>> of course we all know we are preparing to fill in a huge election selecting all sorts of folks not just the president of the united states but a fascinating new book written by our guest today takes a look at the unelected the title of the book is called the unelected have had a chance to read parts of this

book as director of legal policy and he holds a jd and mba from yale and a ba in economics and other firm chapel hill as a morehead scholar glad to have you with us. thank you for joining us. >> thank you for having me. it's always a pleasure to speak to those at the foundation i have said it before add a national think tank so much policy happens on the state level and it is a gold standard think tank that

has helped me to shape north carolina and a lot of the resilience right now to have found a cisco flooding in the middle of a pandemic is due to the great work the john locke foundation has done thank you. >> thank you for those comments you actually live in north carolina so your book writes about federal policy but you follow state public policy as well and hopefully after we talk about your book you will get your take what is happening with governor cooper and emergency powers use here in north carolina but i have to tell you the book is unelected you can buy the book now i think my colleagues are posting in the comments section where you can get your copy. tell us about the key themes from your book and why you wrote it. >> really the key theme is

people don't understand just how much government activity that oversees our lives and some of the stories we will talk about later in the book tragically has influenced for some people and in others given headaches but how much of that goes forward no matter how we felt that doesn't mean elections don't matter. congress matters the council estate and here we elect judges and justices and they matter a lot. it's not that they don't matter but they only capture the incomplete picture there are a couple million employees 50 states and thousands of municipalities in well over 1 million private lawyers to

influence those litigation systems. we have heard attacks and then just to stay away in that partisan view to look at that more telescopically and what the government is doing that departs from the constitutional design. clearly had its laws in the beginning and the constitution had to animating principles one was the notion of limited government and then to go back to john locke and in the notion to have a publicly accountable government some ways acted to get things done ultimately accountable to people the representative democratic principles as well as the limited government with

that constitutional design and those that have been substantially eroded it's hardly a surprise to look at the incredible roles of government so as the final epilogue of chapter 14 looking at how much the government has grown even adjusted for inflation that's $10 million congress cannot agree the next level of covert relief with 1 trillion on that side and a

lot of people have written about this but i tend to agree with a limited government types and the personal responsibility in these types of questions and the ethical big government generally and there is a caveat where it makes sense from the original constitutional design but what we haven't paid attention to what is the concept we have foss public accountability and the work that i have done in the think tank world have dovetailed on all these issues like tort reform and civil litigation and regulation in

that criminalization and the john locke foundation and corporate government securities law come back to the central point where we see a lot of government being done and liberty being lost from individuals who were acting without public accountability and we see significant radicals in the legal and regulatory structure without congress ever taking a vote and then deciding to do so that so that's a principle piece of the book so that's broken down into the four categories and to reform one of them wouldn't necessarily change as we might think.

and with that accountability so the first of these are what we call the role makers if they grow up in seventies or eighties or nineties are growing up and see the cartoons on saturday mornings edging on - - they would see schoolhouse rock in among those is im just a bill. and that describes how a bill becomes a law. that this is a lot the way rules are elected on - - and acted so with criminal law we don't know how many federal crimes there are there's too much to know but the estimate

is around 300,000 and federal crimes exist of those 98 percent so you need to make a rulemaking agency and they drafted the rules in congress never saw those rules again and then they go to prison and get in trouble and of course the same thing is true across a civil lawsuit it's quite a departure they couldn't make new lawmakers with a new deal

of the progressive era. and that is a seachange with a rulemaking of the last 90 years or so. that both parties do do it with the trump administration and they are abrogating private mortgage contracts across the country and then not to have an agency this is an independent agency or to come up unilaterally with those constitutional questions to be raised but clearly a

forward move from a bill becoming a law and with those unelected actors those are what i call the enforces and that is important to keep in mind to make it too hard to create new rules and paying attention to enforcement action that's more lawless than the ad hoc threat of force i compare it to the godfather this is an offer you can't refuse so dealing with the federal government they

have your business totally under control so with the military contractor if the federal government says you can't then you are out of business if you are a pharmaceutical company that says you can't be reimbursed you can do business if your financial company they say you lose your license to practice you are out of business. so the strong arm of the federal government comes into play but the deliver on - - but the problem is that it's a bigger problem in some respects the family farmers and individuals they have large compliance team's lawyers with fancy degrees to study the rules and regulations they cannot comply perfectly but the government

can strong arm to create regulations far beyond whatever was authorized as a sanction for conduct but at least they tried to comply. and how were they supposed to comply in this happens at the state level which is why we didn't report with the john locke foundation to talk about over criminalizing the state and those same principles exist on the state level. and the resources for enforcement and certainly at the federal level where we see strong-arming big business so they have done a lot to strong

arm entire industries with bad consequences so those are what we talk about in the administrative state so at some level they do go through the appointment and confirmation process not like free radicals but there civil service employees underneath with a lot of autonomy and essentially we're in the running of the checks and balances of the founding fathers to put into the constitution. so to slow down the various.

>> and the people that are there for behind the scenes and that's basically correct i want to over emphasize that with that emergency apparatus is with the presidential election cycle but the best part of the problem is we do so much stock in presidential elections because the executive branch has so much authority and of course is true with the judiciary they told the exit pollsters of federal judicial appointments

this would shock the founding fathers not that they didn't think judges were important but the number one issue so it can be slow down as the courts one step forward to step backward approach so with the last administration of course barack obama after not persuading congress to do what he wanted and the trump administration tried to reverse it and then with that executive action has a life of its own.

but it can be reversed back with the next election is not a lot of permanency and by and large to review that they have brought to bear the administrative state that tend to get of a hard and close look to reversals of regulatory action there is a lot of deference given in the first instance in the new administration tries to undo those regulations that's harder to do those in the first place so it is backwards but that's the review system we have right now. >> so essentially you are saying it does matter on who you elect for president it can go back and forth with the executive orders but it does matter. >> it does.

but not all the government is a sponsor but then it goes through the principal talking about the independent agencies and essentially the courts have allowed independent agencies with the cause i legislative powers and staggered terms of rule makers like the fcc and sec while there are presidential appointments in place for the minority party and staggered terms. and then to create a little continuity to those structures

but it's from the basic constitutional design and these sorts of bodies are delegated broadly in the white house and does not have that power. so the big problem is you often get true believers so you get people who are committed to can or securities law or those that me and the agency that have a certain view of the world and most of those civil servants tend to skew in a certain direction that you would get a deregulatory champion so you have this problem in every

country has a legal system and then to adjudicate disputes and even the public legal system so talk about criminal law and that's with a lot of scrutiny right now and civil law which is private party bringing her disputes the government over property or contracts or tort which is injury law which it is not necessarily predicated on a pre-existing relationship although a lot of cases now fall under tort law so the products we buy there are contractions of those and then you voluntarily buy it but they govern those lawsuits.

>> is this where class-action comes in? >> that is a variant of the tort lawsuit and is a relatively recent creation. the third part of the book talks about the litigators and what they mean. the folks who are litigating private disputes and those who are skeptical of government power to say this is better than the administrative state. sometimes it is and sometimes it isn't that makes no mistake it is still state action nobody is by choice but that's because another person sues them in the states monopoly to

enable the plaintiff to recover. if the legal system works well with a low-cost way to resolve the disputes to talk about accidents is one thing to say this is deeply rooted in the federal constitution, but the original conception it was a very narrow area of law. very difficult to get into court and in the early days into even testify in court if you assume any sort of risk you would not collect if you are negligent you would not collect. but these rules were scaled back over time and we

developed the plaintiffs part of a feed mechanism so certainly the european country in those asian exceptions if you breathing a lawsuit in court you have to reimburse the other side's fee but that's not our system works. if you defend your lawsuit successfully you can still lose some a woman who wanted to read one - - renovate a historic hotel and put a lot of money into it and let a friend of a friend stay there and that individual got a plaintiffs lawyer to file a disability lawsuit. of course it wasn't up to disability code yet but it was a shakedown lawsuit give me $15000 and will go away.

she won the case but she lost more than hundred thousand dollars to win the case which is why you get the shakedown lawsuit in the first place. so that's a way to add a bunch of cases together in the most famous security class-action have the biggest law practice in the world with no clients. but that's how it works the lawyer to follow him - - filed the lawsuit they could be thousands or millions in the case the attorney is on one side reaching the settlement this was recently invented

with the federal rules first created the procedural rules for litigation came under the modern genesis so the dean developed all the new rules and then someone files it without proof and then you have to turn over all your e-mails and sit down for depositions that's an american rule and then in the sixties they kept this committee around and a harvard professor and his protége from columbia with the modern day class-action rule you are in the class unless you opt out so they create the class send you something in the mail they

create that on a typewriter. it never existed before they drafted it. so we have these crazy shakedown class-action suits as a defense for a rule. but the rules tend to be skewed on behalf of the state power to bear in addition to rule makers and if enforcers and then to go back and forth a little bit the new anti- federalist. this is important to because most of us who support limited government and classical liberal principles instinctively stay we are prose states rights and the ordinary case that is great

but state legislators can get the policy packaging because people can vote with their feet businesses and capital can vote as well so of california raises taxes in north carolina doesn't people can leave from california to north carolina. that the regulatory state is too big, same thing. similarly in the state doesn't provide the service in schools are horrible and that affects where businesses and people locate as well so it is this implicit market style pressure. >> but that doesn't always work in litigation. if you just talk about a slip and fall case, sure.

if you are sued locally and the state is too permissive than they are less likely to open in the same with medical malpractice. if doctors are sued a lot they can relocate out of state and hospitals can envelop on - - invest elsewhere so ultimately you pay the price for that. but with the national commercial lawsuit can be filed anywhere under the current doctrine the courts adopted in the stream of commerce. north carolina can attract the regulatory regime but not protect against the lawsuit coming from madison county illinois from where they call judicial hellholes and then we

have seen with the new anti- federalism they're basically dictating policy for everyone else. the mayor of new york tries to change climate change policy which is clearly the international question as a federal nexus but to try to do it from city hall in new york or san francisco we see these cases and the tobacco lawsuits the litigation is farmed out to plaintiffs attorneys to get content contributions and then they hire them. this is driven by state and local officials nobody in charlotte or greensboro voted for the people in new york city or san francisco or albany. these elected officials are

trying to draft national policy and even when the federal regulators get it right the states actors can come in and try to dictate national commercial legislation for state and local purposes. >> pretty amazing from the manhattan institute james copeland talks about the four areas he talks about in his book elected - - unelected

that was a challenge to the federal drug laws convicted under federal law not state law growing marijuana in his backyard i wasn't selling it i was growing it but you had to buy seeds in arguably it could affect the drug trade itself. the president had the same basic logic where the farmer was using his own crops for his own use on his own farm and the federal government said no you have to follow the agricultural regulatory scheme but the supreme court let that

go. it's a pretty broad rule. i do think there are two conceptual issues. one of course is the contractual issue itself and while congress will make no law with the freedom of contract and should be by the courts there is a pretty big infringement on property rights. so we will have litigation and premised on that but there is the nondelegation doctrine. >> john locke himself. >> he was among the original exponents of this in terms of writing it down. he didn't invent the concept that had been over the centuries and they do go through some of that history in the book. but john locke wrote the

legislative power to make laws and not legislators and blackstone who was the great chronicle or of the laws of england at the time and the constitution of the united states was enacted to develop the principle that you cannot delegate the lawmaking power so the question is this delegation to the cdc what they are claiming an accurate reading what they delegated by statute so even if congress delegated that power, was that constitutional? and while the court has basically not come back with

the nondelegation principles since 1935 the basically signed off on the rest of the new deal with the roosevelt administration and have not come back notwithstanding. so they have cap the ability of the executive branch to make a law and this was a doctrine and constitutional law with the major questions doctrine. in the basic principle is if it's a big policy that congress needs to resolve it but the area of regulating tobacco the fda that tried to claim this power even though congress debated and pass the bills relating that expressly

said to the fda you can regulate tobacco as a drug that this is a major question congress discuss this congress needs to decided we have seen that again and environmental areas as well where that comes into play. so that could potentially create a problem. but how long will this last? litigation takes a long time so to some degree it's a shot across the bow. so if they think they can get the vaccine out by the end of the year sometimes when lawyers do it all the time i saw it all the time with a law firm takes a strategy that's a winning strategy but there's value in delaying with the

whole premise it's why the formal rulemaking focuses on enforcement as well because the question is that will the cdc when the lawsuit but will a large real estate actor want to cross the executive branch of the federal government? >> that's interesting because let's play that out if somebody decides i don't think it's a good idea for the cdc or any agency to suspend or break a contract between two parties so take it up the chain and makes it to the united states supreme court , do we have justices who are willing to say you can't delegate that kind of power

and does that mean future appointments to the us supreme court could be critical to which way this goes? >> absolutely. appointments are critical. my guess would be you might get a platform majority to say it's a step too far. we saw the term for / four split that senator alito said if there is a majority a may consider in the case had been argued before justice cavanagh joined the court i think it's unfortunate looking at those in partisan terms and that's not fair looking at those appointed justices we don't use this it is a relic of the

past and then you had justice gorsuch running with the nondelegation and with british law that said it's an important principle and and they all fall under this. and that for congress to delegate. and then to sign on board with that opinion and a great

proponent with the dc court of appeals. >> mentioning executive order see me former president obama and mentioning daca and then to face the challenge in court so is the executive the most powerful branch right now? >> ambiguously is not the case in the early republic that congress was clearly the most powerful branch someone of the two great early justices on the court and it's pretty clear congress has the power and those writing in the

federalist papers so it doesn't have the perks but it does have the military now we have a standing army that is nothing like our founders could have perceived and that's an area i talked about in the introduction to the book we do have to have a bigger government we don't have those citizens with muskets with those international threats we face. even know that something we were worried about. congress still has the purse the executive branch can move things around. and then they just cannot get

together. men to come together but then neither side wants to concede for those to go under that might be able to thrive but to be denied based on state and local action. >> absolutely. >> before we get to north carolina something that is special called the unelected you do a really great job to start many chapters with a

real-world situation and one of the stories struck me and he really brought it home if you are a racing fan like im you know bobby answer found himself in a strange and dangerous situation and came up against the power of the state tell us what happened. >> he one indianapolis 500 and a big racing family is the uncer family among those vehicles are snowmobile so he has a ranch out west he drives around the snowmobile in the snow in the winter months and one day he was going out and a

friend of his did not have the same experience goes out and goes into federal and wandering about. so there was a blizzard not one that he could predict necessarily from watching the weather channel. so where the wind itself is with being off the snow to such a high degree that they got caught and got off course and ultimately were stranded. height 20 miles got hypothermia and were lucky to survive. so then they had to retrieve the snowmobile so it turns out they went into an area

protected federal forest and snowmobiles were not allowed. congress hadn't voted on this either. based on the regulatory structure. and uncer said i didn't know. i was under duress. i was in a blizzard. i'm trying to survive. but notwithstanding they said no you are a criminal and we will take you to court. he argued that as long as he could and ultimately lost and then to have a criminal intent requirement so he didn't have to be aware he was doing anything wrong and then to

make sense and those crimes that we know are bad and the common law crime of robbery and burglary and everybody knows they are bad and then to say i didn't know it was a crime but those that are prohibited offenses. if you watch legally blonde you god a description of this but those are bad because they are prohibited. to know where the markers are.

and then to register the right way and then to create criminal as well as civil liability so there was a small fine and he had to pay the lawyers and he could do that but that's the principle of loss. >> in your description is why the john locke foundation and you at the manhattan institute have been concentrating on over criminalization. so to post the work on over criminalization in north carolina. speaking of north carolina let's take advantage of your legal background you are a north carolina resident you

are one of the most renowned national think tanks in the united states so tell us what you think of the covid situation and the use of the emergency powers by governor cooper with the secretary of hhs. >> i am not an epidemiologist or doctor i don't feel perfectly qualified to say the use of emergency powers for months by the governor in my mind and a clear and run and

then to delegate those certain executive powers so for hurricane bears down on us you want to have to get those legislators we have a citizen legislature still here. so it's very important to act quickly in emergency situations like if we were in a terrorist attack we need to delegate an emergency authority in all situations but that cannot be open-ended and then to broadly regulate the states and then to be one

of the more extreme exemplars of emergency power. and to go to the epilogue of my book to turn the yellow fever epidemic and then to catch yellow fever to say i'm not sure that did much but they didn't know what was causing the disease. so the extraordinary powers the actual delegation here was constitutional it intended to

be a more short-term fix with those business shutdowns to have a consent so not just delegating everything to a king and this is the core principles and i talked about this in the book john locke was inventing these but run off to the english civil war so after sir edward the legal scholar and parliamentarian and internet.

for 11 years and then later was called the 11 years tyranny for a reason now he will not be in office for 11 years but now we are going on several months without the consent of the council of state and they are denying the most basic rights with basic fundamental freedoms of individuals and this is a situation to require with covid it has the broad authority to do that if they test positive has a long-standing exception it is well understood it's not as if a communicable disease can just go out of the house the people that haven't tested positive just saying the

constitutionality of that and then to have broader authority than the federal government in principle with delegated powers that clearly we should not be delegating this to the governor it is just as heartening to see it i don't know what the public thinks but it really worries me. so i do hope after we get a vaccine and things go back to normal the general assembly will much more clearly marked down the limits of this executive emergency power because i do think it has been abused.

>>host: give us a sense of what the future is and what should we do? those that believe there is too much power delegated at the federal level what are the next steps? are we in a situation we even incurred rain dad in? >> one of my reviewers said he's not very radical in his solutions. i'm not trying to be radical but we will not get back to a 10 million-dollar federal government or 1788 government but i do think we could push in the direction that the legislature can do it of the general assembly to do things. so i can't answer this in just

three minutes the totality of my idea i'm putting out over the next year and a half to flesh out these ideas that i outlined in chapter 14 of the book don't want to bore people with 100 pages of policy but in north carolina you could say we delegate some of this authority to the agencies but before it's criminal you have to get a vote from the legislature or you could say we will delegate authority and if we don't affirmatively vote it will sunset so you only get a temporary move through executive action and the more that you do that and layering the administrative state the better and a lot of these procedural rules when it comes

to the litigators like caveat emptor or buyer beware it's too complicated for me to know everything about my computer the fact that i bought it we will not go that far back but also to prevent the shakedown games with the scholarly rules and shifting between lawyers and what we can do to make it so we are litigating real ones not just that are concocted with a shakedown like a disability suit and then abandoned the effort to renovate a historic property. >> regulatory reform here in north carolina her own john

sanders has been writing for years about efforts to do that and we made some progress thanks to the general assembly and we will provide a link for you if you're interested in that progress we can show you one of the areas we focus here at the john locke foundation with the research team and there has been some progress at the state level thanks to the leadership of the general assembly. the book is fascinating we wish you the best. the book is named unelected. it is great it's easy to read but not simplistic and i appreciate that you put a face on a lot of this with examples of people who have come into contact with the administrative state and have not done well in at least one case you write about does have a tragic ending with a very

difficult situation we appreciate your time from the manhattan institute check out his latest book we appreciate you joining us

>> eisenhower is very conscious of how it would be to be a diminished president. we have to remember with president wilson there was a scandal they didn't know about that so i was determined not to find himself and then to have three illnesses during his presidency and then to give himself a very arduous test and a trip to europe and a lot of stress and to tell the advisers if i don't perform at top level you have to tell me because then i will resign. . . . . search for other susan eisenhower how i can lead using the box at the top of the page.