tv Peter Wallison Judicial Fortitude CSPAN November 4, 2018 2:59pm-4:00pm EST
of book tvs special fiction addition of in depth. ask month and its author brad meltzer. you for being with us. >> guest: thank you for having me. >> you are watching tv on c-span2. next up peter wallison argues that the judiciary is partly responsible for the the branch taking over the legislative role of congress. after that, cbs white house correspondent major garrett reports on covering the top administration in later today liberty university english professor karen pryor talks about the value in reading great literature. it's a full day of nonfiction authors and books here on book tv. visit batavia .org for a complete schedule. to them.
>> ladies and gentlemen we will begin. everyone can get comfortable and get a seat. thank you so much. good evening to all and welcome to our discussion of peter wallison's very timely interesting and important new book, judicial fortitude. i am of the institute and here's a book in case you have not bought one yet. [applause] i have the pleasure of reminding you it is for sale tonight. as we think about the main question this book poses how in the world are we as a society and as a government going to
control the ever increasing power of the meditative state or the unelected bureaucracy. if the bureaucracy assumes for itself what impact our legislative powers who or what can restrain them. as peter writes in many instances the measured of agencies appear to have issued rules or interpreted their authority in ways that exceeded the powers they were given by congress but the court had not intervened. should the courts be intervening to correct this over each of bureaucratic will to power? yes. says peter quoting chief justice john roberts. it is the obligation of the judiciary not only to confine its self to its proper role but to ensure that the other branches do as well and in other
words the judiciary is seen in that quotation in this book as the keeper of the fundamental structure of checks and balances along the branches of the government. expansion of the ministry of state got its original energy is one of the unfortunate results of the first world war and the american participation in it. with woodrow wilson's faith in the rural of experts and as peter writes the progressive faith and meditative agencies was anything but pragmatic and elsewhere he refers to this as an extravagant faith in and meditative agencies but a face that was disappointed and it should come as no surprise that the meditative agencies were a disappointment to progressives who had expected so much from them. turns out the administrators and
experts could not know enough to control whole industries in need and it cannot possibly know enough even in principle. you would think the congress could fix this but peter says that it can't and won't in the record certainly supports peter in this. the argument is that it is big courts the need to constrain congresses own unconstitutional urge to avoid hard decisions by delegating them to an elected administrators. in other words, the book says it is essential to preserve the separation of powers by preserving the non- delegation doctrine. there are things congress cannot delegate. this would ensure that only congress will make the major governing decisions for the american people.
thus the difference that we all know about of the courts to the bureaucracies under the chevron role would be corrected. peter, where the court believes congress has delegated an impermissible portion of its legislative authority to an meditative agency or with the president it should not hesitate to invoke the nondelegation doctrine thus the difference of the courts to the bureaucracies would be replaced by fortitude and enforcing the constitutional order. the difference in letting it be undermined would pass away. our author, peter wallison, is a senior fellow at the american enterprise institute and he has published ronald reagan with the power of conviction in the success of his presidency and
nationalizing mortgage risk and the growth of fannie mae and freddie mac and better parties, better government in hidden in plain sight what caused the world's worst financial crisis and why it could happen again. and now, of course, judicial fortitude. previously peter practiced law is a partner. he was counsel to vice president nelson rockefeller and general counsel are to treasure department in the white house counsel for president ronald reagan. i had the great pleasure of having the office next door to his for 11 years at aei and participating in the constant of policy analysis and ideas, not to mention wit. peter will be interviewed by adam white, directs the gray center for the meditative state at george mason university's and the antonin scalia law school where his assistant professor.
he writes widely on the constitution, cords and relation and serves on the imitative conference of the united states as a federal advisory body that proposes reforms for administrative agencies and leadership councils for the ministry to all sections of the american bar association and the federalist society. recent publications include articles not executive orders and agency regulations and on ethics. the interview will run till about 5:45 after which we will open the floor to your questions at 6:00 o'clock. then we will adjourn to a reception including book sales and signing and look forward to the discussion and adam, let's begin. >> thank you very much, alex. thank you for joining us today. figure four peter for writing such a wonderful in bracing book. it begins with the first sentence. let me quote the opening line of the book. it is not too much to say that we are risk losing our democracy
unless we can gain control of the agencies of the meditative state. we risk losing our democracy -- that's a pretty bold statement to open a book with. please explain. >> that's why i wrote the book. i am concerned that the trend that has been developed here in the united states for many decisions to be made by administrative agencies rather than by the congress is a danger to our democracy. what i find in talking to people in the administrative area and especially among specialists in the ministry of law is that they say congress is not able to handle the complexities of the modern world and therefore we have to give much more authority to administrators who will take the authorities that congress gives to them and use them properly. the problem with that is it doesn't take enough attention to the fact that we live in a
democracy and that it is the american people who are supposed to be making the major decisio decisions. if we leave the decisions to the people who live in washington dc who are the officials of the various bureaucracies that make up the administrative state then their priorities and their interests will be what the american people had to obey and in a democracy that is wrong. the danger of that and there is a danger. that is that the government could lose legitimacy if this continues too long. legitimacy is the authority the government has, moral authority that the government has to get its laws enforced and people obey the laws voluntarily when
they are voting for them in a sense by electing their representatives but if people come to believe over time that what is really happening is there is this unknown group in washington were making regulations that we all have to live with and not things we voted for or that congress actually voted for -- the problem is people begin to believe that they don't have to obey the law anymore. it has come to pass in europe. you all know about brexit and that is the exit of britain from the eu and if you read why that occurred and what you learn is that in many ways the british people were very angry about the fact they were subject to regulations that were being made
in the eu over which they seem to have had no control about which were imposed on them. and so their vote and they were given the opportunity to vote and it was to leave. the danger is in the united states something like that can happen and if we look at what happened in 2016 with the election of donald trump it has been called a populist uprising and i would think it was a populist uprising. was it really just people who are interested in conservative ideas of government? i think in part it might have been people who are very upset about the fact that the regulations and rules are coming out of washington were foreign to them and unknown and unaware and unable to discern why these rules were being made and i
would mention one more thing and that is over the last 25 years every year in those 25 years the government has issued over 3000 rules and regulations, built over 101,000 rules and relations in 25 years. we all know that an meditative agencies are supposed to fill in the details of what congress adopts as a statue. the number of statutes that have been adopted over that period of time is minuscule compared to the number of rules and relations. you can understand why the american people are beginning to be a little bit worried about what is happening to their government. i wanted to start the book with just that idea because everyone writes about the administered law in terms of the actual laws involved in the cases involved but what is really the issue, to
me, is whether the american people can have confidence that they are, in fact, operating their own government. >> so, in the long run the key to the gym as he is returning policy decisions that after congress and state and local governments but the title of your book is judicial fortitude and the key to your book as alex explained in his introduction is that we need the courts to play a greater role than they played traditionally or recently in returning many of these issues back to congress. let's begin with the title of the book, judicial fortitude. where did you get that from? >> from alexander hamilton's federalist 7078 which is a wonderful piece of work. in many ways it's not only what i will talk about but he covers the whole purpose of what the judiciary is supposed to be doing and in 78 what hamilton said was that first of all --
the reason he wrote apparently the reason he wrote the federalist 78 was because the founders and framers were getting asked by the people logically wait a minute, it's a democracy and were supposed to elect the government but you are giving lifetime appointments to these judges. what -- how does that make sense? and i think hamilton's response was we need the judges because we need the judges to have lifetime appointments because that will enable them to stand up to the elective branches, the president and congress and what is he mean by stand up to? it's very interesting what the framers did, not only did they step up which i assume we will talk about at some point and they tried apartheid system, legislator, executive and
judiciary but they also interwoven the actions of each of them which are called checks and balances in addition to having the separation of powers there were checks and melts as the president participates a little in legislation for vetoes the congress can appropriate funds for the judiciary and for the president and so these things were set up by the framers to make sure that no one part of their five-part system got more power than it deserved or was entitled to under the constitution. the established constitution in which the executive had enforcement powers but they were very clear in article one to say that only the congress is vested
with the legislator authority. and so the reason for this was the lone star that they always had in mind was simple and that is the people's liberty. they were accustomed to a world in the late 1700s in which the king could have both the enforcement authority and meditative authority and they knew and saw that this caused the loss of liberties for people. by saying only congress could establish or make the laws he was hoping that in the case they would prevent a powerful executive from being able to take away people's liberties. here is alexander hamilton and he's trying to justify the people why we needed judges to
have lifetime appointments and he says that will give the fortitude to be able to stand up to the congress into the executive when they try because the pressures from the community or political pressures of any kind to disassemble or change or eliminate the separation of powers. after all -- the constitution is only parchment and it is not self enforcing unless someone enforces it so my view and i'm not sure if i've ever seen us in any other writings but my view is that the framers expected that the judiciary would stand up for the separation of powers and make sure that it never gets changed in any material and respect and that is what the book is about because it says that the judiciary should step
in and make sure that the powers that led to the powers don't get delegated to the imaginative agencies which are part of the executive branch. >> hamilton is such an interesting thinker on this because he did not just write about the judiciary. he wrote about executive power and writes at one point energy in thecluding a study on a mease of loss so interesting question about where hamilton draws line with the cultural imparts of federal 78 where he seems deferential in terms of the courts construing loss to us avoid constitutional conflicts and left take back from hamilton specifically and you talk about hamilton because it never gets old but i program at the law school we named our student hamilton fellows about who better to name them after..
>> he was not a quick shot, that was a problem. how do you see the courts role and how would you describe judicial fortitude and what is i mean when it comes time for the court to review the constitutionality? >> the decision i make in the book is that the courts, as i said before, indicate they have a special judiciary's puzzles 144 the structure of government. when it comes to the world of the constitution that constrained, what congress might do, that is completely different. as a conservative and i followed scalia and i've always been against judicial activism. there is no reason by the courts should impose their policy views on what the legislative is doing. that is mostly under the constitution authority to congress and to some extent the president to carry out the
business of the government. that ought to have latitude as i think hamilton was suggesting. it comes to the structure of the government the separation of powers which is the central that is you can say they should be deferential about. that is something i think they would specifically assigned by the framers to pursue and ensu ensure. there is no such thing in my mind for a judicial restraint when it comes to the issue of the separation of powers and the constitution structure. >> getting beyond generalities and specifics of the focus on possible aspects of judicial review. one is the agency action and you take aim at what the courts
chevron deference which is meaning when courts review an active agency bill deferred to the agency's interpretation of the statute as long as the statute is ambiguous and the agency's interpretation is a reasonable one. criticize that approach in the book or at least you asked the courts to recalibrate the way they go about deferring to agencies and interpretation please explain. >> it seems pretty obvious. if you have a judiciary and if the judiciary is supposed to make sure that the constitution is being observed in the separation of powers is being observed and that is is the theory on which this whole thing proceeds than it should be fairly clear that the judiciary should interpret statutes and how much power the congress gave to the greater branch.
and so, that is a statutory definition question. what surrounded was say direct the lower courts not to do that and in effect and is a these administrative agencies are experts in more expert than we are and if they interpret their statutory authorities in a certain way we ought to accept that if it is reasonable. as you suggested, but that does not strike me as reasonable in terms of what we are giving to the agencies. everyone should believe in known to be the judge in his own case and in the case of a regulatory agency or imitative agency if you are asking them whether they have the power to do something, of course they will find a reason, to have the power to do something. it is the objective you of the court looking at that
legislation which is called judicial review which has a name and the judicial review that is not what and that when you look at the decision in that chevron case you can see that it became an opportunity for the agencies to begin using statutes that have been passed years for generations before for new purposes that congress probably never expected and that is why from 1993 -- i had to choose the date because happens to be someone has begun using to count the number of regulations but by 1993 chevron was at adopted in 1994 but by 93 agencies that figure out that they had a lot
of latitude here and so we began to get 3000 relations and rules each year until today. it only makes sense to me if we want to keep this under control and want to continue to have a country that is a democracy in which the people are voting for the rules then we have to start raining in this power and it came initially from the chevron case. >> today, chevron has a lot of critics especially on the right, justice thomas do you dedicate the book is one of the leading judicial clerics of chevron both [inaudible] has a book on mr. locke and he wrote the article wrote chevron bias trying to recharacterize chevron does but the story historically chevron had a lot of proponents and including justice clear whose most liquid defender for long time and if anything chevron arose as a reaction by the
reagan administration and support court reaction to the dc circuit and micromanaging the agency and so obviously there's been a change in conventional wisdom about chevron and i'm just curious what you make of that change and what brought that change about? >> first of all, at least in my study and is not been company is up in my study the complex between the courts and the mention of agencies has mostly been about the adjudicative functions of these spaces and the courts have been very unhappy about some of the ways that the agencies make decisio decisions, the courts pay lawyers and knowing something about how to be fair and they have been dated for a long time micromanage what the agencies did adjudicative leaf. i don't see the same thing happening on the roadside and so
from my point of view that is where for attention should be paid. why was scalia such an advocate? i know reagan was such an advocate of the chevron case because we had to go through it a little bit but it opened up environmental laws to enable a little bit more latitude for companies that work were trying to avoid the cost associated with with the environmental relations. reagan like that because that was one of the things he was elected to do, he thought. that was to reduce the relations that were concerning the economy. someone else saying the same thing recently. >> right. >> but when you get to the question of scalia the only thing that i can say about that
in i am a fan of his as i read some of the things he is written before he became a judge, let alone eight justice and in that he said he liked the idea of chevron because it gave congress a background on with which to legislate. >> stable background. >> exactly right. [inaudible conversations] [laughter] >> perhaps you can explain that to me because that never made a great deal of sense to me. he never filled it out to the point where i understood what he meant by a stable background. in any event, he gave up that idea toward the very end of his service on the court and in the last case i think that really
came up that dealt with this question of the chevron he seemed to move to where chief justice roberts was on that so i don't know whether that was something that continued over time but he certainly seem to see some value in at least in reducing the act of the chevron case. >> we should add at aei that were looking for justice clear he was a thinking scholar and -- editing regulation magazine and edited aei's house magazine and in that time in 81 thereabouts it was fascinating as they would recommend to everyone which are all available online about cheating currents of the mention of law then and maybe that's why he started to change at the end maybe we reached another collection point.
one last question on chevron. at the very least the generation that brought chevron about the thought they were doing in addition to scalia saying the stable back on principle and switch -- which congress can legislate return policy discussion back to the people because at least the agencies are countable to the president unlike the president accountable to the people. they thought they were making the mention of law more democratically legitimate and i gather from the book that you think that project failed or the people decided no, this is not legitimate. >> it's illegitimate for two reasons. one, president has no way of controlling what the ministry of agencies are doing. >> you stressed that in the book. >> 3000 relations in one year and they come out of all the agencies that the president has some supervision were not talking about the agency like the sec with the commission that is running it but the treasury
is one of the major issuers of regulations every year, as is hhs and others. they are directly controlling by the president. still the president has little authority directly over these things because the number is a great and he doesn't have the staff in the end and omb doesn't have the staff to review any but the largest and most important violation. the whole game continues to be played year after year with these regulations coming out in only a few actually reviewed by the president but in addition it is legitimate for another reason and that is the president has no role of significance in lawmaking except the approval of the things that congress approves. and to say it is just as legitimate to have the president
way in which congress goes awry writing these statutes. the question of when they write a statue, whether it's a communication 34 sane public standard or whatever, they are not legislating anything. delegating power to the agencies said they should import the non-delegation doctrine by sending these back to congress and telling congress to do it all over again. >> that's one way to do it. if we take the chevron case, that case in particular, what could the court had done in that case. the first thing they could've done is looked at the question of whether a single plant is the one that is the focus of the regulation or whether it's a whole bubble but will assume that they are, whether that
bubble is what is congress meant when it said the source, a single source should get a permanent from the state in which it is operating. >> that could actually be a detail. it was obvious what congress wanted in the clean air act and the court could have looked at this. the court of appeals as a matter of fact said that increasing the scope from a single operation to a bubble of all operations together was inconsistent with the statute and struck it down in the supreme court took the case and said, well, they could've said, well, you don't have to strike it down because in fact it's just a detail. but it applies to this bubble of
related agencies or whether it applies only to one, the sort of thing the agency can decide. that's one thing they could do. another is to say it's not fair what congress intended here. and the third thing would've been just to approve what the court of appeals had done and say it's wrong. they were wrong under the statute, the clean-air statute of what you're doing is making a harder for the states involved to regulate. so they didn't do any of those things. they did the worst possible thing and said the court, first of all they said the courts were delegated the authority to look at the policy here whether the administrative agency to look at the policy that congress is silent. congress didn't say anything
about this particular subject the idea was the agencies had that power. that was an idea that makes no sense at all to me. it was for them to say if you -- if you are working on something like this, you have the opportunity to decide if your court you have the opportunity to decide whether it's reasonable as a matter of policy and how can the court decide whether something is reasonable as a matter of policy. a court can decide what the congress said the significant of what congress said. they can tell to some degree what congress intended. to say whether the agency is doing something is reasonable as
a matter of policy is exactly what we don't want, which is the courts to decide on policy. that's why i think it was wrong. talk about non-delegation. >> about filling in details that's one way is drawing a line between the issues of such magnitude and scope that they are legislative. congress has to decide them are issues where the executive branches delegating the task of a factual finding or filling in small details. there's other ways the supreme court has done this much by recently, i guess the last century they said, you know, there needs to be an intelligible principle of the statute. what would your non-delegation doctrine look like? >> frankly have no idea. what i do know is that means
nothing and infinitely malleable and courts have used it that way. in fact, in one decision, scalia said he came down to a single word and a single word established with that principle was for an entire statute. that's not workable. the courts have to have a jurisprudence of delegation, which they have avoided for 200 years and they've avoided it because it is very, very hard. and it has many consequences to do that. starting the jurisprudence with the name and 35, two cases in which they found delegation had occurred and they struck it down. after that, president roosevelt had a landslide but during a
1936 and tried to pack the court with seven additional justices that he would appoint. >> the kind of thing would never happen today. some people would do for it. it would not happen. i hope. in any event, would have been then was the court actually, the court was faced with something they never asked acted tonight is the president actually retaliating against them and so they backed away. that's the only time they ever tried to determine what is the delegation of authority. i think for the reasons laid out in this book that the court must begin to do that and i do think
now that under the current composition of the court i think there are five justices including the last one who was confirmed a few weeks ago, who are willing to do that. only the court can protect the separation of powers and prevent the continuous delegation of authority to the executive. when you think about it, the more authority, there are legislative authority executive good, the more it is that they are making law almost by definition and that's exactly the horror show if i can put it that way that the framers were intending to prevent by the separation of powers in the constitution. i think this is an unavoidable question.
if the courts continue to say this is too complicated for us, not something we want to get into, they don't have the fortitude if you will, this will have it where most of the legislative authority of the united states has been transferred, delegated by congress to the executive branch. and although we might all like what the executive ranch does, that is all of us in this room, in each individual case the american people have not done now. they have not approved the ban as a result we risk the possibility as i said at the beginning that we will have a government that is out of control from their point of view and no longer -- we are no longer a democratic republic. >> its interest to see them grapple with these issues. justice thomas to whom he dedicates the book has been a leading voice on it and for
almost 20 years justice gorsuch was writing about this for the 10th circuit. and in benders registration act and the issue was did they violate the doctrine by giving broad power to decide to apply laws to people convicted of crimes. the justices were really grappling. they are looking all through the statues and asking maybe these various statements by setting aside that one case, it's one thing, but they have to decide how to draw a line. that's why scully a was so wary not just of the court but when
he was here at aei i know this because i thought it two weeks ago. the thing is he was right in a way that it's a very challenging line to draw. if you had two pieces of advice for the judges, the second would be how to draw the line in what would you tell them? >> i think this is the kind of thing the courts to overtime on case by case. for example talking about chevron, if they had said this is a detail and no wonder congress didn't do with it. it's a detail. agencies can deal with something like this. it is the jurisprudence of
delegations. it would go on for years and years as search and seizure for vagueness which is another really good example of how they deal with things like this. they deal with a case-by-case and eventually and eventually because of all these decisions adding up, you can finally ascend to what is the delegation and what is not. but it the danger that the court will actually say this is the delegation that is important because the administrative agency knows that he can't go too far and more important, congress will then realize if the court strikes down one or two or three of the things they have done to delegate authority to the agencies, congress will have to start doing what they have failed to do, taking the course of least resistance in
and delegating authority to agencies to make the decision. they'll have to make a decision because the american people are made up of a whole series of groups and interests that want things done and the social area in the economic area and if they can't get it done in the agencies and they can't get it done in the court, they will go to congress and congress will structure itself in such a way as to comply and we'll have legislation instead of having the congress turn these things over to the agencies to do. >> alex is ready to unveil a. >> consider yourself on delegated. thank you, adam and thank you peter for very interesting discussion. ladies and gentlemen, it is time for you to be able to ask questions. if you like. may remind you when you get the
microphone, tell us your name first and then your affiliation and then ask your question. if you feel an urge to give a preparatory lecture to your question, please resist the urge and come promptly to your question and if you i'll remind you. the first question will start over here and then i have to agree and we'll see how we doing time. >> madison coalition. they tend to shift over time. i wonder we've got a majority now that would like to change. but we have a due president, new courts want to go the other way. how do we protect as you point out the integrity of our democratic republic when half of the american political system wants to see more executive
branch authority, don't we need something more than a temporary court majority to solve this problem. >> well, my view of that is judicial precedent creates a lot of stability and to the extent the court begins the process of the jurisprudence of non-delegation. that process will inevitably continue. lawyers who bring cases on behalf of their client, making the argument that the rule that they are complaining about is an unconstitutional delegation. to get an answer to that from the court and that will create a lot of stability over time. even though congress will be controlled by one party or another party and the president
the same, the supreme court precedents will go on from year to year. they may be changed over a great deal of time. as justice kavanagh said, precedent is important >> the question right here, please. >> hi, i'm an attorney in private practice and i'm sitting next to judge williams was extremely extinguished distinguished member of the d.c. circuit. i didn't come with him. i just happen to be sitting next to him. i like the term judicial fortitude and i'm focusing on the d.c. circuit, not judge williams. it seems to me that there is an
imbalance in the structure of how it operates because you have the disk, i'm talking about primarily giving the justice department attorneys on one side and you have random attorneys, public-interest groups, whoever, actual human beings on the other side. the court has a tendency to honor what the representations are in the agency attorneys view it as an adversary system so they don't go in front of the court and say and they will defend whatever happens and if your focus is on making government run better, then it would be very helpful if the justice department did say play some role in modifying art the court saying yes this is a shortcoming in that would give the court a better record and
the court seems to me to be so focused on the perspective of the justice department attorneys and they have findings of mootness, standing, whatever. >> at this point i have to ask you to come no question. >> that was my question. i think there is a structural imbalance. okay, thanks. >> there is a structural imbalance. it is said that in response to the chevron question because chevron balances everything toward the government and towards the agencies. if your private attorney representing a client before a court in complaining about a rule, it is very difficult for you to establish that the rule is unreasonable, especially when the courts have been told that they should give deference to the agency.
there is the bias right there that some of the other points you raise are good. i think the government maybe has an obligation when it approaches the court to be a little bit more candid about their client's position than the ordinary private lawyer might be. it's an interesting point of view when it might be something the justice department might consider. >> hat i'm coming at a comment. >> is only so much justice department lawyers can you. they advocate for their clients. they are writing reports.
what it's doing the litigation would take a step back and start to resume the work of studying these things i'm looking at it systematically criticizing problems we seek in the context of reports. maybe that will help bolster congress' energy itself. >> its interest in the kind of reminds me of a something that to me at the treasury department. we had a major issue at the treasury department, but i wanted to argue this case before the court of appeals and before any general counsel of an agency can do that you have to get the approval of the solicitor general. i went to the justice department and the solicitor was sitting there with all these lawyers around him and this is one-way in fact they keep bad arguments from getting a to the court. but if someone doesn't answer to
hugh. i wanted to explain why make this argument and the solicitor general's came to me in when i'm finished he looks to the left and it looks to the right and he says week, but not frivolous. dorothy will to go. i'll ask a member who is fun to do. >> the next question here. have the microphone coming this way. >> thank you. hi, peter. look forward to reading the book. former api cannot outgoing council. quick as i do think there's times when the justice department pushes back when agencies. i'm assuming if you're against chevron are also against the
idea that agencies get deference in the interpretation of their own regulations. is there anything you can say in addition about specifically that kind of deference on top of her critique of chevron deference? >> i think it's the same. it's really the same issue and that is our deference is that an agency is entitled almost without any questioning from the courts to reinterpreted the own regulations. one of the things that came before the court that actually justice scalia got a little concerned about was the fact that under the administrative procedures act, the agency does not have to use notice and comment rulemaking process in order to modify one of the known regulations are one of its own
interpretations of its regulation rather than the regulation that elf. suddenly he seemed to think of himself, this is odd. the administrative procedure act also seems to require judicial review regulations and here we've gone on for years and years. this is scalia talking. we've gone on for years and years saying that agencies are entitled to deference and now here's the administrative procedure act adopted in 1946 and we've ignored it completely. judicial review is required. that's one of the reasons he seemed to be moving away from the position he had held for so long on the question of chevron. >> thank you.
judge williams. wait for the microphone if you would. >> steve williams. i've hardly been identified. [laughter] >> a question about your title, judicial fortitude it is not really the issue? supreme court has shown great fortitude on, abortion, related quote social issues. it has been shown for good on the issues that you're particularly raising. so it's an select their fortitude that you're questioning and do you have an empirical explanation or do you question my premises? >> here's what i would look at,
your honor. combat is the structure of the constitution is so important and given to the courts in my view by the framers that the fortitude that i'm talking about in the title refers to their support for the separation of powers. the other things they did of course her very controversial that you mentioned and continue to be and will be for a long time. but there you can actually argue about whether the court should have gotten into that area. the court must get into that area if we are going to have a system in which the laws are actually made by congress.
if the courts continue to hold themselves back from my comment of the supreme court does not attempt to get into that area over time, we will have lost the whole structure of the constitution or the laws are supposed to be made that the people who were elected by the public. yes, sir. [inaudible] >> yes, they should not perhaps have done the other things, the day certainly have not done this one thing that is essentially saying to the sustenance of our democracy. >> thank you. with that we have reached the end of our time. thanks again for a great discussion. [applause] the book is for sale.
>> one of the things i talk about in the book about my dad encouraging me that he tells a lot of people in me, the phrase speak your dreams. he tells people that especially when kids come to him on the campaign trail the top and a couple times they come in and say i kind of want to go into politics one day maybe then he can tell they're always a little bit anxious about saying not and he always says say that. speak your dreams. that's the first step and so over the years and growing a, my parents saw me as a storyteller from a very young age. so they always encouraged me to
not only speak my dreams, but also they were speaking to me. >> he's been coming down for a couple of years once a month and i'll sit there and say i just read a biography. he tends to agree with so-and-so. set their couple hours talking about all of this. frankly hated to give them a car. so much fun to write and work on. compared to writing a book.
at some point you've got to say were done. it's over. turn the paper in. then you find some other quote. [inaudible conversations] >> hello. hi, my name is faith and i want to welcome you all to politics & prose. just a few housekeeping notes before we get started. if you could be silent to cell phones, take all your pictures and just make sure to tag us. if after