Monday, January 23, 2017

A Long Arc of Deference or an Endless Cycle? Adding Internal Law and Politics to Adrian Vermeule’s Law’s Abnegation

Guest Blogger

Gillian Metzger

For the Symposium on Adrian Vermeule, Law's Abnegation

            For progressives committed to strong administrative government, it’s been a tough couple of months.  President-elect Trump has assembled a cabinet full of nominees committed to dramatically retracting and even abolishing the agencies they will lead.  There’s Scott Pruitt, nominated to head EPA, a dedicated foe of federal environmental regulation who filed a nonstop barrage of lawsuits challenging the EPA’s actions during the Obama Administration.  Betsey DeVos, named to lead Department of Education, reknown for her unflagging commitment for steering public funds to private schools and in some instances abolishing public school systems altogether.  Andrew Puzner, the nominee for Secretary of Labor, is an outspoken critic of labor laws and worker protections, exactly the measures his department is charged with enforcing.  Rick Perry has stated he would abolish the Energy Department he has been charged to lead.  The list goes on.  Add to that a House and Senate controlled by a Republican Party whose platform reads like an anti-administrative screed, not to mention substantial Republican support for legislation that could stop regulation in its tracks, and it’s not hard to come the conclusion that the future prospects for the national administrative state are grim.

            Not so, according to Adrian Vermeule in his new book, Law’s Abnegation.  Vermeule’s central message is that the modern administrative state is a voluntary and inevitable creation to which Congress and the courts will only grant more power over time.  Do not get fooled by seeming backsliding along the way, he advises.  Those are just temporary deviations from the overall path towards greater administration.  In his opening words, “the long arc of the law has bent towards deference—a freely chosen deference to the administrative state.” (p. 1).  Vermeule’s focus is on judicial review and his book thus does not address the possibility of the administrative state imploding from within.  But I would expect his position to be that the agencies’ ability to dramatically change course is itself proof of the power of the administrative state.  Politics and policies may change, but the administrative structure of government endures.

            Law’s Abnegation is a highly beneficial tonic, with its insistence that scholars not get so caught up in partisan fights of the day that they lose sight of broader institutional dynamics.  It is equally helpful for its powerful analytic and empirical contributions to reigning administrative law debates, all delivered in an eminently readable form.  Of particular note is Vermeule’s defense of judicial deference to agency interpretations of their own rules, which several justices have targeted as unconstitutional agency self-delegation of power.  Yet, as Vermeule points out, these critiques miss their mark; such deference does not change the scope of statutory authority that agencies enjoy, all it does is allow agencies to time their exercises of delegated authority, opting for more general rulemaking now and more specific interpretation and application later. (pp. 80-81).  One of his strongest and more surprising claims is that so-called judicial “hard look review” of agency decisionmaking is a mirage.  (Chs. 4 & 5). According to Vermeule, the more accurate descriptor is “thin rationality review,” with the Supreme Court overwhelmingly deferring broadly to agencies on the rationality of their policy choices.  Moreover, says Vermeule, that is how it should be, because in the conditions of uncertainty in which agencies must often act, reasons run out and an arbitrary choice may well be rational.

            I am a fan of this book.  Still, there are two features of Vermeule’s analysis that give me pause.  One concerns his identification of law with external judicial review, thereby putting internal executive branch constraints outside the realm of law.  The other relates to the notable absence of politics.  Both these features reflect Vermeule’s focus on analyzing the logic of administrative law doctrine, yet serve to disconnect his account from the lived reality of administrative government.

The Absence of Internal Law

            To Vermeule’s credit, he is clear about the metes and bounds of his subject.  His focus is on “law within courts” (p. 10), specifically “judicial review of agency action, documenting the abnegation of law in that setting.” (p.9).  He justifies this focus “in order to speak directly to the traditional legal mind,” noting that “[t]he culture of law and lawyering” has always viewed courts and judicial review as its heartland. (p. 10).  Vermeule’s characterization of the traditional legal orientation on judicial review is clearly correct, and proving that law has abnegated even on its core turf poses a profound challenge to the traditionalist project.

            But identifying law so closely with what transpires in courts risks sacrificing too much in pursuit of short-term argumentative gain.  To begin with, it sacrifices descriptive accuracy.  As Kevin Stack and I argue in a forthcoming article, following the lead of Jerry Mashaw (and Bruce Wyman long before him), administrative law also comes in an important internal variety.  Internal administrative law is composed of measures such as policy guidance, internal procedures, internal organizational and supervisory structures, informal agency practices and trans-substantive requirements centrally generated by the executive branch.  These measures not only bind and are perceived as binding by agency officials; they also frequently involve traditional lawmaking activity, including interpretation and enforcement of statutes and regulations.  They are critical for ensuring agency decisionmaking accords with values associated with the rule of law, such as authorization, justification, and coherence   Put together, these measures have many of the paradigmatic features of legal norms even though they lack the element of enforcement through independent courts.  They are also the means by which external administrative law is rendered effective, ensuring that the agency produces decisions that conform to the basic administrative law norms needed for judicial sanction.

            Although Vermeule notes in passing that “[l]aw certainly exists outside the courts as well as within them,” (p. 10), his repeated invocation throughout the book of law’s abnegation conveys an image of administrative government as a law-free zone, where agencies are free to act as they see fit, subject to fairly minimal constraints.  Recognition of internal administrative law makes clear that the lived reality of administrative government is quite different. Agencies in fact operate subject to an extensive array of internal constraints.  The point goes beyond descriptive adequacy, however.  Attacks on the administrative state rely, implicitly if not explicitly, on just such a view of the administrative state as the exercise of largely unconstrained power by unelected bureaucrats.  Identifying the inevitability of judicial deference will do little to establish the legitimacy of administrative governance absent a sustain effort to challenge this vision of unconstrained administrative power.  And given Vermeule’s demonstration that external checks from Congress and the courts are inevitably limited, rebutting this vision requires engaging with internal law.

The Absence of Politics

            Politics are also largely absent from Vermeule’s account.  Other than an occasional reference to the role of political ideology in judicial review, he presents judicial doctrine in largely apolitical terms.  Indeed, this apolitical presentation is critical to his claim that the long arc of the law is deference.  And again, there is some real truth here; Chevron and associated deference doctrines are regularly applied by judges to sustain administrative action, notwithstanding political preferences or disagreement with the underlying policy. 

            Yet at the same time, it would be emulating an ostrich not to acknowledge the political dimension of administrative law.  It is surely not a coincidence that the legitimacy of the administrative state is now under fire in a way that it hasn’t been since the New Deal, after eight years of a strongly pro-regulatory presidential administration.  Nor that deference sometimes disappears, whatever the ultimate result, in highly political cases.  Given Vermeule’s emphasis on the Supreme Court’s deferential stance, it is particularly noteworthy that Republicans stonewalled a Supreme Court nominee with a reputation for deference to agencies, as well as that some of the nominees on Trump’s short-list are known for raising constitutional concerns about the administrative state.  Vermeule might argue these are just blips in the road, but I am not so sure.  If a measure like the Regulatory Accountability Act were to be enacted, or President Trump were to appoint two or three anti-administration justices to the Court, what would happen to the long arc of deference?

            Recognition of the role of politics thus raises a question about how we should understand the current status of administrative law.  Perhaps, instead of an arc, the better account is that administrative law is part of an endless cycling between acceptance and resistance to administrative government.  All of the pressures for deference that Vermeule so ably documents mean that resistance is not a stable end point; administrative government and deference are here to stay.  But the political, economic, and cultural factors pushing against deference will not go away, and so periodically we will experience judicial and administrative pullbacks of significant proportions.  With the advent of the incoming Trump administration just days away, we may soon see whether the long arc or endless cycle turns out to be more descriptively accurate.

Gillian Metzger is the Stanley H. Fuld Professor of Law at Columbia Law School. You can reach her by e-mail at gmetzg1 at

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