Law and Leviathan

Redeeming the Administrative State

Cass R. Sunstein, Adrian Vermeule

• Publisher: Belknap Press
• Year: 2020
• ISBN:
  9780674249813
• Topic: Law
• Subtopic: Administrative Law
• Index: Law

Winner of the Scribes Book Award "As brilliantly imaginative as it is urgently timely."
—Richard H. Fallon, Jr., Harvard Law School "At no time more than the present, a defense of expertise-based governance and administration is sorely needed, and this book provides it with gusto."
—Frederick Schauer, author of The Proof A highly original framework for restoring confidence in a government bureaucracy increasingly derided as "the deep state." Is the modern administrative state illegitimate? Unconstitutional? Unaccountable? Dangerous? America has long been divided over these questions, but the debate has recently taken on more urgency and spilled into the streets. Cass Sunstein and Adrian Vermeule argue that the administrative state can be redeemed so long as public officials are constrained by morality and guided by stable rules. Officials should make clear rules, ensure transparency, and never abuse retroactivity, so that current guidelines are not under constant threat of change. They should make rules that are understandable and avoid issuing contradictory ones.These principles may seem simple, but they have a great deal of power. Already, they limit the activities of administrative agencies every day. In more robust form, they could address some of the concerns of critics who decry the "deep state" and yearn for its downfall."Has something to offer both critics and supporters…a valuable contribution to the ongoing debate over the constitutionality of the modern state."
— Review of Politics "The authors freely admit that the administrative state is not perfect. But, they contend, it is far better than its critics allow."
— Wall Street Journal

1

THE NEW COKE

IN THE EARLY TWENTY-FIRST CENTURY, American public law is being challenged by a fundamental assault on the legitimacy of the administrative state, usually marching under the banner of “the separation of powers.” Mainly found in academia, but with some support on the bench, the challengers frequently refer to the specter of tyranny or absolutism. Sometimes they speak of Stuart despotism, and they valorize a (putatively) heroic opponent of Stuart despotism: the common-law judge, symbolized by Edward Coke.

As we understand the term here, the New Coke is shorthand for a cluster of impulses stemming from a belief in the illegitimacy of the modern administrative state. The New Coke can take relatively modest forms, which would push existing doctrine incrementally in directions consistent with those impulses. But it occasionally takes far more aggressive forms, which would invoke heavy constitutional artillery, either to invalidate long-standing practices or to transform them in light of what its advocates see as background principles for statutory interpretation. In the most aggressive forms, the Constitution would be invoked to threaten invalidation of important provisions of federal regulatory law, including the Clean Air Act, the Federal Communications Act, the Occupational Safety and Health Act, and the National Traffic and Motor Vehicle Safety Act.

Prominent declarations of the New Coke include Justice Neil Gorsuch’s dissenting opinion in Gundy v. United States, arguing for a revamped and strengthened version of the nondelegation doctrine.¹ Another is Justice Clarence Thomas’s separate opinion in Perez v. Mortgage Bankers Ass’n, arguing for an overturning of both Chevron deference to agency interpretation of statutes and Auer deference to agency interpretations of their own rules.² The New Coke can also be found in Judge Janice Rogers Brown’s provocative opinions for the D.C. Circuit Court of Appeals, arguing against public regulation and for a revival of the nondelegation doctrine.³ Several of these opinions draw upon the work of an assortment of libertarian-originalist legal scholars and think-tank commentators, most prominently Gary Lawson and Philip Hamburger.⁴

Those who embrace the New Coke often speak for what they see as the original meaning of the Constitution. They are keenly interested in history. Some of their historical elaborations are both informative and impressive.⁵ Nonetheless, and with respect, we think that the New Coke is best understood as a living-constitutionalist movement, a product of thoroughly contemporary values and fears.⁶ These contemporary fears are clearly prompted by continuing rejection, in some quarters, of the New Deal itself. The New Coke is analogous to other movements in American public law, in which a form of “normal science” has been opposed by a vigorous effort at legal and social reform, based on fundamental principles coming from an identifiable ideological direction.

In constitutional law, intellectual insurgencies are not hard to find. In the first third of the twentieth century, for example, the US Supreme Court’s scrutiny of economic legislation ran into severe objections from Justices Oliver Wendell Holmes and Louis Brandeis, who spoke on behalf of judicial restraint, endorsed at the time by many progressive commentators. In the middle of the twentieth century, the Supreme Court’s occasionally cautious approach to civil liberties and civil rights was vigorously challenged by Justices William O. Douglas and Hugo Black, who generally argued for a more aggressive posture than the Court’s majority was willing to support. In the 1970s and 1980s, Justices William Brennan and Thurgood Marshall—accompanied by a chorus of academic theorists—made similar arguments on behalf of a large-scale overhaul of constitutional law. These efforts were not, in general, based on an insistence on the original meaning of the Constitution; they were rooted in large-scale claims about democracy, liberty, and equality. Our point is that even if the New Coke can claim a solid historical pedigree, which we question, it should be seen as a similarly ambitious effort at constitutional reform.

There is no question that in the first decades of the twenty-first century, a fundamental assault on the legitimacy of the administrative state is playing a growing role in separate opinions. On occasion, it finds its way into majority opinions as well. Justice Thomas is the principal advocate, and his views are quite extreme; on the Court, he speaks only for himself. But on some prominent occasions, Justices Samuel Alito and Neil Gorsuch, along with (to a lesser degree, and in different ways) Chief Justice Roberts and Justice Brett Kavanaugh, have also shown significant concern about discretionary authority wielded by contemporary administrative agencies. Those who express this concern sometimes appeal to putative principles of the Anglo-American constitutional order, particularly resistance to executive prerogative—the lawless despotism of the Stuart kings. The heroic opponent of Stuart despotism is the common-law judge, symbolized by Edward Coke. Where there are newly enthroned Stuarts, there must also be a New Coke.⁷

Our aims in this chapter do not involve English constitutional history. We pay little attention to whether the stylized account of that history, implicit in the New Coke, is actually true—although we are skeptical.⁸ Instead, our aims are to illuminate both the specific legal commitments and the broader constitutional theory of the New Coke, and to bring them in contact with what we see as a more sober view of American public law, above all as reflected in the Administrative Procedure Act (APA) and the Constitution. Those aims are relatively modest. We do not attempt anything like a full reconstruction of the original understanding of the founding document. We do hope to say enough to show why it is challenging, at best, to link the New Coke, and the constitutional assault on the administrative state, with that understanding.

We have said that the New Coke, like most previous attacks on “normal science,” is largely a product of modern values and fears. Notwithstanding the New Coke’s claimed historical pedigree, its use by judges and justices is methodologically of a piece with such presentist decisions as Roe v. Wade, Obergefell v. Hodges, and (arguably) District of Columbia v. Heller.⁹ In these decisions—whether or not written in originalist terms—such values and fears also played a central role.

The main concern of the New Coke is the overriding fear that the executive will abuse its power.¹⁰ That fear was entirely familiar to those who designed the Constitution, and to that extent, critics of contemporary executive power can certainly find support in the original understanding. After all, the Constitution was written in the aftermath of a revolution against a king, and fears of executive power were unquestionably prominent in that period. Before the American Revolution was won, those fears were defining.

But the US constitutional order in general, and administrative law in particular, attend to other goals and risks as well, and do not take prevention of executive abuses as the overriding goal or master principle. Indeed, members of the founding generation wanted a strong national government, not a weak one. They did not want a powerless executive branch. They knew that an administrative apparatus would be required. With respect to the abuse of authority, they were mainly concerned with the “legislative vortex” that might draw all power to itself, as well as with executive abuses per se.¹¹ Under the Articles of Confederation, they were reminded of the risk of that vortex anew and came to see it as seriously threatening, no less and perhaps more than executive power. Members of the founding generation were also concerned with the risk of oppression from an unaccountable judiciary. Neither executive, nor legislative, nor judicial abuses were to be strictly minimized, either as a matter of original understanding or optimal institutional design.¹²

Instead, as James Madison wrote in the great but neglected Federalist No. 41, “in every political institution, a power to advance the public happiness involves a discretion which may be misapplied and abused.”¹³ Public law, in effect, trades off the risks of official abuse against other goals and commitments. These include public participation and accountability, which will sometimes lead to a stronger executive; efficiency in government, which can lead in the same direction; rational and coordinated policymaking; and (a crucial theme in Alexander Hamilton’s work) the promotion of the common good and overall welfare, often by means of executive action from public officials, who sometimes display constitutionally legitimate “energy.”¹⁴

In the service of these multiple goals, the Constitution and the administrative state attempt to channel and constrain, rather than eliminate or minimize, executive discretion. The New Coke is inherently limited and one-sided, a reflection of a subset of the relevant concerns, and for that reason it offers an irremediably partial account of both administrative and constitutional law. It is true, of course, that broad propositions about plural aims cannot dispose of concrete questions, such as the nature of the nondelegation doctrine or the appropriate degree of deference to be given to agency interpretations of agency regulations. But an understanding of plural aims can, we think, dispel central assumptions of the New Coke that treat executive discretion as a kind of large-scale departure from the constitutional plan, or that see heightened judicial scrutiny as a cure for what ails us.

An Accelerating Movement

Outside the courts, the recipe for the New Coke has been brewing for a very long time; in some respects, its origins can be found in the New Deal period, especially in the writings of Dean Roscoe Pound, who spoke of “absolutism.”¹⁵ But it has been a particular focus during the period that concerns us, which is the past two decades.

In the George W. Bush administration, civil libertarians of both the left and the right—but especially the left—invoked the rhetoric of tyranny with respect to Guantánamo Bay and the so-called USA PATRIOT Act, calling the president “George III” or otherwise citing the risk or reality of large-scale overreaching.¹⁶ Roughly simultaneously, but with a marked acceleration after the Obama administration came into office, a broad movement in libertarian and conservative legal scholarship offered a wholesale critique of modern exercises of executive power. Leaders of the movement were devoted to restoring the “lost Constitution” or the “Constitution-in-Exile.”¹⁷ They began to suggest that the administrative state or the presidency, or the “executive” (loosely defined), threatened to accumulate tyrannous strength and to threaten the rule of law itself.

In the Trump administration, suspicion of executive power has been in a sense bipartisan, although the parties have focused on different executive organs. The administration’s supporters critique the “deep state,” a supposed network of de facto independent bureaucracies in law enforcement and national security that the supporters see as illicitly thwarting the administration’s valid exercise of legal authority. The so-called resistance to the administration praises bureaucratic and judicial obstruction of agency initiatives that undo Obama administration decisions or that break new ground that the resistance finds objectionable.

In the legal academy, skeptics about the administrative state have developed different approaches. The Constitution-in-Exile movement, as it has been rightly called, drew attention to a supposedly lost set of constitutional commitments and asked the courts to return them to their rightful place. Books appeared with titles such as The Once and Future King: The Rise of Crown Government in America and Is Administrative Law Unlawful?^1...