tv Peter Wallison Judicial Fortitude CSPAN November 17, 2018 8:01am-9:02am EST
program guide on your television. this is booktv, c-span2, it's television for serious readers. now, we're going to kick off this weekend with the american enterprise institute's peter wallison. he argues that the executive branch has taken over the legislative ask judicial roles -- and judicial roles of the government. [inaudible conversations] >> ladies and gentlemen, we will begin. everybody can comfortably get a seat. thanks so much. and good evening to all and welcome to our discussion of peter wallison's very timely, interesting and important new book, "judicial fortitude."
i'm alex pollack of the r street institute, and here's the book, in case you haven't bought one yet. i -- [applause] if.-- [laughter] i have the pleasure of reminding you that it is for sale tonight. as we think about the main question this book poses, how in the world are we as a society and as a government going to control the ever-increasing power of the administrative state or the unelected bureaucracy? if the bureaucracy assumes for itself what, in fact, are legislative powers, who or what can restrain them? as peter writes, in many instances administrative agencies appear to have issued rules or interpreted their authority in ways that exceeded the powers they were given by
congress, but the courts have not intervened. should the courts be intervening to correct this overreach of bureaucratic will to power? yes, says peter, quoting chief justice john roberts. it is the obligation of the judiciary not only to confine itself to its proper role, but to insure that the other branches do as well. in other words, the judiciary is seen in that quotation and in this book as the keeper of the fundamental structure of checks and balances among the branches of the government. the expansion of the administrative state got its original energy as one of the unfortunate results of the first world war and the american participation in it. with woodrow wilson's faith in the rule of experts, as peter writes, the progressive faith and administrative agencies was
anything but pragmatic. and elsewhere he refers to this as an extravagant faith in administrative agencies. but it was a faith that was disappointed and, says peter, it should come as no surprise that the administrative agencies were a disappointment to the progressives who had expected so much from them. it turned out that the administrators, even if experts, could not know enough to control whole industries and, indeed, could not possibly know enough even in principle. you'd think the congress could fix this, but peter says that it can't and won't, and the record certainly supports peter in this. and so the argument is that it's the courts that need to constrain congress' own unconstitutional urge to avoid hard decisions by delegating
them to unelect add morers -- unelect add morers. in other words, as the book says, it is essential to preserve the separation of powers by preserving the nondelegation doctrine, that there are things congress cannot delegate. this would assure that only congress will make the major governing decisions for the american people. thus, the deference that we all know about of the courts to the bureaucracies under the chevron rule would be corrected. says peter, where the court believes that congress has delegated an impermissible portion of its legislative authority to an administrative agency or to the president, it should not hesitate to invoke the nondelegation doctrine. thus, the deference of the courts to the bureaucracies would be replaced by fortitude
in enforcing the constitutional order. and the deference in letting it be undermined would pass away. our author, peter wallison, is a senior fellow at the american enterprise institute. while at aei, he has published "ronald reagan: the power of conviction and the success of his presidency," nationalizing public risk, better parties, better government, hidden in plain sight: what caused the world's worst financial crisis and why it could happen again and now, of course, "judicial fortitude." reevesly, peter practiced law -- previously, peter practiced law, was counsel to vice president nelson rockefeller, general counsel of the treasury department and white house counsel for president ronald reagan. i had the great pleasure of having the office next door to his for 11 years at aei and participating in his constant
fount of policy analysis and ideas not to mention wit. peter will be interviewed by adam white who directs the center for the administrative state at george mason university's antonin scalia law school where he's assistant professor of law. adam writes widely on the constitution, the courts and regulation. he sevens on the add mive -- he serves on the administrative council of the united states that proposes reforms for administrative agencies and on the leadership councils for the administrative law sections of the american bar association and the federalist society. his recent publications include articles on executive orders and agency regulations and on ethics in the executive branch. the interview is going to run til about 5:45, after which we'll open the floor to your with questions at 6:00. we will adjourn to a reception including book sales and signing.
we look forward to the discussion and, adam, let's begin. >> wonderful. well, thank you very much, alex. thank you, all of you, for joining us today. and thanks most of all for peter for writing such a wonderful and bracing book. it really begins with the very first sentence. let me just quote the opening lines of the book. you say, "it is not too much to say that we risk losing our democracy unless we can gain control of the agencies of the administrative state." "we risk losing our democracy." that's a pretty bold statement to open the book with. please explain. >> well, that's why i wrote the book, because i am concerned that the trend that has been developed here in the united states for many decisions to be made by administrative agencies rather than by the congress is a danger to our democracy. what i find in talking to people in the administrative area and
especially among specialists in administrative law is that they say, well, congress is really not able to handle the complexities of the modern world and, therefore, we have to give much more authority to administrators who will take the authorities that congress gives them and use them properly. the problem with that is that it doesn't pay enough attention to the fact that we live in a democracy and that it is the american people who are supposedded to be making -- supposed to be making the major decisions. if we leave the decisions to the people who live in washington, d.c. who are the officials of the various bureaucracies that make up the administrative state, then their priorities and their interests will be what the american people have to obey. and in a democracy, that's wrong. the danger of that -- and there is a danger -- is that the
government could lose its legitimacy if this continues too long. what is legitimacy? legitimacy is the authority that the government has, moral authority that the government has to get its laws enforced. and people obey the laws voluntarily when they are voting for them, in a sense, by electing their representatives. but if people come to believe over time that what is really happening is that there's this unknown group in washington who are making regulations that we all have to live with and not things that we voted for or that congress actually voted for, the problem is that people will begin to believe that they don't have to obey the law anymore.
and, actually, this has come to pass in europe. you all know about brexit, and that is the exit of britain from the e.u. if you read why that occurred, what you learn is that in many ways the british people were very angry about the fact that they were subject to regulations that were being made in the e.u. over which they seemed to have no control but which were imposed on them. and so their vote -- and they were given the opportunity to vote -- was to leave, brexit. the danger is that in the united states something like that can happen, and if we look at what happened in 2016 with the election of donald trump, it's been called a populist uprising. and i would think it was a populist uprising. but was it really just people
who were interested this conservative ideas of government? i think in part it might have been people who were very upset about the fact that the regulations and the rules that were coming out of washington were foreign to them and unknown. they were unaware and unable to discern why these rules were being made. and i would mention one more thing, and that is that over the last 25 years every year in those 25 years the government has issued over 3,000 rules and regulations. it's over 101,000 rules and regulations in 25 years. now, we all know that administrative agencies are supposed to fill in the details of what congress adopts as a statute. but the number of statutes that have been adopted over that
period of time is minuscule compared to the number of rules and regulations. so you can understand why the american people are beginning to be a little bit worried about what is happening to their government. so i wanted to start the book with just that idea, because everyone writes about administrative law in terms of the actual laws involved, the cases that are involved, but what is really the issue, to me, is whether the american people can have confidence that they are, in fact, operating their own government. >> so in the long run, the key to legitimacy is returning more of these policy decisions back to congress, back to the states and local government. but the title of your book is "judicial fortitude," and the key to your booker as alex explained in his introduction, is that we need the courts to play a greater role than they've played traditionally or recently in returning many of these issues back to congress. and so let's just given with the
title of the book, "judicial fort dude." where did you -- fortitude. where did you get that from? >> i got that from sander hamilton's -- alexander hamilton's federalist 78. >> that's a good place to start. >> he covers the whole purpose of what, of what the judiciary is supposed to be doing. and in 78 what hamilton said was that, first of all, he was -- the reason he wrote the, apparently, the reason that he wrote the federalist 78 was because the founders, the framers were getting asked by the people, logically, wait a minute, this is a democracy, and we're supposed to elect the government, but you're giving lifetime appointments to these judges. what, what -- how does that make any sense? and i think hamilton's response was we need the judges
because -- we need the judges to have lifetime appointments because that will enable them to stand up to the elected branches, the president and congress. and what did he mean be by "stand up to"? it's very interesting what the framers did. not only did they set up, which i assume we will talk about at some point, a triaround tide system of -- tripar if tide system of a legislature, antive and a judiciary, but they also interwove the actions of each of them which are called checks and balances. in addition to having the separation of powers, there are checks and balances. so the president participates a little in legislation with his veto, the congress can appropriate funds for the judiciary and for the president, and so these things were set up by the framers to make sure that
no one part of their tripart system got more our than it deserved or was entitled to under the constitution. so they established a constitution in which the executive had enforcement powers, but they were very clear in article i to say that only the congress is vested with the legislative authority. and so the reason for this was the lodestar that they always had in mind was simple, and that is the people's liberty. and they were accustomed to a world in the late 1700s in which the king could have both the enforcement authority and the legislative authority. and they knew and saw that this caused the loss of liberties for
people. so by saying only congress could establish, could make the laws, they were hoping that in that case they would prevent a powerful executive from being able to take away people's liberties. so here's alexander hamilton, and he's trying to justify to people why we needed judges to have lifetime appointments, and he says that will give them the fortitude to be able to stand up to the congress and to the executive when they try -- because of pressures from the community or political pressures of any kind -- to disassemble or change or eliminate the separation of powers. after all, the constitution is only a parchment. it is, it's not self-enforcing unless someone enforces it. and so my view, and i'm not sure
i'd ever seen this in any other writings, my view is that the framers actually expected that the judiciary would stand up for the separation of powers and and make sure that it never gets changed in any material respect. and that's what the book is about because it says that the judiciary should step in and make sure that the powers, the legislative ours don't get delegated -- legislative powers don't get delegated eventually to the administrative agencies which are part of the executive branch. >> and hamilton is such an interesting thinker on this because he didn't just write about the judiciary. just a few papers earlier in the federalist, he's writing about executive power, and he writes at one point energy in the executive is a leading character of good government. so there's an interesting question about where hamilton draws the line, what's the court's role.
and there are parts of 78 where he seems deferential in terms of the courts construing laws to avoid constitutional conflict,. i'm just curious, taking a step back from hamilton specifically -- talk about hamiltonal you like, every gets old. [laughter] we just named our student fellows the hamilton fellows, because we thought who better to name them after? >> he was a bad shot though. >> a quick shot, that was the problem. how would you see the courts' role in how -- role? what does that mean when it comes time for the court to review the constitutionality of an act of congress? >> well, the distinction i make in the book is that the courts, as i said before or indicated before, the courts have a very special -- the judiciary has a very special responsibility for the structure of the government. when it comes to the words of the constitution that constrain what congress might do, that's
completely different. and as a conservative and a scalia-ite so to speak, i have always been against judicial activism. there is no reason why the courts should impose their policy views on what the legislature is doing. but that is mostly under the constitution's authority to congress and to some extent to the president to carry out the business of the government. that ought to have lots of latitude as, i think, hamilton was suggesting. but when it comes to the structure of the government, the separation of powers which is the central element of the constitution itself, that's not something that is, you can say, well, they should be deferential about. that is something, i think, that they were specifically assigned by the framers to pursue and insure. so i make -- there's no such thing in my mind for judicial
restraint when it comes to the issue of the separation of powers and the constitution's structure. >> so getting beyond with generalities and getting into the specifics of the book, you focus on a couple of aspects of judicial review, and one of them is judicial review of agency action. and you take aim at what the courts call chevron deference which just generally means when courts are reviewing an act of an agency, they'll defer to the agency's interpretation of the statute as long as the statute is ambiguous and the agency's interpretation is a reasonable one. and you criticize that approach in the book, or at least you ask the courts to recalibrate the way they go about deferring to agencies' interpretations. so why don't you explain. >> oh, it seems to me pretty obvious that if you have a judiciary and if the judiciary is supposed to make sure that the constitution is being
observed and the separation of powers is observeed -- and that's the theory on which this whole thing proceeds -- then it should be fairly clear that the judiciary should interpret the statutes. how much power the congress gave to the executive branch. and so that's a statutory interpretation question. what chevron did was say direct really, the lower courts, not to do that, in effect. to say, well, these administrative agencies are experts, they're more expert than we are, and if they interpret their statutory authorities in a certain way, we ought to accept that if it's reasonable. >> right. >> as you suggested. but that doesn't strike me as reasonable in terms of what we
are giving to the agencies. because everyone, everyone should believe that no one should be the judge in husband own case -- the judge in his own case. and in the case of a regulatory agency or an add arkansasmy -- administrative agency, if you're asking them whether they have the power to do something if, of course they'll find the reason to have the power to do something. >> right. >> it is the objective view of a court looking at that legislation which is called judicial review as a name, judicial review, that is sensible. and then when you look at the decision in that, in the chevron case, you can see that it became an opportunity for the agencies to begin using statutes that had been passed years or generations
before for new purposes. that congress probably never expected. >> yeah. >> and that's why from 1993 -- i just happened to choose that date because it happens to be one that someone has begun using to count the number of regulations -- but by 1993 chevron was actually adopted in 1984, but by 1993 the agencies had figured out that they had a lot of latitude here. >> yeah. >> and so we began to get 3,000 regulations and rules each year until today. so it only makes sense to me if we want to keep this under control, if we want to continue to have a country that is a democracy in which the people are actually voting for the rules, then we have to start reining in this power. and it came initially from the chevron case. >> and now today chevron had a lot of critics, especially on the right. justice thomas, to whom you
dedicate the book, is one of the leading judicial critics of chevron. phillip hamburger wrote an article called chevron bias, trying to recharacterize what chevron does. but of course historically, going back to its origins, chevron had a lot of proponents among republicans, including justice scalia who was probably its most eloquent defender fur a long time. -- for a long time. and if anything, chevron arose as a reaction by the reagan administration and the supreme court, reaction to the d.c. circuit and other courts sort of micromanaging the other agencies. so, obviously, there's been a change in conventional wisdom about chevron, and i'm just curious, you know, what you make of that change, what brought that change about. >> well, first of all, at least in my study and it's not been comprehensive, but in my study of the conflicts between the courts and the administrative agencies has mostly been about the adjudicative functions of the administrative agencies.
the courts have been very unhappy about some of the ways that the agencies made decisions. courts being lawyers and knowing something about how to be fair, they have been -- they did for a long time micromanage what the agencies did adjudicatively. i don't see the same thing happening on the rules side. and so from my point of view, that's where more attention should be paid. now, why was scalia such an advocate? i know why reagan was such an advocate of the chevron case -- >> yeah. >> you'd have to go through it a little bit, but it opened up the environmental laws a little bit to enable a little bit more latitude for companies that were trying to avoid having some of the costs associated with some
of the environmental regulations. so reagan liked that because that was one of the things that he was elected to do, he thought, and that is to reduce the regulations that were constraining the economy. someone else has done the same thing recently. >> right. >> but when you get to the question of scalia, the only thing that i can say about that -- and i am a fan of his -- is that i've read some of the things he's written before he became a judge, let alone a justice. and in that he said he liked the idea of chevron because it gave congress a background -- >> right. >> -- on which to, with which to legislate. >> yeah. stable background -- >> a stable background, that's exactly right. >> well, i tate on monday. [laughter] i literally did, actually.
i had that paper on monday. >> now, perhaps you could explain that to me, because that never made a great deal of sense to me. >> yeah. >> i mean, he never filled it out to the point where i really understood what he meant by a stable background. >> yeah. >> in any event, he gave up that idea toward the very end of his service on the court. in the last case i think that really came up that dealt with this, with this question of chevron, he seemed to move toward where chief justice roberts was -- >> yeah. >> -- on that. so i don't know whether that was something that would have continued over time, but he certainly seemed to see some value in at least in reducing the impact of the chevron case. >> yeah. and we should add while we're here at aei of all places, right? before scalia was a judge, he was a lowly think tank scholar
here at aei -- >> as low as they get. [laughter] >> he edited aei's in-house magazine, regulation. i read it for the articles. and in that time in '81 and thereabouts, he wrote these fascinating essays which i commend to everybody which are all available online about sort of changing currents of administrative law then, and maybe that's why he started to change at the end, that maybe we were reaching another inflection point. just one last question on chevron. at the very least, the generation that brought chevron about, what they thought they were doing in addition to scalia saying it's a stable background principle against which congress can legislate, they thought they were turning more policy discretion back to the people because at least the agencies are accountable to the president unlike courts. the president's accountable to the people. they thought that they were making the administrative state, administrative law more democratically legitimate. and i gather from the book that you think maybe that project failed or that people decided, no, actually this isn't
legitimate. >> oh, it's illegitimate, i think, for two reasons. one is the president has no way of controlling what the administrative agencies are doing. >> yeah, you stress that in the book. >> there are 3,000 regulations in a year, and they come out of all of the agencies over which the president has some kind of supervision. we're not talking about the independent agencies like the sec with a commission that is running it, but the treasury is one of the major issuers of regulations every year as is hhs and many others. .. and the omb doesn't have staff to review, the largest and most important regulations. the whole game continues to be
played year after year with regulations coming out and only a few of them actually reviewed by the president. in addition it is illegitimate for another reason and that is the president has no role of significance in lawmaking accept the approval of the things congress approves. to say it is just as legitimate to have the president there because he is elected as to say nothing really, because the president, the mere fact that he is elected doesn't give him the authority under the constitution to make a law. so really, this is what i call a fig leaf by people who want administrative agencies to continue to have the authority they have, they turn to the
president, and they all work for the president theoretically. and not really for democracy in their own way. for congress to give this authority. >> so the other defense of chevron's these are written so broadly it is hard to pin down a single meaning and that brings us to the other major focus of your book, the way congress goes about these statutes. when they write a statute, the communications act of 34 or whatever, these statutes are not legislating anything but delegating power to the agencies so the court should enforce the nondelegation doctrine by sending these things back to congress telling congress to do it over again. >> guest: that is one way to do it. if we take the chevron case,
that case in particular, what could the court have done in that case? the first thing they could have done is looked at this question of whether a single plant is the one that is the focus of the regulation or whether it is a whole bubble, all the plants associated with that plant going forth to assume that air, whether that bubble is what congress meant when it said a single source should get a permit from the state in which it is operating. >> guest: that could actually be a detailed. it was obvious what congress wanted in the clean air act and the court looked at this and
the court of appeals said that increasing the scope from a single operation to a bubble of opera -- all operations together is inconsistent with the statute and struck it down and the supreme court took the case and could have said you don't have to strike it down because it is just at the detail. whether it applies to this bubble of related agencies or whether it applies only to one, the sort of thing the administration of agency can decide. that is one thing they can do. another is to return it and say it is not clear what congress intended. and what the court of appeals had done, they were wrong, the cleaner statute.
and they did the worst possible thing which is the courts should look at -- the courts were delegated the authority to look at the policy here, or the administrative agency delegated the authority to look at the policy. by congress's silence, the congress didn't say anything about this particular subject. the idea was the agencies had that power. that was an idea that makes no sense to me but the second thing that i think was wrong was to say if you are working on something like this, you
have the opportunity to decide, if you are a court, to decide whether it is reasonable as a matter of politics. how can a court decide something is reasonable as a matter of policy. what the congress said, >> as you said about filling in details that one way to look at the nondelegation, the issues of such magnitude and scope that they are legislative, congress has to decide them and where the executive branch delegated the task of a factual
finding or filling in small details. there are other ways the supreme court has done this, more recently, last century, they have said there needs to be an intelligible principle, that is good enough. what would your nondelegation doctrine look like? >> i have no idea. an intelligible principle means nothing and is infinitely malleable and courts have used it that way. in one decisions scalia said it came down to a single word, a single word established with the intelligence principle was for an entire statute. that is not workable. the courts have to have a
jurisprudence of delegation which they have avoided for 200 years and they have avoided it because it is very very hard and has many consequences to do that. starting in 1935, two cases in which they found delegation had occurred and they struck it down. after that, president roosevelt had a landslide victory and tried to pack the court with 7 additional justices. >> that would never happen today. >> some people would be for it. the court was cowed. and faced with something, the
president actually retaliating against them so they backed away and that was the last time since 1935 the courts ever tried to determine a delegation of authority and the reasons that are laid out in this book the court must begin to do that and i do think now that under the current composition of the court, there were five justices including the last one who was confirmed a few weeks ago who are willing to do that and only the court can protect the separation of powers and prevent the continuous delegation of authority to the executive. when you think of it, the more
legislative authority, the executive gets, more discretion the executive agencies get, the more it is that they are making law almost by definition and that is exactly the horror show if i can put it that way that the framers were intending to prevent by the separation of powers in the constitution. this is an unavoidable question. if the courts continue to avoid it and say this is too complicated for us, not something we want to get into they don't have the fortitude, we are going to have a situation in the future where most legislative authority of the united states has been transferred, delegated by congress to the executive branch. we might like with the executive branch does, all of
us in this room in each individual case, the american people have not done that. they have not approved it. as a result we risk the possibility as i said at the beginning the we have a government that is out of control from their point of view and no longer a democratic republic. >> interesting to see current justices grapple with these issues, justice thomas to him you dedicate the book is a leading voice on it and raising doubts on this issue for almost 20 years. justice gore such was writing about this on the 10th circuit but the sexual offender registration act, the issue was congress, by giving the attorney general broad power to decide retroactively to apply laws and the justices were
grappling, first of all, through the statutes, looking under a chair, various statements of purpose would add up to an intelligible principle but setting aside that one case it is one thing to tell judges to have fortitude but the judges even with fortitude have to decide how to draw a line. that is why scalia was so wary of the nondelegation doctrine not just on the court, and the justice started to grapple with this. the thing is he was right. there is a challenging line to draw. if you have two pieces of advice, and the second would be how to draw the line. what would you tell them? >> this is the kind of thing courts do over time, case by
case. when talking about chevron if the court simply said this is a detail, no wonder congress didn't deal with it. it is a detailed. agencies can deal with something like this. that would go down as one line in a series of cases that would produce jurisprudence of delegation and it would go on for years and years as the courts have done with search and seizure or void for vagueness which is a good example of -- do it case-by-case and eventually because of all these decisions, adding up, you get finally a sense of the delegation and what is not but it is the danger that the courts will actually say that this is a
delegation that is important because the administrative agency knows that it can't go too far and more important congress will then realize if the court strikes down one or two or three of the things they have done, congress will have to start, for least resistance on difficult things in delegated authority to agencies, they will have to make the decision themselves because the american people are made of a series of groups and interests that want things done in the social area and economic area and if you can't get it done at the agencies and can't get it done in the courts they will go to congress and congress will structure itself in such a way as to comply and
we will have legislation instead of having congress turn these things over to the agencies to do. >> alex is ready to undulate my authority. >> that was a good ending point we got to. thank you for a very interesting discussion. ladies and gentlemen, time for you to ask questions if you like. may i remind you, when you get the microphone, tell us your name first and your affiliation and ask your question. if you feel an urge to give a preparatory lecture please resist the urge, come probably to your question. if you don't i will remind you. first questionable start over here. i have two and three and we will see how we do in time. >> ramon buehler with the madison coalition for the
freedom amendment. the court majorities tend to shift over time. . a majority would like to change chevron but we have a new president, new courts, they will want to go the other way. how do we protect as you point out the integrity of our democratic republic when half of the american political system wants to see more executive branch authority? don't we need something more than a temporary court majority to solve this problem? >> my view of that is judicial precedent creates a lot of stability. to the extent the court begins the process of establishing a jurisprudence of nondelegation,
that process will inevitably just continue because lawyers will bring cases on behalf of their clients making the argument that the rule they are complaining about, unconstitutional delegation, and that creates a lot of the stability over time. even though congress, and the supreme court's precedent will go on from year to year. as justice brett kavanaugh said, precedent is important and might be controlled by that as well. >> a question right here.
>> sitting next to judge williams, extremely distinguished member of the dc circuit. i happened to be sitting next to him. i like the term judicial fortitude and i am focusing not on judge williams but there is an imbalance in the structure of how it operates because the further regulatory review cases, the justice department attorneys, random public interest groups, actual human beings on the other side and the court, some of the judges on or what representations are for agency attorneys and the
agency attorneys view it as an adversary system so they don't go in front of the court and say we through that one up. so they will defend whatever happened and if your focus is on making government run better, problem solving, it would be helpful if justice department attorneys did play some role in modifying or advising the court and say this is a shortcoming and that will give the court a better record and the court seems to be so focused on the perspective of justice department attorneys and have findings of standing or whatever. >> if there's a structural imbalance. >> could have said that in response to the chevron question.
chevron balances everything toward the government and agencies, representing a client and complaining about a it is very difficult to establish is unreasonable especially when the court has been told they should give deference to the agency. there is that bias, other points you raise are good. the government may be has an obligation when it approaches the court to be a little more candid about their client's position, the ordinary private lawyer might be so that is an
interesting point of view and might be something the justice department might consider. >> you had a comment? >> there is only so much justice department lawyers can do with litigation. they have client and are duty-bound, the justice department has done so much more than litigated. the justice department played a central role in studying issues of administered of law by moving forward. some reports are cited today and everything peter said, i would be add if the justice department in addition to what it is doing litigation would take a step back and starts to resume work of studying these things are looking at it systematically and criticizing the problems we are seeing in the context of reports, that will help bolster congress's energy. >> this reminds me, a major issue in the department.
i want to argue this case before the court of appeals. before any general counsel of agency can do that you have to get the approval of the solicitor general so i went to the justice department and the solicitor was sitting with all these lawyers arrayed around him and making the argument, getting up to the court. that is somewhat of an answer to you. i made my arguments, explains why i wanted to make this argument in the solicitor general is listening to me and when i am finished, he looks at the left and the right and he says weak but not frivolous. so i was able to go. i lost but it was fun to do. >> a title for your next book, weak but not frivolous.
>> the next question here, the microphone coming this way. >> i'm looking forward to reading the book. the former outgoing general counsel, very quick aside i think there are times the justice department pushes back on agencies, very geeky question. i assume if you're against chevron difference you are against power or seminal rock difference, the idea that agencies get difference in the interpretation of their own regulations. anything you can say in addition to that kind of difference on top of your critique of chevron deference? >> it is the same issue and that is our difference is an agency is entitled almost without any questioning from the court, to reinterpret its
own regulations. one of the things that came before the court, justice scalia, under the administrative procedures act the agency does not have to use notice and comment will making to modify one of its own regulations or interpretations and suddenly he seemed to think to himself this is odd. the administrative procedure act also seems to require judicial review of regulations and here we would have gone on for years and years saying
agencies are in title to deference, the administrative procedure act adopted in 1946 and we have ignored it completely and what it says is judicial review is required, that is one of the reasons that i thought justice scalia seemed to be moving away from the position held on the question of chevron. >> judge williams, wait for the microphone if you would. >> i have always been identified. >> you have been unmasked. >> about your title. judicial fortitude. is that really the issue? the supreme court has shown great fortitude on day rights,
abortion, related social issues. it hasn't shown fortitude on the issues that you are particularly raising. and an empirical explanation of that or do you question my premises? >> years the way i look at. the structure of the constitution is so important and was given to the courts in my view by the framers that the fortitude that i am talking about refers to their support for separation of powers. the other things they did were
very controversial as you mentioned and will be for a long time. but there you can actually argue about whether the court should get into that area. and the question of the constitution structure, the court must get into that area, a system where the laws are actually made by congress and if the courts continue to hold themselves back from that, the supreme court does not attempt to get into that area over time, we will have lost the full structure of the constitution where the laws are supposed to be made by the people who were elected by the public. [inaudible question]
>> you could argue, they should not have done the other things but they certainly have not done this one thing that is essential to the sustenance of our democracy. >> with that we have reached the end of our time. thanks for a great discussion. [applause] >> the book is for sale and glad to sign books and see you all at the reception. [inaudible conversations] >> when we study the history, pre-april 4, 1960, and post april 4, 1968.
♪ >> memphis was the place of a lot of racial tension but also a lot of racial harmony. >> had there been no cotton economy there might not have been the need for a transportation hub so it is possible without cotton memphis would not exist in the 21st century. >> this weekend c-span cities tour takes you to memphis, tennessee with the help of our comcast cable partners. beginning at 7:00 on booktv, the book down to the crossroads, civil rights, black power and the meredith march against fear. and author charles hughes on the role music played in his book country soul, making music and making race in the american south. sunday at 2:00 pm his eastern on american history tv, the history of memphis in the mid-19th century.
the national civil rights museum. watch c-span cities tour of memphis at 7:00 pm eastern and sunday at 2:00 pm on american history tv on c-span 3 as we explore america. >> join us this weekend for live coverage of the miami book fair starting today at 10:00 eastern with journalist michael isicough discussing russian roulette.