He was in a one fellow in law and economics. Also a ba in economics. Jim, so glad to have you with us here for our shaftesbury society. Its always a pleasure to speak to the good folks at the foundation. As someone that has worked for mashable years now. Though much policy happens on the state level. Its really a great standard. It has reshaped North Carolina and such a positive direction. A lot of the resilience right now and to be on the sound fiscal footing in the midst of a pandemic think you for having me. I really appreciate that. People should know that you actually live in North Carolina so your books writes about federal policy and hopefully after we talk about your book a bit we will get your take on whats happening with the governor and the use of Emergency Powers and et cetera here in North Carolina. Jim, i gotta tell you this book the unelected you can buy this book now i think my colleague renate will be posting in the Comment Section where you can actually get your copy of the unelected tell us about the key things from your book and why you wrote it. It really is that people dont understand just how much government activity that oversees our lives and in some of the stories will talk about later in the book. Tragically has influenced the lives of some people. Much of that apparatus goes forward it doesnt mean elections dont matter. The governor and the council state. Here we elect judges and justices. They really a matter a lot too. The only capture and input complete picture there are a couple million federal employees there are 50 states, there are thousands of municipalities there as well over a million trial lawyers. They influence us through the litigation system. All of these different pieces weve heard attacks. We will just look at it more telescopically. What the governments doing that really departs. It clearly had its walls and its beginning. The constitution really has two intermediate principles. There was a notion of limited government. And then the notion of having a publicly Accountable Government that was in some ways active if you could get could get things done. But was ultimately accountable to the people. The democratic once bulls bowls as well as the limited government both intimated that constitutional did design. Its hardly a surprise. I talk about it in my final epilogue here. The size of some of the governments. Looking at how much it has actually taken from the early years were even adjusted for inflation. Its only 639,000. They shouldnt agree on the next level of covert relief. The gap is between 3 trillion on that side. Just orders of the magnitude more government in the early years. With the limited government. It is committed to individual liberty and free markets. In these sorts of questions. There is some caveat to that where it makes sense a lot of people havent paid as much attention to. Is the concept that weve lost some of the public accountability. The works that i have done over my many years in the think tank world has dovetailed with all of these issues. Looking at the Administrative State and regulation. And over criminalization. In North Carolina and and other states. And come dash my corporate government they come back to the Central Point where we see a lot of government been done and liberty being lost. With the significant radical shifts. Without congress ever taking a vote. That is the principal principle thesis of the book. Four different categories that are interrelated i think its important to understand. Each of these forces matter and we might reform one of them and it would necessarily change as much as we might think if or not cause neck net cosmic net of the fact that they are similarly working to govern us. The first of these. Its really the fundamental function of congress. Anybody who grew up in the 70s 80s or 90s. They would see schoolhouse rock. And among those one of my favorites is still described how a bill becomes a law. Its too voluminous for us even know. 90 came into being without an express content. It created a rulemaking agency somewhere and the executive branch and they draft the rules. They can lead people to go to prison and get in trouble. Its sort of animated the constitution. The lawmakers had to make the laws they cut it delegate it. Thats in fact what we have done it through through the growth of the Administrative State. Most of this has been done over the last 90 years or so. Its certainly an expansion of the delegation. It continues to accelerate. Both parties do it just recently. They are aggregating private mortgage contracts. We dont want to evict a bunch of people in the middle of a pandemic. Its not something you would have an agency. As an independent agency. One that reports to the president. Their arm multiple questions by that. Its something we have far removed. If we make it too hard to actually create new rules. With the government by the threat of force. When i talk about it from big businesses i compare it to the godfather. This is an offer you cant refuse. In terms of big business dealing with the federal government often they have your business totally under their control. The government says you can sell to the military anymore then youre out of business. You cant get reimbursed through medicare and medicaid anymore. If your Financial Company and the federal government said you lose your license to practice these financial markets. The strong harm of the federal government is coming into play the problem that is not just a big business. Its a much bigger problem in some respects. They have large compliance teams. Give a bunch of lawyers with fancy teams. And create regulations. With the actual sanction of conduct. They well at least comply. If youre a Small Business owner. How are you supposed to comply with 300,000 federal regulatory crimes. We did a report and it has worked in closed concert. Some of the same principles. They also exist on the state level. This is a little bit different. And the resources are a little different. Usually where we see strongarming a big business through regulatory enforcement. They have done a lot. The enforcers are what we talk about the regulatory state. They are not publicly accountable. Have level folks. You got through an employment process. Its not like they are free radicals with no collection whatsoever. There is a lot of Civil Service employees underneath. A lot of autonomy. We are in it the running the checks and balances the Founding Fathers put into the constitution. With the early states. Joining the republic agreed to to try to slow down various legislative moves now we sort of end around that. Let me ask you this about the rule makers in the enforcers. Is this really what some people refer to as permanent washington the people that are there no matter the administration or the politics. But behind the scenes wielding all sorts of power. Thats basically correct. I dont want to over emphasize that a number of these federal agency apparatus is very much responsive to the president ial election cycle. Thats part of the problem. We put so much stock in president ial elections precisely because the executive branch has so much authority. The same thing is true with the judiciary. It was my number one reason for voting for president. Not that they didnt believe in judicial review i am large. It shocks them that it was the number one issue in electing a president. There is a lot of power that comes into play. You can sometimes adopt a one step forward two steps back approach to reviewing this. In the last administration barack obama after not being able to proceed congress to do what he wanted through the executive action. The Trump Administration came in and try to reverse it. The court said you didnt do it right. Its now taken on a life of its own. They could be reversed right back. Theres not a lot of stability in the law. The review apparatus that they have brought to bear on the Administrative State tends to give a hardluck two reversals of regulatory actions. Theres a lot of deference given in the first instance. When they try to undo those regulations. Its harder for them to undo the old regulations. I think its exactly backwards. But that is the review system that we had right now essentially it doesnt matter who you elect for president based on who you review and the regulatory state. Even though i can go back and forth with these executive orders it does matter. Not all of the federal government is that responsive. Chapter two goes through this principle where we talk about the independent agencies essentially the courts have allowed the independent agencies with the quasi legislative powers and staggered terms of rule makers and like the federal communications commission. While there are president ial import dash make appointments and play the Minority Party in this case is the one that doesnt control the white house. There are defenses of this. It creates a little bit more continuity. You dont get that independent agency structures. These sorts of bodies wield substantial power. And the white house has i want that security and exchange commission. All of these folks. While their unelected the big problem here is you often get true believers. Folks who are committed to environmental reform. Committed to a certain view of security law. They have a certain view of the world. And most of the Civil Service underneath the top elected officials tend to skew in a certain direction. Its rare you will get the d regulatory champion to want to devote a career to be in the regulatory agency. You have this problem. Every country has a legal system. Weve a private legal system as well. When we talk about criminal law is a state prosecuting misconduct. Then we have the civil law which is private parties bringing their disputes to the government to resolve. Weathers disputes over contract. Its kind of the act of the law. Its not necessarily predicated on a preexisting contractual relationship. The products we buy there is a relationship of sorts. Its a sale that goes into place. Is this where the Class Action Lawsuit comes in . It is a variant and it is a recent creation. The third part of the buck talks about the litigators and this is what it means. A lot of things are skeptical of government power. They say this is much better in the Administrative State. Make no mistake. It is full state action. Nobody is a defendant in court by choice. Another person sues the business. It enables the plaintiff to recover. If the legal system works will and with a lowcost way to resolve disputes. We made about accidents. Thats one thing. The jury trial itself is rooted in the federal constitution. In the original conception it was a very narrow area of law that could sue for the damages. In the early days they cannot even testify in court to these sorts of cases. If you receive any sort of risk. You are not going to collect. We had developed the plaintiffs are. Through the use of feed mechanism. Certainly the European Countries and some asian exceptions. If you get a lawsuit in court and you lose. You have to reimburse the other sides fee. Lets not the way our system works. If you defend your lawsuits successfully. The woman. I wanted to regulate. A put a lot of money into it. A friend of a friend stays there. That individual got a plaintiffs lawyer. To file a disability lawsuit. She was still renovating at the hotel. It was one of these shakedown lawsuits. I havent done anything wrong. She lost more than a hundred thousand dollars. It is a piece of that. And thats really why you can add a bunch of cases together. They said i have the best law practice in the world. I dont have any clients. That is kind of how it works. When they file a file that particular name plaintiff. No one is really monitoring this. Thats really the attorneys on one side. In viewing a settlement. This was recently invented. [inaudible conversations]. The first procedural rules. Came in for the Supreme Court. And they gave it to a committee. The law professors. They developed all of the new rules. Someone file suit without any proof. And then you have to turn over all of your emails and sit down for depositions. In the 1960s. They kept this committee around. And his young protege. They crafted the modern class action role. Here in the class as a plaintiff. Unless you opt out and the lawyers create the class. If you dont say keep me out you are in. They created it on the back of the car. This is how they developed it. We have the crazy shakedown class action suits. The rules tend to be skewed on behalf of those bringing the state power to bear. Of the unelected. We started going back and forth a little bit. We have have the new anti federalist. This is an important one also because most of us who support limited government and Classical Liberal principles instinctively say we are pro estate rates. The ordinary case that is good state legislators have everything that they want. Because people can vote with their feet. From one state to another. If california raises its taxes. Were North Carolina doesnt. They can move from california to new york to North Carolina. If the regulatory state is too big same thing. Its not just at noblest pressure here. Thats where businesses and people locate as well. It creates the market style pressure through federalism forces. That doesnt always work. If youre just talking about a case for your local business. If your business is getting sued by its workers are businesses locally. And the state is too permissive for the states lawyers. They will be less likely to open. The similar federal pressures in play. The doctors can relocate to other states. And hospitals can invest elsewhere. We do have a situation where a National Service department. As long as its in the stream of commerce. North carolina could relate that. It could not protect against the lawsuit coming from Madison County illinois over the other places that the american tort reform is association calls the hellhole. We seen with this federalism. Are the elected officials but they are local or state elected officials basically dictating policy for everyone else. The mayor of new york coming out and trying to change Climate Change policy which is an international question with the federal nexus. Theyre trying to do it from the city hall in new york. We see these sorts of cases. The litigation gets farmed out to plaintiff communities. They turn around and higher. We see the National Policy being driven by straight state and local officials. Nobody in raleigh or charlotte or greensboro these elected officials from other states are trying to drive National Policy. The states actors can come in here and try to dictate from the state and local purchase. We had been talking with him in the manhattan to two. These are the unelected. You can find a link where you can actually get jims book. But i really want to get back to something you mentioned early on in our conversation. You brought the cdc. We are paying close attention to the cdc. They are scientists and experts much more than i would suspect any of us ever paid to the cdc for covid. Talk about the power. With the national review. They were a piece that headlined the cdc and the power grab and i think one question here is one really relevant here. If kids food residential evictions. With the Administrative State what cant the administrative person do. There are still trails around what congress can do it is an extremely broad power. Under the commerce clause. They have permitted congress to most of what it wants. Thats not really commercial behavior. Guns in schools. Thats not really commercial behavior. It has to involve some sort of commerce. They let it go pretty far. It was a challenge to the federal drug laws. Someone was convicted under federal law. I wasnt selling it. And arguably it could affect the president from the new deal. At the same basic logic where a farmer was using as own crops for his own uses on his own farm. Even though youre not selling it. In the Supreme Court let that go. It was a pretty broad rule here. Congress makes no law advocating the freedom of contract. It has been read much more narrow than it should be by the courts. This is a pretty big infringement on property rights. You will have some premise on that. The bigger one here is this non delegation doctrine. Among the original exponents of this in terms of writing it down. The concept was something that have been fought over the centuries in england and i go through some of the history in the book but he wrote the legislative power to make laws not legislators. William blackstone who was the great chronicle of the law at the time. With the constitution of the United States. It has really developed this principle saying you cannot delegate the lawmaking power. The real makers where we have lost some of that. One well just be a statutory question. Is the delegation to the cdc is that what its claiming is it an accurate reading of what congress delegated by statute. And while the court has basically not come back with the non a non delegation principle since 1935. They basically signed off on the rest of the new deal. They havent come back with these principles. They had cabined somewhat the ability of the executive branch to make lot that really should reside with congress. Is a doctrine with controversial law. The basic principle here is if its a big Public Policy question Congress Needs to resolve it. In areas like regulating tobacco or Something Like that in North Carolina. The food and Drug Administration tried to claim this power even though congress had debated it and pass a lot of different bills relating to that. You can regulate tobacco as a drug. This is a major question. If this is can it be done Congress Needs to decide it. Weve seen that in some environmental areas as well. I think that could potentially come into play here and create a problem again, how long is this cannot going to last. Litigation takes a long time. To some degree, its kind of one of the shots across the bow. They think if you say that. You can get the vaccine out by the end of the year. The executive branch can play these gambits. I sought when i was a clerk on the second circuit. A law firm will take a strategy but there is value in delay. The whole premise here is delay. Affordable rulemaking is not always wear all of the power is. Thats what i want to focus on things like enforcement as well. Its not necessarily will they ultimately win the lawsuit will a large real estate actor want to cross the executive branch of the federal government. It may not. Even if they are legally in the right. Lets just play that out a little bit. Lets say someone does a side okay, i dont take its a good idea for the cdc or any agency to be essentially the sending or breaking a contract between two parties lets take up the chain. Lets say they make it to the United StatesSupreme Court. To have justices that were there. You cant go that far. It will be critical. With the current Supreme Court. We saw the term before that in the Supreme Court. A fourfour split. But they concurred in the result and said if we have a majority of justices. I might want to consider the long see longstanding way we treated the doctrine. The case have been argued before Brett Cavanaugh gets unfortunate. That they often look at justices in partisan terms. But we have the four democratic up pointed justices. We dont really use this. Its a relic of the past. Then you have a link the sort of discussion of the history of the non delegation. Dating to the constitutional era. And the precedents there including john locke and. And the british law that underlay it. This was an important principle. And heres what we do with the major questions doctrine. They also heard a fall under this. We have to bring this doctrine back into the discussion. One maybe. And then for that said no, let congress delegate. It will be a five for case. I think they would probably sign on board to a certain type of opinion there. It was a big proponent of the major questions. On the court of appeals. Jim you mentioned executive orders. Have seen former president obama use them. And then President Trump coming in and trying to do away with that. He faced a challenge in court. Does it seem to you or maybe not as executive at the most powerful branch right now . I think i would say that its not the is not the case in the early republic. The congress was clearly the most powerful branch and so when the great justices on the court. When he wrote the writings on the constitution. It was pretty clear that they have the power here. And it sort of started going in the other direction. When i was in hamilton. The reason they called it the least Dangerous Branch is that it doesnt have the the sword in the perks. Now we have a Standing Army that is nothing like anything our founders could have conceived. I think we do have to live with the a bit of a bigger government. Against the International Threat that we face today with modern technology. We have to have some form of Standing Army today. Even though that was something that they were worried about. The executive branch has the sword. And Congress Still has the purse. It can move things around a little bit. He did that in august trying to move some money around for covid relief. They have a 2 trilliondollar bill in march. Some of it was bad but they were able to come together and do something. Neither side wants to concede this close to the election. And so we will have a lot of businesses potentially going under and some of those businesses are going under that might be able to thrive but are being denied. Certainly something weve seen here in North Carolina. I wanted to talk to you about something that i think is really special and very important about your book. Its called the unelected hell in an unaccountable elite as governing america. If youre interested in getting the book check out the Comment Section. You will find a link right there. You do a really great job of starting many of your chapters with a realworld situation. Kind of putting a face on what it is that you are talking about and one of the stories really struck me. Help our viewers understand about this. If your racing fan bobby found himself in a very strange and dangerous situation at one point. Henny came up against the power of the state. Tell us what happened. Of course he won three indianapolis 500s. It is is a big racing family historically. He still likes driving vehicles. He has a rant out west. He drives around in the snow. And one day he was going out with a friend of his who did not have the same experience on snowmobiles. Federal land wondering about. There was a blizzard. It was not a blizzard that he wouldve been able to protect necessarily from watching the Weather Channel or something. One of the ground blizzards. The wind itself is whipping up the snow to such a high degree that they got caught in the splitters third. Ultimately they have to abandon the snowmobile. For them to survive this afterward he goes over to the authority and says ive got to go retrieve my snowmobile. In this blizzard. They have gone into an protected forest. That snowmobiles werent allowed to drive in. Congress had not voted on this either. This was is based on regulatory structure. They just developed to help to govern the federal land. I did not know. I was trying to survive. No, you are criminal they ultimately lost the case. They didnt have a criminal intent requirement. They did not had to be aware that they were doing anything wrong. The mistake of law in not knowing that it was illegal. As a defense under our system. They principles kind of makes sense. When we are back on what we call the crimes. The crimes we know our bad. Murder assault and rape. Everyone knows they are bad. Theyre intuitively bad conduct. Now most of our crimes are prohibitive and defensives. If you had watch the movie legally blonde you description of this in the creepy criminal class. They are bad because they are prohibited. People arent necessarily going to know where the markers are for the federal forest areas. They didnt fill out the right form. They didnt register the right way. None of these are intuitively wrong conduct. And ultimately the law. And that is why. The description. They had been concentrating so much on over criminalization. M and ask her to post in the Comment Section here some of the work on over criminalization in North Carolina. She has already done that. What can we do to take advantage of the legal background. You live in their newborn. Is one of the most renowned thing dash might think tanks in the United States. Tell us what you think of the covid situation and the use of the Emergency Powers by the governor roy cooper who is a secretary of health and human services. I want to separate out the policy response in the legalities of it. I am not an epidemiologist or a dr. So i dont feel purse of perfectly qualified but i do feel quite confident in saying that the use of Emergency Powers for months by the governor in my mind around the statutory govern is deeply troubling. North carolina has every state does. They delegate certain Emergency Powers to the area. When we are near the coast. Where i live. If a hurricane is bearing down on us. You dont have to get the legislators to raleigh. We have a citizen legislator so here. Theyre not a fulltime congress. Very important to act quickly in emergency situations. If were under a terrorist attack or what have you. We need to delegate some emergency authorities. But that cant be an openended ability for the governor and only the governor to broadly regulate it. In the breath of authority here. Cooper is not unique in this among governors around the country although he is one of the more extreme of using emergency power. The breadth of this is basically telling people you cant open your business. You cant leave your home in a hurricane. This is the sort of power that we want to get the governor. There is a longstanding history of certain types of quarantines. I go through some of this and epilogue of my book talking about the situation. George washington moved the cabin at a philadelphia. They cut yellow fever and baltimore new york. And people said they cant come here. It was scary garrett carried by mosquitoes not people. They did not know exactly what was happening. It was the case with certain extraordinary powers. The actual delegation here probably was constitutional. In the sense that it was intended to be a more short term fix. And for large major sorts of moves. The governor is supposed to have the Majority Council of state. Youre not just delegating everything to a king. And this is the core principle of the dr. Ration. This is what they were fighting about in the civil war. Charles the first after the great legal scholar past the petition of rights. With the royal power they dissolved parliament. And with the personal rule. In later this is called the 11 year tyranny for a reason. Were going on now several months without the consent of the council state. They are denying the most basic set of rights. And this is a situation where they had tested positive for covid. They have pretty Broad Authority to do that if someone test positive to quarantine them as a longstanding exception to our general liberty principles. Its not as if was someone with the disease can just go out of the house if thats easily communicated. We people that have not tested positive for covid. You cant open it because of general risk. The constitutional analogy of that. Obviously they have a Broader Authority than the federal government here. At least in principle limited delegated powers. Clearly we should not be got delegating this to the governor. I dont know which way the public things. Maybe people are fine with this. It really worries me and so i do hope that after we get a vaccine. And things go back to normal that the General Assembly will much more clearly marked on the limits of this emergency power because i do think its confused. In our remaining moments with you. Give us a sense of what the future is. What should we do. Those of us that believe there is too much power that has been delegated at the federal level. What are the next steps to try to rein in . Are we in a situation where we could even arraign it in . One of my reviewer says he is not very radical in his solutions. Some of the suggestions are potentially radical. Over neck and i do is get back to a 10 milliondollar federal government. Not getting it back to us 1788 government. I also think the legislature can do it. That at the federal level. They can come in there and do things. Its a very complicated question because i cant really answer in three minutes the totality of my ideas but i will be putting out for different reports over the next year and a half. When i outline in chapter 14 of the book. I did not want to bore people with a hundred pages. You could sit there and say you are delegating some of the authority to the agencies but before it is criminal you have got to come back and get a vote from the legislature. This is Something Congress can do. Where you can say we will delegate some authority. Its got to come back to us. If we dont vote on it. You only get a temporary move through executive action. The more you can do that and prevent the permanent layering of the administrative estate the better. A lot of the procedural rules when it comes to the litigators. When i can get back to what lawyers call caveat. It is too complicated for me to know everything about my computer and is if it blows up and takes my arm up. The fact that i bought the computer second go that far back. There are a lot of things we can do to prevent the shakedown games. With the discovery rules. With that seat shifting between lawyers. With a lot of things we could do to make it so that were litigating real injuries. Like the disability suit. And led her to abandon that. Regulatory reform here in North Carolina. They had been writing for several years about efforts to do that. We have made some progress here in North Carolina thanks to the General Assembly and i will ask bernie to go ahead and provide a link for you. If youre interested in taking a look at some of that progress we can show you that its one of the areas that we focus on here. With our Research Team and happy to say there has been some progress at the state level here thanks to the leadership of the General Assembly. We wish you the very best. It is called the unelected. An unaccountable elite governing america. Very meaty information. I love that you put a face on the land of this. People that have come into contact with the Administrative State and has not done well. In at least one case you write about. A tragic ending to someone who is in a very difficult situation. Thank you so much. We appreciate your time. Please do check out his latest book the unelected. Thank you for joining us. See macbook tv has top nonfiction books and authors every weekend. Tonight at 8 00 p. M. Eastern. Sunday at noon eastern on in depth. Indepth. A live conversation with the Harvard University professor. At 9 00 p. M. Eastern afterwards. A foxbusiness new host lou dobbs. Author and Hoover Institution senior fellow. Watch book tv this weekend on cspan two. Here are some of the current bestselling nonfiction books according to policy and prose bookstore in washington dc. Historian john meachams book. Thats followed by Pulitzer Prize winning author. They explanation and then in range. Bob woodward examines the national and Foreign Policy decisions. They argue that america must confront White Privilege in just us. Wrapping up the look. Its what can i do. The activist and the design and how to fight Climate Change. You can watch them online at book tv. Org