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tv   Former FCC Chair Legal Experts on Separation of Powers  CSPAN  November 20, 2021 6:27am-8:01am EST

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would government. -- your unfiltered view of government. a conversation with the former 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
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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 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.
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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. 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
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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 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
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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 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
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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 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
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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 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
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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. 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]
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>> 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. 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
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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 -- 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.
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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. 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 --
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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 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.
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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 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
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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 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
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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 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.
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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. 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
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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 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
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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 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
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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 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
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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 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
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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 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
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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 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
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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. 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
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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 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
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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 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
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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. 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
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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 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
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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. 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.
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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 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
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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 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
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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. 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.
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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? imagine nancy pelosi, mitch mcconnell, chuck schumer electing a president. it would be a washington cabal. and and so at the very end of the convention they gave the president his own constituency, the electoral college, as a compromise, and that created
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the separation of powers. read michael's latest book on the presidency which is a great book. you can also read this if you read the federalist papers. i don't want you to pick and choose quotes like your friend at a cocktail party, i to you to read it sequentially. 47, 48, 59, 50, 51, and if you read the arguments you will see madison was saying separation of powers provision in the constitution to the states had failed, they were parchment barriers. this was my law review article. if you read the argument fully you see madison cared how to structure a government, how to structure elections, appointment and removal and in
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this i agree entirely with steve. elections matter, they provide incentives, these incentives are not party incentives because parties were not in the original constitution. i trust the text, my husband is a political scientist, discussions about median votes. if this is correct about the constitution i think unfortunately, political partisanship is an issue of our time which is why i was delighted to accept this invitation. it it's not my personal experience of working in government, and it is frightening because it affects presidents as well as congress. it affects all institutions including the supreme court unfortunately and i think it predicts the decline of all our institutions that are elected, even now the supreme court
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because of change a cloture, much more likely to get more extreme nominees. i think i have been quick and depressing, not slow and boring but hopefully i can answer your questions about anything including delegations and independent agencies, thank you for listening. [inaudible conversations] >> it is great being here. thanks to the federalist society for inviting me. i'm going to talk about the way party polarization has contributed, this is what we start with but it will provide more context to where we are today. one thing i'm not going to talk
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about is flagged for the q and a, congress, years ago thought of an institutional design known as independent agencies as a mechanism to have policy stability and avoid the whiplash phenomenon. might be interesting to talk about whether that design structure works and if it doesn't work, whether some of the reforms suggested are likely to work or not work as well. but let me start by quoting justice jackson and the steel seizure case because it puts into focus the incentives of congress compared to the 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. it's not good law. there was worldly wisdom that the tools belong to the man who
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can use them. we may say the power to legislate for emergencies belongs to congress but only congress itself can prevent power from slipping through its fingers. this recognizes the incentives of congress as compared to the senate and the president. for the president, whenever the president says he can do something, he's expanding or often expanding presidential power, the president is always incentivized to talk about his leaving -- having legal authority for his actions, expands of what statute means and what the constitution means, when the president says he can do something he doesn't say i can do it because i can do whatever i whether it is lawful or not, the president says it is lawful and has a theory behind it and is advocating on behalf of presidential power. congress is not like that at all. there is a collective action problem for example.
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members of congress some sense might care about the war powers but are they going to invest in blocking the president from pursuing unilateral strike when they have to think about reelection and what their constituents want? congress will often trade-off national interest and institutional interests in favor of local constituency. on top of that not approve the legislation, if they vote against it they may actually argue that that legislation is not within congress's power. for the affordable care act republican members of congress were not advocating for expansive view of the commerce clause but for a more moderate view of the commerce clause. in congress you don't have the advocacy on behalf of congressional power or the
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incentive to advocate on behalf of congressional power and that is a major problem when we think about when congress can get involved in checking the president. when can congress check the president, i will use the watergate era responses of congress, the war powers resolution as examples of when congress is willing to assert its institutional role but when congress did that in the early 1970s you had two phenomena, essentially bipartisanship in congress, democratic and republican parties, you had the fact that voters were willing to come together not as democrats or republican but across the political spectrum, across the parties to say they wanted to place checks on the president. that was a time when george
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wallace said there's not a dime's worth of difference between democrats and republicans and because there wasn't a time's worth of difference between democrats and republicans they were able to work together across party lines to back legislation that was politically popular as well. that is not the world we live in today. the world we live in today democrats and republicans are polarized as noted but they also don't like each other. for those of you read about the studies of something known as effective polarization democrats don't want their sons and daughters to marry republicans, republicans don't want their sons and daughters to marry democrats, they rate the other party on a 100 scale is a 20 as compared to the 1970s when they might have graded them around 60. it is a very difficult time to get the parties to come together. as a result of this, members of the opposition party will not back the president's policy
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initiatives, not to say that there isn't legislation being and acted but at the same time there is a lot of gridlock and as a result there is space for the president to come in. when the president advances policy initiative the other party doesn't once, it may not get an acted but if the president acts unilaterally congress is not going to override him because the president's party is going to back the president, this is the result for policy through executive orders and directives over the past 20 years, there have been 800 executive orders a 96% of them go unchallenged, presidents are filling the void left by the congress in profound ways and we all know examples of this, president clinton couldn't get healthcare legislation he pursued some
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directives in that area, george w. bush couldn't get a faith-based initiative through, he approved executive orders on faith-based initiatives, we hear today the president biden may respond to congress is for you to enact the george foreman act by acting unilaterally and this is the way it goes and as a result we see power slipping away from congress, the president gaining power and i know we will have a robust conversation about solutions to this. i'm very pessimistic that there is a solution to this polarization problem but i'm hopeful that my panelists will convincing my skepticism is misplaced, thank you. [applause]
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>> let's give the panelists an opportunity to interact and respond to each other, professor rappaport, do you have a response to some of what you have heard? >> commissioner ajit pai, and professors, on the one hand, victoria nourse says there is bipartisanship, we do have compromise. and professor differences we don't. i'm inclined to let them do get out on this matter. in the rarest and most unusual situations, we do have a little bit of bipartisanship, so we've
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got a small number of republicans willing to sign on to one portion, one of the infrastructure bills. that's not the kind of bipartisanship to have with, let's say, the medicare legislation that passed in the 60s. we do have a little bit of that but by and large everything we see is people decrying over and over again that there isn't any cooperation going on and when presidents can do what they do as professor devons points out, when the congress doesn't act, they can take their own actions and congress is not going to act because presidents are not going to take anything less than what they do on their own.
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we see this unilateralism situation and as a result we don't get compromise and the parties get more opposed to one another. >> is that a function of unilateralism or is it a function of change in political parties and how they are structured? you mentioned the medicare act. the civil rights legislation which was bipartisan, is also because democrats in the south voted against it. republicans in the north voted for it. the parties were very different and there was a lot more of a mix of ideologies within the parties. >> the causes of polarization, i don't want to say it has been
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presidential unilateralism. there are a number of things going on. let's say during the 1960s, when the parties were structured in such a way the democratic party was two parties and we had local republicans, some of the forces that might have led presidential unilateralism to cause this polarization were tamped out because the parties were different in these ways. the problem with presidential unilateralism is when that goes away, it gives full sway to the more extreme action. i'm not saying that is the sole cause of it but when other circumstances change, it no longer has any check and if we
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didn't have presidential unilateralism, if we have a structure that required parties to cooperate even without liberal republicans and conservative democrats, we would have much more of the parties getting along. think about our president. joe biden was previously known as moderate democrat who liked to work with the other side, got along with all these people. what happened to that president? i think more is going on, but really a central feature is presidential unilateralism and allowing it to continue. seizures other panelists have reactions? >> wondered about delegation. i would welcome congress, including in bill language, more specific terms, to guide or limit agency action. two points need to be considered.
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congress will act with more specificity including specific terms to limit agency decisionmaking. there are two points on that. number one i argue that in some cases would limit if not preclude the likelihood of congressional decision-making at all. right now legislation often operates at a level that is a variant of the theorized agreement, democrats and republicans may agree on high-level principles and because they are unable to go one of 2 levels deeper and specified terms they are happy to punt the overall imitation of that framework to an agency because otherwise the legislative purpose without her as they failed to reach a compromise so if you require congress to act with more specificity it would be very difficult because i think as pencils sharpened and you figure out are we really going down this for or that one, that
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is as the legislative process began could easily break down and that is especially the case if as i learn from his concerts on twitter, the filibuster remains in place. i would argue delegation can actually promote the compromise in the legislative branch to some extent. think about what legislation is at the end of the day. a snapshot of an issue or marketplace at a moment in time. one thing we've learned from technology to energy, snapshots can become faded with age. you run the risk of coming back to where you started where some of these terms that have become outmoded or archaic, agencies are struggling to implement them and have to implement them and it disturbs the public interest at the end of the day so in many cases, you see this conservatives criticizing the endangered species act for being restrictive. courts have said agencies have discretion there. similarly on the progressive side they complain about
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certain statutes that don't allow them to do as much as they would like to do. you might see a broad delegation of authority when it allows expert agencies to fill in the color, could at the end of the day the the half loaf that is better than no loaf at all. >> i think i have great sympathy with that comment. there are times when congress focuses very much on specific details. i have been in rooms where people stand 24 hours to hammer specific language but there are other times the delegation actually solves this problem because they don't know the technicalities, they don't understand how something is implemented and they do it in courts as well. so i am nervous about eliminating delegation and a constitutional side i worry that the court, even if a to go down that road, what would
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happen is something that happened with the traditional state function doctrine. the court has tried several times to embrace federalism and each time, it could not manage the doctrinal test and so it had to push back and return. they did this with traditional state function and morrison and lopez and riche. i'm worried if i were a judge i couldn't define precisely enough, that be too broad of a delegation. i think there may be five those for that on the court. there you go. >> i'm very sympathetic to comments that have just been made and i have been enjoying those were not sympathetic to your recommendation with
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respect to the nondelegation doctrine. i'm thinking, what is the solution? i don't think the independent agency model is a solution and one of the lessons of that model is presidents are able, through making good appointments in particular, are able to advance their own policy agendas to independent agencies so how do you get congress more engaged? i'm not sure there is a solution but i thought a couple things that might at the margins 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 a major transformation of power away from the committees into leadership. the staff associated with
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leadership, essentially was cut nearly in half and i think if you have more professional staff on committees you might have more policy continuity, more of a commitment to the committee's jurisdiction. another possible reform that at the margins might be helpful, i don't think any of these are solutions in a permanent way the things that might be marginally helpful, maybe allow committee chairs to serve multiple terms, serve longer terms. there are restrictions how long committee chairs conserve in the senate and if you have more of a stakeholder through the committee chair that might get congress more engaged, the committee chair would have more incentive as an expert so given his for her reputation, more of a commitment to work with the minority to get the committee
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to accomplish something. don't know if those reforms will accomplish much but they were considering at least. >> want to speak in defense? >> since i'm losing my support for non-delegation, commissioner says delegation can promote bipartisanship because they don't have to agree on the details. i suppose that is one way to get legislation passed these days but the problem is when you delegate you've got the problem of presidential unilateralism operating, i'm not sure the bipartisanship is worth much, we've got bipartisan delegation, they do reach agreement now because there has been a delegation but that doesn't mean, in a world
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where you couldn't delegate they wouldn't be forced to reach agreement in different ways. republicans get your way on issue one and democrats get your way on issue 2. there are other ways of reaching agreement than simply pumping it to the executive. with respect to the supreme court and what victoria nourse said it is not inability of the court to manage federalism. it was a failure of will. the court was not willing to go ahead with these ideas they had started down the road with so i guess i don't think it would be the easiest area of constitutional law but i do think the court blinked in race
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and some other cases. professor devens, i quite agree that having a more elaborate professional staff would be a great thing for congress to have but i don't see that as an alternative to the nondelegation option. i see it as a way of implemented the nondelegation doctrine. of congress doesn't know what it is doing now and needs to delegate and they need to then have more elaborate staff to figure out what the rules should be, that would be great, that is something that would help. >> subject the civil service rules we end up with the deep state of congress? unless there are -- the panelists want to say something more, in exchange of views we may be at a point where we can start taking questions so, roger. >> thank you very much.
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question for professor devons. you have called for more experts in congress. that comes right out of progressivism 101 and brings us back to the nondelegation doctrine. were the nondelegation doctrine to be upheld, you would therefore require congress to make this, if it couldn't, then you wouldn't have so much legislation for the administrative agencies to work with, and we get back to limited government. >> was that a question? >> yes, a question for professor devons, why do you
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think experts will solve the problem? they are the problem? >> the question in some measure is can you get congress to enact specific legislation when there is such partisan disagreement and i think the possibility of getting congress -- i understand what mike is saying, put pressure on congress, no choice but to come together. i'm not so certain that congress will come together and the problem is the premise of roger's question, he thinks it is good thing when government doesn't do anything. [applause] >> some of your premise is we want government to do things. >> we want government to at
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least be functional. >> i'm not sure roger agrees with that. >> we may be ships passing in the night in that sense but i think the notion of professional staff in congress is at the margins. how do you get congress to be more invested in legislation to do, for example, what mike was saying before, to have the expertise to have specificity if you are concerned with delegation, but getting a functional congress, having power back in the committees with committee staff, members with stronger stakes in their committees maybe it is not a
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bad idea. it is associated with the period of time when congress was less polarized. not saying will make congress less polarized but those are some of the conditions in congress at a time when congress was less polarized so maybe that will be of some marginal benefit. >> the likelihood of congress passing legislation to add professional staff is 0. >> wife that? >> elect oral incentives. elections. do i want to go back and campaign, i added myself more staff. that's not going to happen in the reason it is not going to happen and this is my pet peeve. i thought i was pretty expert when i worked in the senate. i think when i want to interview members in the 2000 era i found people were being
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elected to have contempt for congress and if you have contempt for congress it will become contemptible. there is a self fulfilling prophecy there. it makes me very nervous. it is article i for a reason. we fought for legislature against the king. i understand the problems with broad delegations. you could have a referral system where courts refer back to congress. the south african constitution has something like that. i'm not certain nondelegation is the answer. i like statutory interpretation but there are cannons in law no one knows of because the reviser's office puts them in the notes. there are hundreds of from now. they are in the notes, not the text. there are ways around this but what disturbs me more than
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political polarization is contempt for american institutions. i believe in robust civic education for lawyers and everyone else. >> next question. professor richard epstein advances a proposal that would upset roger but not terribly and ajit pai and comments about congress lacking expertise is difference based remedy the court sought to give for you to an agency's legal determination but clear error to factual terminations that take into account expertise. i do what you make of that but the issue of polarization, it would be as chilly a solution as -- >> that would be interesting and taken to rosencrantz's
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proposal, the rules for decision with respect to the legal determinations but perhaps deeper to the agency on what types of the corridor services should become the go to a communications network or whether this migratory bird should be protected or not as it goes from mexico to the united states, things the courts are not going to be as experts in second-guessing, it is for to say so i would be open to that and i agree with professor rappaport that the delegation i'm talking about does run the risk of decision-making but to the extent that those rules of statutory interpretation, every party clinging to this kind of delegation legislation would have some confidence in a present regardless of party being hidden within some certain guidelines, you are not just coming up blank check, you're just letting them make decisions within an understandable framework. >> that's a great suggestion.
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>> i would actually say professor epstein's suggestion is what the original meaning of the epa was. we will alternate between microphones and take a question from the back. >> my question is about delegation or nondelegation, i don't care to see myself but some are deeply opposed to delegation to agency or think there's too much of it but don't mind delegation to the president and don't like delegation to the deep state but are fine with delegations to surface state, the person at the top of the executive branch hierarchy so my question from the standpoint of polarization, do any panelists think there's a distinction to be made
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between these two kinds of delegations where one is the president or perhaps the highest level of subordinates, the ones he appoints himself whereas others might be administrative agencies, independent agencies so is there one type of this delegation here that is better or worse than the other for polarization and if so, why? thank you. >> i guess i think in the main, there is not really significant -- there are differences between those types of delegations but from my perspective, the unilateralism is going to be a problem for both of them. obviously to the extent we are talking about executive branch agencies, the president will control those actions in any event so not sure how much distinction there is if the president wants to get
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involved. with independent agencies there can be differences. it is certainly my understanding, the literature would back me up although we will see what ajit pai says, they are following what presidents ones anyway. there may be some differences in particular circumstances but to me delegations in both cases have the principal evils. >> other panelists? >> what mike said is right. you can speak to the fcc of course but i am doing work with political scientists like daniel day-lewis and based on surveys of political appointees and senior executive service supervisors, the line between independent executive agencies
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is not that sharp, 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, related to polarization when a majority of the president's party is a majority of the commission, they can do the bidding of the president's party because we live in this polarized world where the president's party essentially agrees with each other, you don't have policy convergence in the majority party of the commission but the chairman should speak to that because he lived it. >> we operated independently from the white house during my time. there were a number of issues that it is fair to say, we chose course be, it depends on the composition of the
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particular multimember agency but i would like to think my counterparts in other agencies and i conducted ourselves independently. there were times we had to collaborate to keep them informed on spectrum options but the independence of the model is maintained at least in my experience was the nature of delegation can vary. we are not talking delegation is a blank check. there are types of delegations people might like for example section 10 of the telecom act, essentially dirigibles were ratchet says this this corpus of telecom laws dating back to 1934. we authorize the commission, we require the commission to take a look on its own motion or when someone else petitions and
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the agency shall repeal those it determines are no longer necessary in the interest of competition or the public interest. same on the media ownership side, they have media ownership regulations dating back to 1975 to skating what newspaper can buy what radio station and all kinds of micromanaging regulations which congress said instead of supplanting those with its own specific rules that had a deregulatory ratchet. every couple of years the fcc has to look at these rules and site which should be revised or appealed even changes in the marketplace. these are the kind of the regulatory delegations that might actually be progressive from the perspective of allowing you to do something in the framework congress envisioned. >> i to push back on the notion that there is no difference. i think it is quite dangerous to put everything in one pill for whatever president. article 2 requires you to execute a law but must be a law, presidents do push the envelope. president obama pushed the envelope, he knew he was pushing the envelope but if you channel everything into the white house, really. there is a level of expertise
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that you want. i would be nervous about -- i understand the notion that the president alone has the executive power. the president is never alone. he has a massive entourage even when he sleeps. the president alone is operating for the nation and there's lots of rules when he does political stuff. the line is tenuous and i am nervous about giving folks inside the white house more power than they already have as opposed to agencies because it would aggravate political partisanship. >> i can't resist following up on ajit pai's point. the idea that if we are going
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to have delegation, the idea of the regulatory delegation is a great idea. in fact, you really see it operate, rather than ask the fcc to figure out which of their regulations should be eliminated, i would like to see an agency created that is a deregulatory agency filled with people, who will want to be part of that? people who are in favor of deregulation. they would have authority to repeal regulations of other agencies. i 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. >> let's have a question from the front. >> the alliance defending freedom. my concern arises from article 1 section 1. all legislative authority invested in congress, all power
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to make rules, is not merely to protect the power of congress but 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. when regulatory agencies are the president acting alone don't have staying power, throw the rascals out like we through the rascals out in virginia when we didn't like what was going on. the agencies, why are the voters left out of the discussion of the whole doctrine of regulation or delegation? >> i thought you would begin with a discussion of elections? >> i agree with you. it is not the congress. is for the voters. they can get rid of them. they made us do it again. i understand voters may feel
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they don't have access to this. if you ask them, recently did an empirical study asking people what would be the ordinary meaning of things and would you rely on lawyers? they relied on lawyers for lots of legal meeting so people do rely on experts. i don't necessarily want the voters running the nuclear regulatory agency. i someone who understands the internet to run the fcc. i understand but the question is -- i understand many voters want to get rid of congress. i don't want to do that. others want to get of agencies because they are more removed but even the supreme court's original chevron decision believed there was a electro accountability for agency action, and ajit pai is right,
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presidents can control agencies if they want to. they are not good presidents if they can't figure that out. >> i am sympathetic to the question but if you think about it, it would be nice if the voters, instead of saying this is what the legislature has done, let's change them, would sometimes say what is the legislature doing? they've given all this power to unelected bureaucrats, let's throw those rascals out, the legislators who did that and 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. >> having served in the house 2013-19, i think the concentration of power, whether in an agency or among
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congressional leadership has contributed to polarization. we are removing the people and taking away their voice when this happens. i am a big fan of the rains act for years where you make representatives accountable for the laws that are being made. all laws are supposed to be made by congress, not a branch that is not accountable. there is very little accountability for the administrative agencies so this concentration of power in the agencies or congressional leadership. you see that when they shutdown the amendment process. rather than being able to debate and amendment on the 4 people were running to twitter or cable show to make their case because leadership is not letting them do that. they package these bills together, 6, 8, 10 people having substantive input, that process has to be opened up completely and frankly the
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congressional schedule, flying in on monday and flying in on thursday does empower the leadership. >> you have a question? >> the idea of this concentration of power and how do you defuse the power? that contributed to polarization. >> let me respond to the focus on the house, the house operates differently from the senate. it's not republicans or democrats that hate each other but the house and senate. this is why we see what we do in the papers, if it is really true the two senators can control something. sometimes but not, not as much as you think, the house has given too much power to the leadership to control the docket. there is no question. if i were to change congress i would open that up, you can't have the kind of closed rules you have in the house. the senate, once you get past 60, i have sat through 200
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amendments so i agree with you about the house. that is a serious problem. >> any others? yes? >> brooks harlow, i'm am from a law firm, i am from ajit pai's world and as technology impacts things my question is is polarization caused by washington dc and government or silicon valley and technology? in particular as you know we all have cell phone apps, people are looking at them now instead of listening to me. i don't blame them. you click on something or put something on social media and they track your usage and they push, if you click on leftist
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articles you get more leftist articles and/or leftist article you click on the more increasingly left you get, same on the right. the news media and other websites respond to that, they feed more polarized stories. what the cause and effect, is it washington dc or silicon valley? >> there may be multiple causes, and personalize media, the fact that we no longer live in local and state communities where we focus on local and state issues reading local news, everything is now customized and oriented toward often political extreme, the repeal of the fairness doctrine contributed to this, let me pose a question, what would you
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think of repealing the fairness doctrine. >> no more answering questions from me. i would definitely oppose that. it was a disaster from the inception. dennis patrick did a fantastic job putting it in the scrapheap of regulatory history where it belongs. having regulators sit in judgment of content is a topic that is fraught with peril. first amendment and general concerns, i gave a speech four months ago, and some upsides, and related to this topic, it is intermediation, having a
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conversation with somebody on social media you are not in the same physical presence, you say things you would never see if you were in the presence of these people and this includes congresspeople interacting with each other. the american id for people has been unleashed for those who say whatever they want. i understand the constitutional protection for anonymous speech but it doesn't make the culture closer when you have this type of discourse which i don't pretend to have solutions to that but it is a major factor of social media, and the cacophony is such that when you talk to predecessors going back to president kennedy, talk about their experiences in this job many of them marveled, i have no idea how i would do this job. completely - a local piece of paper, you got to worry whether
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bit miller will roast you on twitter which is a real state of affairs. that is america in 2021 for better or worse. >> question in the back? the atlantic legal foundation, what is the solution where the president knowingly takes ultra virus unilateral action because he knows with the help of the justice department, it will take the courts forever to invalidate the action. >> impeachment. >> did you hear that? >> impeachment. >> any other solution. >> that was the answer. up front.
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>> various jobs. when we took over in 1995, passage of the congressional review act which was our attempt to compromise between delegation and non-delegation, when it was passed by an agency it could be repealed by congress under expedited consideration. it was thrown to the panel. that was useful or not, biden later on, it has been quite effective and it was a useful compromise between. delegation and nondelegation. >> it turned out to be a useful tool for when you move from a president of one party to the
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other, especially where the new president has both houses. i don't know if you anticipated that or if it just worked out that way. unfortunately because it allows the regulation to take effect and requires congress to repeal it, it is not going to be that effective most of the time because the president can just veto so if you don't have a change from one administration to another, even if both houses of congress want to get rid of the regulation the president can veto that and that is why with the exception of ergonomics, we don't have any examples of the congressional review act working except when we change from one administration to another. it was a step in the right direction.
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i would like to take more leafs in that direction. >> anyone else? question? >> my name is marissa cohen. a question that draws a lot of presentations, when you take the idea oliver wendell holmes said if my fellow citizens want to go to hell i will help them. it is my job. >> did you read that on the internet? >> that is a real quote, i promise you. i'm the only one that knows that, though. the idea is there shouldn't be a branch that has this heroic power to do something over another branch. that plays into delegation or nondelegation argument. you were saying you saw congress wasn't doing anything so the agency did something because congress wasn't doing its job, you kind of aggrandized one branch to fill
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the gap but professor rappaport said the court can say delegation is unconstitutional and the judiciary then becoming more powerful and not allowing congress to decide who it wants to give the power to. to summarize what james madison was going to, 2 out of 3, to go through another branch before you do it. by seeing a branch not doing something and stepping in, usurping their job and becoming too powerful. and they get their training wheels back on. >> if you think as i do that
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the nondelegation doctrine is in the constitution, what the court would be doing is not aggrandizing power but enforcing the constitution. one of the problems with oliver wendell holmes is he was willing to let the current generation of americans go to hell if they wanted to even if it was contrary in some instances to what the constitution said. if you sort of reorient his statement as well, i don't care what the constitution means, i will let the current generation - that is what the constitution was designed to stop. not a big fan of holmes. >> makes two of us. >> i generally agree with that. i would do anything for the public interest but won't do that.
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the constitution and laws of the united states have to be the lodestar for any agency whether it is independent for the executive branch. doing things that are good ideas, ultimately usurpation of the structure. i think i agree with professor rappaport. >> nearly 40 years since the federalist society was founded. every year has a first and now we have the first conference where meatloaf is providing commentary. anything else? >> one comment. there is this question of partisanship on the court, polarization related to the court but there is a question of how far the court should go before riskiness own legitimacy
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in some sense in terms of intervention into things like nondelegation and how strict the rule might be enforced. if it is available it could be subject to manipulation. how much of the government will be shutdown as a result, these are concerns not for this panel per se but in terms of if you want the courts to play this role you have to think about whether the courts are well-suited to play this role. >> might there be a problem of unilateralism from the courts that will lead to more polarization, professor rappaport? some might argue unilateralism by the judiciary has produced more difficulty in judicial selection. >> judicial selection is an area where we have difficulty.
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i guess i could wish that the judges were originalists. i think we would have less of a problem that way than if they just decide to go off in their own direction. i guess i think that is the ultimate solution in this area. it is a bit of a pipe dream in the sense that it would be nice to see democratic justices, and there are some certainly democratic academics who are originalists who sign on to that idea and i think in a world where justices were originalists maybe they would be different kind of originalists a but it would be a step in the right direction. >> another point, something i was thinking about. what if you got rid of chevron
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deference tomorrow? how would political actors in congress, senate, and house, view traditional interpretations of agency decision-making? would they see it as essentially judicial lotteries? whatever the law is depends on what panel you draw in the dc circuit or regional circuit and in turn that could increase scrutiny on judicial nominees which is substantial. the locus of decision-making can shift and that could bring with it the attendant risks of polarization, which you obviously know better than i do. >> we don't have anyone else for the question. >> a chair there, people on the
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conservative side don't affect his version of the separation of powers, something that professor sullivan was talking about earlier. take the dean of harvard law school, he does not believe based on the text of the constitution, since there is no separation of powers provision in the constitution, it was rejected not once but twice, the court should not enforce separation of powers based on his view of the text of the constitution which suggests to me in my review of the last term there are six justices who are textual lists. there was a lot of disagreement. that is because text is too little information to actually provide the unity you would hope for on the bench in my view. even within original demand textualism, this originalists conference, they call
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themselves liberal originalists. for students in the audience you should know and realize there is a division of opinion in the textual school about what we should do with respect to -- separation of powers. >> i will be teaching my seminar on textualism at the university of alabama, the topic for discussion would be my colleague professor grove's article which textualism? >> i would say i do disagree with john manning a bit on separation of powers issues. of the range on the supreme court were rappaport to manning, that would be a big one. >> will you all join me in giving appreciation to our panelists.
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