Compelling discussion coming up on what is in a way the Fourth Branch of government, the Administrative State, that has an impact on our lives and businesses. The rise of the Administrative State, will the usb a democracy in the future, or a nation ruled by the Administrative State . Up in al is coming minute. You will get a preview of tonights tony likely Fellowship Award presentation, because the moderator of the panel is one of our new recipients of the blankley fellowship. Njeti is the chief washington correspondent for ll and is a fellow and hosts the realignment podcast. He previously served as a correspondent for the daily caller and the d. C. News foundation and received his masters degree in u. S. National Security Policy from georgetown university, and his bachelors in economics from the George Washington university. Has studied extensively across the globe, spanning three continents, visiting over 40 countries. Im proud to introduce one of our new Tony Blankley fellows, and the panel. Njeti will introduce our panel. Gentlemen, please come up. Thank you, we are going to take a moment while one of our panelists gets mike stop. Up. Et mikeed we are have ending important discussion today about the Administrative State, something conservativeism has been conservatives have been concerned about for quite some time, people making decisions about our daily lives. He goes back to the 1880s. One of the first regulatory agencies created was the interstate commerce commission, and that was one markets in america were exchanged were changing, there were railroads, goods being exchanged across state lines. Woodrow wilson created the federal reserve, the federal trade commission, once again government inserting itself into the way we conduct commerce with each other. We were a growing country, exchanging goods, and through the Industrial Revolution and all this dynamism, it caused problems and the government started to insert itself. We should all be concerned. That is why we have our illustrious panelists. Peter walton, American Enterprise institute, author of judicial fortitude the last chance to reign in the Administrative State. Shapiros director of constitutional studies at the cato institute. Please welcome our panelists. [applause] want to give both an opportunity to make opening remarks. Peter is interesting, going over arguments in the book. I want to make sure they both give you a framework for the discussion, before we get to my questions and your questions as well. Peter, why dont we start with you, opening remarks to speak about this. Thanks. Im going to outline key arguments in judicial fortitude, that is the book peered the first line in the book is probably 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 agencys extraordinary power, the power almost to make laws themselves. But Congress Wont stop on its own doing this, because it is easier for them. They dont have to make the difficult decisions legislation requires. All they have to do is pass to the agency these difficult decisions, and then they are home free and not subject any elections to have to justify decisions that are made. For example, if someone comes up to a congressman and asks why his farm pond, the ponte uses to feed his animals, is getting regulated by the epa, the congressman says, i didnt vote for that, that is this outofcontrol agency. But in fact, the congressman did vote for that by giving that power to regulate farm ponds to the agency. So it is a way congress can be unaccountable, but also avoid a lot of the things we Want Congress to be involved in, making the major decisions for all the legislation they pass. When congress, delegates broad, lawmaking power to administrative agencies, it is violating the separation of powers in the constitution. The constitution vests all power to make laws in congress. Article one of the constitution says Congress Shall have all power to make laws. Gives power to enforce the laws to the executive branch. An article iii gives power to interpret the laws to the judiciary. The framers thought liberty would be endangered if the same theon or group had opportunity both to make the law and to enforce the law. They looked around the world in the late 1700s when they were developing the constitution, and king could make the law and enforce the law, tierney was the result. From their perspective, the most important thing in the constitution was the structure, the separation of powers. And they wanted to maintain that as often and as long as possible. This is exactly the problem we are having today, because the powers are no longer separated if the congress is giving, delegating its Legal Authority to make laws to the executive branch, particularly to these agencies made up of unelected officials. How do wem here is, stop this constant delegation of power to unelected officials who basically all live around washington dc, reflect the priorities of the people around washington dc, and not the American People, who would be ordinarily represented by their Congress People. And those votes by Congress People would be the votes of the American People. But when they handed over to executive agencies, they are giving up the rights of the American People to make these decisions. Power thens of separation of powers was so important to framers that they set up the judiciary to protect it. And this we know from a federalist paper, 70 eight, by alexander hamilton, who called the judiciary the guardians of the constitution. He said judges were given Lifetime Appointments so that they would have the fortitude, the language i use in the book, thefortitude to stand up to elected branches, that is the congress and the president , if those branches were doing things that changed the way the constitution was supposed to work. We are exactly in that situation today, because what we see happening is the system being changed. Instead of Congress Making the laws, they are passing the lawmaking over 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 that the way to restores is to something called the nondelegation doctrine. That sounds legalistic. It is actually very simple. And what it means is that the courts of the power, they were given that power by the constitution. They have the power to declare when an act of congress violates the constitutional structure. From violatingnt the constitution with a policy of some kind. The courts should often stay out of that situation, but when you were talking about changing the constitutional structure, the whole separation of powers structure, as we have today, their congress, the courts, the Supreme Court in particular, should step in and declare a law that delegates power to the executive branch to be unconstitutional. That is possible now in a we havel way, because had two new justices appointed to the Supreme Court, Justice Gorsuch and Justice Cavanaugh kavanaugh. They join three other justices on the Supreme Court who all consider themselves constitutionalists. Theythat means is that believe the constitution, the structure at least of the constitution, should be preserved at all costs. So i think as we approach the next couple of years, when cases will start come to the court where the issue of nondelegation can be considered by the justices, we have a good shot here that the nondelegation doctrine will be restored. What does that do . If a law isngress, 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. Ilya, opening remarks and then we will get to questions. I want to talk about two cases from this 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 Schubert akin and the staff here. This is a Great Organization and im delighted to have the first opportunity to speak to you freshly off the ski slope in my sweaty ski togs. We were both on the program at the rockies,f peter and i, earlier this year, delighted to do that. The two cases i want to mention our gunby and kaiser. Gunby at kaiser is a nondelegation case, only eight justices participating, because it was the first week of the term when Brett Kavanaugh was still answering questions to the senate, and although it was a loss, 53, the court rejected a challenge to a statute, a federal sex offender registry statute, and rejected the idea that it gave too much power to the attorney general to write the regulations. But Justice Gorsuch wrote a blistering dissent, joined in full by john roberts, some people essay is he going wobbly archery angle eating, joined oro or going wobbly triangulating, joined by thomas, alito didnt agree with the reasoning of the liberal justices, and said when there is a majority willing to reconsider not delegation, he might go in on that. Presumably that means in the ist case, when kavanaugh participating, alito might go there and we might have five votes to force congress to hold congress feet to the constitutional fire and tell them you cant pass the truth and beauty active 2019 and let the bureaucracy failing whatever it wants to do. The flipside is the kaiser case and how much deference judges give administrative agencies. On one side is Congress Giving broad discretion to agencies. On the other side is judges not Holding Agencies feet to the fire. Developed ofe judicial deference to agencies, the chevron doctrine, where agencies interpret the statutes that give them power. What was at issue this year, the auer doctrine, agencies reinterpreting their past regulations. The court by a 54 vote did not throw out the auer doctrine, but the majority, the liberals plus john roberts, tried to tighten the standards, said we will only defer to agencies in this context when they show expertise, when they are acting as economists or scientists, not simply as lawyers, agency is trulywhen the issue that the regulation is ambiguous and they could reinterpret it. Other regulations are tightening that scrutiny land we will see what happens in lower courts in the next five years. Gorsuch, blistering, this time concurrent because they throughout the lower court decision, a dissent in all but name, saying we should throw out this doctrine altogether. We will see what happens. There is an appetite on the court for reining in agencies in terms of judges pushing back on them and forcing congress to be more specific and narrower in terms of Authority Agencies are given. The debate around the Administrative State is a debate around power and the role of government, and how conservatives should approach it. A current debate is roiling conservatism. Its as if corporations and the media are against us, that they are trying to force their way of life on the United States. There is no force more powerful than them but the u. S. Defect over the Administrative State to step in on behalf of the citizens and uphold their way of life. I want to get your response on why that may be the wrong tactic . Is thethe real danger American People, if we continue to see this drift of power to administrative agencies, the American People will decide the government is not representing them. That is what this group is saying. It threatensns, the legitimacy of the u. S. Government. And it also threatens the willingness of people to obey the laws. The American People are very law the American People in general obey the laws, and they do that because they believe the 80y have made they believe they have made the laws through the representatives. But if they come to believe the laws are being made by this faceless group of bureaucrats around washington dc, that there is much less reason to obey the and 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 happen in brexit in europe, because what the people date in that case was to vote to withdraw from the eu because the regulations out of brussels, out of the eu government in brussels, were not things they could control in any way. They didnt feel they had a voice in that. We see the same dangers in the is. , and that is why it important for us to stop this drift toward the administrative agencies, and force more of the decisions to be made in congress. Are separate issues here. One is the procedural one, how a lot of regulate social Media Networks or other drivers of a lawe, you could draw up by taking into account First Amendment concerns, interstate commerce, constitutional bells avoidistles, and nondelegation problems, narrowly drawn and all this sort of thing. Doesnt mean it would still be a good law. Im wary when Mark Zuckerberg comes to congress and says, please regulate me, that we give him that. These Big Companies have accountants and lawyers in Compliance Officials that deal with whatever Congress Gives them. The fcc,ather not give congress itself, some other agency, the power to tell us what is a proper amount of evenhanded what have you. Real issue, the font of a lot of public frustration with big everything, government, media, i. T. , corporations or anything, as 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 we are then watching it be swept to the executive branch, to the Administrative State. This was the focus of ben sasses comments that the comments at the kavanaugh hearing, where he said congress doesnt resolve anything anymore, congress is the place where where we are supposed to hash out policy views or what have you, and everything is being swept to washington and then congress isnt resolving it and pushing it to the administrative agencies ended ultimately gets put into the courts because you can only sue them and that is why there are protests in front of the Supreme Court instead of congress. Im skeptical of new regulatory trends, but that is separate to whether you can draw those kinds of laws in a way that is proper in terms of regard for the Administrative State. Debate so much of this argument, we talked about nondelegation in the Supreme Court, and it seems the Administrative State is almost certainly a function of the judiciary. From this perspective, it matters quite a bit who is in the executive branch. How do you think the Trump Administration has fared in raining in the Administrative State . Now, raining in the Administrative State is difficult, because we just got five, a majority of justices on the Supreme Court who would be inclined to rein in the Administrative State. Lets be clear, 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 the Administrative State does. We have to recognize our constitution requires that most of these major decisions be made by congress, and to the extent they are made by agencies, that is no longer of a democratic republic we thought we had. That is made up of people who are appointed to be experts and dont pay any attention to and have any desire to Pay Attention to what the American People think. As i am concerned, the really important thing we have to focus on is to make sure that the government of the United States remains, and 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 said and thata is, there is a difference between the chevron case and the auer case. Thehe auer decision, decision by the Supreme Court, got a few months ago, did along with the idea that the courts should differ to administrative agencies, but the liberals on the court, to get the vote they needed, put so many restrictions on how the imposed,rine could be if it is deference 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 hand, which the chief justice separated from this whole auer question, deference to administrative agencies regulation, he said, however i am voting on this doesnt have anything to do with my vote on chevron. And chevron is a case that is really troubling, because it essentially gives the power to agencies. It tells lower courts that they should defer to the decisions agencies make about the powers they have been given by congress. That means it is very difficult, if you are trying to overturn a , becausen by an agency the judge who you are arguing before has been told by the Supreme Court he should defer to the agencys opinion about its own powers. That has happened and it has strengthened the Administrative State tremendously. That is separated from the auer case, and though it looks like we may have lost the auer case in the sense that deference has domain that deference has remained, i think were going to win chevron the next time the case comes before the court. Bei dont know if there will five votes to throw it out altogether, because it is not supposed to be a political or eddy illogical thing chevron itself ideological thing. Itself was a decision overturning the left wing bent of the d. C. Circuit in the 1980s that was thwarting Ronald Reagans deregulatory initiatives. Whether you defer to an agency or not might be a conservative depending win, on the decision the agency is making. There was an odd moment during the gorsuch confirmation hearings when senators were criticizing gorsuch for his opinions, that in turn expressed skepticism about chevron. They were saying that they wanted to give rick perry and scott pruitt and betsy devos more power, because if you have strong chevron deference, that means agencies have more power. It is bizarre to argue, but this is not supposed to be a leftright thing. Saagar how do you think the Trump Administration is doing so far . Peter the interesting regulation that seems like it ilya the interesting regulation iat seems like a gimmick but think has been successful is the rule that for every new regulation promulgated, to have to be withdrawn two have to be withdrawn. That has actually worked. We have seen a slowdown in the pages on the federal register. If you go to senator mike lees office, on capitol hill, he has two staffs, one on legislation two stacks, one of legislation and one of regulations. Short and then is regulations are six feet tall. It all the straits that we are not governed by congress, but by this Fourth Branch. Judicial appointments are helping with this, not just, even more in the lower courts than the Supreme Court, having an effect. The problem is that the d. C. Circuit that handles so many of these regulatory appeals is still skewed with obama nominees who are more deferential to all sorts of agencies. Togar i want to throw it the audience. Make your question actually a question, 10 to 15 seconds or i will be forced to cut your off cut you off. Circulating,ic please raise your hands. Dont mean for this to come , couldas too lawyerly you comment on whether the administrative procedures act needs to be reformed, particularly the substantial evidence standard in terms of reining in the Administrative State . Ilya ike peter i cant go into detail about the administrative procedure act, but the chevron case ignores the administrative procedure act. That is the problem with chevron, and it was only within the last few years that the court appeared to become understanding that what they had was, for years, left out of an act ofion, congress, the administrative procedure act of 1946, they ignored it. So if the admin to strata procedure act comes back into effect, and to think it should, the effect of that would be if is thatts enforce it all decisions by agencies would have to be reviewed first by the courts for their agreement with the is that all decisions power that the ago make that decision. That is the key question in the chevron case. They push that aside and said the courts have to defer, but that is wrong. Under the constitution, the courts should have the first view of whether congress has empowered an agency to do something. Languagere is enough in the Supreme Courts recent holdings on environmental regulations and other things, that a judge could hold regulators feet to the fire, whether through substantial evidence requirements or otherwise. Congress could strengthen that, but the Political Capital required to do Something Like that would not be that much more, it would be about the same as something to pass the rains act, which would have congress approve any major regulations. Big things like that are probably a better use of activist or Academic Resources than tinkering with substantial evidence. Saagar i see in other hand, in the back. Hand, in the back. Would you please comment on the following. Wrong to calls congress the problem, because in the mic lee example, we will get more 2000 page Affordable Care acts, but the real problem is the u. S. Judiciary with the presumption that administrative rules are correct. So any fact, the problem is insoluble. I agree that it is wrong for the court to have decided to theey should defer views of the agencies about their powers. And itolated the apa, violates the way the framers saw the courts operating in the constitutional system. Yourmy perspective, question is justified. I find fault ilya i find fault with courts and a host of ways. You are right, the Reason Congress passes these broad laws is because the courts let them. ,hat is the beall and endall a project a lot of us have been trying to push, you were alluding to constitutionality, there is a presumption of liberty and government should had to should have to justify restrictions and regulations rather than presuming that they are valid. Debate withinive federal society circles among libertarians and conservatives and legallyminded folks, so i think you raise a valid point. I appreciate your book on the Great Recession, the origins of the Great Recession and the financial crisis. How could reversing this have avoideduld we some of these crises in 2007 dan 2008, and how could we avoid future financial crises if we reverse this movement of deference from congress to the Administrative State . Peter i wrote a book about the financial crisis in 2008 and blamed it on Government Housing policies, and not on ineffective or the lack of regulation of the banking industry. They were not responsible for it. They participated in it, but it was Government Housing policies that created this in normas housing bubble that we had that ultimately collapsed and caused the crisis. That ifis possible there was more attention to administrative agencies, the agencies 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. Look atg back to history and redo it is fruitless. To the future, we ought to be sure that when an agency is making a regulation, it is authorized by congress to do is noand if there authorization, they shouldnt do it. My former colleague at catos Financial Center now heads the federal Housing Finance agency. How is he doing . Peter im worried about him. [laughter] because im worried about what the Trump Administration is cooking up. Can keep freddie mae and Freddie Mac Fannie mae and freddie mac in being, these two agencies under the control of their regulator, mark calabro at at the federal Housing Finance agency. They are under control of this agency, and also control completely, and supported financially, by the federal government right now. Letidea is that they can be out into the public again and allowed to function as they did before 2008, when they became insolvent. We should close them down. [applause] youif your friend calabro ria, a good conservative condiment conservative economist, had his way, he would do that. But ill eat but i see a lot of statements from him suggesting the Trump Administration does not want to take on the real estate lobby, and wants to allow fannie mae and freddie mac, because of the financial crisis in the past, to come alive again and dominate the housing market. That would be too bad. Saagar another question . Hand i see a hand. Is thatof the problem people in government and even outside government think government is the solution, when government is so seldom the solution to anything. For that reason i think you have labria thinking we can use these agencies to solve issues. Can effect awe 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 . Constitutional a amendment to add at the end of every clause, and we mean it. [laughter] [applause] that goes to an interesting question. How should conservatives, when they become part of the Administrative State, act within the Administrative State . When they are appointed . I was in the reagan administration. Ronald reagan was extremely clear about what he wanted. I was at the Treasury Department in the early parts of the administration, and we knew exactly what reagan wanted. Thats an interesting issue, whether reagan would have liked reading. Clear weis policies so hardly ever had to go to the white house for clarification , because reagan laid out the policies he wanted us to follow. That is not often the case with president s. They come into Office Without having a clear view. Outver, if a president lays the kind of conservative outlook , thedent reagan had government would be responsive to that, people in the various agencies would feel that they cant make all these regulations , and in fact would probably withdraw some of the regulations, as they are doing in the case of trump right now. But i would add in the case of trump, in his first two years, we havent 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. True in was also trumps first year, 2017, and close to 3000 regulations in 2018. I havent seen 2019 yet but i can imagine there are a lot of regulations and rules coming hard toause it is very stop this flow once it gets started. And the cabinet officials in charge of most of this are busy testifying and traveling on making speeches, and they allow these regulations to go through because they have been told this is what the agency has been working on for 10 years, so dont stop it now. Back to theies question about the judiciary. It didnt happen overnight. I trace it back to codification of progressive policy views on the Administrative State in 1937, so it is going to take time to wind that back. That is the root of the problem. Saagar we have a few more minutes and i will give you both a chance for Closing Remarks and where everybodys focus should be in the coming years on the Administrative State. Conservatives cannot lose by forcing more of the lawmaking policy into congress. Not only does that mean that more attention will be paid to major questions, which means we can all get devolved all get involved in decisions that are made, they will be debated on the floor of congress, members of congress will be accountable for the decisions that they make, and if it is too difficult for them to adopt the law, good. We want fewer laws, as well as fewer regulations. The left is going to see things differently, because the Administrative State is made up of people on the left. And when we have seen the few comments they have made about the new conservative supreme well, they have been, real danger here is that they will stop the government from texting us against the abuses of industry get government from protecting us against the abuses of industry. That is the attitude the left is going to have about these changes. I think we can all agree that the fewer laws that are made in the fewer regulations that are made, the better off this country will be. [applause] a lot of these issues come up in highprofile cases that are swamped with policy debates. For example, the issue of two broad policytoo policy, thererder are so muddy statues that are so broad that maybe the president , trump or obama, is acting within the law, but the problem is the law. The Leadership Program in colorado springs, that was one trump gave his press conference on the emergency wall declaration. Room watching in my hotel and i put out a statement while ,atching and the upshot was possibly or probably legal but unconstitutional, acute way of saying you cant have a law that is legal and yet unconstitutional. I meant the relevant statutes about moving money around are so broad that it could be that smart white house lawyers figured out a way to do this. Case, than is the this law is improper, it is Congress Giving away appropriations power. Daca caseka or the that is going to be argued. If president obama had the power to provide temporary status and Work Authorization to people brought here illegally as butdren, which i support, if he has that power already, than the Immigration Law is too broad. Cato is filing a brief due on typey on behalf of daca policies as a matter of policy but not as a matter of law because executive power is not so broad. These issues crop up, sometimes it is very technical, and if the Supreme Court starts making waves, it will be on technical things like kaiser with Veterans Benefits rather than these culture were things. Saagar thank you to the panelists sent to the steamboat institute. [applause] [captions Copyright National cable satellite corp. 2019] [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. Visit ncicap. Org] cspans washington journal, live every day with news and policy issues that impact you. Sunday morning as part of authors week, rich lowry discusses news of the day and his book, the case for nationalism. And acratic consultant republic consultant will talk about the Political Landscape heading into 2020. Be sure to watch cspans washington journal live at 7 00 eastern sunday morning. Join the discussion. Cspanseek on newsmakers, brandon judd, Border Patrol Council President talks about border policy in the Trump Administration, efforts to reduce Illegal Administration into the u. S. , and how cartels enteral traffic across the u. S. Mexico border. Southwest crosses the border illegally without the sayso of cartels. They control illegal crime on the border. These cartels operated every in everywn operate single town on the southwest border and they are very violent and dangerous. All you have to do is look at the murder rate in mexico to understand. The u. S. Intelligence community has estimated criminal cartels 80 of somewhere around the country in mexico right now. That is on the highend, there are lower estimates, but if you go lower, the fact criminal cartels control any part of mexico should be concerning. And it makes everything very dangerous. That is one reason why Border Patrol agent get frustrated with politicians that say it is ok for people to cross the border illegally. Politicians are encouraging a ofy vulnerable segment population in south america to put themselves in the hands of criminal cartels. These individuals at times are raped, they are enslaved, even murdered by the cartels, and it is all because we dont enforce our laws the way the laws are written, and we glamorize vilify activity and we our Border Patrol agents, rather than propping up our Border Patrol agents and going after the cartels. Watch the interview with Border Patrol Council President rendon judd sunday at 10 00 a. M. And 6 00 p. M. Eastern on cspan. Next we hearar from nasa astronauts and for a look at the Apollo Missions and the future of space exploration. This was hosted by the National Academy of engineering in washington dc. [applause] to the National Academy of Engineering Forum on human spaceflight, apollo, 50 years on. Im joined onstage by six incredible individuals, each of whas
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