Is Nationalism really a unique construction of Protestant theology as Yoram Hazony claims?
With gratitude for Law & Liberty’s forum on the Administrative Procedure Act’s 75th anniversary, this essay kicks off what should be a weighty, wide-ranging discussion. The issues of the hour may represent the most important aspect of the politicized constellation of issues that consume our times; namely, the administrative dimension of the collapse, over the past twenty-five years or so, of what former senator James L. Buckley calls “America’s traditional constitutional morality.” There can be no more urgent task than partially redressing this collapse by restoring an American culture of fair administration.
I start the ball rolling with this table-setting overview. But the issues of concern are far-reaching enough that they resist compression into one essay. With much help from distinguished commenters, a conversation will follow—one we hope will entice venturesome non-lawyers to engage these nation-rending issues. Our goal is to make accessible the gravamen of elaborately articulated, deeply entrenched positions by using a variant of the ancient dialogic method for investigating questions of first principle.
This essay begins by explaining why conventional approaches to legal reform, such as targeted amendments to the APA or other statutes, are inadequate for the problems we face. It then describes in short compass, and hopefully in sympathetic terms, the essential beliefs of our two clashing and contesting administrative camps, which for present purposes we call New Dealers and post-New Dealers. It contends both sides make telling points. It then chooses one side—that of the post-New Dealers—while explaining that, although the future lies with these ardent New Deal critics, the resolution of the clash we endure can occur only on terms different from anyone’s current thinking.
Again, precisely because it synthesizes both ends of a deep and raging controversy, the reforms proposed here cannot be elaborated in all their fulsome glory. They have, we trust, been more completely spelled out in a law review article and our suggested APA amendments.
No Simple Task
Asked to propose or predict developments for some body of law, one might begin by identifying pressing and manifest problems and then framing targeted cures for those problems. Such an approach is almost useless in the context of the breakdown of today’s administrative state.
The most severe maladies afflicting our administrative state today are those of executive unilateralism and regulated parties’ fears of retaliation. Executive unilateralism is the practice whereby executive officials, including but not limited to the President, announce and implement sweeping policy changes before they are embodied in regular administrative processes, such as agency regulations or adjudicative proceedings, and approved by a court of law. Closely related to the affliction of unilateralism is the chronic syndrome of regulated parties’ fears of agency retaliation. In the eyes of the regulated, officials prepared to bend or break the law to impose favored policies are unlikely to embrace law-bound evenhandedness when confronted with opposition to their initiatives.
As evidence of these maladies, consider the following paradox. Stated at a high level of generality, current law gives the Food and Drug Administration authority to license drugs and medical devices upon determining that the drug or device is safe and effective. Now, given the size of relevant markets, and consequent stakes in FDA approval decisions, one would expect an extensive body of federal jurisprudence addressing the primary question of whether particular drugs and devices are safe and effective or at a minimum the secondary question of how safety and effectiveness assessments should be conducted. In fact, no such body of well-developed caselaw exists.
One can, however, find a well-developed jurisprudence concerning the tertiary matter of whether safety-and-effectiveness determinations made by the FDA preempt similar determinations made under state tort law. How comes it that the peripheral is litigated more extensively than the central? Simply because regulated parties believe that contesting questions of safety and effectiveness (but not preemption) will incur the wrath of their overseers.
The upshot for present purposes is that administrative reform adequate to the occasion cannot take shape as targeted solutions for targeted problems. The reforms we seek must instead point toward some general remedy for the unilateralist and retaliatory mindsets that define administration in practically every high-stakes administrative contest today. And the search for this healing elixir must begin with first principles.
Pure New Deal
Professor Adrian Vermeule recently reacquainted academics with an essential point of logic that, owing mostly to Oliver Wendell Holmes, has been widely rejected by the legal profession.
As has been known since at least the seventeenth century: “Reason is the life of the law.” Or in Professor Vermeule’s preferred phrasing: the law “works itself pure” through case-specific assessments, criticisms, and resolutions.
Today’s administrative law is the culmination of jurisprudential thinking that gained an upper hand in the New Deal, was embodied in the 1946 Administrative Procedure Act, and has since defined the administrative-law mainstream. Over the past 75 years, this New Deal approach has worked itself positively pellucid. Our administrative law is now so suffused with doctrinal coherence that it may practically be summed up in a sentence:
All civil-type executive action is presumptively reviewable (under the APA if not otherwise) upon instigation by an appropriately aggrieved party at an appropriate juncture, where such review consists of deferential quality-control by the judiciary to ensure proper factual support, policy choices, justifying explanations, deliberative procedures, and grounding in law.
Two aspects of this remarkable rationality merit special attention. First, its great virtue is that the administrative-law regime itself never offends our sense of justice. Quality-control judging puts judges, not law, at center stage and limits legal analysis to retracing and reevaluating executive work-product. If miscarriages of justice occur, they are attributed not to the law as such, but to human error—executives who should have chosen differently; judges who swallowed their whistles and failed to cry foul.
Second, a consequence of this virtue—its concomitant vice—is that current law fails to provide legal and logical structure for those within its aegis. When applying law consists of judgments by law-declarers about what does or does not qualify as reasonable, lawyers, judges, and executive officials can find it difficult to disentangle legal analysis from policy inclination.
Whenever, in a regime like ours, unilateralists appear and urge transformative executive action based on questionable legal authority, who’s to say such proposals are unlawful? Or else when regulated parties whisper reasonable fears of agency retaliation, how are such fears to be dispelled? Not easily under current law, for the accommodative flexibility of New Deal-inspired legal standards renders difficult any definitive pronouncements on lawfulness or unlawfulness. Instead, everything is a matter for gestalt judgment; everything a difference of degree.
Against this turbulent backdrop, there has emerged, thanks to work by Professor Gary Lawson, Professor Phillip Hamburger, Professor Caleb Nelson, and others, a new appreciation for the more well-defined administrative precepts that were ascendant in Anglo-American law from the earliest colonial times through the early twentieth century. The foremost judicial proponent of making use of these understandings is Justice Thomas.
Based on others’ scholarship and his own close readings of constitutional text and history, Justice Thomas calls for overhauling our received administrative law. Most significantly, Justice Thomas refuses to be bound by the precedential force of any demonstrably erroneous aspects of the past 75 years of administrative-law development. He rejects the most central precedent for chartering reviewing courts as quality-control specialists in administrative cases. And he has overcome New Dealers’ allergic reactions to weaving distinctions in kind into the law of administration. Addressing what perhaps is the most difficult of all administrative-law problems, Justice Thomas contends that delegations of power from the legislative branch to the executive ought to be evaluated more in “qualitative,” less in “quantitative,” terms. He therefore would abandon the longstanding test for the permissibility of such delegations, which in theory turns on fine distinctions of degree, but which in fact ends in judicial rubberstamping of whatever comes before the courts.
Critically, Justice Thomas is “prepared to accept” that his reading of the Constitution would “inhibit the government from acting with the speed and efficiency that Congress has sometimes found desirable.” He further contends that in “anticipating that result and accepting it,” he is in good company. Justice Thomas cites above all John Locke and explains that Locke “acknowledged that a legislative body ‘is usually too numerous, and so too slow for the dispatch requisite to execution.’ But he saw that as a benefit for legislation, for he believed that the creation of rules of private conduct should be an irregular and infrequent occurrence.”
We see here in stark relief the competing perspectives of the dominant strain of contemporary constitutionalism and that of the New Dealers they oppose. In the eyes of many constitutionalists, the past 75 years prove that the New Deal program of pragmatic administrative enablement and fine assessments of reasonableness tends naturally towards politicization and perhaps ultimately towards fears of administrative retaliation. Whereas, in the eyes of New Dealers, abandoning the flexibility of current doctrine would handcuff administration and perhaps return us to the seventeen century, just as rapid-response regulation becomes ever more necessary in a fast-changing world.
Then there are those few, we who, while landing on the side of the post-New Dealers’ constitutionalism, propose as the only possible way forward a jurisprudence of flexible distinctions in kind that is confirmed by but not ascertainable from the historical record. Such reforms would replace quality-control judging with applications of logically derived first principles that, we claim, emerge from the best readings of constitutional text as expounded by The Federalist.
The antidote we prescribe—thoroughgoing reform based on logic that can initially be discerned only with help from non-legal disciplines—is strong medicine. To find the needed logic lying latent in America’s own, existing constitution, a co-author and I adapted methods successfully employed a couple generations ago in the physical sciences. Confronted with a “particle zoo” of numerous subatomic species, physicists were able to account for this proliferation through just a few families of a limited number of particle types.
So too, we attempt to isolate the elemental constituents of administration in our form of republican government—modes of sovereign activity, forms of law, types of actions. We then employ these elements to define and classify primary types of proceedings in order to ground logically rigorous adaptations of old administrative vocabulary. We propose the resulting lexicon as a lingua franca for administrative scholarship and adjudication.
The concrete reforms that emerge resist encapsulation. But the broad notion is that administrative-law doctrine must naturally branch from a common source; that the doctrine’s uppermost levels must embody distinctions in kind; that these uppermost distinctions must all be significantly grounded in natural law as well as positively embedded in the Constitution.
The mandatory, first-level division called for by this approach is one between what we call “core” administration and administration that occurs in non-core or “exceptional” contexts. Core administration involves government conferring benefits on private parties. Core administration occurs in a limited number of well-defined varieties like grants of private rights (for instance, a pension or land-grant homestead); conferrals of public rights (a license to graze livestock on public lands, take timber from public forests, camp in a national park); and awards of regulatory licenses (an approval to operate a business). So too, non-core or exceptional administration occurs in distinct modes—relations between sovereigns, relations of command or wardenship—and each of these modes, too, is naturally subdivided into distinct varieties of administrative determinations. In this fashion, otherwise unmanageable inquiries are whittled down to size. Opportunities for politicization are reduced. And administrative lawyers and managers become unconsciously familiar with logical thought of the kind needed to fairly administer the law.
Now, if this sounds hopelessly impractical, overly ambitious, or just too good to be true, we beg to differ. To see how such reform might be accomplished, consider this manageable redline of the APA’s definitional and judicial-review provisions.
Once such amendments were enacted, a broad and binding reconciliation of natural law with the pen-and-ink Constitution would lie ready at hand for every administrative lawyer. When cases arose that turned on the meaning of distinctions used to accomplish this reconciliation, as they often would, counsel would reach for competitive advantage, delve deeper than their comfort level into the meaning of the new amendments, and wind up articulating some helpful (for their side) interpretation of some dispositive snippet of statutory language. Judges would then rule—one way or the other—thus honing this deeper layer of legal reason and bringing it to the attention of the profession. And so, thousands of lawyers and hundreds of academics would almost in spite of themselves come to understand the logical, historical, and constitutional grounding of natural-law distinctions that would otherwise escape their attention for years, perhaps decades, to come.
Restoring Constitutional Morality
Our reforms, while confirmed by historical evidence, do not emerge from that evidence. They contrast, then, not only with New Deal approaches that would abandon constitutional limitations in the pursuit of pragmatic benefits, but also with post-New Deal approaches that remain grounded in, and thus limited by, the historical record. To repeat, our reforms are grounded at the end of the day in logic we find latent in the existing Constitution as expounded by The Federalist.
A paramount reason for embracing the reforms, mentioned above, is the haunting admonition of our greatest living statesman, former senator James L. Buckley. According to Senator Buckley, “the ultimate challenge we face today” is the need to restore “America’s traditional constitutional morality.” Consider for a moment the likelihood of accomplishing this restoration on the basis of texts composed in the summer of 1787, while at the same time conceding, in Justice Thomas’s words, “the creation of rules of private conduct” might well be limited by those texts to “an irregular and infrequent occurrence.”
The stark reality is the difficulty of convincing the American citizenry, much less specialized lawyers and academics, of the wisdom of any constitution that demands handcuffing regulatory authorities in the circumstances we face today. When social change is lightning fast, expertise is highly technical, and the span between regulatory initiative and private-sector response can seem immediate, wouldn’t it be nice if there were some constitutional means for assuring regulatory neutrality and accountability without sacrificing effectiveness?
With much help from distinguished commenters, we hope this forum contributes to the achievement of such a synthesis.