We have a very compelling discussion coming up on what is in a way the Fourth Branch of government and that is the Administrative State that has an impact on all of our lives and businesses. The rise of the Administrative State, will the usb a democracy in the future or a nation ruled by the Administrative State . Our panel will come up in a minute. You will get a preview of tonights Tony BlankleyFellowship Award presentation because the moderator of the panel is one of our two new recipients of the blankley fellowship. Is the chief washington correspondent for the hill and hill tv. At thelso a media fellow Hudson Institute in washington, d. C. , where he cohosts the realignment podcast. As whiteusly served house correspondent for the daily caller and the d. C. News foundation. He received his masters degree any in u. S. National Security Policy from georgetown university, and his bachelors in economics from the George Washington university. Saagar has studied extensively across the globe, spending three continents and has visited over 40 countries. Im proud to introduce to you one of our new county blankley fellows and the panel, Saagar Enjeti who will introduce our panel. Please come up. [applause] saagar thank you, everybody. We will take a moment while one of our copanelists gets miced up. It has been something conservatism has been concerned about for a long time, the idea of unelected bureaucrats in washington making decisions about important things that govern orderly lives. Govern our daily lives. Time, people making decisions about our daily lives. He goes back to the 1880s. One of the first regulatory agencies created was the interstate commerce commission, and that was one markets in america were exchanged were changing, there were railroads, goods being exchanged across state lines. Woodrow wilson created the federal reserve, the federal trade commission, once again government inserting itself into the way we conduct commerce with each other. We were a growing country, exchanging goods, and through the Industrial Revolution and all this dynamism, it caused problems and the government started to insert itself. We should all be concerned. That is why we have our illustrious panelists. Peter walton, American Enterprise institute, author of judicial fortitude the last chance to reign in the Administrative State. Shapiros director of constitutional studies at the cato institute. Please welcome our panelists. [applause] want to give both an opportunity to make opening remarks. Peter is interesting, going over arguments in the book. I want to make sure they both give you a framework for the discussion, before we get to my questions and your questions as well. Peter, why dont we start with you, opening remarks to speak about this. Thanks. Im going to outline key arguments in judicial fortitude, that is the book peered the first line in the book is probably the most important. We will lose our democracy unless we can gain control of the agencies of the Administrative State. The book is about the continuous drift toward government by unelected officials in washington, which we call generally the Administrative State, and how we can stop this drift. The drift is happening because, since the new deal, congress has been giving the agencys extraordinary power, the power almost to make laws themselves. But Congress Wont stop on its own doing this, because it is easier for them. They dont have to make the difficult decisions legislation requires. All they have to do is pass to the agency these difficult decisions, and then they are home free and not subject any elections to have to justify decisions that are made. For example, if someone comes up to a congressman and asks why his farm pond, the ponte uses to feed his animals, is getting regulated by the epa, the congressman says, i didnt vote for that, that is this outofcontrol agency. But in fact, the congressman did vote for that by giving that power to regulate farm ponds to the agency. So it is a way congress can be unaccountable, but also avoid a lot of the things we Want Congress to be involved in, making the major decisions for all the legislation they pass. When congress, delegates broad, lawmaking power to administrative agencies, it is violating the separation of powers in the constitution. The constitution vests all power to make laws in congress. Article one of the constitution says Congress Shall have all power to make laws. Gives power to enforce the laws to the executive branch. An article iii gives power to interpret the laws to the judiciary. The framers thought liberty would be endangered if the same theon or group had opportunity both to make the law and to enforce the law. They looked around the world in the late 1700s when they were developing the constitution, and king could make the law and enforce the law, tierney was the result. From their perspective, the most important thing in the constitution was the structure, the separation of powers. And they wanted to maintain that as often and as long as possible. This is exactly the problem we are having today, because the powers are no longer separated if the congress is giving, delegating its Legal Authority to make laws to the executive branch, particularly to these agencies made up of unelected officials. How do wem here is, stop this constant delegation of power to unelected officials who basically all live around washington dc, reflect the priorities of the people around washington dc, and not the American People, who would be ordinarily represented by their Congress People. And those votes by Congress People would be the votes of the American People. But when they handed over to executive agencies, they are giving up the rights of the American People to make these decisions. Power thens of separation of powers was so important to framers that they set up the judiciary to protect it. And this we know from a federalist paper, 70 eight, by alexander hamilton, who called the judiciary the guardians of the constitution. He said judges were given Lifetime Appointments so that they would have the fortitude, the language i use in the book, thefortitude to stand up to elected branches, that is the congress and the president , if those branches were doing things that changed the way the constitution was supposed to work. We are exactly in that situation today, because what we see happening is the system being changed. Instead of Congress Making the laws, they are passing the lawmaking over to the executive branch. This would have appalled our framers, and the thing we have to figure out is how we can stop this from happening. The book argues that the way to restores is to something called the nondelegation doctrine. That sounds legalistic. It is actually very simple. And what it means is that the courts of the power, they were given that power by the constitution. They have the power to declare when an act of congress violates the constitutional structure. From violatingnt the constitution with a policy of some kind. The courts should often stay out of that situation, but when you were talking about changing the constitutional structure, the whole separation of powers structure, as we have today, their congress, the courts, the Supreme Court in particular, should step in and declare a law that delegates power to the executive branch to be unconstitutional. That is possible now in a we havel way, because had two new justices appointed to the Supreme Court, Justice Gorsuch and Justice Cavanaugh kavanaugh. They join three other justices on the Supreme Court who all consider themselves constitutionalists. Theythat means is that believe the constitution, the structure at least of the constitution, should be preserved at all costs. So i think as we approach the next couple of years, when cases will start come to the court where the issue of nondelegation can be considered by the justices, we have a good shot here that the nondelegation doctrine will be restored. What does that do . If a law isngress, declared invalid because it is delegating authority to the executive branch, it forces congress to go back and reconsider that law, and make the Big Decisions in that law itself. That is what this book is about. Ilya, opening remarks and then we will get to questions. I want to talk about two cases from this past term of the Supreme Court that show both sides of the same coin, and the pushback against the Administrative State. I want to thank the steamboat institute, Jennifer Schubert akin and the staff here. This is a Great Organization and im delighted to have the first opportunity to speak to you freshly off the ski slope in my sweaty ski togs. We were both on the program at the rockies,f peter and i, earlier this year, delighted to do that. The two cases i want to mention our gunby and kaiser. Gunby at kaiser is a nondelegation case, only eight justices participating, because it was the first week of the term when Brett Kavanaugh was still answering questions to the senate, and although it was a loss, 53, the court rejected a challenge to a statute, a federal sex offender registry statute, and rejected the idea that it gave too much power to the attorney general to write the regulations. But Justice Gorsuch wrote a blistering dissent, joined in full by john roberts, some people essay is he going wobbly archery angle eating, joined oro or going wobbly triangulating, joined by thomas, alito didnt agree with the reasoning of the liberal justices, and said when there is a majority willing to reconsider not delegation, he might go in on that. Presumably that means in the ist case, when kavanaugh participating, alito might go there and we might have five votes to force congress to hold congress feet to the constitutional fire and tell them you cant pass the truth and beauty active 2019 and let the bureaucracy failing whatever it wants to do. The flipside is the kaiser case and how much deference judges give administrative agencies. On one side is Congress Giving broad discretion to agencies. On the other side is judges not Holding Agencies feet to the fire. Developed ofe judicial deference to agencies, the chevron doctrine, where agencies interpret the statutes that give them power. What was at issue this year, the auer doctrine, agencies reinterpreting their past regulations. The court by a 54 vote did not throw out the auer doctrine, but the majority, the liberals plus john roberts, tried to tighten the standards, said we will only defer to agencies in this context when they show expertise, when they are acting as economists or scientists, not simply as lawyers, agency is trulywhen the issue that the regulation is ambiguous and they could reinterpret it. Other regulations are tightening that scrutiny land we will see what happens in lower courts in the next five years. Gorsuch, blistering, this time concurrent because they throughout the lower court decision, a dissent in all but name, saying we should throw out this doctrine altogether. We will see what happens. There is an appetite on the court for reining in agencies in terms of judges pushing back on them and forcing congress to be more specific and narrower in terms of Authority Agencies are given. The debate around the Administrative State is a debate around power and the role of government, and how conservatives should approach it. A current debate is roiling conservatism. Its as if corporations and the media are against us, that they are trying to force their way of life on the United States. There is no force more powerful than them but the u. S. Defect over the Administrative State to step in on behalf of the citizens and uphold their way of life. I want to get your response on why that may be the wrong tactic . Is thethe real danger American People, if we continue to see this drift of power to administrative agencies, the American People will decide the government is not representing them. That is what this group is saying. It threatensns, the legitimacy of the u. S. Government. And it also threatens the willingness of people to obey the laws. The American People are very law the American People in general obey the laws, and they do that because they believe the 80y have made they believe they have made the laws through the representatives. But if they come to believe the laws are being made by this faceless group of bureaucrats around washington dc, that there is much less reason to obey the and it looks as though it is a case for them not obeying the law because it is an illegitimate law. The government is not legitimately behaving. We have seen this happen in brexit in europe, because what the people date in that case was to vote to withdraw from the eu because the regulations out of brussels, out of the eu government in brussels, were not things they could control in any way. They didnt feel they had a voice in that. We see the same dangers in the is. , and that is why it important for us to stop this drift toward the administrative agencies, and force more of the decisions to be made in congress. Are separate issues here. One is the procedural one, how a lot of regulate social Media Networks or other drivers of a lawe, you could draw up by taking into account First Amendment concerns, interstate commerce, constitutional bells avoidistles, and nondelegation problems, narrowly drawn and all this sort of thing. Doesnt mean it would still be a good law. Im wary when Mark Zuckerberg comes to congress and says, please regulate me, that we give him that. These Big Companies have accountants and lawyers in Compliance Officials that deal with whatever Congress Gives them. The fcc,ather not give congress itself, some other agency, the power to tell us what is a proper amount of evenhanded what have you. Real issue, the font of a lot of public frustration with big everything, government, media, i. T. , corporations or anything, as the serious imbalance of power that has come about vertically and horizontally, meaning so much power has swept into washington from states and localities and we are then watching it be swept to the executive branch, to the Administrative State. This was the focus of ben sasses comments that the comments at the kavanaugh hearing, where he said congress doesnt resolve anything anymore, congress is the place where where we are supposed to hash out policy views or what have you, and everything is being swept to washington and then congress isnt resolving it and pushing it to the administrative agencies ended ultimately gets put into the courts because you can only sue them and that is why there are protests in front of the Supreme Court instead of congress. Im skeptical of new regulatory trends, but that is separate to whether you can draw those kinds of laws in a way that is proper in terms of regard for the Administrative State. Debate so much of this argument, we talked about nondelegation in the Supreme Court, and it seems the Administrative State is almost certainly a function of the judiciary. From this perspective, it matters quite a bit who is in the executive branch. How do you think the Trump Administration has fared in raining in the Administrative State . Now, raining in the Administrative State is difficult, because we just got five, a majority of justices on the Supreme Court who would be inclined to rein in the Administrative State. Lets be clear, the left will not want to see any change. They like what the Administrative State does. Even some people not on the left like what the Administrative State does. We have to recognize our constitution requires that most of these major decisions be made by congress, and to the extent they are made by agencies, that is no longer of a democratic republic we thought we had. That is made up of people who are appointed to be experts and dont pay any attention to and have any desire to Pay Attention to what the American People think. As i am concerned, the really important thing we have to foc