Claremont Institute

Administrative Tyranny:

Will the Court Reign in the Out of Control Bureaucracy?

With Guest Speakers Anthony T. Caso, Karen Harned, and Kent Scheidegger


Department of Transportation v. Association of
American Railroads begins at: 2:11
Perez, Sec. of Labor v. Mortgage Bankers Association begins at: 12:48

In this tele-town hall, Dr. John C. Eastman and his colleagues tackle three cases, two of which present the U.S. Supreme Court with an opportunity to reassess the way the Court has addressed bureaucratic regulations. The last case gives the Court another opportunity to assess the limits of freedom of speech when that speech turns threatening.

In Department of Transportation v. Association of American Railroads, the Court will weigh in on a legal doctrine it hasn’t used since the 1930s—the non-delegation doctrine. The doctrine recognizes that the Constitution does not allow Congress to delegate its lawmaking authority to any other entity. In the case at bar, Congress gave Amtrak a significant role in writing standards of performance for passenger trains, which also significantly impacted freight trains’ access to the rails. Did that role give Amtrak an unconstitutional delegation of legislative power?

In Perez, Sec. of Labor v. Mortgage Bankers Association the Supreme Court considers whether a federal agency must provide public notice and allow for comment before it significantly alters its interpretation of regulation. In recent years, agencies have begun using interpretive rules, which are meant to give an explanation of how the agency views a regulation, to dramatically change the meaning of those regulations. Should federal agencies have the authority to change regulations without giving notice or allowing for public comment?

To discuss these two cases, Dr. Eastman is joined by Prof. Anthony Caso and Karen R. Harned. Professor Caso serves as Director of the Constitutional Jurisprudence Clinic at Chapman University’s Dale E. Fowler School of Law. For nearly 30 years, he held a variety of positions at the Pacific Legal Foundation, where he argued and won cases at every level of the state and federal court systems.

Karen Harned serves as Executive Director of the National Federation of Independent Business (NFIB) Small Business Legal Center, a post she has held since 2002. Ms. Harned comments regularly on small business cases before federal and state courts, as well as the U.S. Supreme Court. 

Finally, Elonis v. United States asks the Court to decide when a threat is a threat. The First Amendment provides a very broad freedom of speech, but for generations we have recognized that speech is not unlimited when it turns threatening or dangerous. In our age of social media, more and more communication takes place online, and in this case an ex-husband posted about his ex-wife on Facebook. She felt threatened, but he claimed he was sharing his latest rap lyrics. Should the test of a “threat” turn on the speaker’s intent to threaten, or how the listener understood it?

Kent Scheidegger joins Dr. Eastman for this conversation. He has been the Legal Director of the Criminal Justice Legal Foundation since 1986, and has written over 150 briefs in cases in the United States Supreme Court. Mr. Scheidegger is the Past Chairman of the Criminal Law and Procedure Practice Group of the Federalist Society and has served on the Group’s executive committee since 1996.