In this episode of Unwritten Law, Mark Chenoweth and John Vecchione dig into a major new essay by R.J. Pestritto, Senior Fellow at the Claremont Institute, titled “Government by the Unelected: How It Happened and How It Might Be Tamed.”

https://dc.claremont.org/government-by-the-unelected-how-it-happened-and-how-it-might-be-tamed/

The discussion traces the intellectual and legal origins of the modern administrative state — from Progressive-era theory and Woodrow Wilson, through the New Deal, the rise of Chevron deference, and decades of judicial decisions that insulated federal agencies from democratic control. Mark and John explain how ideas developed in academia slowly reshaped constitutional doctrine, allowing unelected bureaucrats to accumulate legislative, executive, and judicial power.

The episode also examines how recent Supreme Court decisions — including Loper Bright, Corner Post, Jarkesy, and ongoing removal-power cases — may signal a turning point. Together, these cases suggest a rebalancing of constitutional authority: less deference to agencies, greater accountability to the President, and renewed pressure on Congress to legislate rather than delegate.

This conversation offers a clear, accessible explanation of how we got here, why the administrative state became untethered from the Constitution, and what it will take to restore democratic accountability.

Mark Chenoweth: Welcome to Unwritten Law with Mark Chenoweth and John Vecchione. We are going to dig into an article today, which isn’t something that we always do on this show. But this is a really good article that I ran across earlier this month by RJ Pestritto who is a senior fellow at the Claremont Institute. And this piece was written as part of the Provocation Series that, I guess, the Center for the American Way of Life at Claremont Institute is producing, partly as a celebration of America’s 250th anniversary, from what I gather. The name of the article is Government by the Unelected: How it Happened, and How it Might be Tamed.

And John, as I was reading through this – and by the way, it’s a nearly 50-page article – as I was reading through this, it just felt like I was reading about the last eight years of NCLA has been working on.

John Vecchione: Certainly, the middle and end.

And then he’s trying to say, “Well, what do we do to bring it back?” And, honestly, John, what we do to bring it back is what NCLA’s been doing.

John Vecchione: Yeah. He goes through cases we’ve been involved in, either as having brought them ourselves and got them to the Supreme Court or been involved in amicus and moot courts and all of this. Right?

Mark Chenoweth: Yeah.

John Vecchione: So, if you go through, he has Loper Bright on there, which I relentless.

Mark Chenoweth: Yeah. Pacchia.

John Vecchione: Pacchia he has on there. He has Corner Post.

Mark Chenoweth: Jarkesy, Corner Post.

John Vecchione: He mooted that.

Mark Chenoweth: Yeah.

John Vecchione: And then he goes to Wilcox, and the ones that are outstanding right now about being fired.

Mark Chenoweth: Right. Right. Humphrey’s Executor response cases, yeah.

John Vecchione: Right? Yes, exactly.

Mark Chenoweth: And Trump v. CASA he talks about; although, we weren’t involved in that one, but …

Mark Chenoweth: Right. Yeah.

John Vecchione: Right?

Mark Chenoweth: Deliberately.

John Vecchione: Deliberately.

Mark Chenoweth: That’s what he says that they knew that the ideas that they were spousing were ideas that were inconsistent with what the framers had done.

John Vecchione: And he talks about Wilson, then he talks about Roosevelt who was not fully Wilsonian but certainly was not far enough away. Right? And then there’s a little gap, I think because he –

John Vecchione: Correct. Yes. But even one of the reasons he was mad at Taft and that he ran was he didn’t think Taft was being progressive enough.

Mark Chenoweth: Yeah.

John Vecchione: Okay. So, there’s a lot of that there, and of course, Teddy Roosevelt, the bride at every wedding and a corpse at every funeral, believed then when he is president, he should have all the power. Right?

Mark Chenoweth: Right.

John Vecchione: So, but the one thing he –

Mark Chenoweth: That sounds familiar, John.

Mark Chenoweth: Right.

John Vecchione: And Taft was very originalist in Myers.

Mark Chenoweth: And how long it took to write that decision, which I didn’t quite realize then.

John Vecchione: Right. And it probably took longer to find out what happened in the old days then, right? So, but the thing is, but that change-over in the ‘20s, I think, in judges and in administrators, it sorta took over all parties; it became a sort of a knowledge base for the whole educated class, really, except for Calvin Coolidge.

Mark Chenoweth: Well, this dependence on experts and this idea that government by expert might be a good idea.

John Vecchione: Yes. Right. Well, how did Hoover get to be president? He was an engineer who saved Europe from starvation.

Mark Chenoweth: Yeah.

John Vecchione: He built all that stuff. He was an expert. He got in on expertise, and the only one you can think of during that time who was not in this mindset was Calvin Coolidge.

Mark Chenoweth: Silent Cal.

John Vecchione: That was it.

Mark Chenoweth: Yeah. No, that’s interesting.

John Vecchione: And he has the famous statement about the Declaration of Independence, that it’s final, if all men are created equal. And all these guys, Wilson and everyone, “Oh, no, it was contingent. It’s historically contingent,” right?

Mark Chenoweth: Right. Historically contingent and we shouldn’t be constrained in this modern society that we live in that requires more scientistic approach to things and we need more experts and we need those experts to not be bound down by the decisions of a democratic majority is sort of the idea that was floating.

John Vecchione: Right. And so, they were insulating them, and he goes through this, I thought, pretty well how they got insulated from democratic control.

Mark Chenoweth: Yeah.

John Vecchione: And he comes to the first Trump administration, which he says didn’t really know what to do, that they tried a little bit. But I think there’s a hint of it in this article that the ideas were already percolating in academia and elsewhere that were gonna lead to the solution that we’ve talked about.

Mark Chenoweth: Right.

Mark Chenoweth: Absolutely. And I won’t read this whole quote ‘cause it’s a long one, but he quotes Gary Lawson who Philip Hamburger, our founder, is also a huge fan of, and Gary’s on our board of advisors and his rise and rise to the administrative state was the seminal work, maybe, in this sort of area.

And there’s a quote from that piece that Pestritto lays out about the FTC, talking about how the agency works, and says, “The Commission promulgates the rules of conduct. The Commission then considers whether to authorize investigations. If the Commission authorizes an investigation, the Commission conducts it. It reports its findings to the Commission. If the Commission thinks the Commission’s findings warrant an enforcement action, the Commission issues a complaint. The Commission’s complaint that a Commission rule has been violated is prosecuted by the Commission and adjudicated by the Commission, etc. etc. etc.”

And it really expose the absurdity of what goes on in the administrative state in a way that I think that maybe a lot of people don’t realize how insular the whole process. Well, insular, self-interested.

John Vecchione: Yeah, it’s being judge – what do we say? Judge, jury, and executioner. That’s what they are, and that’s what he’s saying there, and he’s showing it each step of the way, Lawson is. And I thought that’s absolutely right, and to untangle that, he gets to these various cases. He gets to Loper Bright and relentless in that they, the courts will no longer defer to administrative rulings. So, that takes away a piece of it. Corner Post gives the people a longer period of time to attack a regulation, particularly if they weren’t affected by it before they went in.

And I will tell you this, Mark – I think I’ve said this before on this show – I was stunned that Corner Post was even an issue. From being a plaintiffs attorney for so long, I just thought of repose and statutes of limitations are so easy to tell from one another, usually.

Mark Chenoweth: Yeah. They’re two different things, yeah.

John Vecchione: And it looked just like a statute of limitations where you have to be affected by the thing. To me, when I was mooting that case, that I couldn’t believe it had existed so long. But now I think about -

Mark Chenoweth: And it was being treated as a statute of repose, largely.

John Vecchione: Right. Exactly, for many years and many –

Mark Chenoweth: By the lower courts. The lower courts are –

John Vecchione: And as I read this, I thought, “Maybe this is why. They got so caught up in allowing the administrative agencies to do stuff that even something in my neck of the woods, everyone who was in courts would say, ‘That’s a statute of limitations,’ they said, ‘Nah, the regulations are for everybody, so we’re gonna do this to everybody.’” Right?

Mark Chenoweth: Yeah.

John Vecchione: And just the mindset.

Mark Chenoweth: It’s the mindset, and it’s one of the ways in which the lower courts are, in some ways, the bad guys in this story. And I think we’ve seen that too, John. I mean, not just with some of these older cases that the courts misconstrued, but post Loper Bright, post Jarkesy. I mean, the lower courts seemed unwilling to take the leap that the Supreme Court has already taken in some of these cases that, “Look, the administrative agencies are not gonna get treated the way that they were. This isn’t consistent with the Constitution.” The lower court still seem to be in that Wilsonian mindset.

John Vecchione: And I should know this. Jarkesy is the one that says, “When you have an action, whatever the government calls it, it looks like fraud or a common law contract, you get a jury,” right? And I have been stunned at how slowly that ruling is making its way through the various agencies.

Mark Chenoweth: Yeah.

John Vecchione: I’ve been stunned by it.

Mark Chenoweth: Yeah.

John Vecchione: There really have not been a lot of winds expanding it to other agencies, except NLRB, FDC, and it was originally on a CC case, and one other that I’m forgetting. But it hasn’t moved like lightning through all these things, where I think that most of these punishments they’re handing out at these agencies are obviously Jarkesy-type actions.

Mark Chenoweth: Yeah, I completely agree with you. The other bad guy that sorta comes to the surface in this story, John, that was maybe surprising to me – I don't know, when I thought about it, I said, “Well, I guess that’s right,” – but it’s former Chief Justice William Rehnquist.

John Vecchione: Yeah.

Mark Chenoweth: He was behind some of these cases, and whether it was authoring the authoritative opinion in Florida East Coast Railway or Vermont Yankee, some of these cases that haven’t been overturned yet but that went a long way into freeing the administrative agencies in the case of Florida East Coast Railway in some of the formal procedures that they had to do in order to engage in rulemaking.

Mark Chenoweth: Yeah.

John Vecchione: Right? And so, he was smackdab in the middle of the progressive movement, and he was at the type of schools – even though he’s a conservative, and if you touched on certain separation of powers, he would understand it, the administrative agencies and how they were treated from his youth all the way to the very end of his time on the bench was a, “Let them go. They’re the ones.” And if we don’t allow these agencies to go, we’re somehow stopping the elected branches ‘cause the president controls them, even though the president didn’t control them.

Mark Chenoweth: He didn’t control them. That’s right.

John Vecchione: But Rehnquists’s idea was that that was the case. And who is Arlington County? Who?

Mark Chenoweth: Well, and Rehnquist was okay with Morrison v. Olson, remember?

John Vecchione: Yeah.

Mark Chenoweth: And Scalia’s the sole dissenter there.

John Vecchione: Right. And that was 8-1, right?

Mark Chenoweth: Yeah.

John Vecchione: And then Arlington County, I’ve forgotten what the run was on that because he –

Mark Chenoweth: It was a 5-4 decision, I’m pretty sure.

John Vecchione: He points out how bad that one is ‘cause that’s –

Mark Chenoweth: Oh, but that’s post-Rehnquist, though.

John Vecchione: It is.

Mark Chenoweth: Yeah.

John Vecchione: But there’s still a lot of folks on – the reason Arlington County is so bad is it allows the –

Mark Chenoweth: City of Arlington you’re thinking.

John Vecchione: City of Arlington. Excuse me.

Mark Chenoweth: Yeah, FCC v. City of Arlington.

John Vecchione: FCC. It allows the agencies to define their jurisdiction. And, obviously, just –

Mark Chenoweth: And by the way, it’s Arlington, Texas. City of Arlington, Texas; not Arlington, Virginia.

John Vecchione: Right. Not Arlington, Virginia. They wouldn’t have sued. No, but I think that the real problem there is even if you see the developmental law in England, the law courts and the equity courts would do everything to extend their jurisdiction. And the administrative agencies are gonna act no differently. No differently from that, so how can you give them that power?

Mark Chenoweth: Yeah.

John Vecchione: So, anyways, I thought the cases he called out were all excellent.

Mark Chenoweth: Yeah. And he says, in the article, “I say that the City of Arlington case may have been a turning point, because it sparked alarm by other conservative justices – even Chief Justice Roberts – and what followed in the decade or so after City of Arlington were several decisions narrowing Chevron, leading up to the Court’s decision to overturn it altogether.”

John Vecchione: And so, then he talks about how it might be turning back, and he notes, we’ve noted Loper, but the other one now is the control of the administrative agencies by the president. And this goes to the Appointments Clause, and maybe the Take Care Clause, and maybe we’ve discussed that before; we’re not sure how the different clauses of Article II work.

Mark Chenoweth: Right. Three good reasons. Three good reasons.

John Vecchione: But do you know what it reminded me a little bit of? The article we did discuss by Sarah Isgur that the court is allowing the president more and more control of the agencies but allowing less and less deference to what the agencies can do so that the power of the president control the agencies, but the power to define what the agencies can do by the president goes down.

Mark Chenoweth: Right. Which is the right –

John Vecchione: Right answer. Right?

Mark Chenoweth: It is the right answer, yeah. And so, and I think her point, if I remember right, John, was that the court knows what it’s doing here, that there’s a larger plan.

John Vecchione: There’s a plan.

Mark Chenoweth: Yeah. And whether that’s true or not, I would say that that larger plan is consistent with the Constitution and is consistent with the story that Pestritto is telling in this article about the need to make the unelected bureaucracy accountable, the need to allow the president to remove folks, etc. In order to get control of this what had been largely untethered administrative state, there were certain key moves that need to be made. Getting rid of Chevron was one of them. Getting rid of these constraints on the president’s ability to remove people is another pretty significant one.

John Vecchione: Right. And as I said, we don't know the full bounds of it because we still have the federal reserve case, which is a question mark. Right?

Mark Chenoweth: Right.

John Vecchione: And then I will say this, the Federal Election Committee is an interesting case to me because nobody has kept it fully staffed since Obama.

Mark Chenoweth: Right.

John Vecchione: It has never had all the people it needs to do anything.

Mark Chenoweth: All six, yeah.

John Vecchione: Right?

Mark Chenoweth: Yeah.

John Vecchione: So, the administrations themselves have all, for three different presidencies, decided they didn’t wanna have the Federal Election Commission at full power.

Mark Chenoweth: Yeah.

John Vecchione: So, it’s very hard for us to get a real ruling out of them.

John Vecchione: Yes.

Mark Chenoweth: And I hadn’t really thought of maybe the tide turning that far back in –

John Vecchione: It did because that was the one that said that you couldn’t stop someone from spending their own money. And so, the progressive have hated that forever. That was like an anti-progressive ruling that you couldn’t spend your own money on your own case because the court tied it to corruption. The problem is corruption, and how can you corrupt yourself?

Mark Chenoweth: Well, but those are the First Amendment issues.

John Vecchione: Yeah.

Mark Chenoweth: I think the administrative state issues in the case were the FEC was trying to litigate – if I remember correctly – was trying to litigate something independently of DOJ.

John Vecchione: Yes. That is true. Yes.

Mark Chenoweth: And I think the court was saying, “No. No. No. No. No.” You don’t get to be that independent.

John Vecchione: Yeah.

Mark Chenoweth: So, that was kinda early as well.

John Vecchione: “You’re not the FTC.”

Mark Chenoweth: It is funny that’s about the same time that the FTC was given the independent power to do that. So.

John Vecchione: Yeah. Oh, yeah. I know. Exactly.

Mark Chenoweth: So, Free Enterprise Fund v. PCAOB is another case. Seila Law is another case that he talks about. I mean, these are all cases on the road to restoring control over the administrative state. And then when we get to the sort of, “Where do we go from here” part of it, John, one of the things he says is, “Well, you know, it would help if Congress did their job.”

John Vecchione: Yeah, and this is something that I’ve noticed in all of these type of articles. Most of them are shorter and less involved than this one.

Mark Chenoweth: Yeah. Less well sort of executed and thought through.

John Vecchione: Yeah. Yes. But Congress is always – I’ve been saying that the Court’s main message over the last 10, 15 years is, “Congress do your job.” And everyone’s saying, “Congress do your job,” but it’s still this is –

Mark Chenoweth: Congress still isn’t doing their job.

John Vecchione: Well, this session, this is the lowest amount of legislation to come out of a Congress in 100 years. Right?

Mark Chenoweth: Yeah.

John Vecchione: And so, still they don’t wanna do anything, or at least they don’t wanna try to do anything ‘cause that’s the thing that really amazes me. It’d be one thing if they had bills that were 80-20 bills. Right? Something that people are 80-20 against, you try it, if they’re gonna filibuster it, let them filibuster it, but they’re not even trying that. It’s just very strange ‘cause there’s no activity. It used to be –

Mark Chenoweth: Well, it’s not strange for the following reason: the reason is because the speaker has zero margin to work with in terms of the numbers, and that’s the reason.

John Vecchione: That’s true, but you’d think on an 80-20 issue, something like that, they’d put it up there, they’d at least – so what if you lose? – at least you’re showing that you have an agenda, and you make the other side take the hard votes.

Mark Chenoweth: Yeah.

John Vecchione: I mean, Jim Wright did this all the time and Pelosi would do it. And like Daley did it all the time, and he was not some kind of squish or something. But they would all give it a try, even if they were gonna fail, in order to hone things to bring it to the people the next time. That fact that the House and Senate don’t seem to wanna bring it to the people, whatever the issue is, is kinda telling that that’s one of the reason I thin it’s not just that President Trump has total control; it’s that they don’t really have anything they wanna do, except spend money.

John Vecchione: I have forgotten whether they ruled that way for State Farm because they thought that the statute had given the agency that power or if they did it just as some doctrine. You know? ‘Cause it’s one thing I’ve always said about all these statutes from the ‘70s, it appears Congress meant to give them a lot of power and was trying to do it. Right? So, you can be as originalist as you want, but if you go to the statute barring that they’ve given power away they’re not constitutionally allowed to, you’re gonna get a lot of bad rulings that have ‘70s-type statutes if you are originalist about them.

Mark Chenoweth: Well, yeah. That’s very true. And the other case that he talks about here is Trump v. CASA as, I guess, he talks about it a little more positively than we have as another potential way of maybe preventing the district courts from interfering with what the Executive Branch wants to do.

John Vecchione: Yeah. He thinks it’s way too weak.

Mark Chenoweth: Yeah.

John Vecchione: I think if you scratch Pestritto, you’d find a guy who doesn’t think, even after you’ve won an APA case, that it can stop everybody. That’s the hint I got from that.

Mark Chenoweth: I think that’s right. I’d like to think he just hasn’t heard our strong arguments on the other side of that question.

John Vecchione: Me too.

Mark Chenoweth: But so, he doesn’t sorta lay out the next several cases that are going to be in front of the, other than the Humphrey’s Executor issue, he doesn’t sort of talk about what comes next after that. But, John, I think it’s fair to say anybody who is interested in sort of a perspective – I won’t say it’s exactly NCLA’s perspective, but a very similar perspective to what NCLA has on what’s gone wrong with the administrative state, how it is being successfully tamed by organizations by NCLA. And that’s maybe my one gripe here with Professor Pestritto is, “Really?”

John Vecchione: No credit.

Mark Chenoweth: “No credit? Not one mention of NCLA in the whole thing? You’re talking about several of our cases and a lot of the great work we’ve been doing, and nothing? Come on, now.”

John Vecchione: So, I do think that this article, you can get through it, you can read it. It’s not too dense. It’s very well written. It has nice little historical nuggets. It is a compact little piece on how we got here and how we’re getting out of it. And I did think it was very well done for the layman.

Mark Chenoweth: Yeah, and I sent it around to folks here at NCLA. I sent it to my kids. I sent it to my dad. I sent it to my sister.

John Vecchione: Merry Christmas, kids.

Mark Chenoweth: And look, I said, “Obviously, you don’t have to read this, but –

John Vecchione: You sent it to us on Christmas Eve.

Mark Chenoweth: Yeah. Well, you know, that was a … I didn’t say you had to read it; I just said, “Hey, I happened to, this is what I was doing on Christmas Eve.”

John Vecchione: I know.

Mark Chenoweth: “I read this great article. I wanted to share it with all of the people that I loved and cared about.”

John Vecchione: It was the most Mark Chenoweth thing ever. Not a creature was stirring, except Mark Cehnoweth reading Pestritto’s piece.

Mark Chenoweth: All right, guilty as charged. Guilty as charged, but I’m trying to enforce your point, which is the kinda piece that you can send to a non-lawyer.

John Vecchione: Yes.

Mark Chenoweth: And, you know, it’s long but you can work through it and figure out sort of why NCLA might be right and why we might have been doing some of these things, and sort of, I think, gives people a good perspective on that whole situation. So, again, the article is Government by the Unelected: How it Happened, and How it Might be Tamed, Ronald J. Pestritto. And we’ll see if we can get a link in the comments section or something to the article so that people are able to go find that more easily. But invite you to read this and figure out what has been done about taming the administrative state, and it might set the foundation for what the next steps are gonna be to continue to fight the administrative state. You’ve been listening to Unwritten Law.

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Duration: 23 minutes