A Libertarian Legal Perspective on Vaccine Mandates
2021-09-20 · Guest: Bob Levy (Chairman of the Board, Cato Institute) · 52:32
Constitutional and Libertarian Perspectives on Vaccine Mandates
This podcast episode features host Bob Zadek interviewing Bob Levy, Chairman of the Board of Directors of the Cato Institute. They discuss the legal, constitutional, and philosophical implications of the Biden administration’s vaccine mandates, particularly the use of OSHA to regulate private employers. They explore libertarian principles regarding personal autonomy versus the prevention of harm to others, the limits of federal power, and the constitutional “non-delegation doctrine” as it relates to the growing administrative state.
Topics: Vaccine Mandates, Constitutional Law, Libertarianism, OSHA, Administrative State, Non-delegation Doctrine, Personal Autonomy, Federalism
Speakers:
- Bob Zadek: Host of The Bob Zadek Show
- Bob Levy: Chairman of the Board of Directors, Cato Institute
Intro and Guest Intro [00:00]
Bob Zadek: Good morning, everyone. Welcome to the Bob Zadek Show, the longest-running live libertarian talk radio show on all of radio. We are this Sunday, and always, the show of ideas, never once the show of attitude. We take pride in this show, especially in our very careful selection of guests. We have a principle we always have and always will have, which is driven by just how I interact with people. I find when I discuss matters of importance, or even not so importance, I find somebody’s opinion as a free-standing concept—an opinion standing alone—to be, well, I must confess, kind of boring. Everybody has an opinion, so just learning an opinion is not all that interesting.
What is to me intensely interesting, fascinating if you will, is how that opinion was formed—the why, the reasoning behind the opinion. Once I and my guest, my friend, whoever I’m speaking to, explains why we feel that way, then each of us can roll up our sleeves, dig deep, and determine whether our opinion ought to be changed based upon the reasoning supporting the other opinion. So you will hear this Sunday, and always, we emphasize the whys—why one feels the way one does. And that is what I hope you will find, as I have found, so interesting.
This morning’s guest is, needless to say, no stranger to me. I have known our guest, Bob Levy, for quite some time through my interaction at the Cato Institute. Bob is the Chairman of the Board of Directors of Cato Institute, and his name is found at the Robert A. Levy Center for Constitutional Studies. Bob joined Cato a number of years ago after becoming an attorney, and that was preceded by a life, a successful life, in business. Bob caught my attention recently when he published a piece relating to vaccine mandates, and it was subtitled “A Liberty-Minded Perspective.” That caught my attention because I knew there I would find not simply yet another opinion on the mandates, but the reasoning—in this case, a liberty-minded reason supporting the opinion. And I thought it would be my duty, indeed, and my pleasure to invite Bob to join me this morning to a discussion of what is going on in the country right now with the vaccine mandates, most specifically, but not exclusively, the reasoning behind the constitutionality of and simply the appropriateness of President Biden’s seeking to impose the mandate. But that’s not quite true; we’ll get into that—imposing a mandate on a large group of employers in our country, requiring the employers to either see to it that their employees are vaccinated or are tested on a weekly basis.
That mandate, if you will, has profound constitutional issues. And it is always astonishing to me that after 240-odd years, we can find important constitutional issues still unresolved in our country. It makes the study of the Constitution ever so much more interesting. But to help us put the Biden attempted mandate in context, not from a medical perspective—that we leave to others—but from a standpoint of what it means in the tension between the government imposing its will upon us and our right to live our lives the way we want, to put all of this in context, I’m happy to welcome Bob Levy to the show this morning. Bob, good morning, and thanks so much for joining us.
Bob Levy: It’s great to be with you, and thanks for the invitation.
Libertarian Principles and the Harm Factor [06:29]
Bob Zadek: Now, Bob, to put this in context, you and I are libertarians, self-identified as libertarians. So being a libertarian means adopting and respecting just a few core principles. And these are the principles that help us form our opinions on whether behavior, particularly governmental behavior, is appropriate from a liberty standpoint and is also constitutional. So in so far as a conversation involving the mandate, and with some particularity what Biden is attempting to do through OSHA—we’ll get into that—what are the starting principles, only a few of them are relevant, what are the starting principles which will probably govern this conversation this morning?
Bob Levy: Of course, the core libertarian principle is the right to live your life as you choose, as long as you don’t inflict harm on others. So personal autonomy is at issue when it comes to the vaccine, particularly since we’re talking about the injection of a medical substance into our body. On the other hand, it’s always been a core libertarian principle that your right to punch ends where my nose begins. And so the controversy boils down to this: if the vaccine doesn’t cause any injury to the person who’s being vaccinated, can that person refuse to be injected, notwithstanding that his refusal might visit some risks on other people?
And frankly, this is a close call. You know, most libertarian questions fall comfortably on one side of the line or the other. This is a close call. Even those who resist government intervention, as libertarians typically do, will endorse rules that bar persons from violating the rights of others. And the persons harmed are not just those who refuse the vaccine. There are at least, I think, three other classes of persons harmed.
The first is those who can’t be vaccinated. They don’t refuse; they’d like to be, but they can’t be for medical reasons. And then, of course, they could contract COVID from an unvaccinated person. Second are those who can’t obtain medical treatment for other ailments because unvaccinated COVID patients have strained the capacity of hospitals and equipment and staff. And as we know, almost all of the hospitalizations for COVID are unvaccinated persons. And by the way, as an aside, I went through that experience a week ago. I had to go to the hospital for something unrelated to COVID. I spent two full days in the emergency area because there were no hospital beds available under general admission. So it is a very serious problem caused by those who are, for the most part, unvaccinated.
And the third group that’s harmed is people who either have been or may be afflicted by this new Delta variant, which probably would not have mutated if we had a larger percentage of the population that had been vaccinated, especially if we had reached herd immunity. And by the way, you know, the class of unvaccinated persons, it may be relatively small, but it does currently include all kids under the age of 12. And quite a few of those kids are now experiencing some more serious problems because of the Delta variant. So I think it’s plausible to argue that a pristine libertarian perspective that your personal autonomy may not be violated comes into question when, in fact, you are causing harm to lots of other folks.
The Scope of the Biden Mandate [11:52]
Bob Zadek: Now, of course, we are not talking about, and cannot talk about—it just is not permitted—we are not talking about, when we use the phrase “mandate,” the government mandating that somebody get vaccinated. While that is not perhaps totally free from doubt, it is 99% free from doubt—that is an informal calculation which I have made, not an exact calculation—but it is probably pretty clear that the government cannot mandate that an individual get vaccinated. So the mandate cannot be “the government requires you to be vaccinated.” The government can, for example, in some degrees deny you access to the general population—for example, schools, obviously—unless you are vaccinated. But that is a bit different from imposing a vaccination. So we are not talking about requiring school children to be vaccinated as a condition of attendance at school; we’re past that, and we accept that as being an appropriate use of the power of government, the school system. So we’re not discussing that. But we are discussing something a bit different. We are discussing this OSHA-driven mandate.
So Bob, tell us about—since the government can’t require mandates, tell us what Biden is attempting to do. It’s a bit novel to indirectly impose a mandate without mandating vaccination. And why did he choose OSHA of all governmental organizations? OSHA has nothing to do with public health and safety—well, it’s safety a bit, but not public health per se. So what is Biden trying to do, and why pick OSHA?
Bob Levy: Okay, let’s start with the Biden proposal itself. It covers all federal employees, and it covers private companies that employ more than 99 persons. So I think it’s legal for federal employees to be imposed upon as a condition of employment. So the government, as any other private employer, is entitled to impose reasonable conditions of employment on those that it hires. Arguably, it’s legal to impose on private parties if those private parties are quasi-state entities, and that would include parties that receive a huge amount of funding from Medicare, for example, or Medicaid. And the government could say that as a condition of receipt of that funding, since the government wants its money spent wisely, it could require employees of those hospitals, for example, to be vaccinated. The same is true with respect to certain other federal contracts. There, it’s a little fuzzier because we don’t know the extent to which the federal contracts represent a significant portion of the company’s business.
Five Legal Challenges to the OSHA Mandate [13:25]
Bob Levy: But the real question arises for other private employers, not employers that are dependent upon federal money for their sustenance. And there, I would make five arguments that I’ll simply summarize right here because each of these we can discuss more fully, that suggest that such a mandate is not permissible as a legal matter.
First, I would argue that Congress cannot delegate such broad power to OSHA. Second, even if Congress could delegate such broad power, I would argue that it did not, and that’s a question of statutory interpretation. Third, I would make a case that it’s the states that, under our system of government, have what’s called the police power—that is, the power to impose regulations regarding health and safety. It is not the federal government; it is the states. Fourth, to the extent that the feds are saying that this mandate is simply a regulation of interstate commerce, I would make the argument that a health mandate is not a proper exercise of the commerce power. And of course, we have support for that in the Obamacare case, where the court did decide, even though it validated Obamacare under the taxing power, the court decided that the mandate to buy health insurance was not an appropriate exercise of the commerce power. You cannot mandate people to engage in commerce so that then you can regulate them for having engaged in commerce. And then finally, I would argue that this mandate on private employers is impermissible because the feds are not permitted to commandeer private parties—in this case, private corporations—to do what the feds themselves cannot do. And the feds, in my view, do not have a power that entitles them to mandate vaccines nationally.
Bob Zadek: And I should note, Bob, that as you say, the vaccine mandate is not actually a mandate because the employers have the option, for example, of conducting weekly tests. And by the way, the administration is going to argue that those tests are far less invasive than a vaccination itself, and also those tests don’t raise religious freedom questions. But I would counter-argue that those two assertions are not relevant to the five points that I raised in terms of the legality of the mandate on private employers.
Bob Zadek: And what’s so interesting about—thank you so much for those five points, because those five points are literally a semester’s worth of work in constitutional study. But just to highlight a few of them, OSHA—you would say to yourself, why did Obama pick OSHA? This agency which is in charge with enforcing workplace safety and having wires where people can trip over them and the like—why OSHA? Well, because when the federal government wants to do something and it wonders if it has the power, it pokes around and sees what piece of legislation Congress may have enacted, not with a pandemic in mind, but which is broad enough, as Congress often does in its laziness—and perhaps intentionally—to delegate. We’ll get into delegation in a moment; that’s an important verb in discussing this topic. But where Congress just says, “Okay, we’re going to create OSHA, make everything safe,” and they give these broad mandates to an administrative agency, and the agency then has great latitude to interpret a broad statute any way they wish.
So here you have this package of broad rights laying around since, I think, 1971, and some wise person in the White House dusted that off and said, “We have the perfect solution. Let’s use OSHA’s broad power over workplace safety, and let’s do that.” That’s rather cynical. I dare say if the members of the House and the Senate were sitting around today, they would confess they had no idea that they were empowering OSHA to do what Biden wants them to do. But there we have it. So now we have OSHA, which is requiring that employers do what the government doesn’t have the power to do directly, and that is the commandeering that Bob mentioned a second ago.
The Concept of Endangerment and Risk [22:08]
Bob Zadek: So now, there are several issues. There is a serious constitutional question yet to be decided on whether OSHA has the power. As the press has pointed out, there are a large number of examples where OSHA in the past, taking advantage of the broad instructions Congress gave it, enacted regulations that were struck down. OSHA’s regulations are more frequently than other agencies’ regulations struck down as being overreaching. There was a time that OSHA tried to regulate ergonomic chairs in offices, and that was struck down. So it’s suspect to begin with. But the question is whether or not that is good policy. Putting aside the serious constitutional questions involving commandeering and administrative agency overreach, the question is whether that is good policy. And that involves, as a policy matter—because we are discussing, as I said, a lot of whys—we are discussing imposing behavior on some employees for the greater good of many other employees. And Bob, it’s a, as you said, it’s a close call.
So looking at just giving it a libertarian scorecard, tell us step-by-step how you reach your own conclusion as to whether, putting aside constitutionality for a moment—I hate to say that because I never want to put aside constitutionality, but I’m going to say it only for the purpose of my question—putting aside constitutional limitations for the moment, as a pure libertarian scorecard, how do you come down on the principle behind trying to use the workplace to force workers—sort of force, “force” is in air quotes—to get vaccinated or undergo some meaningful inconvenience of being tested every week? How does it come down on the scorecard?
Bob Levy: Well, there’s a principle in constitutional law known as strict scrutiny. Basically, it describes the hoops that government has to jump through in order to justify regulations of fundamental rights. And of course, personal autonomy is a fundamental right. And that strict scrutiny has a number of aspects to it. First is government has to show there’s a compelling need for the regulation, in this case for the mandate. Second, it has to show that the regulation is not going to cause any harm and it will be effective in accomplishing its objective. And third, it has to show that there’s no better way to do it without violating personal autonomy.
But before you even get to that, there is a controversy in law about the extent to which it’s appropriate to regulate activities that haven’t created any injury whatsoever. And this is the issue of whether you can address past injury versus the possibility of future injury. So punishing aggressive acts that have already caused damage—we do that all the time; government does it. It’s more complicated, however, when government compels conduct—in this case, getting vaccinated—that might minimize or reduce harm that hasn’t yet occurred. This is an area of the law called endangerment, where it’s difficult to apply a rights theory.
So an example of this might be speed limits. You know, we have speed limits, and libertarians for the most part don’t object to speed limits. But at the time that the limit is enacted, nobody’s caused any harm. It’s only when the limit is violated and there’s—even then, most people break the speed limit and don’t cause harm, but it does increase the risk to innocent bystanders. Safety requirements for nuclear power plants—I mean, surely we wouldn’t argue that you have to wait for an explosion to occur before you go after a company for having caused that explosion with inadequate safety procedures. So the real question boils down to how much risk do I have to put up with before you can engage in activities that, while you’re not harming me at the moment, you’re taking measures that might harm me in the future? It’s very difficult to resolve that question based on rights. And so we sometimes have to look to these cost-benefit tradeoffs, utilitarian calculations. And that’s where safety, efficacy, and reasonable alternatives come into question. And we can discuss each of those, if you like. Those are, I think, the three key factors: is the vaccine safe, is the vaccine effective, and couldn’t we have accomplished the same thing by some other means?
Market Alternatives: The Insurance Solution [25:28]
Bob Zadek: And what’s interesting to me is—so we are talking about trying to influence behavior, or in this case the government imposing behavior, in order to reduce the risk, not to stop somebody from being harmed, but to jiggle the odds, to reduce the risk. And the statistical resulting risk is not—that’s for the political process. Is 60 miles an hour the right number? Nobody knows for sure; it kind of seemed right, it’s as good as we’re going to get, so let’s make it 60. And if somebody wants to drive 70, they’re inconvenienced; well, that’s just too bad. The inconvenience of being limiting your speed to 60, you’ll have to just suck it up.
So now, what occurred to me is, Bob, and your thoughts: wouldn’t it solve all of these issues, satisfy libertarians, satisfy the government, take care of to some degree the overcrowding of hospitals which inconveniences people like yourself who cannot get the hospital service you expect, if health insurance companies simply said, “We will not cover COVID-related medical care if you’re not vaccinated”? That’s all they have to do, kind of one sentence. Now, if they did that, that would mean every individual, when they make a decision not to be vaccinated, they are sure collectively perhaps making the country less safe for all of us, which is their problem, not the person choosing not to be vaccinated. But the person deciding not to be vaccinated is making an a free-will decision which will have consequences—scary consequences—because a trip to the hospital is life-altering if you don’t have the money. So might that work? And bear in mind that we are accustomed to this happening; after all, when you buy health insurance, your premium is adjusted for behavior like do you smoke and other consequences like that. So we already know how to do this. Isn’t that a solution that checks all the boxes?
Bob Levy: Well, a couple comments. One is that even though one would hope that insurance companies can adjust their premiums to cover the amount of risk the insurance company is incurring—and even though it’s quite clearly higher risk for the insurance company to provide medical insurance for an unvaccinated person than for a vaccinated person—there are lots of examples where the insurance companies have been by law prohibited from adjusting their premiums. And we see that, for example, in differences in mortality between women and men, and yet gender distinctions on insurance are not permitted. So there are a number of areas where the government bureaucrats have decided that they know better than the insurance companies how much risk the insurance companies are going to be subject to, or they’re willing to overlook the fact that there are differential risks and they do not permit insurance companies to adjust premiums.
But setting that aside, if in fact government could be persuaded to allow insurance companies to reflect in their premiums the amount of risk that would be—that they would likely incur, then I think your idea is a very good one. There are some administrative difficulties—that is, some people are not refusing vaccines but they medically can’t be vaccinated. There is the question of the extent to which we determine whether or not refusal is the motivating factor. Couldn’t people simply claim that they have a religious exemption, for example, or that they have a medical exemption from getting vaccinated and therefore they’re entitled to be covered because they have not refused, they simply are exercising either their constitutional rights or their right to be free of harmful vaccine being imposed upon them? So short of that, I like your solution. I do think that there are might be some administrative difficulties, but it certainly does conform to libertarian principles.
Bob Zadek: And even though I don’t have the kit out here on my desk that I’ve already drafted, I’m not promoting anything personal, but just to respond to your concept, your questions: first of all, as to underwriting, the insurance company would simply say, “No, we’re not going to adjust the premium; we simply will not cover any COVID-related healthcare if you’re not vaccinated.” It’s yes or no. That would eliminate the actuarial evaluation of jiggling the premium. And second of all, as to insurance companies prohibited from scaling rates based upon sex, even though that’s statistically defensible, the society simply for whatever reason, historical reason, inequality and the like, has decided that’s a bad idea. But I dare say the unvaccinated do not have the same lobby as collectively all women in America, so I doubt there would be any political resistance. And it would be—and as to the issue of religious exemptions, that’s the case that if another insurance company wants to cater to that audience and insure the unvaccinated and it would price its premiums accordingly, and it could go after that market if it chooses to do so. But that would in effect, to me, it would put the decision of not to be vaccinated—it would impose detriments to the decider that may give the unvaccinated second thoughts, or at least have them absorb the societal cost of crowded hospital rooms, put the cost where they belong. So to me, it kind of checks all the boxes, and perhaps some CEO of some insurance company listening to the show will see a market opportunity and go after it. Who knows?
The Non-Delegation Doctrine and the Administrative State [38:44]
Bob Zadek: But now, as to the issue of vaccination, you mentioned a really important concept which is, like speed limits, this is an attempt to allocate and make a judgment call about the degree of protection to society versus the cost to society of a certain type of behavior. And speed limits is the perfect example. But from what I have read statistically, the odds of dying—let’s use dying as a threshold discussion—from COVID if you are vaccinated—and let’s just add perhaps with the booster, I don’t know enough about the medicine, I’m not going to get involved in that on this show—but if you are vaccinated, whatever that even means, booster or not booster, the odds of you dying—now of course you can get sick, but dying—are pretty gosh darn lower than dying from the normal flu, yet we don’t have a mandate for the normal flu. So if the statistics—if those statistics that are often presented to the public are true, would you then be less sympathetic to the government seeking to coax somewhat indirectly people being vaccinated? Because the odds seem to be, based upon this balancing, which is an important concept, that the objective statistics seem to be that the harm from the unvaccinated imposed upon the vaccinated is pretty low.
Bob Levy: Well, I think that as far as the safety of the vaccine is concerned, as the argument for a safe vaccine increases, I think the argument for government being able to mandate vaccination increases. So if the vaccine were harmful to the person who’s vaccinated, then clearly a mandate would be an impermissible function of government. But you know, as of this date, we’re almost 200 million Americans have been vaccinated against COVID, and according to CDC—and the CDC has looked at this pretty darn carefully—the vaccine is safe. We don’t have very many adverse events, and the long-term side effects are not deleterious. So—and by the way, you know, these mandates are nothing new. I mean, every one of the 50 states mandates school vaccines. Wyoming is one I took a look at, and they actually have required vaccines for 12 different diseases. And the Supreme Court has weighed in on this back when we had the smallpox question, and in 1905 in a case called Jacobson v. Massachusetts, the court said that a vaccine mandate was okay. So if we were to look simply at this issue of safety, I think the argument in favor of a mandate is increased because the vaccine is provably safe. The reverse would be the case if the vaccine were shown to have caused harm for those who are vaccinated, then a mandate would be a good deal less permissible and maybe even impermissible.
But of course, safety is only part of the question. The next part of it is whether or not the vaccine does any good. And as you say, the statistics there too are, I think, undisputed. We have data from virtually all the states, and fully vaccinated people account for, you know, somewhere between two-tenths of a percent and 6% of deaths and somewhere between one-tenth of a percent to 5% of hospitalizations. All the rest of the deaths and hospitalizations involve unvaccinated persons. So it is quite clear, I would even go so far as to say indisputable, that the vaccine not only is safe but also is effective. And this argument that, well, look, some of the people who are vaccinated nonetheless get infected, is not a very persuasive argument. First of all, it’s not very many of the people that do have these so-called breakthrough cases. And the key reason that we see the breakthrough cases increasing as a percentage of the total is that we’re vaccinating more and more people. So as a—take a reductio ad absurdum, if we were to vaccinate, let’s say, 99% of the population, then quite clearly most of the cases that you see would be breakthrough cases because almost nobody is unvaccinated. So we shouldn’t be surprised to see the portion of breakthrough cases rising. The important thing is that people who are fully vaccinated experience, as we’ve already discussed, far fewer hospitalizations and far fewer deaths than do the unvaccinated. So you know, I think this dual question of safety on the one hand versus efficacy on the other comes down very strongly in favor of permitting a mandate. It does leave the third question of couldn’t we do other things that would resolve the problem that would avoid violation of personal autonomy? One of those other things is the one you just mentioned: have insurance companies step in and refuse to cover unvaccinated persons. So while I don’t think we’ve fully fleshed that out, it is an idea that is definitely worth exploring.
Bob Zadek: We had mentioned earlier in the show the use of OSHA—OSHA’s broad powers to issue this regulation. As you have written and as you are of course aware, but I’m teeing up an issue, that triggers to us who study the Constitution the issue of non-delegation or delegation. And it’s fascinating to me because it’s a core constitutional principle that we still are in profound disagreement about as a country. One would think living under a Constitution for 240 years, you’d sort of figure out how it works, but that’s by no means the case. Help our friends out there, Bob, understand the principle—because it’s so important in Obamacare, it’s important here, it’s important with CDC and eviction, a show I did about six weeks ago, can the CDC prevent evictions? So give us the 30,000-foot view of the important constitutional principle of non-delegation.
Bob Levy: Sure. There are two questions here. The first of which is this non-delegation question, and that is whether Congress can in fact delegate this kind of authority in the case of the vaccine to OSHA. The second question is whether, if Congress can do so, did they in fact do so? On the second question, since that’s one which we can dispense with rather quickly, the statute that you mentioned gives the Secretary of Labor the authority to issue what’s called an emergency temporary standard, and that is what OSHA does for six months to protect workers if there’s a, quote, “grave danger” from exposure to substances or agents determined to be toxic or physically harmful. So I would argue that that principle is overbroad. There’s no limiting principle involved. We don’t know where government power starts and ends, and we don’t know what constitutes a grave danger. I mean, what if we have herd immunity? Is there a grave danger? What if we have somebody who has natural immunity from having contracted COVID? Does that constitute still a grave danger? So that’s a statutory question.
But to your key question, threshold question: can Congress delegate this kind of authority to an administrative agency? The very first sentence in the Constitution after the preamble says all legislative powers are vested in Congress. Why does it say that? Because the framers were smart guys and they knew if Congress passes an oppressive law—oppressive law—the voters can respond by, you know, changing the membership of Congress. The question is, suppose the law’s murky and suppose the Congress lets one of these 320 or so regulatory agencies in Washington, D.C., flush out these oppressive details? The fact is the courts don’t do much about it, and the voters can’t do much about it because these agencies and their cabinet departments are run by unelected bureaucrats and they’re not responsive to the political process. Congress’s powers are not inherent; they are delegated to Congress by us, by the people, through the Constitution. Accordingly, Congress can’t turn around and re-delegate those powers unless we, again the people, through the Constitution, consent to that. Most important, the doctrine of separation of powers, which is a centerpiece of the Constitution, does not permit combining legislative, executive, and judicial functions in one entity, and yet many, most of these administrative agencies exercise all three functions. So what have the courts said? Basically this: they’ve said, “Yeah, we know Congress is not supposed to do this, they’re not supposed to pass the buck, but you know, governing is pretty complicated, and these executive and administrative agencies, it’s okay for them to have this power as long as Congress lays down what’s called an intelligible principle so the agencies know how to fill in the gaps.” Nobody has quite figured out what that means.
Bob Zadek: Bob, that last sentence—that last sentence was muddled in transmission. If you could just repeat that last sentence because I suspect it was very important, so if you don’t mind.
Bob Levy: Delegation of these legislative functions to the agencies and executive departments, says the court, is okay as long as Congress lays down an intelligible principle so the agencies know how to fill in the gaps in the legislation. But nobody has quite figured out what constitutes an intelligible principle. The net result of this is that these Washington, D.C., alphabet agencies are now operating overtime. We have HHS, you know, regulating healthcare, the FCC trying to control the internet, this Consumer Financial Protection Bureau making a lot of mischief under the Dodd-Frank Act. And if you want to know how big a problem this is, you have to consider these federal agencies now dwarf Congress when it comes to making rules that control what Americans can do. These rules are compiled in what’s called the Code of Federal Regulations. It’s now more than 200 bound volumes, about six times as large as the U.S. Code that contains all the laws passed by Congress. So this is a huge problem, and sad to say, it’s getting worse.
The Judiciary as the Last Bulwark [46:57]
Bob Zadek: And the dynamics are obvious to anybody who even pays passing attention to the political process. Congress enacts broad legislation like “let’s have clean air,” “let’s have clean water,” “let’s everybody be polite.” And they get credit for brilliantly making life in America better. They pass broad legislation. The agencies have a carte blanche, and when people are angry, they’re not angry at Congress; they’re angry at the agencies. And then what does Congress do? They drag the agency heads up to the Hill and they, on television, on C-SPAN, they then examine them and they indignantly say, “You did what? Are you out of your mind?” And they criticize the agencies for taking advantage of the broad authority that Congress gave them. So they get to pass the legislation and get re-elected, and then to criticize the agencies who are struggling to figure out what Congress intended. And when the agencies get it wrong according to popular opinion, Congress gets another bite at the apple and they get more credit for being angry at the agencies for guessing wrong. So it is a win-win for Congress. And talk about passing the buck—this is passing the buck on governmental steroids. And that’s the process.
And now, and what has happened is that now you have the issues of did the agency go too far, as Bob has pointed out. Well, who gets to decide? Ultimately, the courts. So the courts are forced to make what they are reluctant to do, which is to make what’s called political decisions. Did the executive branch go too far vis-à-vis the authority Congress gave them? And that’s the last thing that the judicial branch wants to do is to resolve questions that shouldn’t have existed but for Congress passing the buck. So that leaves us with, in effect, in effect, the judiciary which becomes the dominant, ultimate dominant branch of government, never as intended. And Bob, tell us a bit about the reluctance, how unhappy this must make the judicial branch, particularly the Supreme Court, in being dragged into this fight which they want desperately to be able to avoid.
Bob Levy: Yeah, you know, Chief Justice Roberts has been focused quite a lot on ensuring the institutional respectability of the court. And he’s pointed out that to the extent that the court is politicized, the respectability of the court diminishes and the public’s willingness to abide by the dictates of the court are correspondingly diminished. So the Chief Justice, and as you’ve seen in some recent speeches and writings, some of the other justices as well, particularly Breyer and Clarence Thomas, have taken pains to ensure everybody that the court is not politicized. Well, when cases like this, these delegations of power by Congress to administrative agencies come before the court, the court is forced into a political mold, and it’s a mold that they want to avoid. The court wants to be able to say that there are clear, precise guidelines drafted by Congress and they have either been complied with or they have been violated. When Congress not only doesn’t give you precise guidelines but doesn’t give you any guidelines at all and simply delegates power to an administrative agency or even worse an executive branch agency, the court doesn’t have legislation that they can refer to in the process of determining whether the statutory obligations have been complied with. And that, I think Chief Justice Roberts is quite correct, diminishes the intellectual and institutional respectability of the court, something that we want to avoid. The court is our last bulwark against violating constitutional requirements, and it’s the job of the court to make sure that the legislative and executive branches are bound by the chains of the Constitution. And when those branches abdicate the authority that the Constitution gives them, that puts the court in a very difficult position.
Bob Zadek: It is so interesting to me to see how something like COVID creates such a profound, on the one hand, stress test on our core constitutional principles, and secondly, it brings these important constitutional issues into the public debate. You cannot avoid thinking about, wondering, did the founders get it right? And for sure they did in balancing power. But issues like COVID bring this to our attention.
And I want to close by thanking both Bob Levy for his contribution this morning and for his writings and for his leadership of Cato, and thanking Cato. Cato is clearly the preeminent American, if not global, think tank on personal liberty, individual choice, and very limited government. Cato does magnificent work providing scholars up on the Hill and to us ordinary folks who simply want to learn more about how our government works. So Bob, how can our friends out there follow the work of Cato and of your writing?
Bob Levy: Well, the best way is to check out our website, which is cato.org. It’s a very, I think, well-designed website loaded with lots of information, easy to use and comprehensive. And also check out folks like you who spread the libertarian message and do us a big favor by helping us spread the message that we think is critical to limiting government and securing individual freedom. So thanks for that, Bob. We appreciate it.
Bob Zadek: Thank you, Bob. Thank you so much for your work, and thank you to my friends out there. Please, have a good Sunday.