For the Symposium on Adrian Vermeule, Law's Abnegation.
Judicial review and administrative law are politically constructed. A generation of historical institutionalists (Keith Whittington, Howard Gillman, Leslie Goldstein, Scott Lemieux, Paul Frymer, Kevin McMahon, Ran Hirschl, etc.) demonstrated that the judicial power to declare laws unconstitutional thrives in the United States and throughout the world because elected officials from the First Congress of the United States to the Israeli Knesset at the turn of the twenty-first century empowered courts to declare laws unconstitutional. Adrian Vermeule in Law’s Abnegation: From Law’s Empire to the Administrative State brilliantly documents how both elected officials and federal judges have similar ceded substantial policy making power to the administrative agencies.
Judicial review and administrative law are politically constructed. A generation of historical institutionalists (Keith Whittington, Howard Gillman, Leslie Goldstein, Scott Lemieux, Paul Frymer, Kevin McMahon, Ran Hirschl, etc.) demonstrated that the judicial power to declare laws unconstitutional thrives in the United States and throughout the world because elected officials from the First Congress of the United States to the Israeli Knesset at the turn of the twenty-first century empowered courts to declare laws unconstitutional. Adrian Vermeule in Law’s Abnegation: From Law’s Empire to the Administrative State brilliantly documents how both elected officials and federal judges have similar ceded substantial policy making power to the administrative agencies.
Claims that judicial review and administrative law are
politically constructed do not entail that constitutional courts and
administrative agencies are pawns serving higher masters. Governing officials have reasons empower other
institutions to make independent judgments.
Courts and administrative agencies can reduce the volume of decisions
made by other institutions. They often
have special expertise that other governing institutions lack. Courts and administrative agencies are
sometimes the proverbial canaries in the mineshafts. Other governing officials may prefer foisting
controversial decisions off on less politically accountable decision makers to
deflect blame for unpopular decisions (while reserving the right to take credit
if a consensus forms that the court or agency did the right thing).
The political construction of judicial review and
administrative law has normative consequences. If the Judiciary Act of 1789 and related
legislation better explain the establishment and development of judicial review
in the United States than Marbury v.
Madison (1803) and related judicial decisions, then the conventional
countermajoritarian difficulty makes little sense. If contemporary administrative law largely
consists of courts working out the fundamental logic of a combination of past
political and legal decisions, then attacks on the administrative state as
lacking legal foundations make as little sense.
Claims that elected officials should take back usurped power from the
courts or that courts should take back usurped power from administrative
agencies ignore the mechanisms by which power was freely given rather than
stolen in the middle of the night.
The political construction of judicial review and
administrative law pose particular problems for originalists. Originalists insist that constitutional
decision makers should make every effort to return the constitutional order to
its pristine form. Historical
institutionalists, however, point out that constitutional institutions in their
pristine form provided political actors and judges with reasons and incentives
to abandon originalism. Law’s Abnegation similarly details how
constitutional institutions operating in their pristine form produced the
contemporary administrative state. 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.
Vermuele’s internalist critique justifies administrative law
within a particular constitutional order, but neither legitimates that
constitutional order or the administrative law that a different constitutional
order might generate. 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.
Proponents of originalism (Gary Lawson), common law practice (Philip
Hamburger) and a traditional separation of powers (Jeremy Waldron), who insist
that some institutional arrangement A is a priori legitimate all fall prey to
Vermeule’s claim that institutional arrangement B, the contemporary administrative
state, is as legitimate. Pragmatists who
judge institutional arrangements by consequences are less vulnerable to this
critique. If institutional arrangement A
in the normal course of politics produces institutional arrangement B, the contemporary
administrative state, and the contemporary administrative state vests
bureaucrats with too much discretion and too much policymaking authority, so
much the worse for institutional arrangement A.
The crucial point, on which I suspect Vermuele and historical
institutionalists agree, is that the fix for these ills, if any, lies in
institutional arrangement A rather than in contemporary administrative law. Americans on the left and right who want to
change the contemporary administrate state must change the way the
constitutional order as a whole functions, either through changes in the constitutional
text, changes in the interpretation of textual provisions on basic constitutional
arrangements or changes in the broader constitutional culture. Changing administrative law (or judicial
review), without making changes in the broader constitutional culture is
pointless, since the broader constitutional order is what generates
contemporary administrative law in the present
In this vein, the contemporary administrative state should
be conceptualized as the outcome of what might be called the long state of
courts, parties and agencies that thrived for most of the twentieth century and
has been largely maintained by the polarized politics of the present. Focusing on particular constitutional orders
helps explain why administrative law “worked itself pure” during the second
part of the twentieth century, but not before.
One obvious cause of contemporary administration law was functional. The American state was called on to perform
many more tasks during the twentieth century and many of these tasks were best
performed by experts. A second cause of
the long state of courts, parties and agencies was political. The relatively non-ideological parties that
dotted the landscape from Theodore Roosevelt to Ronald Reagan were poor
vehicles for policy making. One
consequence of the party structure was that members of Congress, lacking a
unifying party vision, delegated powers to courts, executives and agencies,
even when doing so was not necessary because Congress was overwhelmed or the
decisions better made by experts (think the constitutional rules for same-sex
marriage and gun control). The polarized
party system that followed the long state of courts, parties and agencies
further enhanced the power of courts and agencies because gridlock prevent most
legislative efforts to restrain the power of unelected officials.
This absurdly underdeveloped hypothesis that contemporary
constitutional law is rooted in the constitutional politics of the twentieth
century has two consequences for the Vermeule thesis. First, Vermeule tends to excuse what others
see as flaws in contemporary administrative practice by pointed out that
contemporary administrative law was generated by the constitutional order as a
whole. This is as much of an indictment
of either the long state of courts, parties and agencies or the polarized polity
as a justification for contemporary administrative law. Second, to the extent contemporary administrative
law is the product of particular American regimes rather than of the American
constitutional order more generally, that law may lack the relative permanence Law’s Abnegation sometimes
suggests. If the Trump election signals
the end of a particular constitutional regime, we may see an end to the administrative
law that was part and parcel of that regime.
More generally, the challenge Vermeule lays down for those who think
courts and agencies have too much power is to figure out what institutional
arrangements will provide the national legislature with the capacity and
incentives for making more policies than Congress possesses at present.