For the Symposium on Adrian Vermeule, Law's Abnegation.
Law’s Abnegation is an intellectual
force to be reckoned with. This is especially so if, like me, you think
administrative law should place more emphasis on law than it currently does. Vermeule contends that today law is
like a lion crouching beneath the throne of the administrative state, and that
is how it should be. Even further, he averts that law’s supine position is in
some deeper sense inevitable. These provocative arguments from doctrine,
decision theory, and jurisprudence offer a coherent, unified vision of
administrative law. One may not ultimately be convinced, but the book’s
argument and example demand a response in kind.
The
book’s central claim is that the New Deal’s doctrinal consensus on
administrative law has collapsed and that all the pieces have fallen toward
deference to administrative agencies. Chief Justice Hughes in the 1932 case Crowell v. Benson envisioned a compromise in which courts
would review questions of law de novo while deferring to agencies on other most
other matters. But in area after area, Vermeule argues, law’s empire has ceded
ground to the administrative state, checking agencies only when they veer into
patent unreasonableness. Accordingly, an administrative law that legitimizes
active agencies while reserving “lawyers’ questions” for the courts is
untenable. Even less plausible, a
fortiori, are more radical critiques of the administrative state based on
constitutional originalism or
classical separation-of-powers
theories. Vermeule argues that the courts did not lose their territory because
some Golden Horde of bespectacled bureaucrats stormed law’s citadel. Rather,
lawyers opened up the gates for good, lawyerly reasons. To return to the book’s
Dworkinian metaphor, the law worked itself pure, but in doing so dissolved into
a shell of its former self. Or so the argument goes.
Despite
my more legalist orientation, I find substantial portions of the book’s claims
persuasive. For example, Vermeule offers a compelling argument that courts
should not demand pristine rationality and exhaustive explanations when
agencies make policy at the frontiers of knowledge. Of course, adherents to the
Crowell compromise can readily accede
to this critique: if policy is for agencies and law is for courts, any appropriately
deferential review of agency policymaking should incorporate sound insights about
reasoning under epistemic uncertainty.
But
Vermeule argues that the Crowell
compromise is untenable as a matter of theory: the arc of history must either
bend toward legal abnegation or judicial supremacy, but not an internal
separation of powers. Though his argumentation is formidable, here I am less
convinced. Claims about the inevitable instability of Crowell rest on a controversial—and in my view, mistaken—premise
about the radical inseparability of law and policy, one which Vermeule does not
defend at length, though perhaps he feels he need not given its pervasiveness
in the legal academy. That said, the presence of jurists like Judge Brett
Kavanaugh on the D.C. Circuit, who has criticized
judicial intrusion on agency policymaking while
also expressing discomfort
about Chevron deference to agency
legal interpretations, could indicate that the Crowell fusion has a longer half-life than Vermeule thinks. Nor am
I convinced that judicial abnegation on interpreting statutes
or regulations—the
heartland of law’s proverbial empire here—is as pronounced as Vermeule
believes.
Even
the Crowell compromise, however, requires
one to concede the constitutionality of a “Fourth Branch” that makes the bulk
of the nation’s law and policy through a combination of legislative- and
adjudicative-type activity. As an originalist more faint-hearted than, say,
Gary Lawson, I am troubled by that question as a matter of high level theory, but
most of my academic work on the matter assumes a baseline of substantial
delegation to federal agencies. But the deeper question presses, and I therefore
want to focus on Vermeule’s implicit constitutional justification for whatever
legal abnegation presently sustains the administrative state.
On
this score, Law’s Abnegation returns
again and again to a curious point, one which hovers between argument and ironic
observation. When Vermeule confronts a theorist seeking to bring us back to a
less abnegated state—be it the originalist’s Constitution or the Crowell compromise—he points out that
the very mechanisms the critic champions led us to our present condition. The
separated powers of the original Constitution may have not contemplated an
administrative state, but Congress, executive officials, and judges chose—using
their separated powers—to create it. The Crowell
compromise may have envisioned a more vigorous judicial role in policing legal
interpretations, but its originating Court gave up that ghost soon thereafter.
Vermeule seems
to treat these facts as knockdown arguments; so significant are they that they
inspire the epigram at the start of the monograph. But my first reaction is
that his point is nonresponsive. On any normative theory of constitutional law,
the erroneous persistence of any unconstitutional statute requires the
cooperation of all three branches. Similarly, it is a strange defense of
judicial dereliction to point out that, yes, the judges did not live up to the
proper standard. Although Vermeule is offering a Dworkinian defense of the
administrative state (one may challenge
its success, but that’s another matter), his response to revanchists rings
closer to H.L.A. Hart’s bon mot about legal legitimacy: “Here all that succeeds
is success.”
Now,
one could try to fit this argument into conventional constitution theories.
Vermeule himself suggests it is consistent with originalism, though he does not
spend much time defending that point. Vermeule’s quick reference to the concept
of constitutional liquidation and a (very plausible) rejection of the
originalist rejection of precedent is hardly enough to solve this formidable problem,
though we can forgive this because that is not his main quarry. One might also
read these historical acceptances of the administrative state as Constitutional
Moments (“Crouching Lions, Hidden Ackerman”?),
but Vermeule rejects that theory out of hand. More plausibly, we can view this
as a kind of living constitutionalism in which dialogue between the branches
and popular acceptance implicitly developed a constitutional common law
foundation for the fourth branch.
Perhaps,
but I think Vermeule is trying to point to something bigger and less contingent
than the path of our particular constitutional common law. At times, the book
soars to almost Hegelian (or Schmittian?)
prophecy about the path of public law. He posits the notion of an “Eternal Return”
to a supreme administrative state with law on the margins and he claims that
substantial deference to agencies is a pervasive, almost genetic feature of
government across the Anglo-American world. These larger observations, combined
with his repeated references to the “arc” of a semi-personified “law” bending
toward deference suggests there is something universal and inevitable about the
road to abnegation—something built deep into the structure of human affairs in
a polity of any complexity. One might even say that lawyers’ gambits to resist
this tendency are proud and futile attempts to change the order of nature.
From
this perspective, Vermeule’s Administrative Constitution rests on an unwritten,
lower-case “c” constitution. Unlike, say, the contingent British constitution, the
abnegatory constitution is written in the order of things and therefore cannot
be erased. It literally constitutes
governance. In this respect, one begins to see a resemblance between the
structure of Vermeule’s argument and that of Philip Hamburger, one of
Vermeule’s recent adversaries. Law’s
Abnegation contends that Hamburger’s critique of administrative law is not
at all rooted in the actual, originalist American Constitution. Rather,
Hamburger is drawing on classical, more general understandings of separation of
powers and judicial duty, inspired by Anglo-American law and rhetoric but not
traced directly back to the legal sources. Hamburger’s polemics, Vermeule
claims, spring from an unwritten constitution. I suggest that Law’s Abnegation does as well: Vermeule
is more fluent in and attentive to administrative law doctrine, but his
argument is as much a patient, lawyerly explication as it is an uncovering of
the deep structure of public law itself.
Vermeule sees an
eternal return to administrative preeminence, whereas Hamburger sees right
juridical reason pointing back toward the flowering of common law in the age of
Coke. When legal visions draw on interpretations of the natural order of
things, the line between legal error and sin begins to blur; if my interpretation
is correct, it should not be surprising that the disagreements between Vermeule
and Hamburger have been so
heated.
As one content to shore up the Crowell
compromise, I am yet to be convinced that administrative lawyers must choose
between the two. But my position rests on tentatively defended beliefs about
the nature and autonomy of legal craft and argument. Vermeule’s book has many
merits, but one of its signal virtues is pointing us to such jurisprudential
questions lurking below standard arguments about doctrine, values,
institutional competence, and the like. Law’s
Abnegation presses beyond normal legal science and will challenge those who
read it.
Jeffrey Pojanowski is Professor of Law at Notre Dame Law School. You can reach him by e-mail at Pojanowski at nd.edu