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The Unelected: How an Unaccountable Elite is Governing America

James R. Copland Senior Fellow, Manhattan Institute
Dan McLaughlin Senior Writer, National Review
Tue, Sep 15, 2020 EVENTCAST

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The Unelected: How an Unaccountable Elite is Governing America

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The Unelected: How an Unaccountable Elite is Governing America

James R. Copland Senior Fellow, Manhattan Institute
Dan McLaughlin Senior Writer, National Review
EVENTCAST 01:00pm—02:00pm
Tuesday September 15
Tuesday September 15 2020
PAST EVENT Tuesday September 15 2020

Americans are focused on the November elections. Elections of course matter greatly. But increasingly, unelected actors are responsible for a great deal of the way our government influences our daily lives. These unelected actors’ decisions will in many cases be largely unaffected by November’s election outcome.

In his new book, The Unelected: How an Unaccountable Elite is Governing America, Manhattan Institute senior fellow James R. Copland shines a light on this phenomenon. Blending real-world examples with cutting-edge legal analysis, Copland shows how modern American government lost much of its accountability to the voting public. And he tells the stories of ordinary people whose lives were upended by the unaccountable government apparatus.

Join Copland and National Review senior writer Dan McLaughlin for a conversation about his new book—and the work that lies ahead to repair the rule of law and restore the constitutional design.

Event Transcript

Dan McLaughlin:

Good afternoon. Welcome to our virtual event for the Unelected: How an Unaccountable Elite is Governing America. I'm Dan McLaughlin. I'm a senior writer at National Review and I am here to talk with Jim Copland from the Manhattan Institute regarding his book, The Unelected, which is now on sale from Encounter Books. Jim is Director of Legal Policy Research at Manhattan Institute. He has a Master's of Science from London School of Economics and a JD and MBA from Yale, and he has put a lot of study into a very interesting book ... It runs about a little over 200 pages ... giving a history and overview as well as really a series of thoughts and recommendations about the growth of unelected government in America and how it came to be, how it affects individuals and some ideas about how it might change.

Dan McLaughlin:

Jim, why did you write this book?

James R. Copland:

Well, I thought it was an important topic and it synthesized a lot of the work I've done over the last more than a decade now at the Manhattan Institute. Part of what motivated me here was that people just really don't understand the way this works, including people in Washington. We put a lot of stock into elections. Elections are more fractured than ever in some since, or at least in recent history, they're more contentious. They're more around our dinner table than ever. The elections in November certainly matter for every office but people don't necessarily realize, or they misperceive parts of, of what I call the unelected government.

James R. Copland:

From rule making to enforcements to our litigation system, and the way we have upside down government where our proper federalism is inverted into what I call the new anti-federalism. I wanted to synthesize these topics together and explain them to the general public because there's a lot of inside baseball talk. Volumes have been written on pieces of this topic but I wanted to bring them together and communicate them in what I thought was a clear, easily understood way for people and policy makers. Because if we don't understand that, we might pull on one of these levers, might pull on rule making and not realize what the side effects will be when it comes to enforcement or how litigation might fill the gaps.

James R. Copland:

So, I think it's important to understand the totality of the picture here as we set out to reform the way our government works and return it more to the constitutional model we started with.

Dan McLaughlin:

The book really, as I see, it divides really into four general areas, right? Separation of powers, the question of executive discretion and complexity in the criminal code, the regulatory power of private lawyers, which a lot of people don't really think of as an unelected function of government and this horizontal federalism issue. So maybe we'll just touch on each of these.

Dan McLaughlin:

The separation of powers, we think of unelected government in part as a matter of judicial activism, of judges deciding things beyond what was written down, and some of that is in here, but the book really covers a lot of the questions of straying from the founders design. John Adams in the Massachusetts Constitution in 1780 talked about how the executives shall never exercise the legislative and judicial powers, either of them, and it goes on to say the same for the legislative and the judicial powers in order that we should be a government of laws and not of man. How does each of the different branches straying from that original design, how does that reduce both government of law and government of men in terms of men ... men or women ... who are accountable to the voters?

James R. Copland:

I think each of the branches is somewhat complicit here and we funneled a lot of power into the executive branch, rule making power as well as administrative power as well as judicial power and untethered a lot of that executive branch from the elected president. The elected president certainly matters because he or she can pick the heads of agencies and cabinets that can start to wield authority here, and for these more independent agencies at least get majorities on the commissions that wield authority at least over time.

James R. Copland:

But we've untethered a lot of it from the election of the president and really untethered it from the Congress where for the first 50, 60, 70 years of the national project the power really lay. Part of the problem is with this delegation question that the founders in our Constitution weren't as explicit as John Adams in the Massachusetts original Constitution but they were drawing upon a depth of experience learned from English experience through the English civil war, expounded by Locke and Montesquieu and Blackstone and these great writers that the founders looked upon, so they did clearly intend for the legislative power to reside with the Congress, and the Supreme Court early on always acknowledged that.

James R. Copland:

Obviously, there are ways you have to give some discretion to the executive. The Congress can't spell out every excruciating detail with specificity and sometimes Congress needs to put on/off switches where the executive decides when something comes in and when it goes out. Over the first 150 years or so of the country, we saw Congress doing that but not much more. And then we had a paradigm shift in The New Deal and the court largely for the last 80, 90 years has inverted that and basically let Congress delegate broad amounts of authority to the executive branch with some exceptions to that that we can get into.

James R. Copland:

And then, has also allowed for pieces of the executive branch to be essentially unaccountable to the elected president, too. These independent agencies with boards, bipartisan boards that are staggered and they go across presidential terms, are these independent quasi-judicial, quasi-legislative bodies that both make and enforce the law. There are advantages to this in terms of rule of law consistency but you certainly lose a lot of accountability there. And the court just in this last term fire walling there for the CFPB by saying, "Well, no further. You can do this with a bipartisan commission but we're not going to let you vest a single director of an agency with this sort of authority and have the director because someone that the president can't fire."

James R. Copland:

And in fact, in that agency, the Congress can't even cut its budget. They have drawn some firewall limits there. And then when it comes to just interpretation as well, the courts have basically punted some of the hard questions. Congress drafts a lot of vague and ambiguous laws and the basic rule that the courts over the last 35, 40 years have developed is, "Well, if it's an ambiguous law, we're going to give discretion to the administrative agency. Not to the individual being regulated but to the agency itself in interpreting that ambiguity," which has created a lot of situations, particularly because sometimes ambiguity is found where I don't think it should be found, a lot of situations where innocent individuals are caught up in the law through a regulation that was not in away expressly authorized by the Congress.

James R. Copland:

Of course, the regulations never come back in front of the Congress for authorization. All three branches have essentially collapsed. The law making function, the judge and jury function and the administration function all in a single locus and that's been substantially removed from public accountability.

Dan McLaughlin:

One of the doctrines you focus on there is the non-delegation doc. That is the Supreme Court has said in the past and then said perhaps less vigorously until fairly recent years that you can't just hand over Congress's power to make rules to the agencies. One of your suggestions for reform here is for the court to enforce that a little more, but have we reached a point where if the agencies are not allowed to make these rules, Congress just won't do anything?

James R. Copland:

Well, that's the argument that the progressives will make, that the state has just gotten so big Congress can't handle it. The original conception here was to make it hard for Congress to pass new laws. The bicameral legislature we've got is somewhat an accident of compromise at the convention but it's worked to say, "Well, we need a majority of the people more or less, and a majority of the states," and those state elections are staggered over time so you're not going to have one election and then all of a sudden change everything. Then, of course, the president's got to sign on or you need bigger, super majorities to enact new legislation.

James R. Copland:

That creates a stability of expectations. That's a good rule of law principle, obviously frustrating to more radical designs but then when you grow the state bigger and bigger and bigger, those obstacles make it tricky for the Congress to tweak the rules over time because it's very, very difficult to get bicameral majorities presented to the president and get that signed into law. If Congress doesn't delegate a significant amount of detail to the administrative agencies, then where are we? We could lock in some really bad regulatory choices as things evolve over time and we learn more and it's hard to reform or to tweak.

James R. Copland:

So I think that's part of the reason why we've done this sort of delegation, but I do think that there are ways that the court can force the issue more. My default preference here would be to change what lawyers call the Chevron Doctrine, which is based on a Supreme Court decision, but change this presumption of ambiguity from being one giving the agency discretion to one saying, "Well, if there's ambiguity, we're going to give the regulated entity, the person, the corporation, whomever you're trying to enforce this regulation on, the benefit of discretion." Similar to how we apply the rule of lenity in criminal law saying if it's an ambiguous law, the criminal isn't guilty.

James R. Copland:

In other words, force the legislature to add some specificity. And of course, there's nothing preventing Congress from delegating the drafting out and then taking the regulatory recommendations back and then enacting them. Now, it may mean that some bodies of regulation never get enacted but Congress could certainly do that. It could certainly insist on various protections when it comes to the criminal law. It could certainly insist on sun-setting regulations that it has affirmatively enacted.

James R. Copland:

There are all sorts of ways Congress could retain more of its authority here. Obviously, those who want the state to do more and do it more quickly and particularly to exploit a majority that's emerged in a single election to radically reshape things may not be friendly to those sorts of reforms but I think they're important if we value the public accountability that we want in our government.

Dan McLaughlin:

It seems to me, and you talk about this a little at the end of the book with the section on the pandemic, which obviously I assume is the last thing you wrote, in the book if you look at the Trump administration, I think it's brought into more public attention Trump and his war with the "deep state" or maybe as you might call them deep states, since each of these agencies is its own fiefdom. But, when you have the president fighting publicly with agencies that in theory are under his command, doesn't that make it harder for the voters to decide whether to hold the president accountable for what those agencies do? Sometimes without his consent.

James R. Copland:

Absolutely, and this is one of the arguments on these principles that folks like Antonin Scalia articulated with some clarity. The lack of accountability ... If Congress can just pass open-ended laws and say, "Well, we had a financial collapse. We're going to create new agencies and delegate a lot of rule making authority to them." Or, "Oh, we've got a pandemic. We're going to delegate new rule making authority." Or, "We had a terror attack. We're going to delegate new rule making authority." Congress has done something. They've taken actino but they don't really have to be accountable for what's done. And, the president can do the same thing. He can point the finger.

James R. Copland:

Listen, we've got a president that likes to do social media and sometimes goes off in ways and thoughts that aren't fully formed, but when we look at the president actually reacting against the government he nominally controls, that tells you something about how hard it may be for voters to discern exactly what's going on. So, some of the folks that talk about the unitary executive and actually putting more power in the president's hands are worried about precisely this.

James R. Copland:

Now, the rejoinder to that is, of course, "Wow, we don't want to concentrate too much authority in one elected president." We might get presidents that we don't like and the left certainly doesn't like Donald Trump. The right certainly didn't like Barack Obama. We don't want to give unfettered discretion to a single president whose been elected, and I agree with that critique. The answer there is for Congress not to delegate so much authority when it comes to rule making and to enforcement and remedy discretion to the executive in the first place. It's not to create these quasi-independent government entities that are just self-perpetuating and doing their own regulatory agenda with no accountability for what they do when it comes to election time because there's no real way you can get the voters to react to what the FCC or the SEC is doing.

James R. Copland:

And, it wouldn't be a coherent election issue anyways. To some degree, let's make the people we vote for accountable and let's disburse the power and authority, which is the principle check on tyranny to disburse power both horizontally and vertically that the founders created in the original document and I think is still the right approach if we get back more in that direction.

Dan McLaughlin:

And the criminal law is really supposed to be an area where the executive does have a lot of discretion to apply clear criminal rules that Congress has passed. I thought particularly in the criminal section ... You do this throughout the book, but I thought that the criminal section had some particularly vivid individual examples of people caught up in a web of crimes that Congress never created by itself, that don't require the individual to even know they're committing a crime and that gives, in turn, prosecutors a huge amount of leverage and discretion to decide who falls under the criminal law.

James R. Copland:

Right, and this is something James Madison talked about early on that you don't have the rule of law ... I'm paraphrasing ... If you have too many laws, because no one can follow what the law is. The common law, we had eight basic crimes, and those crimes were what lawyers call malum in se. They were bad in it of themselves. They were things like murder and assault and robbery and rape and burglary. Everyone knows these are wrong, so you don't even have to worry about things like people being put on notice for their criminality. What we have today is the evolution of the malum prohibitum crimes which is this circular crime. It's bad because it's prohibited but it's not self-evidently prohibited, and anyone who watched the movie Legally Blonde saw this exchange in an early criminal law class about malum in se and malum prohibitum crimes.

James R. Copland:

Well, malum prohibitum crimes, they're not the ones that put most people in prison but they are crimes that can really entangle ordinary people running businesses, running family farms, trying to figure out how to comply. We have this two-tiered problem. With the big businesses, the businesses are so dependent on the government in many cases that they face what Don Corleone would offer as an offer you can't refuse. If the government tells you to do something, you have to do it if the government can yank your ability to sell your products to the military or yank your ability to get reimbursed for your pharmaceuticals or medical devices through Medicaid or Medicare. Or, if it can yank your license and prevent you from being active in the insurance market or other financial markets.

James R. Copland:

Those sorts of businesses are very much at the whim of federal prosecutors, and federal prosecutors have used that authority, particularly in the last 20 years, to coerce all sorts of changes in business activity that they never would be able to get if they actually took this business to court and said, "We're prosecuting you criminally." They wouldn't have been able to make all these changes in business practice and force companies to change directors and fire CEOs and do all the sorts of things the companies have had to do, including hiring people that report back to the government.

James R. Copland:

But they're able to do that because of the sanction. Now, as big an issue as that is for big business, I want to emphasize big businesses can live with this situation because they hire teams of lawyers that are tasked with compliance with the government's dictates and these lawyers can keep them in line, and to some degree, this insulates the big businesses, all these complex rules, from competition from upstart competitors without those teams' compliance lawyers. So, it's the small businesses, it's the entrepreneurs, it's the family farmers that really are in jeopardy by this multiplication of laws.

James R. Copland:

Again, I say laws but they're really rules or regulations that were enacted through cart blanche grants of authority from the Congress. Of an estimated 300,000 federal crimes ... and that's just an estimate. No one knows for sure how many there are ... 98% of them were never voted on expressly by Congress. So these are creations of the regulatory state but they make it impossible for an average person to comply and that gives enormous discretion to the prosecutors who then wield that discretion to real effect.

Dan McLaughlin:

Yeah, and it's not only that the crimes aren't written down by Congress but the punishments aren't. For example, with a large corporation and I know I've seen this when I was practicing law that you would see companies paying the government amounts of money that were multiples of the maximum statutory fine because the government had them over a barrel and what are they going to do? Say no?

James R. Copland:

Yeah, and not only that, it's a way for the executive branch to be a backdoor appropriator. Now this is something that the Justice Department under President Trump has dropped, but in the last administration we saw billions of dollars being allocated to allied third-party groups like community organizers and housing activist groups. After the financial collapse, big banks agreed to multi-billion dollar settlements with the Justice Department, and as a condition of that, they were giving money to these third-party groups. They weren't just writing a check to the federal government and putting it back in the public fisc and letting Congress appropriate the money.

James R. Copland:

They were in fact saying, "Well, you give your money to this third-party group." It's an in run around the fundamental first power of the legislature, which is the power of the purse, the power to appropriate funds.

Dan McLaughlin:

And it's not only criminal prosecutors who have this power, but often private lawyers. We don't really think of them as the government, but when you can walk into court and threaten someone with government power and invoke government power against them, you can effectively institute your own forms of regulation. I think you talk a lot about that in the book, as well, that the growth of civil litigation as both the tax and the regulatory state in itself.

James R. Copland:

Absolutely. As a tax, it's a pretty big one. If we just talk about the direct tax, the direct cost of tort litigation, what defendants pay out including to their lawyers as well as administrative insurance to insure against that risk of catastrophic loss, we're talking over 2% of the gross domestic product. Over 2% of the economy annually just in direct costs goes to this tort litigation system, and that's about three times as much as the European average. Our litigation regulatory system is substantially more expensive than competitor countries, but it's a strong regulatory system, too.

James R. Copland:

I wanted to write about this because there's an instinct on the part of a lot of observers. Sometimes they're philosophers or economists or people who don't exactly understand how the rules work, or they're folks who are in one part of the law but they don't understand the interlocking pieces here that'll say, "Well, this is really what we want. We really want tort litigation as the answer and let's get rid of the regulatory agencies and just rely on tort lawyers." It's as if this is the private law system, which it is, one citizen sues another, but that means that it's somehow equivalent to a private market.

James R. Copland:

Well, it's not. A defendant in a lawsuit is only in front of the court because the plaintiff is using the government's force to force the defendant to come to argue the case or come to the bargaining table and reach a settlement. If our system worked well, and this were simply a way to remedy clear accidents where somebody hurts another and you make restitution and pay that person to make them whole ... That's the system in theory ... then that's a good thing and it may be a useful alternative to what we call ex ante, before the fact, regulatory system from the top down to have an ex post, after the fact, regulatory system from the bottom up.

James R. Copland:

But the problem here is that the bottom up regulation isn't something that's a substitute for. It's something that's an adjunct to this regulatory state. So sometimes the regulators can reach a determined result and say, "This product is dangerous. We've got something that if you accidentally put it into an artery instead of a vein, it could cause gangrene. It could cause your arm to fall off. But, we think on balance, the cost benefit analysis warrants putting that product in the marketplace and we're just going to put some warning labels that we're going to require through our regulatory state on the product so that the doctors or the nurses or the physician assistants who are administering this drug intervenously know the risk if you inject it into an artery."

James R. Copland:

Well then, the way our system works and this is not a hypothetical case, this is Wyeth v Levine, as you know, that's a relatively recent case this century on this. A jury in Vermont can say, "Well, that warning label, even though it's in four places, all bold, all caps warning label, isn't adequate to warn the doctors and nurses." And the state Supreme Court can say, "Well, that's our tort law and we don't really care what the federal regulators did with the company back and forth on this." The Supreme Court is going to sign off on that so that the regulators said, "Let this product out on the market" and the state is effectively overriding the federal government.

James R. Copland:

We see this work in lots of cases where a state will override another state's decision. Today, in class action litigation, a lot of that has moved to the federal government when it's a national class action case. That's only since 2005 when we passed the class action fairness act. But before that, we had a lot of national class action cases where one state would reach a decision under its tort law that overrode the considered decision of another state. Massachusetts had a rule saying to keep auto insurance prices low, we want to require insurers to use generic auto parts, not just the ones that come from the particular car company because that will create more price competition and keep prices lower.

James R. Copland:

Well Illinois, in a class action suit that was national, overrode that decision saying, "Oh no, you've got to use the original manufacture part and if you don't, that's a fraud." We have all these complexities here and this intersects with both the federal versus state as well as state to state issues in all sorts of complicated ways. It's a very, very removed sort of system both from the elections we hold and from the system of law that we had at the outset of the American republic.

Dan McLaughlin:

Yeah, and I think we have about 10 more minutes or so before we'll take some questions from the audience. I think we've got a few submitted here. I would invite anyone who has questions to participate. You can use that through the platform that you're watching on. We'll try to get to as many as those as we have time for. One of I guess the fourth theme that I think you started to touch on in the book is this horizontal federalism, or anti-federalism. The risk that say if the California government, whether it's the legislature or whether it is the California courts, and this can be California, it can be Mississippi, it can be anywhere ... If they pass some rule that by force of tort law, or by force of how they govern corporations doing business, or even corporations that their state treasurer invests in, if they do something that imposes a rule on the entire country, nobody outside of their state gets a vote on that.

Dan McLaughlin:

You can't vote out the California government if you live in Texas. I think this has been a subtext of some of the things that the Supreme Court has done over the years. One of my favorite examples is the New York Times versus Sullivan. Everybody thinks of it just as a free speech case, but what happened? You had civil rights leaders ran a paid ad in the Times and it was arguably defamatory of some fairly pro-segregationist leaders down in Alabama. So they sue in Alabama State Court for defamation and one of the things that particularly alarmed the Supreme Court when they got the case was that the Alabama officials got a judgment against the Times that was far in excess of the amount of business the Times did in Alabama.

Dan McLaughlin:

So obviously, it was not just a matter of saying, "If you want to do business in Alabama, you have to comply with this," but they made it so that effectively the Alabama judgment would affect the whole country. The Supreme Court didn't lay down the rule that was a federalism. It lays downs a national rule, though, that puts a limit on that one area of state tort law because it was a sympathetic defendant, a cause the court cared about. Is there another way to handle these situations or is it just a matter of it's only going to be the [inaudible 00:30:01] that people in the federal courts care about that get restricted and in other ways, state governments continue to be free to extend their own power beyond their own borders?

James R. Copland:

Well, I think the example you used for the non-free speech context, when it comes to the litigation power, I do think Congress clearly can not act in ways that mitigate this problem. The issue there is not what Congress can do, it's what Congress will be able to do given the concentrated political power that's been accumulated by the plaintiff's bar over critical actors in the elected government and that power is substantial so that political power limits the scope of politically realistic opportunities for Congress to step in.

James R. Copland:

The way to do it is, of course, to try to shift the area of tort law closer towards that area of corporate law where federalism works, although it's LOCUS is at the state level. Let me explain a little bit more about that. Federalism is, I want to emphasize, one of the genius innovations in our form of government. We got into a little bit by accident, but what it does is empower what folks who study this call foot voting, voting by feet, so that instead of voting for public officials if we don't like something, we are free to move somewhere else. So if New York is overtaxing me, I can move to North Carolina or to Texas. If New York is over regulating its businesses, it can lose businesses to Tennessee or to Arizona.

James R. Copland:

This in fact works very well, and it's not simply a minimalist race to the bottom, either, I want to emphasize. If the government isn't fixing the roads, isn't fixing the public infrastructure, is running sorry schools, isn't running an effective criminal justice system, people and businesses leave over that, too. So there are these market pressures or market type of pressures, these competitive pressures, in play through federalism and that's really the genius of the system. But the problem is exactly what you point to, that if one state can effectively dictate to the other 49 states how things are done, then we have a problem there because nobody in Nashville, and nobody in Dallas and nobody in Cheyenne, Wyoming has voted for the elected official in Sacramento or San Francisco or in New York City or Albany.

James R. Copland:

I think to get around that, the way corporate law works ... and corporate law, one of the most famous piece in corporate law written by William Carey, a former SEC commissioner talked about it as this seminal case for this so-called race to the bottom. All the corporations, most of the big ones, are incorporated in Delaware and that's because the Delaware courts are overly friendly to boards of directors and managers and shareholders are getting the short end of the stick.

James R. Copland:

A few years later, one of my mentors, Ralph Winter, now a federal judge, then a Yale law professor, for whom I clerked for on the 2nd Circuit Court of Appeals, wrote a reply saying, "Wait a minute, this isn't a race to the bottom. It's a race to the top because this is priced into the securities price of the corporation." If shareholders are getting a bad deal in Delaware, any business wanting to raise funds through an initial public offering can raise more money by taking the business public in one of the other 49 states.

James R. Copland:

How well that works in corporate law is still a matter of dispute. I don't want to say that Winter's construct won the day, although I do think the empirical evidence broadly supports his point of view, but that's the opposite of what we have in something like tort law where if Michigan can do what it's done and say, "We're going to give credibility in our legal system to the decisions of the FDA and use that to preempt tort litigation ..." In other words, if the FDA has said this drug label is sufficient and we're not going to allow anyone to sue for an injury that's expressed on the label if the FDA's passed on it, that's not going to attract necessarily a bunch of pharmaceutical companies to Michigan because they can still get sued in the other 49 states.

James R. Copland:

And when you bring in things like punitive damages, you can get many, many multiples of that against the company. So what the Supreme Court has tried to do is say, "Well, we're going to limit those punitive awards." Again in Alabama, BMW v Gore, if you've got a scratch on your car that wasn't disclosed and it's worth $4000, we're not going to let you get stuck with millions of dollars of verdict in that case. Whether that's a workable long term solution, whether it's tethered to the constitutional text or not is far more questionable but Congress certainly can step in here and adopt different choice of law rules. I don't spell this out other than by citing a professor, Michael Krauss, who developed some of these ideas and citing some of his work.

James R. Copland:

But Congress certainly could tweak its choice of law rules and some of its jurisdictional rules to change this, and they could do that either by creating some sort of federal product liability overlay, which was the effort that was tried in the 1990s and failed because Bill Clinton vetoed it. Or, they could tweak these choice of law rules directly and use federalism how it's done in corporate law. It's not an easier simplistic way method to explain this, but they could do that a lot when it comes to tort law if there were the political will.

James R. Copland:

When it comes to enforcement actions, the state AG acting out of turn, that's a lot trickier to do and really there Congress has to do what's called preempt the field and clear out the field so that the state can't regulate. The problem there is there are costs to that sort of field preemption in many cases. In many cases, we want competitive regulatory regimes so the question becomes how do we do that where we can cabin the excess and still create those federalist competitive pressures, and that's a much trickier one for us to deal with, but it's something Congress really ought to be thinking about.

James R. Copland:

This is really the core of congressional regulatory authority is where do we have national rules versus state rules and how do we patrol those boundaries?

Dan McLaughlin:

I think if we can maybe start to take a few questions. We have one question here. You walked through on the question of non-delegation. You walk through in the book some of the history of that, and going back even before the Constitution, there is still a thought that says essentially, "Well, the non-delegation doctrine is a wonderful idea but where is it in the Constitution?" What is your thought and your response on that?

James R. Copland:

Well, there is not an express provision like John Adams put in the Massachusetts Constitution that says Congress can't delegate its legislative authority to anyone else. So, we don't have that. It does say that the legislative power is vested with the Congress so it depends on your interpretation here of what that means in terms of how much deference you're going to give that back history that underlay this and how much weight are you going to accord that. Certainly, the Supreme Court in its earliest days bought into the idea that this non-delegation doctrine that was understood from Locke and from Montesquieu and from the English Civil War and from Blackstone and through the comments of essentially all of the founders in some way or another acknowledge this principle.

James R. Copland:

The principle itself I think is there in the same way that the right to travel is there. The right to travel is not expressed in the Constitution but clearly excepting perhaps an epidemic where we had travel restrictions put in by states and localities in the earliest days of the republic, but excepting an epidemic type situation or an emergency type situation, generally a state can't keep people from other states from moving in. But that's not expressed. This is why I think sometimes ... and, I don't get into constitutional theory writ large in this book, which is a whole other book to write and one that many people have had put a lot of ink to, but just because something isn't expressly said yo can't do this doesn't mean that it's not implicit in the whole.

James R. Copland:

That said, I don't think it's realistic to expect the Supreme Court to have a super strong form non-delegation doctrine that basically forces Congress to legislate minutia. In the early days of the republic, some of the decisions made did just that. In the first Congress, when they were setting out the postal roads for the post office, there was a school of thought in the Congress that said, "Let's just let the executive decide where these roads are, where they go." And, the winning school of thought in the first Congress was, "Nope, we're going to specify this. We think that's an unconstitutional delegation to the executive." James Madison was in that group that won and said Congress has to spell it out.

James R. Copland:

I don't think we're realistically going to say, "Well, the Congress has to decide every equivalent of the postal roads today." So, I don't think we're going to get back to that point and I don't think it'd be pragmatic or realistic to do so. That said, I would think we could see, and I think we may be likely to see given the current composition of the Supreme Court, if it stays this way going forward for the immediate future, we may see a revivification of the non-delegation doctrine in other words that we've seen evolve in recent decades at the Supreme Court, such as the so-called Major Questions Doctrine. This is where the Supreme Court has said if there's a giant regulatory shift that matters, that's a congressional question, not an executive question.

James R. Copland:

When it comes to something like treating tobacco cigarettes and the nicotine in tobacco as a drug regulated by the Food and Drug Administration, something Congress had considered multiple times, enacting multiple statutes and decided not to do expressly, and the Supreme Court comes in and says to the Clinton administration, "No, you can't just all of a sudden decide to do this now based on the statute that's open-ended that was written previously. Congress has considered this. They've decided not to do it. It's a major question. We're not saying whether it's a good or bad idea to regulate cigarettes through the Food and Drug Administration but Congress has to make that call, not the executive branch."

James R. Copland:

I could see a revivification of this in other contexts and see a stronger form of that as an emerging middle ground between requiring regulatory specificity out of the Congress, which I don't think is realistic but requiring that the Congress, not the executive make the big policy choices on the other hand. That's really where I hope we would go.

Dan McLaughlin:

One of the other accountability issues is the question of presidential appointment and presidential removal of executive branch officials. There was a lot of controversy in the 19th Century. Of course, you had the first resistance to presidential removal power came basically from the Whigs during the Jackson administration spoils system. You had this during Reconstruction, where Congress wanted to be able to restrict Andrew Johnson's ability to remove the Defense Secretary, Secretary of War. It led to his impeachment. I looked into this recently, and it's interesting. The Confederacy actually had in its Constitution, unlike the federal Constitution, explicit restrictions on the president's ability to remove executive branch officials but you started to see a movement away from presidential control in the 1880's with Civil Service reform.

Dan McLaughlin:

Of course, that was in part a reaction to the president being murdered by his appointed office seeker. Should we be going back? This is another question we have from the audience. Should we be going back to having more presidential appointees who are political appointees accountable to the president, removable by the president?

James R. Copland:

I think that's going to be hard to do. In part because of the size of the federal government. This is something that I think you, Dan, commented on today on social media. There's over 150, I think it is, appointments that have never been filled by the Trump administration. Now, part of this is that the Senate democrats have forced the issue and lockstep opposed in many cases every Trump administration appointment, forcing the Senate to bog down in business to get confirmations through. But certainly I think that Mitch McConnell would have greased the wheels if necessary to fill out the administrative state but just actually filling all these positions with political appointees can be quite difficult.

James R. Copland:

So, that's one practical obstacle to going back to a system we had in the earlier days. As you know, to the spoil system had its own problems. The great irony is that Chester Arthur, now of course he inherited the presidency after the assassination of Garfield that you alluded to but Chester Arthur came up knowing the beast, like Joe Kennedy knew all the shenanigans so FDR put him in charge of the Securities and Exchange Commission. He knew all the Wall Street tricks. Chester Arthur had run the port authority here, the customs house here in New York, which was the epicenter of graft because all the stuff came in there and it was basically a way where people could make enormous amounts of money for the time working as custom officials basically taking the equivalent of bribes from folks that wanted to get their products into the country and avoid duties and things like this.

James R. Copland:

That's graft and spoils system that developed through machine politics, it's understandable why the good government reformers wanted to do away with some of that and get a more professional civil service. The problem is here you end up filling the government with a lot of what I call true believers. Who's going to spend their life working on a government pay scale in the environmental protection agency? Well, it's not somebody probably who worries about the effects of their regulation and how that's going to affect new business development and worries how it's going to affect competitive markets and new entrance and things like that. It's probably someone who's a true believer on environmental questions.

James R. Copland:

What that means is you're going to necessarily have a skew or necessarily have a bias in favor of more regulation and it's hard to turn that corner when you're entire team underneath your top level political appointees are true believers to the cause. I would support some sort of civil service reforms that make it easier to dismiss government officials. The turnover in government agencies is obscenely low when you compare it to private sector sorts of jobs. The job security there is extremely high and obviously someone who's really an obstructionist shouldn't be able to just continue to cling to the job. But the flip side is I wouldn't want to move towards something we had under the window of time really between Andrew Jackson and Chester Arthur where we just had this spoils system where to the winner went the spoils and we changed all the government officials each time, et cetera, et cetera.

James R. Copland:

Again, there's probably a happy medium there but I do think that making the agencies more accountable to the elected president in general is something we ought to strive for, and one of the necessary offshoots of that, I think, will be for Congress to rein in the delegation to the agencies because Congress realizes the other party might control the presidency some day.

Dan McLaughlin:

Is there a way to draw that line in a way that says, "You know what? Certain questions simply can't be delegated to anyone but a political [inaudible 00:47:39]" and make that more explicit?

James R. Copland:

I think that's a conceivable way to do it. The problem is people can muck up the works and people can ride out the political appointees. When I was a clerk on the 2nd Circuit, Judge Winter was the chief judge at the time and wanted to reform some of the ways that the operations were happening at the circuit level, and one thing he was always cognizant of was the fact that in general, it's hard to reform government bureaucracies because they can ride you out. They can ride you out if you're a political appointee. They can ride you out if you're a chief judge, who unlike the Chief Justice of the United States, is temporarily filling the role of leading the circuit court.

James R. Copland:

What he would also do is bring in John Walker to any meetings with the administrators. John Walker was also a judge on the circuit and was slated to be the next chief judge after Chief Judge Winter, and John Walker would be present in all the meetings he had with the folks who were running the court system basically signaling to them, "You can't wait me out so let's work together and get this done." But, that's not as easy to do when it comes to an administrative agency where necessarily you're going to have turn over in administration at a minimum after eight years.

James R. Copland:

I think the ability to fire people is a necessary thing, and we ought to rethink some of the protections for government workers, but that doesn't mean it has to be an employment at will situation and we certainly don't want to go back to a full spoils system, but to make the appointed officials responsible also necessarily requires giving them some hiring and firing authority, I think.

Dan McLaughlin:

If you could go over the menu of suggestions and proposals, what would you say is the easiest one to do, that is something that you would say, "Oh, this is something we really can get done and ought to get done" and what would you say is the most important. Maybe those are the same thing, maybe they're not.

James R. Copland:

I doubt they're the same thing because what's easy to do is you can always do a smaller ball hit, so you might be able to ... For instance, one thing we were working on in the criminal justice reform context that we might have been able to get if the Obama administration had signed on as part of their criminal reform package ... They ultimately dropped their criminal reform effort, in part because they didn't want to do it which I guess doesn't speak to it being that easy, but it's something like a mens rea reform which is a criminal intent reform, but some way of putting criminal law backstops on some of these rules that are enacted, I think could be through both the process. The REINS Act, which I talk about there reining in the government. It basically requires the regulations to go through the Congress for approval, or sun setting some of these regulations.

James R. Copland:

Some of these sorts of things might get approval as a structural reform that comes through the Congress. They may be achievable. Again, the fans of the big administrative state are going to block this. Something I testified before in the House on the litigation and some of the ... It's also a new anti-federalism question but the ability of state AG's to hire private lawyers to enforce federal law that creates some sort of private right of action, some sort of mechanism to sue in civil court as a remedy. There may be ways Congress could constrain some of that hiring, at least to weed out some of the graft we see where private attorneys give tens of thousands of dollars, hundreds of thousands of dollars to candidates for office, who then hire them to contracts that award them millions of dollars on the backend on a contingent fee basis suing on behalf of the state.

James R. Copland:

Some of those government reform I think are more plausible. In terms of what I think would be a big reform that would really matter, there are multiple interlocking issues here but in terms of the regulatory state writ large, if the courts were willing to do what I think is probably the first order best instance review of delegation, which is basically forcing Congress to do its job, it would do something like creating a presumption for the regulated entity, similar to the rule of lenity, which is under utilized although it's a prescription in the criminal law, saying essentially that if there's some ambiguity here about whether the power exists, you can't regulate there so that a private entity could say ... When they're fighting a fine or a sanction or a prosecution could say, "Hey, wait a minute. Congress didn't clearly delegate this."

James R. Copland:

So a strong reform of non-delegation doctrine like that, that would at least force Congress to act with some specificity, I think could really reorder the rules of the game a little bit and it's a reform that I would like to see the courts do, but I don't expect that they'll go that far.

Dan McLaughlin:

Yeah, perhaps in the order of saying that if you weren't put on notice, that it was a crime from reading the statute, that you shouldn't be prosecuted under the regulation. I think we have time for one more audience question, which is ... We have one last question here that I think feeds into that, which is if we're trying to force Congress back to writing these laws, aren't we running into the problem that a lot of the laws do touch on highly technical specialized subjects that may be beyond the capacity of a lot of members of Congress to understand. And I guess I would add to that, the other part of that that I would add is not only is it going to be difficult for Congress to understand but when Congress does legislate highly technical topics, often we get these thousand or more page bills that nobody who votes on them has actually read them.

Dan McLaughlin:

Nancy Pelosi's famous remark about the ACA, which is saying out loud what is true of many other things. Is it workable or if we are requiring Congress to do things on a highly specialized basis, are we guaranteeing that they're either just not be able to pass rules at all or that they will just totally defer to their staffs, the lobbyists, whoever writes the bill?

James R. Copland:

Well, they're going to defer to the staffs of the lobbyist either way, and so ... Yes, I don't think that many individuals in Congress even could begin to read all the legislation that they actually are voting on. That's a scary thought, but there is a reason why they hire staffs, and unlike a lot of volunteer state legislatures ... Not volunteer, part-time state legislatures don't pay a lot of money. This is a professional job with robust professional staffs here. Congress ultimately though has the authority, so the question I think is not one of you can not delegate the details per se. It's that you can not delegate the authority to act.

James R. Copland:

There's nothing wrong with Congress saying to an agency, say the Environmental Protection Agency or say the Food and Drug Administration, or say the Securities and Exchange Commission ... and, giving an agency authority to propose regulations and then having Congress ultimately vote on those regulations. They could potentially even tie their own hands a little bit, and we see examples of this already. For instance, in trade negotiations, and this was the innovation that came out of The New Deal and an innovation that I think broadly worked for those of us who think trade liberalization was a good thing, and I realize that's probably more controversial today than it might have been at one point in time but putting aside various caveats or various critiques of parts of that regime, the notion of saying, "This is complicated" ...

James R. Copland:

And, Congress clearly has the power to set tariffs on imports and to control import and export questions, but if we're trying to negotiate with lots of other countries, it may be better to delegate those negotiations to the Executive Branch. But what Congress doesn't do is delegate that power and then the executive branch gets whatever it negotiates. They have to come back to Congress and Congress has to vote, so Congress has to vote to authorize what's called a fast track trade negotiating authority to the executive branch and then the matter comes back to Congress and Congress has to then vote on that agreement.

James R. Copland:

Now, people may disagree as to whether those should really be treaties, and there's all sorts of technical questions there about the legalities of that, but there's no reason why Congress couldn't say to an agency, "Come back to us with the rules. Or, we need to act quickly and we don't think we can get the matter done, we'll allow you to draft regulations but they're going to be civil only and they're going to expire in five years or 10 years unless you come back to us and we enact them." The point is to force Congress to take actions the way that it's meant to do. It's not to say that each legislator is going to sit in the back room and go over every phrase in 1000 word bill for every piece of legislation.

James R. Copland:

Obviously, that's not what's going to happen in practice.

Dan McLaughlin:

All right, I think we've come to the end of our hour. Thank you all for joining. You can continue to follow Jim and his work at the Manhattan Institute and City Journal, and you can follow me at National Review. I think both of us are on Twitter. And again, the book is The Unelected: How an Unaccountable Elite is Governing America, and on sale through Encounter Books and wherever you can find books. Thank you.

James R. Copland:

Thanks, Dan.

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