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A deep dive into the administrative state

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Sisällön tarjoaa Penn State McCourtney Institute for Democracy/The Democracy Group. Penn State McCourtney Institute for Democracy/The Democracy Group tai sen podcast-alustan kumppani lataa ja toimittaa kaiken podcast-sisällön, mukaan lukien jaksot, grafiikat ja podcast-kuvaukset. Jos uskot jonkun käyttävän tekijänoikeudella suojattua teostasi ilman lupaasi, voit seurata tässä https://fi.player.fm/legal kuvattua prosessia.

The passage of the Inflation Reduction Act shines a light on the administrative state. How will the billions of dollars for Medicaid, green energy, and other provisions be spent and turned into policy? With the help of people whose jobs are largely nonpartisan and non-political. Complaints about government bureaucracy are nothing new but has recently moved beyond rhetoric to a concerted attack on policy implementation.

Don Moynihan, the McCourt Chair at the McCourt School of Public Policy at Georgetown, writes about the administrative state in his newsletter, Can We Still Govern? He joins us this week to discuss the promise of the Inflation Reduction Act, the looming peril of Schedule F, and whether a bipartisan, policy-focused coalition can emerge in 2022 and beyond.

Can We Still Govern? newsletter

Don Moynihan on Twitter

Episode Transcript

Michael Berkman
From the McCourtney Institute for Democracy at Penn State University. I’m Michael Berkman.

Candis Watts Smith
I’m Candis Watts Smith.

Jenna Spinelle
I’m Jenna Spinelle and welcome to Democracy Works. This week, we are talking with Don Moynihan, who is the McCourt chair at the McCourt School of Public Policy at Georgetown, and the author of The Substack newsletter, can we still govern? Also the author with Pamela heard of the book, administrative burdens, and I can think about the administrative state as being kind of wonky. But DOM really, she describes it as democracy in action, which I am and I never really thought of it that way till I started reading some of his work.

Candis Watts Smith
Yeah, I’m thrilled that he joined us on the show today and are bringing his insights. You know, I, I think like you said, Jenna, that kind of notion and conversation around the administrative state seems incredibly abstract. But I think and, you know, Don’s work, you know, shows that if we really want to understand how we move from bringing the public’s wants and desires that we, you know, work through the electoral process, when we the way that we get those wants and desires into fruition, we have to understand that beyond policy design and legislation, the implicit implementation of our laws and policies occur through the administrative state, if they don’t have the capacity to do their work, then well designed laws will never be fully experienced by the, by the public. And you know, in many ways, we really don’t see the administrative state. And I think it’s like, college administration, like if something is going well, we don’t notice it. But when things go wrong, we do like good roads, we like health care, but we don’t like taxes. Many people don’t like social welfare for people who they think are undeserving, and nobody likes red tape.

Michael Berkman
And, you know, I really I like your framing, about the importance of the administrative state to governing and to democracy, the way that the administrative state is organized. So if you think back to the times of political machines, where political parties really controlled politics in this country, the the giving out of administrative positions at all levels of government was very much a part of rewarding political supporters. And an effort to break political machines to break the power of political parties was the development of an apolitical administrative state or the civil service by the progressives in the early 1900s. So the importance of these civil servants, of course, is that they were selected and retained, not on the basis of political or partisan loyalty, but rather merit experience and expertise. And I want to highlight that point, because what we see going on today, and that went on during the during the Trump administration, is a belief that these that the people within the government, the people carrying out the activities of the government should be loyal to the President and to his party, rather than not loyal to that, but rather loyal to the Constitution and chosen and selected on the basis of what they know, and what they’ve done. And on the basis of basis of merit. So one of

Candis Watts Smith
I think one of the themes that, that I’ve noticed, just thinking about our conversation from last week, and Don’s insights today are that we are kind of getting into this situation where there is one party that is solving problems that don’t exist, like voter fraud, that are bringing to fruition problems that they say that we need solving. So like we don’t actually have a problem about Deep State and the bureaucracy being incredibly political, that would be a problem. And so I’m thinking about abortion and voting, but also we’ll see hear about issues around regulation around state capacity around actually implementing laws and policies that, you know, they prefer not to be implemented. So I think, you know, coming together, we can see the kind of challenges of, of governance and the kind of governance that people that voters want to see. They want to see government work, and they want it to work smoothly, to protect our rights to protect clean air, climate, schools, health, you know, public health, and that is becoming increasingly difficult when we undercut the administrative state

Michael Berkman
And Ronald Reagan had a very explicit strategy to try to sort of hollow out the administrative state because, as you note, and I think we’ll probably hit this a little bit more in the second part as as well. But both conservative courts conservative legal theory, and the Republican Party has gone after the administrative state because they know that weakening the capacity of the administrative state weakens the ability of the government to act. And, you know, the administrative state really grew from the New Deal period on, and it has to be recognized that it grew because Congress and the President wanted it to grow. It grew through the delegation of power to it. And so as the federal government became more involved in a whole range of different kinds of activities, Congress would find that it didn’t really want to make all the decisions that went along with acting in the areas of public welfare and public health. And I could go on and on, right and in, in controlling what people grow on their farms and in regulating industries, and regulating communications, and on and on all the areas right, where government became involved. And so it would grant increasingly sort of abstract or vague grants of discretion to the administration, giving them more and more power to act on their own rather than directly by Congress, because Congress didn’t want it to. And the administrative state exists because Congress developed it to carry out various capacities.

Candis Watts Smith
That kind of provision of power is also kind of under the assumption that we are giving that power and discretion to people who are experts and a political Exactly. Going to do the work, because it’s the right thing to do. It’s the right steps to take, and not because it’s, you know, in their political interest to do to do that work.

Jenna Spinelle
Yeah, and these are all questions I think Don is certainly thinking about and writing about in in his newsletter, and I’m grateful that he took some time to talk with us. So let’s go now to the interview with Don Moynihan.

Jenna Spinelle
Dan Moynihan, welcome to democracy works. Thank you so much for joining us today.

Don Moynihan
Thank you for having me.

Jenna Spinelle
So the title of your Substack newsletter is can we still govern? And that is definitely a question I want to talk with you about in this conversation. But before we do that, I want to just talk for a minute about what it means to govern. In your book, administrative burden, there is, I think, a really simple and helpful definition of what governing is, I wonder if you could share that with us and maybe talk a little bit about what’s underneath that definition or where it comes from?

Don Moynihan
Yeah, I think we spend a lot of time talking about politics. In America, it’s sort of a national pastime that’s on par with things like sports. And we maybe spend a lot less time in terms of thinking about what it actually means to govern and what the purpose of politics is, which is to provide some sort of governance process where we enjoy basic rights, reasonably fair treatment, equal standing in terms of rule of law, as well as maybe enjoy some benefits and supports that make it more likely that we’ll have an ability to have a relatively prosperous and peaceful life. When we wrote our book about administrative burden, which was co authored with Pamela Hurd, who was also professor at Georgetown University. We wanted to look at governance from the perspective of the public. And you know, what we thought about or what are the costs that people experience when they interact with the public sector, either if they’re trying to receive some sort of benefit, or if they’re trying to exercise a right like trying to vote, or if they are subjected to some sort of state oversight, such as child protective services. And we focus on three types of costs. The idea that there are these learning costs, where you have to learn about them how you relate to government, like, you know, for example, what sorts of eligibility you might have for for a program, how you might apply, what sort of evidence you might need. The second type of cost is compliance costs, when we’re thinking about how to, for example, fill out forms, how much time you might spend waiting in line or if you have to hire a lawyer. If you have to travel long distances, those types of costs add up. And then the third category is psychological costs. And here we’re thinking about people’s sort of emotional or psychological experiences in interacting with government. And these could be ones of stress, fear, or it could be positive psychological experiences where people feel respected. And, you know, to boil all of that down, you know, our sort of normative expectation is that government should be generally simple, accessible, and respectful when we interact with it, because that is the type of government that we would prefer to engage with. And that requires certain types of traits and skills and capacities on the part of government, as well as mechanisms to keep it accountable to us, who are members of the public.

Jenna Spinelle
And to your point earlier about, we follow politics like a sport, we spent a lot of time on the ins and outs of bills going through the chambers of Congress and then going to the President and all the the machinations that happen along the way, but then, you know, the President signs a bill, you don’t really hear about it being implemented. So can you give us give us a sense of of what happens how all of the, you know, provisions outlined in these bills as they pass through the legislature are actually implemented?

Don Moynihan
Yeah. And I think, you know, the the primaries, if you’re a question reflects something that maybe is not clear, which is the idea that policy implementation is democracy in action, you know, we often think about democracy is that one time every maybe two years or four years when we go to the polls, fill out a ballot and submit it. But the other side of that equation is that the people we elect are tasked with actually not just designing, but implementing some sort of policies, that that’s the output of democracy that we need to pay attention to. And so again, we really focus on the horse race part, the inputs to democracy, where we elect people, and perhaps give much less attention to those processes of policy implementation. I think the inflation Reduction Act is emblematic of a couple of traits about how we think about policy implementation generally, as well as it breaks the mold in some important ways to so the one thing that’s true is that in recent years, normal processes of policymaking have become more and more disjointed. And so you know, to two measures of that would be the in sort of a traditional view, the process of just paying for agencies to do their job, the appropriations process would happen every fall, it would, there would be a separate bill for each agency. And over time, there’s less and less of that happening either on time or as a standalone bill. And instead, we’re moving towards these sorts of giant omnibus bills, where in order to get something passed, you have to have these collections of lots of different stuff in place together. And the inflation Reduction Act has lots of different stuff in it. It’s also reflective of sort of a rebranding of Biden’s original bill back back better, where, you know, when Biden was elected, he had this fairly ambitious domestic policy agenda, which over time has been reduced significantly, and then rebranded partly to meet the demands of moderates and the Democratic Party. But it still has some fairly significant components. And I think, you know, one would be the climate change provisions, but the part that I’m most interested in as a policy implementation person, is the IRS. And so the bill includes an extraordinary amount of new funding about $80 billion for the IRS, which reflects, I think, some very real needs, but also breaks the mold in terms of what we’ve seen, in terms of a long term pattern of decline in funding for the IRS to do its basic jobs. And we’ve seen that in terms of decline of both number of personnel and the IRS, the number of audits that they complete, the increasing delays that people experience when they encounter with the IRS. All of those signs have been going in the wrong direction where the IRS has basically been able to do its job and you know that this perhaps reflects partly the fact that people don’t like to pay taxes and it’s easy to attack the IRS but all sort of maybe a deeper weaponization of this sort of populist discontent over the last decade or so, where, especially on the Republican side, there has been a push to cut funding for IRS, even as we’re asking it to perform more and more tasks as well as serve a bigger population.

Jenna Spinelle
Yeah. And, you know, speaking of the IRS, I know you also wrote about it in your newsletter in the context of public private partnerships, I think, you know, the TurboTax software and the company that makes TurboTax, or pretty much synonymous with filing your taxes. Can you talk about the role that the private sector plays and policy implementation? And maybe what’s good? And what’s bad about getting business involved in these government functions?

Don Moynihan
Yeah, that’s a great question. And when I talk to my students, we talk about the role of the private sector in governing, and the ways in which that has both pros and cons. And at a basic level, if you were trying to do things that you think perhaps government does not have, core competency in, and the private sector does, it might make a great deal of sense to partner or contract with the private sector, to bring that competency into government rather than try to build that within government, which might be more expensive, and still might produce lesser results than in the private sector. So those are the potential pluses. And those potential pluses certainly were in the minds of policymakers, I think, when they created this public private partnership between the IRS and the private tax reporting industry, which includes primarily companies like Intuit, which makes TurboTax or h&r block. So these are companies that you pay in order to help you submit your taxes. Around 2000. There was this question of, you know, obviously, that the internet is going to change tax reporting, and how do we deal with this one, Pat, that, at least for a short period of time, the Bush administration at the time was considering was that the IRS would allow people to file directly with them, we create its own software to do so. And fairly quickly, the tax preparation industry pushback very strongly against this. And this is where I think the other aspect of public private partnerships that’s a little bit more negative, which is the idea of rent seeking, or capture comes to play. And so you have these private actors who are really motivated to make sure the IRS does not get in the tax reporting game, even though that’s sort of core function. And they lobby Congress and they lobby the administration to instead create this public private partnership, where in theory, IRS and these private tax reporting industry companies would jointly create this product where, and I think this, you know, in most members of the public would probably prefer to not have to spend money on this, but it requires some investment and administrative capacity and some resources to do this properly. And so, you know, I’ve written about this, I think one other positive aspect of the inflation Reduction Act, is that it asks the IRS to go back to this question of whether it should be producing its own tax filing software.

Jenna Spinelle
Right. So I want to talk about the relationship between administrative capacity and administrative burdens. Is it fair to say that, you know, the lower or the more diminished administrative capacity is the higher potential there is for administrative burden on everyday citizens? And then also, you know, I’m also thinking about the role that, you know, recruitment and kind of workforce issues play here and and the government’s ability to recruit and retain the people who are necessary to make some of these larger scale changes, like, you know, writing a system to be able to, you know, for people to submit taxes directly to the IRS.

Don Moynihan
And those two questions are really connected, because part of state administrative capacity is who you were able to recruit and retain. And, you know, I think it’s been the problem for state governments and the federal government’s to be able to recruit high quality information technology specialists and to keep them doing government work. For a variety of reasons, but you know, there are some differences, certainly in terms of pay, as well, as you know, the the hiring part of most civil service systems tends to have a certain rigidity. And so what happens in practice is that you often have state governments and federal governments contracting out for a lot of these services, where they often don’t have the internal capacity even to write and monitor the contracts terribly well. And so it’s very easy for them to be taken advantage of, by private vendors, who have the ability to hire that talent. But from the broader perspective, I think the relationship between state capacity and administrative burdens is all else equal, as you described it, the less capacity you have, the more burdens people can expect. This is partly because, you know, burdens become somewhat inevitable as the state does more and becomes more ambitious and provides things like public services. And so you know, if you, if you imagine a state, that’s very, very basic, and they’re not providing any public services, then there’s not a lot of burdens, because people are not actually interacting with the state. But as the state starts to do more than some of those frictions arise, and so then it becomes partly a question of, where are those burdens land? Does it land on the shoulders of government? Or is it possible to actually shift the burdens from the public and on to the state,

Jenna Spinelle
As you know, we are facing, you know, challenges even one or several levels up from this, in that, you know, we have anti democratic tendencies and an increasingly fractured public, as you note in the description of your newsletter. So I want to kind of take these separately, if that’s okay. And, you know, I guess we’ll maybe start with the anti democratic tendencies. You know, we’ve certainly heard people like Steve Bannon for years railing against the administrative state. And I think that that rhetoric is certainly spread far beyond him. And even maybe moving into the realm of of policy through things like Schedule F, which I know You’ve also written about, how do you assess what is what is just rhetoric or was just bluster here versus what the actual threats or dangers are to the process of policy implementation?

Don Moynihan
Yeah, you can you can see from the 1960s Onward, in sort of modern America, this increase in political rhetoric, that’s anti government. Now, there’s always been in America suspicion of sort of centralist power that partly reflects the status of being a former colony. And that’s, you know, certainly there at the origin. But if you look, say, in the last 6070 years, in the 1950s, and 60s, you see relatively high trust in government, and then you see sort of a decline of that gradually over time. Part of that, I think, is tied to the fact that both political parties increasingly ran against government. And so if you look at, say, the political rhetoric of successful presidential candidates, from the 1960s, late 1960s, on this consistently, this theme of running as an outsider, running against governments dealing with the bureaucracy, so I think that tendency was more severe on the Republican side, but you also see it on the Democratic side, too. And you see very few political candidates talk to the public about the importance and value of the administrative state. So some of that was rhetoric. And some of that was bluster. I think what we’ve seen in the sort of current populist era of Republican politics, is that it very much is not rhetoric, and it is very much a driving factor in how they think about how our state and how our democracy should be run. And so you know, Steve Bannon is very serious about deconstructing the administrative state. And I think over time, his views on that gained support within the Trump administration, not because Trump was deeply committed to many of these ideas, but because with his impeachment, he viewed his political enemies as including career officials who are willing to, you know, be whistleblowers, identifying the fact that he had violated the law by withholding aid in exchange for political promises, and then testified against them. And that, you know, certainly raised, you see a change in focus on Trump in last year of his administration after his first impeachment, where he goes directly after anyone he perceives as being disloyal. And in that timeframe, you see Schedule F emerge, didn’t get a lot of attention at the time, it’s starting to get more attention now. But this executive order basically just says, the president can reclassify any career official, who has some sort of policymaking or policy advisory role, moving them from the civil service class where they have some basic job protections. And their their expected role is not to be a political actor, to the political appointee class where they serve at the pleasure of the President and can be dismissed for essentially any, you know, reason that the President deems to be appropriate. And this, you know, Schedule F is really the sword that’s hanging over us democracy at the moment, because if it is used in such a way, by someone with an authoritarian approach to government, it would give them the keys to take control of the bureaucracy to fire anyone who raises concerns, or provides evidence of wrongdoing. And to you turn the administrative state into the sort of deep state caricature in the populist imagination where the state is then used to punish your political enemies and reward your political friends and is not really accountable to basic democratic processes.

Jenna Spinelle
If, as you said, you know, someone with with authoritarian tendencies would try to put some of this into practice, are there are there any checks here that that might either prevent or or in some way slow this down,

Don Moynihan
There’s one basic solution to Schedule F, which is that Congress should do something to stop it. And Congress has the power to do so. So the way in which our civil service system emerged is that Congress designed civil service laws and then again, delegated power to the executive branch, largely on the assumption that the people who are using that power, or we’re going to use it for democratic purposes, would perhaps tailor their personnel systems to the different needs of different types of agencies. But it Congress can very easily just come back and reclaim some of that delegated power. With Schedule F, it could simply say, we do not grant authority for this to happen. Or it could do something like put a hard cap on the number of officials who could be converted via Schedule F. And yet, you know, just for a sense of perspective, we have about 4000 political appointees in the federal government. And so that would represent, you know, 50% increase in the number of political appointees, but it will provide some reassurance that this would not completely abandoned the civil service system. And so there is this very clear solution. It’s just whether you can get a couple of Republicans in the Senate to realize it’s in their interests as members of Congress to make sure that they do not lose this ability to provide oversight of the federal personnel system.

Jenna Spinelle
Right. And so, you know, the other part of this this question that underlies your newsletter is your Can we still govern amidst an increasingly fractured public and we talk a lot about the impacts of, of polarization. And you know, what happens when we become too polarized, but I’ll admit, I hadn’t really thought about it in this context of, of government and policy implementation. So can you talk a little bit about how a divided public might impede on on these abilities?

Don Moynihan
Yeah, I, when I started writing the newsletter, it was partly out of the sense that the role of government and the quality of government is often forgotten in in many of these debates about polarization. And, you know, we know that polarization really affects the ways in which we think about Politics. So that there’s this phrase that political scientists use, which is motivated reasoning. And what motivated reasoning means is that our political identity becomes the lens through which we view the world. And I’ve done some research where you know, you can see that extend to government performance, or how willing people are to attribute blame or give credit when performance is good or bad. So, you know, maybe to optimistically, I sort of look at the past as a period where there was at least some basic agreement coming out of World War Two, that having a competent, reasonably well functioning government served everyone well. And I don’t think that’s true any longer, partly because we haven’t experienced the alternative. And also, partly because a lot of people are not really thinking about this rationally, but are instead thinking about a true the lens of their political identity, which, particularly on the conservative side, has become anchored to a lot of conspiratorial beliefs that are just not grounded in reality.

Jenna Spinelle
So as we we had toward the midterms, and perhaps even looking farther out to the 2024 elections, what are some of the things that you’re going to be looking for or keeping an eye on as it relates to some of these policy implementation, things that that we’ve been talking about?

Don Moynihan
I think part of what I’m looking for and hoping to see is whether it is still live in a bipartisan center. And so you know, whether you can still find moderate Republicans who are interested in the quality of the administrative state, and are willing to find some common ground with Democrats. So for example, dealing with issues like modernizing government and the civil service system, blocking off these potentially disastrous grabs for power, like Schedule F, you need to have a few moderate Republicans in place. I’m hopeful that they’re still out there. But the current sort of populace moment, seems to have wiped out the incentives for a lot of Republicans to occupy that space. I think the second thing I’m really trying to pay attention to and understand is whether this populist moment is going to pass what are you know, it’s like a fever that’s going to break at some point. And that would, you know, the most obvious potential is if Trump runs again and does not succeed, or if he does not run again, or if ultimately the this sort of Trumpian approach to government and to public services, has become the main lane through which Republicans view government and likely presidential candidates think about government. I mean, maybe less optimistic on that front. I think the third and sort of final thing I’m going to look for is where are the potential success stories here? So where are the places where you can really see changes in government, even at the sort of smaller level, even if it’s like these little technological improvements that makes government work better for people and trying to amplify those stories, because I think there is a tendency for us to maybe look more closely at stories of government failures, and not really pay attention to stories of positive changes in government and that creates a sort of vicious circle where we may be come away with a more negative than justified view of administrative capacity.

Jenna Spinelle
We will keep an eye out together Don and link to your newsletter in the show notes for anyone who wants to subscribe but thank you so much for your time today.

Don Moynihan
Thank you Jenna.

Candis Watts Smith
I really appreciate you all starting by talking about this notion of governance and that you know, beyond on politics of making things work well, to ensure that rights are protected goods and services are provided, the rule of law is maintained. And so you know, I think what this conversation helps us also to understand is, there’s often a gap between the intention of policy and the implementation of policy. And that’s where this kind of conversation around administrative capacity becomes important to understand and appreciate. We are kind of, you know, living in a situation. And I think, kind of seeing, the thing that I noticed from your conversation with Don, is that there’s a concerted and multifaceted effort to reduce the size, power effect and capacity of the government to govern. And that is, you know, on one on one side, we see it through Schedule F. And then another way that we see it is through the role of courts. Another way that we see it is through the kind of increase of administrative burdens on the part of citizens. And so maybe we can just kind of break those three down, and just kind of maybe get into the weeds so that we can have a fuller appreciation of how these things come together and work to reduce administrative capacity.

Michael Berkman
Yeah, right. Candis, all three of those increasing the amount of administrative burden on people in order to receive government programs or policies. Talk about Schedule F, and it’s likely implementation. If a Republican I think not just Donald Trump were to be reelected. And then the kinds of decisions that are going on in the servant of appointed courts are all show us how, if you can’t overturn the policies that you don’t like, you can just make sure that they’re a lot more difficult to put into place, and that they can’t really be implemented fully or correctly. And of course, if you don’t implement things, well, then the public can turn against them. If you do implement them, well, then public is likely to support them. And it’s going to make it even harder to overturn policies that you might not like. And, and so there, you see that you see this being addressed from multiple directions Schedule F in terms of who the people are. That’s administering a court decision, such as recent decisions about the power of the CDC, in public health and the power of the EPA in the area of environment.

Candis Watts Smith
Yes, about the Schedule F is that it turns notions of meritocracy on its head, right. And so that were meritocracy, in a traditional sense here is about experience and expertise and the ability to do one’s job really well. And Schedule F has the potential to turn meritocracy into evaluations of loyalty to the President. And so, you know, here that kind of undercuts that the the necessity of expertise, and the, you know, the experience that that that people bring to their jobs to get things done.

Michael Berkman
And it requires Congress not to take an action to do this, it would be much harder, obviously, if given the filibuster, and all these anti majoritarian rules in in the legislature, if they were going to Congress and saying, let’s adopt a new system of bureaucracy, but rather, what’s going to happen here is the President will just act through an executive order, and then Congress has to try and get itself together to stop the executive order, under the same rules that it would have taken to put something into effect in the first place. So it makes him the second mover rather than the first.

Candis Watts Smith
You know, democracy is in part, the hinge on the idea that sometimes you’re in charge. And sometimes, you know, sometimes you’re doing the ruling, and sometimes you’re being ruled and you want to rule in a way that when you’re in the minority, you don’t get run roughshod over. And so I find it just fascinating that they haven’t gotten their selves together to kind of prevent this kind of work from happening. The other thing that we brought up is this business about the courts. And, you know, also that there are lawyers who are being trained to see the judges that will hear the cases. And so there are, you know, two recent cases West Virginia versus EPA. And there’s an SCC case, but both kind of serve to undercut the way in which the bureaucracy has traditionally worked. That, you know, Congress doesn’t do all of the nitty gritty rulemaking thing, they leave that to experts. They leave that to people with tons of experience. And the courts have essentially said, like, No, you guys need to be more specific. And also, like, you can’t in the case of the SEC, people need to go through jury trials, you can’t just go around saying that people violated a particular policy. And this also serves to undercut the administrative the administrative state, and so far is it’s kind of shifting the work to in this case, jury trials. And so we’ll see, I don’t know, I find this fascinating to see like, yep, where do you think this is going to take us?

Michael Berkman
Well, I think it’s going to take us increasingly in this direction. for exactly the reasons you just laid out that this has been a multi decade project within the within the Federalist Society within conservative courts more generally, the, you know, the other set of cases I put up there, there were these cases about the CDCs authority to limit what was going on religious services during COVID. And on all of that, so I think you’re gonna see just a lot more of this. It’s, it’s a very intentional, very intentional stretch.

Candis Watts Smith
And so you know, I’m glad that Don’s work is highlighting the things that we typically ignore, because things seem to be going fine. But we can see how, how quickly they can be unraveled, to be to be inefficient, and potentially anti democratic. Let’s just thank again, done for, for the for his insights and for that newsletter on, you know, just kind of a thing that’s incredibly important, but maybe just under studied. And for Jenna, thank you for the excellent interview on Candice Watts Smith for democracy works.

Michael Berkman
And I’m Michael Berkman.

Candis Watts Smith
Thanks for listening.

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The passage of the Inflation Reduction Act shines a light on the administrative state. How will the billions of dollars for Medicaid, green energy, and other provisions be spent and turned into policy? With the help of people whose jobs are largely nonpartisan and non-political. Complaints about government bureaucracy are nothing new but has recently moved beyond rhetoric to a concerted attack on policy implementation.

Don Moynihan, the McCourt Chair at the McCourt School of Public Policy at Georgetown, writes about the administrative state in his newsletter, Can We Still Govern? He joins us this week to discuss the promise of the Inflation Reduction Act, the looming peril of Schedule F, and whether a bipartisan, policy-focused coalition can emerge in 2022 and beyond.

Can We Still Govern? newsletter

Don Moynihan on Twitter

Episode Transcript

Michael Berkman
From the McCourtney Institute for Democracy at Penn State University. I’m Michael Berkman.

Candis Watts Smith
I’m Candis Watts Smith.

Jenna Spinelle
I’m Jenna Spinelle and welcome to Democracy Works. This week, we are talking with Don Moynihan, who is the McCourt chair at the McCourt School of Public Policy at Georgetown, and the author of The Substack newsletter, can we still govern? Also the author with Pamela heard of the book, administrative burdens, and I can think about the administrative state as being kind of wonky. But DOM really, she describes it as democracy in action, which I am and I never really thought of it that way till I started reading some of his work.

Candis Watts Smith
Yeah, I’m thrilled that he joined us on the show today and are bringing his insights. You know, I, I think like you said, Jenna, that kind of notion and conversation around the administrative state seems incredibly abstract. But I think and, you know, Don’s work, you know, shows that if we really want to understand how we move from bringing the public’s wants and desires that we, you know, work through the electoral process, when we the way that we get those wants and desires into fruition, we have to understand that beyond policy design and legislation, the implicit implementation of our laws and policies occur through the administrative state, if they don’t have the capacity to do their work, then well designed laws will never be fully experienced by the, by the public. And you know, in many ways, we really don’t see the administrative state. And I think it’s like, college administration, like if something is going well, we don’t notice it. But when things go wrong, we do like good roads, we like health care, but we don’t like taxes. Many people don’t like social welfare for people who they think are undeserving, and nobody likes red tape.

Michael Berkman
And, you know, I really I like your framing, about the importance of the administrative state to governing and to democracy, the way that the administrative state is organized. So if you think back to the times of political machines, where political parties really controlled politics in this country, the the giving out of administrative positions at all levels of government was very much a part of rewarding political supporters. And an effort to break political machines to break the power of political parties was the development of an apolitical administrative state or the civil service by the progressives in the early 1900s. So the importance of these civil servants, of course, is that they were selected and retained, not on the basis of political or partisan loyalty, but rather merit experience and expertise. And I want to highlight that point, because what we see going on today, and that went on during the during the Trump administration, is a belief that these that the people within the government, the people carrying out the activities of the government should be loyal to the President and to his party, rather than not loyal to that, but rather loyal to the Constitution and chosen and selected on the basis of what they know, and what they’ve done. And on the basis of basis of merit. So one of

Candis Watts Smith
I think one of the themes that, that I’ve noticed, just thinking about our conversation from last week, and Don’s insights today are that we are kind of getting into this situation where there is one party that is solving problems that don’t exist, like voter fraud, that are bringing to fruition problems that they say that we need solving. So like we don’t actually have a problem about Deep State and the bureaucracy being incredibly political, that would be a problem. And so I’m thinking about abortion and voting, but also we’ll see hear about issues around regulation around state capacity around actually implementing laws and policies that, you know, they prefer not to be implemented. So I think, you know, coming together, we can see the kind of challenges of, of governance and the kind of governance that people that voters want to see. They want to see government work, and they want it to work smoothly, to protect our rights to protect clean air, climate, schools, health, you know, public health, and that is becoming increasingly difficult when we undercut the administrative state

Michael Berkman
And Ronald Reagan had a very explicit strategy to try to sort of hollow out the administrative state because, as you note, and I think we’ll probably hit this a little bit more in the second part as as well. But both conservative courts conservative legal theory, and the Republican Party has gone after the administrative state because they know that weakening the capacity of the administrative state weakens the ability of the government to act. And, you know, the administrative state really grew from the New Deal period on, and it has to be recognized that it grew because Congress and the President wanted it to grow. It grew through the delegation of power to it. And so as the federal government became more involved in a whole range of different kinds of activities, Congress would find that it didn’t really want to make all the decisions that went along with acting in the areas of public welfare and public health. And I could go on and on, right and in, in controlling what people grow on their farms and in regulating industries, and regulating communications, and on and on all the areas right, where government became involved. And so it would grant increasingly sort of abstract or vague grants of discretion to the administration, giving them more and more power to act on their own rather than directly by Congress, because Congress didn’t want it to. And the administrative state exists because Congress developed it to carry out various capacities.

Candis Watts Smith
That kind of provision of power is also kind of under the assumption that we are giving that power and discretion to people who are experts and a political Exactly. Going to do the work, because it’s the right thing to do. It’s the right steps to take, and not because it’s, you know, in their political interest to do to do that work.

Jenna Spinelle
Yeah, and these are all questions I think Don is certainly thinking about and writing about in in his newsletter, and I’m grateful that he took some time to talk with us. So let’s go now to the interview with Don Moynihan.

Jenna Spinelle
Dan Moynihan, welcome to democracy works. Thank you so much for joining us today.

Don Moynihan
Thank you for having me.

Jenna Spinelle
So the title of your Substack newsletter is can we still govern? And that is definitely a question I want to talk with you about in this conversation. But before we do that, I want to just talk for a minute about what it means to govern. In your book, administrative burden, there is, I think, a really simple and helpful definition of what governing is, I wonder if you could share that with us and maybe talk a little bit about what’s underneath that definition or where it comes from?

Don Moynihan
Yeah, I think we spend a lot of time talking about politics. In America, it’s sort of a national pastime that’s on par with things like sports. And we maybe spend a lot less time in terms of thinking about what it actually means to govern and what the purpose of politics is, which is to provide some sort of governance process where we enjoy basic rights, reasonably fair treatment, equal standing in terms of rule of law, as well as maybe enjoy some benefits and supports that make it more likely that we’ll have an ability to have a relatively prosperous and peaceful life. When we wrote our book about administrative burden, which was co authored with Pamela Hurd, who was also professor at Georgetown University. We wanted to look at governance from the perspective of the public. And you know, what we thought about or what are the costs that people experience when they interact with the public sector, either if they’re trying to receive some sort of benefit, or if they’re trying to exercise a right like trying to vote, or if they are subjected to some sort of state oversight, such as child protective services. And we focus on three types of costs. The idea that there are these learning costs, where you have to learn about them how you relate to government, like, you know, for example, what sorts of eligibility you might have for for a program, how you might apply, what sort of evidence you might need. The second type of cost is compliance costs, when we’re thinking about how to, for example, fill out forms, how much time you might spend waiting in line or if you have to hire a lawyer. If you have to travel long distances, those types of costs add up. And then the third category is psychological costs. And here we’re thinking about people’s sort of emotional or psychological experiences in interacting with government. And these could be ones of stress, fear, or it could be positive psychological experiences where people feel respected. And, you know, to boil all of that down, you know, our sort of normative expectation is that government should be generally simple, accessible, and respectful when we interact with it, because that is the type of government that we would prefer to engage with. And that requires certain types of traits and skills and capacities on the part of government, as well as mechanisms to keep it accountable to us, who are members of the public.

Jenna Spinelle
And to your point earlier about, we follow politics like a sport, we spent a lot of time on the ins and outs of bills going through the chambers of Congress and then going to the President and all the the machinations that happen along the way, but then, you know, the President signs a bill, you don’t really hear about it being implemented. So can you give us give us a sense of of what happens how all of the, you know, provisions outlined in these bills as they pass through the legislature are actually implemented?

Don Moynihan
Yeah. And I think, you know, the the primaries, if you’re a question reflects something that maybe is not clear, which is the idea that policy implementation is democracy in action, you know, we often think about democracy is that one time every maybe two years or four years when we go to the polls, fill out a ballot and submit it. But the other side of that equation is that the people we elect are tasked with actually not just designing, but implementing some sort of policies, that that’s the output of democracy that we need to pay attention to. And so again, we really focus on the horse race part, the inputs to democracy, where we elect people, and perhaps give much less attention to those processes of policy implementation. I think the inflation Reduction Act is emblematic of a couple of traits about how we think about policy implementation generally, as well as it breaks the mold in some important ways to so the one thing that’s true is that in recent years, normal processes of policymaking have become more and more disjointed. And so you know, to two measures of that would be the in sort of a traditional view, the process of just paying for agencies to do their job, the appropriations process would happen every fall, it would, there would be a separate bill for each agency. And over time, there’s less and less of that happening either on time or as a standalone bill. And instead, we’re moving towards these sorts of giant omnibus bills, where in order to get something passed, you have to have these collections of lots of different stuff in place together. And the inflation Reduction Act has lots of different stuff in it. It’s also reflective of sort of a rebranding of Biden’s original bill back back better, where, you know, when Biden was elected, he had this fairly ambitious domestic policy agenda, which over time has been reduced significantly, and then rebranded partly to meet the demands of moderates and the Democratic Party. But it still has some fairly significant components. And I think, you know, one would be the climate change provisions, but the part that I’m most interested in as a policy implementation person, is the IRS. And so the bill includes an extraordinary amount of new funding about $80 billion for the IRS, which reflects, I think, some very real needs, but also breaks the mold in terms of what we’ve seen, in terms of a long term pattern of decline in funding for the IRS to do its basic jobs. And we’ve seen that in terms of decline of both number of personnel and the IRS, the number of audits that they complete, the increasing delays that people experience when they encounter with the IRS. All of those signs have been going in the wrong direction where the IRS has basically been able to do its job and you know that this perhaps reflects partly the fact that people don’t like to pay taxes and it’s easy to attack the IRS but all sort of maybe a deeper weaponization of this sort of populist discontent over the last decade or so, where, especially on the Republican side, there has been a push to cut funding for IRS, even as we’re asking it to perform more and more tasks as well as serve a bigger population.

Jenna Spinelle
Yeah. And, you know, speaking of the IRS, I know you also wrote about it in your newsletter in the context of public private partnerships, I think, you know, the TurboTax software and the company that makes TurboTax, or pretty much synonymous with filing your taxes. Can you talk about the role that the private sector plays and policy implementation? And maybe what’s good? And what’s bad about getting business involved in these government functions?

Don Moynihan
Yeah, that’s a great question. And when I talk to my students, we talk about the role of the private sector in governing, and the ways in which that has both pros and cons. And at a basic level, if you were trying to do things that you think perhaps government does not have, core competency in, and the private sector does, it might make a great deal of sense to partner or contract with the private sector, to bring that competency into government rather than try to build that within government, which might be more expensive, and still might produce lesser results than in the private sector. So those are the potential pluses. And those potential pluses certainly were in the minds of policymakers, I think, when they created this public private partnership between the IRS and the private tax reporting industry, which includes primarily companies like Intuit, which makes TurboTax or h&r block. So these are companies that you pay in order to help you submit your taxes. Around 2000. There was this question of, you know, obviously, that the internet is going to change tax reporting, and how do we deal with this one, Pat, that, at least for a short period of time, the Bush administration at the time was considering was that the IRS would allow people to file directly with them, we create its own software to do so. And fairly quickly, the tax preparation industry pushback very strongly against this. And this is where I think the other aspect of public private partnerships that’s a little bit more negative, which is the idea of rent seeking, or capture comes to play. And so you have these private actors who are really motivated to make sure the IRS does not get in the tax reporting game, even though that’s sort of core function. And they lobby Congress and they lobby the administration to instead create this public private partnership, where in theory, IRS and these private tax reporting industry companies would jointly create this product where, and I think this, you know, in most members of the public would probably prefer to not have to spend money on this, but it requires some investment and administrative capacity and some resources to do this properly. And so, you know, I’ve written about this, I think one other positive aspect of the inflation Reduction Act, is that it asks the IRS to go back to this question of whether it should be producing its own tax filing software.

Jenna Spinelle
Right. So I want to talk about the relationship between administrative capacity and administrative burdens. Is it fair to say that, you know, the lower or the more diminished administrative capacity is the higher potential there is for administrative burden on everyday citizens? And then also, you know, I’m also thinking about the role that, you know, recruitment and kind of workforce issues play here and and the government’s ability to recruit and retain the people who are necessary to make some of these larger scale changes, like, you know, writing a system to be able to, you know, for people to submit taxes directly to the IRS.

Don Moynihan
And those two questions are really connected, because part of state administrative capacity is who you were able to recruit and retain. And, you know, I think it’s been the problem for state governments and the federal government’s to be able to recruit high quality information technology specialists and to keep them doing government work. For a variety of reasons, but you know, there are some differences, certainly in terms of pay, as well, as you know, the the hiring part of most civil service systems tends to have a certain rigidity. And so what happens in practice is that you often have state governments and federal governments contracting out for a lot of these services, where they often don’t have the internal capacity even to write and monitor the contracts terribly well. And so it’s very easy for them to be taken advantage of, by private vendors, who have the ability to hire that talent. But from the broader perspective, I think the relationship between state capacity and administrative burdens is all else equal, as you described it, the less capacity you have, the more burdens people can expect. This is partly because, you know, burdens become somewhat inevitable as the state does more and becomes more ambitious and provides things like public services. And so you know, if you, if you imagine a state, that’s very, very basic, and they’re not providing any public services, then there’s not a lot of burdens, because people are not actually interacting with the state. But as the state starts to do more than some of those frictions arise, and so then it becomes partly a question of, where are those burdens land? Does it land on the shoulders of government? Or is it possible to actually shift the burdens from the public and on to the state,

Jenna Spinelle
As you know, we are facing, you know, challenges even one or several levels up from this, in that, you know, we have anti democratic tendencies and an increasingly fractured public, as you note in the description of your newsletter. So I want to kind of take these separately, if that’s okay. And, you know, I guess we’ll maybe start with the anti democratic tendencies. You know, we’ve certainly heard people like Steve Bannon for years railing against the administrative state. And I think that that rhetoric is certainly spread far beyond him. And even maybe moving into the realm of of policy through things like Schedule F, which I know You’ve also written about, how do you assess what is what is just rhetoric or was just bluster here versus what the actual threats or dangers are to the process of policy implementation?

Don Moynihan
Yeah, you can you can see from the 1960s Onward, in sort of modern America, this increase in political rhetoric, that’s anti government. Now, there’s always been in America suspicion of sort of centralist power that partly reflects the status of being a former colony. And that’s, you know, certainly there at the origin. But if you look, say, in the last 6070 years, in the 1950s, and 60s, you see relatively high trust in government, and then you see sort of a decline of that gradually over time. Part of that, I think, is tied to the fact that both political parties increasingly ran against government. And so if you look at, say, the political rhetoric of successful presidential candidates, from the 1960s, late 1960s, on this consistently, this theme of running as an outsider, running against governments dealing with the bureaucracy, so I think that tendency was more severe on the Republican side, but you also see it on the Democratic side, too. And you see very few political candidates talk to the public about the importance and value of the administrative state. So some of that was rhetoric. And some of that was bluster. I think what we’ve seen in the sort of current populist era of Republican politics, is that it very much is not rhetoric, and it is very much a driving factor in how they think about how our state and how our democracy should be run. And so you know, Steve Bannon is very serious about deconstructing the administrative state. And I think over time, his views on that gained support within the Trump administration, not because Trump was deeply committed to many of these ideas, but because with his impeachment, he viewed his political enemies as including career officials who are willing to, you know, be whistleblowers, identifying the fact that he had violated the law by withholding aid in exchange for political promises, and then testified against them. And that, you know, certainly raised, you see a change in focus on Trump in last year of his administration after his first impeachment, where he goes directly after anyone he perceives as being disloyal. And in that timeframe, you see Schedule F emerge, didn’t get a lot of attention at the time, it’s starting to get more attention now. But this executive order basically just says, the president can reclassify any career official, who has some sort of policymaking or policy advisory role, moving them from the civil service class where they have some basic job protections. And their their expected role is not to be a political actor, to the political appointee class where they serve at the pleasure of the President and can be dismissed for essentially any, you know, reason that the President deems to be appropriate. And this, you know, Schedule F is really the sword that’s hanging over us democracy at the moment, because if it is used in such a way, by someone with an authoritarian approach to government, it would give them the keys to take control of the bureaucracy to fire anyone who raises concerns, or provides evidence of wrongdoing. And to you turn the administrative state into the sort of deep state caricature in the populist imagination where the state is then used to punish your political enemies and reward your political friends and is not really accountable to basic democratic processes.

Jenna Spinelle
If, as you said, you know, someone with with authoritarian tendencies would try to put some of this into practice, are there are there any checks here that that might either prevent or or in some way slow this down,

Don Moynihan
There’s one basic solution to Schedule F, which is that Congress should do something to stop it. And Congress has the power to do so. So the way in which our civil service system emerged is that Congress designed civil service laws and then again, delegated power to the executive branch, largely on the assumption that the people who are using that power, or we’re going to use it for democratic purposes, would perhaps tailor their personnel systems to the different needs of different types of agencies. But it Congress can very easily just come back and reclaim some of that delegated power. With Schedule F, it could simply say, we do not grant authority for this to happen. Or it could do something like put a hard cap on the number of officials who could be converted via Schedule F. And yet, you know, just for a sense of perspective, we have about 4000 political appointees in the federal government. And so that would represent, you know, 50% increase in the number of political appointees, but it will provide some reassurance that this would not completely abandoned the civil service system. And so there is this very clear solution. It’s just whether you can get a couple of Republicans in the Senate to realize it’s in their interests as members of Congress to make sure that they do not lose this ability to provide oversight of the federal personnel system.

Jenna Spinelle
Right. And so, you know, the other part of this this question that underlies your newsletter is your Can we still govern amidst an increasingly fractured public and we talk a lot about the impacts of, of polarization. And you know, what happens when we become too polarized, but I’ll admit, I hadn’t really thought about it in this context of, of government and policy implementation. So can you talk a little bit about how a divided public might impede on on these abilities?

Don Moynihan
Yeah, I, when I started writing the newsletter, it was partly out of the sense that the role of government and the quality of government is often forgotten in in many of these debates about polarization. And, you know, we know that polarization really affects the ways in which we think about Politics. So that there’s this phrase that political scientists use, which is motivated reasoning. And what motivated reasoning means is that our political identity becomes the lens through which we view the world. And I’ve done some research where you know, you can see that extend to government performance, or how willing people are to attribute blame or give credit when performance is good or bad. So, you know, maybe to optimistically, I sort of look at the past as a period where there was at least some basic agreement coming out of World War Two, that having a competent, reasonably well functioning government served everyone well. And I don’t think that’s true any longer, partly because we haven’t experienced the alternative. And also, partly because a lot of people are not really thinking about this rationally, but are instead thinking about a true the lens of their political identity, which, particularly on the conservative side, has become anchored to a lot of conspiratorial beliefs that are just not grounded in reality.

Jenna Spinelle
So as we we had toward the midterms, and perhaps even looking farther out to the 2024 elections, what are some of the things that you’re going to be looking for or keeping an eye on as it relates to some of these policy implementation, things that that we’ve been talking about?

Don Moynihan
I think part of what I’m looking for and hoping to see is whether it is still live in a bipartisan center. And so you know, whether you can still find moderate Republicans who are interested in the quality of the administrative state, and are willing to find some common ground with Democrats. So for example, dealing with issues like modernizing government and the civil service system, blocking off these potentially disastrous grabs for power, like Schedule F, you need to have a few moderate Republicans in place. I’m hopeful that they’re still out there. But the current sort of populace moment, seems to have wiped out the incentives for a lot of Republicans to occupy that space. I think the second thing I’m really trying to pay attention to and understand is whether this populist moment is going to pass what are you know, it’s like a fever that’s going to break at some point. And that would, you know, the most obvious potential is if Trump runs again and does not succeed, or if he does not run again, or if ultimately the this sort of Trumpian approach to government and to public services, has become the main lane through which Republicans view government and likely presidential candidates think about government. I mean, maybe less optimistic on that front. I think the third and sort of final thing I’m going to look for is where are the potential success stories here? So where are the places where you can really see changes in government, even at the sort of smaller level, even if it’s like these little technological improvements that makes government work better for people and trying to amplify those stories, because I think there is a tendency for us to maybe look more closely at stories of government failures, and not really pay attention to stories of positive changes in government and that creates a sort of vicious circle where we may be come away with a more negative than justified view of administrative capacity.

Jenna Spinelle
We will keep an eye out together Don and link to your newsletter in the show notes for anyone who wants to subscribe but thank you so much for your time today.

Don Moynihan
Thank you Jenna.

Candis Watts Smith
I really appreciate you all starting by talking about this notion of governance and that you know, beyond on politics of making things work well, to ensure that rights are protected goods and services are provided, the rule of law is maintained. And so you know, I think what this conversation helps us also to understand is, there’s often a gap between the intention of policy and the implementation of policy. And that’s where this kind of conversation around administrative capacity becomes important to understand and appreciate. We are kind of, you know, living in a situation. And I think, kind of seeing, the thing that I noticed from your conversation with Don, is that there’s a concerted and multifaceted effort to reduce the size, power effect and capacity of the government to govern. And that is, you know, on one on one side, we see it through Schedule F. And then another way that we see it is through the role of courts. Another way that we see it is through the kind of increase of administrative burdens on the part of citizens. And so maybe we can just kind of break those three down, and just kind of maybe get into the weeds so that we can have a fuller appreciation of how these things come together and work to reduce administrative capacity.

Michael Berkman
Yeah, right. Candis, all three of those increasing the amount of administrative burden on people in order to receive government programs or policies. Talk about Schedule F, and it’s likely implementation. If a Republican I think not just Donald Trump were to be reelected. And then the kinds of decisions that are going on in the servant of appointed courts are all show us how, if you can’t overturn the policies that you don’t like, you can just make sure that they’re a lot more difficult to put into place, and that they can’t really be implemented fully or correctly. And of course, if you don’t implement things, well, then the public can turn against them. If you do implement them, well, then public is likely to support them. And it’s going to make it even harder to overturn policies that you might not like. And, and so there, you see that you see this being addressed from multiple directions Schedule F in terms of who the people are. That’s administering a court decision, such as recent decisions about the power of the CDC, in public health and the power of the EPA in the area of environment.

Candis Watts Smith
Yes, about the Schedule F is that it turns notions of meritocracy on its head, right. And so that were meritocracy, in a traditional sense here is about experience and expertise and the ability to do one’s job really well. And Schedule F has the potential to turn meritocracy into evaluations of loyalty to the President. And so, you know, here that kind of undercuts that the the necessity of expertise, and the, you know, the experience that that that people bring to their jobs to get things done.

Michael Berkman
And it requires Congress not to take an action to do this, it would be much harder, obviously, if given the filibuster, and all these anti majoritarian rules in in the legislature, if they were going to Congress and saying, let’s adopt a new system of bureaucracy, but rather, what’s going to happen here is the President will just act through an executive order, and then Congress has to try and get itself together to stop the executive order, under the same rules that it would have taken to put something into effect in the first place. So it makes him the second mover rather than the first.

Candis Watts Smith
You know, democracy is in part, the hinge on the idea that sometimes you’re in charge. And sometimes, you know, sometimes you’re doing the ruling, and sometimes you’re being ruled and you want to rule in a way that when you’re in the minority, you don’t get run roughshod over. And so I find it just fascinating that they haven’t gotten their selves together to kind of prevent this kind of work from happening. The other thing that we brought up is this business about the courts. And, you know, also that there are lawyers who are being trained to see the judges that will hear the cases. And so there are, you know, two recent cases West Virginia versus EPA. And there’s an SCC case, but both kind of serve to undercut the way in which the bureaucracy has traditionally worked. That, you know, Congress doesn’t do all of the nitty gritty rulemaking thing, they leave that to experts. They leave that to people with tons of experience. And the courts have essentially said, like, No, you guys need to be more specific. And also, like, you can’t in the case of the SEC, people need to go through jury trials, you can’t just go around saying that people violated a particular policy. And this also serves to undercut the administrative the administrative state, and so far is it’s kind of shifting the work to in this case, jury trials. And so we’ll see, I don’t know, I find this fascinating to see like, yep, where do you think this is going to take us?

Michael Berkman
Well, I think it’s going to take us increasingly in this direction. for exactly the reasons you just laid out that this has been a multi decade project within the within the Federalist Society within conservative courts more generally, the, you know, the other set of cases I put up there, there were these cases about the CDCs authority to limit what was going on religious services during COVID. And on all of that, so I think you’re gonna see just a lot more of this. It’s, it’s a very intentional, very intentional stretch.

Candis Watts Smith
And so you know, I’m glad that Don’s work is highlighting the things that we typically ignore, because things seem to be going fine. But we can see how, how quickly they can be unraveled, to be to be inefficient, and potentially anti democratic. Let’s just thank again, done for, for the for his insights and for that newsletter on, you know, just kind of a thing that’s incredibly important, but maybe just under studied. And for Jenna, thank you for the excellent interview on Candice Watts Smith for democracy works.

Michael Berkman
And I’m Michael Berkman.

Candis Watts Smith
Thanks for listening.

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