Congrats to Rob Gasaway, my dear friend and fellow combatant, on a great and thought-provoking essay. I wholeheartedly embrace his plea to re-constitutionalize and re-conceptualize Administrative Law, as well as his subtle but unmistakable critique of a doctrinaire and intellectually lazy originalism.
Among Rob’s many excellent observations, one point bears special emphasis: it is astounding how little law there is to be had in administrative “law.” Consider, by way of example the canonical two-step analysis of Chevron v. NRDC (1984), the most-cited case in our history: when a statute is “unambiguous,” the courts will enforce it and hold the agency to it. When the statutory language is “ambiguous,” the courts will “defer” to the agency’s interpretation unless it’s manifestly crazy. Thus, on one side, the enterprise collapses into absurdly fine-grained statutory interpretation—because it is on “Chevron One,” the “unambiguous” language of an often-cryptic text, that cases are won or lost. On the other side, the inquiry becomes a matter, not of rules but of judicial deference “standards”: how hard can agencies push on the statutes (or that matter their own regulations) before a court blows the whistle?
In addition to Chevron, there are a half-dozen other deference “standards.” Those standards, Justice Frankfurter (a chief architect of the New Deal state) observed in a much-quoted opinion, express a “mood.” None of this is law in any meaningful sense. To explain the various moods to his Administrative Law students, Professor Gary Lawson plays music in class. For “hard look review,” which is what judges exercise when they get a bee in their bonnets, Gary plays Twisted Sister’s “We’re Not Gonna Take It.” For my own class, having read way too many of those cases, I have substituted the Ramones’s “I Wanna Be Sedated.” I suppose the selections date both of us.
Even on the rare occasions that private plaintiffs do prevail under those flabby standards, the usual result is a “remand” to the agency, meaning an administrative do-over: do what you want, dear agency; just give us better reasons next time. In this and numerous other respects, administrative law is the law of meaningless remedies.
Rob is absolutely right in identifying this flabbiness—the lack of a “logical and legal structure”—as a central vice of administrative law. He clearly identifies the administrative state’s key twin dangers: executive unilateralism, and de facto repression and retaliation. And he is correct, finally, in insisting that cosmetic reforms of the APA, or yet more exquisite pirouettes for angels on Chevron’s pinhead, cannot be the answer.
Rob wisely introduces his bold advance as a “table-setting” invitation to a broad conversation and exploration. That approach reflects a healthy recognition that any effort to re-think a body of law on the scale the author envisions must be a collective, cacophonous scholarly and lawyerly enterprise, conducted in earnestness and with goodwill on all sides. It is also, if Rob doesn’t mind my saying so, a little bit of a head fake. As illustrated by an earlier law review article and his “redlined” APA, Rob has already mapped out the next three or four steps of the argument he invites. However, in the interest of engaging the argument one step at a time, let me offer two comments.
One, I’m inclined to think that Rob may be conceding too much to New Deal “administrativists,” as they have come to call themselves. Modern society, the argument has run for well over a century, is simply too complex and above all too fast-paced for a rule-based legal order and its rigidities. Bureaucratic discretion and improvisation are of the essence; in fact, they are the essence.
Rob’s enterprise, if I understand it correctly, is to carve out a middle ground between doctrinaire, clause-bound constitutional originalism and blanket appeals to the demands of our oh-so-fast-and-complex society. But why concede the point even to that limited extent? For one thing, in the ordinary course of business, we do not want an administrative apparatus that guns out “dear colleague” letters and answers to “frequently asked questions” at a moment’s notice when, really, a free society would benefit from a bit more thought, deliberation, and experimentation: that is the “mutable government” James Madison dreaded.
For another thing, when speed is indeed required, our loosey-goosey administrative law is of no help; it gets in the way. Much of the law on “hard look review” developed in cases involving NEPA requirements for environmental impact statements, which goes a long way to explaining why there hasn’t been a “shovel-ready” infrastructure project in the country for a half-century. The Trump administration’s modest reforms to streamline NEPA review have been yanked back by the present administration. One wonders how serious these people are about the infrastructure! program.
When we are vaguely serious about something—say, building a border wall—we dispense with judicial review and authorize a cabinet secretary to set aside any and all conflicting requirements of law by sheer fiat. (Said provisions are included in an actual statute, if you want to call it that.) And, since Rob mentioned the FDA: we developed and deployed Covid vaccines in record time not because of but in spite of the agency’s safety-and-effectiveness regime.
Two, Rob strives earnestly and sincerely to present his project as non-ideological and non-political—as a “synthesis” that promises “regulatory neutrality and accountability.” I do wonder, though, how many takers that commendable impulse will find. For every lawyer or activist who shares our common concerns over executive unilateralism and administrative retaliation, gaggles of environmental and civil rights lawyers stand ready to argue that we don’t have nearly enough of either. A cash-strapped, understaffed government, the argument goes, must govern through some mix of intimidation, a climate of legal uncertainty, and show trials. And, mind you: the folks who say so (albeit rarely in haec verba) have constituencies. The Office for Civil Rights, for example, has thousands of eager college administrators to monitor and penalize student dating behavior. The regime Rob laments is not some conspiracy; it has a potent demand side.
What really anchors the legal categories Rob wants to (re-)articulate isn’t some disembodied conceptualism. It is a coherent notion of private right—life, liberty, property. The natural-law, pre-Constitution constitutionalism backdrop is the only way, for example, to make sense of the distinctions Rob wants to draw among various kinds of government permits and licenses. And once that curtain drops, ‘tis only a matter of time until somebody—like, well-nigh the entire legal establishment—yaps, “this is Lochner in drag.” That collective yelp will come—in fact, has already come here and there and elsewhere—with the depressing predictability of a Herblock or Toles cartoon.
Get a handle on basic conceptual distinction, Rob writes with hope in his heart, and revamp the APA accordingly: “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.” I share that hope. My fear is that self-proclaimed administrativists understand those distinctions and their grounding all too well. And pace Rob Gasaway or perhaps Professor Hegel, the massive advocacy industries whose very business is to claim entitlements they don’t have will not allow the thought of a liberal society to work itself out behind their backs. They are ultimately stupid; but not that stupid.