Transcripts For CSPAN3 Administrative State Discussion At St

Next, a discussion on congress, courts and the socalled Administrative State at the annual Steamboat Springs Freedom Conference in colorado. All right. We are switching gears. 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 such an impact on all of our lives and our businesses. The rise of the Administrative State, will the u. S. Be a democracy in the future or a nation ruled by the Administrative State . Our panel is going to come up in just a minute. Youre going to get a preview of tonights Tony Blankley Fellowship Award presentation because the moderator of the panel is one of our two new recipients of the blankley fellowship. He is the chief washington correspondent for the hill and hill tv. He is also a media fellow at the Hudson Institute in washington, d. C. , where he cohosts the realignment podcast. He previously served as White House Correspondent for the daily caller and Foreign Affairs correspondent for the d. C. News foundation. He received his masters degree in u. S. National Security Policy from Georgetown University and his bachelors in economics from the George Washington university. Sauger has studied extensively across the globe spanning three continents and has visited over 40 countries. Im so proud to introduce one of our new Tony Blankley recipients. Gentlemen, please come on up. I wonder whos watching me now who, the irs i always feel like somebody is watching me and i have no privacy i always feel like somebody is watching me tell me is it just a dream i always feel like somebody is watching me thank you, everybody. Were just going to take a moment while one of our copanelists gets himself this is a decent time for just a little bit of background on the important discussion i think were having here today. Its about the Administrative State. Its been something that conservatism has been concerned about for a long time. The idea of unelected bureaucrats in washington who are making decisions about very important things that govern our daily lives. It goes back to the 1880s. One of the first regulatory agencies was the interstate commerce commission. That was when the markets were changing. There were railroads and goods being exchanged across state lines. How does the federal government concern itself from them with that . Then we had Woodrow Wilson who created the federal trade commission. This was government inserting itself into the way that we conduct commerce with that. We were a growing country. We were exchanging goods and through the industrial revolution, it caused a lot of problems the government started to insert itself into. We should all be concerned about that. Thats why we have two of our panelists here. We have peter wallison, financial policy studies at the American Enterprise institute. Hes an author. I think we have a bit of a preview on what his position is going to be. And then we also have ilya shapiro. Please welcome our panelists. I want to give both an opportunity to make opening remarks. Peter is interested in going over some of the arguments within the book. I want him to make sure they both can give you a framework for the discussion before we get to my questions and then well get to your questions as well. Peter, why dont we start with you . Opening remarks, a couple minutes to speak about this. Thank you very much, saagar. Im going to try to outrhyme the key arguments in judicial fortitude, the book. The first line is probably the most important. It is we will lose our democracy unless we can gain control of the agencies of the Administrative State. So 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 agencies power almost to make laws themselves. The Congress Wont stop this on its own. Its easier for them. They dont have to make the difficult decisions that legislation requires. All they have to do is pass to the agency the difficult decisions and then they are home free and not subject in elections to having to justify the kinds of decisions made. If someone comes up to a congressman and asks why his farm pond, a pond he uses to feed his animals is getting regulated by the epa, the congressman says well, i didnt vote for that. Thats this out of control agency. But. The congressman did vote for that by giving that power to regulate farm ponds to the agency. So its a way that congress can be unaccountable, but also to avoid a lot of the things that we Want Congress to be involved in, and that is making the major decisions for all the legislation that they pass. Now, even more important, when Congress Delegates broad lawmaking type power to administrative agencies, it is violating the separation of powers in the constitution. The constitution vests all power to make laws in congress, that is the article one of the constitution says Congress Shall have all power to make laws. Article two gives the power to enforce the laws to the executive branch. And finally, article 3 gives the judicial power, the power to interpret the laws to the judiciary. The framers thought that liberty would be endangered if the same person or group had the 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 what they saw was that where a king could make the law and enforce the law, tyranny was the result. And so from their perspective, the most important thing in the constitution was the structure, the separation of the powers. And they wanted to maintain that as often and as long as possible. This is exactly the problem that were having today. Because the powers are no longer separated. If congress is giving delegating, we say, delegating its Legal Authority to make laws to the executive branch and particularly to these agencies, made up of unelected officials. So the problem here is how do we stop this constant delegation of power to unelected officials who all live basically all live around washington d. C. , reflect the priorities of the people in and around washington d. C. , 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 hand it over to executive agencies, theyre giving up the rights of the American People to make these decisions. So the separation of powers was so important to the framers that they set up the judiciary to protect it. And this we know from a federalist paper, 78 by alexander ham iilton who called the judiciary the guardians of the constitution, and he said the judges were given Lifetime Appointments so that they would have the fortitude, thats the language that i use in the book, the fortitude to stand up to the 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. And again, were exactly in that situation today because what we see happening is the system is being changed. Instead of Congress Making the laws, theyre passing the law making over to the executive branch. So 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 the way to stop this from happening is to restore something called the nondelegation doctrine. That sounds very legalistic. Its actually fairly simple, and what it means is that the courts have 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. This is different from violating the constitution with a policy of some kind. The courts should often stay out of that situation, but when youre talking about changing the constitutional structure, that is the whole separation of power structure as we have today, there 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 practical way, because fortunately we have had two new justices appointed to the Supreme Court. Justice gorsuch and justice kavanaugh. They joined three other justices in the Supreme Court who all declare themselves, consider themselves to be constitutionalists, and what that really means is that they believe that the constitution, the structure at least of the constitution, should be preserved at all costs. So i think as we approach the next couple years, when cases come to the court where the issue of nondelegation can be considered by the justices, i think we have a really good shot here that the nondelegation doctrine will be restored, and what does that do . It forces congress if a law is 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. Thats what this book is about. Thank you, peter. Ilya, i want you to be able to get your points in here. Opening remarks and then well get to questions. Sure. And thats a good segway. I want to talk about two cases from this past term at the Supreme Court that kind of show both sides of the same coin and the pushback against the Administrative State. First i want to thank the steam boat institute jennifer schubertakin. Im glad i get to speak to you in not freshly off the ski slope, and actually, the second time in i think six months that peter and i are on this sharing a stage on this topic in colorado. We were both on the program at the Leadership Program at the rockies earlier this year. Im delighted to do that. So the two cases i want to mention picking up where peter left off are gundy and kaiser. Gundy is the nondelegation case. There are only eight justices. It was argued the first week of the term when Brett Kavanaugh was still answering questions from the senate, and although it was technically a loss, that is the court by a vote of 5 to 3 rejected the challenge to a particular statute that this was a federal sex offender registry statute, rejected that it delegated too much power to the attorney general to write the regulations. Justice gorsuch wrote a blistering dissent joined in full by john roberts, some people say is he going wobbly or triangulating in the middle. Joined in full by robert and tom mas, and alito who gave his vote to the majority wrote separately and didnt agree with the reasoning of the liberal justices. To say in some future case when theres a less freakish kind of law and when theres a majority willing to consider nondelegation, he might go in on that. That means in the next case when kavanaugh is participating, alito might go over there. We might have five votes to hold congresss feet to the constitutional fire and tell it you cant pass the truth, goodness, and beauty act and let the bu rareaucracy fill in what wants to do. One side is Congress Giving broad discretion to agencies. On the other side is judges not hold agencys feet to the fire. Doctrines developed judicial deference. Agencies interpret the statute that give them power and what was at issue this year, agencies reinterpreting their own past regulations. Now, the court by a vote of 5 to 4 did not throw out that doctrine. But the majority, the liberals plus john roberts tried to tighten the standards and said we will only defer to agencies in this context when they actually show expertise, when theyre acting as economists or scientists, not simply as lawyers. When the issue is truly when the regulation is ambiguous. Certain other considerations really tightening the scrutiny. Well see what happens in the lower courts in the next 5 to 10 years. Gorsuch with the lead blistering this time concurrence because they threw out the Lower Court Decision anyway, but dissent in all but name saying yeah, we ought to throw out this doctrine altogether. Well see what happens. Theres an appetite on the court for reigning in agencies both in terms of judges pushing back on them, and forcing congress to be more specific and narrower in terms of the authority that agencies are given. I want to throw a provocative question to this. I think the debate around the Administrative State is a debate about power and the role of government itself, and how conservatives should approach it. Theres a current debate thats ruling conservatism right now. It says that if corporations and the media are against us, that they are trying to force their way of life upon the United States. That there is no force more powerful than them. But the United States government and but de facto the Administrative State to step in on their behalf on behalf of the citizens and uphold their way of life. I want to get your take on why that might be the wrong tactic to take. The real danger to my mind is the American People, if we continue to see this drift of power to the administrative agencies, the American People will eventually decide that the government is not really representing them. Thats kind of what these what this group is saying. If that happens, it threatens the legitimacy of the u. S. Government. And it also it also threatens the willingness of people to obey the laws. The American People are very lawobserving, except what we read in the ynewspapers from tie to time. But the American People in general obey the laws because they believe they have made the laws through their representatives. However if they come to believe the laws are being made by faceless bureaucrats around wa district of columbia, theres much less reason to obey the law, and it looks as though theres a case for them not obeying the law, because its an illegitimate law. The government is not legitimately behaving. Weve seen this happen in brexit in europe. What the bridged people did in that case was to vote to withdraw from the eu because the regulations that were coming out of the brussels, out of the eus government in brussels were not things they could control. They didnt feel they had a voice in that. So we see the same dangers occurring here in the United States. And thats why i think its so important for us to stop this drift toward the administrative agencies and force more of the decisions to be made in congress. Ilya . There are separate issues here. One is the procedural one about how such a law to further regulate social Media Networks or google or other drivers of culture or how thats done. You could draw up a law, but take into account First Amendment concerns, making sure it properly affects interstate commerce. The constitutional bells and whistles, and avoid nondelegation problems and narrowly draw it and this sort of thing. It doesnt mean its still a good law. Im wary when Mark Zuckerberg comes to congress and says please regulate me that we give him that. Because these big established companies have lawyers and accountants and Compliance Officials that can deal with whatever congress is going to give them. Id rather not give whoever, whether its the fcc, congress itself, some other agency the power to tell us whats a proper amount of evenhanded commentary, or what have you. The real issue, and this is, i think, the font of a lot of the publics frustration with big everything, whether it be government, media, i. T. , corporations, or anything else, is that the serious imbalance of power thats come about both vertically and horizontally. So much power has swept into washington from states and localities and within washington, it swept to theed Administrative State. This was the source of the comments by ben sass. He talked about the dynamic where by congress doesnt resolve anything anymore. The legislature is where we clash out policy views but everything is being in this large pluralistic society, everything is being swept to washington and then congress isnt resolving it. Its pushing it to the administrative agencies. And it gets pushed into the court. You cant elect administrative people. You can only sue them. Anyway, im skeptical of new regulatory trends, but i think thats separate from whether you can draw those kind of laws good or bad in a way that is proper in terms of the regard for the Administrative State. So much of this seems to concentrate, some of this is debate argument. We talked about nondelegation and about the