Dear Friends,
This month saw the anniversary of our long year of Covid-19. Not the anniversary of the virus’s initial emergence in China, or even the anniversary of its arrival in the United States or its first American victim, but the anniversary of Covid-19's abrupt upheaval of our lives—the lockdowns, the uncertainty, and a concentrated focus on the difficult road ahead.
This anniversary arrived at an optimistic moment, as vaccinations increased and infections decreased, and naturally we all are looking ahead to happy days. The Gray Center considered hosting a webinar for the anniversary of Covid-19 lockdowns, looking back for lessons learned, and looking ahead to what ought to come next. Ultimately we decided not to, because we simply can’t do justice to such things in a 90-minute panel discussion.
Rather, this requires deeper and more sustained attention. Covid-19 wrought many tragedies; if our nation refuses to learn lessons from its experience, then that will be a tragedy of its own —the last one, and the most avoidable one.
We are trying to do our part here at the Gray Center. Last year we called for papers on lessons learned from Covid-19 so far. We gathered groups of scholars and experts to discuss those papers in two (Zoom) roundtables: one focused on how government might better prepare for crises, and one focused on how government might better react to crises. We’ll bring those papers to you soon, in one or two emails that link and summarize the papers, along with some podcast conversations with the authors. Keep an eye out for those emails; in the meantime, many of the papers already have been posted on our Working Paper Series.
Of course, the lessons of recent history will come into still clearer view in the months and years ahead. From the failure of federal government to react promptly and effectively to the crisis as it approached American shores; to mistakes of commission and omission that New York and other states made in 2020; to the questions of expertise and accountability that grew ever more heated as the year progressed; to the conflicts between administrators and religious communities; and on, and on. (The National Constitution Center hosted a discussion of some of these issues in a recent podcast; I was lucky to have been included in it.)
Most recently, we saw the success of Operation Warp Speed to develop vaccines, showing what great things can be accomplished when the government promotes private-sector innovation and scientific ingenuity to work their wonders; but that success was followed quickly by an utter lack of preparation by government at all levels to actually distribute the vaccines effectively and efficiently.
And so there is much left to learn. The Gray Center will return to these themes this autumn with another roundtable to incubate more scholarly research on lessons that the administrative state should learn from the Covid-19 experience. And then we’ll work to connect those ideas to public policy.
In all of this, I’m grateful for everyone who contributes to these discussions, and for the generous philanthropic support that makes this work possible.
All the best,
Adam White
Executive Director
The C. Boyden Gray Center for the Study of the Administrative State
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Center of Activity: Upcoming Events
The Gray Center's team is continuing to work hard on planning to bring you valuable events, both in terms of future webinars and looking forward to possible in-person events when it's safe to do so.
To make sure you're notified about all our events once details are set and registration opens, please sign up below to receive email invitations!
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"Gray Matters": Listen to Our Most Recent Podcast Episodes
At least five Supreme Court justices seem interested in reconsidering the current version of the “Nondelegation Doctrine.” And their recent judicial opinions have inspired waves of new scholarship for and against judicial reform. Last spring, the Gray Center invited scholars to workshop new papers on the nondelegation doctrine. Two of the authors—Kristin Hickman and Nicholas Parrillo—join Adam to discuss their papers and more. The episode is available here.
The Biden Administration faces immensely consequential policy choices on questions of financial regulation—from the proper regulatory standards to apply to banks for the sake of safety, soundness, and systemic risk; to cryptocurrencies; to the use of financial regulatory agencies to drive policy on non-financial issues. And as the Gamestop/Robinhood saga highlighted, new technologies can radically complicate even old policy frameworks. How will the new administration and Congress confront these challenges? Peter Conti-Brown, Kathryn Judge, and Jennifer J. Schulp joined Adam in a webinar to discuss all this. This was the final event in the Gray Center’s 2021 virtual event series, “The Administrative State in Transition.” Listen here.
Throughout his presidential campaign, Joe Biden called for national reforms to police practices and civil rights. With that in mind, what specific policies might the Biden Administration and Congress pursue in the months and years ahead? What reforms are in the federal government’s direct regulatory powers, and which will need to be pursued through federal spending or other powers? And what issues are committed to state and local governments? Rachel Harmon, Gail Heriot, and Ronald S. Sullivan, Jr. joined Adam to discuss these and other issues. This was the fourth event in the Gray Center’s 2021 virtual event series, “The Administrative State in Transition.” Find it here.
From George Washington’s administration onward, the federal government’s power over financial markets and banks has always occupied a nebulous corner of American constitutional government. Recently the Gray Center posted three new working papers exploring different aspects of financial and monetary regulation. Adam chats with Lev Menand and Peter Conti-Brown, two of the authors, in this episode of Gray Matters. Give it a listen here.
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Working Papers: Read the Latest
The following paper was workshopped at a Gray Center roundtable titled, “The Federal Reserve, Financial Regulation and the Administrative State”
In this article, J.W. Verret considers the current restraints on the Federal Reserve’s emergency lending authority—specifically the Section 13(3) provision allowing emergency lending to non-banks. The paper finds that these restraints have not achieved the desired results and that instead the Fed has been allowed to continue pursuing excessively risky practices. Verret advocates for more robust statutory restrictions on the Fed and argues that the principal way to enforce restraints would be to recognize a private right of action for violations of Section 13(3).
The following paper was workshopped at a Gray Center roundtable titled, “Administration in Crisis: Pandemics, Financial Crises, and Other Emergencies”
Lev Menand argues in this article that the immense financial crisis precipitated by the COVID-19 pandemic led to the Federal Reserve stretching its statutory lending authorities in unprecedented ways. In particular, Menand finds that actions conducted by nearly all of the facilities created under sections 13(3) and 14 exceeded provisions of either the Federal Reserve Act or the Gold Reserve Act. The article concludes with a few proposed reforms that could resolve this tension between what the Fed is authorized to do and what it must actually do in times of crisis.
The following paper was workshopped at a Gray Center roundtable titled, “Labs of Democracy, Labs of Liberty, Labs of Administration”
In this article, Daniel Walters proposes that the Gorsuch test for nondelegation, were it to be adopted by a majority of justices in a future case, would not necessarily lead to a dramatic change in outcomes in nondelegation challenges. By studying state courts' varying approaches to the nondelegation doctrine, Walters finds that the test or standard deployed by the court is not a reliable predictor of outcomes. Using this dataset of state level outcomes, the article seeks to determine what lessons can be learned about nondelegation and whether the outlook, post-Gundy, is any different than it was before.
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Policy Brief Series: Read the Latest
The Gray Center's Policy Brief Series is a collection of short articles on timely topics related to the administrative state
Over the last many years, prestigious commissions have concluded that the Federal civil service needs fundamental reform. However, their proposals confront massive barriers—union obstinance and a requirement for legislative, executive, or judicial branch concurrence. But reform need not pause until these barriers are overcome. This essay explores the potential benefits of a far more aggressive use of term appointments, Schedule A hiring authority, and enhancing agency control over its executive core by empowering Executive Resources Boards. Each measure is within federal agencies’ prerogative, no asking mother-may-I, and if implemented aggressively, can have a positive impact on the federal workforce. Read the article >>
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Now Streaming: Recent Event Videos
Catch up by watching the videos of our latest events:
The Biden administration faces immensely consequential policy choices on questions of financial regulation—from the proper regulatory standards to apply to banks for the sake of safety, soundness, and systemic risk; to cryptocurrencies; to the use of financial regulatory agencies to drive policy on non-financial issues. The Gray Center hosted a webinar on March 11, 2021, to confront these topics and more. This virtual event featured the following panel of experts: Peter Conti-Brown of the Wharton School and the Brookings Institution, Kathryn Judge of Columbia Law School, and Jennifer J. Schulp of the Cato Institute. The event video is available to view here, and you can listen to the event as a podcast here.
Throughout his campaign, Joe Biden called for national reforms to police practices and civil rights, and right after the election, his transition team highlighted Racial Equity as one of its four policy priorities. To look at specific policies the Biden administration and Congress might pursue in the years ahead, the Gray Center hosted a webinar on February 25, 2021. This virtual event gathered a panel of leading experts on this topic: Rachel Harmon of the University of Virginia School of Law, Gail Heriot of the University of San Diego School of Law, and Ronald S. Sullivan, Jr., of Harvard Law School. Watch the event video here, and listen to the event as a podcast here.
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Distinguished Work:
Updates on our Advisory Council, Affiliated Faculty, and Distinguished Senior Fellows
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Gray Center Advisory Council Member Jack Beermann (right) and his colleague Gary Lawson of Boston University School of Law argue in a new paper that the Electoral Count Act of 1887 is, in fact, unconstitutional. On January 6, 2021, Republican Senators and Representatives relied upon provisions of this law to challenge the electoral votes submitted by several states.
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Jonathan Adler, a Gray Center Advisory Council Member, recently released a Niskanen Center report on the legal and administrative pitfalls that may confront greenhouse gas regulations. He argues that nonregulatory measures like a carbon tax would be less susceptible to such pitfalls.
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Advisory Council Member Paul Larkin, Jr. is one of the authors of a new Heritage Foundation report on "Slavery and the Constitution". Find the full report here.
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"Summary Judgment"
Past Gray Center Scholarship & Today's News
On March 3, 2021, House Democrats passed the For the People Act (H.R. 1) a comprehensive voting, elections, and ethics bill. One of the goals of the bill—a top legislative priority for Democrats—is to improve access to voting, particularly for voters of color. H.R. 1 would mandate that all voters have the option to vote by mail. It would also enfranchise millions of former felons, end district maps that "unduly" favor one party, and create a public financing system for congressional candidates.
H.R. 1 is expected to hit a wall in the Senate, where it would require 10 Republican votes to pass. In The Washington Post, Lawrence Lessig exhorts Democrats not to compromise on H.R. 1, despite the arduous road to passage.
Critics of the bill have raised constitutional concerns. "If enacted, [H.R. 1] would be a Washington, D.C. takeover of elections on a collision course with the Constitution's text, structure and principles—all of which put the states in the driver's seat," explains C. Boyden Gray in Newsweek. Also, look at David B. Rivkin Jr. and Jason Snead's critique of the bill in The Wall Street Journal.
Another reform included in the bill is a change to the bipartisan Federal Election Commission. H.R. 1 would remove two partisan seats from the six-person board and add an independent fifth member in their stead. The FEC was a subject of discussion at the George Mason Law Review's second annual Administrative Law Symposium, which was co-hosted by the Gray Center. Take a look at the following papers from the event:
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In one, Trevor Potter argues that the agency's recent history of deadlocked votes and the resulting inaction has ushered in an era of secret, unaccountable political spending on an unprecedented scale.
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In another, Bradley A. Smith insists that "the failure of [campaign finance] reform is due less to poor enforcement than to disagreement among experts on the effects of money in politics and, even more fundamentally, disagreements...about the desirability and constitutionality of regulation."
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In a third, Richard J. Pierce, Jr. discusses the agency in the context of his proposals for campaign finance reform.
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"Notice and Comment"
Things Worth Reading
Lina Khan to the FTC: President Biden has nominated a vocal critic of tech companies—and one of the leading advocates for major reforms of antitrust policy—to the Federal Trade Commission. Here is Khan’s seminal article, “Amazon’s Antitrust Paradox.”
“This is How They Tell Me the World Ends”: In a recent Lawfare podcast, Jack Goldsmith interviews Nicole Perlroth, author of a new book on “the cyberweapons arms race.” It’s fascinating and disconcerting, to say the least.
“Apollo 13’s Forgotten Hero”: Glynn Lunney, flight director for the Apollo 13 mission, died on March 19 at age 84. Charles Murray and Catherine Bly Cox recall what he accomplished in those near-disastrous seconds, hours, and days: “It was in that context that Glynn Lunney set about preventing the astronauts from dying in a few hours and simultaneously figuring out how to get them safely home. No choice he made was without risk. Every step to keep them alive now had to be balanced against the effect it would have on keeping them alive until splashdown. He was 33 years old.”
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This newsletter is edited by Molly Doyle,
Associate Director for Communications for the C. Boyden Gray Center for the Study of the Administrative State
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