At the Manhattan Institute where he is also director of legal policy and you have read his work all over national media, youve seen him on television youve heard on radio and, by the way, he holds the jd and mba from yale where he was an owen fellow in law and economics, also a ba in economics from none other than unc chapel hill where he was a morehead scholar. Jim, so glad to have you with us here for our shaft spirit society. Thank you for joining us thank you for having me, donna, always a pleasure to speak to the good folks at the John Locke Foundation. Ive said it before, as someone who has worked many years at a National Think tank, so much policy happens on the state level and John Locke Foundation is really a Gold Standard think tank that has helped to reshape North Carolina and such a positive direction and lot of the strength and resilience right now and sound fiscal ain the midst of a pandemic is really due to the great work of the John Locke Foundation has done. Thank you for having me. Thank you for those comments, really appreciate that beset by the way, people should know you actually live in North Carolina so your book writes about federal policy but you are following state and Public Policy as well. Hopefully we will get your take on whats happening with governor roy cooper and the use of Emergency Powers etc. Here in North Carolina. Jim, ive got to tell you, this book the unelected, you can buy this book now, i think my colleague rence is can be posting in the comments section of our Facebook Page where you can actually get your copy of the unelected. Tell us about the key theme of your book and why you wrote it. The key theme really is that people dont understand just how much government activity that oversees our lives and in some of the stories we will talk about later in the book, tragically has influenced lives of some people and in other cases just given significant headaches. But how much of an apparatus goes forward, no matter how we vote. That doesnt mean that elections dont matter. Whose president matters, whos in the congress matters, state level, governor, General Assembly, here we elect judges and justices and they made matter a lot too. Its not that the elections dont matter but they only capture an incomplete picture. There are couple million federal employees. 50 states, thousands of municipalities, well over a million trial law, private lawyers that influence us through the litigation system. All of these different pieces, we have heard attacks some of the partisan attacks on the deep state and these sorts of things. I stay away from that sort of partisan view and just look at it more tell us topically and somatically and look at what the government is doing that really departs from our fundamental constitutional design. The constitution clearly had its flaws in the beginning, most notably slavery, but the constitution had two animating principles, there was a notion of limiting the governments to prevent abuse, this is a notion that dates back to john locke, among others. And then the notion of having a publicly Accountable Government that was in some ways active and could get things done but was ultimately accountable to people and these representative democratic principles as well as the sort of limited government Classical Liberal principles animated the constitutional design. Those two principles have been substantially eroded. Its hardly a surprise anyone to look at the incredible roles of government. And talk about it in my final epilogue, just the growth and the size of some of the government abi guess its chapter 14, looking at how much the government has actually grown from those early years where even adjusted for inflation, the first congress, the total of creation of the federal government is only 639,000, even adjusted for inflation thats 10 million. Right now congress cant agree on the next level of covid relief but the gap is between 1 trillion on the r side and 3 trillion on the d side, orders of magnitude of more government than we had in the early years. A lot of people have written about this. I tend to agree with the limited governments tax. I worked in a think tank like john locke abin these sorts of questions, and skeptical Big Government generally although as i noted in my book, there some caveats to that where it makes sense for apart from the original constitutional design. But a lot of people havent paid a lot to attention to and certainly not abis the concept that was lost some of the public accountability. The sort of work that ive done over my many years in the think tank world have dovetailed along all these issues. Working on things like ab looking at the Administrative State and regulation, looking at over criminalization, something i worked on with your legal scholars and others at the John Locke Foundation in North Carolina and other states and corporate government, securities law, they all sort of come back to this Central Point where we see a lot of government being done and a lot of liberty being lost from individuals who are acting without public accountability and in many cases we see significant radical shifts in the legal and regulatory structures that govern our lives without congress ever taken a vote. Without the people we actually elected deciding to do so. Thats the principle pieces of the book. I sort of break it down into four different categories, interrelated but i think important to understand that each of these forces matter and we might perform one of them and it wouldnt necessarily change as much as we might think if we are not cognizant of the fact that all these other players are similarly working to govern us without any sort of public accountability. The first of these are what i call rule makers. This is really the fundamental function of congress all of us who grew up when i did, anybody who grew up in the 70s, 80s, 90s, if they watched abc saturday morning and watch the cartoon shows they would see cool abschoolhouse rock, educational cartoons, among those were my favorites was im just a bill, sitting here on capitol hill. That still describes about how a bill becomes a law but misses a lot of the way that rules actually get enacted. In the criminal law sphere we dont know for sure how many federal crimes there are. Its too voluminous for us to know but the estimate is around 300,000 federal crimes exist. Of those, 98 came into being without an express enactment by congress. With congress it was create a rulemaking agency somewhere in the executive branch and they drafted the roles and Congress Never saw those rules again and those rules can lead people to go to prison to get in trouble. To have real teeth, criminal teeth. The same thing is true across civil law. This is quite a departure from the principal followed by locke among others that sort of animate of the constitution that the lawmakers had to make the law, they could acouldnt delegate the lawmakers and make new lawmaking. Thats what weve done to the growth of abgrowth of this administrator state. Much of this has been an over the past 90 years. By and large we seen a seachange and expansion of this delegation of rulemaking during the last 90 years or so and and it continues to accelerate. We see it both parties are guilty of it. Just recently the Trump Administration centers for Disease Control came out and essentially said there abrogating private mortgage contracts across the entire country. There is certainly a policy case being made saying we dont want to evict a bunch of people in the middle of a pandemic this is the sort of thing congress would have to come to agreement on not something you would have an agency and this was not an independent agency and agency that reports to the president but an agency coming out unilaterally in this sort of rule, there are multiple constitutional questions to be raised by that action but clearly what we have is something far removed from a bill becoming a law as its portrayed in schoolhouse rock. The second sort of force of the second unelected actors that i focus on in the book are what i call the enforcers. This is really important to keep in mind. If we make it too hard to actually create new rules and are paying attention to Enforcement Actions from the executive branch then we could get something that is in some ways more lawless than just regulatory willemaking itself t it to the godfather. This is an offer you cant refuse. You take big business dealing with the federal government, often they have your business totally under their control in the following respect. If you are a military contractor obviously the federal government says you cant sell to the military anymore than you are out of business. If you are Pharmaceutical Company in the federal government says you cant get reimbursed abreally the strong arm of the federal government is often coming into play. The problem though is not just abits a much bigger problem in some respects for the Small Business owners, the family farmers, the individuals because the big businesses have large compliance teams they have a bunch of lawyers with fancy degrees. Studying these rules and regulations and trying to keep the business out of trouble it doesnt mean theyre going to be able to comply perfectly, it does mean the governments gonna be able to strongarm them and create regulations far beyond what was ever authorized as an actual sanction for conduct by congressional statute. But they at least can try to comply. If youre a Small Business owner without a team of lawyers at your disposal are we supposed to comply with 300,000 federal regulatory climes. Theres just no way. This also happens very much on the state level which is why we generally flush and work in close with the John Locke Foundation on this and talking about over criminalizing the states. Some of these same principles i talked in the federal governments also exist on the state level. The enforcement is a little different in the resources are little different. Certainly the federal level usually we see strongarming a astrongarming a big business through regulatory enforcement although not exclusively and certainly in new york are state ags have done a lot to sort of strongarming entire industries and remake the industries sometimes with really bad consequences like abthe rule makers and enforcers are what we talk about the relativey sta these people are not particularly accountable, at some level high level folks go through appointment and confirmation process. Like they are preradicals with no connection whatsoever to the elections we hold but there is a lot of civil source employees underneath and a lot of autonomy and essentially we are in running the checks and balances the Founding Fathers put into the constitution that the early states and the subsequent states joining the republic agree to to try to slow down various legislative and regulatory moves now we sort of run around back in this revelatory state. Let me ask you about the rule makers and enforcers. This really what some people refer to, at least recently, as permanent washington, the people who are there no matter the ministration, no matter the politics, behind the scenes, wielding all sorts of power. Thats basically correct. I dont want to over emphasize that to the extent that a number of the federal agency apparatus is very much responsive to the president ial election cycle. But thats part of the problem. We put so much stock in president ial elections, precisely because the president ial executive branch has so much authority in the same thing is true with judiciary. 21 of the people in the last election told exit pollsters a anot that they didnt believe in judicial review by and large enough that they didnt think judges were important but they were shocked that was the number one issue in electing a president. There is a lot of power that comes into play but can be slowed down and the courts sometimes adopt by and large the review apparatus that the courts have brought to bear on the Administrative State tends to give a hard look, a close look to reversals of regulatory actions. Theres a lot of deference given in the first instance to write new regulations and with the new administration comes in and tries to undo the regulations its often harder for them to undo the old regulations abits backwards but thats the review system we have with the courts. Essentially you are saying it really does matter who you elect for president based on that persons view of the regulatory state and all that. Even though it can go back and forth with these executive orders but it does matter. It does matter. Although, not all the federal government is as responsive to the executive. Chapter 2 of my book goes through this principle where we talk about these independent agencies and, essentially, the courts have allowed independent agencies with sort of cause i legislative powers and a staggered terms of rule makers. Things like the federal Communications Commissions or security and Exchange Commission. While there are president ial appointment in play there are bipartisan commissions for the minority party, in this case its the party that doesnt control the white house, minority of the seats. There are defenses of this, it creates a little more continuity, you dont get the a aits very very different from the basic constitutional design we all learned about in grade schools. These types of bodies wield substantial parties delegated by congress. In the white house cant come in here and say, i want this person off the security and Exchange Commission i dont like their views, what else does not have that power . The elected president doesnt have that power. All of these folks, while they are unelected and, the big problem is you dont get true believers except for those of us who think that government can get too big. You get folks who are committed to environmental reform or folks that are committed to a certain view of securities you get folks that manned the agencies that populate these agencies that have a certain view of the world, most of the Civil Servants underneath the top elected officials tend to skew and a certain direction and tend to have a pretty regulatory skew. Its where you are going to get this deal Regulatory Chamber to develop a career to being in the revelatory agency. You have this sort of problem but then we have in this country, and every country has a legal system, a legal system has to adjudicate disputes, we have a private legal system as well as what we call public legal system. When we talk about criminal law, thats the state prosecuting misconduct and thats of course something under a lot of scrutiny right now. Then there is the civil law which is private parties bring their disputes for the government to resolve. Be they disputes over property, be they disputes over contracts, or be they disputes over what lawyers call tort. Which is the accident law, injury law, its not necessarily predicated on a preexisting contraction relationship, although a lot of cases wouldve once been contractual now fall under tort. The products we buy there is a contractual relationship, a fail that goes into place, you voluntarily buy it but a lot of the tort laws rules govern those those lawsuits. Is this where Class Action Lawsuit comes in . Classaction lawsuit is a variant of the ordinary tort lawsuit and a relatively recent creation. The third part of the book talks about the litigators and this is what the litigators mean, it means these folks who are litigating private disputes, a lot of folks i think reflectively who are skeptical of government power, libertarian or Classical Liberals, say this is much better than the Administrative State. Sometimes it is and sometimes it isnt. Make no mistake, this is still state action. Nobody is a defendant in court by choice. Someone is a defendant in court because another person sues him or her, sues the business, its only the state monopoly on force that enables the plaintiff to recover. If the legal system worked well and was in low cost way to resolve disputes and we just made it basically about accidents, that would be one thing. Its important to realize while this is deeply rooted, the jury trial itself is rooted and ab in the original conception it was a very very narrow area of law that sue for these damages for accidents. Very difficult to get into court, very particularized pleadings, in the early days neither could testify in court so these sorts of cases if you assumed any risk, you werent going to collect, if you are negligent yourself, you werent going to collect. Although these rules got scaledback over time, then we developed the modern plaintiffs bar. Through the use of fee mechanisms. Virtually every other country in the world certainly the European Countries and other than some asian exceptions, if you bring the lawsuit in court and you lose you have to reimburse the other sides fee. But thats not the way our system works. You get in fact if you defend your lawsuit successfully, you can still lose. The first example i use in chapter 7 is of a woman who wanted to renovate the Historic Hotel in california put a lot of money into it, like a friend of a friend or stay there and that individual got a plaintiffs lawyer to file a disability lawsuit, she hadnt gotten everything up to disability code yet. It was basically one of the sort of shakedown lawsuits, given 18,000 they will go aw