If anything saves our constitutional republic at this stage it will be Americans’ sheer unruliness, our unwillingness to sit still and be told what to do by people convinced that their scores on entrance exams (or, perhaps, on the squash court) entitle them to organize our lives for us.
Law & Leviathan: Redeeming the Administrative State, by Cass R. Sunstein and Adrian Vermeule (208 pages, Cambridge: Harvard University Press, 2020)
Since before the adoption of our Constitution, American lawyers have enjoyed surprisingly high status in a society devoted to self-government by an unruly people within their own communities. Our society enjoyed high levels of mutual trust despite the variety and restlessness of its people. This trust was protected and fostered by often self-educated journeymen lawyers. These lawyers helped forge agreements among commercial and political parties often too busy to write their own but too concerned that their handshakes be enforceable over time to do without written formalities. Lawyers also kept American restlessness in check when it came to public law by upholding a common law system that kept judges, litigants, and laws rooted in custom and practice, rather than abstract ideas or desires of the moment.
Lawyers sometimes got a bit overawed by their own importance as statesmen and keepers of the common law. But their arrogance was kept in check by the fact that the real fortunes in a materialist society were made in business, and that lawyers had to make their own livings by tending to the business of others. As to the arrogance of political office, it was enhanced by corruption but tamped down somewhat by our democratic people’s demand for a significant amount of obedience as well as ceremonial obeisance.
Sadly, the rise of the administrative state changed all this. Demand for lawyers exploded after the New Deal and especially the Great Society spawned a jungle of regulatory structures that persons and businesses required legal assistance to navigate. Lawyers dominated the writing, interpreting, and enforcing of the new regulations and so gained great power over government and business themselves. This power has proven intoxicating. Elite lawyers have come to see themselves and their work as the heart of civilized life rather than what it is, the necessary but quite limited set of tools and processes necessary to allow people to organize their own lives.
“Elite” is a relative term, of course. Like most things in our increasingly centralized, statist society, there has been an immense concentration of power and prestige in legal education and practice. Like all things bureaucratic, merit came to be something measured by “best practices” shaped by technocrats. Engineered entry criteria like standardized exams replaced customary practices that favored embedded, restrained, local elites over any national class. For lawyers, the top of the national heap today barely extends from Cambridge (Harvard) to New Haven (Yale). The drain of ambitious persons from their local communities, the exclusion of people with true ability by their financial or other inability to create the “right” application file or failure to “fit in” with inbred groups, and, even worse, the homogenization of legal thinking and character into “the way we do things at Harvard” has been enormous. But the nation’s loss has been Harvard’s (and Harvard alumni’s) gain.
Most damaging has been the administrative state itself. Americans had been a self-governing people jealous of local freedoms and suspicious of rules and rulers not answerable to themselves. They increasingly have become subject to rules they must hire experts to understand and follow, emanating from a bewildering variety of sources beyond their influence and overseen by a class of functionaries who treat them like subjects instead of citizens. Adding insult to injury, they are told to accept that these functionaries are “experts” in the art of ruling, and on account of gaining credentials citizens can’t afford (even if a step or two “down” from Harvard and Yale) and for the most part do not recognize as markers of extreme merit.
This is the system Cass Sunstein and Adrian Vermeule set out to defend in their brief volume Law & Leviathan. They do so in standard overclass fashion, with a technique taken directly from a previous generation’s model don, Ronald Dworkin. The authors seek to defend the administrative state as an ideal, making it, in writing at least, “the best it can be.” This device was used for decades by Dworkin and his followers as an excuse to infuse their own (leftist and unrelentingly pro-judicial rule) prejudices into pre-existing law and constitutional order, effectively remaking each in their own, self-satisfied image.
Dworkin’s technique relies on mastery of the minutiae of precedents whose legitimacy should be open to serious question. Its practitioners manipulate their precedents through assertions rooted in nothing so much as consensus among members of their own ingroup. Following Harvard philosopher John Rawls, they adopt a notion of “public reason” that rules out of order and even irrational and dangerous any grounding for policy positions that looks to tradition, religion, or anything else that can’t be found in liberal prejudices and established techniques dressed up as an “overlapping consensus.” In this book Profs. Sunstein and Vermeule call their pseudo-consensus “normal science.” That normal science is the combination of techniques and precedents accepted by those who designed the techniques and wrote the precedents. If this sounds circular, well, that’s because it is.
Our authors’ defense is necessary because opposition to the administrative state has increased significantly, especially since President Obama sought to complete construction of an American social democracy, complete with a kind of national code and permanent “expert” class. In particular, Philip Hamburger, especially in Is Administrative Law Unlawful? has combined longstanding conservative critiques of the administrative state’s melding of constitutional powers with lawyerly techniques and a mastery of precedent and statutory construction difficult to ignore. Hamburger comes in for special, rather unfriendly attention, no doubt in part because he is to the manor (or at any rate the Yale carriage house) born. But he is among a significant group of scholars who have emphasized the lack of any constitutional grounding for Congress’ ceding to executive and “independent” agencies (as well as court oversight) the power to write and enforce laws.
Profs. Sunstein and Vermeule respond to this collective criticism with a combination of denial, denigration, and dismissal. The denial is transparent. Critics of the administrative state point out that Article I of the Constitution by its clear language vests in the Congress (and only the Congress) “the legislative power.” This provision bars the legislature from delegating its lawmaking power, even if it is called a “regulatory” power, to employees of the executive branch. Our authors barely touch the arguments, here, instead waiving off any discussion of such “fundamentals” on the grounds that elite people disagree, and that supporters of the non-delegation doctrine can’t ever win at the Supreme Court in any event, and so should really just stop talking about it.
The denigration borders on the juvenile. Profs. Sunstein and Vermeule refer to critics of the administrative state as purveyors of a “New Coke.” The reference at one level is to Edward Coke, an early modern opponent of royal absolutism and, obviously, also to the soft drink. The authors no doubt found their reference quite amusing as they put it together at the faculty club (or perhaps on the squash court). The inside “joke” has layers. The soft drink “New Coke” was a massive failure. With this term our authors label their opponents mere merchants of an inferior product. And, as they point out in a footnote, “some” people pronounce Coke’s name “cook,” which brings to mind the possibility of a “new cook” serving inedible dishes. And, by emphasizing Coke as the patron saint or product of this movement they reduce a concern with constitutional structure and the requirements of self-government to a supposedly childish fear of executive power.
More generally for our authors, where purveyors of New Coke claim to call for a return to respect for the Constitution’s text, those “in the know” recognize that such objective truth is a myth. On this view, the New Coke sales pitch is an attempt to tear down the system that provides people (especially proles who couldn’t get into good schools) with welfare payments and safety protections as they do manual labor. This verbal slap is, to say the least, unfair. One does not show contempt for poor people or endangered workers by pointing out that federal bureaucrats are not the only or even the proper people to make rules for their protection. Those not too far gone in Cambridge groupthink can recognize that social, charitable, local, and state institutions generally are more caring for the poor and vulnerable, and that their assistance is better calculated to maintain free government, true charity, and common pursuit of the common good than rule by self-anointed national elites.
Critics of the current system are not simply wishing away government. Libertarians make up only a small portion of this group and several critics have made specific proposals for reform that entail, not the elimination of all regulation, but the return of regulation to associations, local and state government, and a federal government properly ordered along constitutional lines. One suggestion is to re-assign most of the bureaucrats from executive agencies to congressional committees. The point of such a reform would be to force members of Congress to again write or at least take responsibility for their legislation while limiting executive branch involvement to the enforcement of such laws in a beefed-up Justice Department. Much less regulation would result, of course, but it would hardly produce the kind of zeroed-out regime our authors conjure.
Dismissal of such ideas may reflect current political and class realities. It certainly reflects profound ignorance of highly developed understandings among political scientists of both left and right regarding the corrupting effects of shared powers on free, limited government. Morris Fiorina (who taught at Harvard for some time) wrote Congress, Keystone of the Washington Establishment several decades ago. In it he pointed out how members of Congress have reconfigured our government to serve their own selfish ends. Instead of writing proper, detailed laws, they have for the better part of a century voted to grant federal agencies broad powers (e.g. to “make workplaces safe” or the air clean). In the process they relieved themselves of the burden of making potentially unpopular rules people would have to follow and took on the role of “overseeing” executive agencies and providing constituent services, in effect helping voters deal with the bureaucratic mess Members helped create.
In such a system Members of Congress are perpetually re-elected, bureaucrats are protected by civil service rules, judges rule for life, and Presidents rule by decree (Executive Order) as much as possible. All very nice and rewarding for the cognoscenti who run things and gain prestige for mastering the system’s intricacies. What’s missing? Republican self-government limited by a higher law constitution, i.e., the American constitutional order.
Profs. Sunstein and Vermeule never address arguments regarding constitutional order. They choose instead to show their mastery of lawyerly detail in specific administrative law precedents. As to the separation of powers, they declare that it “is fully satisfied as long as the principal institutions set out in the Constitution—the Congress, the president, and the judiciary—while exercising their prescribed functions, devise and approve the scheme of agency authority that combines rulemaking and rule-interpreting power in the agency’s hands.” That is, “If the constitutional institutions, operating as they were set up to operate, have decided that such an arrangement is both valid and wise, then respect for the separation of powers counsels approval of the arrangement.” In brief, if those who hold political power, using (more or less) the set formulae of the Constitution, create something—anything, really—that something must be accepted as legitimate.
Such an argument from authority would be ridiculed if made on behalf of a religious institution but is supposed to stifle dissent where the fundamental nature of our constitutional order has been corrupted. The drift of powerful people away from the restraints of constitutional form and limitations took a long time to develop. It eventually produced a class of rulers who manipulated formal procedures to create something that undermines the very nature of the government they were sworn to uphold. None of this is any justification for the current, Rube Goldberg machinery that passes for constitutionalism in the United States today.
This brings us to the dismissal. According to our authors, we should stop talking about the delegation problem because it really isn’t much of a problem in any event. Here they engage in some less than wholly honest discourse regarding the nature of administrative law. The “normal science” they accuse their critics of irrationally rejecting is the manipulation of precedential minutiae. That manipulation, for Profs. Sunstein and Vermeule, can be made to show that administrative law is, well, good enough for government work.
Our authors purport to be making a “modest” defense of the administrative state. The system is not perfect, they aver, but is better, on balance, than not having an administrative state. Administrative law’s shortcomings constitute “less a failure than an arguable insufficiency.” After all, in the “real world” “trade-offs must be made” by our betters, who are trying to make us better, safer people. In this fashion alternatives are simply ignored and the bar for approval of the current system lowered.
That bar is lowered still further by Profs. Sunstein and Vermeule’s adoption of a strangely (and, for them, usefully) negative reading of the canons of law’s internal morality laid out by the late Lon Fuller. Fuller recognized that a legal system, to be such in anything but name, must meet certain basic criteria. Its rules must be (imperfectly but recognizably) general, promulgated, prospective rather than retrospective, clear, not requiring contradictory actions, consistent over time, possible to comply with, and written so that they can be applied and administered in a consistent manner. Fuller recognized that these procedural virtues do not guarantee (though they may encourage) substantively good laws. But they are necessary if law is to be legitimate—something that we can recognize as properly binding the consciences of actual human beings.
Our authors take Fuller’s humility and run with it—quickly and consistently away from any genuine criteria by which the administrative state might be judged. For their Fuller, it is enough that administrative rules generally should not be surprising or retroactive. They then emphasize that such strictures are not to be found in the law or Constitution and so should not be seen as indicators of any absolute failure. Finally, in a long and dreary rehearsal of administrative law precedents, they establish that courts have in some influential cases made a point of defending some of Fuller’s principles, to a certain extent.
Profs. Sunstein and Vermeule rightly sum up their “defense” this way: “Our approach makes sense of current doctrine; it fits with what courts have actually been doing and also casts their decisions in an attractive light.” Why on Earth would such a defense quiet critics of the administrative state? Because, according to our authors, we can trust judges to police the motivations of bureaucrats. The right people are in charge and they are striving to achieve consistency, promote good policy, and “account for serious reliance interests” when changing rules. Our authors propose no opposition to further pushing their system with the latest “progressive” prejudices to make it even more “the best it can be.” But we must not question the system itself because this would unsettle the reliance interests of those who can afford elite lawyers to explain and work the system for them.
To the extent our authors point to any real grounding for all this self-justification it is the Administrative Procedure Act—legislation stitching together procedural rules meant to make some sense of the hash that was the New Deal. They liken the APA to the Constitution itself, consisting of mere self-contradictory compromises to be followed in today’s loose caricature of common law jurisprudence as applied to constitutional and administrative law questions. Higher ups in agencies and courts will “channel agency discretion” through “surrogate procedural principles” to make things look nice.
Feel better about a system increasingly turning citizens into peasants? Neither do I.
It is not unimportant, in this light, that the book’s title (which its authors explain not at all) is Law & Leviathan. Like the early modern absolutist, Thomas Hobbes, Profs. Sunstein and Vermeule declare that all life is ruled by power. Free markets and property rights? These are just another form of power, and a particularly crass, unfair one at that. Intermediary associations—families, churches, charitable, vocational, and other groups? All these forms of human community exert power and so must be governed by proper rules. We all are subject to higher human powers. And so those powers should be designed, interpreted, and enforced by the right sort of people at (at least) the national level so that they will produce the right sort of results—you know, “the way we do things at Harvard.”
This trifling book makes one thing quite clear, namely, the self-possession of Harvard dons who command high fees, coteries of research assistants and other minions, and who receive the fawning attention of lesser lights in politics, academia, and journalism. Such resources make it easy for one to gloss over minor setbacks. One thinks, here, of the plagiarism scandals that failed to derail the careers of Lawrence Tribe or Doris Kearns Godwin. One might add the utter failure of Prof. Sunstein’s tenure as a regulatory guru in the Obama Administration. One can predict with confidence, for example, that there will be no embarrassment shown that this volume sings the praises of cost benefit analysis now that Joe Biden has gutted the technique with a stroke of his pen in an early Executive Order. Likewise Prof. Vermeule, a self-identified “conservative” who espouses a Catholic “integralism” that calls for the Catholic hierarchy to take the lead in organizing society, evinces no embarrassment that the Church is currently headed a radical Jesuit to whom many more conservative and orthodox Catholics refer as “Frank the Hippie Priest.”
But these are minor points easily waived off in the sacred precincts of the Harvard faculty lounge. It’s probably best, then, to end by simply pointing out that most Americans are not yet the obedient subjects of a European-style social democracy. Sadly, an increasing number of our people have been corrupted by the system Profs. Sunstein and Vermeule defend. Those of us who are neither members of the smart set nor willing to accept our fate as its subjects are left to argue that a free, self-governing people over time will be corrupted by obedience to the state herein defended. If anything saves our constitutional republic at this stage it will be Americans’ sheer unruliness, our unwillingness to sit still and be told what to do by people convinced that their scores on entrance exams (or, perhaps, on the squash court) entitle them to organize our lives for us.
This essay was first published here in March 2021.
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