The James Wilson Foundation on Natural Rights and the American Founding

“Judicial Fortitude: The Last Chance to Rein in the Administrative State” James Wilson Podcast with Peter Wallison

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AEI Portraits – (Photo by Jay Westcott/for AEI)

In November 2019, JWI’s Deputy Director Garrett Snedeker and intern Samuel Lucas had a conversation with Peter Wallison, author of the book Judicial Fortitude: The Last Chance to Rein in the Administrative State. Mr. Wallison is a resident scholar at the American Enterprise Institute and former White House Counsel for the Reagan administration.

Below you may find:

A link to Wallison’s book, which is available for purchase from Amazon.

A transcript of the audio recording:

Snedeker: Hello and welcome to the James Wilson Podcast. I’m your host, Garrett Snedeker. Today we’ll be joined by Peter Wallison, author of a new book titled Judicial Fortitude: The Last Chance to Rein in the Administrative State, from Encounter Books. Mr. Wallison is the Arthur F. Berns Fellow in financial policy studies at the American Enterprise Institute. Previously, he served as White House Counsel in the Reagan administration, and then partner in the law firm of Gibson, Dunn & Crutcher. He has written extensively on financial markets deregulation and the 2008 financial crisis, most notably in his 2015 book Hidden in Plain Sight. He holds a BA from Harvard College and a JD from Harvard Law School. Joining me on the podcast as well is Sam Lucas, on of our interns at the James Wilson Institute. Sam, why don’t you start us off?

Lucas: Okay. Well, good morning, Mr. Wallison. Thanks for being here with us. I guess I’ll start it off by simply asking why you decided to write this book, Judicial Fortitude. And looking at that phrase from Hamilton — judicial fortitude — from Federalist 78: what about those words struck you as so relevant to us today? Why didn’t you use something like “legislative dereliction,” instead focusing on the courts rather than Congress? Just tell us a little bit about what your thoughts were behind that.

Wallison: Well, I think this whole thing began for me as I saw so many things that Congress was doing that was handing over to the administrative agencies a lot of the authorities that seemed to be the legislative authorities of Congress. And this began to puzzle me, why this was happening, and it seemed to be happening much more since the New Deal.

Wallison: There was a lot of change that was occurring in the way Congress was behaving with respect to legislation that seemed to me that it was going too far. As I thought it through, as I began to look at various texts about what Congress was doing and about the courts, I saw that what was actually happening here was that Congress had stopped making the key legislative decisions that the Constitution requires. After all, Article I of the Constitution vests in Congress all of the legislative responsibility in the United States, and if Congress was handing that legislative responsibility over to administrative agencies, how was that going to be controlled? And as I thought about it, there was nothing that you could do with Congress because this was something that was easing their burden, and they had a lot of incentives then to continue to do it.

Wallison: The President was not going to do anything to stop this and the President is engaged in so many other things. And, anyway, it gives the President, in a sense, much more power. So, it was very unlikely the President would do anything. And so, I began to think that, well, maybe there was a reason for the courts to step in here. And that of course opened up the whole question of what the courts had been doing since the New Deal to permit this to occur. And as I looked into that, it became clear that the courts had shied away from stepping in to more or less restore the separation of powers so that Congress would continue to only make the laws and the President to enforce the laws. Then I began to read — to go directly to your question about Alexander Hamilton — the Federalist papers. And I came across in 78, Federalist 78, this statement by Alexander Hamilton that seemed so perfect for what was beginning to develop in my mind as a theory for addressing this question. And that is he said that the Framers had given the members of the judiciary lifetime appointments so they would have the fortitude to step in and, in effect, discipline the other branches, which were likely to be much more powerful because they were the elected branches. And I’d never seen this quote before, but what it said to me is that the courts have a responsibility that they have not been addressing, certainly not since the New Deal, and really they haven’t been addressing fully since the Constitution was formed.

Lucas: Well, that’s interesting because you may get some pushback from other conservatives. In that same Federalist paper, No. 78, Hamilton also mentions the courts intervening when there’s irreconcilable variance between statutes and the Constitution, which is along the same lines as his thought in using the phrase “judicial fortitude.” They’re [Supreme Court Justices] the ones who have to intervene. But classically conservative legal scholars might say the judiciary should be mindful of their role and exercise more restraint. How do you answer other conservatives who might give you that counter-argument of judicial restraint?

Wallison: Absolutely, but the judicial restraint idea relates to what the courts do about policy. And, say, when Scalia talked about judicial restraint, what he meant was the courts – even [famous advocate of judicial restraint Justice Felix] Frankfurter – were the beginning of this kind of structure. And that is that the courts should stay out of policy. They should allow Congress to make these rules, make the laws and not interject their own views of policy. That’s what judicial restraint meant. But when you get to the structure of the Constitution that’s a completely different question and that is what Hamilton was addressing in Federalist 78. So, I do cover this issue in the book because it is an obvious question that many conservatives would have. What about this question of the courts stepping in? What about judicial restraint? And I say the courts should be restrained in what they do on questions of policy, but that has very little to do (in fact, nothing to do, in my view) with what they do to sustain the structure of the Constitution, the separation of powers. And that’s what Federalist 78 – at least that language in Federalist 78 – was talking about.

Snedeker:  Peter, Justice [Clarence] Thomas is one of the heroes of your book. Can you tell us a little bit about the dedication that you offered to him in which you float his opinion in DOT v. The Association of American Railroads in 2015: “We have too long abrogated our duty to enforce the separation of powers and we have overseen and sanctioned the growth of an administrative system that finds no comfortable home in our constitutional order.”

Wallison: Yes, I thought that was a brilliant summation of the problem that I was seeing when I was watching what Congress was doing. I should say that one of the areas that I have always been involved with, at least at the American Enterprise Institute, since I left law practice and came here, is financial regulation. In watching what Congress has done in financial regulation, it’s a perfect example of Congress giving up to the administration a lot more power, especially in the Dodd-Frank Act.

Wallison:  And so, when I came across in my research for the book this statement by Justice Thomas, it was clear to me that he got this, he understood this in a way that the other members of the judiciary have not. Now, maybe the others understood it, but it also takes fortitude to step forward and say it. And what is interesting here is that that quote is gradually becoming the policy of (I think) the Supreme Court. And over the years – I might not be around to see it – but over the years, I think the courts now will begin to – the Supreme Court – will begin to adopt this idea that was first articulated fully by Justice Thomas, who is one of my heroes.

Snedeker: When he wrote this in 2015 it may have been prescient, as you say…but do you think there was also a little bit of encouragement that he wanted to give to his colleagues on the Court that might be considered conservative, to show them that indeed this was a quite practicable position to take on the administrative state and its growth?

Wallison: Yeah, I think he was doing that. He’d made many statements before that, he’d had many concurrences in which he would just say in a line or two, “Under other circumstances, I might want to go beyond this and insist on a more aggressive position by the Court.” Those concurrences did not seem to have any effect on his brother Justices. And so, in this case, where it was so obviously pertinent, he wrote out a complete statement, a much longer concurrence, of which that is the key portion. And I was very impressed by this because Justice Thomas has been a brave person on a number of fronts. And he has never, in my judgment, gotten the kind of credit that he deserves for being a leader in thinking on the Court. And when I came across that language, in that particular case, I thought I had to take this out and dedicate the book to that, to Justice Thomas, because he was saying exactly what I have thought is the problem and how the problem can be addressed.

Lucas: Well, in Chapter One, Mr. Wallison, you lay out some of the recent failures of the courts to regulate administrative agencies: Title IX of the Education Act, the Fair Housing Act, the Clean Air Act, and the subsequently broad interpretations those agencies charged with enforcing them take. And you do write about this in your book, about how some might respond that these agencies operate in this flexible way, not to undermine the law, but simply because they need some mechanism to respond to the ever-increasing complexity of our society and our economy. So, how much of the problem of Congress failing to legislate more specifically is a matter of their inability to deal with that complexity, and how much of it is an abdication of their duty to legislate?

Wallison: Well, I guess the question really is: Why do administrative agencies do what they do? Why are they going beyond what I think Congress actually authorized? And, yes, this society is more complex. But, if we are in fact a democratic republic, if, in fact, we are a representative republic, the laws have to be made by people who represent the American public. The administrative agencies cannot take this on themselves just because they see a problem that is not being addressed by Congress. In fact, if they do, then we are on our way to a situation where we no longer have a democratic system. We will, in the future – if these laws are infinitely malleable by the administrative agencies, if these laws allow them (as the courts have) to do many, many things that Congress did not contemplate at the time the laws were passed – then in the future we will be a nation ruled by the officials of these administrative agencies who live all around Washington and don’t really know anything about what the values and ideas and concerns are of the American people throughout this huge country. So, in fact, the first line of the book essentially says we will lose our democracy unless we can gain control of the agencies of the administrative state. And what I point out is that the stakes of this are very high. Because if we look for example, at what has been happening in Great Britain with Brexit, the effort by many Britons to leave the European Union, what we see is that that is driven in substantial part by the fact that they found themselves living under rules that were being made in Brussels that go right into the laws of England, and they feel they have no control over these rules.

Wallison:  And so, what would happen in the United States if people in the United States began to realize that the rules were being made by unelected people? We couldn’t withdraw from the government as the Britons are attempting to do, but it would make the government in the minds of many American people illegitimate. And when a government is illegitimate, then, from the perspective of the people that it’s governing, the people do not voluntarily obey the laws. The reason Americans have always voluntarily obeyed the laws is because they believe that they are responsible, ultimately, for making those laws. But once the laws are being made by a group of appointed officials, I think that sense is gone. And people will begin to say, “Well, why should I have to obey this law? I didn’t have anything to do with it. These laws are being made by people in Washington D.C. They don’t know anything about me or my life or what I cherish or don’t like.” And so that becomes a very, very serious problem unless we address it. And the only way to address it is to make sure that the legislative body, the Congress, represents people and makes laws that are then enforced by these officials. But if what Congress is going to do is simply state general goals, which in fact is what is happening – “I want clean water, I want clean air, I want good education,” things like this – that gives the administrative agencies enormous power to do whatever they think is good for the American public, but things that the American public might not necessarily agree are good for them.

Snedeker: Peter, it sounds like you’re making a moral argument for government by consent as being derived from a natural right of free people in a self-governing republic. Is your concern with the growth of the administrative state the substantive areas in which the administrative state has entered? Or is it the ways in which the administrative state has done its business? What I have in mind on substantive points would be vast swathes of the economy coming under the thumb of the administrative state, or taking on key questions that had ordinarily been left up to the people’s representatives to deliberate. Or, does it more have to do with the formal way in which these agencies issue guidance letters and Dear Colleagues to put their thumb on the scales and avoid the legislative process?

Wallison: It’s really both. The question of guidance is just a more detailed issue coming out of the same problem of administrative agencies taking it upon themselves to make rules for people that Congress has not actually adopted. And so, I think that’s the fundamental problem here and that’s what I’ve been trying to deal with. As far as I can see, the opportunities for the agencies of the administrative state to do these things have been enhanced by the courts rather than confined by the courts. And what I point to in the book is the so-called Chevron case. The Chevron case is very important. It’s not the most important thing. We might talk at some point about the Non-Delegation Doctrine. The most important thing is the Non-Delegation Doctrine. But the next most important thing and the first thing the Court ought to deal with is Chevron because actually Chevron provides authority for these agencies to move beyond what Congress said in specific laws. Because, just to remind everyone what Chevron does, fundamentally it says to the lower courts (this is a direction from the Supreme Court to the lower courts): “Well, when you’re confronted with a case where the agency says it has been given power to do something, you should defer to the agency’s position on this.”

Wallison: That’s entirely wrong. It’s backwards. The purpose of the courts is to interpret the laws. And if the courts are required to defer to agencies’ interpretations, which are obviously going to favor further growth and power on the part of the agencies, well then the courts have given up a major portion of what they are supposed to do under the Constitution. So, the first thing I think that the Supreme Court should deal with is the Chevron case. It should make sure that, in the first instance, laws are interpreted by the courts, not by the agencies. The courts shouldn’t defer to the agencies. The courts should consider what is the best reading of a statute, what is the most sensible reading of a statute before trying to take into account the way the agency wants that statute read. So, if we deal with the Chevron case, we go a long way toward curing the problem, but not all the way.

Snedeker: Yeah, that was a really great overview. We had anticipated discussing Chevron at length and I think I’ll just jump right ahead to it because it’s quite relevant. One of the interesting dimensions to discussing Chevron was its decision coming down in the midst of the Reagan administration in which you served. And maybe you can tell our listeners a little bit about why that decision was initially praised by a number of conservatives. And we’ll have some follow up to that, but we’d just be really interested in hearing how the thought on Chevron has evolved.

Wallison:  Well, I think the Reagan administration, much like the current Trump administration, was quite interested in reducing regulatory control of business, regulatory costs imposed on business, and so the first one of those cases that came along was how to define what a company can do without having to get a permit for producing new unpleasant gaseous emissions. And the EPA said, “Well, if a company has a series of plants all together in the same place, they should be able to close down one and open another as long as the total amount of emissions are not increased. They shouldn’t need to go through the process of getting a permit for each new plant as long as they can manage it that way.”

Wallison: Now, that seemed to me actually to be a very simple idea and probably one that was well within the ability of the regulatory agency, the EPA in this case. But, when it was endorsed by the Supreme Court in the first Chevron case, the people in the Reagan administration were very excited about it because they thought that they were beginning to reduce the total regulatory burden on American business. I don’t think they understood — I’m not sure even the Court understood at the time it made that ruling, which was a 9-0 ruling — the implications of what they were saying. But if you read the case, it’s quite clear that it was an opening for agencies to do quite a lot that they might not otherwise do. If — if — they were all appointed by a conservative President, that would probably be fine.

Wallison: And if a conservative President really made sure that their rules did not go beyond what Congress had authorized, that would be fine. But that’s not the way our system works. There will be liberal presidents coming into power. And also Presidents who don’t care about the regulations, just leaving the agencies free to do what they would naturally do, which is to extend their power by adding to the things that they are controlling.

Wallison: So, I think that the Reagan people were happy about it. In fact, I had a very interesting discussion with someone whose name I won’t mention, but someone who was in the Reagan administration at that time, just about two or three years ago, when I was saying, “You know, this Chevron case is terrible!” We were having lunch together. I say, “This Chevron case is really terrible. This is one of the sources of the problem.” And he says, “What?! I was very happy about the Chevron case. Why are you saying this?” And then I had to explain why. And I think he now, as I see him from time to time, I think he now understands why the Chevron case, although the outcome was good from the Reagan administration’s point of view, it was not good from the standpoint of what it empowered the agencies to do in the future.

Snedeker: And it sounds like your friend is tracking the consensus on the legal right. I’d be derelict in my duty, though, if I didn’t mention that a mutual friend of ours, [AEI Resident Scholar and Director of the C. Boyden Gray Center for the Study of the Administrative State] Adam White, who once described himself as anti-Chevron, now describes himself as anti-anti-Chevron. If we can follow that double negative, what is the fear among those on the legal right at empowering Congress to take on its classical duties again from the administrative state? It seems like we’ve almost infantilized Congress to take on those duties that it classically has, and because Congress has been the handmaiden in its own abdication of these responsibilities to the administrative state, a wholesale reintegration of those responsibilities may be a little too much for Congress to handle (at least at first).

Wallison: Sure. And, first of all, many conservatives should be quite happy if Congress can’t do a lot of things because it can’t form the coalition necessary to take these actions. That’s fine from my point of view, and I think it should be fine from the standpoint of most conservatives because they are representing the people. The people are split on a question, and for that reason Congress cannot form an idea to take some kind of action. That’s not a bad thing. It’s when the people are united about when something should be done that Congress is able to act and act only to a certain degree. They don’t hand over all their power to an agency, but just the power that the people want — when they’re all together in their representative capacity — that the people want actually to give to an agency. So, from my perspective, I don’t really understand the concern of people about Congress not acting. I think conservatives should be more concerned about a Congress that does act. But, if Congress does act in areas that conservatives would not like – maybe imposing more regulation or restricting certain kinds of business activities or anything like that – if Congress does act, that’s what the American people have wanted, and that’s what ultimately our representative government is about.

Wallison: So, I don’t know. I hate to disagree with Adam White, whose intelligence and insight I admire tremendously. But if what he’s saying is that it would be a good idea to allow agencies to go somewhat beyond what Congress has actually authorized in order to deal with the problems of the country that Congress itself has not actually dealt with, I don’t agree with that as a long-term process because ultimately what that comes to is the agencies making the laws for the American people. And what that comes to is, ultimately, a sense of illegitimacy for the laws and real problems for our government.

Snedeker: Sure. And I certainly would not want to speak with any kind of final authority on Adam’s views. But I thought it was an interesting wrinkle as we now come to the point where we have a good number of cases that the court will take up and we’ll get into that, I think, towards the close of our interview. But it certainly bears watching. Sam?

Lucas: Sure. Okay, well, putting aside the courts for just a moment… You write in Chapter Three that the development of political parties changed the dynamic between the executive and the legislative branches in a way the Framers did not foresee. We now have a situation in which neither branch holds the other accountable when they are both controlled by the same party. What connection, Mr. Wallison, do you see between the political polarization that we’re talking about and the need for the defense of institutional interests within the branches themselves? Is there any way to restore a healthy, balanced competition between the legislative and executive? Or, with the permanency of political parties today, does that seem too far gone?

Wallison: The problem as I see it, and what I was really discussing in that situation, was that Congress not only has been giving away its powers to the administrative agencies, because that’s the easy thing for them to do. They don’t have the sense that they have to make these decisions if they can get credit from their constituents for simply turning over these powers as a goal to administrative agencies. That’s a problem that we have to solve in Congress in some way with the idea of the Non-Delegation Doctrine, which I think we will get to. But the rest of the issue is that, when the agencies go ahead with actions that Congress has authorized and the Congress is not concerned about the agencies going further, that can enhance or significantly increase the problems that I see when the Presidency and the Congress are controlled by the same party, and, as I say, something that, actually, the Framers had not considered. The problem that I see with Congress giving away its powers are multiplied, because when a Democratic President and a Democratic Congress are together, what we’ve seen, at least in the last 40 or 50 years, is that the Congress will hand the President tremendous amounts of authority because that’s an easy way for them to get a lot of the things done that they want done in this country. And if we are so unfortunate in the upcoming election that it turns out that the Democrats control both the Senate and the House and the Presidency, we’ll see that a lot of the things that the progressive group within the Democratic Party want will be approved by Congress and given to the Democratic President to do, which is what they did a lot when Lyndon Johnson was the President and the Democrats controlled Congress, they just handed over huge amounts of power.

Wallison: That is never retracted again. When the Republicans come into office, then they can never undo what the Democrats have done. In theory, they could. But what happens with any regulation is that around the regulation, once it is promulgated, constituencies develop. And those constituencies will make it very hard to pull back, and we saw that happen just with Obamacare. The Republican’s said, “Well, we’ll just repeal this thing when we get in, when we get the power to do it.” No, they couldn’t repeal it because all kinds of state governors who were Republicans had been using Obamacare in ways that helped them politically and they came in to talk to Congress and say, “No, you can’t do that. I’m not going to be in favor of something like that.” And so, it became very difficult for the party itself to develop the idea of repealing something that they thought was a bad idea that a Democratic Congress and a Democratic President had signed. So, that’s the ultimate problem with what happens when Congress starts handing over power, and the fact that political parties now exist in way that they hadn’t existed before just enhances that likelihood. Once that’s done, it’s kind of a ratchet effect and it’s never later withdrawn, effectively.

Snedeker: Yeah, you talk about how in the opening months of the Trump administration, through use of the Congressional Review Act, the Trump administration was able to cleave about 25% of the regulations that were passed in previous years, but that is probably the high water mark of anything we can expect. And every year on average 3,000 new regulations come out of these agencies. How do you grapple with the magnitude of what is coming out of these agencies? Is it something that you can only really measure in dollars and cents or can we as political scientists try and put in perspective the kinds of questions that these agencies are settling that had normally been the type of questions that went through legislative deliberation?

Wallison: First of all, the 3,000 number is a minimum. It’s not an average.

Snedeker: [laughter] Okay! We’ve actually been underestimating! [laughter]

Wallison: [laughter] And, in fact, even in the Trump administration, the number of regulations and rules that have come out and probably exceeded the 3,000 — they certainly did in 2017 and they probably also did in 2018, although I haven’t seen the latest numbers — but I guess your question is how do we deal with something like this?

Snedeker: Or, how do we put in perspective that just so many more questions are being settled at the administrative level as opposed to through the legislative process?

Wallison: Well, I guess my view is that everything that is settled through the administrative agencies is good as long as Congress has actually given the agencies the power to do it, and my concern is that that is not uniformly what is happening. More power is going to them than, if the American people were really consulted on these powers, would otherwise occur.

Wallison: But the only way to deal with this, it seems to me, is for the courts to step in, because there isn’t any other overriding way to address this problem. And that’s why I talk in the book so much about the so-called non-delegation power. The Non-Delegation Doctrine is really a court statement to the Congress that you cannot give legislative authority to an administrative agency. What is legislative authority? Nobody knows. I certainly don’t know. Over time that idea has to be developed. But it is central to our separation of powers. If we want to change the Constitution so Congress doesn’t make the laws anymore, we can certainly do that. But the way our Constitution is structured today is that Congress has all the authority to make the laws.

Wallison: We don’t know what that means, actually. And the courts in 250 years have not made it clear what that means. But what we do know is that the courts can modify this or change this or stop this by using the Non-Delegation Doctrine. Now what is it? The Non-Delegation Doctrine simply invokes the Constitution’s first principle, and that is that all legislative power is in the hands of Congress. As long as that is true, then what the courts have to do, and especially the Supreme Court, is to decide what legislative power actually is. Now there was a case in 1823, which I talk about in the book, Wayman v. …well…

SnedekerSouthard?

Wallison: Right! Wayman v. Southard! And in that case Chief Justice Marshall dealt with that question. And what he said was: Congress can authorize the agencies to do all kinds of things. That’s fine. They are allowed to delegate to the agencies (the administration and regulations and things like that out of the statutes that Congress adopts), but Congress must make the “important” decisions. What does that mean? It’s circular. We don’t know, but the courts have never attempted to, what I call in the book, create a “jurisprudence of non-delegation.” And what do I mean by that? Let’s take as an example the question of unreasonable searches and seizures. Now, no one knew what that meant, those words: “the people shall be secure from unreasonable searches and seizures.” But the courts have dealt with cases, one after another, a set of facts, one after another, and said, “No, this can be done by the police” and “This can’t be done by the police.” And we’ve come to a point now where a police commander can line up his patrolmen in front of him and say, “All right, guys, when you stop a car this is what you can do and this is what you can’t do.”

Wallison: That’s a jurisprudence of that question. The same thing has to be done over time by the Supreme Court and the lower courts to define what is actually a required legislative act by Congress and what is suitable for Congress to hand over to administrative agencies, those things that are “unimportant,” as Chief Justice Marshall said in 1823. I know it’s tough, and I wish I had an answer. But I don’t have an answer. The only answer will come from the Supreme Court. I believe, and I think I say this in the book, one of the reasons I think the courts have shied away from this is because of the intellectual difficulty, the conceptual difficulty, of making a decision like this. What is legislation? What does it consist of? Why is it different from an administrative act?

Wallison:  It hasn’t been done. But if we are to make our separation of powers real in the future (and for reasons I’ve stated before, we have to in order to make sure the American people believe that their views are being taken into account), then we have to have these decisions made. First, by the Court: what is a legislative act? And, then, make sure that those legislative decisions are not handed over to an administrative agency. That’s, as far as I’m concerned, the only way that we can really deal with this question.

Snedeker: Well, the [application of the] Non-Delegation Doctrine seems to have another — in addition to Justice Thomas — have another critic, a strong critic, in Justice Gorsuch. In a number of his opinions and then in his recent book, A Republic if You Can Keep It, he articulates a vision of how government by consent is wrapped up in the very notion of the separation of powers as far as he understands it (as a Lockean conception).

Snedeker: But you can even distill it further to be, as our founder and director Hadley Arkes says, a distillation of the Golden Rule, insofar as you ought not make any law that you yourself would not be governed under. So, the task for our legislators would be to craft laws that they themselves would reasonably and justifiably see fit to have full force brought over them if they were guilty of violating any of its statutes. And so, maybe the question is: do we have a class of legislators that’s willing to put down laws that they themselves would live under? Or might we have a political class that is not up to the challenge?

Wallison: First of all, I disagree with the idea that we should have any control over what Congress actually does. I think that they will not adopt laws that they themselves would not want to live under. So, that I don’t think we have to worry about. The problem is that Congress doesn’t want to adopt laws. They don’t want to make the very tough decisions. What they want to do is hand over those decisions to administrative agencies and then when their constituents come to them to complain, they say, “Oh, I didn’t vote for that. That’s the administrative agency and we’ll just have to do something to take control of that agency.” Sure. That’s too easy, and I’m afraid that’s where Congress has come to. So, my view is that we should leave a lot of this to Congress to decide and some people in Congress may not want to live under some of the laws that are passed. Undoubtedly, there will be a minority in each case. And if there isn’t a minority, then you have to wonder whether this is a real law or not, or whether it’s just a goal that is being set because there ought to be people who oppose some of the things that Congress wants to do. But, when it can come together and make a law than it is doing and responding, in that sense, to what the people want, then we have a real legislative process going on.

Lucas: Well, in the book, Mr. Wallison, you also talk about the near future. So, the book came out in early 2019, correct? And here we are at the end of 2019 and the Supreme Court is back in session. From your perspective, do you see any key cases on the Supreme Court’s docket that have a real potential to reign in the administrative state? Do you see any cases, in particular, that have a potential to strike at the heart of the precedents we’ve mentioned so far, such as Chevron deference and its cousin, Auer deference?

Wallison: I don’t see any on the docket for the coming year. Now, that doesn’t mean that things can’t come up during the course of this term that raise these issues. One in the past term was the so-called Gundy case, that many of us looked to as a way for the court to deal with it, to deal with this whole problem. The Gundy case was a very good non-delegation case because it gave, it appeared to give, the Attorney General tremendous amount of authority to create a law for people and then prosecute them under it, which would be exactly the thing that the government should not be able to do. Congress should make the law and the administration, the Attorney General or the President or someone should enforce that law. Unfortunately, the case was argued before Justice Kavanaugh was confirmed (or had taken his oath, at least).

Wallison: And so, there were only a maximum of four Justices on the court at that time who seemed to be willing to take on the non-delegation question. And so, I won’t go into all the details of it, but it was not done. Turned out that the Gundy case came out in a different way entirely because they could not find a majority to do what I think many of us hoped they would do. Now, I’m told, I have not ascertained this from myself, but I’m told that Gundy now has asked for a rehearing of his case now that Kavanaugh is seated, so there would be a full court. Whether the court will agree to that is questionable. And I’m sure there’s a lot of opposition on the part of the liberal members of the Court. They won that case. They succeeded in pushing that aside and they don’t want it to come up again. So, very high politics, I think, are probably being played within the conferences of the Justices at this point to see if they can figure a way to get back and look at the Gundy case again. I don’t know whether they will succeed, but if they do there will be a lot of bitterness on the part of the liberal members of the court and that might show in the ultimate decision. But, other cases will come along. I have to — it’s not as though I have a lot of time left — but I have to be optimistic that lawyers all over this country see that and I hope they read my book. They will see that there is an opportunity to bring a non-delegation case before the Supreme Court and so they will start talking with clients about whether those clients would like to take this case because they think it might go all the way to the Supreme Court because it raises these very important issues.

Wallison: That’s how the system works. The court signals that it is ready to take a step – it might not have a full majority to do it, but it looks as though there might be – and so lawyers who are ambitious and interested in making an important point will bring these cases up through the process until they get to the court. In fact, I know of one case right now that is not at the court, but will probably get to the court, and that has to do with the power of the President to impose tariffs. We are living at a time now where the President is imposing a lot of tariffs. Whenever he wants to impose a tariff, he does it. Where does he get that authority when the constitution says very clearly that Congress has the power to regulate commerce with foreign nations?

Wallison: Hmm? How can the president just do this? Well, the President’s been given this kind of authority by Congress. A fellow I know — a friend of mine, a very, very brilliant lawyer — he’s bringing along a case representing the steel industry which is complaining about the President’s steel tariffs. He’s making a completely non-delegation argument even though he himself, personally, is a liberal, but he’s been retained by his clients to attack this and impose and interject the Non-Delegation Doctrine. That case is now at an appellate court within the tariff review area that’s separate from the general cases and after it goes through the appellate process there (he will probably lose because there are cases that are against him that were not decided on a non-delegation basis), he will probably seek a review by the Supreme Court.

Wallison: That will be another big non-delegation case, but I’m quite confident that there will be many more coming along because of what I said before about lawyers who get the signal. They realize there’s an opportunity here. They have a client who’s willing to pay the cost for this, or there’s some group that’s willing to pay the costs financing this case, and they will bring it along through the process. There will be many such cases, if the court can provide a signal that it’s ready to take on the non-delegation issue.

Snedeker: Well, the next time one of those cases is taken, the Justices (as well as the lawyers who argue those cases) would be well-served reading towards the end of your book a nice analysis of some of the predominant arguments on the left and the right in support of the administrative state. First, a strong defense of the current regime from Jillian Metzger of Harvard. Then, you have Adrian Vermeule from Harvard offering a defense of the administrative state from the right. Can you compare and contrast?

Wallison: [referring to Vermeule] From the left? [laughter]

Snedeker: [laughter] Well, Vermeule would probably consider himself more on the right, but yes, on this question, he’s certainly not part of a consensus on the legal right. But, those arguments are certainly going to be in play, and I think our listeners would be very interested in your thoughts.

Wallison: Yeah. Well, in reading the justifications that have been advanced by the Vermeules and Metzgers and so forth, I don’t see anything in those justifications that makes a lot of sense to me because they don’t seem to understand that the powers that are exercised by the administrative agencies come from somewhere.

Wallison: And their justification seems to be: if Congress passed a law that an administrative agency can use in some original and useful way, even though there is some doubt about whether the law was intended to cover this area, that’s all that is necessary. They have to have a colorable claim that they have been authorized to do this. It’s kind of like a Chevron justification. But the idea that the separation of powers really has no more meaning than that, that Congress can authorize an administrative agency to take actions of any kind, just in general, it makes a mockery (it seems to me) of our separation of powers. I’ve read their arguments and I still – maybe it’s deficiency on my part – but I don’t see that they take account of the separation of powers in the Constitution.

Wallison: In fact, there are some statements by Vermeule that seem to be simply this: if these agencies could not be doing anything if they weren’t authorized by Congress, and since they are doing something, then they must have authorization from Congress. That to me, doesn’t take account at all of what the separation of powers was intended to do. Let’s talk just for a minute, because we haven’t had a chance to do that, of why we have a separation of powers.

Snedeker: Sure.

Wallison:  The reason that the Framers adopted a separation of powers is that their view was that if the same group or the same person has both the power to make a law and the power to enforce it, that is a great danger to the liberty of the people. And the liberty of the people was the guiding principle of the Framers. So, when we talk about administrative agencies having essentially the power to both make the law and enforce it, we’re violating the whole reason for the separation of powers in our Constitution. And I read Metzger, I read Vermeule, I read many other people, and I don’t see that they really pay any attention to what the purpose of the separation of powers was.

Snedeker: Well, I think on that cheery note we’re going to have to leave you. But, for our listeners, the book is Judicial Fortitude: The Last Chance to Rein in the Administrative State by Peter Wallison. And we’re just so pleased to have you with us. Thank you so much.

Wallison:  It was a pleasure. Thank you. Very good questions. You’ve obviously done some deep thinking about this issue.

Snedeker: Great.

Wallison:  Thanks a lot for your time.

Snedeker:  I hope to see you again soon.

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Law and liberty cannot rationally become the objects of our love, unless they first become the objects of our knowledge.
— James Wilson, Lectures on Law, 1790