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 law.columbia.edu