How a Major SCOTUS Decision Halts Excesses of Administrative Power: Prof. Philip Hamburger

in a major decision the Supreme Court recently overturned the Chevron Defence Doctrine critics called it the Lord Voldemort of administrative law so what is this obscurely named Doctrine really how did it transform the federal government and what are the implications of the recent Supreme Court decision if they're going to hand off rule making to agencies it should be authorized by Congress and I think that will be a pressure on Congress to actually get back to its legislative function in this episode I do a deep dive with constitutional law ER and Columbia law professor Philip hamburger he's the founder and CEO of the new civil liberties Alliance which argued the case in front of the Supreme Court this is American thought leaders and I'm Yan Kellick Philip hamburger such a pleasure to have you on American thought leaders thank you it's a great pleasure to be here well we're going to talk about the exciting topic of administrative law today I mean I'm kind of joking it is actually really exciting but it doesn't sound it at first glance there's a couple of really uh major Supreme Court cases which have been decided in the in the realm well actually in the realm of administrative law there's one key one and people have been hearing this term Chevron deference and you hear it and you wonder to yourself what could that possibly be right what why don't you give me a picture here right I I must say that I knew Chevron was on the way out when I was taking a taxi here in New York City and the taxi driver wanted to talk to me about Chevron and how bad it was so that was a clear sign to me that Chevron was on the way out um so what is Chevron and chevron chevron was this old case from exactly 40 years ago and without going into undue detail it was a case involving uh emissions from plants and and a statute limited the amount of emissions bad emissions from plants and the question was how do you measure the amount of emissions and the statute used the word word St word stationary Source the question was what did that mean um and of course no one really knew and the statute didn't explain it it was actually a blank it was great uncertainty it was a genuine ambiguity so the Supreme Court and its wisdom um suggested that well the court did not have to figure out what it meant but what it could do is defer to the agency and try to understand what that meant and so developed a so-called Chevron test in which when one encounters an ambiguity or even just a Silence of a statute um when an administrative agency interprets that by issuing a rule interpreting it um the courts will defer to that interpretation certain circum circumstances if in fact it's a genuine ambiguity there isn't Clarity in the statute and then if it's a reason reasonable interpretation or plausible interpretation which of course is a little odd because normally a court will take the best interpretation of a statute not just one that somebody proposes that is not unreasonable well and so fast forward to today we have some fishermen that come to right the ncla and and want to try to figure something out so tell me about this case that that was one of the key cases I mean there's so it actually begins with the water um if you're fishing in the Pacific which has very intensive uh fishing um there's a different set of regulations that I want to go into but if you're in the Atlantic Fisheries which is what this case is about and there's a regime in which the national Maritime and fishery service sets up councils to determine how to limit fishing so as to preserve the Fisheries it's not an unreasonable thing to do the question is how do you do it and the agency um has rules developed by these councils providing that uh there should be observers on boats to observe the catch and figure out whether or not there's over fishering in other words rather than send out its own boats to figure out whether there's over over fishing they want Observer the agency wants observers on your boat to see what you're doing and this is something of an intrusion on a small boat to say the least what's more uh the agency requ requires that you pay for the observers on your own boat now this is a little odd um a it's rather expensive 700 plus dollars a day which of course could turn out to be more than you're actually earning um but also the stat underlying statute doesn't require this and this is the key point the statute is silent as to who pays for these observers in the Atlantic fisheries and so the owner of the of the Relentless and some other boats in um Rhode Island and Massachusetts um sued they said we don't shouldn't have to pay for your observers you want to have observers on our boats that's bad enough but that you want us to pay for it that really is outrageous particularly when we can't afford this and what's more the statue doesn't required so of course the agency comes back and says well there's a silence or ambiguity and the court should defer to our interpretation and that's that's the Crux of this so 40 years ago did you think the court had any idea that their decision would turn into this very wide ranging what's called Chevron Doctrine uh it seems rather doubtful they probably didn't understand quite what would happen to it um they undoubtedly thought they were developing a little piece of Doctrine but they didn't realize it would become an entire judicial regime in which judge the role of Judges would be changed no longer exercising independent judgment but deferring to executive agencies as to what the law is um it's quite imp probable they understood that um and if they had thought of that they would have course written the opinion rather differently because they would have noticed a host of problems that have since Arisen so well what is what did what exactly developed well we've now reached a situation under Chevron in which any agency that can find an ambiguity or silence in a statute and of course most statutes are filled with ambiguity and little silences any agency that wants to get something done that it's not been authorized to do by Congress can scour its statute to find the ambiguity or silence and then say aha there's an ambiguity or hot or silence therefore we can issue rules interpreting that ambiguity or silence and the courts have to defer to us if it's not too unreasonable and so the net effect is is a double one um one it empowers the agencies to do all sorts of things that Congress never empowered them to do and on the other hand and it deprives the Judiciary of its ath its role in interpreting law and deciding what the law is and so it profoundly changes the Jud the role of the judges and profoundly empowers agencies well but there's a third consequence isn't it because the way I mean the way Congress approaches lawmaking actually shifts right right so these funny secondary effects um and one of them is indeed that Congress observes all of this and thinks aha we don't have to amend our statutes that in fact the agencies will do it for us um and so it's like much of administrative so-called law it it actually infantilizes Congress I don't think Congress is actually incapable but there's a great danger that if you relieve it of its responsibilities it will just put its feet up have a drink and watch the world go by and that's what it's done well that that's a quite an indictment um so explain to me what you're saying here well I mean if if you tell a small child you don't have to do the dishes or you don't have to clear your paid they're not going to fight you on that and if you tell an able-bodied adult you don't have to earn a living they'll say okay and if you tell Congress you don't actually have to think about amending your laws or adjusting them or approving them now and then they'll find other things to do like fundraising and socializing and trying to get reelected um it used to be congressmen and women were actually quite able drafters draft cmhip and the compromises that go into drafting statutes were a large part of what they did and they were quite proud of it that wasn't that long ago but Chevron profoundly undermines that and so it leaves us with a Congress that can focus on things that seem by comparison I suppose important to them like the fundraising and the and and and and and less sober de deal making that's right well so I mean I've seen a huge range of different interpretations of the implications of this decision right so maybe if you can just tell me you know what was the decision exactly and you know what are the implications in your view because I've heard all the way from you know this is a small this is a relatively small thing all the way to you know this is a dramatic thing you know no one's going to listen to experts anymore or you know the whole administrate of law Doctrine has been upended and so what's the reality right so I suppose there's a Hal truth to each it is very important because as Justice Roberts said he's recognizing our mistake and I think it's admirable actually for a court to recognize its errors particularly the Supreme Court because there's no appeal from the Supreme Court to another court so that's that's good and I think that should be recognized as an important event will it actually change much on the ground that's less clear um why do I say that um for one thing I knew some administrative law experts who are confident that most agencies are already adjusted 10 years ago the Supreme Court stopped following Chevron some lower courts continued to follow it but for 10 years it's already been The Walking Dead so in sense this is just a corner certificate and we already knew that the thing was dead um and explain that to me a little more about 10 years ago being around 2014 2015 the Supreme Court no longer relied on Chevron and its decision iions and there were hints from some of the justices that they understood why that there was something deeply wrong with the doctrine that undermined the rule of law and the nature of what judge is that it gave judge the um agencies power Congress hadn't given them um and so they stopped following it so some less sophisticated circuits like the federal circuit followed it a year or two ago but many circuits actually already just tried to weave in and out around it um so on the whole it's been of greatly diminished significance for the last decade um and so in that sense it it already didn't really matter that much um now I don't think it actually matters that much for another reason um I don't want to downplay it too much but this is not an earth shattering change um in a sense this is not an attack on the administrative state it actually holds administrative ideals if you think about what legitimizes the administrative State and administrative lawmaking it has always been for the 20th century that there's been prior legislative authorization and subsequent judicial review and that that sort of sandwiches administrative power and it's meant to be very reassuring so even if administrative power is a deviation from the Constitution we're told don't worry about it Congress has authorized it we have Democratic authorization up front and you have the independent Judiciary reviewing it afterwards M so there's a degree of safety in all of this Chevron undermined that um Chevron said okay you can agencies you can make regulations without Congress intending for you to do so and then also said that the judges will defer to that rul making that interpretation um even when the judges would have reached another decision about what the law was that they acted independently so Chevon undermines the protections that under that that justify administrative power both before and after the fact so in fact one could view this as a as a actually a means of restoring the justifications for administrative power in which case this isn't really an attack on administrative power it's an it gets rid of the excesses of administrative power beyond its justifications now I'm a little skeptical even of the justifications but it does make some sense that if you're going to cut back administrative power you're going to do it in a way that actually restores administrative ideals and I I think that's what happened here fascinating so that that's one side and you said there's a Hal truth on the other side as well Hal truth is that there's a degree of Truth telling here from the court um Chevron was based on a fiction and countless Scholars and judges have called it a fiction um and the fiction was that Congress through ambiguity and silence intended agencies to exercise extra rule making power um and everybody knows that that was just a fiction um since when is silence really authorization since when is ambiguity authorization if it's genuine ambiguity so it's healthy to have a court just recognize the truth simply to say no this was a mistake this was based on a fiction this Doctrine was wrong um that's really actually reassuring to I think for Americans who want judges who don't mind telling the truth and don't mind saying we're wrong you know you and I you know in any organization if we make a mistake we'll be called on it and the most immature thing you can do is to say no no I didn't make a mistake the mature thing to do that all adults learn to do in this country is to say oops that was a mistake I'm going to fix it I'm sorry so perhaps that's also worthy thing to have happen in the Judiciary it's good that they can be mature enough and not so brittle to say yeah we made a mistake AK we're going to fix it that's good that's an absolutely fascinating take tell me a little bit about your background I mean you know you've written uh you know a Tome I would call it on administrative law and asking the question whether administrative law is in fact unlawful if I recall correctly so you know this is a subject that you have thought about quite a bit and tell me a little bit about you know where where you come from where come you do well um for a long time I was a an historian I I studied 17th century English law slowly moved my way into 18th century America and then 19th century America um I didn't focus on administrative power I didn't really pay much attention to it um but by a series of accidents it got my attention um administrative power was being used actually to censor my friends and the sciences and social sciences and actually for three years I didn't want to pursue that I thought let someone else inquire into that cuz admin of law is boring but eventually I got into it and I started studying it and after studying that particular area involving institutional review boards um which have a very bad effect on the study of science um I then began to realize that there's an interesting relationship between the history and modern law not a matter of original intent that's it's not about that um but there are certain patterns in governance when a system of laws established with constitutional limits and always those in power seek to expand Beyond them and one of the standard ways of doing that is to create parallel institutions to create a system of control that's not law but a set of rules or other modes of control that was true in the 17th century and it turns out that that's also true nowadays and so that led me to a clear understanding of administrative power that turned out to be to hit a nerve to be persuasive to people which is that um it's a series of evasions if you want if if you have system requiring you to rule by law perhaps if you want more power you want to have rule by rules and then if you don't like that you can have rule by subtle threats and uh other modes of persuasion and so there's a sort of a a a Cascade down from the elevated modes of governance to less elevated modes of governance with less accountability so that turned out to be fun to write about and so I ended up being very involved now in contemporary administrative power which is a lot of fun I was wrong in thinking it was boring but law laws are rules yes right but they're rules made by the constituted Authority namely Congress um and then we have mere rules which are not laws and those are made by agencies and when they find it too frustrating to make a rule they'll give you guidance and when they don't want to issue guidance because they don't even want to say publicly what they're doing they'll have a little conversation with you and they'll make a little threat of regulatory harassment and so forth so there really is decline to ever less lawful means administrative law as it's taught is is is is a very elevated thing of there's notice Inc comment Ru making it's not quite law but at least it's well rules and all sorts of restraints and if the administrative State stuck with that um it wouldn't be so worrisome but unfortunately the all all the guide rails have fallen aside so it's important at least to restore the administrative ideals and I would say to restore the rule of law this is very interesting what you're saying because you're saying that there's a way to you there's a important place for you know administrative agencies let's say right and and it's important for them to play the role that they're playing that they that that they should play and this can be helpful to guide them in that direction right so if we're going to have an administrative State and some people think that's inevitable or desirable we can debate that but if we're going to have an administrative state it surely should work through rules not lesser means of control and it surely should do it with Congressional authorization and this case and another case called Cargill which we litigated um reinforce that there are statutory bounds and agencies should work within those um it's not too much to expect um and of course it's very important for the Judiciary because the judiciary's central role is for judges to exercise independent judgment about the law of the land and that tradition of independent judgment actually something i' I I spent years studying and wrote an unreadable book on um but uh I I I traveled up and down these coasts looking at Old archives finding old constitutional cases from the 1780s in the states and it turns out that early Americans were well aware of this tradition of independent judgment and that's the foundation of cases such as Marb versus Madison where Justice Marshall says this is the province of the judges is to interpret and exercise judge independent judgment and so the the case ler brigh and the Relentless cases that decided this week uh in overturning Chevron hark back to marber versus Madison as Roberts notes you know although he decides it on statutary grounds he says the statute the administrative procedure act and requiring judges to to to decide questions of law is merely reflecting this age-old tradition we have in which judges exercise their own judgment the moment they defer to someone else's judgment they're not being judges now can I say a little more on that it's actually here it gets actually quite interesting um for a long time people thought that Chevron was a separation of powers problem so there are a thousand law review articles on the Constitutional problems involving separation of powers but it would became important I I thought to ask another question is what does it do to litigant in court and what happens in court is very disturbing because usually the government is bringing an action against an individual or company in other words these are uh regulatory enforcement actions by agencies in other words the agency is one of the parties and an Ord an American is the defendant and in those circumstances what does Chevron do it tells the judges you should be biased in favor of you should prefer the legal position of the agency the government in a dispute with an America any other American the net effect is sort of systematic judicial bias in favor of the government against others in judicial proceedings even when you get to court on review well that's actually due process problem that's scandalous and I and I think that was one of the problems that helped turn the judges away from Chevron they don't want to admit that of course because then a lot of other difference doctrines fall but we can't have a Judiciary being biased in its proceedings so that's of central importance here and I think judges didn't the sueme court realized it doesn't want to be engaged in judicial bias in its cases so they couldn't follow Chevron anymore so what are the broader implications now right let's do one of the criticisms right um no one's going to listen to experts anymore the experts have been disempowered right that's a big one I've seen right um I'm not sure that's really true um so first of all in interpreting statute the experts actually are the judges right lawyers are pretty expert judges are meant to be immensely expert interpreting so to the extent this is about ambiguity and silence in a statute the experts are the judges but what about the experts in policy which is I think what those concerns really focus on um the experts in policy are still there um they may be in the agencies they may be in the private sector um and they'll still have a voice the question is will they first be authorized by Congress or not when a judge encounters an ambiguity a genuine ambiguity he can't resolve through statutory interpretation or a silence in a statute um what that judge now needs to do is simply say the statute doesn't say anything on this the net result of that is that Congress then will have to come in and say oh we're authorizing the agency to make rules on the subject in other words to rely on its experts to develop rules and do exactly what they were doing under Chevron the only difference is Congress will have to come in and authorize that which is actually of some importance because that's actually a fundamental justification for having administrative rulemaking that there's a statute underneath it so in some senses um this actually butresses administrative power it certainly doesn't remove expertise it simply requires Congress to authorize that process of agency rule making depending on their experts um mind you um the expertise vision of administrative power is a little out of date that prevailed in the mid 20th century um but uh Justice Kagan when she was a law professor wrote a very important article well-received article called presidential Administration in which she points out that increasingly the policies adopted by agencies are directed from the White House at least reviewed by the White House and sometimes even directed by it and of course these days we see all of government rule um you know administrative power um cutting across agencies translation it politics is D presidential politics and power drives ultimately most rulemaking of any significance um so if something really matters the White House involvement will always be there so it's hard to talk about administrative law resting primarily on expertise these days it's not to say there isn't expertise but it's as Kagan scholarship shows this is largely driven from the White House these days and that's not about expertise that's about presidential politics absolutely fascinating you've you mentioned that it's been 10 years or so that this Chevron Doctrine has been kind of downplayed especi at the Supreme Court level but my sense is that you have you know all sorts of these kinds of deferences having been made across all sorts of statutes basically right there's all sorts of there all sorts of difference doctrines you could have called you could call them the children of Chevron but some of them predate Chevron um there is mes they're all named after various cases M Skidmore deference to informal um guidance and interpretation of there is our uh Kaiser our deference to agency interpretations of their rules there's Stinson Defence there's Griggs Defence all these little difference doctrines uh um and what might ask what's going to happen to them but even just but even just Chevron itself right there's been Al presumably there's all sorts of rules that have been made by agencies which now are in question talking about the got it talking about other I'd like to talk about that too right okay so let's talk about let's talk about the let's talk about the agency rules um yes there probably is some indeterminant amount of agency Ru making that depends on Chevron for its authorization how much there really is I don't know uh at a recent conference I was at uh there was rather strong opinion from academics very distinguished academics that in fact the agencies had already adjusted that in fact they were not as dependent upon Chevron as they used to be so but I don't know myself this is that's not something I've studied but I I I I suspect it's somewhere halfway in between there will be some things that are dislodge some some rules that are dislodged and that simply means that Congress will have to come back and provide extra authorization for the rules or adopt them themselves by Statute um and there'll be other instances where the agencies have found other mechanisms to accomplish that policy and they're not dependent on Chevron well but but there would also be examples where you know Congress doesn't like the rule right so there be some instances where Congress won't won't adopt the rule that's true but that's our political process and actually this this is actually an important matter um their scholarship by uh Michael Rapaport and John mcginness um which shows that policy adopted by Congress is apt to be relatively moderate because it involves compromise back and forth which used to be the Hallmark of congressional conversation when legis when legislation or Ru making is passed off to agencies and Chevron puts that on steroids of course um there's a risk there's a risk that the policy the regulatory policy will be relatively extreme because it's driven by Presidential White House control um and this is problematic for a number of reasons one one might distrust extremes and I think that's not unreasonable there's a lot to be said for compromise not everyone sees the truth one needs to talk to other people um but the other danger of course is that when all the P regulatory power of the federal government is in the hand hands of agencies under some degree of control or restraint by the White House then everything turns on a presidential election too much turns on it and I think this is one reason why presidential elections have become a sort of warfare um presidential elections become existential events and this leads to all sorts of misbehavior from all directions no one party has a monopoly on that and that that's a disaster for the country that's tearing us apart there's a lot to be said therefore for not having so much depend on presidents but more on representation in Congress and so to the degree that Chevron has shifted power to agencies under presidential control again citing elen Hagen um one might worry that that's been very dangerous and it's exacerbated the tensions of the country and so it's very healthy to pull back from that so getting rid of Chevron does that that surely is wholesome the other day I was speaking with uh Texas state senator and he told me something which was very interesting and I'm curious if you want to comment on it he said there's a lot of anticipation in Industry that Chevron will be struck down and the the impact on industry he said was the lobbying dollars are shifting to the states and that's they're shifting in anticipation of Chevron being struck down because there were hints of that already right right so it could mean that there stion to the state that's very interesting I would have thought there'd also be shift to Congress MH in fact I've I've argued to congressmen that and their AIDs that you know if they want to raise more money they should actually do more lawmaking and take take up their constitutional responsibilities it didn't seem to move them um but I would have thought yes lobbying money would shift to the representative bodies Congress and apparently also the states I didn't know that um the danger of course is that a lot of the influencing that goes on between involving large corporations in particular is through the agencies the agencies have very close relations with the bu the other bureaucratic organizations large corporations and that's at the cost usually of others including small businesses or medium-sized businesses and of course the public um we often think of agencies I mean the progressive story was agencies will control big business I don't know that it works that way there's some evidence that big business influences agencies right who control call whom I don't know and so so let's talk about these other deference doctrines and actually one of them was challenged and you know with recently when it comes to J this jerc right okay right so um let's talk about the difference doctrines and then let's talk about juries and jesi just to break it up into Parts there are other Defence doctrines uh they they run by the names of their cases there's M and usually pairs of cases like me skidm and just well no just as a quick reminder to our viewers deference doctrines are just mean that the the Judiciary says I'm going to I'm going to give preference to another interpretation right right and then which is of course as I said earlier rather troubling it categorically favors one party's legal position over another which is very odd and I think actually unconstitutional because it denies the rest of us du process right so there are other difference doctrines there's a uh Kaiser hour Defence a deference to agency interpretations of their own rules there's needs Skidmore Defence to agent informal agency interpretations including guidance um and the Stinson Defence and Griggs Defence and so forth um these are all little mini deference doctrines um and they all suffer the same basic problem which is that the judges are giving up their own independent judgment and giving sort of a leg up to one party and it's always the most powerful party of course the government I mean this is not the way judges are meant to act so this case did not L ler bride and Relentless these two cases didn't resolve the fate of those difference doctrines but it does hint that they also perhaps have to be cast aside two def other difference doctrines did go by the wayside um there's something it's called City of Arlington Defence which is where a court will decide the boundaries of its own jurisdiction and another one called Brand X stock Defence where agency interpretation will defeat a court holding which is astonishing uh and these were both manyi versions of Chevron do Defence they took Chevron there's are applications of Chevron you know in extreme circumstances so those I think have fallen as of this week however those are def that's all I will defer to the Future to worry about those um that that can all wait now let's talk about jassy the jassy SEC versus jaras presents itself self as a jury case and that in itself is already profoundly important because so much of what's at stake in these cases are our constitutional rights Visa the administrative State the administrative state is often thought to be a matter of separation of powers but it's actually a great threat to our civil liberties and administrative judication it's more or less wiped out our jury rights our seventh amendment civil jury rights okay explain that explain that so when when the agency wants to pursue a case against you for violating its rules what will it do it could go to a district court some of them can go to District Court SEC Securities Exchange Commission was one of those could go to district court and say um the the justice department will enforce a regulations against you in front of a real judge with a jury and all the pen a plea of constitutional rights you have as a defendant but in the alternative the SEC could also say we're just going to prosecute you in house in front of our administrative law judges who aren't really judges they're just employees of the agency and the problem there was that these judges not only are not real judges but they don't provide juries so the SEC when it found that it was prevailing better in its own in-house Court rather than in the real courts no surprise uh it around 2014 it was actually quite candid in suggesting it would just switch more cases from real courts to its own courts where indeed they have something like a 99% Victory rate so um this is a problem for many reasons du process reasons but also of course jury rights reasons and so the JY case challenged the denial of jury rights and blessedly the Supreme Court recognized jury rights um there was some risk under a prior case called Atlas Roofing they would simply say when the government proceeds against you administratively you don't need you don't get jury rights which was astonishing now this is relevant for Chevron because there are two types of deference generally courts defer to agencies on questions of law that include Chevron deference but they also defer to agencies on questions of fact and when an agency proceeds against you in its own in-house proceedings without a jury the administrative law judge an agency employee creates an administrative record writes up what the thinks he thinks the facts are and that becomes the facts of the case and the judges will refer to that without and so it doesn't go to a jury or even to a real judge so the che the case overturning Chevron didn't deal with fact Defence was decided on narrow enough grounds that wasn't affected but the restoration of jury rights in the jassy case means that increasingly cases will come to the courts with a jury and therefore there be no room for fact Defence to the agencies so we are seeing a restoration of the judicial role both directly as to deference to law and indirectly to the restoration of jury rights and that's I think profoundly important and you know fact deference it sort of a a funny term right right because it's it's basically like who decides the facts I mean that's profound right it's a profound import looking back at you know the recent years there's been a lot of debate about what the facts are what is disinformation you know these kinds of questions the funny thing is that you know under the C under the regime that existed until this week if you were prosecuted let's say by the SEC in its own in-house proceedings and then you appeal to a court you petition actually to a circuit court you've got two problems there's difference to the agency on the law and there's difference to the agency on the facts well as law school were taught there are two ways to win on the law or the facts apparently the the court will be biased against you on both grounds so it was very desirable that the Supreme Court back away from that sort of Injustice uh it was a gross violation due process and so it's very gratifying to see it being more centered and going back to its traditional role of actually deciding cases for itself you know I I want to reiterate that because that that's very interesting I hadn't certainly thought about this that actually both of these cases together have a much more significant uh uh implication right the cases actually restore each part of government to its own role the courts now will be deciding with their own independent judgment what the law cases that come before them the executive agencies will be confined to making rules within their scope of congressional authorization and Congress will have to authorize rulemaking if it wants it to happen so this is all you know whether goes far enough is another question but this is I think highly desirable if one wants to have an administrative State that's defensible that doesn't look like an assault on people's constitutional rights and on the structure of the government I think one has to have each part of government a little more centered in its traditional role and that's I think what happened this week so how will this impact Congress now well we'll see uh hopefully hopefully Congress will be resuming its role of authorizing agencies to make rules now ideally I confess I'd rather see it resuming its real constitutional role of actually making the law not handing it off to agencies but if they're going to hand off rle making to agencies so that agencies do the regulation um it should be authorized by Congress and I think that will be a pressure on Congress to actually get back to its legislative function that's a good thing so I've had a number of people on the show from the ncla which is actually this group that you founded that's had a number of cases in front of the Supreme Court recently including uh these ones related to sheffron difference so just tell me a little bit about the ncla oh the ncla uh is a civil rights organization that uh sues administrative agencies to reduce their unconstitutional power and defend our civil liberties we go equally after each Administration regardless of its politics but to go after type strategically after type types of power that cut across agencies that are unconstitutional and I suppose it's a little improbable that I'm involved with it because of course um traditionally I just studied the past but uh about six or seven years ago I became interested in contemporary litigation and I ended up founding this organization and to my astonishment it's actually been quite successful uh we have three cases in Supreme Court uh this summer and uh we've been we've already been to make a real difference which is nice well again this has been an absolutely fascinating discussion uh a final thought is we finish a final thought um none of this is settled right every case isn't is is not the last word it's a continuing conversation from all directions and so rather than see this you know the the dry case or ler bride or Relentless as resolving this it's an invitation for those those who disagree to bring better arguments and for those who agree to agree with the cases to butus them and re consider the Alternatives uh the conversation is what lawyers and judges do and it should be done I think moderately and with full respect to the opposing points of view all of which are very reasonable um but it does it doesn't mean uh that and that means that one can never you know say there's a settled point when this is finished the conversation's over well Philip hamburger it's such a pleasure to have had you on great pleasure to be here thank you so much thank you all for joining Philip hamburger and me on this episode of American thought leaders I'm your host Yan Kell [Music]