[inaudible conversations] called order. Call to order. Good morning, everyone. I decided this year to bridge the opening comets, over 50 minutes and another 15 minutes worth of things to say, a leased out right now. I usually do. By theht way im trevor burrus, editorinchief of the a Research Fellow at cato and the robert sinners constitutional studiess and welcome to the institute were not in her usual environment in the auditorium, you can peek and there which with cato branded hardhats by the way but if you could peak in there its going t to be turned into a much more optimized for web streamingnt service which is most of our audience to actually, welcoming our audience on web, welcoming our audience on cspan, welcoming to you here for 21st annual Constitution Day now 21 years ago when i was waiting tables and playing in metal bands and backpacking europe, roger pallotta and James Swanson and i gritted this event and the review which is my fourth went editing. Ive worked on 12. Of who did very bad checking i know and that was my first Constitution Day and this is my 12th. Hat i decided im going to change so respect to james but we are going to change it. For the Supreme Court term it is a quick endeavor. I think i remember some of august but not most of it. I did get through all the star wars movies i put them on the background at three in the morning so i got through them multiple times. The framers and constitution decided to sign the document a constitution at the time and of course until it was ratified by the people and came into place in 1789. The constitution has many detractors with regards to antiquated by some without data concepts and of course at cato with the version of the constitution which is freedom and individual liberty through limited government. Now this of course is quite controversial if you look one of the things i was thinking about this year is whether or not in the course of a week when the Supreme Court decided a case about guns and a case about abortion you might have heard about Climate Change there were a lot of people who said here we go republican appointed justices. We did do Something Different and they said no so they enforced that. And we are turning the agency power to congress. These are pro democratic positions but its interesting to ask now whether or not it will be perceived as legitimate by the American Public which is what i write about. There are so many things here i first want to thank roger who saved me from when i was an intern and who gave me many over the years its being produced into an apple show. Of course i would like to thank all of my colleagues for his edits on the piece and all the associates which i dont have the time for so i rely on them. The managing editor of the review did an excellent job stepping up and who came in as the associate and never worked on the review before and had to learn all that stuff now we have to thank the Excellent Team second to none and the staff who use to work on this event. I do not want to hear about it. Its very important. Im sure there are some at the Conference Center you probably saw theres other ones down there and it will come back for the panels. When he submitted the article his footnotes were all wrong the constitutional scholar became the lecturer. For the Supreme Court review for three whole months. It will show off now to the easygoing and fun and he also contributed to the review but you can duke it out i would like to invite the next panel up and i will be back to moderate panel three at the end of the day. [applause] they gave an opportunity. Welcome. My name is william but thats already been established. I work at the Cato Institute center for constitutional studies. For the first panel we will be discussing cases from the last term that relates to constitutional structure so this panel will reflect a recurring theme throughout the day. I will introduce each of the speakers. Jonathan adler. We will open up to some back and forth and audience qanda. Starting with jonathan, he is the memorial professor of law at the University School of law who like all of our panelists has a weight among the top five Administrative Law scholars. I did some poking around and learned that there is an amazing outdoor theater and that is because hes adamant about family movie nights. Thats pretty cool. He will present a chapter on West Virginia the epa. It is a pleasure to be here as always it is fun to be back at cato and for Constitution Day to see roger the constitutional questions when i was a College Student in the basement of the house in my summer. A fun case that confronts the active some of us have learned to know and love very deeply or at least have a love and hate relationship with. A quick overview and summary i have mixed feelings about this case. I think as a matter of law it is the correct result in that it was asserting authority that congress had never delegated. On the other hand, the power of the epa wanted to exercise is as far as Climate Policies go certainly better than a lot of the alternatives the epa has been delegated or arguably has been delegated the authority to do. The court reached the result of the case but its not clear the court should have heard the case. Its clear the arguments were interesting but never had much substance to them but the case should have been before the anyway and i will say a little bit more about that. The opinions are underwhelming. None of the opinions in the case take seriously the structure and operation of the act. The majority fails to do the heavy lifting that was done in some of the amicus briefs to look at how the Clean Air Act operates. And as a consequence the dissent gets to pretend by focusing on a single word which was an interesting poster to see in the case in the opinion given. Its also a missed opportunity to bring clarity to an important underlining question how do we understand the delegation of power through agencies and determine what power it is agencies have been delegated by and this is an area the court has given and made gestures but has not really given the degree of clarity it could have and this case presented in my view at least a perfect opportunity to do so. Let me give a little bit of background and then of course the paper in more detail. For those of you that have not spent years reading i want to help you make sense of what the law or the case was about. In the generality it was about the scope of the power to regulate the Greenhouse Gas emissions and what epa could do when setting the standards and performance the power plants must meet in terms of the Greenhouse Gas emissions. There was a debate whether they could be considered pollutants under the Clean Air Act and that was resolved definitively i would argue erroneously but nonetheless in massachusetts versus epa and the court recognized that while Greenhouse Gases are for the purpose assuming pollutants for the Clean Air Act that it doesnt give the authority to alter the Clean Air Act or its operation to make it operate better because Greenhouse Gases are nontraditional and are not committed in the volumes and the effects they have its not the way one would try to reduce. Its long before this case that just because there are better ways to deal with Greenhouse Gases doesnt give the epa the authority to stretch and rewrite and repurpose provisions of the Clean Air Act and epa cases the Supreme Court made that clear you could go back and to tell you exactly what the court is going to do here. Section 111 is the provision that allows the epa to set the standards of performance for specific categories of sources of air pollutants and what the epa does is determine what is the best system of the mission reduction thats been adequately demonstrated considering a few other factors and then that is the standard that the categories of the source are required in terms of their emissions. When it comes to Greenhouse Gases out of coalfired power plants, if you do what you do traditionally under section 111 and other provisions of the act that anticipated technologybased or methodological based standards you do heat rate improvements or Something Like that and dont get much in the way of reductions. Thats the way it is because the other things you might want to do like Carbon Capture its hard to believe at this point its been demonstrated which is one of the other requirements. And that was true with of the clean power plant. Its understood as its always been understood as since the language was written in the act. The system of Emission Reduction is broad and if we are talking about power plants, we are talking about facilities that are part of a broader system. The electric grid and if we are not concerned about that, reduce emissions by saying the coal plant, operated less, gas plants operate more. Renewables operate more and that is a much more efficient way of reducing but certainly true. And the Obama Administration thought you could take this phrase out of context and this is a system of the very reductions its just not the type of reduction that had been anticipated by those writing or implementing the act before so that was the basis of the power plant. If you havent followed the case, why are we talking about the Obama Administration regulation. The clean power plant was stated by the Supreme Court and that is a whole story i might get into but the Trump Administration comes in and repeals the clean power plant on the basis of saying the Obama Administration misread the statute. That means the clean power plant is illegal and an alternative that is the only rule that is consistent with the statute. The dc circuit invalidates the Trump Administration rule and i will note a decision of this magnitude was issued the day before inauguration. Unusual. The circuit has tons of cases that its a dealing with in transition years and knows full well whats seeing the transition occur the new agency has opinions about which cases it wants remanded and understands adding a decision in one way or another is something that might not be necessary. It would sort of be curious that in opinion like this would come out on january 19. Had it not come out and had it been held for a day, for two days. The petitions were filed about why we should never have had the case and the Justice Department opposes. The Department Raises no jurisdictional and had a mention this might be an opinion because we might decide to do Something Different because the power plants are outdated but never does that suggest the obvious way to handle that problem which is to ask the Supreme Court to grant which is again a normal thing for the office to do. Theres an old regulation. Its out of date. We dont want to defend because that is the other teams regulation, not ours. We dont want to defend that. We want to come up with a regulation that is consistent with our policies and that makes sense given the change that would be the routine thing to do. If you want to convince the court theres no question the court didnt do anything other than overturn the extremely broad interpretation of the act that the circuit had issued. The only question is how the epa there was some thought maybe we would get a very narrow opinion that the Clean Air Act really rolling up your sleeves and getting into the act, but again and all the case to take if thats what you want to do and i dont think that the justices enjoyed digging into the act. Another possibility was a nondelegation ruling but that wasnt in the brief either. It was in the background if youre talking about how broad is the power delegated certainly the prospect looms large in that context but the briefs themselves were to say major questions on the courts mind we knew it was on the courts mind because we had just seen the moratorium case that made reference to the idea if we use the case the question was really how they were going to approach the major doctrine. Its like a tiebreaker something that helps us resolve the ambiguity in statute or is it going to be something we draw on the table right up front and to saythis is going to predetermine and the latter is what the court did. The chief justice right up front in his opinion said in this context but there are extraordinary cases where we do Something Different of economic and political significance and this is one that loads the dice to follow from having to deal with. Its an easy way to deal with of the case and for the court to avoid perhaps saying something about the act that might be wrong and might hamstring Going Forward but its something of a mess because the question now for the lower court is is this the sort of case where we look at the statute and figure out how it is delegated with the interpretation cases that you should be suspicious of claims of high delegation and broad delegation of authority and of narrow but to do with to the threshold of inquiry its a major question. Were there enough segments about this on cnn. It was the bill introduced in some committee ever given serious consideration to say congress thought about it. These are not the inquiries they are good about but what they are supposed to be doing. Ive probably gone on longer than im supposed to. There is the underlying principle that is essential that understands agencies only have power if its been delegated to them. The court said repeatedly if they want to exercise power they have to find congress has delegated to them. If there is no delegation there is no power. There is no authority to tell power plants or anybody else what to do. Of the problem is from that principle one can actually spell out a meaningful way of thinking about the way instruments like legislation delegated power and how we interpret those and think about them in terms of agency principles, agencies in terms of personal relationships and recognize the broader the claim of delegation the greater the showing we should expect because we dont expect to distinguish between major and minor questions it means we should make sure that whatever power claimed has been delegated and is consistent with the structure of the underlining. Another thing about the opinion that recognizes one of the particular problems in the context that arises from the fact congress doesnt like to revisit the statute and we have lots of contemporary problems that raise important questions congress has not spoken to. And we have a trend that isnt new and doesnt begin with the Obama Administration but goes back to at least the clinton administration. I think about this when im doing some sort of amateur repair work at home and i bring a ranch upstairs and realize i need a hammer but i dont have a hammer. If you turn the ranch on its side and angle it just right you can make it work. Thats essentially what agencies have been doing. We would rather have a hammer, lets find the hammer and make the system not to be what congress was actually giving the power to do but more useful with the problem. I dont think it realizes the way to do with this is to think in a more principled way about how we need to understand the powers and this is particularly the point for chief Justice Roberts in a case called arlington. He identified these principles albeit in defense and the biggest problem was perhaps the chief justice decided they had overturned enough cases and they didnt want to overturn this obscure Administrative Law case but having done so he might have had a more workable doctrine. I apologize for going on for too long. [applause] the next speaker is a professor of law at George Mason University who by my account to youve authored or edited six books on subjects ranging from the democratic theory to immigration rights. I have it on Good Authority that is sold at the publicinterest auction. Without further ado, the article on the Vaccine Mandate cases by the Occupational Safety and Health Administration. My job here is not to talk about the less important work or even talk about dungeons and dragons but what might be more interesting to some of the audience rather my purpose is to talk about the two Vaccine Mandate cases, the Supreme Court decided back in january and at the time they were as President Biden said, a big deal but drew a lot of reaction from people but since then, weve kind of forgotten about them because the covid pandemic fortunately and i dont know about you but ive heard rumors there might have been some other cases that were decided later for even more controversy so attention shifted away from these two decisions. None