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

Supreme Court, and the administrative state. Can Currently, he co directs the sed Boyd and Grace Center for the Study of the Administrative State at the nan Scalia School of Law at George Mason University. Glad we got you back, Mr White. How are you, sir? Great glad, It's it's our pleasure to have you. I was just reading your your CV as they say, UM, and your specialty in studying the administrative state. I imagine you get invited to many many cocktail parties, people just dying to hear about

administrative law. You know they you always think there's a way to make lawyers even more boring, and then you specialize in administrative law, you just go one level lower. Well, I'm glad you took that sarcasm in the spirit it was intended, because the the the irony of that is that administrative law can have such an enormous effect on all of our lives, our business, is, the economy, etcetera. For folks who haven't really familiarized themselves with that so

called fourth branch of government, why is administrative laws so significant? Well, it's so significant because in this day in age, and for the last many decades, most of our law and policy at the federal level really is made in and

around administrative agencies rather than in Congress. Congress has spent decades fun decades delegating broad power discretion to these agencies, and it's those delegations over time reached a tipping point where now Congress has less and less incentive to do any more work of its own because the agencies can do it, and so Congress instead focuses on things like oversight hearings or one on cable news shows or raising money or whatever they do, while the agency has become

the center of gravity in government, and a good example of it comes in the aftermath of the of the recent Dobbs case overturning Rob Wade, all of us including me, We say, you know, this is a good decision because it returns these issues properly to the states, but quite frankly, first and foremost, it will send these issues to the

administrative state. You already see the Biden administration talking about what the f d A might do, what Health and Human Services might do, activists arguing that the federal government needs to provide access to abortion on federal lands, on federal property, that kind of thing. Those are all administrative

state issues. But of course it goes much broader than that, and we're about to see we expect a big decision out of the Supreme Court in a case involving the e p A, which is significant for climate policy, but it's also significant it could be significant for the administrative

agencies more broadly. You know, I was just going to get into just a little more about the significance of the agencies and what they do, but we can we can just talk about the cases, because my point was merely going to be that these agencies, these bureaucrats, they right, they quote unquote pass uh, they adjudicate, and they punish violations of law. They're not called law. I guess the rules and regulations but if if I get fined or I go to jail because I won't pay the fine,

that sounds like a law to me. It sure does. And sometimes even when in theory you have a right of judicial review, when the process is all done and the court might throw out what the agency has done, sometimes the process is the punishment. Sometimes having to endure this long and costly administrative process. Whether you're trying to develop your land, whether you're a company trying to get federal approval of some new product. Um, those things are

costly and they take time. And I want to be very clear, I'm not a nihilist, I'm not a radical libertarian, and I'm even pretty sympathetic to, you know, a strong federal government on national issues. I believe in all those things. But you know, it's summer vacation time. And my dad always told me sometimes that the journeys as important as

the destination. It's important that these issues get funneled through legislatures rather than through administrative agencies, because the legislatures have to deliberate, often have to compromise, have to moderate things, whereas administrative agencies are built to move quickly and unilaterally, which means they tend to act a bit more sweepingly and a lot less moderately. So tell us about these cases before the court and what significance they might end

up having. Sure, Well, this year we've already seen several of these cases, UM involving administration. We saw them, of course in the OCEHA vaccine mandate case, where the Supreme Court held that while OSHA has a lot of power to regulate working condition in large companies, they can't use that as a point of leverage to create a you know, at the facto nationwide vaccine mandate for a all Americans, um.

And when the Supreme Court reached that decision, they they used not necessarily by name, but, as Coresus pointed out in a separate opinion, they used what's called the major questions doctrine, which is a legal way of saying that the courts are increasingly skeptical of an agency suddenly discovering in an old statute really transformative new powers that have never been invoked before. So again, OSHA has broad powers, but not necessarily powers. So broad is to allow it

to impose a nationwide vaccine mandate. Whatever you think of vaccines, and I have mine, uh, These are the sorts of things that need to be handled by legislatures, especially at the state level. Now, the next big case is coming down the pike for the Supreme Court involves the e p A, the e p a's latest suite of greenhouse gas regulations. It's a dispute that really goes back to the Obama administration and the Trump administration changing the climate rules,

but Biden administration changing them back. And in a nutshell, the Supreme Court has been asked to decide whether the e p A really does have power into the Clean Air Act to regulate the entire energy and manufacturing economy through what's called what the A. Long administration called the Clean Power Plan. And uh the Supreme Court might issue the case, might decide the case in pretty narrow terms,

either approve it or disapprove it. But if they do disapprove it, we'll all be watching for signals as to how narrowly the Court might construe other regulatory statutes. And and just one more thing, Joe, I don't mean to bladder on, but other cases the courts decided have administrative state aspects. Take the New York case New York Rifle of the second Amendment case with New York regulating the licenses to to carry handguns outside the home. It was

mostly a Second Amendment case. It had to do with how the courts evaluate your right to keep their arms. At the center of the case and what really troubled the justices was the fact that in New York and in five other states, the regulator, the one who issues these licensees, had pretty much boundless discretion. It wasn't that they started had to check the box list and they look for certain facts and it can satisfy as an applicant,

satisfy those facts, you get license. Now, the New York statute really left total discretion in the hands of the licenser, and that really troubled the justices. So you can see these issues seep into other cases that you don't really think of it administrative state issues. So, I know, asking you to make UH predictions as kind of an iffy UH proposition. Adam White's on the line, by the way

from the American Enterprise Institute. UM, but is is there a chance that the Supreme Court will fundamentally say the gigantic growth of the power of the administrative state has been wrong from the beginning and we're going to roll it way back, or is this much more likely to be incremental as you say now Rome, Rome wasn't built in a day, and it wasn't unbuilt in a day, and I'd say we should have a similar expectation here.

I think for folks like me who are skeptical of the administrative state and want to see it UM have more legal constraints on it. I think the most we can hope for is the Supreme Court declaring the e P A s UH policy here or it's assertion of

power over climate policy to be an overreach. It might leave the door open to more narrow climate regulations, and I'd be fine with that, um, but it would I think if the Court were to say this is just too overbroad, and we are in future cases going to continue to be skeptical of agencies suddenly creating new transformative programs in old through old old statutes, I think that would send a good signal. There's basically two within the conservative block on the Court. There's you can think of

it as two camps. There's some justices I think Thomas and Gorsuch are in this camp certainly, who want the judges in the Lower courts in the Supreme Court to have no deference for administrative agencies and also to be willing to strike down statutes as unconstitutional when they delegate too much power to an agency. For other justices like Chief Justice Roberts Kavanaugh, UM, they've sometimes agreed rhetorically, but when push comes to shove, there in a more of

an amendate. Don't end at camp where they don't necessarily want to strike down a lot of statutes is unconstitutional, but they do want to put more guard rails on the agency process. They want maybe steadier administration. And I think there's something to be said for for both camps. So I assume that when this ruling comes down, you'll

be writing about it. I will. I just have a new piece out in Commentary magazine on another important case in the same vein on out of the Fifth Circuit involving the Securities and Exchange Commission, And uh, you know, I I keep writing on these things because you know, even if Rome isn't built in a day, and you know, every little bit helps, all right, Well, we'll absolutely look for that after the ruling comes out. One more quick question.

We've barely we got about two minutes left. Um. I've been reading a lot about the shocking left word swing of America's law schools and then scally law school. George Mason University is not one of those institutions from what I understand, UM, do you have any thoughts on that topic. What have you seen at uh? Well, DC is lausy with big name law schools. Um, it's shocking to me they've abandoned like the principle of neutrality before the law,

that sort of thing. There's a few things happening. One is on just the campus culture in general, the things that students and faculty members face when they voice opinions that are unpopular on campus. That's a long standing debate, but obviously the last five or ten years has become even worse, especially in light of new social media technologies and others. And there's just the general leftward tilt of academia,

and that's also a longstanding issue. UM. But I'd say one of the reasons why things seem to be reaching an interesting moment, the basic getting so heated is I think legal academia, which tends to lean towards the left, is coming to grips with the fact that the Supreme Court that they study and write about and advocate before. Uh, is it facing a generational turn towards textualism towards originalism.

Imagine starting up your entire career, eager to champion and defend the Supreme Court, only to find about halfway through your academic career that you no longer agree with the Court anymore. Um. I'm lucky not to be in that position. Um, but I think it must be challenging for others. Adam White, Senior Fellow at the American Enterprise Institute, co director of the sea Board and Gray Center for the Study of the Administrative State at the eminent Scalia Law School at

George Mason University. Adam, it's always enlightening. Thanks a million, look forward to the next time. Likewise, thanks Joe, thank you,