Congress, Supreme Court, President Trump discussed on Bloomberg Politics, Policy and Power
Selecting the next Supreme Court justice. I'm David Western President. Trump has made it official nominating me Cockney Barrett to replace the late Justice Ruth Bader Ginsburg on the high court. I have no illusions that the road ahead of me will be easy, either for the short term or the long haul. I never imagined that I would find myself in this position. But now that I am I assure you that I will meet the challenge with both humility and courage. Barrett has been the front runner since the death of Justice Ginsburg last Friday. Sources tell us President Trump views the judges a smart, hard nose conservative who can have a long tenure on the high court. But how will her legal views shaped the court's approach to the economy and to business? Joining us now to help? Answer that question is Ellen Woman he is associate professor at the Sandra Day O'Connor College of Law at Arizona State University or Woman specializes in administrative and constitutional law. So welcome Professor is great to have you here. We tend to think about the Supreme Court at least the popular culture in terms of abortion and gun control. But there are a lot of things the court does that really affect businesses. Well, do we have any sense of how Judge Barrett becoming adjust? Spirit might affect business. This is a hot topic, sort of among the lawyer circles in legal circles but also been among the business community is the role of the administrative state, the role of the administrative state in our constitutional system and its impact on businesses Because you know the traditional separation of powers model Congress makes the law the president executes along the courts adjudicate the law and business is kind of know where to go. If you want a law passed to go to Congress, right if you you're in trouble, you go to the courts and so on. Today. More and more administrative agencies make the regulations right that buying businesses that affect the business community that tells us this is what they can and can't do. These regulations are made pursuant to really, really broad delegations. Apart from Congress, you know Congress likes to past statutes like you know, there shall be clean air, and it leaves it up to the agencies to figure out well, who has to pollute less. And you know the cost. On businesses. And so we may see some revival of some older doctrines like the non delegation, doctrine and other doctrines to try to rein in the administrative state. And and this has the potential to be AH, more business friendly environment a result of that. So when you talk with the Ministry of State you're talking, I think larger but some of what we call the independent agencies, the FCC, the FTC, the SEC that are appointed by political people, but actually, they have some 10 year beyond that. That's right. And it's not just the these independent agencies the so called independent commissions. What makes them independent is that they're somewhat insulated from the president's ability to fire them. They're insulated by what's called four cause removal provisions. But also, you know, executive branch agencies that aren't protected that way. The environmental Protection Agency OSHA, the Occupational Safety and Health Administration under the Department of Labor, you know that These could be sub cabinet departments were in theory. There's a direct line of control to the president. But for a large measure, they operate pretty autonomously, You know, pursuant to these broad authorities that Congress gets the agencies, But yes, But independent agencies are sort of the biggest culprit. What people tend to think about FTC FCC as you say, but it's also other, you know other agencies as well that aren't Technically independent, but but they still exercise a lot of autonomous power. Given how large the country's gone the commerce has gotten business has gotten. Do we have any alternative but to delegate? Some of this? The president's self can't administer every one of these laws. It's true, you know, the society have gotten more complex. Congress doesn't have the capacity on the attention span. And even that had the desire, you know, to legislative more details, so maybe delegation of power is inevitable. But that doesn't mean there aren't you no other options and potentially business friendly options. You know the rain's acted in an example Rand Paul introduced it, I think every year the rains Act basically would say, look for important and economically impactful regulations. The agency can go ahead and propose the regulation go through the process promulgate the regulation, but before it actually takes effect before it has the force and effect of actual law. Congress has to vote on it. So Judge Barry has been in the seventh Circuit Court of Appeals. Before that she was 15 years at Notre Dame Law School on the factory there. We have any indication from her writings for rulings are writings how she might come down on this issue. I really can't say I mean, as a general, you know? Ah, originalist, someone who takes the founders intentions seriously you no one can assume that she'll have the same are similar views, at least to justice, Gorsuch and just just a cabin on Justice Thomas and so on. But, you know, I consider myself an originalist and I have and I write a lot of the non delegation doctrine and I have very quirky views. You know my view of what Congress is a lot to delegated actually, much more capacious than Justice. Thomas's So there is an intra originalist disagreement over the scope of the non delegation doctrine over just how limited cars have to be and just where you know the new justice will fall. You know yet to be determined their possible ramifications to go even beyond delegation or non delegation to the scope of the commerce clause because we saw chief Justice Roberts even as he voted to uphold the Affordable Care act based on the tax point. Did a lot of dictum. I thought least saying, you know what? I'm not sure the commerce clause goes that broadly, which would be a very big departure from where the Supreme Court has been. Yeah, you think that's right. I think we already have had the vote before, As you say, under the Affordable Care Act case, the Supreme Court basically said in 54, part of its opinion that it would violate the commerce clause who forced people into commerce. But even then, you know, forcing people into commerce is pretty narrow. I mean, it's not like Congress does something like the individual mandate that often right The reality is today. Almost everything affects commerce. Every you know all economic activity in the states affect interstate commerce somehow, and I find it very unlikely that the Supreme Court is going to reconsider those cases. Fascinating. This really, truly helpful Thank you so much. Professor Ellen Woman, He is from Arizona State coming up the.