Administrative Law

Are Sunstein and Vermeule Offering a Defensive Crouch Administrativism?

My contribution to the online symposium on Sunstein & Vermeule's Law & Leviathan

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The Yale Journal on Regulation has just posted my contribution to the "Notice & Comment" blog symposium on Law & Leviathan by Cass Sunstein and Adrian Vermeule.  The other symposium contributions to the symposium may be found here.  I perviously blogged on the symposium here.

My contribution to the symposium is title "Defensive Crouch Administrativism." Here is a taste:

The administrative state is under siege. In Law & Leviathan: Redeeming the Administrative State, Professors Cass Sunstein and Adrian Vermeule attempt a rescue. In the face of a "fundamental assault" on the premises of administrative law—an assault so severe they deploy that description twice within the span of three pages—Sunstein and Vermeule seek to explain why administrative law, in operation, is fundamentally moral and sound. The heart of some modest critiques may be true, they concede, but the leviathan of the book's title is sufficiently constrained by law to preserve its moral legitimacy.

Rather than offer the full-throated defenses of the administrative state each has offered elsewhere, in Law & Leviathan Sunstein and Vermeule suggest administrative law has developed a set of "surrogate safeguards" that enable the administrative state to protect public welfare while preventing the worst abuses of bureaucratic excess. These safeguards do not derive from constitutional text, however, nor are they to be found in the Administrative Procedure Act (APA), but they are contained in administrative law doctrine as it has developed over the past 70 years. . . .

While situating the origins of such surrogate safeguards in the APA-era, when pointing to examples our authors sometimes focus on more recent doctrinal developments, including some they themselves opposed. As a consequence, parts of their argument seem to be something of a rearguard action, meant to preserve as much of the administrative state—and agency discretion—as can be salvaged in an age in which devotees of the New Coke may seem ascendant. Nowhere is this more clear than with their treatment of Auer deference, under which courts are obligated to defer to an agency's reasonable interpretation of its own ambiguous regulation.

You can read the whole thing here.  I will also have a longer review of their book in Regulation.

NEXT: Duty to Retreat and Duty to Comply with Demands

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  1. “All” is a first grade vocabulary word, as used in Article I Section 1. Yale, lawyer scumbags, big government advocacy. Dismissed. Why not have Congress enact the Federal Register and face the voters over their awful judgement?

    Because punishment is the sole tool of the law, and it is always a procedure on the body, all regulations should be proven safe and effective prior to being proposed. Do pilot studies to prove them in small jurisdictions. Work out the unintended consequences. Estimate the costs to everyone in a utilitarian analysis, not a reasonable analysis, a utilitarian analysis.

    Come on, lawyers. Get with the modern times.

  2. If I’m understanding the Sunstein defense, not only is no one directly democratically accountable for the administrative rules, but no one’s accountable for the “safeguards” either (at all since they’re unwritten).

    Sounds like a recipe for freedom.

  3. The heart of some modest critiques may be true, they concede, but the leviathan of the book’s title is sufficiently constrained by law to preserve its moral legitimacy.

    Just want to weigh in to discuss that use of, “Leviathan.” It is gratuitously confusing. Here, whatever the authors meant, it risks conflating willy-nilly a modern notion of a fulsome administrative state with nearly-opposite ideas advanced by Hobbes in his book by that title.

    The two uses have little in common. I get that the modern confusion is widely held, and probably a dominant impression in modern popular culture—Leviathan means big government. Perhaps today’s authors means to redeem their own use by arguing alongside Hobbes, but if so, modern audiences will not get the point. They see, Leviathan, they think, “Bureaucracy.”

    For starters, historical context for the original Leviathan, was the reign of Charles I of England, which featured almost no administrative state at all. Hobbes was not only not writing about big government, or about bureaucracy—notions for which his life and times provided little if any impetus—he was responding against social chaos which the resulting lack of order inflicted—and exacerbated, by encouraging opportunism among the privileged. Hobbes wrote with an eye to the fate of the most numerous victims—ordinary people with neither land nor a place in court to confer protection.

    You actually don’t even need to read the book to understand this. The theme is brilliantly summarized in the book’s famous frontispiece, a graphical creation of Hobbes himself, who then passed it on to a French artist to make an etching for publication. The graphical conceit shows an all-powerful sovereign, but on closer inspection with a body composed entirely of members of the ordinary populace.

    There is more to the book than that, of course, but it should be enough to put to rest any notion that Hobbes’ Leviathan was a mere celebration of big government as we understand that term today. For Hobbes, it was closer to an analytical account of the effects of ineffective state power, and its dislocations. The heart of the critique was the suffering that the resulting chaos and unchecked opportunism must inevitably inflict on ordinary people.

  4. “For starters, historical context for the original Leviathan, was the reign of Charles I of England, which featured almost no administrative state at all.”

    The original Leviathan was/is an enormous deep sea serpent/dragon of Jewish mythology.

    The Leviathan specifically is mentioned six times in the Tanakh, in Job 3:8, Job 40:15–41:26, Psalm 74:14, Psalm 104:26 and twice in Isaiah 27:1.

    Job 41:1–34 is dedicated to describing him in detail: “Behold, the hope of him is in vain; shall not one be cast down even at the sight of him?”[13] Included in God’s lengthy description of his indomitable creation is Leviathan’s fire-breathing ability, his impenetrable scales, and his overall indomitability in Job 41.In Psalm 104, God is praised for having made all things, including Leviathan, and in Isaiah 27:1, he is called the “tortuous serpent” who will be killed at the end of time.[10]

    The mention of the Tannins in the Genesis creation narrative[14] (translated as “great whales” in the King James Version),[15] in Job, and in the Psalm[16] do not describe them as harmful but as ocean creatures who are part of God’s creation. The element of competition between God and the sea monster and the use of Leviathan to describe the powerful enemies of Israel[17] may reflect the influence of the Mesopotamian and Canaanite legends or the contest in Egyptian mythology between the Apep snake and the sun god Ra. Alternatively, the removal of such competition may have reflected an attempt to naturalize Leviathan in a process that demoted it from deity to demon to monster.[18][19][page needed]

    1. In modern usage, leviathan is used mostly as a reference to something of enormous size and/or power.

    2. Matthew, a fair point. I considered it and decided it would take too much work to connect the biblical interpretation to Hobbes. Not that it wouldn’t be worth doing. Why don’t you take a crack at it.

      1. Why should I take a crack at it? What evidence do you have that the Leviathan reference in Law & Leviathan connects to Hobbes’ Leviathan rather than being a direct reference to the biblical Leviathan?

        1. You are serious? A modern political reference to Leviathan does not connect to Hobbes, but does connect to the Bible? Is it possible that you never heard of Hobbes’ Leviathan, and have no idea what I am talking about?

    3. Even earlier, Leviathan was the great chaos dragon whom God split in half, the bottom becoming land, and the top becoming the vault. This literally made Earth be a space in the great waters of chaos.

      God’s fight with Leviathan was (mostly but not completely) redacted in what was to become the Bible, but remnants remain, such as the mention of the fight itself, and that, as with Noah, we are in a pocket in waters. The Great Flood wasn’t just rain, but God “broke up the fonts below” and water came up from below, not just poured down through opened windows from above. The firmament really was firm.

  5. Someone ought to look into this further … it seems to me that a lot of constitutional law is based not on the constitution but on laws, and if those laws were not there, we would be forced to look at the constitution differently.

    For example, the there are a number of laws that vaive soverign immunity. If those laws don’t exist … wouldn’t we have to rethink a lot of the existing approach to remedies in the constitution? Even if we adopt originalist pretenses.

    A lot of judicial power is considered “inherent” in article III but suppose congress were to change the judiciary act.

    In Oil states the law was deemed constitutional in part because safeguards exist. But I doubt the court would have given the same green light to a law that allowed the president to cancel any patent for any reason, even though the exact same reasoning justifies both laws.

    Here, administrative law is defended because of those safeguards. Had they not exist … it would be very hard to justify any of this.

    I’m not saying its bad or good, its just … interesting. To give an somewhat poor analogy, it seems the US has its own version of Israels Basic Law system, where some laws have been around a while and thereby become foundational to how we interpret the constitution.

  6. At the beginning of the Republic, Plato said that if everyone was willing to live a simple life – hunt, gather berries, live in simple straw huts, sleep in the ground – none of what he was going to discuss in the rest of the book would be necessary. It is only because people refuse to live simply and in peace, want things, covet things, that the need for a state arises in the first place.

    Thus, in this sense, the whole concept of a state is immoral from the beginning. And everything true of a state would certainly be true of an administrative state. If we were all willing to live much simpler lives and make do with much less, life’s current complexity, and the social and governmental structures devised to manage that complexity, would all be completely unnecessary.

    Of course, if we returned to the primitive, prostine, virtuous hunter-gatherer society Plato described, then the earth would be able to support only a tiny fraction of the people who are alive today. Most people today are kept alive only through artificial technologies such as fire, agriculture, the wheel, and others, technologies that make life complex and bring in a need for administrative government that would otherwise be unnecessary. Perhaps life supported only by such artificial technology is not worth living, even immoral, and we should be willing to pull the plug, discard these luxurious technologies and the lives of most of us with them, and not try to cling to life in the way we currently do.

    But if we are not willing to do that, we will have to live with government more complex, and sometimes more overbearing, than it was in the simple, happy, virtuous days of our more unencumbered and enlightened ancestors.

    1. Your conclusion gets it entirely backwards.

      If we were all hunter-gatherers, the government (such as we had) could reasonably be in charge of everything, because the compass of “everything” would in fact be quite small.

      Hayek wrote quite eloquently of the inability to micromanage at a high level, as did others, and we ignore them to our great detriment.

      1. I love it when ideologues reference the “facts” of their ideology to chastise contrary arguments. It is sublimely daft to do that.

        1. The only appearance of the word “fact” in my statement refers to the should-be indisputable fact that hunter-gatherer society has less complexity than modern industrial/post-industrial societies.

          The rest of what I said is pure opinion, as anyone with even grade school reading skills should be able to ascertain.

      2. You are all wrong. The purpose of government is to get in the way to get paid to get back out of the way. That’s what history and most of the surface of the Earth tell us. They just have to hide it better in countries with a free press.

        The error people make is in the assumption corruption is a sad side effect of people trying to twist government to benefit themselves.

        No, that puts the cart before the horse. Politicians seek the power because corruption is how to do well for yourself and your family. It is the intended purpose of government. Government, working as designed.

        Proof: As mentioned, the entire surface of the Earth and all human history.

        1. It’s understandable that people don’t, generally, understand government to be nothing more than a highly evolved protection racket: The protection racket is running the schools as indoctrination centers, after all.

  7. Auer needs to go away and its entirety, nothing else is suitable for a free, self-governing people.

    In its place we need a Rule of Lenity for administrative law — any ambiguity needs to be automatically resolved in favor of the citizen, not of the government.

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