maybe that will be very valuable for democracy. Yeah, my sense is, you know, one of your

contributors, Judge Ginsburg said he thought they would just grandfather it in. If, you know, if we get a strong ruling limiting the powers of the current administrative state, what's happened beforehand will just continue to exist, but there will now be limits going forward. That seems to be maybe the more likely outcome. Although I would enjoy watching the attempt to recreate the administrative state under strict standards where they, you know, bureaucrats could regulate only if the current, if a set of facts were true. Yes. And they couldn't make actual policy decisions. to the extent they could, it would be because it had been triggered by clear factual predicate, something like that.

That sounds interesting to me. So you've got the rule of five. Of course, it's hard to say what Justice Roberts would do. Gorsuch and the Gundy descent, I suppose the problem here, too, is making distinctions. You know, what is a factual determination versus a policy determination when policy so quickly would be tied to a fact? can you actually hold those two things separate or do they sort of run together? Also just the sheer size of the administrative state and the inertia of its power.

Could courts actually, could a Supreme Court decision, a strong decision really on its own, pull that back? I don't know. It seems, you know, we're left too with Congress having to actually do a specific job of lawmaking. We've talked about that. But did you think the Gorset's decision, of course, this all turns on as well, the court's grant and the famous 1984 Chevron decision that, you know, if Congress is, you know, say, ambiguous or unclear in the statute, a reasonable interpretation of the statute by an agency regarding a rulemaking will stand, that, of course, seems to be provide all the wrong incentives to Congress in my mind. But that Chevron decision itself having to be curtailed. And the question is, can you really curtail it specifically enough without running into all sorts of problems? Can I just mention, provide the sort of political background of Chevron and the non-delegation doctrine?

Because there was a kind of unholy alliance between conservatives and progressives about this. Because even though conservatives now see the many flaws in the Chevron approach, they were. are present at the creation. In fact, the Chevron doctrine is one that has been ruthlessly enforced by Republican lower court judges. And the reason why is interesting. So it's because it also goes to, you know, the optimistic story you're telling. Just one aside is I think, you know, things can change rapidly. President Reagan is the one and his administration, if there ever was one, that started to question and try to slow down this growth of the administrative state, which has accelerated. between the New Deal all the way through to Jimmy Carter's presidency. So President Reagan,

you know, one of his platforms, he campaigned on the idea of deregulation, reducing the power of the agencies, lifting the burdens of regulation on our economy. I mean, if we're living through the late 1970s again, which we seem to be with inflation and, you know, the setbacks we're having abroad and the way regulation again is strangling innovation and, you know, economic growth, Reagan saw that and so he comes to office. He says, I want to lift the burden of government on the economy on the people who are, you know, the productive people in our country. And so conservatives at that time said the way to do that then is for us to control the agencies and then pull the regulations out, you know, deregulate. And when we do that, we don't want the courts

second guessing us doing that. So they're, you know, conservatives are the ones who sort of contributed to this idea, let's have a light hand, if any, review at all by the courts, because we're going to use that to deregulate when we're in charge of the government. Of course, progressives like this at the same time because they liked that this would allow the administrative state as a whole to conduct more and more of its activities without any scrutiny and review by the courts. So you had this kind of weird conservatives and progressives both wanted to push the courts out. And then there were other conservatives in the legal movement who said they liked Chevron, they liked the non-delegation

doctrine because their view was, I think this is more of the Bork view, was that this is all politics. Are there any real standards at all? You know, you see this expressed in the recent Robert Robert's Court case about gerrymandering where they said, there's no, how can a court come up with a legal standard to review what's really a congressional district or not? It's all just going to get courts into politics. So people like Bork and I think Scalia were also worried getting the courts involved with the administrative state would make the courts, unfortunately, more like the administrative state. So they wanted to keep the courts pure and separate. But I think when that happened, that gave an enormous amount of power away from not just

democratically accountable branches of our government, but took power away from the original constitutional design and handed it over to this kind, again, this is a prussian. inspired a Teutonic vision of bureaucracy and government and undermine the kind of decentralized common law way of deciding things in our country that I think had served the country so well all the way through until the New Deal. It seems to be one way back could be to outline, you know, major policy decisions. And, you know, however you would define that, maybe it's a numerical standard, a dollar Oh, Richard, you're reminding me I didn't answer your question.

Sorry. No, no, no. I'm just thinking like, you know, so who's going to say, could the court give us a major policy decisions test, sort of like a political question test? And then that becomes a way to think about, well, if you do this, you need to really be specific, and it's got to be specific to the point where we can tell if the bureaucracy is acting according to the statute. If we can make those determinations, the statute will stand. But of course, that brings into question, you know, you could do a lot of things that

wouldn't be a major policy decision. One of the contributors to your volume has kind of a core legislative powers test, you know, working from Article 1 about what constitutes core legislative power. And those things could only be delegated under very strict standards. What do you make of that idea? Let me write some more the, because this involves the backstory of why conservatives were so hands off on the administrative state, too, is because they felt that the standards, the tests themselves, were too elusive, as you're pointing out, that we all know that there has to be

some level of small detail decisions that should be made by the agencies because they have to carry out the decisions that Congress makes. You know, like just an example, Congress might say, you know, we only want certain goods of certain quality to be imported into the United States. And they could set some standards, but the people actually carry out the rule are going to be the customs inspectors. And so Congress probably isn't going to right pass a list of every fruit and drug and everything that's allowed to come in versus banning what the quality for each one is has to be. So the administration governance does require some delegation to the agencies. He said, we've had it since the beginning since the creation of the Treasury Department. And Alexander Hamilton was a Treasury Secretary, and he had customs officials carrying out delegated powers.

But as you say, Richard, there's some difference, at least we would argue, and the contributors to the book would argue that there's a difference between that and saying Congress couldn't pass a law, just saying, we just let agencies make all legislative decisions. What if Congress just said, we transfer our legislative power to the EPA? well, that would be unconstitutional. So what's the line in between them? So I think you're exploring a line, which I think could work. We'd have to see in practice, but if we could distinguish between, you know, what's policy

and then what's taking that policy and applying it to a case, you know, applying it to the facts of someone before you, maybe that's the line. Other people say maybe we should just define the line by the economic impact. you know, if an agency's making a decision that affects more than $10 million or $100 million in the economy, then Congress has to do it. So this is one thing we ask people in the book to do is to try to come up with their tests that a court could really apply because the justices themselves in that Gundy case that you mentioned were themselves saying people come up with some tests because the courts have not come up with a good

test. And I think that's, you know, that's not easy. but in the book we have, you know, eight ideas for different tests. And so hopefully maybe the court will take one of them and adopt them and use it for the future. That's, I think, something that's scholars and, you know, people like you and me who talk about public policy on the outside of these decision-making bodies. That's where we can really contribute is to take a longer look, think about the consequences, come up with workable tests because the courts don't have the time to do it, given the press of all the decisions they have to make.

I think also, one ongoing attempt is to pass a statute, usually in the acronym, the Raines Act, you know, that if a certain piece, if an administrative agency wanted to regulate and it costs a certain amount of money, then it would have to be approved by both bodies. Something along those lines as well, though, I mean, I don't disagree with that. But I think it's also the case, you know, you want to, you want to cure this at the front end. if you can in terms of when things are actually being delegated or not delegated or something along, you know, that's where you want to have the right formula. Yeah, I agree. I think that, you know, the Raines Act, as you say, is an idea. Why not have the agencies almost just be in the position of proposing regulations and that Congress has to actually enact them?

But as you say, the real source of the problem is that Congress is giving all that power to the agencies in the first place. And so that's the, I think, the cleaner, better cure that could really return us back to the decentralized system of the Constitution that we started out with and that served us so well. You know, the Raines Act is, it's important. If it passed, it would do some good, but it's still tinkering inside the progressive box of the administrative stick rather than really trying to fundamentally reform it. But I think that, because what I worry about with the Raines Act is you could, I could see. people in Congress, given the way Congress works, taking all the regulations in a given year, putting it in one giant bill, right? The Omnibus Rains Act regulation bill and just passing it as a whole every year. Yeah. So that, and I would say like this would be excluded from, from Rains?

Or is that what you're saying? No, no, I just worry that if even if you pass the Rains Act, that, you know, Congress would just do it all in an omnibus. Oh, okay. Because, you know, that's what Congress does with everything else. Right now. Everything just gets folded into the giant spending bill at the end of the year. And so I could see, you know, Speaker Pelosi or Chuck Schumer, yeah, just throw all the regulations you want to improve under the Raines Act at the end of the year, one giant bill. So I was going to ask you, Michael Grava, a close student of the administrative state,

he's actually from Germany. He wrote an interesting Law Review article in the George Mason Law Review a couple of years ago, saying that these attempts, he kind of colorfully refers to it as Chevron metaphysics, are bound to fail for some of the reasons that we've been discussing and make it so hard. And really what you should do is what Germany does after World War II, which is to have a whole separate set of courts called administrative courts. And their sole function is to review private right violations by the administrative agencies. and Gravis says in Germany that your private liberties are much better protected vis-a-vis

that's part of the government than in America. They're clear doctrines, clear rules, everybody knows what's what. And, you know, the cases, to the extent that, you know, there are cases, they're very professionally decided. The opinions, you know, issued by the court are intelligible and clear to all parties. So why not do that in America? And he says they could come in under Article 1 and exist for that purpose. Aside from just the political weight you would have to have to erect a new system, of courts.

You know, what do you think of that idea? I'm not persuaded for a few reasons. One is I'm not sure the answer to controlling bodies that are based in expertise and specialization is to just create another body of expertise. and specialization to watch over them. You know, that's sort of a, it's almost like a sort of a Germanic answer to a Germanic creative problem. What you need is more experts, right?

The problem with agencies is that they're not expert enough. So let's get some really smart experts to watch the agencies. But I don't, right, so that's essentially what that argument is. I'm not, and that's what other countries, not just Germany, lots of other countries have specialized judiciaries where, you know, you are a court of a. certain kind of law, like you could be a Supreme Court of family law in France, for example, or something like that. I'm not persuasive. So the American approach has always been, let's have generalist judges who are more like the rest of the American people rather than specialists.

And maybe they are a better, more secure, more skeptical eye on government. Because if you have more experts and technocrats reviewing what the other experts and technocrats are doing, you could just have more capture by the experts. So there's a way to test it because we have gone down that road a little bit. So, for example, intellectual property, which is one of the great drivers of our economy these days is technology. We have a specific court where those cases go called the Federal Circuit in Washington, D.C. we have a tax court.

So they're very specialized. And so you could look and see, do we feel that that system is better than having regular generalist judges who are, I mean, I think are going to be more skeptical of the government than people who are, you know, specialists in area, review what the government does. So we could make a judgment and look at the evidence. But my guess is you're going to see those kind of specialist courts get captured. But then, you know, that brings me back again to, I think this is a sort of fundamental American difference with Europe. I know this is a favorite subject of yours when you were, you know, the Liberty Law and, you know, the Liberty Fund podcast is, you know, what makes us different than Europe. And one of them is, you know, our suspicion of the government, our suspicion of public power. You know, we think the answer is that not to put smarter people in charge, but to decentralize and weaken the government.

And I don't know, you could look at the results. I mean, do you and I really think our individual rights are better protected in Western Europe than they are in the United States? I would say not. And I would say lots of immigrants in the world choose with their feet by coming here and not Europe for, you know, who are escaping dictatorship. I just don't think our rights are better protected in Europe, even in a system where you have, you know, more expert courts. You know, we should note there are administrative law judges currently, but they're ensconced within the actual agencies they're called to issue opinions for, which is highly problematic. I think particularly, you know, Philip Hamburger has written pieces about what he argues

are abuses inside the Securities and Exchange Commission. No small agency there. And so, I guess the idea would be an independent body of judges who received life. time appointment who would have, you know, hopefully a, you know, independent platform from these agencies to review, you know, alleged violations. And, you know, I think Grave argues it also it would be a competitive system. You wouldn't have to take your case in front of an administrative court. But it may be the case that you get a better deal. So it starts to be the preferred venue. I think it's an interesting idea. Just, just in the stake of, you know, so little that

we have thrown at it has actually worked in terms of trying to get our handle on it. Another law professor wanted to ask you on, Adrian Vermewell, I'm reading his book. A lot of people are talking about it, common good constitutionalism. One of the claims he makes in the book, and this is a book that tries to recover the, I'll say, full body of Western law in its best sense, going back to the Code of Justinian. He argues the administrative state or the administrative law world in America is perhaps from from standpoint of how he defines it of natural law of justice, the best ordered system currently in American law. It's the most fair. It's the most efficient. It has as a well-settled body of law, things like this. And actually, so he kind of says that

should be like a model for how we do things constitutionally that he thinks it's actually very efficient for Congress to pass these statutes and let them be determined by administrative heads who have expertise and power in a given body, a given area. And so he also sort of takes on the progressive critique or agrees with the progressive critique that modern society is so complex and difficult that there's no way Congress could really regulate it. What do you make of that? So by interest of full disclosure, Adrian is a good friend of mine of longstanding. We've known each other since we were law students, basically. But I'm not persuaded, and this is why.

I could see, Adrian, I have not read the book in total. I've read the article from which it came from and seen a lot of the discussion, which you've participated in hosted yourself. And so one, to me, the logic goes sort of like this. If you know what the right values are for society, then the administrative state is great because of the way our government works now, the administrative state would be the fastest and quickest way of implementing those values. The problem is, you know, one, I'm not so sure what the right values are for the country. I mean, we may all individually have our views of what the right answer is. for a lot of social problems. But I'm not sure I'm right. I would like my, you know,

fellow citizens to have a say on that too. And, you know, you have this messy system of democracy. This is really what the inventors of the administrative state from Wilson on didn't like about democracy, that it is messy, that we do argue and we have disagreements and we may not know what the right answer is or that our society may be divided about what the right answer is. if you have a society like that, then what you get instead with that kind of powerful administrative state, I don't think he accounts for this, is an administrative state whose members have their own view of what they want to do in life and impose it on the rest of us. I think that's what happened during COVID. You had these bureaucrats who thought, gosh, we never had a chance to, let's see what happens if we lock the economy and society down and whether it can stop the spread of a disease. and they were terribly, terribly wrong.

It did not stop the spread of code. I might slowed it down a little bit, but I don't think anyone would argue that it stopped it. So that's one problem. The second problem is if you do create a system like that, and suppose the government is taken over by people who don't have the right moral values or don't have your preferred moral values,

then you're in a lot of trouble because there's nothing standing between you and the government if it's in the hands of progressives rather than the people who have the common good values that Adrian would like to have. And then the last thing, just quickly, and I think this is where the founders system, at least to me, makes more sense for America than it might in another country, is that we are a diverse country. We have a country.

It's huge, 330 million people, and it's a continent-wide and waves of immigration. and if you aren't sure, right, you want to, you don't know exactly what those people want. They may not all share the right values. Then maybe the better system is to have a system with as least little law as possible, with as little coercion as possible. So, right, the common good constitutional system makes sense if you all agree on these values, you know they're better than alternate systems. And you don't have qualms then about imposing those values on the rest of society. But if you aren't sure, why not go for this system the founders had in mind, I think, which is decentralized weak government.

And they defined freedom not by achieving some common good values, but freedom as in all of us having the power to make decisions for ourselves. And that, you know, we would form our own associations, groups, you know, a Toquevillian system where we don't rely on the government. You know, we organize ourselves. And we go to churches and we have, you know, local clubs and we engage, you know, we start, political parties, and those are the institutions that really matter in life because we should worry about it, I think, a legal system like the Code of Justinian, which is from the Roman Empire, and, you know, still the system that works in Western Europe and parts of Asia, where law is everywhere and government is everywhere. I mean, that's a very, I really worry about the sort of absolutist

tendencies of a system like that. Sorry for the rant. It's not a rant. I was just like, I'm glad I got a chance to think out out loud with you, my worries about the common good constitutional system. Yeah, no, I suppose the, you know, for Adrian, the values our Catholicism and sort of a left-wing social democratic blueprint. And I think he's fairly certain. That's the way we should go. I know. How do you? So the administrative state is going to bring that into being. And I think he's clear in this book on that point. Yeah, yes. Yes. I think that's That's right. But what if you're wrong? What if it turns out? How do you know you're right about that? Yeah. Well, I don't think he's in doubt. John Yu, thank you for discussing with us prospects for administrative reform. We've been talking with John Yu, editor of the administrative state for the Supreme Court. Thank you so much.

Oh, thanks, Russia. It's really great to be with you. And congrats again on your new podcast. That's it for today's episode of the Daily Signal podcast. Be sure to subscribe on Google Play, Apple Podcasts, Spotify, and IHeartRadio. And please leave us a review and a five-star rating on Apple Podcasts and encourage others to subscribe. Thanks again for listening. And we'll be back with you on Monday. The Daily Signal podcast is brought to you by more than half a million members of the Heritage Foundation.

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