Gillian Metzger

So I think you're right on both of those, court big winner, Congress big loser. When you focus on these cases, the underlying theme of the court's recent decisions in the space about deference, in all aspects of the administrative state, is a real skepticism of administrative power and of the actions by administrative agencies. It's a very anti-regulatory court.

So I think you're right on both of those, court big winner, Congress big loser. When you focus on these cases, the underlying theme of the court's recent decisions in the space about deference, in all aspects of the administrative state, is a real skepticism of administrative power and of the actions by administrative agencies. It's a very anti-regulatory court.

And it's hard to think that a decision like Loper Bright isn't going to end up pulling back on agency power precisely because the motivation of it is so anti-administrative. In terms of the president, what we're kind of left with is this oddity where the president is given some powers that are expanded, the removal power we were talking about, the immunity.

And it's hard to think that a decision like Loper Bright isn't going to end up pulling back on agency power precisely because the motivation of it is so anti-administrative. In terms of the president, what we're kind of left with is this oddity where the president is given some powers that are expanded, the removal power we were talking about, the immunity.

But when the president wants to do something, what the president is going to need often is administrative capacity and administrative authority. And that's exactly what the court is pulling back. And particularly if you think that their motivation in emphasizing the president's power to remove executive officials is some desire to preserve political accountability.

But when the president wants to do something, what the president is going to need often is administrative capacity and administrative authority. And that's exactly what the court is pulling back. And particularly if you think that their motivation in emphasizing the president's power to remove executive officials is some desire to preserve political accountability.

Well, political accountability means the president being able to actualize the things the president promises the president will do. And to do that, the president needs administrative capacity. So there's a real tension there about what the impact will ultimately be of the full arc of the court's decisions on presidential power.

Well, political accountability means the president being able to actualize the things the president promises the president will do. And to do that, the president needs administrative capacity. So there's a real tension there about what the impact will ultimately be of the full arc of the court's decisions on presidential power.

So the Court of the 1930s, this is the court over the period of the New Deal. So it begins the 1930s with tremendous antipathy towards the new regulatory regimes that restricted business power, that gave labor new rights, and argue that those regimes are unconstitutional.

So the Court of the 1930s, this is the court over the period of the New Deal. So it begins the 1930s with tremendous antipathy towards the new regulatory regimes that restricted business power, that gave labor new rights, and argue that those regimes are unconstitutional.

They exceed Congress's power under the Commerce Clause, for example, or they represent untoward, in one case, untoward delegation of power to agencies. But by the end of the 1930s, starting in 1937, the court accepts these regulatory regimes and starts rejecting those constitutional attacks.

They exceed Congress's power under the Commerce Clause, for example, or they represent untoward, in one case, untoward delegation of power to agencies. But by the end of the 1930s, starting in 1937, the court accepts these regulatory regimes and starts rejecting those constitutional attacks.

I think that actually is quite similar. I think that the court of the 1930s saw the idea of government regulating and intruding on business owners as a real invasion of individual liberty, particularly from the national government, from the federal government. Right. And the idea that some of the powers potentially could be exercised by the states, but not by the national government.

I think that actually is quite similar. I think that the court of the 1930s saw the idea of government regulating and intruding on business owners as a real invasion of individual liberty, particularly from the national government, from the federal government. Right. And the idea that some of the powers potentially could be exercised by the states, but not by the national government.

We don't have as much of a focus on national versus state power with the Roberts Court, but we have very much this idea that you have bureaucrats out of control regulating in ways where they're intruding on individual liberty, looking in nooks and crannies for violations of laws and are essentially uncontrolled exercises of bureaucratic authority.

We don't have as much of a focus on national versus state power with the Roberts Court, but we have very much this idea that you have bureaucrats out of control regulating in ways where they're intruding on individual liberty, looking in nooks and crannies for violations of laws and are essentially uncontrolled exercises of bureaucratic authority.

Sure. I mean, so there are a couple of different ways. One is just having internal to government officials and individuals who take seriously the legality of government action and will push back on excesses of authority by officials above them. That's critical towards ensuring a rule of law.

Sure. I mean, so there are a couple of different ways. One is just having internal to government officials and individuals who take seriously the legality of government action and will push back on excesses of authority by officials above them. That's critical towards ensuring a rule of law.

The other aspect that's essential to individual liberty is to recognize that what agencies are often doing is implementing programs enacted by Congress that are intended to build out in a more positive way what we understand liberty to mean and what we understand individual rights to mean and to entail for people to exercise those rights fully.

The other aspect that's essential to individual liberty is to recognize that what agencies are often doing is implementing programs enacted by Congress that are intended to build out in a more positive way what we understand liberty to mean and what we understand individual rights to mean and to entail for people to exercise those rights fully.