For the Symposium on Adrian Vermeule, Law's Abnegation.
I'm
grateful to Jack Balkin for organizing the symposium on Law's Abnegation,
and to all of the symposiasts for their generous remarks and for their time. It
seems to me that no single common theme emerges; their points, while
interesting, do not converge on any single line of conversation. So I will
mention a few disparate issues, attempting to touch on all of the symposiasts
except Sandy Levinson, whose cogent and (overly) charitable entry speaks for
itself and calls for no response.
Law's Sovereignty
Two of the
symposiasts, Andy Koppelman and David Dyzenhaus, are primarily interested in
law's sovereignty. Koppelman makes one central point: "It isn’t abnegation for the law to stand by and let someone
do what they’re entitled to do. It’s
just the ordinary operation of law." Well, yes and no, as I try to explain
at several places in the book. The "yes" part is that Koppelman is
repeating Henry Monahan's formal argument for reconciling judicial supremacy
with deference to agencies, as to questions of law: judges exercising their
supremacy may decide that the law itself just is that agencies decide what the
law is (within the bounds of silence or ambiguity). The "no" part is
that this reconciliation is in essence a convenient legal fiction that lightly
disguises the long-term retreat of law's empire. A measure of how far we have
come, from my baseline of Crowell v. Benson (1932), is to imagine asking
Chief Justice Hughes whether he would be satisfied with Monahan's and
Koppleman's reasoning. He would certainly be appalled, seeing quite rightly
that the "government of a bureaucratic character, alien to our
system" that he attempted to prevent in Crowell is not any the less
triumphant, even if its official rationale is that law itself chooses to
abnegate its office to the bureaucracy. It's a bit like going to London, seeing
the Crown on all the mailboxes, learning that the Queen asks the Prime Minister
to form a government, and then concluding that the Queen (in Parliament) is
still sovereign. De jure this is so, but it is a sovereignty that has
(in virtue of polite conventions) ceded most of its real power to other actors
in the system.
Let me turn now to David Dyzenhaus, whose contribution is
keyed to a distinction between "law" and "legality." I have
to say I find the distinction puzzling in the extreme. Indeed language itself
rebels; one can say that something is "lawful but not legitimate" or
vice-versa, but one cannot, in English anyway, say that something is
"lawful but not legal." Sometimes, however, Dyzenhaus does seem to
intend the distinction between legality and legitimacy after all, as when he
attributes to the book "the claim that anything produced in conformity with
constitutionally mandated principles is for that reason constitutionally
legitimate." To read him this way, would, however do excessive violence to
his repeated references to law and "legality."
The best I
can do is read the distinction as intended to track a more familiar distinction
between the "thin rule of law" (formal law) and the "thick rule
of law" (legality) -- with the latter read to mean standard Lon Fullerite
criteria for law-like-ness, and to derive from what Dyzenhaus calls a "constitutional
value structure," embodied in official action through processes of
legalistic deliberation. The reconstructed point, in other words, is that
legality is more than formal law. When Dyzenhaus says that "law regulates
is own production" through legality, even in the administrative state, I
take him to mean that thin or formal allocation of legal authority is one
thing, whereas the actual operation of value-inflected legal reasoning in
courts and other deliberative legal institutions is another. Again, I may have
misapprehended all this, but will have to forge ahead.
Conditional
on that understanding, I don't know what in the book seems to suggest the
sufficiency of thin formal lawmaking as an account of law's abnegation; that is
certainly not my picture. The internal legal process of abnegation I have
attempted to describe, extended over decades, is as thick as thick can be; it
is not as though some bare statute or single precedential fiat, read literally
and woodenly, brought about law's abnegation. Rather, the book claims, the
process of abnegation was -- at least on the judicial side -- one of sustained
argument within, through, and by means of all the apparatus of deliberative and
value-laden common-law legality, argument conducted under a sustained
commitment to principled consistency. On the judicial side, in two of my major
examples from the crucial years of World War II, NLRB v. Hearst
and Yakus v. United States, we see judges engaged in principled
deliberation under a governing ethos of rational consistency with precedents,
and working-pure the principles underlying those precedents, in a way that
would have made Dworkin proud -- if he had read them. And the paradoxical
result, I suggest, was the ever-accelerating abnegation of the power of courts,
a continual shrinking of what Dworkin called the "heartland" of law's
empire.
Putting the
same point another way, I entirely agree with the claim that Dyzenhaus sees as
critical to legality: the premise that even in the administrative state
"law regulates its own production." But what I do claim is that law
decided to regulate its own production largely by making a well-deliberated,
value-laden decision to outsource that production to administrative agencies --
to step aside. Like Koppelman, Dyzenhaus insists on the sovereignty of law,
overlooking that law, exercising that very sovereignty, itself decided, by
means thick deliberative processes, that its own sovereignty should become
nominal and conventional, like the sovereignty of the Queen in Parliament, or
the sovereignty of the Frankish Kings.
An
excellent illustration involves Dyzenhaus' own example -- "privative
clauses" in legislation that expressly bar judicial review, what American
lawyers would be more likely to call "preclusion of review" clauses.
Dyzenhaus seems to think that if courts interpret such clauses narrowly and
with resistance to their obvious purposes, thereby retaining a substantial role
in "saying what the law is" on the merits, it counts as an objection
to the book's argument -- as counter-evidence. But this is precisely the set-up
for the book's claim, the stage on which the play unfolds. That is because
courts, exercising their power to say what the law is, on the merits, may
decide to say -- and I claim that this is in fact what they have, for what most
part, decided to say -- that law is what agencies decide it will be, within
broad boundaries. That is, Dyzenhaus, like Koppelman, doesn't come to grips
with Monahan's critical point about Chevron, which I emphasize
throughout: courts, acting in thickly legal and highly deliberative ways, may
decide that the law just is that agencies, not courts, will say what the law
is. The sovereignty of law is not an alternative to abnegation, but -- in my
account -- the precondition for it. (I note here but cannot discuss Nick
Bagley's superb demonstration that in U.S. administrative law anyway, the presumption in
favor of judicial review is much less robust than conventional wisdom among
administrative lawyers would have it; that argument fits seamlessly with my own
claims about how administrative law has developed on the merits).
Constitutional Theory
Let me turn
now from these threshold issues to some issues of constitutional theory. Jeff
Pojanowski offers two critiques, alongside two larger points that I found
illuminating. Let me begin with the critiques.
First,
Pojanowski discerns in the book a "premise of the radical inseparability
of law and policy," which he also sees as widely shared in the legal
academy. Let us call this "strong realism." The premise of strong
realism is, however, not one the book assumes or requires. I have no doubt that
there exists a domain of legal questions that are clearly separable from policy
questions in a first-order sense (bracketing the second-order point that it is
good policy to have such a domain of autonomous legal questions). What the book
does argue is much more limited: that the sorts of complex questions at the frontiers
of the administrative state, questions that, over time, increasingly occupy the
attention of agencies and courts, tend disproportionately to have the feature
that legal questions and policy questions, and indeed also procedural
questions, are inextricably intertwined (whether or not conceptually
separable). The consequence is that lines between law, fact, policy and
procedure have not been rationally defensible over time; and the judges's own
commitment to principled consistency has caused all these types of questions to
be treated with increasing deference. A central strand in my story of the
development of doctrine, for example, is that Crowell's
line between judicial deference on
factual questions and de novo review of legal questions proved untenable.
More on this shortly.
Pojanowski
also critiques one of the book's central claims: that the originalist call for
a return (insofar as possible) to the Constitution of 1789 and the classical
separation of powers is self-defeating and incoherent, because the classical
institutions, operating as they were designed to do, themselves quite
deliberately generated the administrative state. Pojanowski says that the
argument is "nonresponsive" --
the thought apparently being that if abnegation was (is) "unconstitutional,"
apparently on originalist premises, that's the end of the story, and it is
irrelevant that some or all of the constitutional institutions have endorsed
it.
Yet this
response itself seems entirely nonresponsive from my perspective. The argument
at hand is that the original Constitution, functioning as it was designed to do
through the thickly-legal processes of separated powers, itself brought about
law's abnegation. Suppose with Pojanowski that the end state of this process is
indeed unconstitutional on an originalist theory. That would merely underscore
the book's point. It would show, in other words, that the original Constitution
was incoherent at a deep level, because its unfolding according to its intended
operation brought about an invalid state of affairs. That is not to offer an
originalist rejoinder to my claims; if anything it indicts the coherence of
originalism, and indeed of the Constitution itself. As Mark Graber puts it in
his review, which got all this exactly right, "constitutional institutions in their pristine form provided
political actors and judges with reasons and incentives to abandon
originalism.... Law’s Abnegation
convincingly asserts that if institutional arrangement A in the normal course
of operation produces institutional arrangement B, and institutional
arrangement A is legitimate, then institutional arrangement B is
legitimate." Graber might have added the contrapositive: if one denies
that B (the administrative state) is legitimate, then A (the original
Constitution) isn't either.
In all this
there is a separate issue, of course, about my assertion that the original
Constitution operated as it was supposed to in the course of generating the
administrative state. The alternative view is that the administrative state
came about through some sort of "abdication" of constitutional
functions. I argue against that position at length in the book (see, for
example, pp. 43-47), in part on historical grounds by drawing upon Jerry
Mashaw's exhaustive treatment, in part on logical grounds by showing that the
view of "abdication" needed to make this argument run would end up
proving far too much; it would prove that the relevant institutions never functioned
properly, thereby impeaching the original Constitution all over again. Let me
again quote Graber, who gives a laudably precise formulation of the idea:
If Merlin by magic returned the American constitutional
order to its pristine form, historical institutionalism and Vermeule’s work
suggest that the same reasons and incentives that produced contemporary
judicial review and contemporary administrative law will reproduce those
practices in the very near future. The problem, if a problem exists, is one
of constitutional design rather than a problem of individual decision makers
betraying the commitments of a constitutional order. (My emphasis).
All that
said, I found Pojanowski's larger analysis illuminating. It rests on two
points. The first is that Law's
Abnegation explicates essentially unwritten
constitutive principles of the administrative state. That's true, in the dual
sense that to a surprising degree our administrative "law" is
actually constituted by unwritten conventions (as explored here,
and in important work
by Emily S. Bremer), and that the long-run process of abnegation I describe is
given forward thrust by unwritten principles -- rational consistency chief
among them -- that have caused judges to collapse the unstable Crowell v.
Benson framework by moving, over time, toward ever-greater deference. There
have been and will be backward eddies and countercurrents, but the trend over
time is unmistakable.
The second
illuminating point is just that the doctrinal instability of the Crowell compromise
is indeed the crux of the issue. If I have a global complaint about the
symposiasts, it is that they did not take the internal legal argument of the
book seriously enough on its own terms. The key moments in the book are
doctrinal moments -- as when, in NLRB v. Hearst, the Court came to
believe, that the reasons or principles that counseled deference to agencies on
questions of "fact" also counseled deference to agencies on
"mixed questions of law and fact," so long as the agency had "a
reasonable basis in law." (Here the specter of Chevron begins to
hover over the scene). Pojanowski, however, does underscore the importance of
the doctrinal issue. He stakes out the view that the Crowell compromise
is not inherently unstable and can be shored up, and that deference need not
overrun the levy between questions of law and questions of fact (as it did in Hearst).
Quite appropriately, he doesn't explain his view at length; a symposium
response was not the right occasion for doing so. I fully agree that the
question is critical and look forward to hearing the developed version.
Jack
Balkin's entry makes a great many points about constitutional theory, too many
for me to do justice to all of them. Some of them I have more or less addressed
already. Let me single out one for further discussion here, and discuss another
in the next section. In a version of
Pojanowski's objection, Balkin thinks that I mix up "causation and
justification" by arguing that it is incoherent to damn the administrative
state and call for a return to the original Constitution, when the original
Constitution, operating as it was supposed to, itself produced the
administrative state. But that argument is itself a point about justification, albeit a negative
point; it is an argument that the justifications for that common stance --
administrative state illegal and bad, original Constitution binding and good --
are internally inconsistent. Note well that critics of the administrative state
who call for a return to the original separation of powers, and the original
Madisonian schema generally, almost invariably give reasons why the
original scheme was well-designed, better-designed than the administrative
state, to which they attribute a host of pathologies. If, however, the
operation of the original constitutional scheme itself generated the
administrative state, as a chrysalis gives rise to the butterfly, then that
combination of views is fighting a civil war with itself -- precisely at the
level of justification. Arguments in praise of the original Constitution are
themselves, by a kind of transitivity, arguments in praise of the
administrative state, which the original institutions generated in the proper
exercise of their functions, or so I argued.
External vs. Internal Perspectives; Politics; Law Outside
the Courts
Finally, let
me turn to some threads in the responses that question the shape and limits of
the book's project. That project is to examine (1) law within courts from (2)
an internal legal perspective. Two of the symposiasts, Balkin and Gillian
Metzger, chafe at those limitations. Balkin questions the second, and indicates
a wish that the book were written (entirely?) from the external perspective of
politics and economics, rather than from the internal perspective of legal
doctrine. But I like doing cases and don't see why I have to be confined to one
register. Read in conjunction with other books of mine, which make all sorts of
external arguments of the sort Balkin mentions, this book offers an argument in
the alternative, one that adopts the Dworkinian-legalist-internal assumptions
of so many administrative lawyers, and attempts to show that even given those
premises, my view of the administrative state follows. It tries, whether or not
successfully, to speak to the internal-legalists in their native language.
Incidentally,
that language includes and has always included internal arguments about the
comparative competence of court and agencies (which I express in my own local
dialect by speaking about the marginal costs and benefits of additional
judicial review of agencies). Balkin seems to think such arguments are
necessarily external, when in fact they are common within courts and from the
judicial and lawyerly standpoint, as well as from an external standpoint -- as
Hart and Sacks and the whole Legal Process tradition illustrates. Arguments
from comparative competence amount to one of the areas of common ground between
internal and external perspectives, which doubtless helps to account for their
enduring appeal.
Gillian
Metzger, by contrast, questions the first self-imposed limitation of the
project, the decision to focus on law within courts. The motivation for that,
as Metzger explains, was to bring the insurgency to the heartland of law's
empire, which has always been the courts and the law announced and applied by
judges, as Dworkin himself proclaimed. Metzger is entirely correct that there
is important law applied within agencies and elsewhere, outside of courts. Yet
she says nothing about the important interaction between the two domains of
law, which the book emphasizes in Chapter Six. Changes in the law applied
within courts themselves affect the law applied outside of courts, within
agencies -- partly by the law of anticipated reactions on the part of agency
lawyers forecasting litigation outcomes, partly just because judges' view of
the law is always influential for lawyers, wherever they are placed. Thus the
advent of Chevron, for example, seems to have reduced the overall importance
of lawyers as a profession in the ecology of the agencies. So it is also true
that one cannot focus on the law outside courts without attending to the law
within courts. I suspect Metzger and I agree on all this.
Metzger's
second point resembles Balkin's wish for a more external version of the
project; she asks about the effect of politics on the developing legal logic of
abnegation. What if, for example, President Trump were to appoint a critical
mass of anti-deference Justices? I have given my reasons elsewhere for being skeptical
that this will happen; but what if it does? What if, in the limiting case, the
Court were to overturn Chevron, for example? Graber, likewise, asks
whether Trump signals a change of political regimes that might change
administrative law as well.
No one
would be mad enough to claim that the arc of law's development is immune to
external political currents. What I do claim is something far more modest:
after an initial period of legalist triumphalism, and a further period of
confusion and adjustment, abnegation and deference will reassert themselves
insofar as feasible, within whatever political constraints and externally
imposed boundaries are set on judicial decisionmaking. As sure as the sun will
rise tomorrow in the East, federal judges will defer de facto
to EPA's construction of ambitious statutes in complex rulemakings, even if the
judges are constrained to speak as though deference is impermissible; they are
on average too busy, too modest, too
concerned about making a hash of environmental policy, and too aware of
their own limitations to do otherwise. That sort of deference long predates Chevron
and would live on after it. A sort of reverse analogy here is to strict
scrutiny, often described as "fatal in fact"; in the sequence I
describe, judicial-review doctrine would be strictly de novo in theory,
deferential in fact. The internal legalist process of law's abnegation is
hardly indefensible, or inevitable; its course can be turned by main force and
with the right technology, just as a river can be redirected with enough work.
Yet, like a river, it will always display a strong tendency to return to its
original channel.
Adrian Vermeule is the Ralph S. Tyler, Jr. Professor of Constitutional Law at Harvard Law School. You can reach him by e-mail at adrian.vermeule at gmail.com