The Volokh Conspiracy
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Earlier this week, I had the privilege of participating in a National Constitution Center conference on "The Constitution and the Administrative State." The video of the first two panels is available here.
The first panel featured Georgetown law professor (and fellow Volokh Conspiracy blogger) Randy Barnett, Elizabeth Wydra of the Constitutional Accountability Center, and National Constitution Center President Jeffrey Rosen (also a leading legal scholar). The second panel included law Professor Michele Landis Dauber (Stanford) and myself, with moderation by Judge Jeremy Fogel.
The NCC has also posted a video of the third panel at the conference, which featured perspectives on the administrative state by federal judges William A. Fletcher (Ninth Circuit Court of Appeals) and Kent A. Jordan (Third Circuit Court of Appeals).
The panelists offered a wide range of views on this timely and important subject. I learned a lot from the other presenters, perhaps especially those whose views differ greatly from my own.
The two most important points I tried to make in my time were that we do not have to choose between the nearly unconstrained federal power we have now and returning to pre-New Deal days, and that we should not accept as valid precedent every expansion of government power that occurred during real or perceived emergencies in the past. If we fall into the latter trap, we won't have any meaningful Constitution left. Virtually every limitation on power in the Constitution has been violated during one emergency or another. Even the Third Amendment, often the butt of jokes because it supposedly never gets infringed, was seriously breached during World War II.
In this piece for the National Constitution Center's Interactive Constitution project, I wrote about how we can impose tighter limitations on Congress's spending powers (discussed at length during the panel) without massively rolling back the post-New Deal state.