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The Most Dangerous Branch: Covid-19 v. The Constitution


Vox senior correspondent Ian Millhiser talks to law professor Nicholas Bagley about the pandemic — and how the courts are undermining the government's ability to respond to emergencies. They discuss the constitutionality of vaccine mandates, religious exemptions to public health laws, and court decisions undermining the power of public health agencies.


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Ian Millhiser (@imillhiser


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This is an unofficial transcript meant for reference. Accuracy is not guaranteed.
Today's episode is brought to you by Platt. If you're, building a financial after service plan is the easiest way to get started with plant API, your users can securely connect their bank accounts to Europe APP and seconds. In fact, one in four, you US adults abuse plan to connect their account to an act that can help them pay back their roommate a money or take control of their financial future with just a few lines of code you start building with plan today is applied, dot com to get started hello and welcome to the weeds. I'm in no Heizer, I'm a senior corresponded at vocs, and this is
another episode of the most dangerous branch are serious about the Supreme Court. So one of the big lessons we learned during the pandemic is that the government must be able to act decisively in the middle of a crisis magic, how much worse cove it would have been if every decision every walk. On order. Every approval of a new treatment or vaccine. Every decision about how to distribute vaccines couldn't have happened until Congress weight in we price will be waiting for the vaccines to be approved, in others, Firstly, some tension between this need for decisive action and our democratic values, but just imagine how much worse things would have. And at how many more people would have died if every single decision had to go through a congress where everything is filibuster as it
turns out there's an entire body of law that deals with this tension between decisiveness and democracy, and answer questions like when a public health official can impose a mask mandate and when the state legislature needs to weigh in first it also dance questions like whether the bided administration can require workers to become vaccinated There are also a lot of conservative activists and many of them sit on the Supreme Court, who wanted to
able much of the government's ability to respond to crises like covert or climate change, and I note that the court just took a big case West Virginia the EPA which could allow these conservative justice to implement a very restrictive vision. So today's episode is about this inherent tension between a response of government and a wholly democratic one adhere to discuss. It is Nick Bagley he's a law professor at the University of Michigan, and he's an expert on both health law and on the balance of power between legislatures and government agencies. We talked about how to strike the right balance and about whether these courts or even attempting to do so is role very hard questions and Nick is one of the most thoughtful people. I know on these subjects, so I hope you'll enjoy our conversation and finally, a quick programming. Note a little while, after recorded this episode, the binding administration announced new rules which require
any workers to become vaccinated, or at least encourage them to do so. We briefly mention those rules in the episode but if you're wondering why there's not a more extended conversation about them, the reason why is because they came out after we recorded Nick Bagley welcome to the podcast? Oh it's great to be here. Thank you so much so I went start by reading a quote. This is actually from a peace that I wrote in March of twenty twenty on. This is right before the lock down began, and I said that in national security cases, judges often deferred to the executive branch, when it claims that a particular incursion on civil liberties is necessary to protect the country, and then I spend several sentences explaining why the pandemic is likely to be a crisis, similar in magnitude to a war,
and then I write thus, just as judges tend to defer to the executive on matters of national security, those same judges are likely to defer to public health officials regarding a potential pandemic, so neck stupid am I you know, I actually think you're not that stupid. If you step back from the crises of the day, all told over the past eighteen months, or so, the courts have generally accommodated pretty room. Aggressive exercises of state police power, and I'm thinking here in a most obviously lockdown orders, which were remarkable in the sense of the effects that they have on the economy and the effects of of reaching into people's private lives and the courts effectively said you know what this is. The executive branches call. I will say over time your initial prediction is starting to look a little shakier, which is to say that that that this, as this pandemic
has drawn on the court's. It become a little bit more impatient with exercise is emergency or public health authority, and we ve seen episodic eruptions of that discomfort and we are seeing especially in the context of some increasing lines his law around religious accommodation. So it's a bit of a mixed bag, but but by and large, the judiciary is given that the executive branch being both state governors and the president a pretty wide berth So I think we ve seen a shift. I mean you mentioned that there is a lot of impatience forming around things like lockdown orders and we fortunately left the walk down
or phase of the pandemic and have entered the. What do we do about vaccines era of the pandemic yeah, and so I think you have the most immediate question a lot of people's minds. Is what about mandate? Can the government legally order some one to get a vaccine that they don't want to get so the best authority we have for this for the proposition that the state absolutely has the authority to require vaccination comes from the early part of the twentieth century, and I passed her by the name of Jacob sewn up in Cambridge Massachusetts, who didn't wanna actually take of smallpox vaccine at the time less virulent strand of of smallpox circulating around the country. School children for the first time are being required to get vaccinated in order to attend school and city at Cambridge, saw a couple of cases and said,
Everybody in town, it's gotta, get vaccinated the pastor resisted and was prosecuted for it the case when all the wept- the? U S Supreme Court, those kind of mandates are actually pretty uncommon. What was very common is requiring schoolchildren common is requiring to get vaccinated before going to school in a key is really designed to get at that issue. The Supreme Court said look, this is a valid exercise. The police power and the community's health has to take precedence. They invoked die and hoary principle of law known ass, Alice, populist, supernal access, though it just means public health is the Supreme LAW, so they sat. Jacobson yeah can be required to get vaccinated. That's the closest analogy we have in that case law in part, because vaccine mandates are the rare. We have lots of vaccines that are conditions on certain activities like going to school or attending a university, but there are relatively few that are just free state. being mandates. That has not been a lot of legal development on that question. Not until now are they really can?
should all I mean, like mostly, for example, of truancy walls. there. There are, I guess, a few parents who home school but like that's, not an option for most parents, and so you do. For most people going to school is mandatory and you can't go to school and last year vaccinated so, like I guess, like shouldn't. We think of that a true mandate and not a conditional one yeah I mean, I think, the line in innocence. Nothing is mandatory until somebody put the gun against your head and tells you have to do it said the question is the degree of coercion, so when you're talking about something, that's required to get your kid into a public school, absolutely, not that that that strikes at the very core of the state coming in and telling you how to order your life. You know by the EU
rise. It is a mandate or you characterize. It is a voluntary choice, backed up by a fair amount of state pressure. I think, as is less important than asking, are we comfortable allowing a state to exert that kind of pressure or the kind of pressure in question in order to secure compliance with a vaccine requirement? Is relatively straightforward in the context of employment, where across the country we have at will employment, which is to say that, and players can fire you for any reason or no reason at all. It seems not much of a stretch to say that an employer can choose to adopt a new path, see requiring media vaccinated on pain of termination. That's gonna feel pretty course coercive somebody, but we know ass in the law treat, that is a voluntary condition on your employment? So I guess going back to my war time analogy
from before. Like me, I understand why some people recoil at vaccine mandates like it is a big ass for the for the government to say, like you have to inject yourself with the serum, but like the draft is also constitutional. I mean under certain circumstances the government is allowed to force people to do a lot of things so like with that in mind- and I guess with you know the politics that we ve started see form around Anti Vaccinium. Do you think that Jacobson is in any kind of danger? Do you think that it could be overruled? Do you think that state courts might implement anti backs rules, or do you think that this doctrine that the government can require people be vaccinated is safe? You know it's very hard to say, imperfect
we have had so little develop another case law across the twentieth century, so we don't have a lot of insight into how judges, as a group think about this problem and there are relatively few in a direct analogies. The draft is a close one, but of course you know in the draft the justification for acquiring a draft, as is in some respects, similar to the justification for requiring vaccination, which is that this is a this is necessary for the protection of the broader public and though it's an incursion on your individual liberties is something the state can do. If I had tag gas so far, the courts have been pretty impatient with people who are trying to bring challenges to vaccine mandates, whatever you call them a vaccine mandate or a vaccine requirement Torah what you will so far the courts of brushed those challenges back. I would expect that to continue
if for no other reason than I think, the kind of populist surge of energy around the anti vaccine movement, I'm not sure, is entirely shared by the conservative legal elites who now populate our federal courts, and there may be a divergence of opinion there between what you might think of his expertise and sort of lay views on this question. But I'm speculating and we could see the development of law in, I think we're most likely to see it when the vaccination mandates have relatively few exemptions, and I think we're especially likely to see it in cases where there are not religious exemptions. I think the vaccine mandates are quite vulnerable there to the extent that people who are conservative exploit religious exceptions in order to avoid compliance of the mandate, they disagree with empowered, he grounds, but not on genuine bona fide religious grounds. You could imagine that blowing a pretty big hole in vaccine mandates, so I worry less about a frontal assault,
Jacobson, and I worry more about I kind of death by a thousand cuts. I mean the flip side. You do if Jacob Sin is itself as saddled as you seem to think it is. Why do you think policymakers haven't been, more aggressive Algeria, as as far as I know, I don't know of any state that has a statewide vaccination Mandy. You seeks The employer mandate you're seeing some four specific kinds of workers, but you know why hasn't their bit knew? Why hasn't, for example, Governor Newsome in California, who just want a big election said all right? I've got a mandate lets you know what, let's put in place, a rule that everyone in the state has to be vaccinated. I think it has a lot more to do with politics. Then constitutional concerns. You know
as a temptation, during a pandemic for every level of government to point the finger at another level of government and try to assign responsibility for the problem elsewhere, because making hard decisions is hard and it can be politically costly. I can speculate, Governor Newsome, but I certainly no here in Michigan. There are a lot of people who are strongly and have access and if they were required to get a vaccine is a condition of say, state employment, which is the place where the governor has the most straightforward authority. You know you might fear there would be an exodus of at least some state employees, which can be hard to fill during a time of a tight labour market. More importantly,
No wait. There are a lot of people who are gonna, get animated about death and it feeds into storylines about Democrats, overreaching and public health authorities over reaching. It could be the case that the risks are perceived to outweigh the potential benefits and there's a hope that somebody else will do the hard work right so that the private sector will take care of a vaccine mandates by just requiring into their employees and the private sector once cover from the federal government and the federal government. One states to do it with the states would prefer oh shut to issue a rule. So I think that that pointing fingers makes it difficult for any one political actor to take core responsibility when there are risks
one of the strong arguments I've heard for vaccine mandates is that they give permission to people to do the thing that they already wanted to do anyway. Absolutely you, you know, so an employer who wants a vaccine mandate can blame it on the government and individual who, like maybe their spouses very aggressively anti backs, can say, will look like I'm not doing this. I don't love you I'm doing this because the government is making me yet what what do you make of that argument? Oh, I mean I think there's a ton of truth to it. I think there are a lot of people if you look at the pulling down a very large majority of people, support vaccination and a lot of people who are vaccinated themselves are furious at people who refuse to get vaccinated because they are protecting. This Lee Pandemic and actually threatening the lives, even those people who are vaccinated. We saw that with Colin Powell passing as a result of covert maintain, notwithstanding the fact that he was vaccinated, so it could be
that politicians are misreading the room, but they would actually be quite popular if they were to make the hard choice and gives him cover to people who are afraid of their employees or afraid of their customers but who would like a little bit of of room in we ve seen this at different stages of the pandemic. When I worked for Governor Whittemore as Special Council uncovered matters, there was allotted debate around mask mandates. One of the arguments we heard is requiring masks at businesses was something that a lot of business owners would have liked to have done to protect their employees, but they were afraid of taking responsibility for that. They wanted the cover, and you know the governor was willing to be, and, to that extent, the bad guy to be the adult in the room to say we're gonna get behind as an and required of people. So far we haven't seen that appetite yet with vaccine mandates, although we have seen it in some school districts, we ve seen it at some universities. We ve seen it at least,
in theory from potentially OSHA. I think that'll be the biggest move in this space when and if we ever actually get a rule requiring vaccination for employers over say a hundred people. So one thing that surprised me earlier in the day endemic is that there are a lot of states that had capacity limits on various businesses and institutions. You're only so many people, a grocery store, only so many people in a movie theater only so many people in a church and that last part, the limits on houses of worship became a very big deal and we had to big court decisions, saying that there were very strict limits on the government's ability to impose those sorts of requirements on religious institutions. So why'd you.
Think that the court you played such a heavy emphasis on religious liberty, even when the countervailing interest was Heyward, we're trying to stop the spread of a deadly pandemic. Here I think the Supreme Court majority is very nervous about the way that they feel that secular authorities are disrespecting the role of religion and in our lives and that are being insensitive to the interests of people with firmly held religious beliefs. And I think some of this relates to the broader, better you here in the public about no war on religion or a war on christianity- and I think some of those concerns are overwrought. I think some of them are quite misplaced and then the last. I think it is true that some of the rules adopted in California and in New York in particular, which were the focus of the Supreme Court decision,
we're not always as sensitive to religious observance, as they were two other economic interests and that rankled some of the justices that made them think something here that something is of something is afoot here. Some some religious discrimination that nickel out to get people who are religiously observant. Anything at you know put more charitably. I think there were some times inattention to questions of religious observance and then also some genuine concern about religious observance, because some of the super spreader events that we saw especially early in the pandemic, were associated with religious worship and were associated particular religious communities, including the orthodox. In New York. So there were a lot of cross cutting concerns here and the justice is, I think, we're not willing to say the states can regulate in the actual
their police powers, but they were willing to say. We think that you ve gone too far when it comes to religious exercise that domain they feel very strongly about, and they ve pushed for war quite dramatically in that space, even as they ve left the states with their general authorities to take the steps necessary. Take steps necessary to tat protect the public health. So the other thing that surprised me in the court's village in cases is wall, these two cases involving houses of worship and occupancy capacity were making their way through the courts? There was another huge case was called Fulton and fault in the specific issue. There was the latest case dealing with whether not people with religious objections to anti algae bt discrimination walls can get exemptions from those laws,
I mean that they ruled in favour of the party that was seeking exemption, but on the narrowest possible grounds, and I guess what I'm asking here is no. I dont want to denigrate the importance of anti discrimination laws of their their tremendously important, but they already said that religious liberty concerns can override the government's interest in the preservation of human life and, like once, you ve gone that far in the cases dealing with church capacity, houses of worship capacity. Why, then turn around
so timid in a case that deals with literally any other right. I struggle with this question. I think it must say something about the way that the current Supreme Court majority thinks discrimination operates in the twenty first century in the United States is a picture. I don't hold its a picture that I think is a very strange to a lot of people, but I think they really believe that people who are religious are in some respects, persecuted, certainly treated with insensitivity, and that the court's really need to be vigilant to prevent the kind of blunder bus infringement, religious exercise rights. None of that, I think is is on its own. Terribly objectionable think was hard is that there are all sorts of other forms of inequality in our country where you, you see the court not being especially attentive to so why Israel
this discrimination. That thing that you are vigilant, hunt out Ben racial discrimination is something is clearly not a priority or sex discrimination is not as urgent priority or where you are not worried about valuing the choices women make in connection with their reproductive health and yelling. All these questions about other kinds of insensitivity and our political culture don't seem to register, but this one does- and I think the answer there just might be: that's the world view they were selected for that's the world view of the folk who nominated them to the Supreme Court and it's a function of winning elections where are people who voted for the the president's uninstalled them hold these views or versions of these issues. So it's time for us to take our first break I'll movie, come back with your talk about a different aspect of the justice worldview, how they would structure the government. That's supposed to be able to respond to crises like a pandemic I know exactly what's gonna happen at some,
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wasn't uncommon, ground on Amazon, music, apple pie casts or wherever you get. Your pot cast welcome back, I'm here with Nick Bagley, we're talking about the courts in the pandemic and the difficult legal questions that arise out of that. So another big pandemic related case on that made its way up to the Supreme Court Alabama Association of Real, terse VIII, H, age ass. This was the eviction moratorium Kay So you ve argue that the court's got this one right, which I think is an unpopular view in liberal circles, but also you know a very plausible one, given legal rules that apply here so explain briefly what this cases an you why you think the court did get it right
very early on a lot of states moved to limit evictions in the pandemic in the fear was that people who were infected with covert nineteen would get pitched on under the street gotta homeless, shelters, in fact, others and the kick up the spread of covert nineteen the federal government under President Trump actually got in on the game after many states started to lift their eviction, moratoria an exercise powers, the CDC Socrates to control the spread of infectious disease to readmit after a nation wide eviction, moratorium and the moratorium itself is actually more poorest and people fully appreciate was much harder for renters to take advantage of I think, was widely understood. Nonetheless, Congress that extended the eviction, moratorium and
an invite and, as the moratorium was set to lapse, decided to extend it yet again. The reason that this is a challenge for those of us who are going to deepen the public health world is it. The states really have the kind of chief authority when it comes to regulating questions pertaining to kind of the direct control of individuals in the public health. So this isn't a question about drug approval or vaccine approval. It's not a question about letting people in from other countries sought a question about interstate travel is just a question about renter, and about whether they should be able to be effected during the pandemic. That's kind of our core question of state law, not a question of federal law, at least usually, and the authorities that the CDC were drawing,
Nine were drafted back in the nineteen forty at a time when the federal presence in public health was even less pronounced than it is today, and so to construe a statute that eighty years old to confer on the cdc the sweeping authority to reshape landlord tenant by the states struck me as as quite a stretch and in fact, the statutory text. There is some clues that that's not what Congress had in mind. So when the cases were filed, I thought I thought challengers had a very good likelihood of winning. I wrote as much publicly it was not popular and then the case got in front of the Supreme Court and they said what I thought they would say from the beginning. I felt the Biden administration a little bit on this one. You know they understood. The legal risks they understood. The legal writing was probably on the wall. They went ahead anyway and I think they have they did so in a way that generated a bad precedent for the CDC going forward that could end up circumscribing public health authority going forward and with the law
sing of the eviction moratorium. I think again because I think it was so poorest and so poorly enforced and we didn't act we see an immediate surge innovations and I think that was never especially likely. So you know, I think this was an unforced error. The part of the Biden Ministration, an effort to curry favour with groups that were, for understandable reasons, completely angry about the possibility of people being evicted during the pandemic. But I think the Supreme Court probably got this one right. So when I ask about the timing of the court's decision so like there was a period in the Trump Administration where Congress had not authorized in eviction moratorium and in the trumpet Ministry, in the city. See was exercising its authority that was later struck down and the cynical take on that is Republicans control the Supreme Court. They let this thing survive while tromp was president and then they killed it, but like the euro more charitable, take on it is that when Tromp was president there wasn't a vaccine.
And so, if the policy argument for this moratorium was we don't want, people going to homeless, shelters are going to other places where they might spread Cove id. That argument became much much weaker by the time the vaccine mandate was actually struck down so or not the vaccine man answered by the time the eviction moratorium was struck out so which explanations you buy, or is there a third explanation for why the court acted yeah, Eileen toward a third explanation which is simpler and in some respects, just much more boring, which it that litigation takes time and that the eviction cases had not either been filed or were at early stages during the trumpet ministration and then again it one point during that that run Congress approved it inversion of the eviction moratorium, placing it on a firm legal foundation. I'm so wasn't until the thing was re authorized?
or Biden that the cases became sort of urgent and were brought up fairly quickly. So I think partly it's a matter of time. Partly it's a matter cutting the executive branch, some slack when matters are, are tough, and this relates to your point about the availability of a vaccine which Maybe this is skirting up against legal boundaries, but during a crisis wearing a country, some slack- and I think you saw some of that in I taught a class on the law of contagious disease to my students, this pass term and one of the things that you, you notice, if you look back at, say that nineteen eighteen flew to which the covered crisis is often compared, there's not much case law that came out of the nineteen eighteen experience, notwithstanding their being fairly sweeping state
mortars that presaged what we saw during covert maintain, and the reason is that the stay at home- or here in Michigan, for example, was on the books for three whole weeks. That's it when something lasts for a short time. It often is not gonna get up to the Supreme Court quickly enough time to make a difference, and then it partly that's the court saying you weren't gives little breathing room and that's it saw here. It took a bunch of months for the big challenges tether stay at home waters to get to get mounted and it took a while. For that What is the eviction moratorium to get up to speed? To one thing that troubled me about? I mean not just the eviction moratorium case. This is a promise I think comes up over and over again. Now is that, especially with the filibuster Congress? Cant do anything on the regulatory side, like the reason why President Biden, entire legislative agenda is taxing in spending is because the way at the Senate rules work as you can pass a spending bill with fifty one votes, but you need sixty votes to do anything like ordering
business to do something, and I guess what by concern is, is that someone needs to Paypal to govern, and so I think what see, is a lot of administrative agencies. This happening, the Obama administration, is well taking steps that are not on the surest legal footing, I mean not not things that are blatantly illegal, but things that there are very strongly the arguments against, because if the administration does act. No one will step in and often there's a legitimate emergency. So how should the courts and the governor navigate. Essentially, this problem created by a completely dysfunctional congress, you're asking one of the questions that genuinely keeps me up at night. I think the narrative we tell about presidential lawbreaking often feeds and our political preconceptions. So if you're, a conservative, you thought Obama
wise, arrogant- and you know just just one or two do in his own way? And if you are a Democrat, you looked at Trump and his lawbreaking and thought that just reflected his four men, ten gonna fuck all your approach to lots of parts of his job. I think the truth is actually much more concerning, which is that, in the absence, a functional congress, is immense pressure on the president to achieve his or her political objectives by drawing on existing executive authority, and that means they're going to push up against and, in many cases, exceed the boundaries of their power. So you saw this with Obama in connection with lots of parts of the implementation of the affordable care act. You saw it with his extension of Daca and both of which are are legally contentious, and you saw it with Trump with his efforts to redirect funding for the border wall. for a lot of his other most aggressive action. So you can put all that together and ethical. We're seeing is an incipient trend where President Biden,
under a great deal of pressure from constituents with genuine concerns during a pandemic about people being evicted, and he said we gotta find a way to fix this, and I am sure that law It is within the administration said you know boss. This is gonna, go poorly for us and I think the answer is yes. Gotta run some risks and I think that what that means in practice, as the executive branch is gonna be, foundries. In the courts are going to be increasingly in a position where they feel like they've, got a push back, and you know obviously going to push back this court, the Supreme Court, going to push back with a special force. On Democrats, I wanted to dive into the partisan implications.
dynamic as well cause like, during the latter part of the Trump Administration your during the pandemic, part of the Trump Administration, a want of big bills, past Congress and a lot of big bills that had regulatory components. Past Congress, I mean the Congress pass to temporary eviction moratoriums under Donald Trump, and the reason for that was that Democrats in Congress were willing to show that they thought it was important to pass these bills and they cared more about passing those bills than they cared about. Making Donald Trump look back and then Biden came into office. I think it immediately became clear that Mitch Mcconnell was not going to provide him with the same kind of cooperation that Nancy Pelosi did. So, if I'm a voter whose just casually watching this, what I see is that when there's a republican present, the government seems to be working just fine and, like people seem to be getting along and passing important bills
I when there's a democratic president. All of a sudden the government cannot legislate and so I guess what I'm asking is like. Is there a way out of this trap, where the party that seems more willing to engage in by partisan deal making wines at being tarred as party of bad governance, because I can't get reciprocity. I worry a lot about this. I want to offer a suggestion, which I think is that the way to bring Republicans to the negotiating table as to beat them in elections. I think this sometimes gets missed. We try to think about round about, like structural changes are fixes, and certainly we convey and progress on some of the issues. Getting rid of the filibuster would go a long way to easing some of the gridlock. But there still only are fifty democratic votes in the Senate, and that means that Joe Mansion still has the sort of balance of power there and there's no amount of wishing are hoping that will make that change? So
unless and until Democrats can figure out how to win elections consistently in it in a genuinely impact. Wednesday environment, where they have some geographical disadvantages, where they ve got structural disadvantage in the Senate and in electoral colleges. It's not a favourable terrain, but I think Democrats can win elections. I think they're gonna have to do that and I think they're gonna have to do it in a way that decisively reject the kind of scorched earth politics that we become accustomed to, because you think about it, you don't from which becomes perspective. This works right. The Republicans aren't blamed for the kind of sclerosis that now american public seems to think is just typical of government. I would hope that coming out of the Corbett Pandemic there be a renewed appreciation for the things that we need government to do for us and in fact, an appreciation for the things that the Gulf
did well during the pandemic and that the list may be short, but it's real and I'm thinking here, especially about operation warp speed and getting vaccines, ruled out as quickly and decisively as they were. That was a an effort that was not just the private sector, with the private sector, supported by public money. So there are things that we can do, but at the end of the day there is no substitute for persuading people, and so far Democrats have been able to do that? I dont want to let them off the hook here. I think they haven't one, because sometimes I think their ideas are not resonating with people and we gotta figure out how to how to us how to reach people. So let's take a step back because, like I think a lot of people being you and, I think, were the same age- grew up on the schoolhouse rock version of government. You Congress ass his abilities, signed by the President, that is how walls or made an in reality off in the way that it works, is Congress passes along
all which tells an agency to come up with a bunch of rules that are also legally binding, and so it just explain to me how that process works. Unlike why. That is an important part of modern governance. Congress doesn't have the institutional capacity or the expertise to craft all the there can a specific and detailed rules. We need to run our economy in there's. This is no question about that, and so, when it wants to regulate air quality, it will often say the EPA hey we'd like to regulate on some air pollutants here, some in our general constraints about how you go about that. But but if you could determine exactly how stringent these rules are to be taking into account, concerns about public health and economic considerations will have you do that work and we will sit back and let you do that work and and whatever you say, will bind polluters across the country. That kind of delegation replicates itself thousands tens of thousands of times across the federal government and so
and sees every day we'll delegated authority to do the jobs that we we and we asked them to do right like and there's no way that it could work any differently. But could you elaborate on that point like? Why is it that there are certain kinds of governance that can only be done by an agency, and could it be done by the legislature, so there couple of reasons that Congress would have a tough time doing this. One reason is that at least as matters stand, and I suppose you could come up with structural changes that would mitigate the somewhat they just one of the staff. I mean congresses actually fairly thinly staff. There are people with the requisite expertise up on the hill. To make these kind of judgment calls you gonna need to enlist outside help. The second reason is is that, to be honest, we don't want politicians making all these decisions, and you seem just last week with all they in fighting over the bill back better bill. How many, how many kind of deals are made in order to get to yes on a piece of legislation in a way,
that actually moves you some distance from what you might think of as an ideal picture, and I can't take politics out of decision making EPA is gonna hafta. You know both political considerations to figure out how to balance economic concerns against the human told of pollution. Right like politics is ever present, but you can take steps to mitigate that in a lot of these delegations reflect an effort to get the kind of cotton thrust of partisan politics out of the immediate, decision making on the ground. So the idea here is that, like, if the FDA deciding whether to approve a drug, you want that disease to be made by scientists to know something about whether that drug works and not on the basis of say well, we need Kirsten Cinemas vote the child care legislation and the manufacture of this drug is based in Arizona. So let's do a solid. That's a really nice and concrete example. Re ended away too to shield some of the really important decisions that we care about from that kind of data day partisan, inviting what I
they too is that Congress is pretty good at creating general rules like hey, would like you to approve drugs that are safe and effective, based on scientific evidence and research. Congress is pretty bad, retail level decision, we ve gotta have agencies to help us out with that. So the argument against the this point- and I mean this- is the argument I hear from people like Justice Gore such all the time it is some version of well, but we're supposed to be a democracy and veto. Why should these policies often very important policies? I mean Obama's most aggressive efforts to fight climate, age was done through EPA regulations. Why should these decisions be made by unelected bureaucrats and not by the people who have actually been elected to make these kinds of decisions? While I mean I will set aside the cheap, but nonetheless point that justice course it is also an unelected bureaucrats. So you know it's a little.
edge to hear him lecturing us about the extent to which other unelected bureaucrats shouldn't make important decisions about the lives of people on the ground. But setting again that aside, the FAO, did I I've never really understood this objection because, of course, the laws that we adopt to empower age he's the act or themselves the product of democratic deliberation there their laws they ve, been voted. by both houses of Congress and signed in the law by the President and when Congress, in its its judgment, decides that question is best resolved not by the political, not by the the Congress itself. But experts have given it a lot of thought. I don't know why that's any less democratic choice than having Congress tread us log through their process and work it through right, like the choice to delegate, is itself a choice, just in the same way that we,
you make a choice in your daily life to delegate part of your responsibilities, you made a choice right like it's, not that Europe any less responsible for the outcome. You just made a choice about Hyrcanus structure, your affairs, so the democratic argument has never moved me. The argument I think has more force is look, and this relates to an earlier point- is in a world where Congress is dysfunctional, there will be Temptation to brush up against and perhaps exceed legal constraints, and where you see these active branch freelancing where there isn't strong statutory authority, that's when you might genuinely more worried and you know sometimes sometimes aggressive measures are exactly what's warranted and sometimes that's permitted under the statute and yeah. That's just the brakes, but sometimes you do want card questions about whether or not the agencies are getting out over their skis and anywhere Missy. questions recur with alarming frequency over the next few years, slits takers
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Welcome back, I mean Mill Heizer, I'm here with Nick Bagley, we're talking about the Supreme Court, the pandemic, and now we're gonna talk about some of the questions about the structure of our government and whether we have an adequately structured government to deal with emergencies. So before I get into the details of the criticisms that people at Gore such have raised against federal agencies and how they might rain. The man I want again to some of the political history here I mean I have covered the federalist society for maybe about ten years now, and especially you beginning the end of the Obama administration. There is an obsession when I cover thereof, with limiting the power of federal agencies, the so really new devout.
you know you know in the in the nineteen eighties, one of the most outspoken proponents of expansive power federal agencies, an expansive judicial discretion to federal agencies was justice, Scalia that the conservative icon So I guess my question is like. Is there a non cynical explanation for this shift like? Is it just that when Scalia was these things in the eighties Ronald Reagan was president and now Joe Biden is president or is there a principled reason why you think conservatives have suddenly become very sceptical of agency discretion? Well cynical! be maybe a little strong if you are a conservative, with a libertarian Ben you're looking around and trying to figure out what you can do to reduce the role of government in your life and in the nineteen eighties The problem was that we had a lot of rules on the books and a lot of regulatory structures and the books that, in view of conservatives, needed to be swept away, and in order to do
that they wanted to draw on the power that agencies have to change up their rules and to change how they approach big social problems. So if that's, what you want is agencies to actually get rid of Kennedy, encrusted detritus of for decades, lawmaking will, then you want to empower them to act, and if you happen to be in charge of the executive branch, that's a happy coincidence that you can take advantage of that over time. I think that the kind of libertarian right has woken up to the reality that empowering government agencies to act is probably not concern then, with their long term strategic goal of getting agencies out of their lives. So their ways to understand that it is being from a continuous, but I think you're right, just dead right turn notice. The way that the conservative legal movement has put reining in the
minister of State, at the centre of their of their agenda and are not dare not subtle about this and there quite quite clear and Justice Gore Such Injustice Cavanaugh were both in particular selected for the Supreme Court because of their ardent and tied minister of views. Yeah me that's the thing that strikes me about this is how much of our policy is being done through structural changes to our constitutional system. So you like that. Look the question of who has the power to issue binding regulations, only come from Congress, gonNA of Congress and a federal agent see you're. What to what extent can Congress give a federal agents, and these are massive constitutional decisions, and I don't really know what the right balance is there
It seems to be that whatever the balances that exist, when say Barack Obama's president should also be the balance that exist when say Ronald Reagan. Is president, I think in the abstract, of course, justice course edge and the rest of the right wing of the court would agree with you, but when you're thinking about some of the doctrines that they hoped revive. Let's take the non delegation doctrine right. It stands for the principle that some wise are too vague and ambiguous. You can't delegate authority of that. Brad without laying down clear rules about how you want the agency to exercise them now. The non delegation doctrine has basically been a moribund doctrine throughout american history. It one good year back in nineteen, thirty five at the height of the new deal in the spring court said. While that statute seems to go extremely firm because it would have allowed the president to effectively cartel eyes the entire american economy, but apart from statutes that that can push that far the doctrine hasn't done much worse,
in Congress has, by and large, been able to delegate whenever it sees fit justice course. It doesn't like that state of affairs. He wants to say the Congress when it delegate certain kinds of authority to adopt rules governing private conduct has gotta provide enough guidance to make him comfortable, but thing is that kind of spongy, but we gotta be a little more specific doctrine is going to be applied with special force to statutes that give you the lilies and the statutes and give him the will is likely not to be the statutes that give Democrats in Congress the Willie's, and that means that he will exercising the fairly open ended authority to pick and choose those statutes that, in his view, go too far and that may be true. The conservative justices as well. I we saw that play out actually here in my home state of Michigan, so there a law that about in the book since nineteen forty five in power, Governor Whittemore, to adopt an emergency response to things like Disease and the Michigan Supreme Court by a forty three
not following along predictable partisan line said that that one thousand nine hundred and forty five statute, but on the books for almost eighty years was unconstitutional. It didn't provide enough guidance about how to respond urgencies, even though, of course, the whole nature of emergencies is that you don't know you're gonna need to respond. So you need to be able to draw on broad authority that kind of frankly, opportunistic decision, I think, is likely to be more common if we breathe life into the nine delegation. Doctrine. No under justly put an exclamation point about what you just said about statues that give justices the Willie's. I'm gonna read a quote from justice score such this is from his opinion in the Gandhi case, and this was technically a dissenting opinion, but five justices of since said that they really like guns his opinion in Gandhi. So it's probably a majority and waiting. He said that federal laws from eating
agencies to regulate must be quote sufficiently definite and precise to enable Congress, the courts and the public to ascertain whether congresses guidance has been followed. I mean I think I'm a pretty good lawyer and I have no idea what that means in practice I needed. Is he just giving himself a veto power over rags, or is there any kind of intelligible principle that can be found in that standard? It's very hard, see. One and, in fact, the person who articulated this position most forcefully. The position that this is simply to open ended. The power to give to judges was just Scalia himself, who had fled did earlier in his career, with the idea of bringing back then delegation doctrine, but when he was actually a justice said, look we have any guideposts stop us do this job whether it's a little bit too vague or a little bit too amorphous, or whether the prince was laid out or are precise enough. That's the kind of decision
but had to leave to the Congress, because we can't we don't have to make that call and if we try to make that call we're gonna look like partisan, hacks, because we're gonna be calling winners and losers, and it's going to invite us to substitute our own preference as about the way the world of work, for those of our elected representatives. That's no way to run a country, so the rhetoric that I often seem emerging from judges who are fond of non delegation and other restrictions on administrative law resembles the sort of rhetoric that I think is more operate if you're talking about, say now say EDA budget. So let me give a few, samples of a judge in Michigan compared the states, lockdown orders to totalitarianism when the Wisconsin Supreme Court struck down that states,
at home order. One of the justices wrote an opinion comparing the order to Cora MOT sue the case saying that japanese Americans could be rounded up and put in concentration camps. I guess what my concern is is like this isn't just rhetorical extravagance I suppose, there's another pandemic, suppose there's another emergency. That requires the sort of swift action that can only come from federal agencies, How are we going to build a response respond to the next pandemic? If we have a legal culture, that is so, concerned about agencies that can act quickly actually acting quickly. I have a lot of concerns along this dimension, but it's not just about emerge, CS. I think what you see in the increasing we bombastic rhetoric from judges around the country. is a main lining of the kind of institutional distrust that is certainly the cornerstone
I have a lot of kind of right wing, libertarian thinking but his, but is actually kind of permeating american culture more broadly right, a lack of faith in institutions, lack of faith and in basic functions of governance and that kind of red Eric and that kind of approach to judging is gonna be corrosive of state capacity to do almost anything right. So one challenge that we ve got coming up as we ve got a husband this transition to clean energy bill it's going to require us to build solar plants. The solar fields going to require us to build wind turbines is going to require us to build new nuclear sites like I don't see how we negotiate all the judicial obstacles that we ve thrown up to development in this country. I don't see how we get the kind of public trust that we can through all that the constraints on that kind of activity that we really desperately need. That's not even sort of a quick acting emergency. There
a slow burn emergency, and I still I still worry about it and when it comes to an actual on the ground, and earth shattering emergency. Like covert nineteen. You know I don't know I'd like to think that allow the bombast has arisen and emerged as the threat is passed, that some of this is just the posturing of folk who are trying to signals about their unhappiness about how this all went or trying to position themselves for a future political game and that when push comes to shove, they will hopefully, you know, joined together We did in the very first months the pandemic and find a way to make some tough choices, but to do them anyway. The thing that worries me most about this campaign of dealers,
Immigration is that we will no longer have a government that can live up to our aspirations and, what's gonna happen, as you can see, another presidential candidate stride across the stage saying only I can sweep away the pesky constraints that have been placed that make it impossible for government to help achieve your aspirations that help you achieve your collective goals. I can do it and it's a strong man, you're gonna will act and we ve seen that done from once, and I think we could see it again like government has to be responsive or we will see something much worse, some genuine totalitarianism emerge here in the United States. Will Nick Bagley. Thank you so much for joining me. This has been great. Thank you so much so that's offer today, thanks to Nick Bagley for join me. Thank you for listening. This is the last episode of them.
dangerous branch for now, but with the court being well, the court being how it is, will likely be back in your feed fairly soon. Producers Sophie MILAN, Libby Nelse. It is our editorial adviser, Amber Hall. As the deputy editorial director for talk podcast, I'm your host. He had mill Heizer and if you want more, we
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Transcript generated on 2021-11-05.