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.