For conservative and libertarian lawyers, the Federalist Society’s annual convention in Washington is the unrivaled social event of the year: a nationwide class reunion, plus prom, plus the Oscars—with after-parties‚ all rolled into one. And it goes on for three days, starting today.
But amid all this socializing and speechifying, the Society works each year to assemble roughly 20 thoughtful panel discussions or debates centered around the convention’s overarching theme. And the Society tends to choose that theme carefully, to speak to the most pressing constitutional question of the day.
The Society’s original national conference for students, in Reagan’s first term 25 years ago, was titled “A Symposium on Federalism.” Its first convention for lawyers, in 1987, was titled “Changing the Law: The Role of Lawyers, Judges, and Legislatures”—a fitting pick for a conference held the year after Justice Scalia’s appointment to the Supreme Court (and the same year as Judge Bork’s failed nomination to the Court). In 2000, as the nation awaited the outcome of the Bush vs. Gore lawsuits, the conference centered on “The Presidency.”
More recently, in 2015, the Federalist Society focused its conference on “The Role of Congress.” It coincided with the Society’s launch of a broader intellectual project on Congress’s constitutional powers and duties, titled “The Article I Initiative.”
This year the Federalist Society seems to have a similar goal in mind. Because the national lawyers convention’s overarching theme—“Administrative Agencies and the Regulatory State”—reflects the Society’s latest major intellectual venture: “The Regulatory Transparency Project.”
The Regulatory Transparency Project began quietly in 2016, by assembling groups of lawyers and scholars focused on particular subjects of regulation—such as business competition, health care, financial services, and intellectual property. Each group meets to discuss regulations in need of reform or repeal, debate possible reforms, and ultimately produce white papers on the issues. The Project started publishing its first reports this summer.
I’ve been part of the working group focused on “Energy and the Environment,” and was one of several co-authors of the group’s recent paper on the Obama administration’s unprecedented assertion of national regulatory power over private lands, better known as the “Waters of the United States Rule.” But that’s just one of many white papers that the RTP has published; others have focused on occupational licensing, or the Education Department’s diktats on gender policy. The group even produced a paper on the Jones Act, the antiquated regulation of shippers that suddenly became the focus of national attention when it limited national efforts to help Puerto Rico after Hurricane Maria.
The 1920 Jones Act and the 2015 Waters of the United States Rule embody the two basic problems the Regulatory Transparency Project is grappling with. The first is antiquated laws that long ago outlived their original usefulness, but for which there is too little political energy to reform. The second is the new generation of mega-regulations, such as the FCC’s Internet regulations or the EPA’s energy regulations, unprecedented assertions of federal power that impose immense burdens upon the country, limiting economic growth and individual liberty.
For both types of laws or regulations, the Federalist Society’s new project is a welcome effort to thoughtfully reconsider the administrative state’s most pressing problems, and to propose meaningful reform. If Louis Brandeis was right that “sunlight is . . . the best of disinfectants; electric light the most efficient policeman,” then the modern administrative state needs a lot more illumination. The Regulatory Transparency Project is a spotlight on one of the major constitutional and political challenges of our time.
Adam J. White is a research fellow at the Hoover Institution, and director of the Center for the Study of the Administrative State at George Mason University’s Antonin Scalia Law School.
