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Administrative Law in Turmoil: New Coke Causes Indigestion

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.

Reader Discussion

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on September 09, 2015 at 11:29:21 am

In sum. The regulatory train must go on. Even if, despite budget overruns, Amtrak will not be there on time.

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Jimmy C
on September 09, 2015 at 13:26:35 pm

Their tactic, typically, is to dismiss serious scholarship that reaches a conclusion that they don't like as "extreme," an "innovation," etc. Easiest way to continue to hold power, they think, is to ensure that Hamburger's opinion does not become part of the general public discussion, particularly among lawyers and law profs.

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Richard S
on September 09, 2015 at 13:30:52 pm

P.S. Doesn't Sunstein understand that we have a living constitution, and that his ideas are out of date. He needs to catch up with the times . . .

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Richard S
on September 09, 2015 at 13:37:23 pm

For those of us who would not partake of what chef Sunstein serves up on a waffle, we may be grateful for Michael Greve's tasting.

The excerpted "syrup" conflates two forms of "States" (the Constitutional and the Administrative) as if they are one. While they are both embodiments of authority (derived not from imposition, but from consents and passive acceptances of those subject), they differ substantially in their origins in the "responses" of those consenting and becoming subject.

The Constitutional (U.S.) form, was in response to conditions preceding from around the 1720s (See, "Cato's Letters") up through the time of its ordination - and subsequently into at least the first quarter of the 19th century. The response involved establishing limiting principles for authority and for relationships in the exercises or uses of that authority.

While in the U.S. there are historical groundings in the centralizations required for the War Between The States as an "initial framework" for an Administrative State, the regional aggregations of "economic power," the increasing role of impersonal transactions in the distribution of goods and services (accompanied by dissatisfactions from the effects of impersonal factors on private lives), the hatching of a coterie European (chiefly German) influenced teachers and "intellectuals," immigrations with increasing mobility (geographic and social) led to acceptances of forms of authority to be applied to some (but not to all - anti-trust, e.g.). The opportunity to participate in "world affairs" (WW I) gave the growing coterie an opening to introduce further centralization, which did, indeed, become the frame work for demonstrating an Administrative State - in situ.

In those latter periods, particularly 1870 – 1919, those consenting or accepting the further embodiments of authority can be seen responding to concerns differing from those that shaped the form of the Constitution.

The Federal Administrative State of today coalesced around further authority accepted in response to broad concerns of individuals in coping with adverse conditions arising from increasingly impersonal economic and social relationships (things “out of anybody’s control”). That was entirely different from having concepts of where “the dangers lie” that shaped the Constitution. That has made it difficult to establish limiting principles for the authority embodied in the Administrative State.

Out of this authorization of an Administrative State to cope with issues that seemed to have slipped from the capacity of individuals, who have objectives, purposes and motives in choices, has come the passive acceptance (and use by some for their objectives) of a body of authority for a "Purposive State," which is now the nature of the Federal Administrative State. It is an incoherent body of authorities to be exercised for coherent purposes. We will not find those distinctions made by the defenders of the Administrative State.

After all that said, what is encouraging, is dawning recognition that the Administrative State needs be defended and the reasons for its existence and effects are not "self-evident." As the defenses begin to disclose the distinctions in the causes for embodiments of authority, we may begin to see where we have been looking for limiting principles - and where none can be found, to remove the authority.

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R Richard Schweitzer
on September 09, 2015 at 15:51:48 pm

Actually, the problem is simpler and more general than is discussed here (and elsewhere in this forum).

The Framers originally intended in the design of the Constitution to put the Senate and President above the fray of public democracy. They rejected the practice of having the general public elect office holders to either of those two offices. They placed the raucous, frothy, kid-gloves-off, free wheeling argumentation in the House. They wanted the senators and president to moderate the actions of the House; with the senators having more carefully considered debates.

Their design was good.

What we have in practice today is a Senate and President that are not only deeply involved in the democratic fray, but are primary drivers of it.

That is bad.

Pretty much all of the proposals reform I read in this forum, including the one above, suffer from the same basic flaw. They attempt to address the problems of government with work-arounds instead of addressing the core problem directly. The proposed work-arounds are temporary. They are made so by the "living" Constitution.

In a nutshell the "living" Constitution is the result of having the Senate and Executive deeply involved in the fray. Occasionally a crisis of some sort exists, and the democracy picks highly partisan Representatives, Senators and President. The President declares a mandate and uses the large majority in Congress to strongarm the Court into supporting government that is blatantly unconstitutional. The Court's rulings set precedent.

Reforms of the kind proposed here, or the "originalism" reforms discussed in other writings, are highly problematic. First, they can be undone the next time the fully enfrayed government has a crisis and can declare a mandate. Second, the existing politicians are deeply invested on past overreaches, so the existing politicians fight the reforms tooth and nail. Third, the system of government has come to operate around its unconstitutional foundations, which makes the practical consequences of reforms difficult.

Before attempting to implement any kind of reform that requires changes to the current form of government through impermanent changes in rules or interpretations, wouldn't it be wiser to fix the more fundamental problem at the source of it, the misimplementation of the Senate and Presidency?

If the misimplementation is not corrected first, the problems will just reappear eventually, assuming they can be corrected at all.

I would suggest that changing the way Senators and Presidents are selected so they are above the fray, as the Framer originally intended, is a more credible, substantive and realistic way to fix the problem. I suggest that it would be better to change the election process for those two offices so they are more moderate in character, and less a part of the democratic fray.

One good way to do this would be to make a simple tweak in the voting system so it brings the senators and presidents above the fray. Instead of using the populist voting method, which has been demonstrated to produce a highly partisan elected body, a moderating voting method would be used instead. One effective scheme would be a plus-one-minus-one system in which each voter gets a +1 vote for each office, and a -1 vote for the each office. All of the +1 and -1 votes get tallied for each candidate. The candidate with the highest score wins. (This is a simplified version of ranked voting that produces the virtually the same result, but is easier for simpler voters to use.) In this voting method the +1 votes bring the most desired candidates into the voting process, while the -1 votes keep the most undesirable candidates out, which creates a moderating effect.

Under the populist voting system the majority of voters get to choose the winning candidate, no matter how undesirable the candidate is to the minority of voters. The election of Barack Obama is one case in point.

Obama was at the same time one of the most loved and most hated US Presidents. The minority of people who did not vote for him held a great dispassion for him. As a US Senator, Obama was documented as being the most far-left member of the Senate. He had no practical experience to draw from as a potential President. His personal background was, to put it as politely as possible, very dubious and highly opaque. The Democratic party held the majority in the 2008 presidential election and could elect any Democrat it chose to. The Democratic party chose to elect the presidential candidate who was the most contrary to the desires of the minority of the American voting public, Barack Obama.

Under a plus-one-minus-one system, candidate Obama would have had little chance of gaining office. Most of the +1 votes for him would have been offset by the -1 votes from the people who disliked him. A more moderate candidate would have been elected, perhaps one with actual leadership experience and an honest history of life experience. A moderate President would enjoy greater support from the public and would be less politically and personally divisive. The more intelligent candidates who today would wisely choose to avoid stepping into the partisan fray would find the office more attractive.

President Obama under a populist vote could falsely claim an electoral public mandate; when in fact almost half the public severely disliked him and disagreed with his political agenda. A moderate President from a plus-one-minus-one system would be able to claim a mandate and always do so truthfully, given a high enough vote; and the mandate of a moderate President would be less divisive and controversial and better supported than the false mandates claimed by political extremists such as Obama. Because the presidential mandate has been studied and shown to be the primary driver of the "living" Constitution, a plus-one-minus-one system would assist greatly in subduing the beast and restoring the good original Constitution.

Under a plus-one-minus-one system the Electoral College would no longer be needed. Moderation, which the Framers were unable to implement through the oh-so-easily gamed democracy-by-proxy scheme, could finally be put into full effect while still allowing the general public the pleasure of casting the votes for the President. Senators would still be directly elected, but only moderate candidates would enter office. The public would be able to more easily remove untrusted or disliked politicians in the next election cycle, even when the majority of electors supported a bad office holder (think about that).

I anticipate that under such a system the senatorial and presidential candidates would over time not only be nonpartisan but they would intentionally try to keep the parties at arm's length. An endorsement from a party would attract a lot of -1 votes from the electors in a still partisan democracy, thereby hurting the candidate's chances for winning.

With a more moderate President and Congress in place far fewer extremists would be put into the Court, and the Court would be better able to reject the arm twisting of an enfrayed and "mandated" President, and rule on the science of law instead. The lawyers arguing the case would engage in the primary arguments in the debate, while the objective Justices ruled on the contents of the arguments, not whatever partisan political agenda they were embedded to support and were having their arms twisted to endorse. The "living" Constitution would die a long overdue death. The Framer's Constitution would come alive.

The concept makes sense to me. And if the approach of the proposed voting technique is flawed in some minor way, the general idea is still correct. The method of selecting presidents and senators must be changed so they are above the fray, as the Framers intended, not leaders in the fray like they are now. With reasonable and moderated government in place the multitude of governmental issues can be worked on and corrected in a sensible manner.

And those reforms would stick.

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Scott Amorian
on September 10, 2015 at 09:25:48 am

[…] Administrative Law in Turmoil: New Coke Causes Indigestion […]

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State Attorneys General Challenge the EPA’s Clean Power Plan - Freedom's Floodgates
on September 10, 2015 at 15:07:04 pm

And also, of course, the senators would have to have secret balloting to prevent them from being voted out by the electors for not being the extension of the democracy. Otherwise the Senate would be part of the democratic fray again.

And because politicians are guilty unless they have first proven themselves innocent, measures would be needed to protect the senators and the President from undue accusations. A neutral party would be needed to monitor and investigate the behaviors of the senators and presidents; and campaign donations would have to be anonymized to prevent accusations of bribery.

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Scott Amorian

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