Showcase Panel I: What Is Regulation For?

• Publication year: 2021

98 Nebraska L. Rev. 109. Showcase Panel I: What Is Regulation For?

SHOWCASE PANEL I: WHAT IS REGULATION FOR?

Richard Epstein
Philip Hamburger
Kathryn Kovacs
Jon D. Michaels
Britt Grant

Hon. Britt Grant:Hi, everyone. I think we're ready to get started with our first panel. It's like a family reunion in here, so you'll get to see your good friends after this. Thanks, everyone. My name is Britt Grant.(fn1) I'm a judge on the Eleventh Circuit Court of Appeals in Atlanta, Georgia. I'm pleased to be here to present our first panel, What is Regulation For? These panels have a lot of interesting ideas. It'll give us a lot of starting points and background for so many of the discussions about the administrative state and regulation that we're going to be having over the next few days. There are robust debates, which we will experience first-hand here today about whether the administrative state, in its most perfect form, is a threat to liberty or a guarantor of liberty, whether the direction that the administrative state has gone is a turn away from its originally correct role as a less politically-oriented, policy-making body, or is the inevitable fulfillment of the headless monster that is the fourth branch of government.

Our panelists, again, have interesting and innovative ideas on these topics and more. So, let's go ahead and get started. After introductions, to give you all a path for this panel, I'll introduce in brief each of our panelists, and then each will give a five to ten minute thesis, the backbone of their comments for today. After that, I'll give them a chance to ask each other a few questions. I'll interject as necessary, and then we'll get to the audience for some of your fantastic questions.

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First, to my left, is Professor Jon D. Michaels.(fn2) He is a Professor of Law at the UCLA School of Law where he teaches and writes about administrative law, national security law, bureaucracy, privatization, and the separation of powers. He's a graduate of Williams College, Oxford University as a Marshall Scholar, and Yale Law School. He clerked for Judge Guido Calabresi of the U.S. Court of Appeals for the Second Circuit, and then for Justice Souter. His current book project, I think, is going to be the basis of his remarks today, and it's called Constitutional Coup: Privatization's Threat to the American Republic.(fn3)

Next, we have Professor Philip Hamburger.(fn4) He's a scholar of constitutional law and history at Columbia Law School where he serves as the Maurice and Hilda Friedman Professor of Law. He's also President of the New Civil Liberties Alliance, which is a civil rights organization dedicated to protecting all Americans from the administrative state and other threats to constitutional rights. His books include Liberal Suppression: Section 501(c)(3) and the Taxation of Speech,(fn5) The Administrative Threat,(fn6) Is Administrative Law Unlawful?,(fn7) and among his recent articles is "Chevron Bias"(fn8) in the George Washington Law Review, which explains how Chevron deference(fn9) violates due process.

Next is Professor Kathryn Kovacs(fn10) of the Rutgers School of Law. She's a graduate of Yale University and Georgetown University Law Center. She currently teaches Administrative Law, Natural Resources Law, Environmental Law, and Property. And before joining the Rutgers faculty, she spent 12 years in the DOJ Environment and Natural Resources Division, Appellate Section. And most recently in the government, she was a political appointee serving as Senior Advisor to the Director of the Bureau of Land Management in the U.S. Department of the Interior.

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Professor Epstein,(fn11) last but not least, is the inaugural Laurence Tisch Professor of Law at NYU School of Law. He is also Senior Fellow at the Hoover Institution and the James Parker Hall Distinguished Service Professor of Law Emeritus and a senior lecturer at the University of Chicago. His first law school appointment was at the University of Southern California. I will not be able to list all of his publications without taking up our entire time here, so I'll note that his newest book is called The Classical Liberal Constitution: The Uncertain Quest for a Limited Government.(fn12)

With that, I will kick it off to Professor Michaels to get us started.

Prof. Jon Michaels:Thank you very much. It's a pleasure to be here and a privilege to be on this panel. As I see it, there are two principal sets of challenges to the administrative state today. First, there are those who see the modern administrative state as a threat to the constitutional separation of powers.(fn13) And second, there are those who are more or less okay with a modern administrative state as a constitutional matter,(fn14) but they are nevertheless distressed by our administrative state which they see as hopelessly inefficient, sclerotic, or unresponsive. And both camps, by my estimations, are seemingly gaining ground. The first, whom I'll call "constitutional conservatives," are not only influencing but also reshaping academic debates, as evidenced by this panel, but they're also obviously influencing American jurisprudence. And the second camp, whom I will call neoliberal, have been wildly successful in reconfiguring the administrative state along more businesslike lines.

By and large, the liberal response to these challenges has been a bit dismissive, from my perspective. This is especially true with respect to responses to the first camp. Many of my fellow travelers will point to history, settled practices, reliance interests, and long-standing and capacious holdings to essentially tell conservative critics to get over it-the administrative state is here to stay. And as for responses to the second group, many will try to meet the neoliberals halfway. They'll say, "Okay, it's okay in these contexts, but not in these contexts," or they'll appeal to values that are, by my estimation, too abstract or contested-the symbolism of being in the public sphere and

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things like that. Or they'll work to refute the businesslike government crowd empirically, documenting waste, fraud, and abuse that, say, privatization or outsourcing engenders.

In both cases, I feel as if my team is playing defense. And this is a mistake. It's a mistake for us because it isn't working. As I said, both camps are gaining ground. But more to the point is a missed opportunity. It's a missed opportunity for folks who believe in the administrative state to reaffirm and strengthen the constitutional bona fides of the administrative state, and to do so in ways that would buoy progressive regulation.

So that's what I've been working on. As Judge Grant mentioned, I'm developing an affirmative constitutional theory of the administrative state that responds to both of these camps, and the crux of my argument is that we have, right now, something-what I call the administrative separation of powers. In brief, I agree that the advent of the modern administrative state involved the collapsing of the traditional separation of powers. And I also agree that that's highly disconcerting. An early phase of modern administration in which essentially lawmaking, law adjudication, and law enforcing powers were given over to largely monolithic agencies was a problematic one, but in short order, we've redeemed and refashioned the constitutional commitment to checking and separating state power.(fn15)

And we did so by disaggregating that administrative power among three sets of rivalrous, diverse stakeholders. Specifically, power was- and today it still is-triangulated among three sets of actors: the presidentially appointed political leaders atop the agencies, the career, politically insulated civil servants who carry out much of the day to day work of the agencies, and thirdly, the public writ large, that's all of us who have been long authorized to participate meaningfully in many facets of administrative government.(fn16) The triangulation, for me, redeems and revitalizes federal governance in an era far different from that imagined by the Framers.

And to be clear, this triangulation is not just a thin reproduction. I'm not just saying, "Oh, we had three great constitutional branches, and now we have three administrative rivals." I'm not suggesting something as empty or formalistic as that. But rather, there's a lot that connects the old and the new separation of powers; most obviously, the agency heads are apt stand-ins for the president herself, insofar as they are appointed by and answerable to the president. Less apparent, but I think that still has an analogy, is the public writ large, whom I compare to Congress. Like Congress, the public's participation

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is multi-polar. It's pluralistic, at times scattershot: at any moment some are favoring and other are disfavoring any given proposal or initiative.

Last, I analogize the civil service to the judiciary. Like the judiciary, the civil service may act as a counter-majoritarian check. But precisely because of its distance from the people, the civil service's legitimacy cannot be taken for granted. Thus, like judges, the civil servants earn their legitimacy through careful, robust engagement, through the articulation of reasons, and through consistency across time and across political movements.(fn17)

The interplay of these three sets of actors ensures that administrative government is the product of broad based and...