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of course we all know we are preparing to vote in a huge election collecting all sorts of folks and not just the president of the united states by congress and state legislators. fascinating new book written by our guest today takes a look at the unelected , unaccountable elite and it is amazing and along to talk about it. senior fellow at the manhattan institute also leader of legal policy you have read his book all over national media and by the way he was a jd and mba from yale where he was a fellow in law and economics mba from unc chapel hill.

so glad to have you with us. thank you for joining us at the john locke society. >> so is an honor i said it before as a national think tank so much policy happens on the state level and the john locke foundation gives the gold standard to help to shape north carolina in such a positive direction and then to be in the midst of a pandemic. thanks for having me spin thank you for those comments i appreciate that. your book writes about federal policy but hopefully as we talk about your book we can

talk about governor cooper and the use of emergency powers here in north carolina this book the unelected posting in the comments section where you can get your copy of the unelected tells about the key themes and why you wrote it. >> the key theme really is those government activities and then on other cases how much of that apparatus that doesn't mean elections don't

matter. and the general assembly and to elect judges and justices matters a lot also. and to capture the incomplete picture. there are thousands of municipalities the well over 1 million trial liar longest lawyers and to look at that telescopic we and thematically and what the government is doing for the fundamental constitutional design.

so the notion among john locke and others that in some way wise active and to get things done but the people representative democratic principles as well as the limited government those that have been substantially eroded is hardly a surprise to talk about that in my final epilogue and then going from

those early years and the first congress the total appropriation of the federal budget of $39000. and then to agree on the next level of covid really in of the orders of magnitude in the early years. a lot of people have written about this and with limited governments those like john locke has committed to the liberty your responsibility and then these are the caveats it makes sense for the original constitutional design

certainly not fanatically and holistically is the concept for this public accountability in the work that i have done many years in the think tank it does take - - dovetails on all these issues looking at the administrative state with over criminalization with the legal scholars with the john locke foundation and in other states and securities law they all come back to a central point where we see a lot of government being done and a lot of liberty being lost without accountability and

then taking a vote and then deciding to do so that's the principle thesis with those categories that are related that each of the's forces and it wouldn't necessarily change is much as we would think that the's others are similarly working to govern us with accountability so the first are called the rule makers. and the fundamental function of congress growing up in the seventies and eighties and nineties watching cartoons on

saturday morning they would see schoolhouse rock, i am just a bill sitting on capitol hill. so in the criminal law sphere we don't know how many crimes there are. those federal crimes exist of those 98 percent came into being without that express enactment by congress. congress never saw those rules again and of course the same

thing is true was civil law so with that departure with the principle espoused by john locke and others that animated the constitution that they had to delegate the lawmaking and make new lawmakers but that is what we have done. there were precursors then to csc change in that conservative expansion of that delegation of rulemaking during the last 90 years. and we do see both parties are guilty of this. and then abrogating private mortgage contracts and then

with a pandemic but then not to have an agency. and with that unilateral rule and clearly is far from as it is portrayed in schoolhouse rock. the second unelected actors that i focus on are the enforcers. it's important to keep in mind if it's too hard to create new

rules and then the enforcement actions that we can do something more than regulatory rulemaking which is ad hoc government by the threat of force. look at the godfather then offer you can't refuse. viewing the federal government and to have your business totally under their control. if you are a pharmaceutical company in the federal government says you cannot be we burst anymore if your financial company in the federal government says you luger license and the strong arm of the federal government comes into play.

i want to emphasize this but the bigger problem in some respects was the individuals to have large compliance team's lawyers and fancy degrees doesn't mean they will comply perfectly but they can strong-arm them to create regulations and with that sanction for conduct but and with that regulatory crimes there is just no way and also at the state level and working

with the john locke foundation on this talking about over criminalizing the states. and it is the federal level usually where we see strong-arm big business through regulatory enforcement. and how to strong-arm entire industries. but what we talking about for the regulatory or administrative state at some level high level folks who go to the confirmation process is not like there's no connection whatsoever but there is a lot

of autonomy and essentially we are in the running for the checks and balances that they put into the constitution and those joining the republic with a very legislative and regulatory news. >>host: let me ask you this is this what some people refer to as permanent washington? the matter whose they are the administration or the politics that is wielding all sorts of power? >> that is basically correct. i don't want to over emphasize that a number of the federal agency apparatus very much responsive to the presidential

election cycle but that's part of the problem. we put so much stock in presidential elections like the executive branch has so much authority on of course the same thing is true with the judiciary that it was my number one reason voting for president. not only with judicial review but it is the number one issue. so there is a lot of power but it can be slow down to one step forward to step back approach from the last administration barack obama

cannot persuade congress to do what he wanted through executive action the court said you did not do it right so now it has taken on a life of its own. that they can be reversed right back so there isn't a lot of stability in the law and by and large the apparatus the courts have brought to bear on the administrative state, tends to give a hard look, a close look to the reversals of regulatory actions there is a lot of deference given and then when the new administration comes in to undo those regulations it is harder to undo the old

then it was the new in the first place. that's a system we have right now. >>host: so it really does matter who you electro president based on their view of the regulatory state and it could go back and forth of these executive orders but it does matter. >> it does. so chapter two of my book goes through these independent agencies and the courts have allowed independent agencies these cause i legislative powers and staggered terms of rule makers like the fcc or

stc while there are presidential appointments and play of those bipartisan commissions the party that doesn't control the white house now there are differences of this you don't get these policy reversals but it is very different from the basic constitution design and these sorts of bodies that are delegated by congress in the white house can't say i want them off the sec i don't like their views they don't have that power so ultimately the big problem is that you get true believers that the government can get to beg so

those who are committed to environmental the form or committed to a certain view of securities law that the's agencies that have a certain view of the world they tend to skew in a certain direction so if you get that the regulatory champion in the regulatory agency so you have this problem. every country has a legal system to adjudicate disputes we have a private legal system so when you talk about criminal law the state prosecuting misconduct with a lot of scrutiny and then rain their disputes to the government whether disputes

over property or contracts or over tort reform were it isn't predicated on a pre-existing contractual relationship so the products we buy to voluntarily buy it to governor on - - govern those lawsuits. >> is that a class-action lawsuit? >> it is a variant of the tort lawsuit and a relatively recent creation. this is the third part of the book that talks about the litigators and what it means these folks to litigate private disputes and i think a

lot of people who are skeptical the libertarian folks say this is much better than the administrative state sometimes it is and sometimes it isn't but it still state action literally defended in court by choice because then another person sues the business and for the state's monopoly to enable the plaintiff to recover. if the legal system works well with a low cost way to resolve disputes that is one thing and to be deeply rooted the jury is out for the state constitutions but that original inception was a very narrow area of law so very

particular pleadings in the early days even to testify in court with these cases if you assume any kind of risk and then to develop the bar so certainly the european countries if you bring a lawsuit and if you lose you have to pay their fees but that's not how it works if it is successful you can still lose and so the first example that i use and chapter seven a

lady who wanted to renovate a historic hotel in california she let a friend of her friends stay there than that individual got a plaintiffs lawyer to file a disability lawsuit of course anything wasn't up to code yet she was still renovating the hotel. but it was a shakedown lawsuit give me 15000 and we will go away she wanted but then she lost 100,000 and lawyers fees. that's why you get the shakedown lawsuits in the first place it's a piece of that and that's what you add a bunch of cases together and those class-action attorneys now they don't have any clients.

so the lawyer files the lawsuit with the named plaintiff it could be small and the attorneys on one side they reach a settlement they reach a settlement and then to have those procedural rules came under the modern genesis. [inaudible] so they would develop all the new rules in the united states if i sued and then you have to turn over all the e-mails and

sit down for depositions that's american rule and deposition and they kept the committee around started by a law one - - harvard law professor and his protége and crafted the modern class-action where you have to affirmatively opt out so they send you something in the mail if you don't say keep me out the you are in that was created on the back of the professor's car written on a manual typewriter it never existed before they drafted it so we have the's crazy shakedown class-action lawsuits who wrote the rule but the rules can be skewed on behalf bringing the state power to bear.

so in addition to rule makers and enforcers with the unelected and then the new anti- federalist. this is important because most of us support limited government and classical liberal principles instinctively say we're with pro states rights and then the ordinary case that is good but state legislators to get the policy package right because people vote with their feet and businesses can as well so of california raises taxes in north carolina doesn't then you can move to north carolina. is a regulatory state and one state is too big it's the same thing. and it's not just pressure at

the state doesn't provide the services if the roads are horrible that affects their business for people locate as well so it creates this implicit market style pressure of those federalism forces so man litigation it's a classic case if you're just talking about your local business and it's getting sued by workers or customers locally and it's too permissive for the plaintiff's lawyers then the same at the medical malpractice if doctors are sued a lot they can relocate to other states and hospitals can invest elsewhere so ultimately pay the price but

we do have situations where a national lawsuit can be filed anywhere under the current doctrine as well long as it's a stream of commerce so north carolina can't protect against a lawsuit against madison county illinois for the american tort reform association and then also the new anti- federalism our elected officials that are state or local dictating policy for everyone else so the mayor of new york comes out trying to change climate change policy with a federal nexus to do that from city hall in new york or san francisco we see these cases with a tobacco lawsuit and

litigation farmed out on behalf of the state attorneys general who get campaign contributions that they turn around and higher so we see this national policy so nobody in raleigh your charlotte or greensboro voted for the people in new york city or san francisco or albany and sacramento. but yet these officials from other states try to create national policy so they interfere with the federal scheme even if they get it right the states actors can come in to try to dictate national commercial regulation from state and local perspective. >>host: we have been talking with james copeland from the

manhattan institute the 14 areas he reviews in his new book called the unelected. go to the comments section of the facebook page you can find a link to get his book. there so much here to talk about but i want to get back to what we mentioned earlier you brought up the cdc and with cove in 18 we pay close attention to their scientist and experts much more than i would suspect we ever paid attention before covid-19. that talk about the power that even in national review wrote a piece that the cdc power grab and one question that is relevant to what you talk about in your book if the executive branch can unilaterally suspend residential evictions to limit the spread of coronavirus is there anything it can't do? with this administrative state

what can't it do? >> there are still some guardrails around that congress can do but it is an extremely broad power under the auspices of the commerce clause the courts have permitted congress to do mostly what it wants there are some cases that were exceptions like violence against women that's not commercial behavior so they said it has to involve some sort of commerce so gonzales with the federal drug laws convicted under federal law, not state law of growing marijuana in his backyard he

wasn't selling it just growing it but he had to buy seeds in arguably it could affect the drug trade itself and the president from the new deal era to have the same basic logic where farmer was using his own crops for his own use on his own farm and the government said you have to follow the agricultural scheme even though you don't sell it but the supreme court let that go i do think there are two conception issues and wine is the contractual issue itself. while congress will not abrogate the freedom of contract, this is a pretty big infringement on property rights so some litigation would be premised on that but

it is the nondelegation doctrine. >>host: that's what john locke espoused. >> although not the original exponent of writing it down he did not invent the concept but that had been talked about over the centuries in england and i go to that history in the book. but john locke wrote the legislative power exist only to make laws and not legislators so montesquieu and the great chronicle or of the laws of england at the time it was enacted you cannot delegate the lawmaking power.

and that's where we lost some of that so that the statutory question is this delegation to the cdc is that an accurate reading and then the second question is to be delegated that broad of a power is that constitutional? and the court has not come back since 1935 basically signed off on the rest of the new deal they have tapped into the ability of the executive branch to make law that should reside with congress and this is a doctrine of

constitutional law that major questions doctrine. the basic principle is if it is a big public policy question congress needs to resolve it. but in areas like regulating tobacco, the fda tried to claim this power even though congress debated it and had not expressly said to the fda you can regulate tobacco as a drug and they said no this is a major question congress needs to decide at the executive cannot decipher congress. this could create a problem so

it is a shot across the bow and then to say they could get the vaccine up by the end of the year or so and lawyers do it all the time i have seen it with the second circuit in private practice for a law firm to take a strategy really isn't a strategy but there is value in delay it's why formal rulemaking is and always there like enforcement because the question isn't necessarily will the cdc when the lawsuit but will a large real estate actor went to cross the executive branch of the federal government even if they are legally in the right. >> so to play that out if

someone does decide i don't think it's a good idea for the cdc or any agency to break a contract between two parties so take it up the chain and it makes it to the united states supreme court based on that makeup do we have justices who are willing to say you cannot delegate that type of power so does that mean future appointments could be critical? >> absolutely. my guess would be you could have a five / four majority saying this is a step too far. we saw the term before last in a four / four split it was a split but justice alito

concurred say you may want to reconsider that nondelegation doctrine but not in this case because had argued before justice kavanaugh joined the court. i think it's unfortunate we look at justices in partisan terms and it's unfair but those democratic said no and we don't use this it is a relic of the past it is been jettisoned since 37 and then justice gorsuch riled - - wrote a history back to the anglican precedents including british law that says this is a principal and here's what we do with the major questions and they all fall into this we

should bring the doctrine back into a discussion so look at three justices who say yes let's do that and one may be and then they say let congress delegate. it will be a five / four case i think alito would sign on board to a certain type of opinion and brett kavanaugh was a big proponent on the dc circuit court of appeals. >>host: you mentioned and executive orders we have seen former president obama use them you mentioned daca and then president trump coming in to do away with that and then faces a challenge in court. is the executive the most powerful branch right now?

>> which is not the case in the early republic the congress was clearly the most powerful branch so one of the two great justices on the court writing the constitution is pretty clear congress has the power and then it goes in the other direction and alexander hamilton wrote about this the court is called the least dangerous branch doesn't have the sword and executive has a military now there is a standing army nothing like our founders could have conceived and we talked about that in the introduction of the book that we do have to look to bigger government citizens don't have muskets to defend ourselves against the

international threats we face today with modern technology we have to have some type a standing army today. but the government has the sword and government has the purse the executive branch can move things around a little bit and move some money around now they're doing that for covert relief because the parties cannot get together on this now there's a 2 trillion-dollar bill in march some of that was bad but they came together to do something that now we can see this close to the election so we have a lot of businesses potentially still going under. they might be able to thrive but are denied the opportunity

based on state and local actions. >> absolutely before we get to north carolina want to talk about wide is special and important about your book called the unelected. if you're interested in getting the book child check out the comment section on the john locke facebook page of done a great job to start many chapters with the real world situation on what you're talking about and one of the stories that struck me i remember hearing the story at the time and you brought it home can you help reviewers understand so you know the name uncer bobby answer found himself in a strange and dangerous situation and he came up against the power of the state.

tell us what happened. >> bobby uncer 13 indianapolis 500 and amazing champion a big racing family historically and unsurprisingly in his retirement he rides vehicles including snowmobiles he has a ranch out west he drives a snowmobile around in the winter months and one day he was going out with a friend of his who did not have the same experience and they were on federal land wandering about. there was a blizzard. not that you could predict necessarily from watching the weather channel. it was a ground blizzard where

the wind whips up the snow to such a high degree they got caught and got off course and ultimately were stranded. they had to abandon the snowmobiles hike 20 miles got hypothermia they were lucky to survive. afterward they go to the authorities and say i need to retrieve my snowmobile but it turns out during this blizzard they had gone into an area of projected federal forest that snowmobiles were not allowed. congress hadn't voted on this either based on a regulatory structure of the u.s. forest service where they just developed various regulations how to govern federal lands and congress give them broad authority and uncer said i didn't know. i was under duress. i was in a blizzard i was trying to survive.

they said you are a criminal and we'll take you to court he argued as long as he could he ultimately lost the case because the criminal provision did not have that requirement so he did not have to be aware he was do anything wrong and of course not knowing it's illegal is not a defense under the system so it makes sense when you're with these crimes that we know are bad murder or assault or rape or burglary or robbery and with bad conduct and he said i didn't know it was a crime.

but now most of the crimes are offenses if you watch the movie legally blind you got a description of this in the law class but they are bad because they are prohibited. people don't necessarily know where the markers are for what the federal forest markers are in small business owners get caught up in this they didn't fill out the right form or register the right way none of these are intuitively wrong that they create criminal as well as civil liability and ultimately he lost he had enough money to do that but it's the principle.

>>host: that is why your description is why the john locke foundation and you at the manhattan institute have been concentrating on over criminalization we will go ahead and post in the comment section your work in north carolina she actually has already done that she is ahead of me. let's take advantage of your legal background and the fact you are a north carolina resident even though your with the manhattan institute one of the most renowned national think tanks in the united states so tell us what you think of the coven situation and the use of the emergency powers by governor cooper which is the secretary of hhs. >> so to separate the policy

response. i am not an epidemiologist or a doctor so i don't feel perfectly qualified to say this is what it should or should not be but emergency powers used for months with a clear and run was deeply troubling so north carolina as every state does delegates emergency powers to the executive so if you live near the coast in a hurricane is bearing down we have a citizen and legislature still here.

so they will come back quickly from emergency situations so we need to delegate those situations but that cannot be and open-ended ability for the governor and only the governor to broadly regulate the states and cooper is not unique in this among governors around the country although he is one of the more extreme exemplars of using emergency power but this is telling people you can't leave your home some of you cannot leave your home in a hurricane and there is a long-standing history of certain types of quarantine i go to this in the epilogue of my book going back to the

yellow fever - - epidemic and alexander hamilton taught with yellow fever and said people can't come here but they didn't know what was taught so with those extraordinary powers but the actual delegation it was constitutional in the sense it intended to be a more short-term effects and with the business shutdowns the government - - the governor has chosen to do so you're not just delegating everything.

and this is the core principle of the non- delegation and i talk about this in the book he wasn't inventing these principles but this is what they were fighting about leading up to the war. so after the great legal scholar and parliamentarian a mathematician that was circumscribed dissolved part of that and that was in the. of the person that rules in a later call the 11 years tyranny. but now going on several months without consent of the council of state and the governor denies the most basic rights to open your business those freedoms and this is a situation where you're not

testing positive for cocaine but there is a pretty broad authority to do that they are testing positive to quarantine is a long-standing exception. it is not as if somebody with the disease can just go out of the house if the government wants to do that it's one thing but if you test plot positive and say just because it's a general risk, the constitution says we give them authority and state and broader authority than the federal government at least in principle they limit those delegated powers where the states have broad police power that clearly we should not be delegating this to the governor and it's disheartening to me to see it. i don't know which way the

polls door the public things they are doing good 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 the executive emergency power because i think it has been confused. >>host: in your remaining moments give us a sense of what the future is and what we should do? if they believe there's too much power that has been delegated at the federal level what are the next steps to bring that in? are we in a situation where we could? >> it's not very radical in the solution but what we will

not do is get back to attend million dollar federal government or a 1788 government but the courts can do that and the legislature can do that in the general assembly can do things. so that is a complicated question i can't really answer but to say my idea that i put out over the next year and a half to flesh out these ideas that i have outlined in chapter 14 of the book without specificity with the lawmakers i didn't want to bore people with details but you are delegating some of this authority to these agencies

but go get a vote from the legislature or you can say we will sunset these and we will delegate these authorities it has to come back and if we don't vote then it will sunset so it's a temporary move through executive action but before we do that and give this permanent layering of the administrative state, with a lot of these rules that are procedural, we will not get back to caveat emptor buyer beware it is too complicated to for me to know about a thing about my computer so the fact that i bought the computer to say it will not go

that far back but there are some things we can do to prevent those shakedown games with class-action rules and discovery and shifting between lawyers and what we do to make it so we are litigating and not to be can't talk - - concocted by that disability suit error that kathy went through to renovate her historic property and fighting a lawsuit. >>host: regulatory reform in north carolina john sanders has been writing for several years about efforts to do that. we made some progress in north carolina. we will provide a link free if you're interested to look at some of that progress we can show you one of the areas we focus here at the john locke foundation with our research team and there has been some progress at the state level thank you to the leadership of

the general assembly. the book is fascinating. we wish you the best it is called unelected. it is great i would say it is easy to read that doesn't mean it is simplistic and i do appreciate that you puts 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 and at least one case is a tragic ending to someone who was in a difficult situation. thank you so much we appreciate your time from the manhattan institute james copeland check out his latest book unelected. thank you for joining us. >>

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up next on booktv "after words" democratic senator chris murphy looks at the history of violence and firearms in america and the role they both play in our society today. he's interviewed by thomas abt, author and counsel in criminal justice senior fellow. "after words" is a program with relevant guest hosts interviewing top nonfiction authors about their latest work. all "after words" programs are also available as podcasts. >> host: welcome, senator murphy. it's a pleasure to meet with you today. it is a pleasure reading your book "the violence inside us." i learned a lot and i think it is a useful book that people should read. whether or not you have expertise or experience on this extremely important subject. that american violence.

so'd