WEBVTT - The Process Is the Punishment.   Adam White Talks to A&G

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<v Speaker 1>Thank you for tuning in. Big show today. A lot

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<v Speaker 1>of really interesting folks to talk to, including our next guest,

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<v Speaker 1>Adam White, a senior Fellow at the American Enterprise Institute.

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<v Speaker 1>It's always a pleasure to welcome at him to the show.

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<v Speaker 1>He was also a member of the Biden Supreme Court

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<v Speaker 1>Commission a k the Port Court Packing Commission. At the

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<v Speaker 1>American Enterprise Institute, Adam White focuses on American constitutionalism, the

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<v Speaker 1>Supreme Court, and the administrative state. Can Currently, he co

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<v Speaker 1>directs the sed Boyd and Grace Center for the Study

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<v Speaker 1>of the Administrative State at the nan Scalia School of

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<v Speaker 1>Law at George Mason University. Glad we got you back,

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<v Speaker 1>Mr White. How are you, sir? Great glad, It's it's

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<v Speaker 1>our pleasure to have you. I was just reading your

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<v Speaker 1>your CV as they say, UM, and your specialty in

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<v Speaker 1>studying the administrative state. I imagine you get invited to

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<v Speaker 1>many many cocktail parties, people just dying to hear about

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<v Speaker 1>administrative law. You know they you always think there's a

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<v Speaker 1>way to make lawyers even more boring, and then you

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<v Speaker 1>specialize in administrative law, you just go one level lower. Well,

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<v Speaker 1>I'm glad you took that sarcasm in the spirit it

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<v Speaker 1>was intended, because the the the irony of that is

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<v Speaker 1>that administrative law can have such an enormous effect on

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<v Speaker 1>all of our lives, our business, is, the economy, etcetera.

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<v Speaker 1>For folks who haven't really familiarized themselves with that so

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<v Speaker 1>called fourth branch of government, why is administrative laws so significant? Well,

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<v Speaker 1>it's so significant because in this day in age, and

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<v Speaker 1>for the last many decades, most of our law and

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<v Speaker 1>policy at the federal level really is made in and

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<v Speaker 1>around administrative agencies rather than in Congress. Congress has spent

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<v Speaker 1>decades fun decades delegating broad power discretion to these agencies,

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<v Speaker 1>and it's those delegations over time reached a tipping point

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<v Speaker 1>where now Congress has less and less incentive to do

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<v Speaker 1>any more work of its own because the agencies can

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<v Speaker 1>do it, and so Congress instead focuses on things like

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<v Speaker 1>oversight hearings or one on cable news shows or raising

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<v Speaker 1>money or whatever they do, while the agency has become

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<v Speaker 1>the center of gravity in government, and a good example

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<v Speaker 1>of it comes in the aftermath of the of the

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<v Speaker 1>recent Dobbs case overturning Rob Wade, all of us including me,

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<v Speaker 1>We say, you know, this is a good decision because

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<v Speaker 1>it returns these issues properly to the states, but quite frankly,

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<v Speaker 1>first and foremost, it will send these issues to the

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<v Speaker 1>administrative state. You already see the Biden administration talking about

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<v Speaker 1>what the f d A might do, what Health and

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<v Speaker 1>Human Services might do, activists arguing that the federal government

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<v Speaker 1>needs to provide access to abortion on federal lands, on

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<v Speaker 1>federal property, that kind of thing. Those are all administrative

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<v Speaker 1>state issues. But of course it goes much broader than that,

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<v Speaker 1>and we're about to see we expect a big decision

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<v Speaker 1>out of the Supreme Court in a case involving the

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<v Speaker 1>e p A, which is significant for climate policy, but

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<v Speaker 1>it's also significant it could be significant for the administrative

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<v Speaker 1>agencies more broadly. You know, I was just going to

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<v Speaker 1>get into just a little more about the significance of

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<v Speaker 1>the agencies and what they do, but we can we

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<v Speaker 1>can just talk about the cases, because my point was

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<v Speaker 1>merely going to be that these agencies, these bureaucrats, they right,

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<v Speaker 1>they quote unquote pass uh, they adjudicate, and they punish

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<v Speaker 1>violations of law. They're not called law. I guess the

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<v Speaker 1>rules and regulations but if if I get fined or

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<v Speaker 1>I go to jail because I won't pay the fine,

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<v Speaker 1>that sounds like a law to me. It sure does.

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<v Speaker 1>And sometimes even when in theory you have a right

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<v Speaker 1>of judicial review, when the process is all done and

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<v Speaker 1>the court might throw out what the agency has done,

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<v Speaker 1>sometimes the process is the punishment. Sometimes having to endure

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<v Speaker 1>this long and costly administrative process. Whether you're trying to

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<v Speaker 1>develop your land, whether you're a company trying to get

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<v Speaker 1>federal approval of some new product. Um, those things are

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<v Speaker 1>costly and they take time. And I want to be

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<v Speaker 1>very clear, I'm not a nihilist, I'm not a radical libertarian,

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<v Speaker 1>and I'm even pretty sympathetic to, you know, a strong

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<v Speaker 1>federal government on national issues. I believe in all those things.

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<v Speaker 1>But you know, it's summer vacation time. And my dad

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<v Speaker 1>always told me sometimes that the journeys as important as

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<v Speaker 1>the destination. It's important that these issues get funneled through

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<v Speaker 1>legislatures rather than through administrative agencies, because the legislatures have

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<v Speaker 1>to deliberate, often have to compromise, have to moderate things,

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<v Speaker 1>whereas administrative agencies are built to move quickly and unilaterally,

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<v Speaker 1>which means they tend to act a bit more sweepingly

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<v Speaker 1>and a lot less moderately. So tell us about these

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<v Speaker 1>cases before the court and what significance they might end

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<v Speaker 1>up having. Sure, Well, this year we've already seen several

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<v Speaker 1>of these cases, UM involving administration. We saw them, of

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<v Speaker 1>course in the OCEHA vaccine mandate case, where the Supreme

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<v Speaker 1>Court held that while OSHA has a lot of power

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<v Speaker 1>to regulate working condition in large companies, they can't use

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<v Speaker 1>that as a point of leverage to create a you know,

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<v Speaker 1>at the facto nationwide vaccine mandate for a all Americans, um.

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<v Speaker 1>And when the Supreme Court reached that decision, they they

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<v Speaker 1>used not necessarily by name, but, as Coresus pointed out

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<v Speaker 1>in a separate opinion, they used what's called the major

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<v Speaker 1>questions doctrine, which is a legal way of saying that

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<v Speaker 1>the courts are increasingly skeptical of an agency suddenly discovering

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<v Speaker 1>in an old statute really transformative new powers that have

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<v Speaker 1>never been invoked before. So again, OSHA has broad powers,

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<v Speaker 1>but not necessarily powers. So broad is to allow it

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<v Speaker 1>to impose a nationwide vaccine mandate. Whatever you think of vaccines,

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<v Speaker 1>and I have mine, uh, These are the sorts of

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<v Speaker 1>things that need to be handled by legislatures, especially at

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<v Speaker 1>the state level. Now, the next big case is coming

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<v Speaker 1>down the pike for the Supreme Court involves the e

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<v Speaker 1>p A, the e p a's latest suite of greenhouse

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<v Speaker 1>gas regulations. It's a dispute that really goes back to

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<v Speaker 1>the Obama administration and the Trump administration changing the climate rules,

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<v Speaker 1>but Biden administration changing them back. And in a nutshell,

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<v Speaker 1>the Supreme Court has been asked to decide whether the

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<v Speaker 1>e p A really does have power into the Clean

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<v Speaker 1>Air Act to regulate the entire energy and manufacturing economy

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<v Speaker 1>through what's called what the A. Long administration called the

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<v Speaker 1>Clean Power Plan. And uh the Supreme Court might issue

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<v Speaker 1>the case, might decide the case in pretty narrow terms,

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<v Speaker 1>either approve it or disapprove it. But if they do

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<v Speaker 1>disapprove it, we'll all be watching for signals as to

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<v Speaker 1>how narrowly the Court might construe other regulatory statutes. And

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<v Speaker 1>and just one more thing, Joe, I don't mean to

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<v Speaker 1>bladder on, but other cases the courts decided have administrative

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<v Speaker 1>state aspects. Take the New York case New York Rifle

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<v Speaker 1>of the second Amendment case with New York regulating the

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<v Speaker 1>licenses to to carry handguns outside the home. It was

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<v Speaker 1>mostly a Second Amendment case. It had to do with

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<v Speaker 1>how the courts evaluate your right to keep their arms.

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<v Speaker 1>At the center of the case and what really troubled

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<v Speaker 1>the justices was the fact that in New York and

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<v Speaker 1>in five other states, the regulator, the one who issues

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<v Speaker 1>these licensees, had pretty much boundless discretion. It wasn't that

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<v Speaker 1>they started had to check the box list and they

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<v Speaker 1>look for certain facts and it can satisfy as an applicant,

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<v Speaker 1>satisfy those facts, you get license. Now, the New York

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<v Speaker 1>statute really left total discretion in the hands of the licenser,

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<v Speaker 1>and that really troubled the justices. So you can see

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<v Speaker 1>these issues seep into other cases that you don't really

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<v Speaker 1>think of it administrative state issues. So, I know, asking

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<v Speaker 1>you to make UH predictions as kind of an iffy

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<v Speaker 1>UH proposition. Adam White's on the line, by the way

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<v Speaker 1>from the American Enterprise Institute. UM, but is is there

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<v Speaker 1>a chance that the Supreme Court will fundamentally say the

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<v Speaker 1>gigantic growth of the power of the administrative state has

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<v Speaker 1>been wrong from the beginning and we're going to roll

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<v Speaker 1>it way back, or is this much more likely to

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<v Speaker 1>be incremental as you say now Rome, Rome wasn't built

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<v Speaker 1>in a day, and it wasn't unbuilt in a day,

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<v Speaker 1>and I'd say we should have a similar expectation here.

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<v Speaker 1>I think for folks like me who are skeptical of

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<v Speaker 1>the administrative state and want to see it UM have

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<v Speaker 1>more legal constraints on it. I think the most we

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<v Speaker 1>can hope for is the Supreme Court declaring the e

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<v Speaker 1>P A s UH policy here or it's assertion of

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<v Speaker 1>power over climate policy to be an overreach. It might

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<v Speaker 1>leave the door open to more narrow climate regulations, and

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<v Speaker 1>I'd be fine with that, um, but it would I

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<v Speaker 1>think if the Court were to say this is just

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<v Speaker 1>too overbroad, and we are in future cases going to

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<v Speaker 1>continue to be skeptical of agencies suddenly creating new transformative

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<v Speaker 1>programs in old through old old statutes, I think that

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<v Speaker 1>would send a good signal. There's basically two within the

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<v Speaker 1>conservative block on the Court. There's you can think of

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<v Speaker 1>it as two camps. There's some justices I think Thomas

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<v Speaker 1>and Gorsuch are in this camp certainly, who want the

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<v Speaker 1>judges in the Lower courts in the Supreme Court to

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<v Speaker 1>have no deference for administrative agencies and also to be

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<v Speaker 1>willing to strike down statutes as unconstitutional when they delegate

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<v Speaker 1>too much power to an agency. For other justices like

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<v Speaker 1>Chief Justice Roberts Kavanaugh, UM, they've sometimes agreed rhetorically, but

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<v Speaker 1>when push comes to shove, there in a more of

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<v Speaker 1>an amendate. Don't end at camp where they don't necessarily

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<v Speaker 1>want to strike down a lot of statutes is unconstitutional,

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<v Speaker 1>but they do want to put more guard rails on

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<v Speaker 1>the agency process. They want maybe steadier administration. And I

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<v Speaker 1>think there's something to be said for for both camps.

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<v Speaker 1>So I assume that when this ruling comes down, you'll

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<v Speaker 1>be writing about it. I will. I just have a

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<v Speaker 1>new piece out in Commentary magazine on another important case

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<v Speaker 1>in the same vein on out of the Fifth Circuit

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<v Speaker 1>involving the Securities and Exchange Commission, And uh, you know,

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<v Speaker 1>I I keep writing on these things because you know,

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<v Speaker 1>even if Rome isn't built in a day, and you know,

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<v Speaker 1>every little bit helps, all right, Well, we'll absolutely look

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<v Speaker 1>for that after the ruling comes out. One more quick question.

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<v Speaker 1>We've barely we got about two minutes left. Um. I've

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<v Speaker 1>been reading a lot about the shocking left word swing

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<v Speaker 1>of America's law schools and then scally law school. George

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<v Speaker 1>Mason University is not one of those institutions from what

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<v Speaker 1>I understand, UM, do you have any thoughts on that topic.

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<v Speaker 1>What have you seen at uh? Well, DC is lausy

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<v Speaker 1>with big name law schools. Um, it's shocking to me

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<v Speaker 1>they've abandoned like the principle of neutrality before the law,

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<v Speaker 1>that sort of thing. There's a few things happening. One

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<v Speaker 1>is on just the campus culture in general, the things

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<v Speaker 1>that students and faculty members face when they voice opinions

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<v Speaker 1>that are unpopular on campus. That's a long standing debate,

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<v Speaker 1>but obviously the last five or ten years has become

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<v Speaker 1>even worse, especially in light of new social media technologies

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<v Speaker 1>and others. And there's just the general leftward tilt of academia,

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<v Speaker 1>and that's also a longstanding issue. UM. But I'd say

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<v Speaker 1>one of the reasons why things seem to be reaching

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<v Speaker 1>an interesting moment, the basic getting so heated is I

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<v Speaker 1>think legal academia, which tends to lean towards the left,

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<v Speaker 1>is coming to grips with the fact that the Supreme

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<v Speaker 1>Court that they study and write about and advocate before. Uh,

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<v Speaker 1>is it facing a generational turn towards textualism towards originalism.

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<v Speaker 1>Imagine starting up your entire career, eager to champion and

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<v Speaker 1>defend the Supreme Court, only to find about halfway through

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<v Speaker 1>your academic career that you no longer agree with the

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<v Speaker 1>Court anymore. Um. I'm lucky not to be in that position. Um,

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<v Speaker 1>but I think it must be challenging for others. Adam White,

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<v Speaker 1>Senior Fellow at the American Enterprise Institute, co director of

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<v Speaker 1>the sea Board and Gray Center for the Study of

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<v Speaker 1>the Administrative State at the eminent Scalia Law School at

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<v Speaker 1>George Mason University. Adam, it's always enlightening. Thanks a million,

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<v Speaker 1>look forward to the next time. Likewise, thanks Joe, thank you,