Harvard Law School’s dynamic AdLaw duo (Cass R. Sunstein and Adrian Vermeule) has struck again. In The New Coke: On the Plural Aims of Administrative Law the authors take aim at the insurgent
fundamental assault on the legitimacy of the administrative state, under the banner of “the separation of powers.” The challenge is playing a growing role in separate [Supreme Court] opinions, and on occasion, it finds its way into majority opinions as well. Justice Clarence Thomas is the principal advocate, but he has been joined, on prominent occasions, by Justice Antonin Scalia and sometimes by Justices Samuel Alito and Chief Justice John Roberts, all of whom have shown significant concern about what they see as the constitutionally questionable discretionary authority wielded by contemporary administrative agencies.
The principal academic purveyor off this stuff is Columbia Law School Professor Philip Hamburger, an occasional contributor to this site. He has celebrated the British common lawyers’—Sir Edward Coke’s—resistance to the Stuarts’ claims to royal “prerogative.” Administrative Law rests on that same prerogative, Professor Hamburger argues. The Constitution resists it, and so should we. Hence, the “New Coke.” (It’s usually pronounced “cook” but the authors have a flippant footnote reply.)
Justice Thomas has embraced some of those arguments, and his “Hamburgerism fits well with the New Coke. Both are distasteful innovations.” Mercifully, however, the big AdLaw decisions of the past Term—Perez v. Mortgage Bankers Association and Department of Transportation v. Association of American Railroads–indicate that a majority of justices have little taste for the concoction. For now, “the center holds.”
“Taken seriously,” the authors observe, “the New Coke vision stands opposed to the APA. It brands the accommodation of the administrative state as fundamentally wrong.” But maybe it shouldn’t be taken serious, at least not as an intellectual proposition. The New Coke isn’t about originalist constitutional concerns or “dubious stories” about British history. It is movement politics, the way Roe v. Wade and Obergefell are movement politics. What drives the movement is an inordinate fear of government abuse—“phantasmal terrors” or (as Adrian Vermeule and Eric Posner have called it in their encomia to a “Schmittian” state) “tyrannophobia.”
Grudgingly, the authors concede that even the paranoid may have enemies and that the Constitution kind of, sort of reflects a distrust of unchecked power.
But the U.S. constitutional order in general, and administrative law in particular, attend to other goals and risks as well, and do not take abuse-prevention on the part of the executive as the overriding goal or master principle. Executive abuses are not to be strictly minimized, either as a matter of original understanding or optimal institutional design. Instead, public law in effect trades off the risks of executive abuse against other goals and commitments, including the rationality of policymaking, democratic participation and political accountability, and the promotion of overall welfare – often by means of executive action from public officials, who sometimes display constitutionally legitimate “energy”. In the service of these goals, the Constitution and the administrative state attempt to channel and constrain rather than eliminate or minimize executive discretion. [Footnotes omitted]
Two things are instructive about this pablum. One is the authors’ vision of the Constitution as “analogous to the APA” and of both as a seamless web of “public law.” (Both, you see, are “a compromise, a balance among competing values and views.”) Really? The architects of the administrative state railed against our archaic, outmoded, formalistic Constitution ‘til administrative kingdom come. Evidently, they could have saved themselves the trouble: it’s all of one piece.
The other instructive feature of the Sunstein-Vermeule universe is the fanciful nature of their “balance.” I cheerfully grant Professor Vermeule that the optimal rate of executive abuse is not zero—just as the optimal rate of rape is not zero, and for the same reason (excessive costs of prevention). But the trade-off should give us something of value in return. What Sunstein and Vermeule put on offer is a menu of abstract “goals and commitments”—rational policy, democratic participation, accountability, overall welfare.
Never mind “goals”: in real life, the administrative state is a flaming disaster in all those dimensions. I’m prepared to argue that its performance would be enhanced by the “New Coke” prescriptions that Sunstein and Vermeule so strenuously resist. (Conversely, what they propose is the joint minimization of compatible goals.) Even if I’m wrong about that, much would be gained if the authors were to engage the Coke war with the administrative state we have—the one Cass Sunstein ran for four miserable years. That would be a debate worth having.