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 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.