Tuesday, January 24, 2017

Administrative Law Working Itself (Im)Pure


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

Vermeuele's Law's Abnegation is written with style and verve. It is a bit repetitive at times, as if Vermeuele hopes to convince us of the correctness of his positions by asserting them over and over again. But the work as a whole is truly a marvelous introduction to the philosophy of administrative law. I would recommend it to any student who wants to look beyond the caselaw to understand the subject.

The title is misleading in one respect. It is simply not true, nor does Vermeuele argue, that *law* has abnegated its role or that it has been displaced by the administrative state.  Administrative rules and regulations are a kind of law.  If anything, law *proliferates* in the administrative state-- that is one reason why the critics of the administrative state don't like it.  Rather, Vermeuele's point is that certain professional groups we associate with law-- judges and lawyers-- become increasingly less important in the administrative state. So the book should properly be called "Judges' abnegation" or "Lawyers' abnegation." But those are far less engaging titles.

Vermeuele celebrates the rise of law-promulgating and law-enforcing agencies dominated by experts other than lawyers. He argues that Article III judges have self-consciously chosen to play only a marginal role and that lawyers generally-- both within and without the agencies-- will play an increasingly smaller and smaller role.  Once again, however, this is not a claim about law-- it is a claim about the increasing separation of law from lawyers and judges.

The book's conceit is that separation of law from lawyers and judges is an example of the law "working itself pure." Vermeule repeatedly invokes Ronald Dworkin's notion of a coherentist account of law that combines fit with justification-- and he argues that the law has been moving toward greater coherence as it increasingly separates law from the domination of lawyers and judges.

It is hard to know how seriously to take the use of Dworkin in this book.  Dworkin, after all, symbolizes the very judicial imperialism that Vermeule targets in his book. Indeed, Vermeule seems to take great delight in turning some aspects of Dworkin against Dworkin himself, and to employ Dworkinian phrases like "fit and justification" or "the law working itself pure" in ways that undermine the Dworkinian model of principled decisionmaking.

Vermeule is not really making an argument that the law has become more principled over time. Quite the contrary, Dworkin distinguished (unconvincingly, to my mind) between arguments from principle and arguments from policy. Vermuele's central claim-- which he asserts over and over again in this book-- is that lawyers and judges have performed a cost-benefit analysis on their own professional contributions to the administrative state. They have asked themselves what their contribution at the margins is. And, over time, they have concluded that the best balance of costs and benefits is for them to recede into the background, and to abnegate their traditional roles.

This is not an argument from principle. It is a hard-headed argument from costs and benefits, the very sort of argument that Dworkin might have classified as an argument from policy, and therefore *not* an example of the law working itself pure. It is not an example of Dworkinianism, that is, unless the real master principle is that all legal arrangements should be subjected to cost-benefit analysis. At that point, however, the Dworkinian distinction between principle and policy implodes.

Vermeule insists at various points that he is offering a purely internalist account of law, but if you have read any of his other books or articles, you have to take this with a very large grain of salt. Near the end of the book he admits that his internalist account tracks externalist accounts of the growth and development of the administrative state that he has offered elsewhere.  His basic temperament is externalist and realist, and admirably so; when he claims to be talking purely internally, one has to treat him as an unreliable narrator.

Indeed, the Vermeuele who has written on civil liberties and executive power, or on decision theory and constitutional law, might well regard the very phrase "the law works itself pure," as a pious fraud, and then proceed to explode it elegantly. That Vermeuele does not show up in this book, although one suspects he is in the background, chuckling mischievously.

There is, in fact, no reason to believe that the law works itself pure in the sense of becoming increasingly principled in a Dworkinian sense.  Rather, law responds to changes in personnel and agendas set through litigation, social change, and political mobilization.  From the standpoint of any a priori principled approach, the law is likely to retain multiple forms of incoherence, and display layers reflecting the contributions of different actors with different agendas at different times. It is also likely to reflect the ideology of key decisionmakers.

To be sure, if one is a Weberian, one might counter that law will become increasingly bureaucratic over time, which is not the same thing as saying that it becomes increasingly principled (in Dworkin's sense) or even cost-benefit justified (in a economist's sense). Instead, one can trace the administrative state growing in fits and starts in response to the problems of governance of a modern state, with multiple, shifting and conflicting lawyers of power, institutional incentives, and influences. A historical institutionalist might accept the growth of the administrative state every bit as much as Vermeuele and yet deny that it conforms to an overarching logic of cost-benefit justification.

The best way to defend Vermeuele's thesis, I think, is to say that "the law working itself pure" is just a shorthand for the process of state building viewed from the inside: It is a way of talking about the practical problems of running an administrative state, which generations of politicians, lawyers, and judges have had to deal with. Over time, in an unsteady march, they have converged on solutions that distribute increasing authority to experts who are not lawyers and judges. This is not purity but pragmatism and institutional evolution.  And it bears the incoherences, complications and infelicities that arise from any evolutionary form of development.

Ideology plays little role in Vermeuele's story. Yet ideology is quite important. It seems obvious at this point in history that politicians, lawyers, judges, and legal intellectuals are no longer marching in lock step toward ever further abnegation. We live in a world in which much of the population distrusts experts and elites, and in which ideologically polarized elites distrust each other's experts especially.

The intellectual right—which promoted the unitary executive and the power of administrative agencies during the Reagan and Bush I years—now wants to cut back on administrative discretion.   Originalists once read history to support presidential power in the administrative state; a later generation of originalists is now coming up with equally originalist arguments against it. The first part of Vermeuele's book offers his responses to some of the key figures in the contemporary conservative critique of the administrative state.

This part of the book, however, shows why ideology might be important. If  judicial positions are increasingly staffed by conservatives who buy the originalist arguments that Vermeule rejects, one would think that the law will stop working itself pure. Conservative judges will defer less to administrative agencies, the body of administrative law will become increasingly incoherent (at least from Vermeule’s standpoint)—or possibly both.

To put it another way, Vermeuele relies implicitly on the existence of a bipartisan consensus among politicians, lawyers, and judges that increasing abnegation is a good idea. Such a bipartisan consensus has lasted for a long time, and it might yet continue. But the lesson of the late twentieth and early twenty-first centuries has been that consensus among educated elites does not last forever.  Elites are in greater disagreement than they have been for many years on a host of issues, including issues that are normally given to experts to decide. Indeed, in some circles, expertise is deemed highly overrated, if not corrupt.

Why won't the lack of consensus between liberal and conservative elites also appear with respect to the administrative state? It already has. Indeed, one way of understanding the conservative critiques we have seen in the past few years is that the elite consensus has broken down.

Put another way, the very fact that Vermeuele feels that he must spend the first several chapters of his book responding to scholars like Philip Hamburger and Gary Lawson suggests that the ideological consensus among politicians, judges, and lawyers that produced ever greater judicial abnegation throughout the twentieth century may have dissolved into political acrimony and polarization, like so much else in American politics. Vermeule assumes the very thing he wishes to prove-- that no matter who you put at the helm, what you will get is more abnegation. In a world in which left and right cannot agree about the most basic things, it is hard to take that on faith.

It is equally likely that the administrative state as we know it is the product of waves of political mobilization that demanded a particular kind of state.  If very different, and far more conservative mobilizations take hold, we may not see the end of the administrative state, but we may see a cutting back on abnegation, and (from Vermeule’s standpoint) increasing incoherence in administrative law.

Vermeule is at his best in this book when he reveals the institutional logic of administration and shows how it leads to greater discretion for administrators (as opposed to judges and lawyers). He is at his weakest, ironically, when he is attempting to provide purely internal legal arguments for his positions. But in one sense that is hardly surprising: He is not now, nor has he ever been, a member of Dworkin’s party.

To give an example: Vermeule argues repeatedly that one cannot condemn the modern administrative state for abandoning the classical separation of powers, because the very same administrative state was produced through the interaction of separated powers.  The classical system of separated powers *led* to the modern administrative state, so criticizing the latter as a betrayal of the classical separation of powers is both wrongheaded and futile.

This argument conflates causation with justification. One can't simply claim that the administrative state and agency discretion are legitimate because they are the product of the classical separation of powers. The fact that a political change was produced causally by the political forces of separated powers doesn't mean that the change doesn't violate the normative principle of separation of powers. After all, it’s not difficult to imagine the President signing a bill passed by both houses of Congress that violates separation of powers. (It would be a bit like saying that a federal system can't produce laws that violate principles of federalism, or that a system of free expression can't produce laws that violate the First Amendment.)

Skeptics of the administrative state argue that this is precisely the problem-- the classical system of separation of powers, although designed to be self-policing, has nevertheless undermined itself over time. The political branches have failed to enforce the separation of powers. This happened for many overlapping reasons, but especially because of the New Deal, in which the political branches also violated federalism and several other constitutional principles as well. 

Like a good externalist (and I mean that as a compliment) Vermeule's response is to once again pound the table and conflate causation with justification. He offers an argument from eternal recurrence. Abnegation is the inevitable result of a system of separated powers. If we started from scratch with a classical system of separated powers, we would once again wind up with the administrative state, abnegation, and so on.

This is not a successful internalist argument, much less a successful normative argument. It refuses to accept that some change is decay rather than the realization of one's true nature. It confuses personal growth with senility and evolution with rot. If you are a civic republican, for example, you believe that republics are delicate things that always are liable to become corrupted and turn into tyrannies. The fact that republics, over time, tend to turn into tyrannies, however, is not an argument for the legitimacy of tyranny! Rather, it is an argument for eternal vigilance to prevent the citizenry from losing civic virtue and preventing the republic from becoming corrupted.

In precisely the same way, critics of the administrative state may concede that, over time, there are enormous temptations-- perhaps inevitable--for a classical system of separated powers to undermine itself, and lead to the "tyrannical" concentration of legislative, executive, and judicial powers in a single entity. But that is hardly a justification for the resulting state of affairs. Quite the contrary: that is a reason for eternal vigilance against the decline of the American constitutional order into administrative dictatorship (I am channeling the critics here). Vermeule never really comes to terms with *this* version of the critique-- one that accepts the causal tendencies, but asserts that the administrative state, far from the law working itself pure, is at most a necessary evil that must continually be cabined, lest liberty be fatally compromised.

Vermeule also asserts repeatedly that accepting the classical separation of powers between legislative, executive and judicial branches does not require that executive power in administration should *also* feature diffusion of power and checks and balances; the principle of separation of powers among the three branches of government does not require that separation of powers and checks and balances must be replicated at lower levels of organization as a sort of fractal phenomenon. Although Vermeuele states and rejects this thesis several times in the book, but he doesn't really explain why it must be false. In fact, justifications and principles do tend to reproduce themselves on a fractal scale--what I've called the crystalline structure of legal thought.

There's nothing illogical or incoherent about the replication of institutional logic at higher and lower levels of design. Indeed, it might even be a good idea, as government grows in size and complexity. (As a positive matter, fractal self-replication is a familiar feature of complex systems) Many people, myself included, have argued that as the Executive becomes more powerful in the National Surveillance State, preservation of civil liberties requires internal ombudsmen and that it might be a very good idea to design analogues to both separation of powers and checks and balances into the organization of the executive branch. There is, in short, a lot to be said for the idea of diffusing and checking power at multiple levels in a complex system. Whether Vermeule is ultimately correct to dismiss the idea, he needs to say far more to be convincing.

If we compare the constitutional theorist Vermeule with the administrative theorist Vermeule, we will see a final puzzle in the book. Anyone who has read Vermeule's constitutional theory will recognize many of the arguments in Law's Abnegation. In constitutional law as in administrative law, he is for deference to expertise, cost-benefit balancing, and considering the play of decision costs and error costs. That is why he is a modern day acolyte of Thayer and judicial restraint. Indeed, through his interdisciplinary application of decision theory to law he has made himself one of the leading theorists of judicial restraint.

Judicial restraint in constitutional law is the natural analogue of judicial abnegation in administrative law. So it is not surprising that Vermeuele takes similar positions in both constitutional and administrative law.

But this creates a puzzle for his claim that the law works itself pure. The arc of history has increasingly accepted his views in administrative law, but not in constitutional law. If administrative law has "worked itself pure" towards ever greater judicial abnegation, why hasn't this also happened in constitutional law? It is true that the courts flirted with judicial abnegation during the New Deal, but they very quickly got over it. And throughout the very same period in which Vermeule tells us that the administrative state has moved toward ever greater judicial abnegation, judicial review in constitutional cases has become increasingly powerful.

The federal courts-- staffed by judges with very different ideological dispositions-- have receded ever further from judicial restraint in a wide range of areas. Is this also the law working itself pure, or is it the law working itself impure?  If the law is working itself pure in both constitutional and administrative law, what explains the difference in results? If the law is not working itself pure in constitutional law, why did it do so in administrative law but not in constitutional law?

This is another reason to think that the trope of "the law working itself pure" does no real explanatory work. It is a pious fiction that tries to come up with internalist reasons for something that is driven by both external and internal forces.

The most plausible account of why we have the system of judicial review we have is Keith Whittington's-- judicial review has expanded because the political branches find it useful, not because it is either pure or impure as a matter of legal logic.

In like fashion, to the extent that we see judicial abnegation in administrative law, the reason might have little to do with the internal logic of legal reason, but might have a great deal to do with the needs or interests of the political branches. And if those needs or interests changed sufficiently, we might move away from abnegation. The externalist Vermeule (who makes far too little of an appearance in this book) might agree with this. But he might also point out that it is very unlikely that the needs and interests of a modern state will change sufficiently that they will cause lawyers and judges to move away from abnegation. The modern conservative movement, even a radical one, is just too hooked on the drug of abnegation whether they realize it or not. Vermeuele may be right about that. In any case, we'll find out soon enough.

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