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.