On “Regulatory Whiplash”

[Music]

 

Sam Fendler:  Hello everyone, and welcome to this Federalist Society virtual event. My name is Sam Fendler, and I'm an Assistant Director of Practice Groups with The Federalist Society. Today, we're excited to host "On Regulatory Whiplash." We're joined today by Adam White and Will Trachman. Unfortunately, Professor Sally Katzen is under the weather, and will not be able to join us today. We’re certainly going to miss her perspective. And we hope that she feels better very soon. Our moderator today is Alison Somin.

 

Alison is a legal fellow with the Pacific Legal Foundation's Center for the Separation of Powers. Before joining PLF, Alison was a longtime special assistant and counsel to Gail Heriot and the U.S. Commission on Civil Rights. Alison is also an executive committee member of The Federalist Society's Civil Rights Practice Group. And we, of course, thank her for the great work that she does there. If you'd like to learn more about today's speakers, their bios can be viewed on our website, fedsoc.org. 

 

After our speakers give their opening remarks, we will turn to you, the audience, for questions.  If you have a question, please enter it into the Q&A function at the bottom of your Zoom window, and we'll do our best to answer as many questions as we can.  Finally, I'll note that, as always, all expressions of opinion today are those of our guest speakers and not The Federalist Society.  Without further delay, I'd like to hand it over to our moderator.  Alison, thank you very much for joining us today.  And the floor is yours.

 

Alison Somin:  Thank you so much for that kind introduction, Sam. The topic of today's panel is "On Regulatory Whiplash." The regulatory environment in the United States is often complex. State and federal laws sometimes contradict one another. The transition of the American presidency from one political party to another can lead to rapid and dramatic changes in the regulatory landscape. Even transfers of power between administrations of the same party or shifting priorities of one administration can cause significant changes in regulation.

 

      This phenomenon of swift changes in regulatory policy is sometimes referred to as "regulatory whiplash." We are honored to have two wonderful panelists today. As Sam alluded to a moment ago, both have many accomplishments and publications, and full bios can be found on The Federalist Society's website to give just a taste of their accomplishments so that we can save the bulk of our time for the substance of the discussion. I'll go ahead and introduce them both with a nod to some of their major accomplishments.

 

      Adam White is the executive director of the C. Boyden Gray Center for the Study of the Administrative State at George Mason Scalia Law School. He is also a resident scholar at the American Enterprise Institute where he focuses on American constitutionalism, the Supreme Court, and the Administrative State.

 

      Will Trachman is general counsel for the Mountain States Legal Foundation.  Before coming to his current role, Will was appointed to serve in the Department of Education as deputy assistant secretary in the Office for Civil Rights. Will is a member of the U.S. Commission on Civil Rights Colorado State Advisory Committee, and adjunct professor at the University of Denver Sturm College of Law, and president of The Federalist Society's Colorado Lawyer's Chapter.

 

      As Sam, I believe, briefly mentioned, we were supposed to have a third panelist with us today, Sally Katzen of GW Law. We will miss her and her expertise. But I understand that Adam White is familiar with some of her work and can go into a little bit of what she would have said, had she been able to join us today. And, hopefully, we can get a back and forth between the existing panelists, based on Adam's representation of her comments. With that, gentlemen, the floor is yours.

 

William E. Trachman:  Well, thanks for that, Alison. It's good to see everyone. And I am looking forward to today's discussion, especially the Q&A. So, I served, as Alison mentioned, as Deputy Assistant Secretary for Civil Rights in the Trump administration, and saw first-hand how quickly things can change, depending on who sits in the oval office. And, as backdrop, let's just talk through what we're talking about. So, Congress passes laws. Many of those laws delegate an extraordinary amount of authority to executive branch agencies. In my case, it was the Department of Education. 

 

But it's also enumerable alphabet soup agencies in Washington D.C. that have a tremendous amount of discretion. And all of those agencies change personnel when the president changes. So, the secretaries all change. The political appointments change. Now, the bureaucrats, the civil service folks don't change, but the direction of the agencies can change quickly. So, I'm going to offer a few examples where I saw the greatest amount of whiplash in my role, and then, at least one example in my current role as a general counsel of Mountain States Legal Foundation, and then offer a few thoughts about how to mitigate some of the concerns about regulatory whiplash.

 

Obviously, the biggest concern is going to be stakeholders, and having to comply with the regulatory regime coming out of Washington D.C., and, in many cases, the anti-liberty effect that that may have. Because if you think that the regulations are good for you now, but you're on borrowed time until the next administration brings the hammer down on you, you might start to change your behavior ahead of time and suffer whatever restrictions you might anticipate in the future.

 

So, the first example I want to offer is Title IX. You don't really need to have any background in Title IX to understand this example. But Title IX is the federal statute that bars sex discrimination in education by recipients of federal funds. And, in the late '90s, the Supreme Court announced a decision that sexual harassment was covered by Title IX. And so, the Clinton administration issued a long guidance document. 

 

They didn't go through notice and comment rulemaking. Congress didn't enact a statute. The Clinton administration, just in its waning days, issued a long guidance document. That guidance document survived through the Bush administration. And then, in 2011, the Obama administration revisited what schools had been doing for over ten years, when it came to investigating and responding to instances of sexual harassment. But, again, no notice and comment regulation, just more guidance documents.

 

And one theme here is that the less an agency has to do in order to issue new rules or new interpretations of statutes, the more susceptible the change is to whiplash. So the Obama administration changes it in 2011. They enact further changes in 2014, which address how quickly investigations have to occur, what sorts of limitations on due process there are for individuals who are accused of sexual harassment, and then what obligations a school has to respond to even basic allegations of sexual harassment.

 

Now the Trump administration arrives in 2017, withdraws the 2011 and the 2014 letters, but doesn't withdraw the 2001 guidance document that had come from the Clinton administration, and, while I was there, issued new guidance. And then that guidance was pending, until finally a notice and comment regulation could occur, which finally was announced in May of 2020, involving additional due process measures that had to take place, and what schools had to do.

 

So, this entire time, schools had to pay close attention to what was coming out of the Department of Education, both in terms of regulatory guidance and then, also, notice and comment regulations to figure out what bundle of duties they had any time there was an instance of alleged sexual harassment. Now, the Biden administration has announced two separate rules that amend what the Trump administration did between 2017 and 2021. Mind you, Congress has not enacted any statute here. 

 

So, schools who are paying close attention to Title IX because they know that there's an investigation or a loss of federal funds at stake if they don't comply, have to think, "Okay, well, what's the next thing we have to do? We have to keep understanding and digesting these regulations." There's also the effect of anticipation, which I just alluded to a second ago. If you think that you're going to have to set up a system eventually anyway, why not start now? Why build a system that's going to be antiquated, if you are only going to have to change? 

 

So, the effect can be that schools end up pre-complying with onerous regulations that may have an anti-liberty effect in the long run. The second example I witnessed first-hand is in the race context. So the Department of Education also enforces Title VI through the Office for Civil Rights. And in the context of affirmative action specifically, the Bush administration issued guidance that was somewhat milquetoast saying diversity can be a good thing. You should consider a race-neutral alternative ahead of time.  But there is no bar on considering race when it comes to diverse college admissions. 

 

The Obama administration swiftly withdrew that guidance when it arrived, and instead issued aggressive guidance documents — again, no notice and comment — encouraging schools to take race into account more and more, noting that it was not illegal under Title VI, and then, when the Fisher cases dropped in 2013 and 2016, used the opportunity again to encourage schools to embark on aggressive race-conscious admissions policies. Now arrives the Trump administration in 2017. Those guidance documents eventually get withdrawn in 2020. And rather than saying that diversity is to be encouraged or discouraged, the Trump administration says, "Just look at Title VI and court cases, and it will tell you what you can and cannot do."

 

Not necessarily on affirmative action, but in the race context, the Trump administration issued a webinar guidance document saying that segregation in classrooms is a violation of Title VI, that you can't grade students differently based on race, that you can't offer students different amounts of time on assignments, based on race, and that diversity equity programs that engaged in differential treatment based on race — for instance, by telling white students that they were privileged, inherently, based on their race — were violations of Title VI.

 

Within days of arriving, the Biden administration withdrew that document that had said segregation is a violation of Title VI and announced that it was inconsistent with Executive Order 13895, which is the one that says that we need to advance and promote equity. So now, if you're a school wondering, is segregation a violation of Title VI? You would have the Trump administration saying, "No, it's a violation of the law," and the Biden administration saying that even announcing that is contrary to its project of advancing equity.

 

So what would you do if you were a school and you had these sorts of programs? Would you think that they were illegal, or actually, perhaps, consistent with the mission of advancing equity? My former colleagues and I filed a brief in the SSFA cases, saying that while the Court is evaluating race-based admissions preferences, the Court ought to go big and address some of these ancillary issues. Because, no matter what you say about college admissions and diversity, there are going to be innumerable examples of other ways that schools can use race. And the more ambiguity you leave, the more you let the Department of Education announce what is in between the law and the court decisions and the gaps. 

 

So those are two examples. Another is environmental law which, obviously, departs from my former role in the Department of Education. But at Mountain States, we have a number of cases that involve either property rights and maybe oil and gas drilling or a declaration of monuments by the president. And some of those cases have been going on. I think there's one case that was brought by an environmental group in the waning days of the Bush administration, where the defendant is still some acting secretary who has long since left power.

 

And because these administrations flip back and forth on their positions when it comes to land use, you actually have a question about what the status quo is. If you have one regulation that repeals the last regulation, but that regulation is struck down, does the previous regulation come back to life? Or suppose you have an agency that says, "We'd like to pause this whole thing, because we're drafting our own new rule, but it will take us two years"? So, there you have cases where judges are staying APA cases for many years, while they figure out whether the case is going to be moot or not, because the new administration may have a new rule entirely.

 

So those are just a few examples of how, based on who's in the oval office, you might see a vast differential in policy. What are some solutions? It's hard to think of anything that would really fix this problem, because via the very nature of our government, whoever is in the executive branch has a great deal of power. But one solution, at least to minimize or mitigate some of the damage, is that courts, in issuing their decisions, ought to go bigger, as we urged in our amicus brief before the court on the SSFA cases. The more that courts can resolve, the less likely it is that executive branch agencies can engage in this sort of rapid policy whiplash.

 

When you are filing comments with executive branch agencies about proposed rules, you ought to consider urging them to reach some sort of stable equilibrium, which is what Mountain States has done in a few instances where we've been invited to comment or submitted comments on a proposed regulation, saying, "Look, whatever rule you adopt, it ought to be something that isn't going to immediately get overturned the next time a different person's in the executive branch. And also, Congress ought to do a better job of fulfilling its natural role or writing statutes, instead of delegating an enormous amount of power to these executive branch agencies.

 

And my hope, with the pending Loper Bright case on Chevron deference, will mean that agencies have to track statutory language more closely, especially where a statute is silent, and doesn't affirmatively give an agency authority. So it's possible that we may see some backtracking on this problem, if a robust and broad decision comes out in Loper Bright, which would reverse or at least modify the Chevron doctrine. So that's where I'm standing. I'm very interested to hear Adam's viewpoints, and then of course, the questions and answers, which I can see are already coming in. Thanks. I'll turn it back over to you, Alison. You're on mute.

 

Alison Somin:  Thank you, Will. Adam, please go ahead.

 

Adam White:  Well, thank you, Alison. Thanks to The Federalist Society and thanks to Will, who made a lot of great comments.  It made my job a lot easier here. Sally Katzen would have made my job a lot more difficult. And I'm sorry she's not here. But I've been on a few panels with her, and I will try to do justice to her criticisms.

 

I can't recall who coined the phrase, "the past is a foreign country," but administrative law feels a lot like that right now, especially in conservative circles, who are debating the future of Chevron deference and other doctrines, which, 30, 40 years ago, were developed by conservative judges and conservative scholars who recognized that there was a real problem when day-to-day administration of the federal government was micromanaged by federal trial judges, federal circuit judges, and sometimes even the Supreme Court.

 

      Chevron deference, its great virtue, as its advocates saw it, was that it allowed elections to have consequences, so that if the public didn't like a regulatory agenda or the regulatory interpretations of an administration, they could vote in a new administration. And that new administration could reinterpret the laws. The best defense of Chevron deference, I think, was Justice Scalia's famous Duke Law Journal article where he really emphasized this point, that the great virtue of Chevron was that elections could have consequences.  The agencies would change their position, and that's a good thing.

 

      But you can also have too much of a good thing. And even Scalia himself recognized that, in a little sort of parenthetical point in that Duke Law Journal article, he said, "Maybe, at some point, if you had too many agency reversals of position, you'd have problems amounting to due process problems." But then he says, "I don't really need to explore that any further yet." I wish he were around to explore it now, because it seems to me that's where we are now, in a lot of the issues we're debating, within administrative law and around administrative policy.

 

      And so today we have Justice Thomas and Professor Hamburger and others eloquently arguing that the courts are falling short of their judicial duty to say what the law is, neutrally and independently, without bias towards an agency that, by their lights, Chevron is a dereliction of that duty. It's unconstitutional.  And judges need to independently and neutrally interpret the law without deference. So we've come, really, to the opposite side of where we were three decades ago with Justice Scalia. And there's a lot of virtue in Justice Thomas, Professor Hamburger and the others in their arguments against Chevron deference, both as a matter of law, but also just practically speaking. 

 

So many of the problems that Will just described in detail are downstream of the fact that elections have such immense consequences. I don't think it's really an exaggeration to say now that presidential elections take on the flavor of regime change, with a new administration coming in with an army of lawyers and a stack of executive orders and all sorts of guidance documents, and so on, to immediately tear down what the previous administration did and build up what this administration wants to do, at least until it's torn down by the next one.

 

This is something that Alexander Hamilton actually alluded to in The Federalist, in his discussion of why a president should have a four-year term and the prospects for reelection. He said there's real danger in too many changes in the presidency because each president will naturally feel an instinct to tear down whatever his predecessor did, just because his predecessor did it. And that's even before you layer on the political parties and, now, the modern polarized political parties.

 

We're seeing a lot of just rapid, wild change from one administration to the next. And Justice Thomas' approach and Professor Hamburger's approach, and others that would do away with things like Chevron deference, would certainly solve or at least greatly mitigate that problem of flip-flops. And that has real-world consequences. Will alluded to many of them. My own background before I was co-directing the Gray Center with Jenn Mascott, here at AIE too, before I was doing any of that, I was an energy lawyer, an energy infrastructure lawyer. And so a lot of my work had to do with capital-intensive industries, and the immense amount of planning that goes into deciding whether to commit immense resources to a long-term project.

 

And these regulatory whiplashes -- and I'd go so far as to say the weaponization of regulatory uncertainty, it has a huge effect on these capital-intensive industries, which, by the way, are some of the industries that we need right now, if we're going to build up the American economy, especially in strategic industries. We need some long-term regulatory stability to allow companies to make some planning decisions. Of course, we live in a country where laws can change. That's why we have a Congress. So nothing is ever really written in stone, not even constitutional amendments.

 

But, in many respects, the more stability you can have, the better. And especially for, as I mentioned, capital-intensive long-term planning. Also, by the way, I'd say we're seeing a lot of this around mergers and acquisitions and other strategic decisions by companies. So much of their regulatory calculus right now turns not on what a statute says at a given moment, or what a regulation says at a given moment, but what an agency leader is saying at the moment, or, to the point of today's discussion, what future agency leaders might say.

 

If your goal is to deter energy infrastructure development, you don't need new regulations, you just need to ratchet up regulatory uncertainty. And if your goal is to deter mergers and acquisitions or other major strategic moves by companies, you don't need a regulation for that. It's nice, but at least what you need is enough regulatory uncertainty to create enough doubt in the mind of the companies that they won't want to go through with placing big bets on a new strategic direction.

 

I'm kind of neutral on mergers and acquisitions. Sometimes they're great. Sometimes they're not so great. That's what we have markets to decide. But what I don't like is companies having to study American politics and monitor the speeches of regulatory officials the way that political risk analysts have to monitor speeches in third-world countries with unsteady governments. We're supposed to have a rule of law here for a reason. The question is, what does the rule of law actually mean, and how do we achieve it, at least in the context of administrative law?

 

For all the debates that we're having around Chevron, the end of Chevron, the nondelegation doctrine, those were all incredibly important. I think it's important to take a step back and watch what the Roberts Court is doing, more broadly, because, in a number of doctrines, and in ways that cut across the familiar ideological lines, you see the Roberts Court slowing the pace of change in agency lawmaking. The major questions doctrine helps to achieve that, and so on.

 

But think about, actually, on major questions doctrine, in the King v. Burwell case — the Obamacare insurance subsidies case — the Court, with Chief Justice Roberts, with the democratic-appointed justices and Justice Kennedy, they're the ones who invoked the major questions doctrine to not give deference to the IRS or HHS's interpretations of the law. Rather, they're going to interpret it de novo. Of course, then they go on to agree with the agency. But they said, "We're not going to give any deference." And the reason why they didn't give any deference is very clear from Chief Justice Roberts' question to oral argument.

 

He said that this question about the insurance subsidies in the Obamacare framework is so pivotal for that framework that it can't be the kind of thing that can be just left to every new administration to totally reverse course on. It would be counter-productive, self-defeating, and chaotic. So the Roberts Court in King v. Burwell says, "We're not going to give Chevron deference here, because we need more stability." At least that's what, again, Roberts says at oral argument. And I think it's pretty clearly the premise of that decision. But in cases going well beyond Chevron, you see the Court slowing the pace of change.

 

We saw that now in the second docket case. Not the first one that Court deadlocked 4-4 on, after Justice Scalia passed, but the more recent one, the California Board of Regents case, where the Supreme Court held that the Trump administration needed to give a more thorough, fulsome defense of its reasoning under the APA. Same thing with the census case, Department of Commerce v. New York, where the Supreme Court held that the Trump administration needed to give a more thorough — and in that case, they said more candid — defense of its policy. In those doctrines and others, you see the Court slowing the pace of change around administration.

 

Sometimes to the benefit of, I guess what you'd call republican or conservative policies, sometimes to the benefit of progressive or democratic policies. But the key, the thread running through all of it is slowing the pace of change. Now there is a sort of a unified narrative in the Court about why it's doing this. I think the reasons why Chief Justice Roberts and Justice Kavanaugh, maybe the reasons they're gravitating towards the reasons they explained are different from, say, Justice Thomas, or Justice Gorsuch's explanations. But there is a running thread through it all. And so, even when we focus on specific issues like Chevron, I think it's important to get the full suite of the Roberts Court's slowing the pace of change of administrative policymaking.

 

We might well see the end of Chevron deference in the fall. As Will mentioned, the Loper Bright case might bring an end to it. My guess is that we'll wind up with something a lot more like Kisor v. Wilkie, where we thought maybe Seminole Rock and Auer deference would be done away with. The Court ends up staking out a middle ground that decreases the amount of deference but doesn't eliminate it too.  By the way, Kisor v. Wilkie, another case that, pretty explicitly, is meant to change the pace, to slow the pace of administrative change. 

 

I kind of wonder if we'll see something similar around Chevron deference. My guess is that the synthesis we're going to arrive at is somewhere between Justice Scalia's view of Chevron deference in the late 80s and Justice Thomas's view of Chevron deference now.

 

And, in a way, I think that synthesis, that middle ground between them is a middle ground between Federalist 78 and Federalist 37. Federalist 78, of course, on the need for judges to be independent, to have fortitude, to say what the law is, to interpret the law independently. That's all crucial to the functioning of our constitutional system. But also crucial is James Madison's insight in Federalist 37 that all laws — no matter how much time and effort and skill is put into drafting them — all laws are going to have some vagueness in them, sometimes a lot, and sometimes a little.

 

You need to minimize that amount of vagueness, of course, but you can never totally do away with it. And the question then is how does the judicial system and the rest of our system grapple with that vagueness. Personally, I think the answer is something close to what Will Baude describes in his Law Review articles on Madisonian liquidation, which I largely agree with. I'd put it a little differently than Professor Baude. But I think that's where the Court is probably headed, much like in Kisor v. Wilkie, something that slows the pace of change but leaves some room for deference for genuinely vague laws.

 

Now, this isn't a panacea, by the way.  Because, while stability in administration is important, Hamilton wrote often of steady administration, which I might circle back to. Stability is important, but so is energy. Energy is crucial to administration. And one of the challenges is that the steadier you make administration, the more risk you have that you're going to drain the energy out of it. Maybe the justice that senses this the most is Justice Kavanaugh. As a D.C. Circuit judge, in a case called American Radio Relay League, an FCC case, he was parsing some administrative law doctrines — the Portland Cement rule, for all the ad law nerds out there — but to think through how much reasoning an agency has to give in defense of its policies.

 

And Kavanaugh made clear he was uncomfortable with the extent to which doctrines like that lead to slow and judicially micromanaged administration. So we have to keep in mind that, again, regulatory whiplash, unsteady administration is a bad thing, and it needs to be mitigated. But we have to keep in mind that often it's going to come at the cost of energetic execution. And that is a loss as well. Now, the major questions doctrine, most of us think of it in connection with nondelegation, being kind of an echo of the nondelegation doctrine. Or some would say, like, a weak version of the nondelegation doctrine. I suppose it's those things.

 

But for me, I tend to think of it just as much in terms of slowing the pace of administrative change, giving people more reason to rely on status quos in advance of agencies announcing unprecedented and transformative new interpretations and policies. The major questions doctrine I see as much a doctrine of reliance interests as I do a doctrine of nondelegation doctrines. Now, my friend Sally Katzen -- and I mean that. Sally and I are great friends, and we do enjoy arguing about these things. She sees things quite differently than I do. We testified together at a House oversight hearing a few weeks ago.

 

Earlier this year we were on a panel together at NYU, a symposium that the Gray Center cohosted. And Sally is one of the most eloquent critics of the Roberts Court's developments. Things that I tend to agree with, she disagrees with. Let me just briefly note three lines of criticism that Sally, as best as I can recall, levies at the Roberts Court right now. And, just to be clear here, I'm not going to do nearly as much justice to Sally's points as Sally would, but I'll try my best.

 

Her first line of argument would be that the major questions doctrine is not textualist, that it is a non-textualist substantive policy choice that the Roberts Court is injecting into statutory interpretation, very similar to the line of criticism that Justice Kagan has levied against the major questions doctrine in the West Virginia case and in subsequent cases. And there is some real bite to that criticism.

 

I think one of the most interesting opinions of the Supreme Court term was Justice Amy Coney Barrett's concurrence in the student loan case, where she basically said some think of the major questions doctrine as a substantive interpretive canon that actually does impose some value judgements or interject them into how we interpret the laws. Barret says, "That's not how I see it. I see the major questions doctrine as a contextual cue as to what Congress actually intended." 

 

But no other justice joined that opinion, and for good reason. I think Justice Barrett's approach, her characterization of the major questions doctrine is very much at least in tension with, maybe directly at odds with the characterizations of the major questions doctrine that you've seen from Justices Gorsuch and Kavanaugh, the Chief Justice, and others. And frankly, I'm inclined in the other justice's direction here. I think it is a substantive canon. 

 

I don't think that's necessarily a bad thing at all. The role of a judge in a constitutional republic is to interpret the laws with an eye to Congress's intent, but also with an eye to the overarching constitutional framework in which those laws are legislated. And so, I think the major questions doctrine is a perfectly reasonable substantive canon to ensure that Congress doesn't delegate away its powers or dramatically unsettle the rule of law.

 

Now, who am I to criticize Justice Barrett's approach on this? She's the most eloquent scholar of statutory interpretation and stare decisis in her generation. And now she's a Supreme Court justice, to boot. But I'm saying, instinctually, I incline towards the Gorsuch/Kavanaugh/Roberts view of the major questions doctrine. But the point here is that I think Barrett's concurrence confirms that there is some real bite to the argument that the major questions doctrine, as currently framed, is somehow at odds with conventional textualism. And that's Sally's point.

 

Sally's second point is that the major questions doctrine is indeterminate. You just don't know, in any given case, whether something is a major question or not. And there's some bite in that argument too. We'll see over time how this plays out. But not every question is a major question, just as every student is not above average, except, I guess, with grade inflation. But not in Supreme Court litigation. So we're going to find out which questions aren't major, much to the chagrin of the lawyers bringing those cases.

 

But it's true there isn't a bright line to divide those cases. Now, my response would be we don't have a bright line in Chevron itself, as to whether a law is ambiguous or unambiguous. Justice Kavanaugh, again, makes that point very, very eloquently in a Harvard Law Review article a few years ago, reviewing a book by the late judge Robert Katzmann on statutory interpretation.

 

Chevron itself is pretty indeterminate. Statutory interpretation itself often has a lot of judgment calls. That's why we call them judges, I suppose. But I don't think it's fatal to the major questions doctrine that it lacks a bright line. If that were the case, then Chevron itself would have been struck a fatal blow and most of statutory interpretation would be under real clouds of uncertainty as well. But Sally's point is a strong one that judges are going to have to make the doctrine clearer and more rigorous.

 

Sally's last point, I suppose, on the top of my head, is that the major questions doctrine is just political, that it cuts in one ideological direction. And, for what it's worth, that, too, in a sense, there's some bite in it. To the extent that the major questions doctrine prevents judges from going a certain direction in Chevron Step One, or Chevron Step Two, it is going to have sort of a deregulatory effect, especially when it's seen as a substantive canon that demands clear statements out of Congress for the enactment of new regulatory policies, rather than repeal.

 

There is a deregulatory or counterregulatory balance to that. But not in other cases. I mentioned King v. Burwell. That was a case where the lack of Chevron deference, the use of major questions doctrine redounds to the benefit of not just the Obama administration, but all subsequent administrations that want to maintain the Obama approach against repeal. Cases like that will cut in favor of democratic administrations as much as republican administrations. But Sally's right again that most of these cases recently have cut in one ideological direction rather than the other, in terms of their outcomes.

 

And I think that conservatives should be wary of feeding that sense of politicization by trumpeting this as some kind of major partisan win. I've gone on forever. I'm sorry about that. I'll just say at the end, the line that I think about the most of all in The Federalist these days is something that Hamilton said in Federalist 68. It's a discussion of the Electoral College. He said, "The true test of good government is its tendency and aptitude to produce good administration." He liked that line so much, he quotes himself in Federalist 76, proving that it's not just professors and judges who can quote themselves.

 

But Hamilton, of all that he wrote in The Federalist, it's interesting that he says, "The true test of a good government is its tendency to produce good administration." And, as he makes clear in the other papers around those papers and throughout The Federalist as a whole, for him, administration is good, steady administration. You need both of those things in proper measure. And I think one of the reasons why the Roberts Court is circling back to questions of steadiness is because we're feeling the costs.

 

These are timeless costs that Hamilton and his contemporaries understood and anticipated. And, in many ways, the regulatory whiplashes that we're encountering right now are a sign that we're living in a kind of Hamilton's nightmare. So the question is how do we decrease that instability without totally draining administration of its energy as well? Again, thanks, Will. Thanks, Alison. And thanks to The Federalist Society.

 

Alison Somin:  Thank you, Adam. Will, did you want to respond to any of the points that Adam made?

 

William Trachman:  Just three quick points. First, my favorite part of the Amy Coney Barrett opinion that Adam mentioned is her analogy to a mom who gives the babysitter the credit card and says, "Make sure the kids have fun." And the babysitter takes the kids to Disneyland. And that clearly is a major question that should have been consulted ahead of time. And then, two other points.

 

On the framing about whether elections ought to have consequences, part of my worry is that they aren’t having consequences. Because if I'm a regulated entity, and a presidential administration that I like comes into office, I can't take advantage of the reform that occurs during that administration because I have to worry about the next administration and the administration after that. So, to the point about major investments, about long-term projects, even if I thought that the election ought to have consequences, I can't count on that in the long term.

 

      And the last is that sometimes elections shouldn't have a consequence. I brought up the point about the OCR guidance document saying that grading students differently based on race is a violation of Title VI. And that was repealed within days of the Biden administration coming into office. And that's because it was contrary to advancing equity, the executive order. So, here, that really isn't a question of whether an election ought to have a consequence. That's a constitutional question and a question about Congress's law. So I think that framing works sometimes, but not all the time. That's all. Those are the three quick comments I wanted to make before we proceed to Q&A.

 

Adam White:  Actually, Alison, Will's second point is incredibly important. And can I agree with him for a minute on that?

 

Alison Somin:  Absolutely.

 

Adam White:  I'm so jealous. Because, Will, this is actually, I promise, it was on my notepad right here. But this is exactly right, that the amount of regulatory flip-flops we have -- I couldn't have put it better, the elections don't have consequences now. For me, you see it more on the capital-intensive industry side of things. If you're going to build a pipeline or any kind of energy infrastructure, industry is no longer looking at the laws on the books.  They have to predict where things will be ten years from now, say. They have to skate to where they think the puck is going.

 

And so, any single administration's policies mean a lot less than the industry's guess of where the policy equilibrium is years from now. I think a lot of industries just looked past the Trump administration, Trump EPA policies, knowing that those might be law for a day, but not much longer. And so, in a way, you have much less respect for elections and for law. Madison famously wrote in The Federalist that we need stability in our Constitution so that people would build up veneration for the law, for the Constitution.

 

Hamilton's writings on administration are an echo of that, but with an eye to legislation and administration. He made clear that he thought what would build up people's confidence in government overall would be good, steady, effective, reliable administration. And I think the low respect that people have for government now, in some ways, is an echo of the fact that for all we argue over policies and presidential elections — again, we treat them like they're life and death and regime change — at the end of the day, all of us know that anything a new administration does, on so many issues, is just temporary.

 

And as soon as the new election passes, people are already arguing over what the next election will bring. There's a total lack of respect for stability in law, which becomes a lack of respect for credibility of government overall.  That's what Hamilton was getting to with his point about the true test of a good government is its tendency to produce good administration. And so, Will's exactly right that we now have no respect for the policies that come out of elections, because we're just a couple years away from the next one.

 

And I think the justices probably sense that as well. Especially when you see the justices having to manage a nation full of district judges who are now the most consequential administrative officials in our government. They, as much as any cabinet secretary or random trial judge, can stop a program dead in its tracks, can resurrect the previous administration's program. In some ways, the most energetic administrators in our country are the district judges who sit in judgment of these policies and issue nationwide injunctions.

 

William Trachman:  Alison, you're on mute.

 

Alison Somin:  Thank you, unmuted. Thank you for that response, Adam. Will, did you want to respond? Or would you like me to try to jump in with questions?

 

William Trachman:  No, I completely agree with Adam's comments there.

 

Alison Somin:  So it seems like much of the difficulty here stems from the fact that the two parties have very different visions across areas: one more energetically regulatory, one much less so. Will and I are both familiar with civil rights and education, have deep backgrounds. And there's a tiny bit of overlap. Each party just has very different visions of what civil rights enforcement should look like. While I see steadiness and stability, for the reasons that Adam describes, as a virtue, how can one provide that steadiness when appointees just have such wildly different views of how the underlying statutes and constitutional principles should be interpreted?

 

William Trachman:  Well, I'll take a stab at that. So I completely agree, in the broadest strokes, with that asymmetrical viewpoint of the world. So, when there is an administration in Washington D.C. that is pro-regulatory, they regulate. When there is an administration that is anti-regulatory, they can generally go back to even. But that doesn't entrench the playing field. It just means that for those four years or eight years, you're back to even with the understanding, as Adam's been pointing out, that you have to anticipate — because your projects are going to last a long time — that you're going to have to comply with a different regulatory regime in the future. And that asymmetry really does have an anti-liberty effect, in my opinion.

 

In terms of what you can do, I offered a few ideas. I'm sure that there are others. But with courts being more aggressively robust about what they say -- an example of Title VI. I wish that the Court would have gone further in the SSFA decision and said, "and also this would be a problem, and also that would be a problem," so as to give agencies less flexibility, in terms of what they might say is still technically legal, because that is going to lead to more and more flip-flopping.

 

And then, in terms of Congress, you have to put them to the test and say, "You're the only one that I can really hold accountable on a more regular basis." And you have to write statutes in such a way — particularly if Loper Bright means that Chevron is modified — that make sense and that encompass the universe of what the regulations are, so as not to leave enormous gaps for agencies to enhance their own regulatory powers.

 

Adam White:  Yeah, that's all really well put. And I'd just add, to expand on Will's point, that there's no way out of this in the long run without an energized Congress. One of the problems that I think the major questions doctrine has the potential of helping to mitigate is that all of our political energy is channeled into the agencies, because that's where the action is. Why do bank robbers rob banks? That's where the money is. All the political energy is channeled into the agencies, while Congress is left to more or less sit as ombudsman for the administrative state.

 

      And so, things like the major questions doctrine, slowing down the pace of change, telling activists, "You're not going to get everything you want by just reinterpreting regulations. You've got to go back to Congress," ideally, that will channel political energy back into Congress, and Congress maybe can legislate again. They're not going to legislate things, always, necessarily, that I like. And the things that I do like will probably be watered down. But until we get 21^st century settlements of the most prominent and often divisive issues of our time, once we get settlements of those through actual legislation, we're going to continue fighting these out in the administrative agencies, which is a real loss.

 

Alison Somin:  Thank you for that. This was actually something that was down on my list to ask about. How can Congress be best revitalized so that it starts to take on its proper role, and can provide a more vigorous counterweight to the kind of agency overreach and regulatory whiplash that we're seeing?

 

Adam White:  Do you mind if I jump into that one first, Will?

 

William Trachman:  No.

 

Adam White:  I'll just say, my colleagues here at AEI -- there's a number of them doing really great work on the revitalization of Congress. Phil Wallach has a new book out, Why Congress? I think -- Kevin Kosar, Yuval Levin, John Fortier and others. It's not going to be easy. I think the first thing we need is Congress — especially the newer members of Congress — to realize that they don't need to take all this for granted. Mike Gallagher had a great piece in the Atlantic Monthly a couple years ago where he said, "We actually need to rethink how we structure sort of the chains of command in Congress, how much power is in the committees so far.

 

      So the first thing Congress needs is an energized generation that's willing to think differently. And we've seen that in the Senate as well, and that's a good thing. The second thing we do need to think about is the procedures. And I have to admit — and this is all my friends who I just name-dropped a second ago — they're probably not onboard with this, but I think we do need to rethink the role of the filibuster in the Senate. It does a lot of good, but it also makes practical change impossible. And some kind of recalibration of the filibuster might be a good thing.

 

      When you see that so many of the consequential decisions in Congress, on spending, on Congressional Review Act authorizations now, those things are all the things that can happen because the filibuster doesn't apply in the same way. You see that maybe the filibuster is blocking not just the bad stuff from happening, but also good stuff. And, frankly, Congress doing just about anything and relearning that muscle memory, regaining that muscle memory, would be a good thing too.

 

      So I'm in favor of a strong reconsideration of some of those procedures in the Senate. Although, I say that advisedly, because you don't want to wreck the Senate and turn it into another sort of majoritarian body like the House. But I think those are the first two steps. One last thing: I'm struck by the way that the committees see themselves. Like I said, I just testified before a House committee. And it's funny, members of Congress seem most comfortable when they're not sort of standing in the well of the House or the Senate, debating while facing one another, but when they're seated on these daises, almost like a court, sitting in judgment.

 

Because, frankly, that's most of what Congress does now, is sit in judgment of things that have happened, rather than legislating. There's something about Congress's self-perception, self-image, that sees itself most comfortable sitting almost like judges, rather than facing each other as legislators. And so, I'm in favor of anything that puts members of Congress face-to-face rather than side-by-side, staring down their friends and enemies.

 

William Trachman:  I was worried you were going to suggest something crazy like breaking the filibuster rule. That's definitely --

 

Adam White:  Honestly, I was treading pretty close to that.

     

William Trachman:  Yeah. I don't think that is something that I would think. That is an action that would have enormous consequences, far and away apart from what we're talking about today. But there is something to the idea of horse-trading where, in order to get 60 votes in the Senate, there is regulatory equilibrium on two things. One thing that is more important to one party, and another thing that's more important to the other party that can achieve a 60-vote threshold.

 

And then, generally, I think, outside of Congress, the idea of regulated parties fighting back, so, whether it's being willing to sue an administration, or being willing to have a public relations campaign saying "These types of ideas are unfair to us. Congress needs to step in, making sure that there isn't a cancel culture that surrounds fighting back against an administration in Washington D.C. when it comes to a regulated entity."

 

Those are the sorts of cultural shifts that I would love to see, however easy they may be, or difficult. But I think, in the long run, forcing Congress's hand — either by appealing to their own sense of importance, or making sure that agencies just can't do things under the cover of night — will have a longer-term effect, without the ramifications of breaking the filibuster.

 

Adam White:  One more thing I'd throw into the mix, by the way. But I'm not going to blow up anything else in the next ten seconds. Don't worry. But one thing that Congress is doing that I think needs to be given more weight is its appropriations. It's sort of amazing, the fact that Congress spends a lot of money, which itself sort of gives direction and prioritization to the agencies, often explicitly, but sometimes implicitly. All of that has always been seen by the courts as separate from the lawmaking. I don't think that's necessarily right. I'm still thinking this through myself.

 

But I remember being on a panel once with another friend on the left, an environmental law professor, who said, "Congress has directed the agencies through laws to do all of these things. Now Congress is obligated to fund the agencies accordingly." And I said, "I think, actually, you're looking through the wrong end of a telescope there," that, if anything, Congress's spending decisions in the here and now ought to be taken very seriously. I think I tried to analogize them to, say, the Clean Air Act's broad statements of principle are Congress's stated preferences. And then, its spending decisions are Congress's revealed preferences.

 

But, setting aside that strained analogy, appropriations are law. They are legislation. And I think judges ought to have appropriations in mind — the litigants ought to bring them to bear — when you're interpreting vague statutes. To the extent that an agency's interpretation of a vague law, an ambiguous law, strains the agency's budget, deforms the agency's mission, takes it away from its ability to do the other things that Congress has required it to do, at the very least, that ought to get a lot of scrutiny under the reasonableness step of Chevron Step Two, and under the arbitrary and capricious aspect of normal administrative law.

 

Those spending decisions ought to have real substantive weight on courts' interpretative decisions, and on their review of the agency's reasoning. Some of that can be brought to bear simply by people bringing them up in comments before the agency that the agency then has to respond to. But, on an interpretive level, I do think that judges ought to be mindful of what an interpretation means in one direction versus the other, if it has dramatic effects on the agency's capacity with its resources to tackle other issues.

 

Congress's power of the purse is going to be the most consequential constitutional debate over our next 25 years. We got a flavor of it with the student loan case. We're going to get more of it in the fall in the CFPB case.

 

But I think that's just the beginning of a quarter-century worth of debate, of totally under-theorized, and non-judicialized constitutional law that's now going to be brought to bear in a very serious way in debates around the administrative state. You've seen some scholars anticipate this. Gillian Metzger of Columbia had a good article. I wouldn't agree with all of it, but a good article on taking appropriations seriously. I think this is actually going to be the central administrative law, administrative state issue of the next two decades. And it's something Congress is already doing, that we just need to bring more weight to.

 

Alison Somin:  Because we are getting near the end of our time together, Adam, I appreciated you bringing up the three points about the major questions doctrine and its discontents that Sally Katzen has made in her work elsewhere. Again, I'm sorry that she couldn't be with us today. I wondered if you and Will wanted to take a little bit more time to flesh out some areas of agreement and disagreement with her.

 

William Trachman:  Well, I think that the Court's analysis in the West Virginia v EPA case was very persuasive about how the major questions doctrine is not new, and how it's been applied for decades by courts in less partisan times, and how it's simply a carry-forward, in order to ensure that if a very broad congressional delegation of power is going to be used for something that could never have been contemplated by the Congress and they would never have actually given that power to the agency, that courts ought to demand some sort of unambiguous reference to that policy.

 

In that case, it was the Clean Power Plan. And that all makes perfect sense, because we need to ensure the balance of the separation of powers. So I think that the Court's jurisprudence on major questions doctrine has actually been pretty good. I realize there are some ambiguities, and no bright line. And that it's been criticized as vibes (sic). But I think that the concurrence in West Virginia v. EPA gives a few other factors to look for. And it's no more ambiguous than Chevron is.

 

Adam White:  Now that the major questions doctrine has a name, it kind of seems like a new thing. It's like one of those rock bands that was around for ten years, and then they're an overnight success. The roots of the major questions doctrine go back much further than the last couple of cases. Years ago, when I was practicing with the late C. Boyden Gray, we filed a brief in the net neutrality litigation. And it was all about the major questions doctrine. This would have been 2015.

 

It was like, "D.C. Circuit, at Chevron, Step Zero, you should apply the major questions doctrine.  At Chevron, Step One, apply the major questions doctrine. And hey, guess what?  At Chevron, Step Two, apply the major questions doctrine." The roots of this trace back, at least, back to cases like MCI Telecommunications, one of the great Scalia opinions. And its antecedents go back even further, a century or more. And scholars like then-judge Steven Breyer were writing along those lines in the early debates around Chevron in the mid-80s.

 

I think the risk, though, is that, now that it is a thing, it's going to become very popular. And litigants are going to push the edges of it. And I don't blame them. I was an actual lawyer for a while, and I practiced a lot of cases raising big issues for my clients. For every client, every question is a major question. And so, it's going to be a really interesting series of cases in the years ahead, seeing how litigants decide whether or not to deploy that doctrine, whether circuit judges -- how they decide to deal with it, and how the Supreme Court does.

 

One great case from years ago when Kavanaugh was on the D.C. Circuit, it was called Loving v. IRS, I think. It was a Treasury case. It had to do with whether the Treasury could regulate tax preparers. And Kavanaugh actually uses a kind of major questions analysis in this D.C. Circuit opinion. He says, you know, tax preparers might not seem like the most earth-shaking issue in day-to-day American life, but it's an enormously consequential industry. Millions, billions of dollars are at stake. It is, in some ways, a major question. He didn't use that term, but it was the antecedent of that approach.

 

And so, a lot is really going to hang on how far this goes.  Because if every question is a major question, then it really is going to be self-defeating. And I think — one last thing — I really do think, especially conservatives are going to have to grapple with what to do with truly ambiguous laws. Again, Madison was grappling with this at the start. And we're all grappling with it today. A number of statutes, especially the old regulatory statutes, the public interest standards, those were all written in the most unambiguous terms.

 

And I'm not sure what the way out of this one is, if it's a robust nondelegation doctrine, if it's some kind of major questions doctrine, if it's more rigorous procedural constraints. What it is, I don't know. But we can't do away with ambiguity altogether and sort of pinning our hopes, as I often do, on judges just interpreting the law the right way. That's asking a lot of judges, when the right way is not at all self-evident. You're muted.

 

Alison Somin:  Thank you. We are very near the end of our hour. I wondered if either of you had any concluding thoughts to share?

 

Adam White:  I've probably said too much already, so I'll leave it to Will.

 

William Trachman:  Well, I think there's an ongoing question about what this administration is doing, what other administrations may do to undo a lot of the damage going on, with regard to regulated entities. There's also — which we haven't even talked about — the idea of suing and settling, which is what agencies can often be sued over policies that were promulgated in the previous administration, and then immediately concede the point, in order to avoid having to go through notice and comment regulation. We saw that in one of the EPA rules on secret science, where the Biden administration said, "Oh, now that we've lost in the district court, we won't even appeal."

 

And so there are a number of ways that this can go sideways. But, in terms of closing, I really do think that it's incumbent upon us, in our comments to executive branch agencies, to talk about stable equilibriums in our amicus briefs to the court to urge them in, especially, constitutional questions, to clarify areas so agencies don't fill in the gaps in a way that's unconstitutional, and to not have the cancel culture mentality when an entity wants to push back and sue over a regulation that's enacted by an administration.

 

Alison Somin:  So, thank you so much to you both. I enjoyed this hour and learned a lot of new things. I hope that many of our audience members did as well. On that note, Sam, I'll kick it back to you.

 

Sam Fendler:  Thank you, Alison. Well, on behalf of The Federalist Society, I want to thank our panelists and our moderator for the benefit of their time and expertise today. Adam and Will, thank you so much for a great conversation. Alison, thank you for facilitating. And thank you also to our audience for joining us. We greatly appreciate your participation. Please check out our website, FedSoc.org, or follow us on all major social media platforms at FedSoc to stay up to date with announcements and upcoming webinars. Thank you all once more for tuning in. And we are adjourned.