What are the chances that the Supreme Court will spur tremendous reform to change how our nation’s administrative state—rather than Congress—engages in lawmaking? On this Saturday edition of “The Daily Signal Podcast,” former Justice Department official John Yoo joins the show to discusses the prospects.
Yoo, a law professor at University of California, Berkeley, was assistant deputy attorney general in the Justice Department’s Office of Legal Counsel during President George W. Bush’s administration.
Spurred by Justice Neil Gorsuch’s 2019 dissenting opinion in the case of U.S. v. Gundy, which called for a revival of the so-called nondelegation doctrine, Yoo describes how the Supreme Court under Chief Justice John Roberts could curtail Congress from transferring its lawmaking power to bureaucrats in federal agencies.
The question the Roberts court has to face is: Do we think that the courts, by trying to constrain how far Congress can go, can actually force Congress to become more accountable and take responsibility for these tough policy choices, even when Congress doesn’t want to do it?
I think that’s a very, very hard question. You could see the court making these decisions in [ways] that place limits on what Congress can do, place limits on what the administrative state can do.
Listen to the podcast below or read the lightly edited transcript.
Richard Reinsch: Welcome to this Saturday edition of “The Daily Signal Podcast.” We’re talking with John Yoo, former deputy assistant U.S. attorney general, about the administrative state and prospects for reform of this immense size burden of the federal government. John Yoo is a professor of law at the University of California, Berkeley. He’s a visiting fellow at the Hoover Institution and a senior fellow at the American Enterprise Institute.
He has published numerous books, academic and popular, including “War By Other Means: An Insider’s Account of the War on Terror,” “Defender in Chief: Donald Trump’s Fight for Presidential Power,” and “Point of Attack: Preventive War, International Law, and Global Warfare,” among other volumes. He’s also published widely in law reviews and in popular publications like National Review and The Wall Street Journal. And he’s the cohost with Richard Epstein of the popular “Law Talk” podcast. John Yoo, thank you for coming on.
John Yoo: Hey, it’s great to be with you. You should have pointed out the hardest job of all those jobs I have is keeping Richard Epstein to 45 minutes in a podcast.
Reinsch: No, that is true. I’ve interviewed Richard Epstein and I think it was about an hour long interview. I talked all of four minutes and I had to fight to get those four minutes.
Yoo: Exactly. How’d you get four minutes? That’s four times better than I usually do.
Reinsch: I was the host, you’re merely one of two with Richard Epstein. And so the topic of our conversation is the administrative state. I think it’s a term that’s emerged as a popular term, an established term. Philip Hamburger, I think, really etched it into our language with his book on the morality of administrative law and the administrative state. You’re the editor of a new volume along with Peter Wallison called, The Administrative State Before the Supreme Court, which features a dozen contributors thinking about ways, prospects for reforming this beast through Supreme Court rule. What prospects are there in the current term for reform of the administrative state?
Yoo: Richard, thanks for having me on first of all, and congratulations on your new podcast here. I’m a regular listener of all your podcasts. So this is great to finally be on again with you. So the reason we did this book is because I bet when we look back in history on the Roberts court and ask, what did it do? How do you define what the Roberts court was compared with the Rehnquist court, or who knows, the future Ketanji Brown Jackson court? What did it do? And one of its, I think, likely major achievements will be reining in the administrative state, which I think many would agree has become out of control, unmoored to any system of democracy. The COVID lockdowns and the role of the CDC and Dr. Fauci and Dr. Burkes and so on just sort of showed, I think, to regular people the power that the administration state has without any real democratic accountability.
And so steadily, piece by piece, the Roberts court has been chipping away at the power and the independence of the bureaucracy. And I think it could well culminate, and that’s why we wrote the book, culminate in the next year or two with some very significant changes in the way that the administrative state operates. To most people, the word administrative state, they’re eyes glaze over, they start reaching for the beer and changing the channel. But what we mean by administrative state is probably that branch of the national government that has the most effect on your daily life, my daily life. So you think about who decides the mile per gallon requirements for your car, see administrative state. Who decides most of the rules in your tax return, that’s the administrative state. And you could go on and on. And so I think that the courts in the Roberts period are trying to restore some more democratic accountability to that system of government.
Reinsch: Thinking about the Roberts court has a whole, where do you think they’ve been most effective in this regard? And I asked that question because my perspective as sort of an armchair intellectual evaluating the administrative state is we hear a lot of discussion, a lot of fancy conservative speeches given about limiting the size of the administrative state. A lot of Republican legislators who go on Fox News and talk about abuses the administrative state has worked. And yet it seems that there’s very little reform of its workings. And this has been true since I really came of age politically. Watching these things is like, when does this ever really change? And it seems there’s just so few people who have put forward ideas for actually limiting it that are workable. What do you think is new here?
Yoo: I think that’s a fair criticism of the conservative legal movement, is there have been a lot of promises made, progress has been gradual and slow. And I think this area is much like that as it has been in other areas that conservatives care about, like abortion. Although that might change this year with the Dobbs case, who knows. With the administrative state, I would say one of the big achievements, I think, came to the fore during COVID, during the lockdowns in the three major losses that the Biden administration has had in the courts. And it goes to the fundamental question we take up in this book, which is, how far can Congress go in giving away its power to pass the laws in our society and handing that over to bureaucrats who are there for their careers, who are not elected by anybody, can’t be fired by anybody, barely managed by anybody?
So take the three Biden administration initiatives that have been frustrated by the courts. The first one was this claim that the federal government could stop all evictions in the country for the length of the pandemic emergency. And then the second one, more recently, was that the federal government require everybody basically who works for a company to get a vaccine. And then the third one was the one that just got struck down last week by a district judge in Florida was, can the federal government require people to wear masks. So in each of those three cases, the Roberts court, over the vigorous objection of the Obama justices, was that we are not going to presume that Congress intends to give away broad power over society or the economy, unless it clearly says so.
And surprisingly, just that little seems to be common sense idea had the effect of blocking the eviction moratorium, had the effect of blocking the national vaccine mandate and now of blocking the mask mandate because Congress never addressed any of those specifically, even to the extent they did, you would think that Congress would’ve said, ah, we rely on the Constitution’s basic framework, which is that states are the charge of public health.
And so I think that’s where the American people, people who are not lawyers, people who are, they’re just doing their jobs, supporting their families, going to church, doing all the things. They’re not into law and politics, but that’s when they saw, I think, the practical results of this, again, we’re just in the middle of it, of this Roberts court effort to contain the claim of bureaucrats, like a Dr. Fauci who just went on TV, I think just a few days ago and said, I don’t think courts should be allowed to second guess a CDC. Why don’t doctors get to decide whether there’s a mask mandate? My response was welcome to the constitution, Dr. Fauci. But that’s right, he went on TV and he said that. He said, I don’t think judges should be allowed to review what the scientists at CDC do.
Reinsch: Are there cases in this current term that look promising for further rollback of the administrative states powers?
Yoo: Yes. In fact, there’s one big one. When we started working on this book over two years ago, we had no idea what would be on the docket of the court, but we could see what was coming down the road. In fact, the justices themselves have been calling for some cases to be brought that would allow them to reconsider this question, which, in the technical legal phrase is a non-delegation doctrine. But again, the idea of how far can Congress go in giving away its powers and what decisions does Congress have to make rather than say, the EPA or the CDC have to make?
So there is one big case involving a lawsuit by West Virginia versus EPA, which involves a very technical rule about what do plants have to do in terms of equipment to reduce pollution. But the main thing is, I think this would surprise a lot of non-specialists just people, voters, if they knew that all of our environmental laws are not made by Congress, they’re made by the EPA. The Clean Air Act basically only has one sentence to it that matters, which just says to the EPA, set standards for air quality, advancing the public interest.
And so in the past, the Supreme Court has said, that’s a legitimate delegation of power to the EPA, which means the EPA can do anything. All you have to do is say, we are doing this in the public interest, which is not defined in the law. What’s the limit on the powers of the EPA, especially when they’re going to start claiming that global warming justifies all manner of restrictions on what we do, what energy we use. So that case is before the Supreme Court. If the court really swings for the fences and says Congress, can’t just delegate all of its authority over the air or the water or energy to the agencies, that could be a revolution in the way our government works.
Reinsch: Yes, that’s what I want to talk about. Thinking about the administrative state, you said it’s the part of the federal government that really affects the most areas of our lives. The administrative state got incredibly large though, I would argue, through political demand for regulation, particularly for environmental regulation in the 1970s. And also just thinking historically about the construction of the administrative state under President Roosevelt, the idea being, we’re going to regulate the economy sector by sector. So we’ve got to have really strong administrative agencies to do that.
If we’re going to pull back on that power, could the court actually do that with a strong opinion telling Congress, no, no, no, you can’t delegate authority anymore, or it’s going to have to be more than the courts. It’s really going to have to be Congress accepting that standard, and we have no indication they’re willing to do that.
Yoo: Richard, I’m going to have to have a talk with the new president of Heritage because I don’t like this new policy of having podcast hosts that know a lot. I really don’t like this. You know too much. I think that’s a really good question. And it’s not that you could say, I think it’s accurate that we voted for people in Congress and this is what they delivered and we keep those same people in office. And what they do, there’s a, how do I put it? It’s not sinister, I think it’s just dysfunctional. There’s a dysfunctional political incentive here. If you’re a member of Congress, you know the people generally like the environment, but you don’t know exactly what you want to do. You don’t know exactly what the people want. So what do you do?
You do exactly what they did in the Clean Air Act or their Clean Water Act, you give all the power to the agencies and then you can say, I did something about it. But then when the agency issues the real rules that govern us, like, are we going to require electric cars or are we going to require extraordinarily high mile per gallon requirements when gas is, at least in California, we’re getting closer and closer to $7 a gallon out here. And that turns out to be unpopular. Then you see members of Congress on TV blaming these administrative agencies to whom they gave the power to make the decision in the first place.
So the political dynamic, as your point, Richard encourages these kinds of delegations because you’re not going to get reelected as a member of Congress, if you set the mile per gallon for your car, or if you ban old fashioned water heaters, or you vote to ban old fashioned air conditioners, so you want to kick all those controversial questions over to someone else and then you run for reelection because you brought the local water project or highway improvement to your district. So one way to put it, Richard, my answer to you is unfortunately we’re at a stage, I think, where you’re right, where Congress, left to its own devices, would just continue to do this.
And so the question, the hard question is, and this is the question the Roberts court has to face is, do we think that the courts, by trying to constrain how far Congress can go, can actually force Congress to become more accountable and take responsibility for these tough policy choices, even when Congress doesn’t want to do it? I think that’s a very, very hard question. You could see the court making these decisions in the way that we hope in the book to place limits on what Congress can do, place limits on what administrative state can do. And without a Congress that wants to cooperate, without a president that wants to cooperate like the ones we have with President Reagan and President Bush. And I argued in my Defender in Chief book, actually, and President Trump, if you don’t have presidents and congresses are interested in reigning in the administrative state on their own end, then maybe all you’ve done is paused its growth.
Reinsch: One question that comes to mind as I started reading more and learning more about the administrative state and its relationship to Congress, is Congress itself now institutionally organized almost in a subordinate role to the administrative state? And that is, I know the administrative state is created by congressional statutes. It’s interesting. You note, in the introduction essay to the book, maybe 20 laws will pass in a given congressional session, but something like a thousand regs will be passed in a given congressional session. So the mismatch there is obvious. But I’ve just wondered, and I think on one level, maybe this is an inept comparison, when you watch these hearings of bureaucrats, high level bureaucrats who seem to have abused power or done something wrong, and they’re brought before Congress, they don’t fear Congress. You can tell the way they testify. They’re not really fearing these guys. And it’s just an impression in my mind that Congress sees itself largely for its own expedient reasons, which you’ve pointed out as sort of almost in a clientele relationship with the administrative state.
Yoo: Maybe I could switch from my scholarly outsider perspective and switch to one of my many jobs I’ve had, which at one point I was a general counsel at the Senate Judiciary Committee when Orrin Hatch, who just passed away, was a chairman, very accomplished, one of our most accomplished senators in my lifetime. So one is, I think Congress has plenty of tools to reign in the agencies if they wanted to. You are right that when you see these agency heads up in, particularly, the House, I’m struck by the disdain that they almost openly have for the people that they allegedly work for. But as someone who worked in Congress, I know exactly how to snap their attention to, which is cut their funding. Listen up now, Dr. Fauci, we’re going to cut the CDC’s budget by a third, or we’re going to zero out positions, and you will see immediate rapid responses from the bureaucracy.
And that’s the other thing, it’s very easy to change funding levels. You just stick a rider in a bill that has to pass and it’s not subject to the problems that you have, as you point out, passing one of the few 20 or 50 laws that might pass in Congress in a given year, because Congress has to pass appropriations for every agency, generally, to do it every year. So I think there’s a way for Congress to really regain the power if they want. But you asked a harder question, again, related to your first question. Does Congress really want to? And if they wanted to, what would Congress have to change about itself? And this brings up this larger philosophical question, which is whether Congress should even be doing any of this, because I’ve always thought that the genius of American constitutional government was its radical decentralization, that we pushed decisions down to the states over most affairs of life.
And a lot of states push their decisions down to cities and counties. And that leads to a lot of accountability because we directly observe those people because they’re closer to us. And it means that you have a lot of experimentation, competition, and independence between the states. And so ideally what I always thought would be a great system is return to the pre-progressive era system of government, which is the federal government’s in charge of national security, defense. It’s main administrative role as a rule of law, enforcement of law. So most of the federal presence in most places is the courts maybe. And then let the states take care of most of the areas of life.
Now, the progressives, what they did, and these administrative law doctrines are at the heart of what they decided to do was they replaced it with a kind of Teutonic, I would say Prussian approach to bureaucracy. I think the great villain in this story is Woodrow Wilson. Woodrow Wilson was president of Princeton, great political scientist. His works are still used in colleges and universities. He goes off and he studies German theories of administration and he comes back to the United States, writes books and he tries to implement them as president. And the progressive view is, all decisions are just scientific and technical decisions. Dr. Fauci actually is the ultimate Wilsonian bureaucrat, so you want them to be as removed and isolated from political pressure as possible. And the way to do that is give them as much power as you can over the country and then keep them as far away from politicians as you can, because politics is just dirty.
Politics will just mess with their decisions and distort the right policies in our country. That’s really the fundamental fight. So if Congress really wants to reinsert themselves, they have to take a side in that and that’s, they have to fight for it. It seems strange, but Congress has to fight for the importance of politics.
Reinsch: Yeah. So here’s where I get a little more, less pessimistic and I was sparked by something you said about the expertise, the scientific applicability of these administrative agencies of knowledge to power and problems. And no one believes in that anymore. A certain progressive elite class does, but I think they’ve discredited themselves now for many decades. And it seems to me, maybe I’m being too optimistic here, something after COVID has happened in the American people, something just right now with the way our elites have mismanaged the regulation of fossil fuel companies, or through all sorts of incentives have moved capital away from those companies. And now we need them to be operating and they can’t. It seems to me that’s really gone.
What’s really occurring here is the naked politics of the administrative state. And the abuses, the size, it seems to me it’s all pointing towards some level of reform in the coming years. The volume that you were the editor of was triggered by Justice Gorsuch’s dissent in the Gundy case. And he’s trying to indicate in that dissent a way back to regulating the administrative state more sharply and the delegation of power they received from Congress. Talk about that dissent and what you make of it.
Yoo: So first, I completely agree with your view on how, if you want to look at this ultimate expression of this progressive view of government, it was, I think the COVID lockdowns. What an incredible exertion of power to tell everyone, you have to stay in your house. It’s hard to remember these, you can’t go to Thanksgiving dinner with your family.
Reinsch: Unless you have an essential job.
Yoo: Yeah, exactly. Remember, all of the things that were, the level of detail that our lives were subjected, managed by the federal government. Now that we’re reopening, at least some parts of the country, maybe not California, but maybe where you are in Indiana or Washington, DC, that it’s like night and day. But it maybe hard to remember how far the government went in telling all of us where we could go, who we could be with, where we were allowed to eat, where we had to shop. I think the founders would’ve been astounded by that claim of government power. And the fact that we’re now starting to see, because of federalism, because of the states and their differences that the states that opened up faster had better economic results and were no worse off than the average in COVID figures.
We’re starting to see that a lot of these experts were making it up. They didn’t know what they were doing, or they were just guessing and they bet trillions of dollars, thousands of lives on these educated guesses. So anyway, I quite agree with you that if there’s something that’s going to focus the mind of the American people on the need for reform, as you say, it’s going to be our experience during COVID and the lockdowns. When it comes to Gorsuch, this is interesting.
This is all, of course, not sparked by COVID, although the justices who’ve been most critical of the administrative state were also the ones who were most protective of individual freedoms and liberty during the COVID cases. So actually it goes back to Justice Thomas a little bit farther ago. And in interest of full disclosure, I clerked for Justice Thomas too many years ago, but Justice Thomas wrote an opinion saying, we ought to reexamine this non-delegation doctrine, this deferential approach we give to the administrative state that’s been around since the New Deal. But he was a lonely voice. In fact, often it was funny, conservatives in the judiciary often sometimes were some of the most pro-administrative state people. They were Justice Scalia, Judge Bork, very pro-administrative state. And a lot of this is because I think they came in with the Reagan administration. There’s a whole political story to this.
So then Justice Thomas puts out that solo dissent in those cases. And then Justice Gorsuch writes this very strong, also agreeing argument in this Gundy case, which is a minor case about sentencing of sex offenders. But he also said, look, there has to be a limit in how far Congress can give away its powers and how much authority agencies can have. And I think there should be a test. Justice Kavanaugh signs those opinions and Justice Alito, he said, in this case, I’m not going to go along. But I do think if their right case came along, I think I would go along with Thomas, Kavanaugh, and Gorsuch. So right there, because you’re almost at the most important rule of the Supreme Court, which is the rule of five. All you need is five people.
So if Amy Coney Barrett happens to agree with those other justices, then yes, this Gundy dissent inspired by this Thomas earlier dissent will make its presence known and you really start to see a very significant reduction, I think, in some of these powers. Now the one thing you said, Richard, in one of your earlier questions is very interesting, is what does it mean for the other laws? What does it mean for Congress? You could at least see the court going back and saying, okay, all these older laws where we let Congress get away with it, essentially saying just clean all the water, clean all the air, we’re not going to give you any standards, do whatever you want. Maybe the court invalidates them and forces today’s Congress to say, well, if you really mean it, then pass a new law that has more detail.
And so if you really want to give away power to the agencies, you’re going to do it, but you’re going to do it in a very clear way that the American people can understand and hold you accountable for. And even if Congress has to go through that exercise, maybe that will be very valuable for democracy.
Reinsch: My sense is, one of your contributors, Judge Ginsburg said he thought they would just grandfather it in if we get a strong ruling limiting the powers of the current administrative state, what’s happened beforehand will just continue to exist, but there will now be limits going forward. That seems maybe the more likely outcome. Although I would enjoy watching the attempt to recreate the administrative state under strict standards where bureaucrats could regulate only if a set of facts were true and they couldn’t make actual policy decisions. It would be because it had been triggered by clear factual predicates, something like that. That sounds interesting to me.
You’ve got the rule of five. Of course, it’s hard to say what Justice Roberts would do. Gorsuch, in the Gundy dissent, I suppose the problem here too is making distinctions. What is a factual determination versus a policy determination when policy so quickly would be tied to a fact. Can you actually hold those two things separate or do they sort of run together? Also just the sheer size of the administrative state and the inertia of its power. Could a Supreme court decision, a strong decision, really on its own, pull that back? I don’t know. It seems we’re left too with Congress having to actually do a specific job of law making.
We’ve talked about that, but did you think the Gorsuch decision, of course, this all turns on, as well, the court’s grant and the famous 1984 Chevron decision that, if Congress is, say ambiguous or unclear in the statute, a reasonable interpretation of the statute by an agency regarding a rule-making will stand. That, of course, seems to be provide all the wrong incentives to Congress, in my mind. But that Chevron decision itself, having to be curtailed. And the question is, can you really curtail it specifically enough without running into all sorts of problems?
Yoo: Can I just mention provide the sort of political background of Chevron and the non-delegation doctrine, because there was a kind of unholy alliance between conservatives and progressives about this. Because even though conservatives now see the many flaws in the Chevron approach, they were present at the creation. In fact, the Chevron doctrine is one that has been ruthlessly enforced by Republican lower court judges. And the reason why is interesting, it’s because it also goes to the optimistic story you’re telling, just one aside is, I think, things can change rapidly. President Reagan is the one, and his administration, if there ever was one that started to question and try to slow down this growth of administrative state, which just accelerated between the New Deal all the way through to Jimmy Carter’s presidency. President Reagan, in one of his platforms, he campaigned on the idea of deregulation, reducing the power of the agencies, lifting the burdens of regulation on our economy.
If we’re living through the late 1970s again, which we seem to be with inflation and the setbacks were having abroad and the way regulation again is strangling innovation and economic growth, Reagan saw that. And so he comes to office, he says, I want to lift the burden of government on the economy, on the productive people in our country. And so conservatives, at that time, said the way to do that then is for us to control the agencies and then pull the regulations out, deregulate. And when we do that, we don’t want the courts second guessing us doing that. So conservatives are the ones who sort of contributed to this idea. Let’s have a light hand, if any review at all by the courts, because we’re going to use that to deregulate when we are in charge of the government. Of course, progressives like this at the same time, because they liked that this would allow the administrative state as a whole to conduct more and more of its activities without any scrutiny and review by the courts.
So you had this kind of weird conservatives and progressives both wanted to push the courts out. And then there were other conservatives in the legal movement who said they liked Chevron, they liked the non-delegation doctrine because their view was, I think this is more of the Bork view was that this is all politics, are there any real standards at all? You see this expressed in the recent Roberts court case about gerrymandering, where they said, how can a court come up with a legal standard to review what’s really a congressional district or not. It’s all just going to get courts into politics. So people like Bork and I think Scalia were also worried getting the courts involved with the administrative state would make the courts unfortunately more like the administrative state so they wanted to keep the courts pure and separate.
But I think when that happened, that gave an enormous amount of power away from not just a democratically accountable branches of our government, but took power away from the original constitutional design and handed it over to this kind, again, this Prussian inspired or Teutonic vision of bureaucracy and government and undermined the kind of decentralized common law way of deciding things in our country that I think had served the country so well all the way through until the New Deal.
Reinsch: It seems to me one way back could be to outline major policy decisions, however you would define that, maybe it’s a numerical standard, a dollar.
Yoo: Oh, Richard, you’re reminding me. I didn’t answer your question. Sorry.
Reinsch: No, no, no, no. And I’m just thinking like, who who’s going to say, could the court give us a major policy decisions test sort of like a political question test and then that becomes a way to think about, well, if you do this, you need to really be specific and it’s got to be specific to the point where we can tell if the bureaucracy is acting according to the statute. If we can make those determinations, the statute will stand. But of course, that brings into question, you could do a lot of things that wouldn’t be a major policy decision. One of the contributors to your volume has kind of a core legislative powers test, working from Article I about what constitutes core legislative power and those things could only be delegated under very strict standards. What do you make of that idea?
Yoo: Let me find some more of the, because this also involves the backstory of why conservatives were so hands off on the administrative state too, is because they felt that the standards, the tests themselves were too elusive, as you’re pointing out. We all know that there has to be some level of small detail decisions that should be made by the agencies because they have to carry out the decisions that Congress makes. Just an example, Congress might say, we only want goods of certain quality to be imported into the United States and they could set some standards, but the people that actually carry out the rule are going to be the customs inspectors. And so Congress probably isn’t going to pass a list of every fruit and drug and everything that’s allowed to come in versus banning what the quality for each one is, has to be.
So governance does require some delegation to the agencies and we’ve had it since the beginning, since the creation of the Treasury Department and Alexander Hamilton was a treasury secretary and he had customs officials carrying out delegated powers. But as you say, Richard, there’s some difference, at least we would argue, and the contributors to the book would argue that there’s a difference between that and saying, Congress couldn’t pass a law just saying, we just let agencies make all legislative decisions. What if Congress just said, we transfer our legislative power to the EPA? Well, that would be unconstitutional. So what’s the line in between them? So I think you’re exploring a line, which I think could work. We’d have to see it in practice, but if we could distinguish between what’s policy and then what’s taking that policy and applying it to a case, applying it to the facts of someone before you, maybe that’s the line.
Other people say, maybe we should just define the line by the economic impact. If an agency’s making a decision that affects more than $10 million or a hundred million dollars in the economy, then Congress has to do it. So this is one thing we ask people in the book to do is to try to come up with their tests that a court could really apply. Because the justices themselves, in that Gundy case that you mentioned were themselves saying, people, come up with some tests because the courts have not come up with a good test. And I think that’s not easy, but in the book we have eight ideas for different tests.
And so hopefully, maybe the court will take one of them and adopt them and use it for the future. That’s, I think, something that’s scholars and, you know, people like you and me who talk about public policy on the outside of these decision-making bodies, that’s where we can really contribute is to take a longer look, think about the consequences, come up with workable tests, because the courts don’t have the time to do it given the press of all the decisions they have to make.
Reinsch: I think also one ongoing attempt was to pass a statute, usually in the acronym, the REINS Act, if an administrative agency wanted to regulate and it cost a certain amount of money, then it would have to be approved by both bodies, something along those lines as well. I don’t disagree with that, but I think it’s also the case, you want to cure this at the front end, if you can, in terms of when things are actually being delegated or not delegated or something along, that’s where you want to have the right formula.
Yoo: Yeah. I agree. I think that the REINS Act, as you say, is an idea. Why not have the agencies almost just be in the position of proposing regulations and that Congress has to actually enact them. But as you say, the real source of the problem is that Congress is giving all that power to the agencies in the first place. And so that’s, I think, the cleaner, better cure that could really return us back to the decentralized system of the constitution that we started out with and that served us so well. The REINS Act, it’s important if it passed, it would do some good, but it’s still tinkering inside the progressive box of the administrative stick rather than really trying to fundamentally reform it. Because what I worry about with the REINS Act is, I could see people in Congress, given the way Congress works, taking all the regulations in a given year, putting it in one giant bill, the Omnibus REINS Act regulation bill and just passing it as a whole every year.
Reinsch: Yeah. And I would say, this will be excluded from REINS or is that what you’re saying?
Yoo: No, no. I just worry that if even if you pass the REINS Act that Congress would just do it all in an omnibus bill because that’s what Congress does with everything else right now. Everything just gets folded into the giant spending bill at the end of the year. And so I could see Speaker Pelosi or Chuck Schumer just throw all the regulations you want to approve under the REINS Act at the end of the year, one giant bill.
Reinsch: So I was going to ask you, Michael Greve, close student of the administrative state. He is actually from Germany. He wrote an interesting law review article in the George Mason Law Review a couple of years ago saying that these attempts, he kind of colorfully refers to it as Chevron metaphysics, are bound to fail for some of the reasons that we’ve been discussing and make it so hard. And really what you should do is what Germany does after World War II, which is to have a whole separate set of courts called administrative courts. And their sole function is to review private right violations by the administrative agencies. And Greve says in Germany that your private liberties are much better protected vis a vie, that’s part of the government, than in America. They’re clear doctrines, clear rules. Everybody knows what’s what, and the cases, to extent that there are cases, they’re very professionally decided. The opinions issued by the court are intelligible and clear to all parties. So why not do that in America? And he says, they could come in under Article I and exist for that purpose. Aside from just the political weight you would have to have to erect a new system of courts, what do you think of that idea?
Yoo: I’m not persuaded for a few reasons. One is, I’m not sure the answer to controlling bodies that are based in expertise and specialization is to just create another body of expertise and specialization to watch over them. It’s almost like a sort of a Germanic answer to a Germanic creative problem. What you need is more experts. The problem with agencies is that they’re not expert enough, so let’s get some really smart experts to watch the agencies. That’s essentially what that argument is. And that’s what other countries, not just Germany, lots of other countries have specialized judiciaries where you are a court of a certain kind of law. Like you could be a Supreme Court of family law in France, for example, or something like that. I’m not persuaded.
So the American approach has always been, let’s have generalist judges who are more like the rest of the American people rather than specialists. And maybe they are a better, more secure, more skeptical eye on government. Because if you have more experts and technocrats reviewing what the other experts and technocrats are doing, you could just have more capture by the experts. There’s a way to test it because we have gone down that road a little bit. So for example, intellectual property, which is, one of the great drivers of our economy these days is technology. We have a specific court where those cases go called the Federal Circuit in Washington, DC. We have the tax court, so they’re very specialized. And so you could look and see, do we feel that that system is better than having regular generalist judges who, I think, are going to be more skeptical of the government than people who are specialists in area review of what the government does.
So we could make a judgment and look at the evidence, but my guess is you’re going to see those kind of specialist courts get captured. But that brings me back again to, I think this is sort of fundamental American difference with Europe. I know this is a favorite subject of yours when you were at Law & Liberty and the Liberty Fund podcast. What makes us different than Europe, and one of them is our suspicion of the government, our suspicion of public power. We think the answer is that not to put smarter people in charge, but to decentralize and weaken the government. And I don’t know, you could look at the results. Do you and I really think our individual rights are better protected in Western Europe than they are in the United States? I would say not and I would say lots of immigrants in the world choose with their feet by coming here and not Europe who are escaping dictatorship. I just don’t think our rights are better protected in Europe, even in a system where you have more expert courts.
Reinsch: We should note there are administrative law judges currently, but they’re ensconced within the actual agencies they’re called to issue opinions for, which is highly problematic. I think particularly Philip Hamburger has written pieces about what he argues are abuses inside the Securities and Exchange Commission. No small agency there. And so I guess the idea would be an independent body of judges who received lifetime appointment, who would have, hopefully an independent platform from these agencies to review alleged violations. And I think Greve argues, also, it would be a competitive system. You wouldn’t have to take your case in front of an administrative court, but it may be the case that you get a better deal, so it starts to be the preferred venue.
I think it’s an interesting idea just from the sake of so little that we have thrown at it has actually worked in terms of trying to get our handle on it. Another law professor I wanted to ask you about, Adrian Vermeule, I’m reading his book. A lot of people are talking about it, Common Good Constitutionalism. One of the claims he makes in the book, and this is a book that tries to recover the, I’ll say, full body of western law in its best sense, going back to the code of Justinian. He argues the administrative state or the administrative law world in America is perhaps, from standpoint of how he defines it of natural law of justice, the best ordered system currently in American law, it’s the most fair, it’s the most efficient. It has a well-settled body of law, things like this. And actually, so he kind of says that it should be a model for how we do things, constitutionally, that he thinks it’s actually very efficient for Congress to pass these statutes and let them be determined by administrative heads who have expertise and power in a given body, a given area. And so he also sort of takes on the progressive critique or agrees with the progressive critique that modern society is so complex and difficult that there’s no way Congress could really regulate it. What do you make of that?
Yoo: So interest of full disclosure, Adrian is a good friend of mine of long standing and we’ve known each other since we were law students, basically. But I’m not persuaded, and this is why. I could see Adrian, I have not read the book in total, I’ve read the article from which it came from and seen a lot of the discussion, which you’ve participated and hosted yourself. And so to me, the logic goes sort of like this. If you know what the right values are for society, then the administrative state is great because the way our government works now, the administrative state would be the fastest and quickest way of implementing those values. The problem is, one, I’m not so sure what the right values are for the country. We may all individually have our views of what the right answer is for a lot of social problems, but I’m not sure I’m right.
I would like my fellow citizens to have a say on that too. And you have this messy system of democracy. This is really what the inventors of the administrative state from Wilson on didn’t like about democracy, that it is messy, that we do argue and we have disagreements and we may not know what the right answer is or that our society may be divided about what the right answer is. If you have a society like that, then what you get instead with that kind of powerful administrative state, I don’t think he accounts for this, is an administrative state whose members have their own view of what they want to do in life and impose it on the rest of us. I think that’s what happened during COVID. You had these bureaucrats who thought, gosh, we never had a chance to, let’s see what happens if we lock the economy and society down, and whether it can stop the spread of a disease. And they were terribly, terribly wrong, it did not stop the spread of COVID. It might have slowed it down a little bit, but I don’t think anyone would argue that it stopped it. So that’s one problem.
The second problem is, if you do create a system like that, and suppose the government is taken over by people who don’t have the right moral values or don’t have your preferred moral values, then you’re in a lot of trouble because there’s nothing standing between you and the government if it’s in the hands of progressives, rather than the people who have the common good values that Adrian would like to have. And then the last thing just quickly, and I think this is where the founders’ system, at least to me makes more sense for America than it might in another country, is that we are a diverse country. We have a country, it’s huge, 330 million people and it’s a continent wide and with waves of immigration.
And if you aren’t sure, you don’t know exactly what those people want, they may not all share the right values. Then maybe the better system is to have a system with at least little law as possible, with as little coercion as possible. So the common good constitutional system makes sense if you all agree on these values. You know they’re better than alternate systems and you don’t have qualms then about imposing those values on the rest of society. But if you aren’t sure, why not go for the system the founders had in mind, I think, which is decentralized weak government. And they defined freedom, not by achieving some common good values, but they choose freedom as in all of us having the power to make decisions for ourselves. And that we would form our own associations, groups, Tocquevillian system where we don’t rely on the government, we organize ourselves and we go to churches and we have local clubs and we engage. We start local political parties.
And those are the institutions that really matter in life because we should worry about it. I think a legal system, like the code of Justinian, which is from the Roman empire and still the system that works in Western Europe and parts of Asia where law is everywhere and government is everywhere. I really worry about the sort of absolutist tendencies of a system like that. Sorry for the rant. It’s not a rant. I’m glad I got a chance to think out loud with you my worries about the common good constitutional system.
Reinsch: Yeah, and I suppose for Adrian, the values are Catholicism and sort of a left wing, social democratic blueprint, and I think he’s fairly certain that’s the way we should go.
Yoo: I know, but how-
Reinsch: So the administrative state is going to bring that into being, and I think he’s clear in this book on that point.
Yoo: Yes, yes. I think that’s right. But what if you’re wrong? How do you know you’re right about that?
Reinsch: Yeah. Well, I don’t think he’s in doubt. John, thank you for discussing with us prospects for administrative reform. We’ve been talking with John Yoo, editor of “The Administrative State Before the Supreme Court.” Thank you so much.
Yoo: Thanks, Richard. It was really great to be with you, and congrats again on your new podcast.
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