Speaker 1: Thank you for tuning in. Big show today. A lot
Speaker 1: of really interesting folks to talk to, including our next guest,
Speaker 1: Adam White, a senior Fellow at the American Enterprise Institute.
Speaker 1: It's always a pleasure to welcome at him to the show.
Speaker 1: He was also a member of the Biden Supreme Court
Speaker 1: Commission a k the Port Court Packing Commission. At the
Speaker 1: American Enterprise Institute, Adam White focuses on American constitutionalism, the
Speaker 1: Supreme Court, and the administrative state. Can Currently, he co
Speaker 1: directs the sed Boyd and Grace Center for the Study
Speaker 1: of the Administrative State at the nan Scalia School of
Speaker 1: Law at George Mason University. Glad we got you back,
Speaker 1: Mr White. How are you, sir? Great glad, It's it's
Speaker 1: our pleasure to have you. I was just reading your
Speaker 1: your CV as they say, UM, and your specialty in
Speaker 1: studying the administrative state. I imagine you get invited to
Speaker 1: many many cocktail parties, people just dying to hear about
Speaker 1: administrative law. You know they you always think there's a
Speaker 1: way to make lawyers even more boring, and then you
Speaker 1: specialize in administrative law, you just go one level lower. Well,
Speaker 1: I'm glad you took that sarcasm in the spirit it
Speaker 1: was intended, because the the the irony of that is
Speaker 1: that administrative law can have such an enormous effect on
Speaker 1: all of our lives, our business, is, the economy, etcetera.
Speaker 1: For folks who haven't really familiarized themselves with that so
Speaker 1: called fourth branch of government, why is administrative laws so significant? Well,
Speaker 1: it's so significant because in this day in age, and
Speaker 1: for the last many decades, most of our law and
Speaker 1: policy at the federal level really is made in and
Speaker 1: around administrative agencies rather than in Congress. Congress has spent
Speaker 1: decades fun decades delegating broad power discretion to these agencies,
Speaker 1: and it's those delegations over time reached a tipping point
Speaker 1: where now Congress has less and less incentive to do
Speaker 1: any more work of its own because the agencies can
Speaker 1: do it, and so Congress instead focuses on things like
Speaker 1: oversight hearings or one on cable news shows or raising
Speaker 1: money or whatever they do, while the agency has become
Speaker 1: the center of gravity in government, and a good example
Speaker 1: of it comes in the aftermath of the of the
Speaker 1: recent Dobbs case overturning Rob Wade, all of us including me,
Speaker 1: We say, you know, this is a good decision because
Speaker 1: it returns these issues properly to the states, but quite frankly,
Speaker 1: first and foremost, it will send these issues to the
Speaker 1: administrative state. You already see the Biden administration talking about
Speaker 1: what the f d A might do, what Health and
Speaker 1: Human Services might do, activists arguing that the federal government
Speaker 1: needs to provide access to abortion on federal lands, on
Speaker 1: federal property, that kind of thing. Those are all administrative
Speaker 1: state issues. But of course it goes much broader than that,
Speaker 1: and we're about to see we expect a big decision
Speaker 1: out of the Supreme Court in a case involving the
Speaker 1: e p A, which is significant for climate policy, but
Speaker 1: it's also significant it could be significant for the administrative
Speaker 1: agencies more broadly. You know, I was just going to
Speaker 1: get into just a little more about the significance of
Speaker 1: the agencies and what they do, but we can we
Speaker 1: can just talk about the cases, because my point was
Speaker 1: merely going to be that these agencies, these bureaucrats, they right,
Speaker 1: they quote unquote pass uh, they adjudicate, and they punish
Speaker 1: violations of law. They're not called law. I guess the
Speaker 1: rules and regulations but if if I get fined or
Speaker 1: I go to jail because I won't pay the fine,
Speaker 1: that sounds like a law to me. It sure does.
Speaker 1: And sometimes even when in theory you have a right
Speaker 1: of judicial review, when the process is all done and
Speaker 1: the court might throw out what the agency has done,
Speaker 1: sometimes the process is the punishment. Sometimes having to endure
Speaker 1: this long and costly administrative process. Whether you're trying to
Speaker 1: develop your land, whether you're a company trying to get
Speaker 1: federal approval of some new product. Um, those things are
Speaker 1: costly and they take time. And I want to be
Speaker 1: very clear, I'm not a nihilist, I'm not a radical libertarian,
Speaker 1: and I'm even pretty sympathetic to, you know, a strong
Speaker 1: federal government on national issues. I believe in all those things.
Speaker 1: But you know, it's summer vacation time. And my dad
Speaker 1: always told me sometimes that the journeys as important as
Speaker 1: the destination. It's important that these issues get funneled through
Speaker 1: legislatures rather than through administrative agencies, because the legislatures have
Speaker 1: to deliberate, often have to compromise, have to moderate things,
Speaker 1: whereas administrative agencies are built to move quickly and unilaterally,
Speaker 1: which means they tend to act a bit more sweepingly
Speaker 1: and a lot less moderately. So tell us about these
Speaker 1: cases before the court and what significance they might end
Speaker 1: up having. Sure, Well, this year we've already seen several
Speaker 1: of these cases, UM involving administration. We saw them, of
Speaker 1: course in the OCEHA vaccine mandate case, where the Supreme
Speaker 1: Court held that while OSHA has a lot of power
Speaker 1: to regulate working condition in large companies, they can't use
Speaker 1: that as a point of leverage to create a you know,
Speaker 1: at the facto nationwide vaccine mandate for a all Americans, um.
Speaker 1: And when the Supreme Court reached that decision, they they
Speaker 1: used not necessarily by name, but, as Coresus pointed out
Speaker 1: in a separate opinion, they used what's called the major
Speaker 1: questions doctrine, which is a legal way of saying that
Speaker 1: the courts are increasingly skeptical of an agency suddenly discovering
Speaker 1: in an old statute really transformative new powers that have
Speaker 1: never been invoked before. So again, OSHA has broad powers,
Speaker 1: but not necessarily powers. So broad is to allow it
Speaker 1: to impose a nationwide vaccine mandate. Whatever you think of vaccines,
Speaker 1: and I have mine, uh, These are the sorts of
Speaker 1: things that need to be handled by legislatures, especially at
Speaker 1: the state level. Now, the next big case is coming
Speaker 1: down the pike for the Supreme Court involves the e
Speaker 1: p A, the e p a's latest suite of greenhouse
Speaker 1: gas regulations. It's a dispute that really goes back to
Speaker 1: the Obama administration and the Trump administration changing the climate rules,
Speaker 1: but Biden administration changing them back. And in a nutshell,
Speaker 1: the Supreme Court has been asked to decide whether the
Speaker 1: e p A really does have power into the Clean
Speaker 1: Air Act to regulate the entire energy and manufacturing economy
Speaker 1: through what's called what the A. Long administration called the
Speaker 1: Clean Power Plan. And uh the Supreme Court might issue
Speaker 1: the case, might decide the case in pretty narrow terms,
Speaker 1: either approve it or disapprove it. But if they do
Speaker 1: disapprove it, we'll all be watching for signals as to
Speaker 1: how narrowly the Court might construe other regulatory statutes. And
Speaker 1: and just one more thing, Joe, I don't mean to
Speaker 1: bladder on, but other cases the courts decided have administrative
Speaker 1: state aspects. Take the New York case New York Rifle
Speaker 1: of the second Amendment case with New York regulating the
Speaker 1: licenses to to carry handguns outside the home. It was
Speaker 1: mostly a Second Amendment case. It had to do with
Speaker 1: how the courts evaluate your right to keep their arms.
Speaker 1: At the center of the case and what really troubled
Speaker 1: the justices was the fact that in New York and
Speaker 1: in five other states, the regulator, the one who issues
Speaker 1: these licensees, had pretty much boundless discretion. It wasn't that
Speaker 1: they started had to check the box list and they
Speaker 1: look for certain facts and it can satisfy as an applicant,
Speaker 1: satisfy those facts, you get license. Now, the New York
Speaker 1: statute really left total discretion in the hands of the licenser,
Speaker 1: and that really troubled the justices. So you can see
Speaker 1: these issues seep into other cases that you don't really
Speaker 1: think of it administrative state issues. So, I know, asking
Speaker 1: you to make UH predictions as kind of an iffy
Speaker 1: UH proposition. Adam White's on the line, by the way
Speaker 1: from the American Enterprise Institute. UM, but is is there
Speaker 1: a chance that the Supreme Court will fundamentally say the
Speaker 1: gigantic growth of the power of the administrative state has
Speaker 1: been wrong from the beginning and we're going to roll
Speaker 1: it way back, or is this much more likely to
Speaker 1: be incremental as you say now Rome, Rome wasn't built
Speaker 1: in a day, and it wasn't unbuilt in a day,
Speaker 1: and I'd say we should have a similar expectation here.
Speaker 1: I think for folks like me who are skeptical of
Speaker 1: the administrative state and want to see it UM have
Speaker 1: more legal constraints on it. I think the most we
Speaker 1: can hope for is the Supreme Court declaring the e
Speaker 1: P A s UH policy here or it's assertion of
Speaker 1: power over climate policy to be an overreach. It might
Speaker 1: leave the door open to more narrow climate regulations, and
Speaker 1: I'd be fine with that, um, but it would I
Speaker 1: think if the Court were to say this is just
Speaker 1: too overbroad, and we are in future cases going to
Speaker 1: continue to be skeptical of agencies suddenly creating new transformative
Speaker 1: programs in old through old old statutes, I think that
Speaker 1: would send a good signal. There's basically two within the
Speaker 1: conservative block on the Court. There's you can think of
Speaker 1: it as two camps. There's some justices I think Thomas
Speaker 1: and Gorsuch are in this camp certainly, who want the
Speaker 1: judges in the Lower courts in the Supreme Court to
Speaker 1: have no deference for administrative agencies and also to be
Speaker 1: willing to strike down statutes as unconstitutional when they delegate
Speaker 1: too much power to an agency. For other justices like
Speaker 1: Chief Justice Roberts Kavanaugh, UM, they've sometimes agreed rhetorically, but
Speaker 1: when push comes to shove, there in a more of
Speaker 1: an amendate. Don't end at camp where they don't necessarily
Speaker 1: want to strike down a lot of statutes is unconstitutional,
Speaker 1: but they do want to put more guard rails on
Speaker 1: the agency process. They want maybe steadier administration. And I
Speaker 1: think there's something to be said for for both camps.
Speaker 1: So I assume that when this ruling comes down, you'll
Speaker 1: be writing about it. I will. I just have a
Speaker 1: new piece out in Commentary magazine on another important case
Speaker 1: in the same vein on out of the Fifth Circuit
Speaker 1: involving the Securities and Exchange Commission, And uh, you know,
Speaker 1: I I keep writing on these things because you know,
Speaker 1: even if Rome isn't built in a day, and you know,
Speaker 1: every little bit helps, all right, Well, we'll absolutely look
Speaker 1: for that after the ruling comes out. One more quick question.
Speaker 1: We've barely we got about two minutes left. Um. I've
Speaker 1: been reading a lot about the shocking left word swing
Speaker 1: of America's law schools and then scally law school. George
Speaker 1: Mason University is not one of those institutions from what
Speaker 1: I understand, UM, do you have any thoughts on that topic.
Speaker 1: What have you seen at uh? Well, DC is lausy
Speaker 1: with big name law schools. Um, it's shocking to me
Speaker 1: they've abandoned like the principle of neutrality before the law,
Speaker 1: that sort of thing. There's a few things happening. One
Speaker 1: is on just the campus culture in general, the things
Speaker 1: that students and faculty members face when they voice opinions
Speaker 1: that are unpopular on campus. That's a long standing debate,
Speaker 1: but obviously the last five or ten years has become
Speaker 1: even worse, especially in light of new social media technologies
Speaker 1: and others. And there's just the general leftward tilt of academia,
Speaker 1: and that's also a longstanding issue. UM. But I'd say
Speaker 1: one of the reasons why things seem to be reaching
Speaker 1: an interesting moment, the basic getting so heated is I
Speaker 1: think legal academia, which tends to lean towards the left,
Speaker 1: is coming to grips with the fact that the Supreme
Speaker 1: Court that they study and write about and advocate before. Uh,
Speaker 1: is it facing a generational turn towards textualism towards originalism.
Speaker 1: Imagine starting up your entire career, eager to champion and
Speaker 1: defend the Supreme Court, only to find about halfway through
Speaker 1: your academic career that you no longer agree with the
Speaker 1: Court anymore. Um. I'm lucky not to be in that position. Um,
Speaker 1: but I think it must be challenging for others. Adam White,
Speaker 1: Senior Fellow at the American Enterprise Institute, co director of
Speaker 1: the sea Board and Gray Center for the Study of
Speaker 1: the Administrative State at the eminent Scalia Law School at
Speaker 1: George Mason University. Adam, it's always enlightening. Thanks a million,
Speaker 1: look forward to the next time. Likewise, thanks Joe, thank you,