Arbitrary and Capricious

The Podcast of the C. Boyden Gray Center for the Study of the Administrative State

 

Welcome to “Arbitrary & Capricious,” a podcast focused on the issues being debated around the modern administrative state — some timeless ones, and some new ones. Here you will find audio from Gray Center events, and other interviews and debates with scholars, practitioners, and policymakers.

Our podcast isn’t arbitrary and capricious, but sometimes agencies are, so we will have much to discuss.


Episodes

Episode 34: Executive Privilege: A Discussion with Dean Mark Rozell

The words “executive privilege” are not found in the Constitution, but some form of presidential secrecy has been asserted by presidents from George Washington onward. The Supreme Court’s latest term ended with major decisions in two cases involving executive privilege: Trump v. Mazars USA, involving subpoenas from the House of Representatives; and Trump v. Vance, involving subpoenas from a New York district attorney. To discuss the history of executive privilege and modern developments, Adam White is joined by Mark Rozell, Dean of George Mason University’s Schar School of Public Policy and Government, and co-author of the newly published fourth edition of “Executive Privilege: Presidential Power, Secrecy, and Accountability.”

This episode features Mark Rozell and Adam White.


Episode 33: Evasive Entrepreneurs: Innovation and the Administrative State

How should transformative technologies approach the administrative state, and vice versa? In his latest book, “Evasive Entrepreneurs & the Future of Governance,” Adam Thierer of the Mercatus Center reports that tech companies are finding ways to outpace the regulators—and that this is a very good thing. In this episode, the Gray Center’s Executive Director, Adam White, interviews Thierer about his book (and his previous book, “Permissionless Innovation”), with an eye to how high-tech companies and governments might help improve each other—for all of us.

This episode features Adam Thierer and Adam White.


Episode 32: The Dubious Morality of Administrative Law

On July 6, the Federalist Society invited Adam White to interview Richard Epstein about his new book: “The Dubious Morality of Administrative Law,” for a public teleforum. Adam and Richard had a wide-ranging conversation about the book’s origin and major themes, and then Richard took questions from the audience. Richard previously keynoted two Gray Center conferences.

This episode features Richard Epstein and Adam White.


Episode 31: Tort Liability for Businesses During COVID-19

On June 18, 2020, the Gray Center co-sponsored a live webinar, “A Discussion on Tort Liability for Businesses During COVID-19,” in partnership with the Law and Economics Center at Antonin Scalia Law School. Risks of the COVID-19 spread create substantial uncertainty for businesses when deciding whether to open up and conduct business, especially as they try to identify their duties in preventing COVID-19 related injuries to employees and customers. The live webinar examined the economic and legal arguments for and against COVID-19-related business liability reform.

This episode features Donald J. Kochan, Timothy Lytton, David B. Rivkin, and Adam White.


Episode 30: Non-Presidential Administration

On February 6, 2020, the Gray Center hosted a public policy conference on “Bureaucracy and Presidential Administration: Expertise and Accountability in Constitutional Government.” The conference was inspired in part by James Q. Wilson’s book, Bureaucracy, and Elena Kagan’s article, “Presidential Administration.” The fourth and final panel examined non-presidential administration, focusing on two new papers: The first by Yale University’s Brian Libgober on “Agency Failure and Individual Accountability,” and the second on “Judicial Administration” by Arizona State University’s Bijal Shah.

This episode features Brian Libgober, Maureen Ohlhausen, Bijal Shah, and Judge Stephen Williams.


Episode 29: The Tools of Administrative Management

On February 6, 2020, the Gray Center hosted a public policy conference on “Bureaucracy and Presidential Administration: Expertise and Accountability in Constitutional Government.” The conference was inspired in part by James Q. Wilson’s book, Bureaucracy, and Elena Kagan’s article, “Presidential Administration.” The third panel looked at the tools of administrative management. It centered around two new papers: One on “Central Clearance as Presidential Management” by Andrew Rudalevige of Bowdoin College, and the other on “Regulating Agencies: Using Regulatory Instruments as a Pathway to Improve Benefit-Cost Analysis” by panelist Christopher Carrigan of the George Washington University’s Trachtenberg School, and his coauthors, Mark Febrizio of the George Washington University Regulatory Studies Center and Stuart Shapiro of Rutgers University.

This episode features Christopher Carrigan, Susan Dudley, Lisa Heinzerling, Andrew Rudalevige, and Philip Wallach.


Episode 28: Bureaucracy and Presidential Administration: Keynote Remarks by Jonathan Rauch

On February 6, 2020, the Gray Center hosted a public policy conference on “Bureaucracy and Presidential Administration: Expertise and Accountability in Constitutional Government.” At the event, keynote remarks on “The Need for Professionalism” were given by Jonathan Rauch, a Senior Fellow at the Brookings Institution. In his presentation, Mr. Rauch discussed professionalism as a lost virtue in modern life and modern administration.


Episode 27: Presidential Administration and Bureaucracy

On February 6, 2020, the Gray Center hosted a public policy conference on “Bureaucracy and Presidential Administration: Expertise and Accountability in Constitutional Government.” The conference was inspired in part by James Q. Wilson’s book, Bureaucracy, and Elena Kagan’s article, “Presidential Administration.” The second panel examined presidential administration and bureaucracy. It revolved around two new papers: “Restoring Accountability to the Executive Branch” by Philip K. Howard of Covington & Burling, and “Presidential Administration, the Appointment of ALJS and the Future of For Cause Protection” by Paul R. Verkuil of the Administrative Conference of the United States.

This episode features Ambassador C. Boyden Gray, Philip K. Howard, Paul R. Verkuil, and Adam White.


Episode 26: Bureaucracy, the Presidency, and the Origins of Federal Civil Service

On February 6, 2020, the Gray Center hosted a public policy conference on “Bureaucracy and Presidential Administration: Expertise and Accountability in Constitutional Government.” The conference was inspired in part by James Q. Wilson’s book, Bureaucracy, and Elena Kagan’s article, “Presidential Administration.” The first panel examined the bureaucracy, the presidency, and the origins of federal civil service. It focused on a new paper titled, “From Merit to Expertise and Back: The Evolution of the U.S. Civil Service System,” by Joseph Postell of the University of Colorado at Colorado Springs.

This episode features Andrew E. Busch, Brian J. Cook, Melanie Marlowe, and Joseph Postell.


Episode 25: What Is the Future of Administrative Law?

With the arrival of new Supreme Court justices, and with the emergence of new debates among scholars like Adrian Vermeule and Philip Hamburger over the Constitution and the administrative state, what will happen to Administrative Law? In a recent Harvard Law Review article, Notre Dame’s Professor Jeffrey Pojanowski assesses the scene and suggests a new school of thought: “Neoclassical Administrative Law.” In this episode, Adam White interviews Professor Pojanowksi about his article, which was workshopped early on at a Gray Center roundtable. They discuss the article and the conversation that it has sparked.

This episode features Jeffrey Pojanowski and Adam White.


Episode 24: Disruptive Technology and the Future of “Law”

On November 15, 2019, the Gray Center hosted a public policy conference on “Technology, Innovation, and Regulation.” For this conference, scholars wrote and presented papers on the way regulation affects technological innovation, and vice-versa. The fourth and final panel looked at disruptive technology and the future of “law.” It centered on two new papers, “Disruptive Deference for Disruptive Technology,” by Jennifer Huddleston, who was at the Mercatus Center at the time the conference was held, and “Will the ‘Legal Singularity’ Hollow Out Law’s Normative Core?” by Georgia State University College of Law’s Robert Weber.

This episode features Joshua Blackman, Jennifer Huddleston, Robert Weber, and Ross Davies.


Episode 23: Artificial Intelligence and the Future of Regulation

On November 15, 2019, the Gray Center hosted a public policy conference on “Technology, Innovation, and Regulation.” For this conference, scholars wrote and presented papers on the way regulation affects technological innovation, and vice-versa. The third panel examined artificial intelligence and the future of regulation and focused on a paper on “Algorithmic Accountability in the Administrative State,” which was co-authored by panelist David Freeman Engstrom of Stanford Law School, and David Ho of Stanford University.

This episode features David Freeman Engstrom, Melissa Netram, Catherine Sharkey, and Adam White.


Episode 22: Technology, Innovation, and Regulation: Keynote Remarks by Kate Lauer

On November 15, 2019, the Gray Center hosted a public policy conference on “Technology, Innovation, and Regulation.” Keynote remarks were given by Kate Lauer, an Advisor for Jiko and former Head of Global Regulatory Strategy for PayPal. In her presentation, Lauer discusses her observations on the current regulatory landscape for technology and innovation based on her career assisting tech companies with regulatory requirements.


Episode 21: “Regulatory Sandboxes” and Other Laboratories of Democracy

On November 15, 2019, the Gray Center hosted a public policy conference on “Technology, Innovation, and Regulation.” For this conference, scholars wrote and presented papers on the way regulation affects technological innovation, and vice-versa. The second panel looked at “regulatory sandboxes” and other laboratories of democracy, and focused on a paper titled “The Sandbox Paradox” co-authored by panelist Brian Knight of the Mercatus Center and Trace Mitchell, Research Assistant at the Mercatus Center.

This episode features Remington Gregg, Brian Knight, Kathryn Ciano Mauler, and Paolo Saguato.


Episode 20: Should Social Media Be Regulated for “Neutrality?”

On November 15, 2019, the Gray Center hosted a public policy conference on “Technology, Innovation, and Regulation.” For this conference, scholars wrote and presented papers on the way regulation affects technological innovation, and vice-versa. The first panel examined whether social media should be regulated for “neutrality,” and focused on a paper by Michigan State University College of Law’s Adam Candeub on “Common Carriage and Section 230.”

This episode features Adam Candeub, Anupam Chander, Andrew Kloster, Lori Moylan, and Adam Thierer.


Episode 19: Judging “Adjudication” with Will Baude

For nearly a century, one of the most contentious issues in the Administrative State has been agency “adjudication” — that is, the power of agencies to adjudicate disputes among private parties, or disputes between private parties and the government. But what if a century’s debate has actually caused us to forget what the issues really are?

In the new issue of the Harvard Law Review, Professor William Baude brings us back to first principles on the question of “Adjudication Outside Article III.” In this podcast, Professor Baude discusses his article with the Center’s Executive Director, Adam White.


Episode 18: Judicial Review and Immigration Law

On October 25, 2019, the Gray Center hosted “The Administration of Immigration.” The fourth and final panel looked at the role of judicial review in immigration law. The discussion centered around two new papers. The first was “Chevron‘s Asylum: Re-Assessing Deference in Refugee Cases,” by Michael Kagan of the University of Nevada Las Vegas, and the second was “Recalibrating Judicial Review in Immigration Adjudication,” by Christopher Walker of the Ohio State University.

This episode features Michael Kagan, David Rubenstein, Christopher Walker, and Adam White.


Episode 17: Costs of Our Immigration System: Who Does the Burden Fall On?

On October 25, 2019, the Gray Center hosted “The Administration of Immigration.” The third panel looked at costs of the U.S. immigration system. The discussion centered around two new working papers: First, “Silence and the Second Wall” by panelists Ming Hsu Chen and Zachary R. New. The second paper, “A Seat at the Table for Citizens: Why the National Environmental Policy Act (NEPA) Applies to Immigration and How Best to Implement this Long Overdue Reform” was authored by Julie Axelrod.

This episode features Julie Axelrod, Ming Hsu Chen, Andrew Kloster, Zachary New, and Adam White.


Episode 16: The Administration of Immigration: Keynote Remarks by James McHenry

On October 25, 2019, the Gray Center hosted “The Administration of Immigration.” The event featured keynote remarks from James McHenry, Director of the Executive Office of Immigration Review at the United States Department of Justice. In his presentation, McHenry describes the work of the Office of Immigration Review and places it into the context of the broader discussions we had on immigration law and policy.


Episode 15: Discussing Delegations

Does the Constitution set limits on the powers that Congress authorizes agencies to exercise? Last year, in Gundy v. United States, Justice Gorsuch issued a dissenting opinion calling for a reinvigorated “nondelegation doctrine.” He was joined by Chief Justice Roberts and Justice Thomas. Gorsuch’s dissent, along with Justice Alito’s separate opinion, and a subsequent opinion from Justice Kavanaugh, have inspired significant new research by a number of legal scholars. One of the first major contributions to this wave of new scholarship is a draft article by Professors Nicholas Bagley and Julian Davis Mortenson.

In this podcast, Professor Bagley is our guest, discussing the issues with the Gray Center’s Executive Director, Professor Adam White.


Episode 14: Is Immigration Law Special? National Security, Special Courts, and “For This Ride Only” Law

On October 25, 2019, the Gray Center hosted “The Administration of Immigration.” The conference’s second panel looked at national security, special courts, and whether immigration law is special. The discussion revolved around a new working paper on “The Forgotten FISA Court: Exploring the Inactivity of the Alien Terrorist Removal Court” by panelist Aram Gavoor (co-authored by Timothy Belsan).

This episode features Aram Gavoor, Brianne Gorod, Jesse Panuccio, and Ilya Shapiro.


Episode 13: The Moral Underpinnings of Immigration Law

On October 25, 2019, the Gray Center hosted “The Administration of Immigration.” The conference’s first panel looked at moral underpinnings of immigration law. It featured a discussion about three new working papers, one by Craig S. Lerner on “Crimes Involving Moral Turpitude”: The Puzzling and Persistent (and Constitutional) Immigration Law Doctrine,” one by William W. Chip on “E-Verify: Mining Government Databases to Deter Employment of Unauthorized Aliens,” and a paper by Cassandra Burke Robertson on “Litigating Citizenship” (co-authored by Irina Manta).

This episode features William W. Chip, Andrew Kloster, Craig S. Lerner, and Cassandra Burke Robertson.


Episode 12: The IRS, Congress, and the President’s Tax Returns

On October 4, 2019, the Gray Center co-hosted “The Administration of Democracy⏤The George Mason Law Review’s Second Annual Symposium on Administrative Law. The panel session from the symposium that is featured in this episode looked at the IRS, Congress, and the President’s tax returns. Speakers discussed a paper titled “The President’s Tax Returns” by Andy Grewal.

This episode features Andy Grewal, Michael L. Stern, Kate Shaw, Elizabeth Wydra, and Adam White.


Episode 11: The Democracy of Administration

On October 4, 2019, the Gray Center co-hosted “The Administration of Democracy⏤The George Mason Law Review’s Second Annual Symposium on Administrative Law. The panel session from the symposium that is featured in this episode focused on the democracy of administration. Speakers discussed a paper by Russell L. Weaver, titled “Rulemaking in an Internet Era: Dealing with Bots, Trolls & ‘Form Letters.'”

This episode features Russell L. Weaver, Reeve T. Bull, Maleka Momand, Caroline Cecot, and Adam White.


Episode 10: The Administration of the Census

On October 4, 2019, the Gray Center co-hosted “The Administration of Democracy⏤The George Mason Law Review’s Second Annual Symposium on Administrative Law. The panel session from the symposium that is featured in this episode examined the administration of the census, focusing on a paper titled, “Motive and Opportunity: Courts’ Intrusions into Discretionary Decisions of Other Branches—A Comment on Department of Commerce v. New York” by Ron Cass.

This episode features the Honorable Ronald A. Cass, Jesse Panuccio, Allyson N. Ho, Conor Woodfin, and Adam White.


Episode 9: The Administration of Federal Campaign Finance Laws

On October 4, 2019, the Gray Center co-hosted “The Administration of Democracy⏤The George Mason Law Review’s Second Annual Symposium on Administrative Law.” The panel session from that symposium that is featured in this episode focused on the administration of federal campaign finance laws. The discussion centered on two new papers: Bradley Smith’s paper, “Feckless: A Critique of Criticism of the Federal Election Commission Structure, and Possible Lessons for the Administration of Campaign Finance and Election Law,” and Richard Pierce’s paper, “A Realistic Version of Campaign Finance Reform and Two Essential Steps Toward a Return to Effective Governance.”

This episode features Bradley A. Smith, Richard J. Pierce, Ciara Torres-Spelliscy, Trevor Potter, Conor Woodfin, and Adam White.


Episode 8: The Administration of Elections

On October 4, 2019, the Gray Center co-hosted “The Administration of Democracy⏤The George Mason Law Review’s Second Annual Symposium on Administrative Law.” The panel session from that symposium that is featured in this episode focused on the administration of elections. The discussion revolved around three new papers: “Bush v. Gore, Decentralized Election Administration, and the Equal Protection Right to Vote” by Michael Morley; “How Independent is Too Independent?: Redistricting Commissions and the Growth of the Unaccountable Administrative State,” by Jason Torchinsky and Dennis Polio; and “Independent Institutions and the Design of Fair Districting Maps” by Richard Pildes.

This episode features Michael T. Morley, Jason Torchinsky, Richard H. Pildes, Andrew Kloster, and Adam White.


Episode 7: The Administration of Democracy: Campaign Finance Regulation Today

On October 4, 2019, the Gray Center co-hosted “The Administration of Democracy⏤The George Mason Law Review’s Second Annual Symposium on Administrative Law.” The keynote conversation featured Robert Bauer, now at NYU Law School, and Donald McGahn, currently a Partner at Jones Day, discussing the current state of political campaigns and elections, and whether reforms are needed. This session was moderated by the Gray Center’s Executive Director, Adam White.


Episode 6: Why Does Congress Delegate Power?

On October 8, 2019, the Gray Center lost a great friend and mentor when Michael Uhlmann passed away at the age of 79. Professor Uhlmann served most recently as a Professor of Government at the Claremont Graduate University and Claremont McKenna College; previously he served in the federal government’s executive and legislative branches, taught at George Mason University, and contributed his efforts and experience to many other institutions. He was a friend and mentor to many, including the Gray Center’s Director, Adam White. We were grateful to him for serving on our Advisory Council, and we miss him greatly.

In his honor, we are releasing the audio from a 2019 conference at which he spoke on Congress and the Administrative State.


Episode 5: Improving Agency Cost-Benefit Analysis

On September 13, 2019, the Gray Center hosted a conference on The Future of White House Regulatory Oversight and Cost-Benefit Analysis. The conference’s fourth and final panel session focused on improving agency cost-benefit analyses. Panelists discussed three new papers: Caroline Cecot and Robert Hahn’s paper on “Transparency in Agency Cost-Benefit Analysis”; Jerry Ellig and Richard Williams’s “David Versus Godzilla: Bigger Stones”; and William Yeatman’s paper, “Why Two Congressional OIRA Are Better Than One.”

This episode features Caroline Cecot, Richard Williams, Will Yeatman, Connor Raso, and Adam White.


Episode 4: Regulatory Budgets & Executive Order 13771

On September 13, 2019, the Gray Center hosted a conference on The Future of White House Regulatory Oversight and Cost-Benefit Analysis. During the third panel at the event, speakers discussed the use of “regulatory budgets” in White House regulatory oversight, and Jim Tozzi presented a new paper on OIRA and regulatory budgets.

This episode features Jim Tozzi, Chris DeMuth, Richard Pierce, Anthony Campau, and Andrew Kloster.


Episode 3: Cost-Benefit Analysis in Court

On September 13, 2019, the Gray Center hosted a conference on The Future of White House Regulatory Oversight and Cost-Benefit Analysis. The conference’s second panel session focused on the place of cost-benefit analysis in judicial review of agency action. We discussed two new papers: “Codifying the Cost-Benefit State,” by Brian Mannix and Bridget Dooling; and “The Ascendancy of the Cost-Benefit State,” by Paul Noe.

This episode features C. Boyden Gray, Bill Buzbee, Bridget Dooling, Paul Noe, and Kristin Hickman.


Episode 2: What Role Should OIRA Play?

On September 13, 2019, the Gray Center hosted a conference on The Future of White House Regulatory Oversight and Cost-Benefit Analysis. In the conference’s first panel session, which focused on OIRA, speakers discussed two new papers: Former OIRA Administrator Susan Dudley’s paper, titled “OIRA Past and Present,” and a paper by Rutgers University Professor Stuart Shapiro, titled “OIRA’s Dual Role and the Future of Cost Benefit Analysis.”

This episode features Susan Dudley, Stuart Shapiro, Chris DeMuth, Sally Katzen, and Adam White.


Episode 1: Introducing “Arbitrary & Capricious” 

The Gray Center’s Executive Director, Professor Adam White, introduces the podcast and offers a few thoughts on the Center’s work.