On all our lives and businesses. The rise of the Administrative State, will the u. S. Be a democracy or a nation rolled by the Administrative State . Our panel will be here in a minute. You will get a preview of the Fellowship Award presentation, because the moderator of the panel is one of our two new recipients of the blakely fellowship. Jeddy is the deep washington correspondent for the hill, and hill tv. He is a media fellow at the hudson institute, where he cohosts the realignment podcast. He served for the daily caller, and as a Foreign Affairs correspondent. He received his masters degree in u. S. National Security Policy from georgetown university, and his bachelors in economics from George Washington university. He has studied extensively across the globe, spanning three continents, and has visited over 40 countries. I am so proud to introduce one of our new Tony Blankley fellows , please come up gentlemen. [applause] everybody. U, towill take a moment discuss the Administrative State. It has been something conservatism has been concerned about for a long time, the idea of unelected bureaucrats in washington making decisions about important things that govern orderly lives. It goes back to the 1880s, with the commerce commission. Markets in america were changing. There were Good Exchange across state lines. How does the government concern itself with that . The federal trade commission, the reserve system was created by woodrow wilson, government inserting itself into the way we were i conducting business. Rightfully, we should all be concerned about that. That is why we have our illustrious panelists here today. From the American Enterprise institute, author of judicial fortitude, the last chance to reign in the Administrative State. We have a preview on his position. We also have elliott shapiro, director for constitutional studies at the cato institute. Please welcome our panelists. [applause] giving bothart by of you an opportunity to make opening remarks. Peter is interested in going over arguments from the book. I want to make sure they both can give you framework for the discussion before we get to my questions and your questions. Why dont we start with you, peter. Opening remarks, a couple minutes. Thanks very much sagar i will outline the key arguments in judicial fortitude, the book. The first line is the most important. We will lose our democracy unless we can gain control of the agencies of the Administrative State. The book is about the continuous drift toward government by unelected officials in washington, which we call generally the Administrative State and how we can stop this drift. The drift is happening because since the new deal, congress has been giving the agencies extraordinary power, the power almost to make laws. Congress wont stop on its own doing this, because it is easier for them. They dont have to make the difficult decisions that legislation requires. All they have to do is pastor the agency these difficult decisions and they are sort of home free and not subject in elections to having to justify the kind of decisions made. For example, if someone comes up to a congressman and asks why his frog pond to feed his animals is getting regulated by the epa, the congressman says, well, i didnt beaufait that. That is this outofcontrol agency i didnt vote for that. The congressman did vote for that by giving power to the agency. It is a way congress can be unaccountable but also to avoid things we Want Congress to be involved in, that is making major decisions for all legislation they pass. Even more important, when Congress Delegates broad lawmaking type power to administer the agencies, it is violating the separation of powers in the constitution. Powernstitution vests all to make laws in congress, that is article one of the constitution says, Congress Shall have all power to make laws. Article two gives the power to enforce the laws to the executive branch and finally article three gives the judicial power, the power to interpret the laws to the judiciary. The framers thought liberty would be endangered if the same person or group had the opportunity both to make a law and enforce the law. They looked around the world in the late 1700s when they were developing the constitution and what they saw was that where a king could make the law and enforce it, tyranny was the result. Perspective, the most important thing in the constitution was the structure, the separation of the powers. They wanted to maintain that as often and as long as possible. This is exactly the problem we are having today. The powers are no longer giving,d if congress is delegating, we say, its Legal Authority to make laws to the executive branch, particularly to these agencies made up of unelected officials. The problem here is how do we stop this constant delegation of power to unelected officials who all live, basically, around washington dc, reflect the priorities of the people in and around washington dc and not the American People, who would be ordinarily represented by their congresspeople . Those votes by congresspeople would be the votes of the American People but when they hand it over to executive agencies, they are giving up the rights of the American People to make these decisions. The separation of powers was so important to the framers that they set up the judiciary to protect it. This we know from a federalist 78 by alexander hamilton, who called the judiciary the guardians of the constitution saying judges were given lifetime appointment so they would have the fortitude,he language i use in the book to stand up to the other branches if they were doing things that changed the way the constitution was supposed to work and again, exactly in that situation, today, what we see happening is the system is being changed. Instead of Congress Making laws, they are passing lawmaking to the executive branch. This would have appalled our framers and the thing we have to figure out is, how we can stop this from happening . The book argues the way to stop this from happening is to restore something called the nondelegation doctrine. That sounds very legalistic. It is fairly simple. Courts have power, given that power by the constitution, they have the power to declare when an act of congress violates constitutional structure. Is different from violating the constitution with a policy of some kind. The courts should often stay out of that situation but when youre talking about changing the constitutional structure, that is the whole separation of power structure, as we have today, the Supreme Court in particular, congress and the courts should step in and declare a law that delegates power to the executive branch to be unconstitutional. Now in aossible practical way. Newunately, we have had two justices appointed to the Supreme Court, Justice Neil Gorsuch and brett kavanaugh. They join three other justices in the Supreme Court who all declared themselves, consider themselves to be constitutionalists. What that really means is they believe the constitution, the structure at least, should be preserved at all costs. Approach theas we next couple years when cases will start to come to the court where the issue of nondelegation can be considered by justices, i think we have a good shot here that the nondelegation doctrine will be restored. What does that do . Forces congress, if a law is declared invalid because it is delegating authority to the executive branch, it forces congress to go back and reconsider that law and make the Big Decisions in that law itself. That is what this book is about. Thank you, peter. I want you to get your point and. Opening remarks. Your point in. That is a good segue. I want to talk about two cases of the past term of the Supreme Court that show both sides of the same coin and the pushback against the Administrative State. I want to thank the steamboat institute, jennifer and all the staff here. Im delighted to be here. This is a great organization. Im glad for the first time i get to speak to you not freshly off the ski slope in my sweaty ski clothes. The second time in six months, peter and i are sharing a stage on this topic in colorado. We were both at the Leadership Program of the rockies earlier this year. Delighted. The cases i want to mention, picking up where peter left off, gundy and kaiser. Gundy is a nondelegation case. Eight justices participated because it was argued the first m, when bretter kavanaugh was still talking to the senate, although it was a tos, rejected the challenge delegating too much power to the attorney general to write the regulations, but Justice Neil Gorsuch wrote a blistering dissent joined in full by john iserts some people say, he triangulating in the middle joined by roberts and thomas and alito who gave his vote to the majority, wrote separately and did not agree with the reasoning of the liberal justices, basically to say, in a future case when there is a less freakish law, and when there was a majority willing to reconsider nondelegation, he might go in on that. Presumably, that means in the next case when Justice Kavanaugh is participating, alito might go over there, so we might have five hooks to hold congresss feet to the constitutional fire and say you cannot simply pass the truth, goodness and beauty act of 2019 and let the bureaucracy do whatever it wants. The flipside is how much deference judges give to administrative agencies. On one side, Congress Giving broad discretion agencies and on the other side judges not Holding Agencies feet to the fire. Doctrines that have developed of judicial deference, the chevron doctrine, where agencies interpret the statutes that give them power and what was an issue er doctrine,he au reinterpreting their own pass regulations. The court 54 did not throw out the doctor but the majority, the liberals plus john roberts, tried to tighten the standard and said we will only do defer ment when they show expertise, acting as economists or scientists, not simply as lawyers, as agency lawyers are. When the issue, when the regulation is ambiguous, they supposedlypret it, there is tightening of that scrutiny. We will see in the next 510 years. Concurrence. The dissent in all but name saying we ought to throw out this doctrine altogether. Happens. Thereat is an appetite on the court for reining in agencies both in terms of judges pushing back on them and forcing congress to be more specific and narrower in terms of the Authority Agencies argument. I want to throw a provocative question. The debate is really about power and the role of government and how conservatives should approach it. Role conservatism right now says if corporations and the media are against us, they are trying to force their way of life on the United States, there is no force more powerful than them other than the government. To step in on behalf of them and uphold their way of life i want your responses on why that may be the wrong tactic to take. The real danger to my mind is that the American People, if we continue to see this drift of power to the administrative agencies, the American People will eventually decide the government is not really representing them. That is kind of what this group is saying. If that happens, it threatens the legitimacy of the u. S. Threatens the willingness of people to obey the laws. The American People are very law observing, except for what we read in the newspapers from time to time but in general, the American People obey the laws and they do that because they believe they have made the laws through their representatives. However, if what they come to believe is that actually the laws are being made by this faceless group of bureaucrats around washington dc, then, there is much less reason to obey the law. In addition, it looks as though it is a case for them not obeying the law because it is an illegitimate law. The government is not legitimately behaving. We have seen this happening in brexit in europe because what the british people did in that case was to vote to withdraw from the eu because regulations eusg out of brussels, the government in brussels, were not things they could control in any way. They did not feel they have a voice and that. We see the same dangers occurring in the United States. That is why it is so important for us to stop this drift toward the administrative agencies and force more of the decisions to be made in congress. There are separate issues. One is the procedural. How such a law to further regulate social media networks, google, other drivers of culture how that is done. You could draw up a law taking into account First Amendment concerns, that it affects interstate commerce, the constitutional bells and whistles and avoid nondelegation problems, narrowly drawing and all this sort of thing. Doesnt mean it would be a good law. I am wary when Mark Zuckerberg says, please regulate me, that we give him that. These big established companies have lawyers and accountants in Compliance Officials that can deal with whatever congress will give them. I would rather not give, whether it is the fcc, congress or another agency the power to tell us what a proper amount of comments are or what have you. Fonteal issue, i think the of a lot of the publics frustration with big everything, whether it be government, media, i. T. Corporations, anything else, is that the serious imbalance of power that has come about vertically and horizontally meaning so much power has swept into washington from states and localities and within washington it is swept to the executive branch, to the Administrative State. This was the focus of ben sasses comments one year ago now, if any of you were following that, he talked about the dynamic whereby congress doesnt resolve anything anymore, you know, the legislature is the place where we are supposed to hash out clashes of value or policy views or whatever. Everything in this Pluralist Society is being swept washington and congress is not resolving it. It is pushing it to the administrative agencies which gets thrown into the court ultimately. You can only sue them. That is why there are protests in front of the Supreme Court and congress, which is bizarre. I am skeptical of new regulatory trends, but i think that is separate from whether you can draw those laws good or bad in a way that is proper in terms of the regard for the Administrative State. So much of this seems to concentrate on the debate we talked about nondelegation and the Supreme Court it seems it was almost certainly a function of the judiciary. From this perspective, it matters quite a bit it was in the executive branch right now. How do you think the Trump Administration so far has fared in reining in the Administrative State . Up to now, reining in is difficult because we just got a majority, five, of justices on the Supreme Court who would be inclined to rein in the Administrative State. Lets be clear about this. The left will not want to see any change. They like what the Administrative State does, even some people not on the left, like what it does but we have to recognize our constitution requires most of these major decisions be made by congress and to the extent that they are made by agencies of the Administrative State, that is no longer a democratic republic we thought we had. That is made up of people appointed experts in a particular area and dont pay any attention or desire to Pay Attention to what the American People actually think. Thear as im concerned, really important thing we have theocus on is to make sure government of the u. S. Remains in the eyes of the American People, a legitimate government because they are electing representatives who are making the laws for them and to the extent that that is not the way things are working, we are going to be in trouble over time. I would add one other thing and that is that there is a difference between the chevron case and the auer case. Decision, the decision by the Supreme Court, which was just a few months ago, thato a long with the idea the courts should defer to administrative agencies, but they put, the liberals on the vote theyet the needed, put so many restrictions on how the doctor could be if it iseah difference at all. A court would have to go through a tremendous amount of detail to be able to say it will give deference to an agency. The chevron case, on the other justiceich the chief separated from this whole auer question, deference as to administrative agencies, however i, he said, am voting on this does not have anything to do with my vote on chevron. That is reallyse troubling because it is essentially giving the power to agencies. Courts, courts, lower they should defer to the decisions agencies make about the powers they have been given by congress. So that means it is very difficult if you are trying to agencyn a regulation via because the judge you are arguing before has been told by the Supreme Court he should ys opinione agenc about its own power. That has happened and it has strengthened the Administrative State tremendously. Although it looks as though we inht have lost the auer case the sense deference to remains, we have not gotten to the point where we have lost chevron. I think we will win chevron the next time a case comes before the court. They might cut it down somewhat. I dont know if there will be five votes to throw it out altogether. It is not supposed to be a political, ideological thing. Chevron itself was a decision by the Supreme Court overturning the left wing bent of the then d. C. Circuit judge 1980s which was throwing Ronald Reagans deregulatory initiatives. Depending on the makeup of the court making the decision there was this odd moment during the gorsuch confirmation hearings when senators were really criticizing him for his opinions, in turn expressing skepticism about chevron. What they were saying was they wanted to give rick perry, scott pruitt, betsy devos more power. If you have strong chevron deference, the agencies have more power. It is a bizarre thing to argue. This is not supposed to be a leftright thing. How do you think the Trump Administration is doing so far . The one interesting regulation which seems like a gimmick but actually has been successful is the rule that for every new regulation promulgated has to be withdrawn. That has worked. [applause] we have seen a slowdown in production, the pages on the federal register. If you go to senator lees office on capitol hill, he has different stacks. One of the pages of bills passed by congress, legislation. One stack that is regulation. The legislation is short. The regulation is like six feet tall on the wall and illustrates the point we are governed not by the legislature but by this fourth branch. Judicial appointments are helping with this, even more the lower courts then the Supreme Court, really have any effect. , which handle so many of these regulatory appeals is still very skewed with obama nominees who were much more differential to all sorts of agencies the d. C. Court, which handle so many of these regulatory appeals. A reminder to keep your questions short. Please raise your hands and we will get to your questions. Firsthand over here. This to comean for across as lawyerly but i am one. [laughter] can you comment on whether the administered procedures act needs to be reformed and the substantial evidence standard in terms of really reining in the Administrative State . Thanks. Go at. Go ahead. I cannot say i can go into detail about the procedure act but what i can say is that the chevron case ignores the administrative procedure act. That is the central problem with chevron. It was only within the last few appeared tourt become understanding that what they had done was for years left out of consideration, an act of congress, administrative procedure act adopted in 1946. They just ignored it. If that comes back into effect and i think it should, what the effect of that would be, if the courts enforce it is that all decisions by agencies would have to be reviewed first by the courts for their agreement with the power that the agency has the power to make that decision. That is the key question in the case. They pushed back completely aside and said the courts have to defer but that is wrong. Under the constitution, courts should have the first view of whether congress has empowered an agency to do something. You know, there is enough courts in the supreme recent holdings on environmental that a judge could hold regulators feet to the fire more whether through substantial evidence requirements or otherwise. Congress could strengthen that a little. I think the Political Capital required to do Something Like that, it would not be that much more, there would be Something Like the rains act, which would be to require congress to approve any major regulation promulgated. Figure things like that are probably a better use of activists or Academic Resources then tinkering with substantial evidence. Another question . I see another in the back. Hello. Would you please comment on the following . I believe it is wrong to call because as the problem 2004e mike lee example, Affordable Care act the real problem is the United States judiciary with the presumption the administrative rules are correct. In effect, the problem is insoluble. A bleak question. I agree. For the courts to have decided they should defer to the views of the agencies about their powers. That violated the apa and it violates the framers saw the courts operating in the constitutional system. From my perspective, i think your question is justified. As someone who tends to find most things the government does to be unconstitutional, i find for with the courts and a host of ways. [laughter] fault with the courts in a host of ways. The courts let them. That is a project that a lot of us have been trying to push courts you are alluding to the presumption of constitutionality, there should be a presumption of liberty, government should have a justified restriction or regulation rather than presuming their values point to an exact text in the constitution or Something Like that that is an active debate within federal society circles, libertarians, conservatives, legally minded folks. You raise a valid point. Another question. Over here. Great. I appreciate your book on the great recession, the origins and the financial crisis. How could reversing this deference, how could we have avoided or could we have avoided some of those crises in 20072008 and how can we avoid future financial crises if we reverse this Movement Toward increasing deference from congress to the Administrative State . Interesting question. For everyones info, i wrote a book about the financial crisis in 2008 and blamed it on the governments housing policies ineffective or lack of regulation of the banking industry. They were not responsible for it. Was theticipated but it governments housing policies that created this enormous bubble that ultimately collapsed and caused the crisis. It is certainly possible if there was more attention to administrative agencies, those that are regulating the economy and they were given less deference, which means they would have to justify things much more carefully when they made a regulation, we could have prevented the crisis in 2008. Andg back to history redoing it is fruitless but in the future we ought to be sure that when an agency is making a regulation, it is authorized by congress to do that and there is no authorization, they should not do it. The headmer colleague, of catos financial regulatory center, now heads up the agency. How is he doing . I am worried about him. [laughter] im actually worried because of what the Trump Administration is cooking up. They seem to believe they can keep freddie and fannie in being, these agencies now under the control of the regulator, the federal financial housing agency, they are control of this agency and they are also controlled completely and supported financially by the federal government right now and the idea is that they can be let out into the public again and allowed to function as they did before 2008 when they became insolvent. We should close them down. [applause] if your and my friend, a good conservative economist had his way, i assume, he would do that. Unfortunately, i see a lot of statements by him suggesting the Trump Administration does not want to take on the real estate fanniend wants to allow mae and freddie mac, causing the thencial crisis in past come alive again and continue to dominate the housing market. That would be unfortunate. Another question. It seems to be part of the problem is people in government and outside of government think government is the solution when government is so seldom the solution to anything. For that reason, i think you have got mark calabro thinking we can use these agencies to solve issues. I wonder how we can effect a change of heart and take the government out of government and give it back to the people . I wonder if you could comment on that . We need a constitutional amendment to add to the end of every clause and we mean it. [laughter] that goes to an interesting question how should conservatives when they become part of the Administrative State, act within it . You men when they are you mean when they are i was in the reagan administration. Ronald reagan was extremely clear on what he wanted. We knew exactly what he wanted. s tweets were written well. [laughter] issue, is an interesting whether he would have liked tweeting but anyway, he had made his policies so clear that we hardly ever have to go to the white house for clarification about a decision because reagan had laid out policies he wanted us to follow. That is not often the case with president s. They come into Office Without having a clear view. However, if a president comes into office and lays out the kind of conservative outlook that president reagan had, i think the government would be responsive to that, the people in various agencies would feel they cannot make all these regulations, in fact they would probably withdraw some of them, as they are doing in the case of trump now. I would add in the case of years,in his first two we have not really had a substantial reduction in the number of regulations every year. Since 1993, when people begin to count, there were more than 3000 regulations every year from the agencies of the Administrative State. That was also true in trumps closeyear, 2017 and very to 3000 regulations in trumps second year, 2019. I have not seen what happened in 2019. Trumps second year, 2018. I have not seen what happened in 2019. It is hard to stop this flow one sick it started. Cabinet officials are busy testifying and making speeches and they allowed these to go through because they have been told this is what the agency has been working on for 10 years, so we dont want to stop it now. Well, look. This ties back to the question about the judiciary. It didnt happen overnight. Trace it back to the Supreme Court, progressive policy views on the minister the state, 1937. It will take some time to wind that back. That is the root of the problem. Last few minutes. I want to give you both a chance for Closing Remarks and where focus should be in the coming years on the administered state. Conservatives ofnot lose by forcing more the lawmaking policy into congress. Not only does that mean more attention will be paid to the major questions, which means we can all get involved in decisions made, debated on the floor of congress. Members of congress will be accountable to us for decisions they make. If it is too difficult for them to adopt the law, good. We want fewer laws, as well as fewer regulations. The left on the other hand will see things entirely differently because the Administrative State is made up of people on the left. When we have seen the few comments they have made now about the new conservative Supreme Court, they have been, well, the real danger here is that they will stop the government from protecting us against abuses of industry. That kind of attitude, which was expressed by a law professor at the university of chicago law school, is the attitude the left will have about all these changes. I think we can all agree the fewer laws are made in the fewer regulations made, the better off this country will be. [applause] upa lot of these issues come in highprofile cases swamped with policy debates. For example, this issue of two brought delegations, comes up and tariffs, immigration policy, order wall. Border wall. There are so many things statues are in play that are so broad that maybe the president , whether trump or obama or whoever is acting within the law . The problem with the law when we were last at the Leadership Program in colorado springs, that was when trump gave his press conference on the emergency wall declaration. I was watching this in my hotel, at the broadmoor and i put out a statement on my phone while watching. Possibly oras, probably legal but unconstitutional. A cute way of saying you cannot have a law that is legal and yet unconstitutional. Constitution is a law. The relative statutes about moving money around are so broad it could be smart white house lawyers figured out a way to do this, crossed the tees and out of the eyes. Is. D dotted the ata case will be argued Supreme Court this term. Theresident obama did have power under the immigration statutes to provide temporary status and Work Authorization to people brought here illegally as children, which policy i support by the way, but if he had that power already, that Immigration Law is too broad and unconstitutional. Monday filing a brief on on behalf of supporters of daca type ologies supporting it as a matter of policy but not as law. These issues crop up. Sometimes it is technical. If the Supreme Court makes waves, it will probably be on a technical thing like gandhi with sex offenders gundy with sex offenders. These issues are all around us. Thank you for participating. [applause] thank you. Thank you. Thanks. On sunday, 2020 democratic candidate joe biden holds a town hall in new hampshire. Watch live on cspan, online at www. Cspan. Org or listen live on the free cspan radio app. My name is adam cook. Winner and i am here to encourage you to continue to wrap up the competition as the deadline is getting close. You still have time. This is about the time i started filming my documentary the first year i entered it. I am in the d. C. Offices now. There was an Incredible Opportunity for me to express my thoughts and views about the Political Climate in the current day as well as connect with local and state leaders. I am extremely excited you are interested in this and pursuing this. It is a onceinalifetime opportunity. Im excited you are in it. There is still time to enter the competition. You have until january 20 to create a five to six minute documentary that explores an issue you want president ial candidates to address during campaign 2020. We are giving a total of 100,000 in cash prizes with a grand prize of 5,000. Go to our website for more information. Washingtonty of history professor Margaret Omara discusses her book, the code, Silicon Valley and the remaking of america. You have the biggest of Big Government programs. The space race. The militaryindustrial complex. It becomes the foundation for this entrepreneurial flywheel. Incredible creation, innovation and private wealth creation. An industry that considers itself, that built itself on a hasd, that government become almost invisible to many of the people who are in Silicon Valley who are the creators of these companies, these technologies. There is a role. That is part of the matter. It is government out of sight. Sunday night on 8 p. M. Eastern on q a. Supreme court Justice Neil Gorsuch talks about the Judicial Branch and his new book, a republic if you can keep it. The National Archives hosts this event