In a major decision last week, the Supreme Court overturned the Chevron doctrine in a 6–3 vote.
Critics called Chevron the “Lord Voldemort” of administrative law. So what was Chevron deference exactly? How did it transform the federal government? And what are the implications of this recent Supreme Court decision?
Watch the video:
In this episode, I do a deep dive with constitutional law scholar and Columbia Law professor Philip Hamburger. He’s the founder and CEO of the New Civil Liberties Alliance, which argued the two relevant cases in front of the Supreme Court.
Views expressed in this video are opinions of the host and guest, and do not necessarily reflect the views of The Epoch Times.
FULL TRANSCRIPT
Jan Jekielek: Philip Hamburger, such a pleasure to have you on American Thought Leaders.
Philip Hamburger: Thank you. It’s a great pleasure to be here.
Mr. Jekielek: There’s a couple of recent major Supreme Court decisions in the realm of administrative law. There’s a key one involving the Chevron deference. Please tell us what that means.
Mr. Hamburger: I must say that I knew Chevron was on the way out when my taxi driver wanted to talk to me about Chevron and how bad it was. That was a clear sign to me that Chevron was on the way out. What is the Chevron deference? Without going into undue detail, it was a case involving emissions from plants and a statute that limited the amount of bad emissions. The question was how do you measure the amount of emissions and the statute used the word stationary source. The question was what did that mean?
Of course, no one really knew and the statute didn’t explain it. It was actually a blank. It was a great uncertainty. It was a genuine ambiguity. In its wisdom, the Supreme Court suggested that the court did not have to figure out what it meant, but could defer to the agency in trying to understand what that meant. That developed the so-called Chevron test, in which when one encounters an ambiguity or even just a silence in a statute.
When an administrative agency interprets that by issuing a rule, the courts will defer to that interpretation in certain circumstances, if in fact it’s a genuine ambiguity or there isn’t clarity in the statute, and if it’s a reasonable interpretation or plausible interpretation. That is a little odd because normally a court will take the best interpretation of statute, not just one that somebody proposes that happens to be reasonable.
Mr. Jekielek: Please tell us about this key case.
Mr. Hamburger: It actually begins in the water. If you’re fishing in the Pacific, which has very intensive fishing, there are a different set of regulations. But if you’re in the Atlantic fisheries, which is what this case is about, there’s a regime in which the National Maritime and Fisheries Service sets up councils to determine how to limit fishing, so as to preserve the fisheries. It’s not an unreasonable thing to do.
The question is how do you do it? The agency has rules developed by these councils providing that there should be observers on boats to observe the catch and figure out whether or not there’s overfishing. In other words, rather than send out its own boats to figure out whether there’s overfishing, the agency wants observers on your boat to see what you’re doing. To say the least, this is something of an intrusion on a small boat.
What’s more, the agency requires that you pay for the observers on your own boat. This is a little odd and it’s rather expensive, 700-plus dollars a day. That could turn out to be more than you’re actually earning. But also, the underlying statute doesn’t require this. This is the key point. The statute is silent as to who pays for these observers in the Atlantic fisheries.
The owner of the Relentless and some other boats in Rhode Island and Massachusetts sued. They said, “We shouldn’t have to pay for your observers. You want to have observers on our boats, that’s bad enough. But then you want us to pay for it, which is really outrageous, particularly since we can’t afford this. What’s more, the statute doesn’t require this.” The agency comes back and says, “There’s a silence or ambiguity, and the court should defer to our interpretation. That’s the crux of this issue.
Mr. Jekielek: Forty years ago, do you think the court had any idea that their decision would turn into this very wide-ranging Chevron deference?
Mr. Hamburger: It seems rather doubtful. They probably didn’t quite understand what would happen to it. They undoubtedly thought they were developing a little piece of doctrine, but they didn’t realize it would become an entire judicial regime in which the role of judges would be changed, no longer exercising independent judgment, but deferring to executive agencies as to what the law is. It’s quite improbable they understood that. If they had thought of that, they would have written the opinion rather differently, because they would have anticipated the host of problems that have since arisen.
Mr. Jekielek: What problems have developed?
Mr. Hamburger: We’ve now reached a situation under the Chevron deference where any agency that can find an ambiguity or silence in a statute—which most statutes are filled with—and that wants to get something done that it has not been authorized to do by Congress, can scour its statutes to find the ambiguity or silence. Then they can say, “Aha, there’s an ambiguity. Aha, there’s a silence. Therefore, we can issue rules interpreting that ambiguity or silence, and the courts have to defer to us, if it’s not too unreasonable.” The net effect is a double one. One, it empowers the agencies to do all the interpretation of the law and decide what the law is. It profoundly changes the role of the judges and profoundly empowers agencies.
Mr. Jekielek: There’s a third consequence. The way Congress approaches lawmaking actually shifts.
Mr. Hamburger: Yes, there are these unusual secondary effects. Indeed, one of them is that Congress observes all of this and thinks, “We don’t have to amend our statutes. In effect, the agencies will do it for us.” It’s like much of so-called administrative law which actually infantilizes Congress. I don’t think Congress is actually incapable, but there’s a great danger that if you relieve it of its responsibilities, it will just put its feet up, have a drink, and watch the world go by. That’s what it has done.
Mr. Jekielek: That’s quite an indictment. Please explain this for us.
Mr. Hamburger: If you tell a small child that they don’t have to do the dishes or don’t have to clear the table, they’re not going to fight you on that. If you tell an able-bodied adult they don’t have to earn a living, they will say, “Okay.” If you tell Congress that they don’t have to think about amending the laws or adjusting them or approving them every now and then, they will find other things to do like fundraising and socializing and trying to get reelected.
It used to be that congressmen and women were actually quite able legislation drafters. Draftsmanship and the compromises that go into drafting statutes were a large part of what they did and they were quite proud of it. This wasn’t that long ago. But Chevron profoundly undermines that. It leaves us with a Congress that can focus on things that seem important to them, like the fundraising and less sober dealmaking.
Mr. Jekielek: I’ve seen a huge range of different interpretations of this decision. What exactly was the decision and what are the implications, in your view? Some say it’s a small thing, some say that no one will listen to experts anymore, and some say that administrative law has been totally upended.
Mr. Hamburger: I suppose there is a half truth to each of those statements. It is a very important decision, because as Justice Roberts said, “This is recognizing our mistake.” It is admirable for a court to recognize its errors, particularly the Supreme Court, because there’s no appeal from the Supreme Court to another court. That’s good, and that should be recognized as an important event.
Will it actually change much on the ground? That is less clear. Why do I say that? For one thing, I know some administrative law experts who are confident that most agencies have already adjusted. Ten years ago, the Supreme Court stopped following Chevron. Some lower courts continued to follow it. But for ten years, it’s already been the walking dead. In a sense, this is just a coroner’s certificate, and we already knew that the thing was dead.
Mr. Jekielek: Please explain that to us a little more.
Mr. Hamburger: About 10 years ago, beginning around 2014 to 2015, the Supreme Court no longer relied on Chevron and its decisions. There were hints from some of the justices that they understood that there was something deeply wrong with this doctrine that undermined the rule of law and the nature of what a judge is, and that gave the agencies power that the Congress hadn’t given them, and so they stopped following it. Some less sophisticated circuits, like the Federal Circuit, followed it a year or two ago. But many circuits had already tried to weave around it.
On the whole, it has been of greatly diminished significance for the last decade. In that sense, it already didn’t really matter that much. Now, I don’t think it actually matters that much for another reason. I don’t want to downplay it too much, but this is not an earth-shattering change. In a sense, this is not an attack on the administrative state. It actually holds administrative ideals.
If you think about what legitimizes the administrative state and administrative lawmaking for the 20th century, it has always been that there has been prior legislative authorization and subsequent judicial review which sandwiches administrative power and is meant to be very reassuring. Even if administrative power is a deviation from the Constitution, we’re told not to worry about it. Congress has authorized it, we have democratic authorization up front, and you have the independent judiciary reviewing it afterwards, so there’s a degree of safety in all of this.
Chevron undermined all that. Chevron said, “Okay, agencies, you can make regulations without Congress intending for you to do so. The judges will defer to that rulemaking and that interpretation. “ This is even when the judges would have reached another decision about what the law was if they had acted independently. Chevron undermines the protections that justify administrative power both before and after the fact. One could view this as actually restoring the justifications for administrative power.
In which case, this isn’t really an attack on administrative power. It gets rid of the excesses of administrative power beyond its justifications. Now, I’m a little skeptical even of the justifications, but it does make some sense that if you’re going to cut back on administrative power, you’re going to do it in a way that actually restores administrative ideals. That is what happened here.
Mr. Jekielek: That’s one side, and you said there is a half-truth on the other side as well.
Mr. Hamburger: The half-truth is that there’s a degree of truth-telling here from the court. Chevron was based on a fiction, and countless scholars and judges have called it a fiction. The fiction was that Congress, through ambiguity and silence, intended agencies to exercise extra rulemaking power. Everybody knows that was just a fiction. Since when is silence really authorization? Since when does ambiguity mean authorization, if it’s genuine ambiguity?
It’s healthy to have a court recognize the truth and simply to say, “No, this was a mistake. This was based on fiction. This doctrine was wrong.” That’s actually reassuring for Americans who want judges who don’t mind telling the truth and don’t mind saying. “We were wrong.” In any organization, if we made a mistake, we would be called on it. The most immature thing you can do is to say, “No, I didn’t make a mistake.”
The mature thing that all adults learn to do in this country is to say, “That was a mistake. I’m going to fix it. I’m sorry.” Perhaps that’s also a worthy thing to have happened in the judiciary. It’s good that they can be mature enough to say, “Yes, we made a mistake and we’re going to fix it.”
Mr. Jekielek: You have written a lot on administrative law and ask the question if administrative law is in fact lawful. This is a subject that you have thought about quite a bit. Please tell us about your background.
Mr. Hamburger: For a long time, I was just an historian. I studied 17th century English law, slowly moved my way into 18th century America, and then 19th century America. I didn’t focus on administrative power. I didn’t really pay much attention to it. But by a series of accidents, it got my attention.
Administrative power was being used to censor my friends in the sciences and social sciences. For three years, I didn’t want to pursue it. I thought, “Let someone else inquire into that, because administrative law is boring.” But eventually I got into it and started studying it. After studying that particular area involving institutional review boards, which have a very bad effect on the study of science, I then began to realize that there’s an interesting relationship between history and modern law.
It’s not a matter of original intent, it’s not about that, but there are certain patterns in governance. When a system of law is established with constitutional limits, those in power always seek to expand beyond those limits. One of the standard ways of doing that is to create parallel institutions to create a system of control that’s not law but a set of rules or other modes of control. That was true in the 17th century and it turns out it is also true today.
That led me to a clear understanding of administrative power that turned out to hit a nerve and to be persuasive to people. Actually, it’s a series of evasions. If you have a system requiring you to rule by law, perhaps if you want more power, you want to rule by rules. Then if you don’t like that, you rule by subtle threats and other modes of persuasion. There is a cascade down from elevated modes of governance to less elevated modes of governance with less accountability. That turned out to be fun to write about. I ended up being very involved now in contemporary administrative power which is a lot of fun.
Mr. Jekielek: I was wrong in thinking it was boring. But laws are also rules, correct?
Mr. Hamburger: Yes, but they are rules made by the constituted authority, namely Congress. Then we have mere rules, which are not laws, and those are made by agencies. When they find it too frustrating to make a rule, they will give you guidance. When they don’t want to issue guidance because they don’t even want to say publicly what they’re doing, they‘ll have a little conversation with you and they’ll make a threat of regulatory harassment.
Then there really is a decline to ever less lawful means. Administrative law as it’s taught is a very elevated thing of this notice and comment rulemaking. It’s not quite law but at least it’s about those rules and all types of restraints. If the administrative state stuck with that, it wouldn’t be so worrisome. But unfortunately, all the guardrails have fallen aside. It’s important at least to restore the administrative ideals and I would say to restore the rule of law.
Mr. Jekielek: You’re saying it’s important for administrative agencies to play their role and this can be helpful to guide them.
Mr. Hamburger: If we’re going to have an administrative state, and some people think that’s inevitable or desirable, it surely should work through rules, not lesser means of control, and it surely should do it with congressional authorization. This case and another case, Garland v.Cargill, which we litigated, reinforce that there are statutory bounds and agencies should work within those. It’s not too much to expect.
Of course, it’s very important for the judiciary because the judiciary’s central role is for judges to exercise independent judgment about the law of the land. That tradition of independent judgment is something I spent years studying and writing about. I traveled up and down the Atlantic coast looking at old archives and finding old constitutional cases from the 1780s in the States. It turns out that early Americans were well aware of this tradition of independent judgment.
That’s the foundation of cases such as Marbury v. Madison, where Justice Marshall said that it was the province of the judges to interpret and exercise independent judgment. The case Loper Bright and the Relentless cases decided this week in overturning Chevron hark back to Marbury v. Madison. Justice Roberts decided it on statutory grounds. He says that the Administrative Procedure Act, requiring judges to decide questions of law, is merely reflecting this age-old tradition where judges exercise their own judgment. The moment they defer to someone else’s judgment, they are not being judges.
Here it actually gets quite interesting. For a long time, people thought that Chevron was a separation of powers problem. There are a thousand law review articles on the constitutional problems involving separation of powers. But it became important to ask another question, “What does it do to litigants in court?” What happens in court is very disturbing, because usually the government is bringing an action against an individual or company. In other words, these are regulatory enforcement actions by agencies.
In other words, the agency is one of the parties, and an American is the defendant. In those circumstances, what does the Chevron doctrine do? It tells the judges that they should prefer the legal position of the agency, the government, in a dispute with any American.
The net effect is systematic judicial bias in favor of the government against others in judicial proceedings, even when you get to court on review. That’s actually a due process problem and it is scandalous.
That was one of the problems that helped turn the judges away from Chevron. They don’t want to admit that, of course, because then a lot of other deference doctrines fall. But we can’t have a judiciary being biased in its proceedings. That’s of central importance here, and the Supreme Court realized that it doesn’t want to be engaged in judicial bias in its cases.
Mr. Jekielek: What are the broader implications now? One of the criticisms is that the experts have been disempowered and no one will listen to experts anymore.
Mr. Hamburger: I’m not sure that is really true. First of all, in interpreting statutes, the judges are actually the experts. To the extent this is about ambiguity and silence in a statute, the experts are the judges. But what about the experts in policy, which is what those concerns really focus on? The experts in policy are still there. They may be in the agencies, they may be in the private sector, and they'll still have a voice. The question is, will they first be authorized by Congress or not?
When a judge encounters a genuine ambiguity they can’t resolve through statutory interpretation or silence in a statute, what that judge now needs to do is simply say, “The statute doesn’t say anything on this.” The net result of that is that Congress then will have to come in and say, “We’re authorizing the agency to make rules on the subject. In other words, they are allowing them to rely on its experts to develop rules and do exactly what they were doing on Chevron. The only difference is Congress will have to come in and authorize that, which is actually of some importance, because that’s actually a fundamental justification for having administrative rulemaking, that there’s a statute underneath it.
In some sense, this actually buttresses administrative power. It certainly doesn’t remove expertise. It simply requires Congress to authorize that process of agency rulemaking depending on their experts. Mind you, the expertise vision of administrative power is out of date. That prevailed in the mid-20th century. Justice Kagan, when she was a law professor, wrote a very well-received article called “Presidential Administration,” in which she points out that the policies adopted by agencies are increasingly reviewed or directed by the White House.
These days we see all of government administrative power cutting across agencies. Ultimately, presidential politics and power drives most rulemaking of any significance. If something really matters, the White House involvement will always be there. These days, it’s hard to talk about administrative law resting primarily on expertise. That’s not to say there isn’t expertise, but as Kagan’s scholarship shows, this is largely driven from the White House these days, and that’s not about expertise. That’s about presidential politics.
Mr. Jekielek: It has been ten years that this Chevron doctrine has been downplayed, especially at the Supreme Court level. But you have all sorts of other deference doctrines.
Mr. Hamburger: You could call them the children of Chevron, but some of them predate Chevron. They’re all named after various cases; the Mead-Skidmore deference to informal guidance and interpretation, the Kisor-Auer deference to agency interpretations of their rules, the Stinson deference, and the Griggs deference. There are all these little deference doctrines. One might ask, “What’s going to happen to them?”
Mr. Jekielek: But even with Chevron, there are rules that have been made by agencies that are now in question.
Mr. Hamburger: Let’s talk about the agency rules. Yes, there probably is some indeterminate amount of agency rulemaking that depends on Chevron for its authorization. How much there really is, I don’t know. At a recent conference there was a rather strong opinion from very distinguished academics, that in fact the agencies had already adjusted, that in fact they were not as dependent upon Chevron as they used to be.
I don’t know myself and that’s not something that I’ve studied. But I suspect it’s somewhere halfway in between. There will be some rules that are dislodged. That simply means that Congress will have to come back and provide extra authorization for the rules or adopt them itself by statute. There will be other instances where the agencies have found other mechanisms to accomplish their policy, and they’re not dependent on Chevron.
Mr. Jekielek: There would also be examples where Congress doesn’t like the rule.
Mr. Hamburger: Right. There will be some instances where Congress won’t adopt the rule, that’s true. But that’s our political process. This is actually an important matter. There’s scholarship by Michael Rappaport and John McGinniss, which shows that policy adopted by Congress is apt to be relatively moderate because it involves back and forth and compromise, which used to be the hallmark of congressional conversation. When legislation or rulemaking is passed off to agencies, which Chevron puts on steroids, there is a risk that the regulatory policy will be relatively extreme, because it is driven by White House control.
This is problematic for a number of reasons. One, one might distrust extremes, and that’s not unreasonable. There’s a lot to be said for compromise. Not everyone sees the truth. One needs to talk to other people.
But the other danger is that when all the regulatory power of the federal government is in the hands of agencies under some degree of control or restraint by the White House, then everything turns into a presidential election. Too much turns on it. This is one reason why presidential elections have become warfare. Presidential elections become existential events. This leads to all sorts of misbehavior from all directions, and that’s a disaster for the country. It’s tearing us apart.
Therefore, there’s a lot to be said for not having so much depending on presidents, but more on representation in Congress. To the degree that Chevron has shifted power to agencies under presidential control, again citing Elena Kagan, one might worry that that’s been very dangerous and it’s exacerbated the tensions in the country, so it’s very healthy to pull back from that. Getting rid of Chevron does that. That surely is wholesome.
Mr. Jekielek: A Texas state senator said that there was a lot of anticipation in industry that Chevron would be struck down, and that the lobbying dollars were shifting to the states.
Mr. Hamburger: I would have thought there would also be a shift to Congress. In fact, I’ve argued to congressmen and their aides that if they want to raise more money, they should actually do more lawmaking and take up their constitutional responsibilities. That didn’t seem to move them. I would have thought, “Yes, lobbying money would shift to the representative bodies, Congress and apparently also the states.” I didn’t know that. The danger is that a lot of the influencing that goes on involving large corporations in particular are through the agencies.
The agencies have very close relations with the large corporations. That’s at the cost of others, including small businesses or medium-sized businesses, and also the public. The progressive story was that agencies would control big business. I don’t know if it works that way. There’s some evidence that big business influences agencies. Who controls who? I don’t know.
Mr. Jekielek: Let’s talk about these other deference doctrines. Actually, one of them was challenged when it came to Securities and Exchange Commission [SEC] v. Jarkesy.
Mr. Hamburger: Let’s talk about the deference doctrines, and then let’s talk about Jarkesy, just to break it up into parts. There are other deference doctrines. They run by the names of their cases and there are usually pairs of cases, like Mead-Skidmore.
Mr. Jekielek: As a reminder to our viewers, a deference doctrine means that the judiciary gives preference to another interpretation.
Mr. Hamburger: Right, which is rather troubling. It categorically favors one party’s legal position over another, which is very odd, and actually unconstitutional, because it denies the rest of us due process. There are other deference doctrines. There’s the Kisor-Auer deference, a deference to agency interpretations of their own rules. There’s the Mead-Skidmore deference to informal agency interpretations, including guidance, the Stinson deference, and Griggs deference.
These are all little mini-deference doctrines, and they all suffer the same basic problem, which is that the judges are giving up their own independent judgment and giving a leg up to one party, and it’s always the most powerful party, the government. This is not the way judges are meant to act. Loper Bright, and Relentless, these two cases didn’t resolve the fate of those deference doctrines, but it does hint that they also have to be cast aside.
Two other deference doctrines did go by the wayside. There is one called the City of Arlington deference, where a court will decide the boundaries of its own jurisdiction. There’s another one called Brand X deference, where agency interpretation will defeat a court holding, which is astonishing. These were both mini-versions of the Chevron deference. These are applications of Chevron in extreme circumstances. Those have fallen as of this week. However, I will defer to the future to worry about those, that can all wait.
Let’s talk about Jarkesy. The SEC v. Jarkesy case presents itself as a jury case, and that in itself is already profoundly important, because so much of what’s at stake in these cases are our constitutional rights vis-à-vis the administrative state. The administrative state is often thought to be a matter of separation of powers, but it’s actually a great threat to our civil liberties. An administrative adjudication has more or less wiped out our Seventh Amendment civil jury rights.
Mr. Jekielek: Please explain that for us.
Mr. Hamburger: When the agency wants to pursue a case against you for violating its rules, what will it do? It could go to a district court, and the Securities Exchange Commission was one of those. It could go to a district court and say, “The Justice Department will enforce the regulations against you in front of a real judge with a jury and all the panoply of constitutional rights you have as a defendant.”
But as an alternative, the SEC could also say, “We’re just going to prosecute you in-house in front of our administrative law judges, who aren’t really judges, they’re just employees of the agency.” Not only are they not real judges, but they also don’t provide juries. When the SEC found that it was prevailing better in its own in-house court rather than in the real courts, around 2014 it was actually quite candid in suggesting it would just switch more cases from real courts to its own courts, where indeed they have something like a 99 percent victory rate.
This is a problem for many due process reasons, but also for jury rights reasons. The Jarkesy case challenged the denial of jury rights, and blessedly the Supreme Court recognized jury rights. There was some risk under a prior case called Atlas Roofing. They would simply say, “When the government proceeds against you administratively, you don’t get jury rights,” which was astonishing.
Now, this is relevant for Chevron because generally there are two types of deference. Courts defer to agencies on questions of law and that includes Chevron deference, but they also defer to agencies on questions of fact. When an agency proceeds against you with its own in-house proceedings without a jury, the administrative law judge, an agency employee, creates an administrative record, writes up what he thinks the facts are, and that becomes the facts of the case. The judges will defer to that, so it doesn’t go to a jury or even to a real judge.
The case overturning Chevron didn’t deal with fact deference. It was decided on narrow enough grounds where that wasn’t affected. But the restoration of jury rights in the Jarkesy case means that increasingly cases will come to the courts with a jury, and therefore, there will be no room for fact deference to the agencies. We are seeing a restoration of the judicial role, both directly as to deference to law and indirectly to the restoration of jury rights. That is profoundly important.
Mr. Jekielek: Fact deference is an unusual term, because it is deferring who decides the facts. In recent years there has been a lot of debate about what the facts are and what is disinformation.
Mr. Hamburger: The funny thing is that under the regime that existed until this week, if you were prosecuted by the SEC in its own in-house proceedings, and then you appeal to a court, you actually petition to a circuit court, you’ve got two problems. There’s deference to the agency on the law and there’s deference to the agency on the facts. In law school we’re taught that there are two ways to win—either on the law or the facts.
Apparently, the court will be biased against you on both grounds. Therefore, it was very desirable that the Supreme Court backed away from that sort of injustice. It was a gross violation of due process,so it’s very gratifying to see it being more centered and going back to its traditional role of actually deciding cases for itself.
Mr. Jekielek: Both of these cases together have a much more significant impact.
Mr. Hamburger: The cases actually restore each part of government to its own role. The courts now will be deciding with their own independent judgment what cases come before them. The executive agencies will be confined to making rules within their scope of congressional authorization, and Congress will have to authorize rulemaking if it wants it to happen.
Whether this goes far enough is another question, but overall, this is highly desirable. If one wants to have an administrative state that’s defensible, that doesn’t look like an assault on people’s constitutional rights and on the structure of the government, you have to have each part of government more centered in its traditional role. That is what happened this week.
How will this impact Congress now? We‘ll see. Hopefully, Congress will be resuming its role of authorizing agencies to make rules. I’d rather see it resuming its real constitutional role of actually making the law, not handing it off to agencies. But if they’re going to hand off rulemaking to agencies, so that agencies do the regulation, it should be authorized by Congress. That will be a pressure on Congress to actually get back to its legislative function. That’s a good thing.
Mr. Jekielek: You founded the NCLA [New Civil Liberties Alliance], which has had a number of cases in front of the Supreme Court recently, including the ones related to Chevron deference. Please tell us about the NCLA.
Mr. Hamburger: The NCLA is a civil rights organization that sues administrative agencies to reduce their unconstitutional power and defend our civil liberties. We go equally after each administration regardless of its politics, but also strategically go after types of power that cut across agencies that are unconstitutional. It’s a little improbable that I’m involved with it, because before, I just studied history .
But about six or seven years ago I became interested in contemporary litigation, and I ended up founding this organization. To my astonishment, it’s actually been quite successful. We have three cases in Supreme Court this summer, and we’ve already been able to make a real difference, which is nice.
Mr. Jekielek: Again, this has been a very informative discussion. A final thought as we finish up?
Mr. Hamburger: None of this is settled. Every case is not the last word. It’s a continuing conversation for all sides. Rather than see the Jarkesy case or Loper Bright or Relentless as resolving this, it’s an invitation for those who disagree to bring better arguments and for those who agree with the cases to buttress them and reconsider the alternatives.
The conversation is what lawyers and judges do. It should be done moderately and with full respect to the opposing points of view, all of which are very reasonable. That means that one can never say that there will be a settled point when this is finished, and the conversation is over.
Mr. Jekielek: Philip Hamburger, it’s such a pleasure to have you on the show.
Mr. Hamburger: It’s a great pleasure to be here. Thank you so much.
Mr. Jekielek: Thank you all for joining Philip Hamburger and me on this episode of American Thought Leaders. I’m your host, Jan Jekielek.
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