Wednesday, January 25, 2017


Andrew Koppelman

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

The Supreme Court has not ordered federal marshals to break into Prof. Adrian Vermeule’s office and steal his lunch.  You wouldn’t call that abnegation.  “Abnegation” signifies denying oneself something that one is entitled to, and the Court isn’t entitled to Prof. Vermeule’s lunch.

So what is the word doing in his title?  Law’s Abnegation is a marvelous book, but its title is misleading. 

The book defends judicial deference to the administrative state, brilliantly and persuasively, and shows why such deference follows from familiar legal principles.  This matters, because so many scholars have worried that there is something legally and constitutionally questionable about the modern administrative state.

“In area after area, lawyers and judges, working out the logical implications of their principles with a view to rational consistency, have come to the view that administrators should have broad leeway to set policy, to determine facts, to interpret ambiguous statutes, and even . . . to determine the boundaries of their own jurisdiction.”  (1)  Efforts to discern a special sphere of judicial authority over administrative decisionmaking have turned out to be incoherent:  “no one has ever drawn crisp and clear distinctions among fact-finding, law-interpretation, and policy-making; the three activities bleed into one another in an integrated course of activity by which agencies set legally enforceable government policies within a certain domain.”  (28)  It is impossible to “reserve some heartland of legalism in which judges would exercise de novo, entirely independent judgment.”  (34)  When courts realized this, they became broadly deferential to any administrative decision that is not utterly indefensible.  That has had the salutary effect of shifting power within agencies away from lawyers and toward scientists, engineers, and economists, who are better qualified to make policy judgments in their areas of expertise.  “The strength of the internal legal arguments for deference become ever greater as the complexity and scale of the policy problems facing the administrative state grow.”  (213)  This all needed to be said.  Vermeule has made a major contribution.

But why is there anything puzzling about this?  Under the law, lots of people, including administrators of agencies, have lots of discretion to do lots of things.  “Law has abnegated its authority, relegating itself to the margins of governmental arrangements.”  (1)  It does that all the time. 

It isn’t abnegation for the law to stand by and let someone do what they’re entitled to do.  That’s just the ordinary operation of law.  In fact, it’s what law is for: to tell us what authority we have, what property is ours, what our rights are.  There is no “ultimate abnegation of law’s pretensions” (126), because there are no pretensions to abnegate.

One of the book’s foils is Ronald Dworkin, who, Vermeule accurately observes, never said much about administrative law.  Vermeule thinks this is a “massive blind spot”:  courts cannot uniquely be the forum of principle, as Dworkin claimed, because courts defer to agencies, and “agencies interpreting law must necessarily choose which of several competing principles to honor, how much weight to attach to principles, and what the rate of trade-off between competing principles will be.”  (4)

Dworkin certainly had his blind spots, but it’s not clear that this is one of them.  Vermeule nicely shows that deference follows from settled legal principles.  Judicial deference to the executive branch, where deference is what the law requires, is very old news.  Laurence Tribe (1 American Constitutional Law § 3-13 at 366 (3d ed. 2000)) observes that the most secure defense of the political question doctrine is the classical view that the constitution itself has committed some questions to another branch of government.  That is the doctrine of Marbury v. Madison:  “Questions, in their nature political or which are, by the Constitution and laws, submitted to the Executive, can never be made in this court.”  That’s not abnegation.  That’s just a court saying what the law is.

Vermeule challenges a lot of conventional wisdom.  His book shows that the legitimacy of the administrative state isn’t an exciting question.  That is what is exciting about the book.

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