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Mark Pulliam on Sunstein & Vermeule on the Administrative State
Michael Ramsey

At Misrule of Law, Mark Pulliam: Trust Us. We’re Experts. (reviewing [unfavorably] Law & Leviathan by Cass Sunstein and Adrian Vermeule (Belknap Press 2020)).  From the introduction:

In recent years, some (mostly right-of-center) scholars—notably, Philip HamburgerRichard EpsteinGary LawsonPeter 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.

... 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) evinces 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.

And on the originalist aspect of the debate:

Sunstein and Vermeule begin by charging that critics of the administrative state are “best understood as a living-constitutionalist movement,” falsely suggesting that [the critics' view] 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.