Transcripts For CSPAN Judge 20240704

Discusses Housing Solutions at an event hosted by the partisan Bipartisan Policy Center at 11 a. M. Eastern on cspan, cspan now or online at cspan. Org. D. C. Circuit court judge discussed the constitution. This is hosted by the American Enterprise institute. Yuval levin hi, everybody. Thank you for being here and for helping us remember walter burns and celebrate the constitution from director of social studies. It is my great pleasure to welcome what is the 12th annual constitutional day lecture held in honor of the great walter burns. We honor walter just the way he would like to be remembered become together to think about the constitution. And we do it each year with the help of some someone particularly wellplaced and gifted for helping us do that. That is very much the case. We could hardly ask for a better guide and thinking together about the constitution that are speaker tonight. On the u. S. Court of appeals for the district of columbia. It isas for one thing a Public Service of the highest caliber. She served in all three branches of government. She was a Senate Judiciary Committee Staff artworks on the council office. She was the administrator of the office of information and Regulatory Affairs at omb. And she has been a judges 2019. She is also a real scholar jurist sheet not only sheet taught and studied and has written about an extraordinary range of constitutional issues in particular as a law professor at george mason university. She is really a model of the kind of judge that our republic needs. We are grateful to have it with us tonight. And the american constitution. And after her remarks she and adam white of ai will have a conversation about the subject that will open things up to questions from all of you. Those of you watching online you can find right next to the video you are watching the email address or Twitter Twitter hashtag where you can send questions. And with that, help me too welcome judge neomi rao. The floor is yours. Neomi rao thank you so much you all for that very kind introduction. Its a pleasure spit ai to give to be here at ai to give a lecture that so many remarkable jurists and individuals have given before me. And i ask them to help me find a joke to start off my speech. They came up with nothing. But one of them did try chat gpt and im not sure quite what they put in but maybe something constitutional law joke in the style of judge neomi rao and nothing was funny. So i think ill just start off tonights lecture about pluralism in the constitution. Without a joke. So today, our discourse often focuses on the division in americas political and social life. We hear a lot about polarization , the decline of trust and the breakdown of the institutions. America is one of the most vibrant countries in the world with a long tradition of religious and economic. There are signs everywhere we are less able to appreciate and respect difference. And importantly, less thoughtful about what such diversity requires from our government and our reports. And so on this occasion, on constitution day, i want to recover the relationship between pluralism and our constitutional tradition. By pluralism the inherent differences between individuals religious belief in their chosen work. The framers of our constitution recognized the inevitability of human differences in the pursuit of happyness. It was deeply connected to individual liberty, served as an important principle find the specific form of government established by the constitution. First those who shape our constitution have firm and passionate belief about what was true in religion and politics. They were certainly not relative to this. They recognize others would invariably hold different passionate beliefs. As long as the reason of man continues fallible different opinions will form. Because it is inevitable at the that the American People would hold different opinions, interests and beliefs, the constitution was designed to protect individual liberties and establish processes for representing and negotiating across society. Second, i will discuss the vitality of pluralism in our constitutional tradition and Supreme Court jurisprudence. The court struck down harvards affirmative Action Program holding such Racial Discrimination runs a foul of the equal protection clause. Justice thomas exclaimed a Pluralistic Society equal treatment by the government. Not divisive and arbitrary racial preferences. And finally i will consider healthy have undermined the how they have undermined the constitutional protection for pluralism. Expertise is fundamentally at odds with pluralism. Moving lawmaking out of congress into executive agency has unraveled one of the primary institutions for negotiating our pluralism. Agencies cannot replicate the which intimacy and processes. When private ordering is replaced with public ordering, local control replaced by National Control and replaced by administrative edicts. Those whose ideals are not reflected in the regulatory policy of the day feel marginalized. The penetrating reach of regulation into all manner of activities occurs with little regard for pluralism. When legend legislative is lacking they strain the strength of our constitutional democracy. Restoring the legislative power to congress would help to realign the Administrative State with the original constitution. This would further the rule of law and might also reinvigorate the political process necessary to peacefully accommodate pluralism in our diverse and vibrant nation. The founders acknowledged and accepted the inevitability of human difference and created a constitution that accounted for pluralism by structuring and limiting government in order to protect individual liberty, Property Rights and minority interests. The political philosophers recognized human difference across conscious and economic interests. John locke described and recognized the pluralism across human society. It was a fact that was necessarily assumed. He maintains that although there are principles of law, human consensus was unlikely. Its precisely for this reason individuals must come together and establish a government that can mediate the differences in a peaceful way. Through a legislative process aimed at the general welfare. An inevitable human diversity also requires protection for private property and individual rights. Similar ideas about the social contract and the necessity of law were expressed by montesquieu and hobbes. To be sure whether the founders did always agree about the benefits of pluralism, they recognize diversity inherent in human nature and reflected in our varied interests, beliefs and pursuits. Diversity was particularly manifested in matters of consciousness. The religious of every man must be left to the the religion of every man must be left to the conscience of every man. George washington similarly stressed the conscientious scribbles of all men should be treated with delicacy and tenderness and accommodated. Pluralism was apparent in individual talents and interest. As madison recognizes, there is diversity in the faculties of men for which the rights of property originate. The protection of faculties is the first object of government, from the protection of different faculties acquiring properties, in sued division of society into different interests. The causes of faction are sewn in the nature of man. The primary combination was ultimately structure and political. The constitution begins with article one which invests legislative power in collective congress. A Representative Legislature in which different viewpoints could be expressed, debated ideally harmonized into a legislative solution consummate to the public good. The constitution vests legislative power in a collective congress to create a government that brings together the interests of society and creates laws that further the general good, avoids corruption and protects the rights of individuals. Political theorists and historians have debated whether the founders envisioned the process would identify as objective common good or negotiate different interests. But either way there is widespread recognition that congress was the Central Institution for mediating diverse interests across society. While the legislative power was essential for negotiating pluralism, the constitution established other structural protections for personal liberties. These include federalism and the separation of power. A unitarian executive, an independent judiciary to uphold the rule of law. The structural safeguards are supplemented by the enumeration of specific individual rights such as a freedom of speech and religious exercise as well as protection for private property. Pluralism is a fact of the human condition. The framers did not seek to level out pluralism, rather in the spirit of liberty and pretense, prudence they establish a Constitutional Government designed to secure the welfare and prosperity of a growing in diverse nation. Next i would like to explore the essential connection between individual liberty, Constitutional Rights and pluralism that runs in many of the Supreme Court decisions. Individual liberty and pluralism are in a sense two sides of the same coin. Each person is unique and all men are created equal and endowed by their creator with certain unalienable rights. By upholding the structure of the constitution and enforcing individual rights against the government the judiciary can help maintain a peaceful Pluralist Society that protects each individual life, liberty and pursuit of happiness. A few examples are at the vitality of pluralism in our constitutional tradition in the Supreme Court jurisprudence. The theme of first about frequently runs to the decision upon the First Amendment protection for freedom of speech and religion. As the Supreme Court has said, no official can prescribe what shall be orthodox in politics , nationalism, religion or matters of opinion. They held that colorado could not require website designers to create expressive designs for samesex couples. Justice proclaimed the First Amendment envisions the United States as a rich and complex place where all persons are free to think and speak as they wish, not as the government demands. The constitution required government evenhandedness and tolerance of different viewpoints. The government may speak as it chooses but it cannot dictate the speech and expression of individuals or interfere with the free marketplace of ideas. Freedom of speech is important for unpopular ideas and is as Justice Holmes said, to protect the speech we hates. Maintaining free and open debate further promotes robust democratic deliberation. Pluralism animates many of the Supreme Court religious liberty cases. Free exercise frequently involves the importance of protecting minority religion. While establishment clause for many years promoted secularism rather than religious pluralism. In recent years it has emphasized the government cannot force religion underground or promote policy hostile. In the 2019 American Legion case, the court upheld the peace cross that was part of it world war i memorial. As Justice Alito explained, the religion clause of the constitution aims to foster a society in which people of all beliefs can live together harmoniously. From a somewhat different perspective justice kagans concurrence emphasized pluralism in the values of neutrality and inclusion that the First Amendment demands. The 14th amendment extends the constitutional commitment to pluralism that was promised but not fully realized in the original constitution. The equal protection clause protects pluralism by prohibiting government discrimination and prohibiting between citizens. Supreme Court Decisions in this area have historically been somewhat mixed. But last term students admissions versus harvard as chief Justice Roberts explains equal protection call prohibits equal protection clause prohibits discrimination on the basis of race and eliminating Racial Discrimination means eliminating all of it. In his concurrence Justice Thomas explicitly linked equal protection of the law to pluralism. He noted our constitution protects individuals not racial groups or classes. The declaration of independence set forth our National Creed that all men are created equal and therefore it must be treated equally by the government. Affirmative action he said was simply naked racism that promoted a factionalism based on ever shifting sand of skin color and racial category. Justice thomas continues rather than forming a more Pluralistic Society that strips us of our individuality and undermines the very diversity of thought that universities purport to seek. By upholding the equal protection of the laws the Court Protects the rights of individuals. And it prevents a factionalism that results in the government divides its citizens distribute to benefits and burdens on the basis of growth. The constitution structural protections, federalism and separation of power are linked to individual rights and accommodating what madison calls a Great Variety of interests and parties across our republic. As the court said, the federal structure allows policies more sensitive to the diverse needs of a heterogenous society. It permits innovation and experimentation, enables greater citizen involvement and makes government more responsive by putting states in competition. In a Pluralist Society federalism provides more opportunities for representative politics and for important issues to be worked out in local communities. In dobbs versus Jackson Health organization, the Supreme Court recognized americans held a wide range of viewpoints about the morality of abortion inappropriate scope of regulation. In overturning roe v. Wade, they explained the constitution was silent on matters of abortion. He emphasized it is time to heed the constitution and return the issue of abortion to elected representatives. The permissibility of abortion and limitations should be resolved like most questions in democracy, by citizens trying to persuade one another and voting. That is what the constitution and rule of law demands. To the proper exercise of judicial review article three courts help preserve a vibrant pluralism by upholding Constitutional Rights and maintaining the structural limits on federal government. The Supreme Court however has failed to uphold the structure of the constitution with respect to perhaps the most essential protection for pluralism. The vesting of legislative power in congress. Congress provides a mechanism for imparting our inevitable disputes resolved like that the lawmaking process of bicameralism improvement in us. Representation of different interests promote deliberation and identification of policies that serve general welfare. The legislative process in congress is not perfect, but it is legitimate, representative and accountable in a way that lawmaking can never be. This brings me to the modern Administrative State. My final points about the ways in which the Administrative State threatens the peaceful pluralism protected by the constitution. To begin with the progressive ideology behind the expansive Administrative State is at odds with pluralism. The original progressives with the modern Administrative State woodrow wilson, frank and others, they began with experts who could find the right answers to social and economic problems. Having found the right answers, experts should impose them on the American People. The progressives did not concern themselves with individuals and the inherent differences between individuals that are part of the human condition. Instead they emphasize social problems and reaching the best social policy and organization. The original progressives advocated for sidelining the unscientific legislative process and weakening judicial review. For administration to succeed americans would have to move beyond the constitution archaic protections for individual liberty and private property. In short, the zeitgeist is at odds with pluralism and the protection of liberties. It cannot accommodate diverse interests, opinions, religious beliefs and economic pursuits. The founders emphasize fallibility and individual liberty. The progressive by contrast press for science, certainty and government control. The threats are more than theoretical. In ministry of states constitutional problems will be familiar with this audience. My focus is on how constitutional problems exacerbate polarization and factionalism. Reaching into every facet of social and economic endeavor, the modern state has unraveled the constitutions protection for peaceful pluralism. At the most fundamental level the Administrative State has shifted policymaking from congress to the executive branch. In practice legislative power is exercised by administrative agencies. Why is this a problem . There are many reasons. One of them is congress was designed to represent and mediate the many different interests and concerns across over diverse society. Disputes will be channeled into legislative politics that would be widely representative of many intersecting and competing interests. Because securing such agreement will be difficult federal intrusion would be minimal and most decisions will be left to private ordering her to to state or to state and local regulations. Lawmaking was hard and designed to be so. As the justice explained in west virginia, those who make our laws should better reflect the diversity of the people they represent and have dependence on and sympathy with the people. Executive Branch Agencies lack this type of representation. Agencies are staffed subject Matter Experts and bureaucrats are drawn from a narrated narrow knowledge. Silent in their expertise, staff act as policy partisans. They do not represent the diversity interest across American Society. They are not wellsuited to recognize broader economic and social tradeoffs of regulatory policy. To be clear, it is not necessary to vilify the bureaucracy in order to recognize their experience and sphere of action is narrow, specialized and aimed at particular bureaucratic ends. Rather than a holistic consideration of the general welfare. Modern proponents of the Administrative State often argue it can promote socalled constitutional values. Even when running a foul of the actual constitution. But the reality is the records regulatory process cannot come close to approximating the representative politics of congress. The process involves only those with deep pockets and the most intense interest. Cozy regulatory capture is prevalent and proposed rules change little before becoming final rule, irrespective of the hundreds or hundreds of thousands of comments that are filed. Agencies impose a Singular Solution on deeply contested matters without political deliberation, negotiation and legitimacy of congressional action. Those who disagree with an administrations policy have little opportunity for representation in the regulatory process and little hope of stopping policies that trample their beliefs or interfere with their livelihood. Agencies are structured to allow the energetic pursuit of policies without compromises of congressional lawmaking. Unitarian, energetic execution is part of the constitutional design but energetic lawmaking is not. And so our government intrudes into more areas of private life and with less legitimacy. Expanding Administrative States that impose onesizefitsall solutions, raises the stakes of disagreement in a Pluralist Society. Consider a few examples which the Supreme Court is found agencies invaded individual rights or exceeded authority. Regulatory policy often fail to accommodate religious exercise. For instance, a contraception mandate imposed by the health and Human Services under the Affordable Care act, require all employers to provide for contraception. Provided no exemption for those with religious or moral objections. The Supreme Court held this violated the restoration act because impose demanded against private employers which had religious objections to contraception. As the court said a binding national answer to this religious and philosophical question, they tell the plaintiff that their beliefs are flawed. We have repeatedly reviewed to take such a step. Agencies also exceed their statutory power. For instance during the pandemic, the center for Disease Control imposed an Eviction Moratorium which the Supreme Court invalidated. The court explained the moratorium was well beyond what congress authorized and intruded on the landlordtenant relationship and claimed unprecedented federal power. As the court said our system does not permit agencies to act unlawfully. Even in pursuit of desirable end. The court stressed that congress , not the cdc, had to decide whether the Public Interest merits further action. The Supreme Court also invalidated the plan to forgive Student Loans because the policy exceeded the authority granted by congress. The chief justice explained under the governments interpretation of the secretary of education virtually Unlimited Power to rewrite education act and unilaterally defined every aspect of federal Student Financial aid. Furthermore the court noted the case of one branch of government are going to itself along too another. It is executives season the seizing the power of the legislature. The secretarys assertion of Administrative Authority is has conveniently enabled him to greater Program Congress chose not to enact. These are issues of contentious moral questions and matters of significance. The court recognized such major questions must be addressed in the first instance by congress. Nonetheless, so far at least, the court has shied away from a robust enforcement of nondelegation principles. Some justices cited practical considerations. None of these reasons addresses the fact that the constitution sets legislative power, not some, but all of it. As i explained, widespread delegations have undermined collective congress and its incentive for checking executive Branch Agencies. The failure bolsters the need for review to restore constitutional limits on administration. Justice thomas and Justice Gorsuch have called the court to instruct the delegation of legislative power of the executive. It would uphold separation of power and protect liberty. All the better to serve the need of the society. Let me conclude with a few more thoughts. It is inevitable americans will disagree about social Political Economic and religious matters. The founders recognize such disagreement is sown in the nature of man. Madison said it would excite astonishment and admiration if americans could freely establish one general government when there is such a diversity of opinion and interest. So on coast constitution day, its worth recalling the founders recognized human diversity. They excepted pluralism as a social and political fact. They responded to its challenges by establishing a government structure to promote individual liberty and general welfare. At the center of the structure was congress. A legislature designed to represent diverse opinions and interests through collective lawmaking. The ubiquity of administrative action and the lax congress have strained the political mechanisms for mediating difference for the erosion of the original constitution, the breaching of its limits on government. Separation of powers and the reversal structure make it hard to diversify shared goals. Restoring the constitutional limits on the Administrative State would be good in itself. And it just might go a long way to restoring a more peaceful pluralism in the country. [applause] thank you, judge. When you told us what the topic of your lecture would be, my colleagues were happy to hear it. The themes you have been discussing are central to a lot of our work. Colic has a new book out why congress, jay costa has a new book out called the democracy of the republic. Thinking about your remarks to walter burns their deep things and what you were discussing so much from lincolns first and second inaugural address. Themes of union among deep difference. They are timeless but also walter burns ian. The union among when ai announced this lecture series, Justice Scalia spoke at the event. Retired judge Michael Mcconnell and Justice Brett kavanaugh, who also his remarks were on chief Justice Rehnquist and the nondelegation doctrine. Judge kavanaughs seat. I like the trendline on this by the way. Thinking about the conversations, you have been a judge for a few years. How has your service as a judge furthered your sense of pluralism in American Government . There is a deep connection between respect for pluralism and the rule of law. I have thought a lot over the past four or five years about the role of a judge. The role is to uphold the law. When judges are upholding the constitution, statutory limits on the administered of agencies, which is a big part of my job i , think that leave space for pluralism. That leaves an opening for liberty, it keeps the government within its limits. I think there is an important connection between pluralism of the rule of law. Therefore the power of judicial review. A criticism of judges is that their work is not rule of law enough that they treat their job as a value judgment on behalf of the American People. As the Supreme Court is touched on the Supreme Court is touched on a number of issues, this criticism that the court itself is imposing value judgments, disagreeing or imposing itself and what should be a pluralistic process for deciding the nature of Constitutional Rights. What do you make of those criticisms . Some would say the harvard case, a more pluralistic approach would have been to let colleges choose what theyre going to do and let everyone choose differently. I think there are some choices that are constitution does not leave to the political process and that includes protections for individual rights. It might be more pluralistic to let universe discriminate on the basis of race. That is forbidden for government actors. The equal protection of the law means no discrimination on the basis of race. Where the constitution leads choices to the political process, for instance on abortion, the court leave space for political pluralism. When the constitution protects rights it is incumbent on the court to enforce those rights against popular majorities. I was struck by your criticism of the Administrative State. Everything is about the Administrative State. This is why we get along so well. You were in the Administrative State so to speak. I was. I am very familiar with the Administrative State. Sometimes it breeds contempt. There have been efforts to still greater plurality. Pluralism into the administrative process among democratic and republican alike. In the Trump Administration there were efforts to bring more voices into the process so i was struck by your comments that it is almost inevitable that particular voices will dominate. The biggest interest, technocrats. Is there nothing more the administration could do to make itself more pluralistic . We put in place a lot of reforms to improve the process and bring different interest to bear. A big function is to provide a broader perspective on regulatory policies. But one of the things that became pretty apparent to me and running that process is a lot of these are secondbest options. We can make regulation we can make it more accountable for the public. We can bring in different voices we can try to make it , approximate Something Like the process. But ultimately its not structured for that. The way the regulation is formulated and pursued this is fundamentally very different from the legislative process where you have political representatives negotiating and compromising over what policy should be. In the beginning of your remarks he said we focus on polarization. We should focus on it. I wonder how pluralism can work in a polarized society . Feels like now it is among 2, 1. Where you have two in our political matters, two ideological parties. In federalism is not as though we have 50 Different Solutions so much as one set of states that follow one set of solutions. The other states follow other solutions. How does polarization work into this . Can we have genuinely pluralistic institutions when they seem to be organized along bipolar lines . Congress, if they had to make major policy decisions, we might see more compromise and more negotiating on importassead mae important questions are shipped off where they can be made on a singular focus. It is at least possible there would be more compromise and negotiation. At the end of the day our system was designed for the federal government to simply do less. If the federal government does less, that would maybe mitigate polarization and dissension because the government would not be interfering with private ordering. In so many ways. In terms of how congress has delegated power to agencies, think about some of those laws. The laws that delegated the most power to agencies and by your argument did the most to undermine pluralism, the statutes were pluralistic. Passed by majorities. Clean air act, clean water act. It is the failure to agree, to compromise and to get into the details that has undermined congresss work. The failure of congress digging down and doing its job beyond latitude. Enough about congress. One people you have not spoken about as the people themselves. What does pluralism and Constitutional Government require of citizens . The framers assumed a constitutional democracy is a certain amount of good character who in good faith participated in the political process with their fellow americans. That level of toleration and accommodation of people who have different views is essential for democracy to function. I think we are covering that and it might go a long way to ease the problems that we see. When the Supreme Court was stepping outside of its lane and imposing value judgments to now the Administrative State overstepping its bounds to impose judgments, how much of that is willfulness on the part of those institutions and how much are they filling the vacuum left by congress . Or left by the people, themselves. I think agencies are often times doing what congress designed them to do. They often gave them a mandate a very open ended mandate and staffed them with the tens of thousands of people. In some ways its unsurprising we get what we get. In some ways its a natural outgrowth of the Trump Administration, we tried very much to stop Regulatory Overreach but in some ways that is perhaps contrary to the natural tendencies. Maybe one last question before we open up the floor. Do you have an ideal statement . Theres the judge, someones work in the executive branch someone who has worked in congress that exemplifies American History values you are calling for return to that . Justice thomas probably one of the greatest living americans that we have. He came up from such dire and impoverished circumstances to be where he is. He has served in the highest reaches of the executive branch before going on the bench. I think he understands the importance of pluralism and the connection between pluralism and individual liberty in a very deep way. Who is your favorite or least favorite . Just kidding. So we can take on questions not just from people in the room, but people watching online. They can submit questions via email or twitter. Instructions are on the event page. If you raise your hand, the microphones will find you and we will start with robert in the next question will be right here. Thank you very much for this great remarks. You made it sound so easy, pluralism. Did you not want to acknowledge that sometimes politics is a frustrating, reaching the wrong conclusion, fits and stops and starts, a lack of efficiency sometimes . Can you acknowledge it can be that way. Of course it can be that way. In fact it was designed to be that way at times. Politics in congress is certainly not perfect but it is a system that we have. Perhaps it is one of the best ways for negotiating compromise across a Pluralist Society. Its not a panacea. The next question will be right here. Thanks for the remarks today. You talked about pluralism in a lot of different realms. One of the realms you did not really touch on so much was the legal realm. It is increasingly clear not just in academia but on the court itself there are a number of approaches but within originalism toward reaching results. I was kind of curious how do these different approaches to factor into your role as a judge of the d. C. Circuit court . What would your advice to be to judges, attorneys or younger people interested in law when approaching the different ways of understanding text of the constitution . I am an originalist and that is part of the judicial role is to interpret the law for what it says not for what i wish it said or what i hope that it might say. And yet there are tendencies from all different corners of American Society theyre asking that are asking courts to impose Singular Solutions from one direction or another. Or seeking the same thing from the ministry of state. But with respect to the courts, it seems like this is such an obvious thing a few years ago to say the job of the courts is to say what the law is. I am a little surprised how under attack that simple premise has become. I guess i will reiterate it here thats certainly my view of what the court should be doing. More questions, please lets circle back to roberts question for just a moment. Not just that legislating is hard, its also messy and partisan. But there are big, big things at stake. Fundamental judgment of principle. Fundamental moral values. It is easy to save members of congress should compromise. But we all get upset when they compromise their principles. How should they approach that . How much of what congress is what is before congress is a matter of first principle should never compromise and how much of it is details where you can split the difference . I am not a lawmaker. It is a balance of course. Like anything. I do think legislating is a bit of an arch. Probably more art than science. And i do think the way our constitution was structured when they could not negotiate or find some agreement and the government simply did not act and thats also an option. Maybe we no longer think thats an option but it seems like seems like that was the default. The things we left as they were. The next question will be here and then right here. Thank you for your remarks. My question was about federal and state relations and how they impact pluralism. Federalism is an important aspect. The idea was most issues would be left to state and local control. And that would promote pluralism because people can participate in political processes to govern themselves. And so i think federalism has been detrimental to pluralism. Next question right here. Thank you for your remarks. I asked the question on standing in the biden Student Loans case of if the Administrative State is there like these seizures of power and there are a bunch of doctrines on when you can sue, what do you see as being the way we are going to solve those challenges . As the Administrative State overreaches, how do you resolve those issues . That is a great question and probably one i should not speak about given how many cases in all that evolving issue. Great question. I think i saw another hand over here. Running into climate change, the use of global citizens, that is trying to neutralize pluralism, so are you running into pluralism versus standardizing the global we . Um, well, i guess im not sure if i was following your question, but globalization can be a way of eliminating pluralism. If you have global solutions, even more leveling of pluralism than having a national solution, i think that is certainly a possibility. A genuine political process requires acknowledging what we disagree about, but what we share in common. What actually drives us to want to negotiate, compromise, come together. And the more the people are in government were outside advocating for government see themselves as having more in common with regulators, judges abroad, political actors abroad. Seeing that is more of the week, rather than the americans right there in their own neighborhood, their own state, their own country, that they disagree with. It makes it more difficult to have pluralism because they are tightly bound to people outside of the Political Community then the neighbors across the street that they are a community with. Right here in the front. Thanks for your remarks. As somebody who generally agrees with the criticism i am also struck by the degree by which one of the most important policymaking elements is the federal reserve. It obviously makes major decisions that congress has no role in whatsoever. How do you see that in your constitutional vision . Well, we have a disagreement on independent agencies. Im not sure that they exist, but he believes they exist. I have seen them. [laughter] its a different problem from when i talk about here. I do think the article to wo problems are very real. We have all these agencies outside the control of the president like the federal reserve, although it is considered a special case from other agencies. I do think the lack of president ial control is a serious problem with the Administrative State. Last question from the audience right here. Could you elaborate on why the president is elected every four years . My that is not a sufficient protection of democratic legitimacy and pluralism . I do think president ial control provides a certain accountability for execution of the laws. And for setting the direction of the Administrative State. Not all that is incredibly important and vital to making sure the Administrative State operates in somewhat of a constitutional way. But i do think that type of president ial control cannot fix open ended delegations to agencies because the executive is not a lawmaker. The fact the president was democratically elected does not make up for the fact that there is none of this representative politics in the making of the law. I do think and i have written about this elsewhere with the the really deep reasons might why lawmaking has to be done by a legislator. The founders talk about this a great deal. The protection that you get from representative lawmaking is simply not present in the executive. The big question to ask, walter barans most enduring work was his study of the Electoral College and the way it was created to help advance pluralism in the selection of the president. One last question for me. And your service on the court you are not just deciding often divisive or controversial issues but youre doing it as kind of a group project. We were deciding cases in a panel of three judges so a group of 11 judges. And just in the last few weeks you have written a highprofile majority opinion, unanimous opinion in cases that would divide americans politically. But if you learned about pluralism serving alongside judges . Im grateful that i have wonderful colleagues on the d. C. Circuit and i think we often agree more often than is portrayed. I did have several quite controversial cases. That were decided over the past year and republished. The panels were diverse. Ideologically in the way they talk about that, but also unanimous. That should give people some faith that what we are doing is following the law. There were some dissents . Some, not as many as most years. Please join me in thanking judge rao. [applause] there is a reception outside the door. Thank you, judge. [indistinct chatter] cspans voices 2020 four, asking voters what issue is most important and why . The most important issue is immigration. Economics. Homelessness needs to be addressed. We invite you to share your voice by going to cspan. Org campaign 2024, select record your voice and record a video telling us your issue and why. Cspans voices 2024, be a part of the conversation. The cspan bookshelf podcast feed makes it easy for you to listen all of cspans podcasts that feature nonfiction books in one place to discover new authors. We are making it convenient to listen to multiple episodes with critically acclaimed authors discussing history, Current Events and culture. 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