Advisory Opinions – "The Future of the Administrative State"

Host: Sarah Isgur (w/ guest Adam White)
Date: November 27, 2025
Podcast: Advisory Opinions by The Dispatch

Episode Overview

In this episode, Sarah Isgur welcomes guest Adam White (Co-Director, C. Boyden Gray Center for the Study of the Administrative State, AEI scholar, and member of Biden’s Supreme Court Commission) for a wide-ranging, in-depth conversation on the future of the administrative state, the Supreme Court's rapidly developing approach to agency power, and classic separation-of-powers concerns. Structured more as a conceptual build than a topical rundown, they dive into current and historical debates, including the effect of interim (aka "shadow") docket decisions, severability, legislative vetoes, and court reform.

Key Discussion Points & Insights

1. Adam White’s Work: The Gray Center & AEI

[03:32]

• Adam oversees research into where administrative law is going 5-10 years out, focusing on the "collision" between courts and the administrative state—both less democratically accountable than Congress or the Presidency.
• The Gray Center solicits input from academics, judges, and policymakers to anticipate the next big shifts: "We try to look out over the horizon five, ten years ... and let's really think about what's going to be over the horizon five years from now." (Adam)

2. Structural Shifts: "Who" vs. "What" Cases at SCOTUS

[06:48]

• "Who cases": Presidential power to remove agency officials. The Court has repeatedly affirmed executive power on this front (e.g., CFPB, FHFA, Sarbanes-Oxley).
• "What cases": Scope of agency policymaking and presidential discretion. The Court increasingly imposes guardrails, restricting what the president/administrative state can do.
• Adam's framing: "Over and over again, the Roberts court has repeatedly squeezed presidents on their policymaking discretion ... and expanded presidential power on the who cases." (Adam, [08:29])
• Many observers (especially post-Trump) misread interim docket signals—"people have set themselves up to misunderstand what the court is about to do, beginning, I think, with the Tariffs case." (Adam)

3. The Precedential Value of the "Interim" (Shadow) Docket

[09:18]

• Discussion of Judge Trevor McFadden's and Vetin Kapoor’s article arguing that interim SCOTUS decisions should be binding on lower courts, vs. Professor Bert Huang's view that they're merely hints ("foreshadowing" future law).
• Sarah: "How can decisions that are meant to be on this interim basis, making ... snap judgment calls ... be precedential for anything except lower courts thinking about what the status quo should be?" ([10:27])
• Adam: Lower courts should not anticipate overturning precedent unless SCOTUS expressly does so; should harmonize new interim orders with existing precedent where possible.
  • "The job of a judge is to let the Supreme Court overturn its own precedents when it gets around to it ... and until that moment, continue to read the existing precedents as being on the books, read the latest orders ... as not overturning those precedents." ([20:39])
• Memorable Exchange:
  • Sarah [20:32]: "I think that's important, by the way, like, underline that. That what you just said, because I haven't heard anyone else say that."

4. Legislative Vetoes and INS v. Chadha

[29:44] & following

• Historical context: Congress used to attach "legislative vetoes" to delegations of authority, believing it could subsequently block presidential action easily.
• INS v. Chadha (1983): SCOTUS strikes down the one-house legislative veto as unconstitutional, leading to a massive unintentional transfer of power to the executive because the delegations remained even after Congress lost its check.
  • Adam: "By getting rid of the vetoes and leaving these delegations in place, you left an enormous amount of power in the hands of presidents." ([36:39])
• Severability: What should happen to a law if a key provision (e.g., legislative veto) is struck down?
  • Sarah: "Every single piece of a deal is necessary to that deal... if you excise that one tumor, the whole thing would not have passed that way... I would always lean strongly against severability." ([42:32])
  • Adam sees both sides: "If you think there's ... one provision ... unconstitutional, what's judicial restraint?" ([41:02])

5. Independence of Administrative Agencies: Bundle of Sticks Metaphor

[51:29]

• Sarah frames administrative agencies as a "bundle of sticks": vast powers, with checks built-in (e.g., independence, bipartisan leadership), now under threat as courts remove some of the key "sticks."
  • "How could the independence, so-called, be severable from the existence of the agency?" ([51:29])
• Adam: Agencies were originally meant as quasi-judicial bodies, not tools of presidential power. Court interventions now (removal restrictions, funding) risk creating "turbocharged agencies in the hands of the President." ([54:00])
• Both agree: It's not simply possible to "rewind" or undo this system—attempts to rebalance the separation of powers may inevitably misfire.

6. Textualism & Methodological Tensions on the Supreme Court

[59:00]

• Adam highlights the different approaches of Justices Barrett and Kavanaugh, observed during the tariffs oral argument:
  • Barrett: Looks to statutory language and broader statutory context.
  • Kavanaugh: Focused on legislative intent—what Congress was actually responding to at the time.
  • Shows intellectual diversity in textualism and interpretive approaches on the current Court.

7. Supreme Court Reform & The Biden Commission

[61:36]

• Adam reflects on his time on Biden’s Supreme Court Commission:
  • Opposed "court-packing" and became convinced judicial term limits would be a "catastrophe."
  • Sees the real challenge in the Court’s broad discretionary powers (certiorari, interim decisions) after Congress’s 1925 decision gave SCOTUS extensive control over its docket.
    • "I showed up at the commission opposed to court packing and I left opposed to court packing. I showed up kind of open to judicial term limits and I left firmly opposed to them." ([63:18])
  • Commission served mostly to "diffuse the situation" and produced a thorough, balanced historical report.
• Sarah: The commission's report is still a key historical resource.

Notable Quotes & Memorable Moments

• Adam [04:33]: "We live in an amazing time where ... the central drivers of our politics" are the courts and the administrative state, both minimally accountable and moving rapidly.
• Adam [08:29]: "The shadow docket cases ... have been a total head fake because people have read far too much into the court's decisions or non decisions."
• Adam [20:39]: "Let the Supreme Court overturn its own precedents when it gets around to it, and until that moment, continue to read the existing precedents as being on the books..."
• Sarah [42:32]: "Every single piece of a deal is necessary to that deal ... I would always lean strongly against severability."
• Adam [54:00]: "...You're going to wind up with these turbocharged agencies in the hands of the President."
• Sarah [56:55]: "...You can't unwind it because the deals made by Congress ... you can't unwind now without starting over."
• Adam [63:18]: "I think it would be a catastrophe [judicial term limits]. But ... I found that work really stirred up in me much more interest in how challenging this is."

Timestamps for Important Segments

• 03:32 — Adam White describes the Gray Center’s work and the focus on courts/admin state.
• 06:48 — "Who vs. What" cases: Supreme Court's recent governance.
• 09:18–22:41 — Debate over interim docket/precedential value (McFadden vs. Huang, what lower courts do).
• 29:44–46:43 — Legislative vetoes/INS v. Chadha, severability, and Congress's transformation.
• 51:29–58:05 — Independence of agencies, the "bundle of sticks" metaphor, the evolution of administrative state and checks.
• 59:00–61:36 — Contrasts between Barrett/Kavanaugh’s interpretive styles.
• 61:36–65:34 — Supreme Court reform: insights from the Biden Commission, term limits, and cert docket discretion.

Tone & Style

• Relaxed, intellectually energetic, humorous (“bundle of sticks,” “turbocharged agencies,” “nerdy playdates”).
• Deeply nerdy yet accessible, rich with constitutional and administrative law history.
• Balanced skepticism toward both current doctrine and major proposals for reform.

Closing

This episode is a masterclass for anyone interested in the crossroads of modern administrative law, the Supreme Court’s evolving doctrines, and big-picture questions about U.S. governance structures. Adam and Sarah deftly blend history, legal theory, and current events—with plenty of law school humor—to clarify how we arrived here, why it matters, and why unwinding the 20th-century administrative state is easier said than done.