Balkinization: The Constitution of Abnegation

The Constitution of Abnegation

Guest Blogger

Jeffrey Pojanowski

For the Symposium on Adrian Vermeule, Law's Abnegation.

Law’s Abnegation is an intellectual force to be reckoned with. This is especially so if, like me, you think administrative law should place more emphasis on law than it currently does. Vermeule contends that today law is like a lion crouching beneath the throne of the administrative state, and that is how it should be. Even further, he averts that law’s supine position is in some deeper sense inevitable. These provocative arguments from doctrine, decision theory, and jurisprudence offer a coherent, unified vision of administrative law. One may not ultimately be convinced, but the book’s argument and example demand a response in kind.

The book’s central claim is that the New Deal’s doctrinal consensus on administrative law has collapsed and that all the pieces have fallen toward deference to administrative agencies. Chief Justice Hughes in the 1932 case Crowell v. Benson envisioned a compromise in which courts would review questions of law de novo while deferring to agencies on other most other matters. But in area after area, Vermeule argues, law’s empire has ceded ground to the administrative state, checking agencies only when they veer into patent unreasonableness. Accordingly, an administrative law that legitimizes active agencies while reserving “lawyers’ questions” for the courts is untenable. Even less plausible, a fortiori, are more radical critiques of the administrative state based on constitutional originalism or classical separation-of-powers theories. Vermeule argues that the courts did not lose their territory because some Golden Horde of bespectacled bureaucrats stormed law’s citadel. Rather, lawyers opened up the gates for good, lawyerly reasons. To return to the book’s Dworkinian metaphor, the law worked itself pure, but in doing so dissolved into a shell of its former self. Or so the argument goes.

Despite my more legalist orientation, I find substantial portions of the book’s claims persuasive. For example, Vermeule offers a compelling argument that courts should not demand pristine rationality and exhaustive explanations when agencies make policy at the frontiers of knowledge. Of course, adherents to the Crowell compromise can readily accede to this critique: if policy is for agencies and law is for courts, any appropriately deferential review of agency policymaking should incorporate sound insights about reasoning under epistemic uncertainty.

But Vermeule argues that the Crowell compromise is untenable as a matter of theory: the arc of history must either bend toward legal abnegation or judicial supremacy, but not an internal separation of powers. Though his argumentation is formidable, here I am less convinced. Claims about the inevitable instability of Crowell rest on a controversial—and in my view, mistaken—premise about the radical inseparability of law and policy, one which Vermeule does not defend at length, though perhaps he feels he need not given its pervasiveness in the legal academy. That said, the presence of jurists like Judge Brett Kavanaugh on the D.C. Circuit, who has criticized judicial intrusion on agency policymaking while also expressing discomfort about Chevron deference to agency legal interpretations, could indicate that the Crowell fusion has a longer half-life than Vermeule thinks. Nor am I convinced that judicial abnegation on interpreting statutes or regulations—the heartland of law’s proverbial empire here—is as pronounced as Vermeule believes.

Even the Crowell compromise, however, requires one to concede the constitutionality of a “Fourth Branch” that makes the bulk of the nation’s law and policy through a combination of legislative- and adjudicative-type activity. As an originalist more faint-hearted than, say, Gary Lawson, I am troubled by that question as a matter of high level theory, but most of my academic work on the matter assumes a baseline of substantial delegation to federal agencies. But the deeper question presses, and I therefore want to focus on Vermeule’s implicit constitutional justification for whatever legal abnegation presently sustains the administrative state.

On this score, Law’s Abnegation returns again and again to a curious point, one which hovers between argument and ironic observation. When Vermeule confronts a theorist seeking to bring us back to a less abnegated state—be it the originalist’s Constitution or the Crowell compromise—he points out that the very mechanisms the critic champions led us to our present condition. The separated powers of the original Constitution may have not contemplated an administrative state, but Congress, executive officials, and judges chose—using their separated powers—to create it. The Crowell compromise may have envisioned a more vigorous judicial role in policing legal interpretations, but its originating Court gave up that ghost soon thereafter.

Vermeule seems to treat these facts as knockdown arguments; so significant are they that they inspire the epigram at the start of the monograph. But my first reaction is that his point is nonresponsive. On any normative theory of constitutional law, the erroneous persistence of any unconstitutional statute requires the cooperation of all three branches. Similarly, it is a strange defense of judicial dereliction to point out that, yes, the judges did not live up to the proper standard. Although Vermeule is offering a Dworkinian defense of the administrative state (one may challenge its success, but that’s another matter), his response to revanchists rings closer to H.L.A. Hart’s bon mot about legal legitimacy: “Here all that succeeds is success.”

Now, one could try to fit this argument into conventional constitution theories. Vermeule himself suggests it is consistent with originalism, though he does not spend much time defending that point. Vermeule’s quick reference to the concept of constitutional liquidation and a (very plausible) rejection of the originalist rejection of precedent is hardly enough to solve this formidable problem, though we can forgive this because that is not his main quarry. One might also read these historical acceptances of the administrative state as Constitutional Moments (“Crouching Lions, Hidden Ackerman”?), but Vermeule rejects that theory out of hand. More plausibly, we can view this as a kind of living constitutionalism in which dialogue between the branches and popular acceptance implicitly developed a constitutional common law foundation for the fourth branch.

Perhaps, but I think Vermeule is trying to point to something bigger and less contingent than the path of our particular constitutional common law. At times, the book soars to almost Hegelian (or Schmittian?) prophecy about the path of public law. He posits the notion of an “Eternal Return” to a supreme administrative state with law on the margins and he claims that substantial deference to agencies is a pervasive, almost genetic feature of government across the Anglo-American world. These larger observations, combined with his repeated references to the “arc” of a semi-personified “law” bending toward deference suggests there is something universal and inevitable about the road to abnegation—something built deep into the structure of human affairs in a polity of any complexity. One might even say that lawyers’ gambits to resist this tendency are proud and futile attempts to change the order of nature.

From this perspective, Vermeule’s Administrative Constitution rests on an unwritten, lower-case “c” constitution. Unlike, say, the contingent British constitution, the abnegatory constitution is written in the order of things and therefore cannot be erased. It literally constitutes governance. In this respect, one begins to see a resemblance between the structure of Vermeule’s argument and that of Philip Hamburger, one of Vermeule’s recent adversaries. Law’s Abnegation contends that Hamburger’s critique of administrative law is not at all rooted in the actual, originalist American Constitution. Rather, Hamburger is drawing on classical, more general understandings of separation of powers and judicial duty, inspired by Anglo-American law and rhetoric but not traced directly back to the legal sources. Hamburger’s polemics, Vermeule claims, spring from an unwritten constitution. I suggest that Law’s Abnegation does as well: Vermeule is more fluent in and attentive to administrative law doctrine, but his argument is as much a patient, lawyerly explication as it is an uncovering of the deep structure of public law itself.

Vermeule sees an eternal return to administrative preeminence, whereas Hamburger sees right juridical reason pointing back toward the flowering of common law in the age of Coke. When legal visions draw on interpretations of the natural order of things, the line between legal error and sin begins to blur; if my interpretation is correct, it should not be surprising that the disagreements between Vermeule and Hamburger have been so heated. As one content to shore up the Crowell compromise, I am yet to be convinced that administrative lawyers must choose between the two. But my position rests on tentatively defended beliefs about the nature and autonomy of legal craft and argument. Vermeule’s book has many merits, but one of its signal virtues is pointing us to such jurisprudential questions lurking below standard arguments about doctrine, values, institutional competence, and the like. Law’s Abnegation presses beyond normal legal science and will challenge those who read it.

Jeffrey Pojanowski is Professor of Law at Notre Dame Law School. You can reach him by e-mail at Pojanowski at nd.edu

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