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Philip Hamburger on the Threats of the Administrative State

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In this episode Governor Daniels and legal scholar and founder of the New Civil Liberties Alliance, Philip Hamburger, discuss the origins of the administrative state in classism, the use of it as an “irregular pathway” around the Constitution, and a series of cases about topics from fishing boats to social media that demonstrate the dangers to liberty that arise from an overreaching administrative state.


Mitch Daniels (00:00):

At the Liberty Fund, we’re interested in exploring the future of liberty. We hope it’s a bright one, but we accept that it’s always a question that a free people has to worry about. There are a few people we could invite to explore that subject with us more esteem than Philip Hamburger, the Freedman professor of law at Columbia University. Thank you very much for joining us. Thank you. You may be the nation’s premier expert on threats or at least the incursions of the administrative state into the freedom of individuals and associations. My first question is to ask you, how do you think we got here? This was not always a problem. Can we blame it all on Woodrow Wilson or is it more complicated?

Philip Hamburger (00:44):

That would be fun to blame it all on him, but I don’t think even he deserves that. There are layers aren’t there behind all of this. Most basically we’re human, right? And so the temptation to do things that we shouldn’t is always there. And the temptation to power and increasing, it just runs through history and Americans are not so exceptional that we can escape it. So that’s part of it. I suppose we could also blame those 19th century Americans who were eager to get out of their provincial status and went off to Germany, especially Prussia, to learn about the latest advances in Prussian political theory, which of course was all about administrative power. But Wdu Wilson actually didn’t go to Germany. He just read German books and apparently his German was so bad that when he seems original, he was actually just misreading his sources.


I suppose that the most immediate reason we have an administrative state is actually a matter of class. Unfortunately, we don’t often think about class as a driving force in American history, but in the 19th century as today, there are many highly educated Americans who thought that with that academic education came a degree of expertise and a certain authority in governance. And many of them being progressive, welcomed equal voting rights but weren’t happy with the results. And so 1870 black Americans get to vote, at least in theory, 1920 women and then 1960s for black Americans, voting begins to become a reality. And when this happens, of course many progressives are disappointed with the political outcomes and Woodrow Wilson complains about this vociferously in a sense. He, he’s disappointed with the diversity of America, which leads to political results he doesn’t like. And so he suggests and others follow that everyone gets to vote. It’s Republic, we all get to vote, but legislative power needs to be taken out of the legislature and put in the hands of people, well, more like us he thought. And so there’s a really rather disgraceful attempt to undermine voting rights. It’s really a dilution of voting rights by removing legislative power into the hands of the administrative state. And this is a matter of class anxiety and power grab, isn’t it?

Mitch Daniels (03:26):

We certainly see it today in which some people do feel, I’m sure sincerely, that they are more competent, therefore they’re entitled in some way to dictate results to the rest of the country. It would
Philip Hamburger (03:40):

Be nice if they really were more competent.

Mitch Daniels (03:42):

Yeah, well, it would still be a danger to liberty, but it might produce slightly better outcomes than we have of late. Many believe that maybe once it was a willful attempt to rest authority from the legislature. But legislatures or at least the national legislature has been complicit, hasn’t it? That’s right. Has willingly seated some of its authority to the administrative state a little safer politically to do that maybe, right.

Philip Hamburger (04:18):

It’s as if the legislatures have been infantalized by the existence of the administrative state. They can hand over all the difficult decisions, all the negative decisions to the agencies. And so the legislatures Congress above all can declare we’re in favor of clean air and clean water, and then the decisions that might lose your review votes that’s made by the agency. And someone complains. They say, we didn’t do that.

Mitch Daniels (04:45):

I didn’t vote for that.

Philip Hamburger (04:45):

Right. It’s disgraceful actually. Now this leads many people to fear, well, we can’t get rid of the administrative state because Congress is incompetent, but of course nothing stays the same. And I think if we were to diminish the power of the administrative state, Congress would grow into its old role of actually legislating. So I don’t think they’re naturally incompetent. It’s just a matter of convenience.

Mitch Daniels (05:12):

Well, you’ve taken action on this front. You’ve formed an organization, the New Civil Liberties Alliance. I’d like you to tell us about its mission. I’m also, I’m taken with the term itself. You’ve appropriated the language civil liberties into this campaign. You could have named it other things, but I like the fact I would like to hear you talk about the reason you chose that.

Philip Hamburger (05:39):

Well, the new Civil Liberties Alliance really is about civil liberties and it is very much alliance and alliance. We work with other organizations. It’s not just about us. There needs to be a movement. Look, the old civil liberties issues in America used to be about divisions amongst people based let’s say on race, on sex and other classifications. But the primary threat to civil liberties in America these days is of a different sort. It’s the administrative state. The administrative state is not just a separation of powers problem, although it is that, and that’s serious enough, it threatens our right to have a jury. It threatens our right to have a grand jury. It threatens the presumption of innocence because many enforcement actions are substitutes for criminal prosecutions. It threatens our voting rights. Oh, we still get to vote formally, but it actually shifts legislative power out of the hands of the people we elect. And so it is a civil liberties issue. So in founding the new Civil Liberties Alliance, the primary goal of having new civil rights litigation strategy was just to recognize this, to be candid, that this is a civil rights issue, not a separation of powers issue alone. And that gets to a second layer of what we do.


I greatly admire Alexander Snit. I give my students his live not by lies. He says, live in truth. And if you can’t manage that, at least live not by lies. So our goal when we write briefs is not simply to weave in and out amongst the doctrines, which many people do very artfully, and we have to do that to some degree and I hope again artfully. But nonetheless, the best thing we can do is just to be candid about what the Constitution requires and I think that’s a brush of fresh air for the judges. Now, they don’t always want to live up to that, but at least pushes them in the right direction or perhaps better draws them in the right direction. It gives them a chance to say what’s on their minds. They often recognize the truth. So speaking the truth about this as a civil liberties issue is crucial.


And then of course another element of our strategy is in fact to be strategic. The reason I started the organization initially was because it seemed too much litigation about administrative power was point defense. If coal is attacked, people would say rally around coal. And so you have litigation that’s about coal and the particular agency, this is not only inefficient, it usually leads you to lose and create precedent against oneself and it’s very expensive. So what we have to do is think about taking down types of power that cut across agencies and that has proved to be very, all of these elements, the civil rights element, telling the truth and the strategy we’re going to have types of power has been very effective in just five years. So we’re very pleased about that. Well congratulations. Thank you on Godspeed. I just want to say it’s not just me. We have great lawyers that helps other great lawyers. Well,

Mitch Daniels (08:54):

It’s so interesting you invoke sen not that long ago, I had the occasion to have a conversation like this with another great Russian dissident, Gary Kasparov, the Grand Chessmaster, but also eloquent spokesman for freedom. He said a very interesting thing that I think bears on this conversation and that was he said what we got wrong in Russia when we thought we had an opening for freedom was he said, we thought democracy was a result. And he said, it’s a process and as soon as you allow people to begin bending the process to their own ends, he said a tweak here, a tweak there. And that’s that. And we’ve seen a lot of bending of processes and perhaps a legal system which has permitted that when it shouldn’t have.

Philip Hamburger (09:48):

Yeah, I love that quotation. I’m actually going to look it up and use it myself if you don’t mind. That makes a lot of sense. So many people who embrace the administrative state do look to the results. I don’t think the results are as pleasant as they think, but still the argument is we actually need to adjust the cumbersome processes of the constitution even if it does deprive you of your voting rights, even if it does get rid of the jury in any case, to say the jury, that’s just an old fashioned thing, isn’t it?


The processes matter profoundly and I think that’s an important way of thinking about administrative power. It’s really a set of irregular pathways. If you think about what absolute power was in the middle Ages for example, they drew a distinction between ordained law, the law that was made in the regular processes and the irregular pathways for royal power. And the administrative state is just the bureaucratized version of that old absolute power. And it too follows I regular pathways instead of going through an act of Congress where representation takes place and there is necessity of compromising and working things out. Power is exercised through administrative rules or worse, even what I call sub administrative power, subtle threats and cooperation and so forth. And this process is bound to deprive most of us of our input into the law and that tends to lead to all sorts of dangerous results. By the same token, when there’s an enforcement action against you in the SEC, you don’t get a judge, you don’t get a jury, you don’t even have a presumption of innocence. They go after you with these fake judges with mock due process and this is a disaster for our civil liberties.

Mitch Daniels (11:40):

Yes, the a high ranking official in the current administration, rather blithely, was a few years ago reported to be talking about workarounds. Sometimes they just needed to do workarounds. In that case, it had to do with asserting that OSHA could require a vaccine vaccinations by private companies. Maybe more flagrant example is the student debt forgiveness effort made over and over again despite at least one legal rebuff that says, no, you don’t have that authority, and yet here they come again.

Philip Hamburger (12:20):

That’s right. The entire administrative state can be viewed as a workaround, if you will, an evasion that’s it’s sort of a cascade of power. It begins by avoiding the invading the constitutional processes, legislative, judicial, it then moves on to evading even the formal administrative mechanisms to less formal administrative mechanisms. And when they’re tired, even of informal rulemaking, it works with a nudge, a shove, a little bit of a hint of destruction and its power flows down to the lowest level almost to the gutter. And it’s really quite shocking.

Mitch Daniels (13:00):

And one worries that we’ve all become, not all, but too many Americans have become enured to it and aren’t realizing the constant encroachments on what should be basic

Philip Hamburger (13:14):

Freedoms. This is why actually I’m so grateful that you’re doing this interview with me because it seems to me the most basic thing we have to do a litigation is essential and truth telling litigation is important. Most basically Americans have to understand what’s happening. Confucius talked about the rectification of names, or at least the students did and attributed it to him. And the names we use really do matter. Administrative law judges, they’re not judges administrative law. That ain’t law. That’s just power. We have to be very candid about what’s happening here. And if we use the right names, then we will understand the truth and we will reject the current brutish way we’re governed. That’s right.

Mitch Daniels (13:59):

Let’s try to find some cause for optimism. There’ve been some cases, and you’ve been an instigator or participant, I believe in some of them recently that do give I think some encouragement that the courts are beginning to push back against this sort of glacier of encroachment that’s been going on for so long. So I’d like to hear you talk about it from a legal standpoint. So the major questions, doctrine, I think I’ve used the correct term, was used to tell the EPA. No, that’s a question for Congress. This seems fundamental because we can think of so many other realms in which that same doctrine it feels would apply.

Philip Hamburger (14:58):

That’s right. Just at the outset, I should say that I wouldn’t be doing this if I didn’t think we could win. I like to win. I do not litigate to lose. And so we are determined to push forward and yes, we’ve seen astonishing change even in the short time we’ve been at work at this, so that at NCLA, we are determined to make sure we win. Right? The major questions doctrine, it is a cause of our optimism. It does suggest that the court is slowly in its own way, recognizing there are dangers. This is a way it’s not a perfect result because of course it’s splitting the baby down the middle. If they were serious, they would say that Congress cannot divest itself of its legislative power and the executive cannot exercise the power. The Constitution did not grant to it. The Constitution says that the legislative powers being granted shall be vested in the Congress.


Well, that’s mandatory vesting in Congress. So they might do that and we hope to get there sooner than later. But in the meantime, the major questions doctrine is a way of saying, well, if this is something that looks really, really big and important, perhaps Congress has to decide this unless it’s clear that it wants to transfer this to an agency that’s it’s only a mild little doctrine, but it as the potential if the court follows up on it to have some of good effect. Again, I’d rather have them be truthful. I want our judges, as I like academics to aim for the truth, in which case they would not just use the major

Mitch Daniels (16:36):

Crisis. They would tell Congress, it’s not that you must explicitly delegate it. There are certain things you shouldn’t, you shall not delegate,

Philip Hamburger (16:43):

You cannot delegate legislative power, period. Now some of the justices I think are on board with that, but we’ll step by step, it’s not going to happen overnight, but there’s a very good first step. That’s right.

Mitch Daniels (16:58):

There are cases pending. Now, the one that people are watching the most closely, I guess is the Chevron case or the case that would undo the, so-called Chevron. I guess deference doctrine got a prediction. And if so, if it’s a favorable prediction, how far reaching would that would be or not

Philip Hamburger (17:19):

Be? I do not ordinarily predict what the court does, but it does seem as if they are willing at least to pull back on it and hopefully we’ll just get rid of it. The Supreme Court hasn’t followed Chevron for about a decade. It’s only unsophisticated circuits like the federal circuit that follow Chevron. So everyone knows it’s the Walking Dead and we just need a coroner certificate. So our case is the relentless case. It’s about fishing boats and that’s the one of the two Chevron cases where all the justices can vote, including Justice Jackson who is conflicted out of the other one. And it’s a compelling situation. It’s a compelling case. They really ought to get rid of Chevron. And the danger with Chevron

Mitch Daniels (18:03):

Is just discuss the facts for those who may not

Philip Hamburger (18:05):

Have read it.


Fishing boats are required to have monitors on board to monitor that. They don’t take the wrong sort of fish, but the government doesn’t put its own monitors there. It requires fishing boats to give monitors that they pay for. And all of this is unauthorized by statute and the government says, well, it’s ambiguous and we interpret it to permit this. The danger with Chevron in this case and in all the others is very serious. At one level, the danger is that Chevron essentially allows agencies to make rules even when they’re not authorized by Congress. As long as there’s some ambiguity here, silence. And so Congress actually has to say, don’t make a rule rather than authorize a rule. It’s a way of expanding the legislative power of the agencies. That’s bad enough. What makes it especially bad is something I noticed a number of years ago is what happens in court when these cases are litigated and the government seeks deference, Chevron deference and all the other deference doctrines are really doctrines that ask the judges to bow to the legal position of one of the parties, the most powerful party. So I call it not Chevron deference, but chevron bias, which it’s a gross violation of the due process of law.


If the judge has accepted that argument, they’d have to get rid of all the deference doctrines at once. So I don’t think they’ll rely on that argument, but that should weigh on them. It is not the business of courts to start with presuppositions in favor of one class of clients and against others. That is absolutely contrary to the due process of law. And they really have to abandon this doctrine for the sake of their own reputation, if nothing else.

Mitch Daniels (19:57):

So you, without making a prediction, it’s possible that they split the baby here too. What would that look like as opposed to a, I’ll call it all of baby outcome?

Philip Hamburger (20:11):

Yeah, just a little bit of due process violations by the Supreme Court and not Right. What I think the best we can hope for here is that they will abandon the Chevron doctrine, but leave in place the other deference doctrines like our Kaiser and Mead Skidmore named after various other cases. There are various other lesser sorts of deference doctrines, and then we will just have to pursue those in other cases, which is fine. That’s the way it should

Mitch Daniels (20:39):

Work in the lesser doctrines. Is the government, is there a burden on the government to make some showing they have the authority or in what sense are these doctrines lesser?

Philip Hamburger (20:50):

Oh, the Chevron doctrine concerns interpretation of statutes. Yes. So that Congress’s ambiguity gives power to the agencies. Our and Kaiser deference is about ambiguities in the rules. The agencies themselves, can they make a rule interpreting one of the ambiguities in their own rules. This is bad enough, but it doesn’t involve statutes. So there’s a little hierarchy of these doctrines.

Mitch Daniels (21:18):

Are you working on a case to go after those?

Philip Hamburger (21:20):

We’ll go after all things, yeah.

Mitch Daniels (21:25):

One defense, the constitution or the founders, the rafters thought they were setting up to protect the liberties was our federal system. And here too, we’ve seen erosion, maybe even more so than we have in the expansion of administrative action versus proper legislative action. But there have been some resurgence. It seems of assertiveness by states and by states of both persuasions actually. What do you see going on here and is there a reason for some encouragement?

Philip Hamburger (22:09):

Right. Well first, just to state the problem, we had a federal system, a system in which we govern ourselves in two layers, state and local and then federal. And these are independent systems of government. So one should not be dictating to the other. Unfortunately, because of the sheer growth of substantive legislative power at the federal level, federal power reaches everything these days. And that undermines the distinction, undermines the authority of the states. What’s more the administrative power comes in play here because it’s not just acts of Congress, but also administrative rules and even conditions that can defeat state law. Allegedly, this is a bizarre outcome and it’s very, very dangerous. All of this deprives us of our agency in the very governments, the more intimate governments in which we have a chance of some real agency. Is there some hope? A little bit. We have some doctrines of Supreme court, like the anti commandeering doctrine, which allegedly we’ll cut back limit some of the intrusions on the state, although there’s not much meat on it yet. And I dunno if there will be. Fortunately, some of the state ags offices have begun to push back as they should, and that’s heartening. And I think there’s a lot of good of good action there. It’s a good place for students to go work, for example, I encourage my students to enjoy that.

Mitch Daniels (23:36):

States have achieved standing in a couple of cases where it wasn’t clear that other plaintiffs might, and I guess there’s some reason for hope there. I think it’s interesting that so far if successful attempts to block the student loan forgiveness to use a misnomer student loan transfer have originated in the states.

Philip Hamburger (24:06):

That’s right. And another case would be MUR versus Missouri. Then NCLA under Jeanine Eunice brought a case chese in the sixth circuit and the judges were skeptical of standing because they, because really quite believe just how serious the danger of censorship was. They should have believed it. And then Louisiana and Missouri brought their own case and brought us in with our individual plaintiffs. And that’s now in the Supreme Court.

Mitch Daniels (24:41):

Explain what’s at issue in Murthy versus Missouri. Well,

Philip Hamburger (24:44):

In Murthy, we are seeking an injunction against federal censorship through the social media platforms. It used to be when the government censored you, they would have to prosecute you in court under the law of seditious libel. In other words, they had to go, Congress had to pass a law against her speech. The courts had to entertain a government prosecution and you were there, you could defend yourself before you were punished for it. Nowadays, government can actually suppress your speech and you might not even know it because they work with the social media platforms and sometimes it is overtly coercive. They pressure the platforms and sometimes it’s done in more subtle ways that aren’t so coercive but are done less unlawful. For example, the social media platforms, in order to get things off their own platforms that are control people’s speech have to make sure you’re not going to another platform to find the speech.


So they have to coordinate, but they can’t coordinate because of the antitrust laws. So the federal government comes along and says, we’ll coordinate for you. We’re going to tell you what should be censored this week. And they all fall in line and do it. And in that way, the government is aiding in a violation of antitrust laws and violating freedom of speech. So there are a lot of subtle mechanisms that go into this, and it’s very dangerous because it used to be when government did something unlawful suppressing your speech or otherwise you could find some refuge in other coroners of American society in the states or corporation might support you. The private sector was private. Now that line has been blurred, and so when government either pressures or coordinates with all the leading social media platforms, it creates a sort of wall of power. They can genuinely suppress and alter public opinion whether to change elections, whether to undermine critiques of government coming from some of the finest scientists in the world. They could just sense Galileo would’ve had something to say about this. Right. And the government should not be proud of this, but they are. Again, it’s more of those workarounds.

Mitch Daniels (26:58):

Yeah, some of the speech that was apparently suppressed, I guess there’s pretty clear evidence of active as opposed to wink, wink collusion in the pandemic. That speech turned out to be accurate. Scientific theories turned out to be more accurate than the governments. Right?

Philip Hamburger (27:19):

J Ria, Martin RF and others are our clients. These are highly respected scientists. They have more expertise in the government and their concerns have turned out to be accurate. Mass may not work as people thought. Vaccines may be much more complicated than people thought. We also have clients, in another case, the Dressin case, clients who were provax took the vaccine. Of course they didn’t know about adverse vaccine events because those have been censored. They were terribly injured by these vaccines, crippled some of them. And they formed a private Facebook page just as a support group just to say, my legs don’t work. Does anyone else have this? What could I do about this? It’s entirely personal, private speech. And this got censored. The government insisted this be taken down and continues to take down that speech. And this is really quite shocking. It is, I think Virgin on the totalitarian because it’s not political speech even it is private speech that didn’t fit the narrative and the government therefore wanted it

Mitch Daniels (28:24):

Suppressed. It is shocking. I mean even more broadly, the original Barrington Declaration point, that protection of the vulnerable was a superior strategy.

Philip Hamburger (28:34):


Mitch Daniels (28:35):

Entirely validated. And yet it was denounced, censored. And

Philip Hamburger (28:39):

It comes back to the natural laws of censorship that I’ve been interested in for a long time. Sometimes censorship is theological as in the 16th and 17th centuries. Sometimes it’s political as today, but either way, it’ll inevitably come back to censoring science, whether it’s Galileo in the past or all the Barrington scientists today, because so much policy and theology turn on understanding of the physical world. And so science has to be distorted. And that of course is a disaster at many, many, many levels.

Mitch Daniels (29:16):

If you succeed in murthy, as I understand it, it will become legal to impose common carrier obligations on the social media platforms, which would cure one problem. Some would say it might give rise to others.

Philip Hamburger (29:34):

So one case is the Murthy case, which is attempt to get an injunction against the government, put censorship there is at the same time in another case, net choice versus Paxton. In the Supreme Court, which I have also been very much involved with, and that involves a Texas common carrier statute. When you use the telephone system, at and t cannot say, oh, you’re engaged in bad. Think we’re going to take away your telephone services. When you send something through FedEx, oh, you’re criticizing the government and your letter to somebody else. Oh, we’re going to take away your ability to transport your letter. They can’t do this. They’re common carriers, right? So the Texas statute, it’s free speech statute simply treats the platforms as common carriers. It’s the gentlest statute in the world because it doesn’t even come with damages. The only implication is if somebody has been censored on the basis of viewpoint, they can bring a suit seeking an injunction or declaratory judgment against the platforms, and then they have to comply.


So there are no damages at all, but the platforms complain. Oh no, it’s our free speech to suppress some sorts of speech. And this is our right because we’re like a newspaper. That’s a little odd. Benjamin Franklin at the founding said that his newspaper is not like a stage coach. He doesn’t have to carry everyone. The people do not have a right to be in his newspaper. That’s true. But the platforms are very much like the stage coaches. They’re the transporters of communication. And this is profoundly important because this is the only way to stop the censorship. Government will always be tempted to use these massive platforms to censor people. It’s as if you had only five printing presses in the country. Well, just a wink and a nudge. And you can get them to suppress people. So the only way to stop the censorship actually will not be injunctions. It took five years to get the injunction, and Supreme Court’s probably going to trim it down. You can’t get damages for past censorship because of qualified immunity. So we’ve got this terrible problem where Supreme Court doctrine actually bars a remedy for past censorship and impedes an effective remedy for future censorship. So the only thing that will stop it is common carrier and common carrier rules that limit viewpoint discrimination on the platforms. So we’ll see. My hope is that the Supreme Court will recognize the facial challenge is inappropriate, but who knows?

Mitch Daniels (32:22):

One can hope. So we’ve talked a lot here about impositions by the administrative state that amount to coercing individuals, states, companies to do things. You said there are more subtle ways of constantly being devised and you’ve been writing about one of them. The title of the work sort of says it all, purchasing submission. But I think we could look at this as if the other tactics are blackmail. This is bribery. How’s it work?

Philip Hamburger (33:03):

Well, that’s right. We have illusions about how we’re governed. We think it’s all by Congress makes laws that bind us and then courts adjudicate them. Well, the Congress isn’t making those laws on the whole administrative state is, but that’s not all it does. We’ve moved from the rule of law made by Congress. The rule of rules may by agencies and then Congress and the agencies can also just offer a little bit of support. It could be the privilege of a privilege, it could be money. And with that just comes a condition limiting when you get the money. But of course those conditions can vary. Some of them are perfectly okay if the government buys an airplane from you and they say, but we’re only paying for it if it flies, that’s perfectly reasonable. But other conditions are a mode of regulation. They tell you you’re going to actually have to submit to sort of regulation that we couldn’t pass ourselves constitutionally or couldn’t get by politically, but we can pay you for it.


And this devolves lawmaking, not really from Congress to agencies, but to a private transaction. You don’t even know who’s subject to it because that’s all a matter of a little contract, if you will, with the government. And of course it allows government to buy off political opposition that would’ve formed an opposition to an administrative rule or legislation. So this is very dangerous stuff. Another problem with the conditions is that many of the conditions are used by the federal government to violate constitutional rights. If government were directly to order universities to set up censorship boards to govern research, everyone would rise up and say, no, no, you can’t do this. So instead they simply say that funding for research and human subjects is subject to the condition that the university have. Something called Institutional review board, which in fact reviews a research in its publication prior to publication to eliminate anything that seems insensitive. So there’s a profound threat to rights through conditions as well.

Mitch Daniels (35:03):

I was curious about your view on these, this other mechanism in which people sue a government administrative agency who is happy, the old line to be thrown in the briar patch and signs a private settlement to do things which again may be a very limiting of the rights of others who were no party to that agreement in this case, no money even had to change hands. They simply signed up for it. Is there a way to stop that?

Philip Hamburger (35:39):

Yeah, it’s a very clever way of governing, isn’t it? And you get the courts to embody these settlements in their decrees. And so if you violate it, it’s actually in contempt of court. This is scandalous way of governing and it’s been done by left and right. If no one has any virtue here, the problem is that one, Congress is the one that should making our laws, not the judiciary. And two judges have a duty, a duty to exercise merely judgment, independent judgment in accord with the law of the land. The judicial power is placed by the constitution of the courts. The judges, in contrast to that power, have this very constraining duty. When they approve these settlements and embody them in consent decrees, they are putting into a judgment that which they know is not the law. It can give money to third parties, it can impose duties that are not stated in the law. And however you slice this, the judges are affirming in their judgments what isn’t law. And this is shocking. It is outside their power and their duty. And we look forward to litigating that.

Mitch Daniels (36:58):

Have we seen, in other words, a constitutionally minded judge could say, regardless of the merits of this settlement, you’ve brought me, I ought not impose it. Right. Have we seen that happen?

Philip Hamburger (37:14):

That has not happened yet, but maybe with a little nudge we can get them there.

Mitch Daniels (37:19):

Well, don’t stop at a nudge. Give ’em a good hard

Philip Hamburger (37:22):

Show. Oh, no, no. We’re always very polite and respectful. We want to persuade. But if you tell the truth to the judges if when it’s very candid about how unlawful this is, maybe some of them will recognize it. And the danger is that so much litigation bends itself to what they think the judges find acceptable. On the contrary, I think judges have to be told that what they’re doing is unacceptable. And then they’ll move a little bit in the right direction.

Mitch Daniels (37:48):

Well, Philip Hamburger, if in fact our freedoms and our respect for process moves in the right direction, you’ll undoubtedly have been one of the prime movers. We’re grateful to you for the work you’re doing. Thank you. And for taking this time to explain it to me and to our

Philip Hamburger (38:05):

Audience. Thank you. I’m most grateful. Thank you. Thank you.

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Leo Katz on Why the Law is So Perverse - Econlib
Leo Katz, professor of law at the University of Pennsylvania, talks with EconTalk host Russ Roberts about his book, Why the Law Is So Perverse. Katz argues that certain seemingly inexplicable features of the law are the result of conflicts between multiple objectives that the law or the courts must trade off against each other. Katz […]
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