Administrative Law, in Full View and Flux
The questions surrounding the administrative state and its law are really big. They are institutional and constitutional, and they demand rigorous thought and engagement outside the Chevron box.
If that’s your view, do I have a reading recommendation for you: the first volume of the 2017 George Mason Law Review, capably edited by Katie Smithgall and Mackenzi Siebert (former students and now proud graduates of the Antonin Scalia Law School). The collected essays examine administrative law in Germany, Britain, and the European Union (alongside ours), and they discuss central banks and other outfits you wouldn’t, but should, think of as administrative agencies. My introduction to the volume tries to provide something of an overarching view.
The topic of today’s lengthy post is the volume’s contribution by Robert R. Gasaway and Ashley C. Parrish. “Administrative Law in Flux: An Opportunity for Constitutional Reassessment” is a bold, bracing effort to rethink administrative law both pragmatically and from the constitutional ground up. I can’t hope to do justice to this splendid piece and, in particular, the authors’ deep jurisprudential framework; too much would get lost in translation. Instead, I’ll attempt to convey the general thrust and to place the article in the context of the contemporary AdLaw debate.
Start with a paradox, or at least a perplexity: the authors are practicing, highly successful appellate lawyers at Kirkland and Ellis LLP and King and Spalding LLP, respectively. The inertia and incentives that come with that profession might easily have produced a plea to move a few toy trucks in the Chevron sandbox. Instead, the authors insist on digging deep—all the way down to the Constitution and even beneath it. At the same time and conversely, the notion administrative law needs any kind of reassessment, constitutional or otherwise, is bound to meet with resistance from an academic profession that, while getting paid to ask deep questions, insists that all’s well inside the play pen, provided you arrange the toys just so.
Perhaps you have to practice this stuff to recognize the absurdity. According to Messrs. Gasaway and Parrish, the current practice of judicial review—focused as it is on the “reasonableness” of agency actions—is the jurisprudential equivalent of drive-by shootings: when some judge gets sufficiently teed off, the agency goes down. Even if you’re a lot more relaxed about law than, say, Justice Thomas or Saint Thomas (Aquinas) or for that matter Philip Hamburger, you’ll find that hard to accept.
Sure, the authors concede:
If you doubt your ability to derive constitutional classifications; favor an expansive administrative state; and insist that public-rights determinations be judicially reviewable, [our inherited administrative regime] can appear constitutionally plausible. And if you find general agreement over what constitutes a “reasonable” executive procedural choice, policy selection, factual finding, or legal interpretation, it can be functionally workable.
Not quite up to a Greve standard in the snark department, but as close as respectable lawyers can come. The passage’s first sentence sums up the convictions and teachings of the AdLaw profession at Columbia, Harvard, and Georgetown. Its second sentence encapsulates the charming faith of the Henry Hart/Herbert Wechsler/Rodney King school of legal thought. Under that school of thought, if we can agree on who is most competent to settle some legal question (and the usual answer to that “institutional settlement” question is, “a competent administrator”), why can’t we all get along?
That second sentence also evokes, perhaps with an undertone of regret, the liberal-conservative consensus on regulatory reform, circa 1980. The Carter administration had removed some price-and-entry regulation, and the Reagan administration continued on that course; antitrust law moved in a sensible direction, with bipartisan support; and cost-benefit analysis was all the rage. If we can get the economics on transfer pricing right and keep the hacks in Congress on the sidelines, went the thinking at the AEI-Brookings Joint (!) Center on Regulation, we can build ourselves a really good electricity grid.
Or maybe not:
Today’s regime becomes constitutionally implausible once it is closely scrutinized. And it becomes functionally unworkable once there is no longer an elite consensus about what constitutes administrative “reasonableness.”
“Close scrutiny” has come in the form of noteworthy books, articles, and judicial opinions. Building on the accomplishments of “deep” constitutionalists (Hamburger) and formalist scholars (Caleb Nelson, Gary Lawson), Justice Clarence Thomas has blown the constitutional field wide open. At the same time, the technocratic consensus on administrative reasonableness has collapsed. In an atmosphere of pervasive distrust of administrative government, it would not matter in any event: when the “experts” all agree, the fix is in and it’s a pitchfork moment.
This confluence—the “starkly improvised quality” of our administrative law, coupled with intellectual ferment and political discontent—makes it both necessary and possible to reexamine and re-found the edifice, say the authors. That enterprise, they continue, must be grounded in constitutional principle, both because the supposedly pragmatic answers have exploded on all hands and, far more important, because that’s who we are. The Constitution is the foundation for our administrative state.
If that sounds like yet another throat-clearing in the originalist echo chamber, read on:
This turn toward principle must be built on more than the usual bromides about liberty, a separation of governmental powers, and close readings of constitutional texts. It must become common ground that, even as we revere accomplishments of the Founders and President Lincoln, we have a generational need to unpack, dissect, understand, and meaningfully advance those accomplishments. The Founders’ understandings, unelaborated, will no longer do. Their handiwork will survive intact only if it can be understood well enough to be substantively, logically—and apolitically—applied to circumstances unimaginable to them or us.
Could be a tad harsh (usual bromides?), but it’s surely meant as a wake-up call to the self-satisfied. What Messrs. Gasaway and Parrish mean (and say) is that conventional appeals to the Constitution, as conventionally interpreted, aren’t enough. As the academy has drifted leftward, the vital center has, with a few notable exceptions, remained oddly complacent. Gently but firmly, the authors pierce the complacency and steer toward something like McCulloch for our day. The Constitution is built to be “adapted to the various crises of human affairs,” as Chief Justice Marshall said in that celebrated 1819 case, but that doesn’t mean you get to make it up with every new crisis. It means that each crisis on your doorstep should prompt renewed thought about the Constitution’s deeper structure—its “logic” (the authors’ favored term) or “genius” (Marshall’s word for the same thing.)
So take a deep breath and a step back from this or that clause and take a long look at the larger Constitution, as enacted at the Founding and redeemed through the Civil War. As Messrs. Gasaway and Parrish write:
In our system, every legal ordering begins at a tolerably just common law baseline and then proceeds, if at all, to a statutory-law ordering that presumably is even more just than the baseline, precisely because it has been enacted in conformity with an integrated suite of meta-rules that establish government of, by, and for the whole people.
First comes the bedrock of private orderings; then comes the constitutional connection to the genius of republican government. Administrative law has to fit, and can fit, into that broader framework. It is not
a mechanism for achieving political ends or constraining the size of government. It is, rather, a tool for improving government at any scale by furthering both administrative efficiency and administrative integrity. . . . The ultimate ends of administrative law include ensuring fidelity to the commands of the sovereign demos, regularity in governing the demos, and the transparency to the demos of the nature and effects of the manifold activities government undertakes on its behalf. These logically interrelated aims—fidelity, regularity, transparency—are all presupposed by the idea that republican governments are accountable to their citizens. The concept of accountability serves as administrative law’s organizing principle.
What would that look like? The authors’ highly sophisticated jurisprudential/constitutional/ conceptual framework for understanding the relevant legal distinctions cashes out in a set of organizing rules that are less constraining than what you’d get from Hamburger or Lawson, but still pretty demanding. For example:
Congress may broadly delegate. But it may do so only if it expressly lays down a prohibitory provision addressed to the public; an empowering provision addressed to the executive; and a jurisdictional provision for the judiciary. Administrative power is made constitutionally available. But the power can be exercised only in ways that bolster the fidelity, regularity, and transparency of the executive’s decision making.
Further, the authors call for:
independent judicial identification and interpretation of applicable laws coupled with scrutiny of overall administrative judgments that varies in intensity, depending on the constitutional context in which administrative action has been taken. Under this approach, courts would make their own legal determinations without deference to an agency’s reading of the law [There goes Chevron.] But courts would decline to retrace the various administrative assessments and determinations underlying the application of the law to individual circumstances [Farewell, State Farm?]. Reviewing courts would instead assess the lawfulness of overall administrative actions, just as appellate courts review overall jury verdicts. Crucially, under this alternative regime, the intensity of judicial scrutiny would vary according to constitutionally grounded distinctions. And separation-of-powers principles (not due process principles) would be used to require judicially reviewable status determination in certain contexts—thus ensuring that agency determinations are structured to enable review, not strategically tailored to augment discretion. If reformed in this fashion, judicial review would test agency determinations based much more on legal distinctions in kind, much less on policy differences of degree.
The above passages suggest the contours of their project—but only imperfectly. Pace assorted lovers, dreamers, and schemers, we are not going to “deconstruct” the administrative state. The task is to identify some way of accommodating administrative government to constitutional government. And that means not some foul compromise, but a constitutionally grounded formula. This thought naturally brings to mind the last time the Supreme Court and the legal profession seriously attempted such an accommodation (roughly, the years between 1890 to 1940). To knowledgeable but casual observers, the Gasaway-Parrish project may look vaguely familiar, even revivalist.
It isn’t. The authors make clear that New Deal-era analogies are “not only unhelpful; too often, they affirmatively mislead.” The fundamental problem with jurists of the 1930s, in their view, is jurisprudential ignorance. In contrast to the Founders, it would be hard to find New Dealers or even anti-New Dealers fretting over deep constitutional questions. The authors insist that better jurisprudential understandings—those of the Founding and of President Lincoln—can and will beget better constitutional doctrines. They further insist that jurists of all stripes from the (pre-) New Deal era are simply not up to participating in today’s conversation.
At one level, this is manifestly right. The pro-New Deal literature of such scholars as James Landis, Walter Gellhorn, and Kenneth Culp Davis is now of no more than historical interest, and productive of a good-natured chuckle. Alas, the constitutional, rule-of-law camp back then was led by Roscoe Pound, likewise a certified blowhard. It was precisely that jurisprudential cluelessness that would later allow the New Dealers to proclaim their victory a triumph of reason over entrenched privilege.
That is an excellent and important point. But it renders yet more urgent the question of whether a theoretically compelling and politically neutral body of administrative law is indeed discoverable in the Constitution, and if so, whether it is discoverable by us.
The authors confront this head-on, and answer “yes”—not for any contingent reasons, but because, first, the principles of a coherent AdLaw are embedded in the Constitution (rightly understood); and second, no unconstitutional accommodation (or constitutional non-accommodation) will prove stable over the long run. Just as “separate but equal” had to give way to Brown v. Board, they write, so our improvised AdLaw must and will give way, for the same reasons: incongruence with American first principles, lack of constitutional foundation, practical unworkability, logical superficiality. Brown represented a logical advance as compared to Plessy—the Court grasping, however inarticulately, the idea of substantive equality as a supplement to formal equality. So too, administrative doctrines grounded in the Constitution would, if embraced, embody a similar logical advance and stable settlement as compared to today’s status quo. Such is the authors’ faith in the American Constitution that, according to them, “Predicting the future is easy, what’s impossible to say is how soon it will arrive.”
To hasten that future, they helpfully offer “seven principles for liberal reformation”—not abstract principles but judicial rules-of-thumb that are at some variance with, but still connected to, the existing corpus juris, that would push toward a more workable and constitutionally grounded AdLaw regime. However, they rightly reject the idea of heroic justices (and litigators). In an interminable stream of humdrum cases involving countless agencies and statutes and quirky questions, sheer complexity overwhelms any agenda-setting effort. Hence, the heavy lifting has got to be done by Congress, perhaps through what the authors call a “Core Administrative Procedure Act” or “CAPA” statute. And that endeavor would have to be informed and abetted, as was the 1946 APA, by an enlightened scholarly vanguard.
Such a reform agenda may seem contradictory, or futile, or both. Throughout, Messrs. Gasaway and Parrish insist on a revamping of administrative law that is not only based on the Constitution but also—what to them is the same thing—“politically neutral.” The authors are aware that it seems paradoxical to call for “politically neutral” legislation. But if I understand them correctly, “politically neutral” does not mean beyond controversy. (The only time I can think of when administrative law was non-controversial—in the sense of enjoying support across the spectrum—was the immediate post-APA era, and that peace was predicated on a wholly de-constitutionalized administrative law.) Rather, “political neutrality” refers in this context to a mimicking of the Constitution’s own foundational commitment, especially its decision to allow future generations as much leeway as possible in determining the shapes and contours of future political outcomes, including the size of government.
Let’s assume this is what they mean—would the academy entertain, perhaps at some point even converge upon, a program of this description? The prospect may seem highly unlikely. On one side would be clause-bound originalists, dictionary-toting textualists, and die-hard libertarians taking issue with the authors’ insistence on the deeper “logic” of the Constitution; their endeavor to harmonize it with administrative government; and their insistence that administrative law governs the procedures and forms but not the scope of government action. On the other side, the authors’ ostentatiously constitutionalist and conceptualist framework is bound to draw criticism—perhaps ridicule—from stubborn defenders of the status quo.
For all that, it’s conceivable that the profession might find common ground in the wake of sustained engagement with serious ideas of the sort here propounded.
After all, conservative orthodoxies have softened over the past decades, partly for political reasons (such as the imperative need to accommodate a right to gay marriage) but also for the Marshallian (and to my mind more persuasive) reason that you can’t read the Constitution as a municipal code for Dagny Taggart’s valley. That recognition, I think, has sunk in. For example, the principal originalist response to Richard Reinsch’s splendid “Liquidation” post was not that “We originalists want the Constitution dead and solid.” It was “We originalists want it liquid but not living and please give us space while we work out the meaning of that distinction.” Whatever originalism now means to mean or intends to mean or means to intend, it is sufficiently grown up and capacious to comprehend the project of Messrs. Gasaway and Parrish.
At the same time, some aspects of that “neutral” political project might command support from quarters that would hesitate to credit, much less embrace, the authors’ constitutional ambitions. To illustrate, recall their proposition:
The ultimate ends of administrative law include ensuring fidelity to the commands of the sovereign demos, regularity in governing the demos, and the transparency to the demos of the nature and effects of the manifold activities government undertakes on its behalf. These logically interrelated aims . . . are all presupposed by the idea that republican governments are accountable to their citizens. The concept of accountability serves as administrative law’s organizing principle. (Emphasis in original.)
Those same sentences could have been written by Harold Leventhal, Skelly Wright, David Bazelon, or their fellow judges on the D.C. Circuit, circa 1970. Those legal lions brought us “dynamic” statutory interpretation (the statute means what we judges imagine the current Congress might think it means); standing to sue for every law school clinic that claims to represent a one-eyed owl in distress; and elaborate “due process” protections for welfare benefits and other such gratuities. And the formative cases of that era ooze “accountability” and “regularity” and “transparency” in every sentence—the better to advance precisely the formless, democratized, interest-group-driven, de-constitutionalized administrative law that Messrs. Gasaway and Parrish mean to overcome.
To their minds, this congruity provides grounds for optimism; it points to at least a measure of consensus on a plane of what (misleadingly) are called “constitutional values,” even while differences remain as to the content and embodiment of those “values.” And again, any constitutional differences with 1970s administrative jurisprudence, however stark, are unlikely to trouble Messrs. Gasaway and Parrish; they would readily call these differences the byproducts of the naive constitutionalism of an earlier era. Even if “accountability” was a mere “bromide” in earlier decades, there is no reason it should remain so, say our authors, in times when the Constitution is taken more seriously.
It may be tempting to discount the hopeful perspective of “Administrative Law in Flux” as prompted by today’s miserable political, legal, and intellectual environment—things are so bad, the saying goes, they can only get better. But having known the authors for many a year, I am confident that they won’t make that mental error. Their mistake, if mistake it be, is not a lack of imagination but an abiding and profound constitutional faith. I’m equally confident that Rob and Ashley have anticipated most of the objections doubters might raise, even as they anticipated (although they have yet to fully dispel) my own questions and concerns. Enough for now, though: we will further sort this out at the Old Ebbitt Grill.