Administrative Law

Is Administrative Law Immoral?

A review of Richard Epstein's latest book: The Dubious Morality of Modern Administrative Law

|The Volokh Conspiracy |

In the latest issue of National Review, I review Richard Epstein's latest book, The Dubious Morality of Modern Administrative Law.

Here's a taste of my review:

In 2014, Columbia Law School professor Philip Hamburger posed the question "Is administrative law unlawful?" in a book of that title. Now Hamburger's New York neighbor Professor Richard Epstein, of New York University Law School, asks whether modern administrative law is immoral. Both answer in the affirmative.

Although framing their inquiries in different ways, both Hamburger and Epstein question whether contemporary administrative law is consistent with the rule of law. This is not an idle question. The laws that govern many individuals' lives and livelihoods are the product not of the legislature but of administrative agencies exercising delegated power with inconsistent legal or political accountability. . . .

Drawing upon Lon Fuller's classic treatise The Morality of Law, Epstein considers whether modern administrative law satisfies Fuller's prescriptions for a moral legal order. And as Epstein's title suggests, this is a dubious proposition: "Fuller's steely insistence on legal coherence, clarity, and consistency, coupled with his strong condemnation of retroactive laws, does not mesh with modern administrative law." This is quite a problem, for the features Fuller identified were not merely advisory, but "the minimum requisites for the rule of law." Insofar as modern administrative law violates these principles, it is, in one sense, immoral and needs to be reformed.

The full review is here.

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  1. The about-face on bump stocks is as stout a clue-by-four as can be that regulatory law is out of control. There are many many other examples, but I don’t think any as bald-faced as bump stocks.

  2. Does Epstein bring anything more than his usual dilettantism to the “moral” theory he claims to be invoking, here? Neither this blurb nor the lengthier review seems to suggest that he’s taken the time to seriously consider Fuller’s theory or alternative moral accounts for the law. It would seem simply that he must have recently read Fuller’s book and found it a useful jumping-off point for his usual sniping at hoary old chestnuts like Chevron, et al.

    Why read his book? Why review it? Why publish it?

    1. Yeah I’m not sure what new insight I’m supposed to get beyond the usual critiques of administrative law.

  3. This dilemma can be solved via two little words, one already battle-tested: “living morals.”

    1. You don’t think morals have changed in the last hundred years or so?

      1. “Hey, what was that loud whooshing sound?”

        1. Tinnitus.

          1. You must have a pretty bad case.

        2. Looked to me like you were arguing that living morals were something akin to living constitutionalism, which in the strawman view of many here solves all principles by rationalizing them away.

          Except that living morals is very much a thing.

      2. If morals can change over the course of a hundred years, why can’t administrative law?

        Many agencies are nearing the century mark, but Congress has no interest in addressing whether they are still necessary and Presidents have little authority to direct their rulemaking.

        Perpetual government agencies that aren’t subject to the democratic process are immoral.

        1. “Perpetual government agencies that aren’t subject to the democratic process are immoral.”

          Somehow some people manage to overlook this sort of thing when the immoral government agencies are immorally doing the sort of things they wish the government were doing. The moral is, put better people in charge of things.

  4. So this is regulatory law, and not governance of the Social Security administration like Google says.

    They can cure the ethical defect by having Congress vote on the regulations like any law to activate them, with signature or veto.

    The arguments against this are:

    1. Current design takes the politics out of it.
    2. There’s too many for Congress to vote on all of it.

    The first one doesn’t help the case for a democracy, and the second one doesn’t help the case for a free nation.

    And no, a state where, every single Congressman can hide and say, “I didn’t vote for that regulation!” isn’t a good one.

    1. They can cure the ethical defect by having Congress vote on the regulations like any law to activate them, with signature or veto.

      Congress can invalidate any regulation it doesn’t like, if the President goes along. Why should it have the power, other than by passing legislation, to invalidate a regulation that is within the statutory authority of the agency?

      1. Because laws are supposed to originate with the legislature, not the executive branch, and the legislature passing a law to delegate its law making authority to the executive branch doesn’t change that.

        1. So Congress can’t establish an agency to deal with the specifics of its statutes? That’s ridiculous.

          Yell about “non-delegation” all you want. It’s still ridiculous.

          1. That the same bodies which enforce the laws also write them is what’s ridiculous. Specifics of statutes should be *in the statute* – that’s Congress’s job. If there’s too many regulations for Congress to handle it, then there’s too many regulations, period.

            1. So if Congress wants to regulate air pollution it has to specify limits for all possible emissions in the statute, rather than delegating that to an agency that actually has some expertise, and give it.

              If Congress wants to spend money on medical research it has to specify the specific projects and amounts in the statute.

              That makes no sense whatsoever.

              1. Back to the distinction between living constitutionalism and originalism. The former asks what the Constitution should mean, the latter asks only what it does mean.

                The Constitution was written over 200 years ago for a largely agrarian society. Why would you expect it to “make sense” for a modern regulatory leviathan?

                1. Well that just raises the question of why it makes sense to have a constitution that is designed for a 200 year old agrarian society.

                2. Back to the distinction between living constitutionalism and originalism. The former asks what the Constitution should mean, the latter asks only what it does mean.,/i>

                  This is empty sloganeering.

                  1. Vice always has to deny the possibility of virtue. If you’re going to argue for treating the Constitution as a blank tablet, you’re pretty much obligated to deny that anybody is actually capable of reading it and finding meaning.

                    It’s not empty sloganeering. You can clearly see two types of questions and reasoning employed in constitutional arguments.

                    One type goes to what interpretation would be a good idea from a policy standpoint. “That wouldn’t work!” “How could a 21st century superpower operate under such rules?”

                    The other asks what the evidence indicates the clause in question was actually intended to mean.

                    You see these two types of questions, because one faction is devoted to the idea that the Constitution has to mean something (they personally think) workable/good, and the other faction is devoted to the idea that the Constitution has an objective meaning independent of whether that meaning is a good idea.

                    It’s a fundamental disagreement over what judges are supposed to be doing.

                    1. You have two (or more) groups of people who each have an idea of what the Constitution means. They each bring their own interpretations along with them when they complain about whatever it is the other side is doing. Both like to pretend that their interpretation is the only one possible, therefore the other side(s) are all acting in poor faith.

              2. It might make more sense if we envisioned Congress much differently. Right now, individual members have small staffs and committees have relatively small staffs. To the are geared towards investigating issues broadly and generating broad policy proposals in response. There are some bodies like the GAO, Library of Congress and the Congressional Research Service that take more in-depth study of things.

                But if Congress wanted to, it could vastly expand its technical abilities by vastly increasing its staff. For instance, The Senate Environment Committee could have the scientists and analysts the EPA would use to figure out the specifics of emissions limitations, present reports and draft statutes to Congress and then debate and pass them. There could even be Congressional labs.

                Congress might not read or understand everything they’re doing, but the same issue is probably true of the political heads of the agencies. And the same is true now even with the broad statutes.

                Of course, this will lead to the same “big government” criticism that is really at the heart of things. As Squirrelloid‘s last point indicates non-delegation is often more of a cover for the complaint that government shouldn’t be passing laws at all. The great thing about that critique though, is that it’s made from the comfortable position of living in a world where they won’t ever have to experience what that would be like.

                1. Note that this wouldn’t even necessarily increase the size of government. It would merely transfer the regulation-writing side of the staff from the Executive branch to the Legislative branch.

                  (Unfortunately, it wouldn’t decrease the size of government, but hey, one problem at a time.)

                2. I wouldn’t say ‘not passing laws at all’, but ‘passing a lot fewer’. The world would be a lot better if the government did less.

                  That said, even if it just resulted in more of the bureaucracy being under the legislature rather than the executive, this would be a vastly superior result.

                  1. Congress would have to vote on the specifics, which puts votes on the record and ties responsibility to the congress people.

                  2. Changes to the law require actual votes in congress.

                  3. Less legal deference to the executive. Agencies enforcing the law would not be the same people as the people writing the law, so there’d be less need to defer to them. And there’d be a separate body of experts responsible for the contents of the laws to whom any deference should be owed.

                  4. Rather than a unitary executive, who can appoint people favorable to him and his policies to head agencies that effectively write the legal code, you’d have to get enough of congress to agree to any change or addition. Reduces the power of the president’s pen and executive orders.

                  5. Probably less overall regulation, because a single congress will accomplish less than a plethora of individual agencies each pursuing their own agenda and none of them needing to go through a fractious process of voting. (And that’s definitely of benefit to the average person, who cannot reasonably be expected to know even what all the possible crimes are under the law today, much less the full breadth of regulation).

                  6. We’ll know what congress is actually voting on, rather than having to guess how general statements will be interpreted and implemented by administrative agencies. ie, no doing things like potentially hiding anti-encryption statutes in liability laws related to the internet.

              3. air pollutants/
                Yes. They’re welcome to consult experts to help them write the laws, but the laws they vote on should have those specifics in them. And if they miss an air pollutant, they should amend said law as necessary.

                Research/
                This is very much not a case of administrators writing laws. It’s acceptable (as a matter of the structure of the law, not necessarily principle) for Congress to provide a pot of money to be dispersed and a method for dispersing that pot of money. The method is the law, in this case, and whatever agency administers it is not writing new law when it adheres to the method (and would be behaving unlawfully if it deviated from the method).

            2. Good think the Administrative Procedures Act keeps that from happening, Squirrelloid.

              1. Except it doesn’t…

                1. Uhh, rulemaking and adjudication are handled by different bodies.

                  If you’re going to shoot your mouth out about how awful things are, you should really study up on how things are first.

                  1. Which is why we have deference doctrines that defer to agency interpretations of the laws they get to enforce?

                    Or the structure of the EARN IT Act, where the attorney general gets to define what websites have to follow as best practices to immunize them from prosecution from the very same attorney general and his prosecutors?

                    And it doesn’t really matter if there’s some nominal separation between executive agencies if they all ultimately report to the same person (ie, the president). If they were truly independent and with separate elected officials heading them, it would be a different story, but they’re not.

          2. “So Congress can’t establish an agency to deal with the specifics of its statutes? That’s ridiculous.”

            Congress is objectively authorized by the Constitution to create courts inferior to the Supreme one.

      2. It can have that authority by the simple expedient of changing the statutory authority of an agency. And the reason why it should have that authority is because it is Congress and has power to make the statutes.

        It can require that Congress ratify proposed regulations before they take effect. And it could pass a routine pro forma ratification act every month or every year, with procedures to carve out exceptions for proposed regulations an appropriate fraction of congress finds controversial and put them on a slower track for individual consideration. There could be an exception for emergency regulations that last only until the next ratification bill unless Congress then ratifies them. If Congress puts them on the slow track, they will automatically expire before it decides whether to make them permanent.

        This could all be done very straightforwardly, without any real change to the way things are currently done the vast majority of the time for the vast majority of regulations.

        1. Of course it can change the statutory authority. It can even invalidate a particular regulation. But if it doesn’t have the votes to do that, why should it be able to change a statutorily authorized regulation without the votes?

          In effect, that lets a minority of Congress repeal or modify a statuite that is in place.

    2. It’d be very easy. Every month, or maybe every year, Congress puts a pro-forma law on its calendar ratifying all administratively final regulations put on the federal registrar in the previous month or year. One could add a procedure for carving out exceptions, things that, by petition of some appropriate minority but sizable fraction of congress, get taken off the pro forma ratification and get put on a slower track for for individual consideration.

      It wouldn’t be hard to do. You could still call them regulations rather than statutes.

      1. I’ll tell you how that would work out. You’d get some Senator who demanded that unless his pet project got funded, he’d filibuster the regulation act. Then, the next year, there’s be two Senator Powerplays threatening to monkey-wrench the system unless they got their nutty pet project funded. Then, the year after that, there’d be 100 Senators taking the opportunity to push their agenda.

        Mitch is licking his chops hoping for this kind of monkey-wrench power. Its way easier to threaten to monkey-wrench things than it is to carefully craft legislation that can get 60 Senators onboard. Mr. McConnell doesn’t like to actually work.

  5. From the review:

    Epstein confesses that when he began the book he did not consider himself “a true expert on the many wrinkles and interstices” of federal administrative law, and at times it shows, as when he overlooks important nuances in case holdings or history, or makes cavalier statements about the operation of regulatory programs or specific facts on the ground.

    Noting that “ordinary human beings exhale” enough carbon dioxide to be regulated under the Clean Air Act would be a fun rhetorical point if only it were true. It’s not. In making the claim Epstein simultaneously overstates individual emissions and understates the relevant legal threshold, either of which would have been quick and easy to check. Such careless episodes are unfortunate, for they mar what is often a powerfully provocative book containing insights that can enrich the debate over the role of the administrative state.

    Richard Epstein talking out his ass? Say it ain’t so.

    1. Blowing CO2 out it!

      1. So it’s not just the cows?

  6. The Moral is the enemy of the Practical.

  7. So, when Congress delegates broadly, it leaves it to the agencies to figure out what their scope is, and for the courts to second-guess the boundaries between setting policy and using discretion in administering policy. We need some amount of Administrative state, but the courts aren’t really qualified to insert their wisdom on technical policies, so we argue interminably of the boundaries. But if, in the end, an agency is essentially out-of-hand, and promulgating inappropriate regulations, the courts will never be quick enough to rein in the unruly. The court system isn’t designed for this, even if the APA implies that it should be.

    Time Out! Sunset! In Texas, and in some other states, we have Sunset. Pretty much every agency created by the Legislature, including some local and regional authorities authorized by it, is subject to periodic review. Mostly on a 12 year cycle. The Sunset Commission is an agency of the Legislature (federal analogy would be Governmental Accountability Office). Basically, in the legislation authorizing any agency, there is a provision that it must be reviewed again sometime on the horizon, and the future recommendations of the Sunset Commission have the force of law. And if the Sunset Commission deems that an agency is not working as intended, or that its purpose is no longer appropriate, it is abolished or restructured according to the recommendations of the commission, unless the legislature explicitly does otherwise.

    And it pretty much works the way it’s intended. Agencies do get trimmed and restructured. And an interesting point is that is the Sunset Commission and the processes are not set by the Constitution; they were created by the legislature, self-imposed. But in effect, since the legislature is forcing itself to recheck the authorities it has granted, they are preserving their own authority against inertia and runaway bureaucratic expansion. It’s in their own interest that they should oversee more closely more of the administrative law, and not leave it to the courts. (Well, after all, since in Texas, judges are elected, why would the legislature trust them any more than it trusts itself?)

    1. The Sunset Commission is an agency of the Legislature (federal analogy would be Governmental Accountability Office). Basically, in the legislation authorizing any agency, there is a provision that it must be reviewed again sometime on the horizon, and the future recommendations of the Sunset Commission have the force of law.

      Holy crap! Years ago, after I first read the Airport Noise and Capacity Act, I imagined that somewhere there must be a Lobbyists’ Hall of Fame, and right in the entry hall, on a pedestal, bathed in soft, flattering light, there would be a copy of the ANaCA.

      For years, I held that act of Congress to be the supreme example of the lobbyist’s art, never to be surpassed. But that Texas sunset provision gives me pause.

      Really? The recommendations of the Sunset Commission have the force of law? Physicists have pronounced the strong force to be the most powerful in the universe. That, “force of law,” provision must emit a power to draw lobbyists which for pure attractive energy tops even the strong force.

    2. This sounds like one of those ideas that sound great in theory but wouldn’t work like they were expected to. Like setting a ceiling on national debt was supposed to make the government stop and think about how much it was borrowing to fund its operations, but instead turned out to be yet another lever that could be pulled to get pork-barrel spending approved. (“Fund the museum of Farming in my state or I vote ‘no’ on increasing the debt ceiling!”)

  8. The link doesn’t work for me. From the bit I can see, I can only guess what the argument is. My guess, there is something going on with rationalism. Maybe the lawyers are arguing that predictability in the law needs a rational foundation, so laws which aren’t part of a rational framework—as judged by courts—are also not moral.

    Have I got it wrong? Reason I ask is because rationalism in politics has not been a great success.

  9. Richard Epstein has had a long and distinguished career, and has written some brilliant books, many of which I have read. Unfortunately, there are some things one does that must make one persona non grata, intellectually speaking. Fraud is one of them.

    On March 16, Epstein predicted that the death toll from coronavirus would result in 500 deaths in the U.S. As that quickly looked more and more foolish, on March 24 he put up an errata message, saying that it was just a silly math error on his part, that he moved a decimal place, and that he had meant to say 5,000 rather than 500. Sure, that made him look foolish, but one can get past that. He also had a tantrum when doing an interview about it. Sure, that made him look bad, but one can get past that. He said some scientifically illiterate things about viruses in that essay, but, hey, one can even get past that.

    However, as the death toll blew far past 5,000 in late April, he then rewrote that March 24 errata message (without telling anyone) to make it look like he had originally said 5,000, and that he had actually meant 50,000. That’s inexcusable.

    To be clear: he didn’t write a new essay or add a new correction. He just pretended that his original essay had said 5,000 and that his real prediction was 50,000.

    1. Yes. Inexcusable.

      Even the initial correction (I think it was to 2500-5000) was bad – possibly a lie. Since, IIRC, Epstein had not provided the details of his calculations – surely a bright red flag – it was impossible to know.

      The thing is, that Epstein had an alternative. He could have just said, “You know, I was badly wrong about that. My assumptions and the theory I was basing my conclusions on just don’t hold up.”

      That would not have put a nick in his reputation.

      Hubris.

  10. I don’t think an autocracy – an absolute monarchy, say, or an absolute Supreme Court free to impose its own wishes and visions on the public – is inherently immoral as long as it came to power legitimately. Morality addresses what those in power due. It doesn’t address how they came to power except ghat usurpation, force and fraud, have moral comsequences.

    Compared to rule by a Supreme Court, rile by administrative decision is trivial.

    I don’t think a number of aspects of the administrative state are even constitutional, and most problems can be, in my view, fairly easily resume.

    Congress could simply pass a statufe periodically ratifying proposed regulations. Administrative decision-makinv for individuals could be more clearly desgnated as legislative courts with clearer procedures, time limits for decision making, amd rights of appeal to the judiciary on matters where staturory rights are involved. And the judiciary could give them deference only on genuinely expertise or genuinely political/policy questions, not on legal questions like interpretations of statutes.

    But with a few modest and not terribly intrusive reforms, I think nearly all of the current administrative state could be put on a footing that addresses the constitutional questioms.

  11. “Fuller’s steely insistence on legal coherence, clarity, and consistency, coupled with his strong condemnation of retroactive laws, does not mesh with modern administrative law.”

    This seems to be more a crtiticism of administrative law is practiced than of the concept itself. Or does Epstein claim that laws pssed by Congress are always coherent, clear, and consistent? That’s quite a claim.

    It’s not clear to me what his point about retroactivity is, exactly.

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