Last week’s Liberty Forum exchange between Joe Postell, Gary Lawson, and Mark Seidenfeld on courts and the administrative state is an early, thought-provoking contribution to a large-ish debate that we should and, I hope, will have. It raises a basic question especially for those who (like Joe) argue for a more muscular, less deferential judicial role in the administrative state: what exactly do we want courts to do?
Joe Postell, Mark Seidenfeld writes, wants to mobilize courts for libertarian values—a smaller, more limited government. To the extent that this is in fact Joe’s position, Mark’s central objection is right: that can’t be the role of the courts, either as a normative matter (the size of government is, presumably, a political decision, within constitutional bounds) nor even as a conceptual matter. Joe celebrates F.A. Hayek’s embrace of the German Rechtsstaat and its independent administrative courts as a model. There is indeed much to like about that model (more in a sec). But it has nothing to do with small government. It has to do with lawful government—which can be very, very big. For proof, see Germany.
As it turns out, even the idea of lawful government is deeply ambiguous so far as the role of courts is concerned—far more ambiguous than Hayek, for one, lets on in his Rechtsstaat ruminations.
Put yourself in the shoes of a German bourgeois in or under a constitutional monarchy, anno 1860 or thereabouts: what do you want? Remain secure in your possessions, presumably. To that end, you need a parliament that controls the purse, and you need independent courts that protect your rights, especially your business and property. That model had potent defenders (and was institutionalized) in areas with a strong liberal tradition, especially the German Southwest.
It’s a good way of protecting spheres of private autonomy. It is not a good way of ensuring the legality, regularity, or (per Mark Seidenfeld) the transparency and rationality of administrative conduct. That’s because administrative bodies can and do do an awful lot of corrupt, stupid, irregular, lawless, and arbitrary things without violating someone’s rights. Thus, if comprehensive judicial control of administrative legality is your objective, you have to disconnect judicial review from individual rights. In that case, though, you can no longer have independent courts with full-scale, de novo review: they’d end up running the country. Instead, you have to tie the courts to the administration and throttle back on what we call their standard of review. That, in a nutshell was the Prussian model of the Rechtsstaat.
In Weimar, the individual rights model and the legality model existed side by side in separate jurisdictions. But there was never any confusion in anyone’s mind that the models are incompatible.
The Bundesrepublik unequivocally, resolutely opted for the individual rights model: independent, full-scale judicial review. Unlike our APA, German law regulates the administrative process in one statute (the Verwaltungsverfahrensgesetz) and judicial review in another (the Verwaltungsgerichtsordnung, or VwGO). The process (“Verfahren”) is to serve public interests (the agency’s), not private parties: except for the direct targets of administrative action (who must be given an opportunity to object), the bureaucracy may or may not hear from affected parties, by and large as it sees fit. In court, you get full-blown, de novo review on questions of law and fact: the court must find the facts” von Amts wegen” (meaning it’s not discretionary), and it isn’t bound by the record or the parties’ submissions (VwGO Sec. 86(1)). To avail himself of that protection, though, the plaintiff must (a) first contest the adverse administrative decision within the bureaucracy (the so-called Vorverfahren, governed by the VwGO) and (b) credibly show that he has been “violated in his rights”(VwGO Sec. 42(2)). And that had better be an actual right. The lost opportunity to observe polar bears doesn’t count. Dirty air and heavy breathing don’t count. Lost educational or job opportunities don’t count. And if the government fails to implement or unduly delays the enforcement of some statute, or violates its own procedures, or fails to entertain objections from “concerned citizens” or to produce some impact statement, that doesn’t count either.
None of it, the Krauts believe, must count if the protection of individual rights by independent courts is to survive. In the 1970s, some jurists tried to import the “Reformation of American Administrative Law” into Germany. Citizen suits, expanded administrative procedures, and “hard look review” on behalf of somehow “affected” parties, they argued, would open up encrusted bureaucracies, counteract their “capture,” and spur government to protect public values. Great, said the legal establishment and the courts. We don’t know what the Americans are thinking, but to us this looks like Nazi jurisprudence. (It is in fact the case that what we call “citizen suits” were permitted by the Nazis, but no other German regime.) Public matters belong to the democratic process; private rights are the courts’ business. Never the twain shall meet: once you have courts enforcing public values, rights become just one more factor in the over-all balance. Been there. Done that, and it didn’t end well. Not again.
(There’s a tedious law review article on the Nazi connection and on the legal technicalities: Greve, “The Non-Reformation of German Administrative Law,” 22 Cornell Int’l L. J. 197 (1989). If you google the title, you’ll find more in that vein.)
If all this is conceptually and institutionally right, as I believe it is, what follows? In the 1970s, we mobilized the courts (or they mobilized themselves) to promote public values: come on in, dear radio listeners and enviros. We’ll give you procedures and hard look, the better to counteract agency capture and to promote transparency and reasoned deliberation. And without question, that has come at the price of individual rights and private production. We have opened the administrative process and the courts to the defenders of the spotted owl—who have no right at stake except (as Jeremy Rabkin has put it someplace) a kind of property right to participate in the exercise of government power. As for the owners of the actual property that the spotted owl wishes to inhabit, they, too, get process and reasoned deliberation—but no more: before we take your property, let’s talk.
Within these bizarre parameters, the brawl over judicial “deference” and “standards of review” comes down to a calculus of who will own the agencies and courts respectively: we’re against hard look review by liberal judges against Republican deregulators, and for hard look review by conservative judges against out-of-control Obamacrats. Or vice versa. (For confirmation, re-read the Liberty Forum exchange. Or for that matter consider the trajectory of AdLaw over the past thirty years: we used to be for deference until we were against it.) This is jurisprudential quicksand and, for rule-of-law types, a sucker’s game. What you’d have to do instead is to restore the logic of private orderings that our administrative law so carefully and deliberately compromises.
That’s no easy task—not only because it is water under the bridge; not only because conservatives and libertarians have long embraced the progressive paradigm of government “transparency” and made-up rights (such as the “right to receive information,” under FOIA or in private markets), which they will be loath to surrender; but also for a deeper, structural reason. The individual rights model presupposes some viable mechanism other than judicial review to ensure, on a reasonably systematic basis, the lawfulness and regularity of administrative conduct. A parliamentary system, for example. (You won’t have much unguided discretion in a system in which the bureaucracy itself writes the law.) A highly professional civil service without political appointees, for another example.
(Like Germany’s. True and illustrative story: my late grandmother got her driver’s license in 1929, promptly backed the family car into a hydrant and was told my late grandfather, whose views on gender equality are charitably described as pre-modern, that she’d never drive a car again. So she didn’t. In 1979, after five decades that brought the collapse of the Weimar Republic, the Nazis, World War II, and other minor distractions, Frau Emma Greve received a suitable-for-framing certificate from the Ministry of Transportation, congratulating her on fifty years of accident-free driving. That, ladies and gentlemen, is administration. The Illinois DMV is not.)
We don’t and can’t have any of that. What we do have is a Constitution; and one way or another, the most promising avenue is to re-constitutionalize the administrative state. That requires doctrines outside the domain of administrative law. Joe Postell suggests, and Gary Lawson embraces, the idea of mowing down government immunities against damage judgments for unlawful and injurious conduct. That’s not part of the Rechtsstaat picture (except in what we call takings and contract cases—which are outside the VwGO—you generally can get injunctive and mandamus relief but no money except your litigation costs, provided you win). But it’s been a part of our tradition—and perhaps a part that, among others, is worth revisiting.