Judge Rao on Separation of Powers

A little insight into the Mazars dissent.

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Podcast-skeptic Judge Neomi Rao joins Sarah and David on the sidelines of the National Constitution Center’s Conference to talk circuit decisions, career path rejections, and tips for young clerks. But first: a primer on the most important office you’ve never heard of.

Show Notes:

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  1. AMDalTX

    In discussing the rejection of the D.C. sentencing guideline revisions, it was mentioned that this was a "privileged resolution" that did not require 60 votes in the Senate to pass. I had no idea what that meant, but did find a little info from an excerpt of Chapter 1, "Exceptions to the Rule: The Politics of Filibuster ... - Brookings" which states that Chapter 6 explores "the second category of exceptions, which seek to limit the president’s power to take unilateral actions in the face of a range of disincentives to do so." But the brief explanation seemed to relate to oversight of the Executive Branch. I don't understand.

    I enjoy the pod, but I'm not a lawyer. (Insert Aggie joke here.) The only time I've heard of a cloture motion was on an episode of The West Wing. Could you help me understand why this was considered privileged? Thanks.

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    Patterico

    Interesting. My first introduction to Judge Rao was listening to the arguments in the Michael Flynn appeal. My reaction to her, based on that alone, was that she was a partisan clown. It was fascinating to hear another side of her, although I found it difficult to reconcile the seemingly thoughtful person I heard in this podcast with the biased hack I remembered from the Flynn argument.

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  3. MathewA

    Excellent interview. I very much enjoyed it.

    I think David's points about process sometimes being more important than outcome is a good one. For example, the process of having free and fair elections is more important that who actually wins the election.

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    Ben Connelly

    AO has been on a roll with guests recently! Last pod and this pod were two of the best episodes this year so far. I think I liked your episode on Mine even better than the EconTalk one, which I barely remember. That’s a compliment! Russ Roberts is one of the best interviewers in the podcast space.

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  5. Danielipoeana

    Hi Sarah,

    I hope that you're doing well today! :)

    The Trump Administration used the HEROES ACT to pause student loan payments during the COVID-19 National Emergency, but as I analyzed yesterday's student loan oral argument and the amicus brief from the original drafters, it seemed that the Trump Administration's policy also may have been unconstitutional and fell into the MQD bucket.

    From my perspective, Congress delegated to the Secretary of Education authority on addressing student loans for active service members during war and unforeseen emergencies; therefore, the scope of authority ends there.

    Does the Trump Administration's student loan payment pause also fall victim to the same problems as the Biden Administration's student loan forgiveness plan, albeit President Biden's plan costs us more?

    Thank you!

    Best,
    Daniel

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    1. MathewA

      I think the pause is a much closer call. Not the blatant violation that the forgiveness was.

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    J.R.Bohl

    So good. Thanks especially to Sarah for, it seems, actually knowing everyone.

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    Brian Levy

    Great interview. Loved hearing from Judge Rao and her administrative law background. I look forward to seeing more of her work on the DC Circuit. Meanwhile, in a discussion about separation of powers, I'm somewhat disappointed that there was no mention of the 5th Circuit CFPB "appropriations" case that was just granted cert this week. I know Judge Rao can't talk specifics about a case, but Sarah and David sure can. Besides, given Judge Rao's experience and welcome candor, I bet she would have had some interesting insights about that issue in any event.

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  8. John Matthew IV

    There are no laws in the UK about where a Prime Minister can be born. Boris Johnson was born in New York City.

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    NashLives

    This was a little bit of a one-sided conversation. It would've been interesting to hear the Judge's opinions on more difficult cases like the Federal Reserve. The Fed has an independent funding mechanism insulating it from Congress's power of the purse. But do we really want the Fed to run through the normal appropriations process? If you look back in the history of monetary policy/central banking in the US, putting Congress back in the driver's seat seems like an ~insane~ idea. If you agree that the Fed should be allowed to operate quasi-independent of Congress, then where does that leave the rest of her legal theory? Can we just make exceptions for the agencies that work well as is (doesn't seem very principled...). I share the sentiment that the administrative state goes too far in many instances, and I worry about executive overreach as well, but tearing down the much of the administrative edifice and pushing Congress out of the nest while shouting "fly" seems a little crazy. Moreover, it doesn't seem like a very small c conservative position. After all, these bureaucracies have evolved for a century, in some cases longer, they must serve some useful purposes. Shouldn't we be worried about Chesterton's fences?

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    1. MathewA

      Then pass a constitutional amendment authorizing the fed.

      Likewise, pass one authorizing all the other unconstitutional federal branches and regulations that we actually want to keep.

      But don't twist the constitution or laws to get the result you want.

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      Ben Connelly

      “ After all, these bureaucracies have evolved for a century, in some cases longer, they must serve some useful purposes.”

      Therein lies the dubious assumption…

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      Sarah Isgur vertical-nib Author

      Bear in mind, judges can't discuss any specific issues that could come before them.

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    BWG

    You misspelled Neomi’s name in the blurb above.

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      Sarah Isgur vertical-nib Author

      Fixing!

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