Not surprisingly, two Ivy League administrative law scholars with technocratic expertise defend the discipline on the grounds that “technocratic expertise greatly matters.”
A slightly-edited version of this essay originally appeared in The American Conservative (January/February 2021) as “Leviathan’s Apologists.” Thanks to Real Clear Policy and The Originalism Blog (here)!
One of the tenets of the Progressive Movement—the progenitor of the New Deal—was that technical “experts” are better equipped to solve social problems and market failures than elected officials (or ordinary citizens, acting on their own). Hence, the advent over a century ago of regulatory agencies, charged with implementing vague laws that confer sweeping powers upon unelected bureaucrats exercising nearly-unbridled discretion. “Administration” by elites informed by science was heralded as an improvement over—even a substitute for–the outdated framework of representative self-government. The Interstate Commerce Commission (1887), the Food and Drug Administration (1906), and the Federal Trade Commission (1914) eventually begat the alphabet soup of federal agencies created during and after the New Deal that comprise the modern administrative state. Unaccountable government bureaucrats now wield extraordinary power, including the promulgation of a bewildering array of administrative regulations that dwarfs Congress’s lawmaking in volume and complexity.
Another Progressive tenet—famously advanced by President Woodrow Wilson–is that the U.S. Constitution is an obsolete impediment to the administrative state. In particular, Progressives regarded the separation of powers among the legislative, executive, and judicial branches, and limitations on Congress’s power to regulate interstate commerce, as antiquated features needing to be revised or ignored. Wilson’s sentiments ultimately carried the day, not by constitutional amendment, but through a gradual process of acquiescence and dereliction. Congress delegated considerable lawmaking power to executive branch agencies (such as the EPA, SEC, FCC, ad infinitum); the Supreme Court unleashed the commerce clause and then abdicated judicial review over many agency decisions; and the de facto fourth branch of government—the bureaucracy—often answers to no one, not even the President nominally overseeing the executive branch in which the agencies reside.
As a thought experiment, consider President Trump’s experience with the FBI, CIA, State Department, Justice Department, and Pentagon, all of which are part of the executive branch, theoretically accountable to the President. Did they march in lockstep with the President, or behave like rogue agencies undermining him at every opportunity? What about James Comey, Alexander Vindman, Andrew McCabe, Sally Yates, and Rod Rosenstein (among many others). Were these executive branch subordinates allies or opponents of the President? The academic notion that all executive branch agencies are somehow “accountable” simply because voters elect the President is a ludicrous fantasy.
Many Americans—and most conservatives—view these developments with growing alarm. They derisively refer to the bloated, burgeoning administrative state as “the Swamp.” In recent years, some (mostly right-of-center) scholars—notably, Philip Hamburger, Richard Epstein, Gary Lawson, Peter Wallison, and John Marini—have written devastating critiques of the administrative state, including challenges to the legality and constitutionality of administrative law itself. These criticisms, although not (yet) sufficient to provoke a wholesale re-thinking of the bureaucratic Leviathan, have prompted small but important course corrections. For example, on the Supreme Court, Justices Neil Gorsuch and Clarence Thomas have recently indicated their intention to push back against Congress’s delegation to agencies of lawmaking authority and to reduce the degree of judicial deference to agency actions (e.g., limiting or overruling the Court’s 1984 Chevron decision). These may seem like minor changes, but they represent radical deviations from decades of established orthodoxy.
Not all scholars share the critics’ desire to drain the Swamp. In a recent book, Law & Leviathan, Harvard Law School professors Cass Sunstein and Adrian Vermeule (an odd pairing of, respectively, an Obama administration veteran and a former Scalia clerk who espouses a substitute for originalism that he terms “common-good constitutionalism” and which critics condemn as theocratic integralism) undertake a breezy defense of the status quo, while recommending a few minor tweaks in lieu of dramatic changes. Both scholars teach administrative law, and their slim book (145 pages of text) evince an insider’s familiarity with the subject’s technical minutiae (in a field in which such minutiae abounds). Both authors are (separately and together) prolific, and both are significantly invested in preserving the overall model of administrative law as it has emerged since the enactment of the Administrative Procedure Act in 1946. The book, admittedly written by insiders for insiders, assumes that the reader shares their pro-APA worldview, and will nod along in agreement. The administrative law orthodoxy is deeply entrenched in the legal academy. As Michael Greve observed in an essay reviewing Vermeule’s 2016 book, Law’s Abnegation, “administrative law’s arc toward deference simply marks the triumph of a certain legal class.” The book is obviously directed at this sympathetic audience.
To their credit, the voluble authors do not pretend to be dispassionate; both have previously written in favor of (in their words) “broad discretion for the administrative state.” Modern problems are complex and require agency expertise, “in the service of the general welfare.” Such matters cannot be trusted to the proles and their elected representatives. This perfectly summarizes the smug sentiment underlying Progressive thinking: citizens are incapable of taking care of themselves without the assistance of an enlightened cadre of highly-educated technocrats. The administrative state appeals to the elite class—in academia, the media, and of course highly-paid apparatchiks—because it enables them to exert control over the rest of society without the nuisance of elections or consumer choice. Sunstein and Vermeule undoubtedly fancy themselves as latter day versions of Rexford Tugwell and Adolph Berle, who as members of FDR’s “brain trust” helped him design and implement the New Deal. “Trust us,” their tone suggests, “We’re experts.” Administrative law is “something to celebrate,” they conclude; Americans “should be grateful” for it. According to Ivy League technocrats, only an ingrate would oppose the Swamp!
After acknowledging that the critics of the administrative state “are no monolith,” Sunstein and Vermeule unaccountably lump them together and flippantly label them collectively “the New Coke,” ostensibly referring to them as disciples of Chief Justice Edward Coke, the 17th century common law judge who opposed despotism in Stuart England, but also snidely invoking the soft drink branding blunder of the 1980s. As Columbia law professor Philip Hamburger documented at length in his 2014 book, Is Administrative Law Unlawful?, Coke opposed power-hungry kings like James I who used the notorious Star Chamber to advance the Crown’s agenda by issuing lawless diktats—the antecedent of administrative regulations. Lawmaking by unelected agency bureaucrats is just as arbitrary—and devoid of legitimacy—as unilateral edicts of a monarch. Mocking Hamburger’s (and others’) trenchant analysis as “the New Coke” is condescending and supercilious.
Sunstein and Vermeule facilely trot out the standard justifications for the administration state: Congress authorized it; circumstances require it; and the Constitution allows it. The first point is, unfortunately, true. But that begs the question whether the Constitution allows Congress to delegate its lawmaking power. Critics contend not, and some urge the resuscitation of the once-robust “nondelegation doctrine.” The second point accepts the policy premises of the New Deal and brushes aside constitutional objections to FDR’s (and later Presidents’) radical expansion of the federal role. Sunstein and Vermeule repeat the Progressive mantra that the administrative state is “in some sense mandatory” to realize the goals of a paternalistic, redistributionist welfare state. This amounts to saying that “You have to break a few eggs to make an omelet,” which (again) begs the question whether the Constitution allows those eggs to be broken.
The last point deserves a more detailed review than the cursory treatment it receives in Law & Leviathan. Sunstein and Vermeule begin by charging that critics of the administrative state are “best understood as a living-constitutionalist movement,” falsely suggesting that “the New Coke” is unsupported by constitutional text and history. (Elsewhere, the authors undercut this point by stating that “It is not clear that we should be originalists.” Which is it?) Sunstein and Vermeule then erect a straw man, characterizing the critics’ “main concern” as “the overriding fear that the executive will abuse its power.” This is incorrect. The critics’ main concern (keeping in mind that the critics speak with many voices) is that the administrative state violates the constitutional separation of powers—creating a federal Leviathan while simultaneously diluting democratic accountability—in a way that shreds institutional constraints on the growth and reach of the federal government. The issue is not merely “the fear of executive abuse,” as Sunstein and Vermeule claim, but also congressional abdication and judicial acquiescence.
Moreover, the administrative state denies Americans their freedom to be governed by rules and institutions created by their elective consent. Decrees and regulations issued by unelected bureaucrats reduce citizens to the status of subjects, contrary to the Founders’ intentions. The Progressive concept of “administration” in lieu of representative democracy represents a form of governmental absolutism that sacrifices neutrality, fairness, and due process on the altar of “technical expertise.” The system we dignify with the label “administrative law” is really not law at all—it is an evasion of law, properly understood. Without the benefit of actual legislative direction, or actual courts bound by traditional rules of procedure, agency commands resemble long-discredited prerogative tribunals such as Star Chamber. The Founders were understandably opposed to “extralegal” power once asserted by English monarchs, and when adopting the Constitution went to great lengths to prevent similar abuses from happening in the federal government.
Inspired by Montesquieu, the Framers believed that cabining federal power into three separate—and competing—branches was necessary to preserve liberty and state sovereignty. This theme appears throughout the Federalist Papers and is reflected in the allocation of powers in Articles I, II, and III of the Constitution. The limited powers granted by the Constitution to the Congress, the President, and the federal courts were in equipoise—a balance presupposing that the three branches would in fact discharge their assigned functions and keep the others in check. At the urging of the Progressives, these internal constraints have been ignored for decades, resulting in an explosion of the federal bureaucracy and the evisceration of checks and balances essential to the preservation of limited government and individual freedom. In Federalist 47, Madison stated that “The accumulation of all powers, legislative, executive, and judiciary, in the same hands . . . may justly be pronounced the very definition of tyranny.” This is the constitutional defect of the administrative state. Justice Antonin Scalia warned of this precise danger in a 2013 dissent.
It may be that the administrative state is essential to the modern welfare state, but that is not an argument on the merits. Sunstein and Vermeule recognize this, conceding (in a footnote!) that from the standpoint of the Framers, “the expansion of power of the national government [during the 20th century] is the major unanticipated development. The growth of the administrative state should be counted as unanticipated only insofar as it reflects that expansion—but not insofar as agencies wield discretion or have ‘binding’ interpretive and rule-making authority. We acknowledge that we cannot defend this controversial view in this brief space, nor need we do so….” (Emphasis added.) Thus, in a book devoted to defending the modern administrative state, the authors sidestep a critical issue. This is not the only example of the authors’ disingenuity.
For instance, while disparaging the originalist bona fides of “the New Coke,” the authors—remarkably–acknowledge that even “if new historical work turns out to uncover unexpectedly strong originalist support for the New Coke,” judges should nevertheless decline to curb the administrative state because it is too late to turn back: “Settled practices, a product of felt necessities for a period of many decades, have their claims. Constraints and invalidations have costs, including democratic costs, and they might even endanger liberty, however it is understood” (whatever that means). In other words, the unconstitutionality of the administrative state doesn’t matter. This same ipse dixit could have been rolled out in 1954 as a rationale for retaining “separate but equal”; the nation, after all, had gotten used to segregation over “a period of many decades,” and upsetting the established order would—and did–cause disruption and turmoil. Brown v. Board of Education wrought many changes, some of which were perceived by supporters of segregation as an infringement upon liberty, “however it is understood.” Fortunately, self-serving apologies for the status quo went unheeded then, and they should also be ignored—in a different context—now. Taming the administrative state is the issue of our time.