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

Judicial review and administrative law are politically constructed.  A generation of historical institutionalists (Keith Whittington, Howard Gillman, Leslie Goldstein, Scott Lemieux, Paul Frymer, Kevin McMahon, Ran Hirschl, etc.) demonstrated that the judicial power to declare laws unconstitutional thrives in the United States and throughout the world because elected officials from the First Congress of the United States to the Israeli Knesset at the turn of the twenty-first century empowered courts to declare laws unconstitutional.  Adrian Vermeule in Law’s Abnegation: From Law’s Empire to the Administrative State brilliantly documents how both elected officials and federal judges have similar ceded substantial policy making power to the administrative agencies.

Claims that judicial review and administrative law are politically constructed do not entail that constitutional courts and administrative agencies are pawns serving higher masters.  Governing officials have reasons empower other institutions to make independent judgments.  Courts and administrative agencies can reduce the volume of decisions made by other institutions.  They often have special expertise that other governing institutions lack.  Courts and administrative agencies are sometimes the proverbial canaries in the mineshafts.  Other governing officials may prefer foisting controversial decisions off on less politically accountable decision makers to deflect blame for unpopular decisions (while reserving the right to take credit if a consensus forms that the court or agency did the right thing).

The political construction of judicial review and administrative law has normative consequences.  If the Judiciary Act of 1789 and related legislation better explain the establishment and development of judicial review in the United States than Marbury v. Madison (1803) and related judicial decisions, then the conventional countermajoritarian difficulty makes little sense.  If contemporary administrative law largely consists of courts working out the fundamental logic of a combination of past political and legal decisions, then attacks on the administrative state as lacking legal foundations make as little sense.  Claims that elected officials should take back usurped power from the courts or that courts should take back usurped power from administrative agencies ignore the mechanisms by which power was freely given rather than stolen in the middle of the night.

The political construction of judicial review and administrative law pose particular problems for originalists.  Originalists insist that constitutional decision makers should make every effort to return the constitutional order to its pristine form.  Historical institutionalists, however, point out that constitutional institutions in their pristine form provided political actors and judges with reasons and incentives to abandon originalism.  Law’s Abnegation similarly details how constitutional institutions operating in their pristine form produced the contemporary administrative state.   If Merlin by magic returned the American constitutional order to its pristine form, historical institutionalism and Vermeule’s work suggest that the same reasons and incentives that produced contemporary judicial review and contemporary administrative law will reproduce those practices in the very near future.   The problem, if a problem exists, is one of constitutional design rather than a problem of individual decision makers betraying the commitments of a constitutional order. 

Vermuele’s internalist critique justifies administrative law within a particular constitutional order, but neither legitimates that constitutional order or the administrative law that a different constitutional order might generate.  Law’s Abnegation convincingly asserts that if institutional arrangement A in the normal course of operation produces institutional arrangement B, and institutional arrangement A is legitimate, then institutional arrangement B is legitimate.  Proponents of originalism (Gary Lawson), common law practice (Philip Hamburger) and a traditional separation of powers (Jeremy Waldron), who insist that some institutional arrangement A is a priori legitimate all fall prey to Vermeule’s claim that institutional arrangement B, the contemporary administrative state, is as legitimate.  Pragmatists who judge institutional arrangements by consequences are less vulnerable to this critique.  If institutional arrangement A in the normal course of politics produces institutional arrangement B, the contemporary administrative state, and the contemporary administrative state vests bureaucrats with too much discretion and too much policymaking authority, so much the worse for institutional arrangement A.  The crucial point, on which I suspect Vermuele and historical institutionalists agree, is that the fix for these ills, if any, lies in institutional arrangement A rather than in contemporary administrative law.  Americans on the left and right who want to change the contemporary administrate state must change the way the constitutional order as a whole functions, either through changes in the constitutional text, changes in the interpretation of textual provisions on basic constitutional arrangements or changes in the broader constitutional culture.  Changing administrative law (or judicial review), without making changes in the broader constitutional culture is pointless, since the broader constitutional order is what generates contemporary administrative law in the present

In this vein, the contemporary administrative state should be conceptualized as the outcome of what might be called the long state of courts, parties and agencies that thrived for most of the twentieth century and has been largely maintained by the polarized politics of the present.  Focusing on particular constitutional orders helps explain why administrative law “worked itself pure” during the second part of the twentieth century, but not before.  One obvious cause of contemporary administration law was functional.  The American state was called on to perform many more tasks during the twentieth century and many of these tasks were best performed by experts.  A second cause of the long state of courts, parties and agencies was political.  The relatively non-ideological parties that dotted the landscape from Theodore Roosevelt to Ronald Reagan were poor vehicles for policy making.  One consequence of the party structure was that members of Congress, lacking a unifying party vision, delegated powers to courts, executives and agencies, even when doing so was not necessary because Congress was overwhelmed or the decisions better made by experts (think the constitutional rules for same-sex marriage and gun control).  The polarized party system that followed the long state of courts, parties and agencies further enhanced the power of courts and agencies because gridlock prevent most legislative efforts to restrain the power of unelected officials. 

This absurdly underdeveloped hypothesis that contemporary constitutional law is rooted in the constitutional politics of the twentieth century has two consequences for the Vermeule thesis.  First, Vermeule tends to excuse what others see as flaws in contemporary administrative practice by pointed out that contemporary administrative law was generated by the constitutional order as a whole.  This is as much of an indictment of either the long state of courts, parties and agencies or the polarized polity as a justification for contemporary administrative law.  Second, to the extent contemporary administrative law is the product of particular American regimes rather than of the American constitutional order more generally, that law may lack the relative permanence Law’s Abnegation sometimes suggests.  If the Trump election signals the end of a particular constitutional regime, we may see an end to the administrative law that was part and parcel of that regime.  More generally, the challenge Vermeule lays down for those who think courts and agencies have too much power is to figure out what institutional arrangements will provide the national legislature with the capacity and incentives for making more policies than Congress possesses at present.