The Supreme Court & American Politics
Explore how the new conservative supermajority will change the Court.
In the penultimate week of the Political Studies Program, fellows will examine how policy is translated through the administrative state and the courts. Over afternoon sessions, led by legal scholar Adam J. White, fellows will explore how the Executive, the federal agencies, and the courts interact to advance — and sometimes stymie — what Publius called, “the steady administration of the laws.” In charting the transformation of judicial and administrative power from the Founding to today, fellows will reflect on the nature of expertise in modern administration, the challenge of political accountability, and role of the courts as a check on Executive power.
Adam White on Reforming the Administrative State
This course is part of our residential Political Studies Program. Fellows will participate in morning and afternoon seminar sessions over five weeks.
Faculty
Adam J. White
Adam J. White is a Resident Scholar at the American Enterprise Institute, and an Assistant Professor at George Mason University’s Antonin Scalia Law School, where he also directs the Gray Center for the Study of the Administrative State at George Mason University’s Antonin Scalia Law School.
Adam J. White
Adam J. White is a Resident Scholar at the American Enterprise Institute, and an Assistant Professor at George Mason University’s Antonin Scalia Law School, where he also directs the Gray Center for the Study of the Administrative State at George Mason University’s Antonin Scalia Law School. He writes widely on the administrative state, the Supreme Court, the Constitution, and regulatory policy, with special focus on energy policy and financial regulation.
He is a Contributing Editor with National Affairs, The New Atlantis, and City Journal, and a contributor to the Yale Journal on Regulation‘s blog, “Notice and Comment.” He was recently appointed to the Administrative Conference of the United States, a federal advisory board focused on improving federal agencies’ practices. He also serves on the leadership council of the American Bar Association’s Administrative Law Section; on the executive committee of the Federalist Society’s Administrative Law Practice Group; and on the board of directors of LandCAN, a nonprofit organization dedicated to promoting conservation on working lands.
Prior to joining AEI, he was a Research Fellow at the Hoover Institution and an Adjunct Fellow at the Manhattan Institute. In addition to his research and writing, he practiced law with Boyden Gray & Associates, writing briefs on constitutional and regulatory issues in the Supreme Court and various other federal courts. (He continues to be “of counsel” to the firm in three pending cases involving the Consumer Financial Protection Bureau and the Federal Communications Commission.) Previously, he was a Senior Associate with Baker Botts, working on various constitutional and regulatory matters, including energy infrastructure regulation.
He received his J.D. (cum laude) from Harvard Law School, and his B.B.A. (economics) from the University of Iowa College of Business. He clerked for Judge David B. Sentelle of the U.S. Court of Appeals for the D.C. Circuit.
Download the Full Syllabus
Preview the Syllabus by Week/Session
Constitutional Origins
Readings:
- The Declaration of Independence (1776)
- James Madison, “Vices of the Political System of the United States” (1787)
- Alexander Hamilton, Federalist 67, 68, 70, 71, 72, 76, 77
- James Madison, Federalist 37
- President George Washington, First Inaugural Address (1789)
- President George Washington, Second Inaugural Address (1793)
Questions:
- What failures of administration were highlighted by the Declaration of Independence, and by Madison’s memorandum?
- What does Hamilton’s defense of the presidency imply about his view of good administration?
- How did the Federalist’s view of administration relate to its view of legislation?
- In Madison’s description of the difficulties of “vague” laws in Federalist 37, what is the role of administration in clarifying the meaning of laws?
- What do Washington’s inaugural addresses suggest about his view of constitutional administration?
Dawn of the Administrative State
Readings:
- James Landis, The Administrative Process (Yale University Press, 1938), pp. 1–5
- Woodrow Wilson, “The Study of Administration,” Political Science Quarterly, Vol 2 (1887), pp. 197–222
- Lochner v. New York (1905)
- Pierce v. Society of Sisters (1925)
- L.A. Schechter Poultry Corp. v. United States (1935)
Questions:
- What are the shortcomings of our original Constitution, according to Landis?
- What is the relationship between administration and democracy, according to Wilson?
- What rights did the Supreme Court defend in Lochner and Pierce?
- Why did the Supreme Court strike down the National Industrial Recovery Act’s rulemaking provision in Schechter Poultry?
Reform & the Reagan Revolution
Readings:
- Antonin Scalia, “Regulatory Reform—The Game Has Changed,” Viewpoint (January/February 1981)
- President Ronald Reagan, Executive Order 12,291 (February 17, 1981)
- Antonin Scalia, “A Note on the Benzene Case,” American Enterprise Institute Journal of Government and Society (1980)
- Antonin Scalia, “Judicial Deference to Administrative Interpretations of Law,” Duke Law Journal, No. 3 (June 1989)
- Jack Goldsmith, “The Accountable Presidency,” The New Republic, February 2010
Questions:
- According to Professor Scalia, what “game” had “changed” in 1980—and how?
- What problems did President Reagan’s executive order attempt to solve?
- Why was Scalia so wary of courts striking down statutes or rejecting agencies’ interpretations of statutes?
- How and why did conservatives reconsider their view of executive power in the 1970s and 1980s, according to Goldsmith?
Expertise in Republican Government
Readings:
- Peter Shane, “Trump Shouldn’t Be Able to Fire Fauci for Contradicting Him,” Atlantic (2020)
- Greg Weiner, “Expertise and Prudential Politics,” Law & Liberty (2020)
- Yuval Levin, “The Coronavirus Crisis Shows Experts Aren’t Enough,” Wall Street Journal (2020)
- Antonin Scalia, “Rulemaking as Politics,” University of Chicago Law School (1982)
- Herbert Storing, “The Crucial Link: Public Administration, Responsibility, and the Public Interest,” Public Administration Review, Vol. 24 (1964), pp. 39-46
Questions:
- What is the proper role of expertise in administration?
- When the president and one of his advisors disagree, what should each do?
- Is constitutional administration primarily a matter of politics or expertise?
Recent Reconsiderations
Readings:
- President Biden, “Modernizing Regulatory Review” (2021)
- Department of Transportation v. Association of American Railroads (2015) (Thomas, J., concurring)
- Baldwin v. U.S. (2020) (Thomas, J., dissenting)
- Roman Catholic Diocese of Brooklyn v. Cuomo (2020)
Questions:
- Will President Biden’s proposed reforms to regulatory review promote expertise in administration?
- How do Justice Thomas’s recent opinions on administrative law differ from Scalia’s earlier views?
- What does the Cuomo case teach us about administration, democracy, rights, and religion?
