(This is my “Chair’s Comment” in the newly published Fall 2023 issue of Administrative & Regulatory Law News, from the ABA’s Administrative Law Section. If you’re not already a member of the section, I hope you’ll join us.)
At Stanford’s Hoover Institution, the best conference room is a tribute to the late Secretary of State George Shultz. There you’ll find Mr. Shultz’s “Cabinet Chair”—his chair for White House cabinet meetings. And on the back of his chair, you’ll find four small plaques displaying the four cabinet positions to which he was appointed: Secretary of Labor, Director of Management & Budget, Secretary of the Treasury, and Secretary of State.
I think about that chair from time to time. More specifically, I think about Mr. Shultz’s public service, and the fact that his most famous and significant public service—as President Reagan’s Secretary of State, helping America to finally win the Cold War—was preceded by his service in senior positions responsible for domestic administration.
Indeed, his diplomatic service was anchored in his understanding of good governance at home. As I wrote upon his passing in early 2021, George Shultz was a great diplomat because he understood America’s real strength was rooted in its people, its history, its economy, and its constitutional government.
Shultz had a deeply “Hamiltonian” understanding of foreign and domestic policy. And the relationship runs in both directions: good government at home undergirds America’s security and leadership abroad; and global events can have a profound effect on domestic policy.
The latter point is one worth considering now more than ever.
So often, those of us who work in domestic regulatory policy and administrative law tend to think of our field as largely self-contained. We tend to think of administrative law in terms of doctrines and analytical tools largely defined by domestic considerations.
But some of the biggest changes in administrative law and regulatory policy can come from geopolitical changes. Two years ago, the 75th anniversary of the Administrative Procedure Act was an opportunity to reflect on the origins of modern administrative law, which were significantly informed by American’s experience in World War II. The APA—enacted alongside the Legislative Reorganization Act of 1946, and followed promptly by the National Security Act of 1947—was enacted in light of the federal government’s postwar needs, and also in light of America’s understanding of the dangers it had seen abroad.
And not just the APA. As Prof. Cliff Sloan reminds us in his recent book, The Court at War, the Supreme Court’s landmark decisions in the 1940s were shaped significantly by the justices’ sense of wartime necessities and experience—for better and (infamously, in Korematsu) for worse.
I wonder if we might be entering a similar moment when administrative law and domestic regulatory policy are shaped significantly by geopolitics. First and foremost, a new era of geopolitical competition with China could have profound impacts on domestic policy and regulatory law. Laws like the National Environmental Policy Act, with a body of judicial precedents requiring ever-longer environmental reviews and other sources of regulatory uncertainty, might come to be seen in a very different light when it impedes the domestic mining of critical minerals and the construction of semicon- ductor fabrications. The White House’s own frameworks and procedures for domestic regulatory policymaking might have been seen as antiquated and insufficiently connected to an administration’s national security and diplomatic operations. And those are just two fairly obvious examples; what nonobvious ones will eventually catch us administrative lawyers by surprise?
We’ve seen similar discussions around climate policy, including a reconsideration of environmental permitting laws that slow wind and solar projects just as natural gas projects, and interstate transmission lines just as interstate oil and gas pipelines. But the domestic policy implications of climate policy have always been in public view.
The domestic policy implications of U.S.-China competition, by contrast, might not be so obvious yet. But they’re worth considering, and to that end I highly recommend Daniel Yergin’s recent remarks at Columbia’s Center for Global Energy Policy and his follow-up podcast with that center’s director, Jason Bordoff.
I’ve been lucky to get to consider these kinds of issues in my own career’s different chapters: first in private practice, working on energy and financial regulation; then at the Hoover Institution, where I was lucky to get to see Mr. Shultz himself grapple with such issues; and now at the American Enterprise Institute and the Antonin Scalia Law School’s C. Boyden Gray Center for the Study of the Administrative State. At AEI and the Gray Center, the best parts of my work are often the conversations that I get to have with my colleagues and with many of you, helping each other to think hard about challenging and fascinating questions.
Here, too, in the ABA’s Administrative Law and Regulatory Practice Section. I’m grateful for the chance to be a steward of the Section’s legacy this year, and for the example of my predecessors—including, of course, Antonin Scalia, whose own initial “Chairman’s Message” in 1981 closed with the observation that “we must get used to having more players on our field—and perhaps to ‘interesting times’ for administrative procedure into the indefinite future.”
And I’m especially grateful for the example of one predecessor: my old mentor and friend, the late Ambassador C. Boyden Gray. Like George Shultz, he knew the deep connections between domestic and foreign policy; he knew the America’s best virtues and sources of strength; and he loved to debate all of it with friends who saw things differently. We can all learn from their examples.
Adam White is the chairman of the ABA’s Section of Administrative Law & Regulatory Practice, a senior fellow at the American Enterprise Institute, and co-director of the Antonin Scalia Law School’s C. Boyden Gray Center for the Study of the Administrative State.