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tv   Former FCC Chair Legal Experts on Separation of Powers  CSPAN  November 19, 2021 4:43am-6:18am EST

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would government. -- your unfiltered view of government. a conversation with the former
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federal communications chair about separation of authorities.
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>> i am the chair of the issues in appeals practice and have the honor of serving as the chair of the federalism and separation of powers group for the federalist society which has sponsored and put together these fine panels today. practice groups are group members and we have volunteers and put panels together for the convention. if you're interested in getting involved, feel free to approach me afterwards. before i get started, a couple of logistical notes. for the attendees seeking cle
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you must sign in every day to receive credit. if you don't have a card, there are extra cards in the room. some states require signing out as well. as a final note for d.c. regulations, please wear a mask unless eating or drinking stuff our moderator will introduce the panel. we are very pleased to be joined by chief judge will -- william h pryor junior who happens to have the distinction of being my former boss. he is the chief judge of the u.s. court of appeals for the 11th circuit stop he served on the u.s. citizens commission and from -- and served as acting chair. he is a rabid alabama fan and regularly teaches.
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he has made many contributions to the law but one of the most important i think is that he is responsible for having created the alabama office of the solicitor general and sits with two former occupants of that office. [applause] >> albert lynn has the extension -- has the distinction of being my former law clerk. political polarization is a great problem of our time stop this panel will consider the d formation of the separation of
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powers as a factor in political polarization. executive administrative decisions tend to be more extreme than legislative solutions particularly when is often the case, the house -- the house of congress and the presidency are divided on party lines. the congress delegation of policy decisions to the administration results and regulations that can shift radically between administrations, creating what some might call government by whiplash. this panel will consider whether institutional restorations like curving the doctrine and chevron deference might help in restoring the constitution of compromise. i'm going to introduce each of our panelists in the order that they will speak. each of them will speak for
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about 10 minutes before we have an opportunity for exchange of views and eventually questions from the audience. as usual, the federalist society has assembled an all-star panel of experts to discuss this topic. when we get to the opportunity for questions and answers, i will remind you that these are the panelists. they were invited to be the experts. we welcome questions, we welcome an opportunity for an exchange of views but i don't think any of you are panelists so you might want to keep that in mind. [laughter] our first speaker will be michael rappaport. he is the professor of law at the university of san diego school of law where he is also the director of the center for the study of constitutional
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originalism. he teaches constitutional law and administrative law. he has worked in the office of legal counsel in the department of justice and practices law -- appellate law with gibson dunn in d.c. and received his doctrine in political theory from d.c. law school. our second speaker ajid pai is a nonresident fellow at the american enterprise institute where he studies issues about technology and innovation, telecommunications, regulatory policy and market based incentives for investments in broadband deployment. he is also a partner at searchlight capital partners, a global investment firm. he graduated with honors from harvard university and the university of chicago law school. our third speaker is professor
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victoria nurse. she is the wentworth professor of law at the georgetown university law center here. she is also the director of the law school's first center on congressional studies. she is one of the nations leading scholars on statutory interpretation, congress and the separation of powers. in 2015 and 16, she served as chief counsel to the vice president of the united states. she also served as an appellate lawyer in the department of justice and special counsel to the senate judiciary committee. she graduated from stanford university and the university of california school of law. finally, her final speaker is neil devins, the sandra day o'connor professor of law and professor of government at the college of william and mary.
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he is the author of several books and more than 100 articles and book chapters on ports, constitutional law, and law and politics and served as assistant general counsel for the u.s. commission on civil-rights. he is a graduate of georgetown university and vanderbilt law school. without further ado, professor rappaport [applause] step [applause] >> i want to thank the federalist society for inviting me to talk about an important issue. polarization of american politics is obviously a very serious issue all step today, i want to argue that a significant contributor to polarization is presidential unilateralism.
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and we can reduce polarization by moving away from unilateralism to political structures that require congressional consent. my talk today is based on an article that john mcginnis and i have cowritten. presidents and unilateralism addition unilateralism involves presidents having the power to take actions like passed regulations, initiate military action or make international agreements that traditionally require the this -- the ascent of congress. allowing the presence to unilaterally take these actions contributes to polarization because it leads to more extreme actions. if these actions could only be taken with the concurrence of congress, the parties would have to work out compromises, especially during the use of --
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during the usual situation when we have a divided government stop government action within be moderate, less threatening to people from the other party. let me start by defining polarization. i view it as a combination on the one hand, a sharp division between the political parties on policy issues and secondly, an us versus them mentality between the parties. first, that sharp division means elections take on enormous importance because the loser will really lose big in a world of unilateralism. the sharp division and the resulting fear of losing collections leads to this us versus them mentality. people view the other party not so much as opponents but as a threat to the country to be demonized.
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one of the principal ways unilateralism occurs is through the congressional delegation of regulatory authority to the president and the executive ranch. this delegation leads to enormous polarization. regulations are more likely to be extreme if they are enacted through delegations that are -- rather than enacted through congress. if they are enacted by the president, they look like the president's policies and presidents tend to occupy the median of their party. thus, regulations from the president tend to be relevantly extreme. by contrast, if the regulation has to go through congress, and the president together, it's going to be much more likely to be moderate. if there is divided government which holds three quarters of the time, there will certainly
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need to be compromise which will bring the regulation much closer to the median voter of the country rather than the median voter of the party. even if there is not divided government, the regulation is the likely to be moderate. there are factors like the filibuster rule and the need for the majority to protect its most moderate members who are from swing states -- swing seats. in a world where congress is needed to enact regulations, polarization would significantly decrease. the parties would need to get legislation in order to pass those regulations. thus, people of each party would not have to hear as much the election resident from the other party since its consequences would not be so significant. since they would not have to
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fear the other side so much, they would develop much less of the us versus them attitude toward the other side step delegations are the problem, what can be done to cut back on that? the most obvious solution would be for the supreme court to hold the delegation and policymaking discretion is unconstitutional. a strong decision cutting back on delegations obviously would have a dramatic effect. there are other possibilities. one possibility is for congress to pass a law such as the proposed ratings act which would allow agencies to draft regulations but would not permit them to be promulgated without congress approving of them. if this procedure was applied only to major regulations, and if it significantly limited congressional debate on those
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regulations, it could be feasibly applied to the most important regulations that agencies ask each year. policymaking discretion of agencies could also be raised if chevron and her difference were eve or reduced. my presentation focuses more on these domestic matters of regulation, similar arguments could be made about military and foreign affairs. in these areas, residents have both usurped and delegated powers that have led to large stream actions. unilateral residential decisions to take offense of military action leads to more controversial wars. that's compared to the more consensus wars that congress would declare under the constitution's original meaning. similarly, unilateral executive
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agreements lead to more extreme agreements as compared to the agreements that could be ratified as treaties under the constitution's original meaning. let me consider just one objection to my argument here. my argument assumes that the parties can cooperate and optimize pass legislation. it might be argued that the parties are not willing to compromise. instead, the members of congress opposed to the president already will not be willing to compromise with the president because they prefer to deny the president a victory that will enhance his chances for regulation step the president will veto initiatives from congress that would the other r.g. to victory. i think this objection is mistaken.
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simply because this is how artie's behave now under unilateralism and it's true that they do. it does not mean that's how they would behave under more consensus structures. the parties would behave differently because they have different incentives under these two regimes. the president has brought authority and enacted the regulations he favors, thus the resident has no incentive to compromise with congress. the congress cannot secure any improvement in their situation by compromising with the president to give him more authority. the best that the congress can hope to do is to secure the presidency in the next election and so they act to deny the president a victory. things would be different, very different in a world where the president cannot adopt regulations on his own. in that world, the president and
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the governing party could not get much enacted without compromise. if they refuse to compromise, both special interest groups and the general public would become frustrated, very frustrated and would put pressure on the party that would not compromise. this would change their behavior. in the end, moving from unilateralism to consensus structures would resume -- would reduce polarization. it's an important part of the cure for what ails us. thank you. [applause] >> thank you very much for the opportunity to be here today. as is typically the case, i should offer my gratitude first to the federals -- the federalist society for hosting this event and in particular
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hosting it in person. it's great to meet anywhere with anybody in the same room. [applause] that said, i have a couple of gripes with the federalist society this afternoon. this event has allocated the timeframe of 11:45 a.m. until 1:30 p.m. and i was led to believe you are willing and able to hear my disk curses for that entire time. i'm shortening substantially what i planned to say as a result of the time oh to my fellow participants. the mug i'm using is smaller than i'm used to but we will get past that. i want to thank our moderator for moderating this. my very first assignment on my first day for former senators sessions was to draft a press release right nominee who was about to be announced as a nominee to the u.s. 12 court of
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appeals and i looked at these writings and i said i like the gist of this guy and sure enough, judge pryor has done a fantastic job of the u.s. court of appeals and we are grateful for his service. [applause] he also offered the greatest series of exchanges ever uttered in a confirmation hearing which you may remember. the chairman of the senate judiciary committee asked him to characterize his political philosophy and he said i'm a conservative. he said when you say that come are you a moderate -- conservative? the nominee said some people in alabama would consider me a moderate [laughter] . bravo, spot on. [applause] thank you as well tonight fellow panelists. i am participating on this panel
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as a professor, x bureaucrat, not quite a fair fight here but i will do battle with the arms i have been given. professor rappaport frames the issues for this issue today. this is a time of unusual polarization and the factors that contribute to that are multi-variable. let me stipulate that the separation of power concern and a time of divided government heighten that polarization. i'm sure many in this room i disagree with some of the decisions of the current administration as many have disagreed on the other side of the pile made by the previous administration. government by whiplash is a real phenomenon and regulations change from administration to administration and and cap
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slated that elections have consequences -- and are encapsulated that elections have consequences. that can lead to some unpredictability and what the administration will do over a longer time. let me offer a slightly different perspective, one that is informed by empirical experience in one of those independent agencies. generally speaking, it is unusual for congress to speak with a clear and specific voice on matters of public concern. the agencies are creatures of congress and the act based on the organic statute that a been passed by congress. it follows that congress has acted or acted in an ambiguous way but they are ceding the grants to those agencies. when i was at the fcc, there are
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many times when i thought congress should step in and provide clarity on an issue. there was an issue of net neutrality. you can now use it to google what this issue is about. millions of people did not die on the decision we made in 2017 but this issue had been kicking back and forth across ministrations. in 2014, the u.s. what appeals said for the second time that the fcc decisions under the obama administration to impose net neutrality regulations could be seen. i said the courts have now told us that what we want to read into the communication is not there. we should try the congress and let them make the decision and speak with a bipartisan voice and tell us what you want the rules of the road to be in the digital economy.
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the legislation was not going to be for coming so they tried it a third time. regulations were repealed in 2017. there is no doubt this raised a lot of irony. it could be considered by those on the others of the aisle to be extreme. senator bernie sanders said this would be the end of the internet as we know it and decried the effect that the administration was making a unilateral decision that was contrary to the views of many of his constituents and those across the country. those types of situations, i would certainly refer that congress speak. the problem is that as long as stasis is the norm in congress is what it is, it seems that i think those who consider themselves to be conservatives would be making a mistake from unilaterally disarming and forgoing making transformative
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decisions in the public interest and are still legal when they are in charge of the executive branch and independent agencies. i would note that there are solutions to this problem outside curving delegation and curving shepherd. one of the unnoticed stories over the past four years is that we had a collaborative relationship with congress when we saw gaps in the law. everything dish at one in the room would accept the premise that the u.s. has communication avenues that should not include equipment or services considered insecure from a national security perspective. clear to say any federal funding coming from the fcc could not be used by telecom carriers going forward. the problem was there was a huge amount of equipment that goes
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into our equipment and doesn't use federal funding. we simply do not have authority. we went to congress within three months, they crafted legislation all the secure and trusted communications network act. it was signed by the president step there are many other instances of that where we go to congress because we have the flexibility to target gaps in the low and work with congress, we got the job done. a second solution is the vigorous use of the traditional tools the congress has on its -- at its disposal. now that i am office, i don't have to testify but oversight, you get these agencies to explain what they are doing and why.
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when you go for a hearing and you have to testify and you notice that six senators are asking you about something, it raises the incentive you want to pay attention to those issues. i would argue that congress has not exercised the power of the verse as vigorously as they could. there is a constitutional means of congress registering their disapproval. one of the things i found interesting is that congress passed the substantive laws but they don't give agencies any guard rails how would should be interpreted. there is the administrative procedure act but there is a generally wide earth to interpret terms. why doesn't congress pass a law because the federal rules of statuary -- statutory
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engagement. it can be a general statute or could be targeted in a particular agency or subject matter and that would be a much better way to take the extremities out of these agency decisions because any party would know that regardless of who controls the white house, i have confidence they will be bound either by their own restraint on what they can do. i don't want to overstay my welcome. i wanted to throw a few ideas out there and i look forward to the exchange for my colleagues, thank you. [applause] >> i'm so delighted to be in person anywhere. thank you for inviting me to the federal society to talk about the separation of powers.
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unlike many people come i revere the separation of powers and wrote about it in my very first law review article. i am delighted to talk about this today step i will push back a little bit on the premise of the panel. i seem to think that maybe the president doesn't always have an incentive to be unilateral. infrastructure bill. one thing i want to say is about the incentives for congress. i recommend an article called the secret congress. it has recently been on the web on a website called the slow end the boring. read it, it will tell you something you do not want to hear. congress still passes laws. you haven't heard of them because they are slow and boring. the water to bill, hate crime act, forget about the bipartisan
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for structure bill. they dump things out of the public view, that is my experience. my experience, when i worked for the senate, was i spend more time with the other side. so, my experience tells me that congress gets more done than most people think by reading the newspaper. i have to confess, having worked in government, i am one of 2% of law professors who has ever worked in legislature, then you out on the fact i work in the white house, that is pretty rare. the wall street journal nor the new york times ever reported accurately on almost anything i have ever done. [laughter] and i am entirely bipartisan about that with the media. so it's a pushback about the premise of the panel and whether nondelegation actually achieve what the professors suggest, because i think there are incentives for presidents and congress to do bipartisan things
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in the structure of the constitution. let me talk a little bit about the structure and why i am eager to talk about it. it is a little different, i'm going to ask you to do an intellectual shift about separation of powers. most people think the separation of powers about adjectives. it is about executive judicial legislative and vesting clauses. if that were true, our government would have collapsed long ago. why? you can describe them is doing the functions i just described. if you read the text, there is something more important. madison thought it was more important: -- important. it is about elections. the text for self-government, this is what they were fighting, monarchy. that was central to them.
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they spent the entire convention worried about who would elect to. so you had the president who represents the nation, another bipartisan concept through the electoral college, which gives the president incentives to be bipartisan. the senate represents now, because of an amendment, the people of the states. it is a different constituency. the senator from alaska does not have to abide by roll tide. they might not care what is going on in alabama. does the president? he probably does. the house represents an even smaller population. that is in the text. to see how important this is, think of a different set of relationships. for most of the convention, the president was to be elected by congress, did you know that?
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imagine nancy pelosi, mitch mcconnell, chuck schumer electing a president. it would be a washington cabal. and so, at the very end of the convention, they gave the president his own constituency, the electoral college was the compromise. that created separation of powers. as i said, i think you can also read this if you read the federalist papers. i don't want you to pick and choose quotes like friends at a cocktail party. i wanted you to read it sequentially, 47, 40 8, 49, 50, 51. if you read the argument, you will see madison was saying separation of powers provisions in the constitutions of the states have failed. there were parchment barriers.
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this is my very first law review article, what i found is if you read the argument fully, you see madison cared very much about how to structure a government, how to structure elections, appointment and removal. so elections matter. they provide incentives, the incentives are not necessarily part incentives because parties were not in original constitution. so i trust the text more than -- my husband is a political scientist -- political scientist discussions about voters. if the premise is correct about the constitution, i think unfortunately, the political partnership i agree is an issue of our time. which is why i was delighted to accept this invitation. it is not my personal experience
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of working in government, and it is very frightening. it is freighting because it affects presidents and congress. it affects all institutions, including the supreme court. i think it predicts the decline of admiration for oliver institutions that are elected -- all of our institutions that are elected. much more likely to get more extreme nominees. well, i think i have been quick and depressing, not slow and boring. but hopefully, i will be able to answer questions about anything. thank you for listening. [applause]
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>> it is great being here. thanks to the federalist society for inviting me. i'm going to talk a little bit about the way party polarization has contributed to presidential unilateralism. i'll provide a little more context to how we got to where we are to where we are today. one thing i'm not going to talk about but wanted to flag for the q&a's congress, years ago, thought evidence additional desired known as independent agencies as a mechanism to of policy stability and avoided this whiplash phenomenon people have spoken to. it might be interesting to talk about whether the design structure works and if it doesn't work, whether there are reforms that are likely to work or not work. but let me start with a quote. i think it puts into focused the
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incentives of congress versus incentives of the president. justice jackson said i have no illusion that any decision by this court can keep power in the hands of congress if it is not wise and timely in meeting its problems. if not good law, the tools belong to the man who can use them. we may say the powerful edge late emergency belongs to congress, but only congress itself can prevent power from slipping through his fingers. but i think he recognizes the incentives of congress are as compared to the incentives of the president. for the president, whenever the president says he can do something, he is expanding presidential power. the president is always incentivized to talk about his having legal authority for actions. it could be an expansive
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understanding what a statute means, understanding that the constitution means, but whenever the president says he can do something, he doesn't say i can do it because i can do whatever i want, lawful or not. the president says it is lawful and he has a theory behind and is constantly advocating on behalf of presidential power. congress is not like that at all. there is a collective action problem, for example. members of congress, in some sense, might care about say the war powers, but are they going to invest in blocking the president from pursuing any unilateral strike when made to think about reelection and what constituents want. congress often trades off national interest in institutional interest in favor of local constituency. on top of that, what members of congress do not approve of legislation, if they vote against it, they may argue that
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legislation is not within congress's power. for the affordable care act, for example. republican members were not advocating for an expansive view of the clause. they were advocating for a more moderate view of the commerce clause. in congress, you do not have the advocacy on behalf of congressional power, i think that is a major problem. so whether congress can check the president, i'm going to use the watergate era responses of congress, the war powers resolution and climate control act as an example of one congress is willing to assert its institutional role. when congress did that in the early 1970's, you had to phenomenon. you had essentially bipartisanship in congress,
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democrat and republican parties are not that different from each other. you have the fact that voters who are willing or come together let us democrat or republican but across the political spectrum, cross the parties to say they want to place checks on the president. that was a time when george wallace said there is not a dime's worth of them it's -- worth of difference between democrats and republicans. because of that, they were able to work together across party lines to back legislation that was politically popular. that is not the world we live in today. democrats and republicans are polarized, as noted. they also do not like each other , for those of youth that have read about the studies there is something known as effective polarization. emma kratz do not want sons and daughters to marry republicans,
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republicans do not want sons and daughters to marry democrats. they reached the other party on a scale. -- rate the other parties on a scale. as a result, members of the opposition are not going to back the president's policy initiatives, members of the president's policy are not going to back the opposition party initiatives. not to say there isn't a legislation being enacted, but at the same time, there is a lot of gridlock. as a result, there is space for the president to come in. when the present advance is a policy initiatives at the other party does not want, it may not be enacted. but the president acts unilaterally. congress is not going to overwrite him because the president's party is going to back the president. they pursue policy for executive
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orders and directives over the past 20 years, their friend about 800 executive orders. 96% of them go unchallenged. presidents are filling the void left by congress in profound ways. we example of this, president clinton could not get health care legislation through. he pursued some directives in that area, president bush -- george w. bush could not get faith-based initiative proved. he proved initiatives, executive orders on faith-based initiatives. we here today that president biden may respond to congress's failure to enact the george floyd act by acting unilaterally. this is the way it goes. as a result, we see power slipping away from the congress, the president gaining power. i know we are going to have a very robust conversation about the solutions to this. i must say, i am pessimistic there is a solution that can
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break this polarization problem, but i am hopeful my panelist will convince me my skepticism is misplaced. thank you. [applause] >> let's give the panelists an opportunity to interact and respond to each other. do you have a response to some of what you have heard? >> well, i guess -- so, on the one hand, the professor said there is bipartisanship. we do have compromise. in professor devens us is do not.
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in a way, i am inclined to let them to get out. [laughter] look, i am -- yes, in the rarest , most unusual situations, we do have a little bit of bipartisanship. so we've got a small number of republicans who are willing to sign on to one portion or one of the infrastructure bills, that is right. that's not the kind bipartisanship you used to have with, let's say the medicare legislation that passed in the 60's. so yes, we have a little bit of that. but by and large, is everything we see is people crying over and over again that there is not any cooperation going on.
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when presidents can do what they do, as professor devens points out, when the congress does not act, they can take their own actions and the congress is not going to act because presidents are not going to take anything less then what they can do on their own. we see this unilateral situation happening in as a result, we do not get compromise as parties get more and more opposed to one another. >> is that a function of unilateralism or function of change in political parties and how they are structured? because you mentioned the medicare act, i think the civil rights legislation, which was bipartisan, but that is also because democrats in the south
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voted against it and republicans in the north voted for it. the parties were very different. there was a lot more of a mix of ideologies within the parties. >> the causes of polarization, i do not want to say the sole cause of polarization has been presidential unilateralism. certainly not, there is a number of things going on. let's say during the 1960's, when the parties were structured in such a way that democratic party was really two different parties and we had liberal republicans, some of the forces that might have led presidential unilateralism to cause the polarization were tamped down because parties were different in these ways. the problem with presidential
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unilateralism is that when it goes away, it gives full sway to the more extreme action. i'm not saying that is the sole cause, but i am saying when other circumstances change, it no longer has any check. if we didn't have presidential unilateralism, if we had a structure that required the parties to cooperate, even without liberal republicans and conservative democrats, we would have much more parties getting along with one another or being forced to. take about our president. joe biden was previously known as the moderate democrat who liked to work with the other side, got along with all these people. what happened to that? so, i think more is going on.
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but really essential feature is the presidential unilateralism in terms of allowing it to continue. >> other panelist reactions? >> i'll offer one point about delegation. i would truly welcome congress including inbuilt language more specific terms to guide if not altogether eliminate agency action. i think they're two different points need to be considered. it implies congress will act with more specificity, including very specific terms of language to limit agency decision-making. they are two different points i would make on that. one, i would argue that in some cases would limit if not preclude altogether the likelihood of congressional decision-making at all. right now, legislation often operates at a level that is sort of a variant to what is a theorized agreement. democrats and republicans may agree on high-level principles and because they are unable to go one or two levels divert in a
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specified terms, they are happy to plant the overall implementation of the framework to an agency. otherwise, the entire letter slate of purchase with compromise. if you require congress to act more specificity, it would be very difficult. yet the pencil sharpened, you've to figure out are we going down this fort or that one -- fort -- fork or that one. as i learn from experts on twitter this morning, the filibuster remains in place. i would argue the delegation can promote compromising the legislative branch to some extent. secondly, think about what legislation is at the end of the day. a snapshot of an issue or marketplace at a moment in time. if there is one thing we learned in any field from technology to energy, the snapshots can quickly become faded with age. you run the risk of inevitably coming back to where you
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started, were some of the terms that have become archaic, the agencies are struggling to him limit them. in some cases, has to implement them because they are law and to serves the public interest at the end of the day. in many cases -- you see this as conservators criticizing the endangered species act as being too harsh and say agencies have discretion while those on progressive side complain about certain statues that don't allow them to do as much they would like to. so you might see a broad delegation of authority that allows expert agencies to fill in some color could be half a loaf which is better than no loaf at all. >> i think -- i have great sympathy with that comment. i think there are times where congress focuses very much on specific details. i've been in rooms where people stay up 24 hours to try and hammer out specific language. there often times when
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delegation actually solve this problem, because they do not know the technicalities. they don't understand the internet, they don't understand how something is implement it. they did this with courts, as well. i am nervous about limiting delegation, just as a constitutionalist, i say i am worried the court, even if it were to go down that road, could implement it. i think what would happen is something that happened with a traditional state function doctrine. the court has tried several times to embrace federalism. each time, it could not manage the test. so then i had to push back and return. they did it with morrison and lopez, the commerce club -- i'm worried that if i were a judge, i could not define precisely
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enough, and what would be too broad of a delegation. so i think there would be five votes for the on the court, as a practical matter. do you go. -- there you go. >> i am very stupid that x -- sympathetic with the comments that were just made. and i am thinking of what is a solution here. i don't think the independent agency model is a solution. i think one of the lessons of the agency model is that presidents are able they're making good appointments in particular -- are able to advance on policy agenda through independent agencies. so how do you get congress more engaged? i'm not sure if there is a good solution. but i thought of a couple things that might come at the margins,
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be helpful. one is to have more professional staff in congress. when newt gingrich became the speaker of the house way back when in 1995, he pursued and major transformation of power away from the committees into leadership. the staff associated with leadership essentially doubled, the staff associate with the committee was cut in half, or nearly in half. i think if you have more professional staff on committees , you might have more policy continuity, more of a commitment to the committee jurisdiction. another possible reformed that at the margins might be helpful, i don't think any of these are solutions in a permanent way. just at the margins, things that might be helpful is to maybe allow committee chairs to serve multiple terms. serve longer terms. there are restrictions on how long committee chairs can serve
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in the senate, for example. i think maybe if you have more of a stakeholder through the committee chair, that might get congress more engaged in that committee chair would have more incentive both as an expert given his or her reputation associated with the committee jurisdiction, more of a commitment to work with the minority to get the committee to accompany something. i don't know whether those reforms will accomplish much, by think they are worth considering. >> since i'm losing my support for non-delegation, so the commissioner says delegation can promote bipartisanship because they don't have to agree on the details. i suppose that is one way you get legislation passed to these days.
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but the problem is when you delegate, you got the problem of presidential unilateralism operating. i'm not sure the bipartisanship is worth much. you've got bipartisan delegation , they do reach agreement now because there has been a delegation. but that does not mean and a world for you cannot dedicate, they would not be forced to reach agreement different ways. you can make compromises in different ways. republicans, you get your way on issue one inch democrats, you get your way on issue two. there are other ways of reaching agreement and simply pumping it to the executive. with respect to the supreme court, i do not think it was an inability of the court to manage federalism, i think it was a failure of will.
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the court was not willing to go ahead with these ideas. so i guess i do not think -- not that it would be the easiest area of constitutional law, but i do think the court blinked. and for professor devens, i quite agree that having a more elaborate professional staff would be a great thing for congress to have. as an alternative to the nondelegation doctrine, i see that as a way of implementing the nondelegation doctrine. if congress does not know what it's doing now and needs to delegate, the need to then have a more elaborate staff to figure out what the rules should be, that would be great. that is something that would help. >> subject to civil service
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rules, we are going to end up with a deep state of congress. [laughter] unless the panelists want to say something more in exchange of views, i think we may be at a point where we can start taking questions. >> thank you very much. cato institute, question for professor devens. you've called for more experts in congress. that comes out of progressivism 101. it brings us back to the nondelegation doctrine. were the nondelegation doctrine to be upheld, you would therefore require congress to make this agreement or reach it.
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if they could not, it you would not have so much legislation for the administered of agencies to work with, and we get back to limited government. >> was that a question? >> yes, question for professor devens. why do you think experts will solve the problem? they are the problem. [laughter] >> the question, in some measure, is can you get congress to enact specific legislation when there is such partisan disagreement? i think the possibility of getting congress, and understand what mike is saying. if you have the doctrine, you will put pressure on congress. you have no choice but to come together. i am not so certain congress will come together. and so, the problem is, the
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permissive rogers question is he thinks it is a good thing when government does not do anything. [laughter] [applause] >> some of your premise is, we want government to do things. >> i think we want government to at least be functional. [laughter] right, may ships passing in the night in that sense. i think the notion of professional staff in congress is at the margins. -- to be able to have the expertise to have bessette for
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city if you are concerned with delegation, getting a functional congress, i think having power back in the committees, stronger professionalization of committee staff, members with stronger stakes in their committees, i'm just saying maybe it's not a bad idea. it's associated with a period of time when congress was last polarized. i'm not saying it will make congress less polarized, but those were some of the conditions in congress when it was last polarized, so maybe that will be of some marginal benefit. >> can i just say i think the likelihood of congress passing legislation to add professional staff is zero. >> why? >> election incentives. do i want to add myself more staff in georgia or alabama?
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that's not going to happen. the reason it's not going to happen, also, and this is my pet peeve. i thought i was pretty expert when i worked in the senate. i'm not advocating that. so, i think that, unfortunately, when i went to interview members and the 2000 era, people were being elected to hate and have contempt for congress and if you have contempt for congress, it will become contemptible. there's a self-fulfilling prophecy there and it makes me very nervous. why? it's article one for a reason. we fought for a legislature against a king. i understand fully the problems with giving broad delegations. there are other ways you could solve that. you could have a referral system where courts would refer back to congress. the south african constitution has something like that.
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i'm not certain on delegation is the answer. i like the rules of statutory interpretation but there are cannons in law that no one knows of because the reviser's office puts them in the notes. there are hundreds of them now. they are in the notes and not the text. i think there are ways around this, but what disturbs me more, more than political polarization, is contempt for american institutions. i believe in a very robust civic education for lawyers and everyone else. >> next question, here at the front. >> professor epstein advances a proposal that i think what upset roger but not terribly and in part addresses the comments about congress lacking expertise, it is that courts, it's a deference-based remedy, courts should give review to an
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agency's legal determinations, something like clear error review to factual determinations that take into account expertise , i'm curious about what you think of that and how it fits into this issue of polarization and this solution. >> that could be interesting akin to the rosenkranz proposal, with respect to legal determinations, then perhaps defer to the agency on what types of equipment or services should be covered in a communications network or whether this particular migratory bird should be protected or not. courts generally speaking are not going to be has expert in second-guessing, it's fair to say. i would be open to that and i completely agree with professor rappaport, that sort of delegation i was talking about earlier runs the risk of
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unilateral decision-making but to the extent that it could be cabined by statutory interpretation, i think every party -- party signing on with no or have some confidence in president, regardless of party, being hemmed in within certain guidelines, not just cutting a blank check, but letting them make decisions within an understandable framework. that's a great suggestion, though. >> i think that is the original meaning of the apa. it's not just from professor epstein. but. >> we will alternate between the microphones and take a question from the back. >> elliott, george mason university. my question is about delegation or non-delegation, there are some on the right, i don't share the view myself, but some who are deeply opposed to
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delegations to agents, but they don't mind it to the president. they don't mind it to the deep state but are fine with it towards the service state, the person at the top of the executive branch hierarchy. from the standpoint of polarization, do any analysts think there is a distinction to be made between these kinds of delegations, where one is the president or the highest level subordinates, the ones he appoints himself, whereas others might be too administrative or independent agencies. is there one type of delegation that is better or worse than the other for polarization and if so, why? thank you. >> well, i guess i think that in the main there isn't really significant. there are differences obviously between those types of delegations but from my
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perspective, the unilateralism is going to be a problem for both of them. obviously to the extent that we are talking about executive branch agencies, the president is going to be able to control those actions in any event. so i'm not sure how much of a distinction there is, assuming the president wants to get involved. with independent agencies i suppose there can be differences. but it is certainly my understanding and i think the literature would back me up, although we have to see what the chairman says, they are pretty much following what presidents want anyway. so, there may be some differences in particular circumstances, but to me delegations in both cases have the principal evils. >> other, other panelists?
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>> i think what mike said is just right. you can speak on the fcc of course but i'm doing work with political science and based on surveys of both political appointees and senior executive service supervisors, the line between independent and executive agencies is not that sharp. you know, independent agencies are generally under the control of the president, if not at the get go very shortly thereafter through critical appointments of the chair and, indeed, related to polarization when a majority of the presidents party is a majority of the commission, they generally do the bridge -- bidding of the presidents party because we now live in this polarized world where the president's party essentially agrees with each other.
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you don't have the policy diversions within the majority party commission. the chairman should speak to that, he lived it. >> yeah, certainly we operated independently from the white house during my time. there were a number of different issues where the white house preferred one course and we chose another, so i think it does depend on the composition of the particular multimember agency but i would like to think that my counterparts at other agencies and i certainly conducted ourselves independently. there were times when we did have to collaborate on things like spectrum options or whatever but i think the independence of the model was maintained for the most part, at least in my experience. the nature of delegation can also vary. i don't think we are talking about delegation is a blank check. there are also types of delegations that people in this room might like, like section 10 of the telecom act of 1986 is
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essentially a deregulatory ratchet that says there is a corpus of telecom law this dating back to -- laws dating back to 1934 and we compel the could -- the petition where the agency shall, shall, repeal those determined to no longer be necessary because a public interest. same thing on media ownership regulations dating back to 1975 dictating what newspaper can purchase what kind of radio station and other micromanaging regulations and congress said that instead of supplanting those with its own specific rules it had to deregulate, within every couple of years the fcc has to decide which should be revised or repealed given the changes in the marketplace. these are the kinds of deregulatory regulations you might say that might be progressive from our perspective in terms of allowing them to do something within the framework
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congress made. >> i want to push back on the notion that there is no difference. i think it's quite dangerous to put everything in the white house for whatever president. there must be a law. presidents do push the envelope. president obama knew that he was pushing the envelope. if you channel everything into the white house, even deregulating nuclear power, there is a level of expertise that you want. i would be nervous about, i understand because of the unitary executive and the notion that the president alone has the executive power, the problem is the president is literally never alone. hate to tell you that, but he's got a massive entourage, even when he sleeps. at the president alone is operating for the nation and there are lots of internal rules about when he does things for the nation and when he does political stuff but that line is
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tenuous and i'm nervous about giving folks in the white house more power than they already have as opposed to agencies, i think it would aggravate political partisanship. >> i can't resist following up on the chairman's point, the idea, if we are going to have delegations, the idea of deregulatory delegations is i think a great idea. and in fact, to really see it operate, rather than ask the fcc to figure out which of the regulations should be eliminated , i would actually like to see an agency created that is a deregulatory agency. filled with people, who is going to be part of that agency? people in favor of deregulation who would have authority to repeal the regulations of other agencies.
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so, i actually think if we are going to have this delegation type system, there are things we can do in order to push back against excessive regulation. >> ok, let's have a question from the front. >> my concern rises from article one, section one, all power to make rules derived from congress is not merely to protect the power of congress, but it's to protect the rights of the voters . the voters have the core ability to throw the rascals out if they don't like the law being made, but when these agencies or the president is acting alone, you don't have the power to throw the rascals out. like we just did in virginia. the agencies, so most impossible to change those rules. wire the voters left out of all of the discussions in this "doctrine of delegation?
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-- delegation"? >> i thought you began with that discussion. >> i mean they just got rid of the president and they may just do it again. so, i understand that voters may feel that they don't have access to this. the question is, if you ask them, they just did an empirical study asking people what the ordinary meaning of things would be and would you rely on lawyers, they actually relied on lawyers for a lot of legal meanings. people do rely on experts. i don't necessarily want the voters running the nuclear regulatory agency. i want someone who understands the internet to run the fcc. [laughter] so, i understand, but the
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question is with the voters, i understand many voters probably want to get rid of congress. i don't want to do that. others want to give it of agencies who are more removed. even the supreme court in the original chevron decision believed that there was some electoral accountability in the constitution and i think the professor is right. presidents can control independent agencies if they want to. they are not very good presidents if they can't figure out how to pick up the phone. so. >> i mean i'm super that it to the question but of that would be nice if the voters who said look at the legislature and what they have done let's change them would sometimes say, my god, what has the legislature done, they have given all this power to unelected bureaucrats, throw those rascals out.
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unfortunately, the voters don't do that very often, which is part of the reason why congress finds it so attractive to give the power to the bureaucrats. >> question in the back? >> keith roberts, having served in the house from 2013 to 2019, i think the concentration of power, whether in an agency or among congressional leadership has contributed to polarization. we are removing the people. and taking away their voice when this happens. i've been a big feint of the remains act for years, where you make the representatives accountable for the laws that are being made, all laws are supposed to be made by congress. not by an unaccountable branch. there is very little accountability for the administrative agencies. so this concentration of power
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in agencies or congressional leadership, you see it there when they shut down the amendment process and rather than debating an amendment on the floor, people are running to twitter to make their case because leadership doesn't let them do it. they package the bills together, 6, 8, 10 people looking for input. the process has to be opened up completely and frankly, flying in on a monday and then out on a thursday doesn't empower the leadership and the folks in the town. >> do you have a question? >> the idea of this concentration of power, how do you defuse the power away from the centers? i think it has contributed to polarization. >> the house operates completely differently from the senate. there's an old joke, it it's not republicans and democrats that hate each other, it's the house and the senate.
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this is what we see in the paper , to senators controlling something. sometimes, sometimes not. the house has given too much power to the leadership to control the docket. no question. if i were to change congress, i would open that up. you can't have the kinds of close rules you have in the house. the senate passed 60 has to be germane. i read with you on the house. >> any others? yes? >> i lied. brooks, technology and communications is the name of my law firm. i try to look at technology and how it impacts things. my question is, is polarization caused by washington, d.c., and government, or silicon valley?
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in particular, as you all know, half of the people here have these cell phones and are listening to them now instead of listening to me. [laughter] click on something, put it on social media, they track your usage and they push. if you click on leftist articles, you get more leftist articles. the more you click on them, the more left you get. same on the right. news media and other websites respond to that because it is competitive and they feed more polarized stoler he -- stories. what's the cause and the effect? washington, d.c., or silicon valley? >> there may be multiple causes and i think certainly the chairman should definitely jump in on this, but i think you know, technology is, you know, with personalized media and the fact that we no longer live in
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local and state communities where we read the local newspaper and watch the local news, everything is now customized and oriented towards one or another political extreme. the repeal of the fairness doctrine has arguably contributed to this as well, changing how media operates. let me pose the question to you, chairman, what would you think of returning to the fairness doctrine? would that solve some of our problems? >> first of all, no more answering questions for me at oversight hearings. seriously though, i would definitely oppose that. one of my predecessors did a fantastic job in the reagan administration, putting it in the scrapheap of history where it belonged. having regulators sitting in judgment of content is always fraught. i do think that a lot of what
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was said resonated with me. i gave a speech for years ago this month where i talked about my view that social media in these other new technologies, which do have some upsides, i will concede, seems to have course into the culture in significant ways. things that you relate to this topic. you are having a conversation with someone on social media you are not in the same physical presence, so you say things on social media that you would never say. this includes congresspeople. secondly, just the anonymity of it. the american id for many people has been unleashed for those who can say whatever they want in terms of remaining anonymous and i understand those constitutional protections for anonymous speech, but it does make the culture a lot coarser when you have that kind of discourse. i don't pretend to have solutions to that, but it is a
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major factor. just a cacophony is such that when i talk to my predecessors going back to newton minnow, i talked to them about their experiences in this job. they marvel and don't know how they would do it. you don't have to worry about whether bette midler will roast you on fitter. a surreal scene of embarrassment. that's just america in 2021, for better or worse. >> question for the back. >> what is the solution where the president knowingly takes ultra virus unilateral action because he knows that with the help of the justice department, it will take the courts forever to invalidate the action?
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>> impeachment? [laughter] >> did you hear that? i think you might need to lean into the mic. impeachment? >> i think that was the answer. >> randall johnson, working with the government, to identify where i am, but one thing that we did get done in 1995 when we took over was the passage of the congressional review act, our attempt to compromise between delegation and non-delegation. when a major regulation was passed by an agency, it could be revealed -- repealed under expedited consideration. i'm just throwing it out to the panel, particularly michael, do you think that was an or useful compromise? apparently not.
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clinton ergonomics was repealed under that. trump had a repeal, biden did it later on. i think it was a useful compromise from the point of pure delegation or nondelegation. just throwing it out to the panelists. >> it's turned out to be a useful tool for when you move from a president of one party to the other. especially where the new president has both houses. i don't know if you guys, when you wrote it, anticipated that or it worked out that way. unfortunately, because it allows the regulation to take effect and them requires congress to repeal it, it's not going to be that effective most of the time. because the president can just veto, right? so, if you don't have a change
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from one administration to another, even if both houses wanted to get rid of it, the president could just veto that and that is why i think that with the exception of the ergonomics one, we don't really have any examples of the congressional review act working except when we change from one administration to another. so, i think it was a step in the right direction, you know, good, but i would like to take some more leaps in that direction. >> others? anyone else? >> hello, my name is marissa cohen. a question that i think draws on all of your presentations is that if we take the idea that oliver wendell holmes. >> can you read that on the internet? >> yes. [laughter]
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i should be the only one that knows that. [laughter] the idea is that there shouldn't be a branch that has this heroic power to do things over another branch, playing into the delegation and nondelegation arguments, right? like you were saying, you saw that congress wasn't doing anything, so the agencies stepped up and did something. you kind of aggrandized of one branch in order to fill the gap. professor rappaport said that the court should just say that the delegation is unconstitutional and then the judiciary then becomes more powerful in not allowing congress to decide who it wants to give the power to. to summarize what i think james madison was going for in the federalist papers is what meatloaf said, two out of three ain't bad. you want something through another branch before you do it. did you ultimately, is either
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role usurping their own job and becoming too powerful? or should we just let there be a little crash and burn so that everyone can get their training wheels back on? >> so, go ahead. >> if you think like i do that the nondelegation doctrine is in the constitution, what the court could do would not be not aggrandizing, but one of the problems with oliver wendell holmes is that he was willing to let the current generation of americans go, go to hell if they wanted to, even though it was contrary in some instances to what the constitution said. so, if you sort of, sort of reorient his statement, i don't
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care what the constitution means, i will let the current generation go to hell, i think that's what the constitution was designed to stop from happening. so, not a big fan of oliver with. [laughter] >> that makes two of us. >> again tomorrow for meatloaf, i would do anything for the public good, but i won't do that. [laughter] it has to be the lodestar. just doing things that are good ideas, yeah, i agree, it's ultimately the usurpation of the structure. i think i agree with professor rappaport. >> it's been nearly 40 years since the federalist society was founded. there's always a first. now there's the first conference
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when meatloaf provided commentary for panel. [laughter] anything else? >> let me make one comment. there is this question of partisanship on the court today. polarization related to the court. i guess there is a question a hell for the court should go before risking its own legitimacy in some sense in terms of interventions into things like nondelegation and how strict they rule the court might enforce. if it's a vague rule, it will be subject to manipulation and if it is strict, how much the government will be shut down as a result. these are concerns, maybe not for this panel, per se, but if you want the courts to play this role you have to think about if the courts are well suited to play the role. >> might there be a problem of unilateralism from the courts
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that lead to more polarization, professor rappaport? some might argue that that is about the judiciary having more difficulty in judicial selection. >> well, selection is an area where we have difficulty. i guess i could wish that the judges were originalists. i then think we would have less of a problem that way than if they just decided to go off in their own direction there. and i guess i think that is the ultimate solution in this area. maybe it's a bit of a pipedream in the sense that it would be nice to see democratic justices who, and there are some, certainly, democratic academic who are originalists who sign on to that idea.
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and i think in a world where people -- maybe they are different kinds of originalists -- but there would be justices, a big step in the right direction. >> your point touches on something i was thinking about. suppose you got rid of chevron deference tomorrow. in time, how would political actors in the congress, senate and house view traditional interpretations of agency decision-making? would they see it as judicial lotteries? whatever the law is depends on what panel you draw and that over time could theoretically increase the scrutiny on judicial nominees, which is already substantial. i think the decision-making can shift. that can bring with it the risks of polarization in a different
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forum, in this case, digital confirmation. you know better than i do. >> well, are there concluding remarks anybody wanted to make? we don't have anyone else lined up for a question. >> i would like to add for my former law school, i am the chair there, there are people on the conservative side who do not accept the separation of powers and nondelegation and it is not just those professor solomon was talking about. take the dean of the harvard law school. he does not believe, based on the text of the constitution since there is no separate powers provision it was rejected -- twice -- that they should not have separation of powers principle. that is based on his view of the text of the constitution which suggests to me and my review of this last term there are six justices who are textual lists.
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--textualists. that is because text is too little information to provide the unity you would hope for on the bench in my view. even within originalism and textualism there are strong divisions. he fronts the originalism conference. i have colleagues who call themselves liberal originalists. but i think for the students of the audience you should know and realize there is division of opinion within the textual school about what you should do with respect to separation of powers. >> i will be teaching my seminar on textualism monday morning at the university of alabama. the topic for discussion will be my colleague's article "which textualism." >> i do disagree with john
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manning a bit on separation of powers issues, but if the range on the supreme court were from rappaport demanding, that would be a big improvement. [laughter] >> will you all join me in giving a round of applause. [applause] we are finished. [indistinct chatter]
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