Throughout his career, Harvard Law Professor Adrian Vermeule has been a vocal defender of the administrative state. He continues that defense in Common Good Constitutionalism. There, he contends that “[a]ny theory of law that does not take account of” the administrative state “is, merely for that reason, grievously defective.” Unsurprisingly, he concludes that his theory of law—Common Good Constitutionalism—successfully accounts for the administrative state, which he describes as “the main locus and vehicle” for translating “the goods of peace, justice, and abundance . . . . into modern forms such as health, safety, a clean environment . . . and economic security.”
Vermeule contrasts his theory of constitutionalism (including its account of the administrative state) with progressive constitutionalism. Both theories seek to develop principles over time. But for Vermeule, progressive constitutionalism goes too far in that it leads to both “genuine” and “corrupt” developments. Vermeule thus acknowledges a need for “an account of which developments are genuine and which are corrupt.” For such an account, he turns to St. John Henry Newman’s Essay on the Development of Christian Doctrine.
In that essay, Newman articulates seven “notes” for distinguishing genuine “developments” from “corruptions.” Vermeule contends that an application of these notes demonstrates that the administrative state is a faithful development of the principles underlying “our law.” But Vermeule’s defense of that position is, respectfully, unconvincing—especially if “our law” includes the Constitution of the United States. The shortcomings in his defense stem in part from his disclaiming any need to “parse through” Newman’s seven notes “individually, because their essential aim and thrust is clear enough.”
In this essay, I offer a closer parsing of Newman’s seven notes of the sort that Vermeule avoids. While there may be ways to defend the administrative state’s constitutional legitimacy, a gesture towards Newman’s seven notes is not one of them.
St. John Henry Newman is one of the Catholic intellectual tradition’s most treasured thinkers of the nineteenth century. And yet for much of the first half of that century, Newman was not even Catholic. Instead, he served as an Anglican priest and fellow at Oxford University. That changed in 1845, when Newman gave up his prestigious position at Oxford and converted to Catholicism. He would soon thereafter serve as a Catholic priest (later a Cardinal) and ultimately be canonized as a saint.
Newman first published his Essay on the Development of Christian Doctrine in 1845. In it, he defended Catholic doctrine as a legitimate application of Christianity; something more than tradition-based superstition. To advance his thesis, he articulated seven “notes” for distinguishing faithful developments from corruptions. Although Newman’s immediate thesis was theological, his notes can be used to distinguish developments from corruptions in other contexts as well. It is this broader understanding of Newman’s seven notes that Vermeule references in his defense of the administrative state. And it is only this broader (non-theological) understanding that I engage with here.
Preservation of Type: Newman’s first note is the preservation of type. In introducing this note, Newman offers an “analogy [to] physical growth.” A doctrine can grow over time, similar to how an “adult animal” can look differently than it did at “birth.” But such developments must not amount to a change in type. More colorfully, “young birds do not grow into fishes.”
This first note presents a problem for Vermeule, as the administrative state was proposed and defended as a different type of government than that set forth in the Constitution of 1788. It was, after all, the New Deal, and not the Faithful-Development-of-the-Old Deal, that most fully brought about the modern administrative state.
Consider Woodrow Wilson—an intellectual father of the modern administrative state—who observed that the Constitution was designed originally so that “Congress, the Judiciary, and the President” would interact with one another’s gravitational forces “as a sort of imitation of the solar system.” For Wilson, that sort of government would not do. Instead, he reconceived the federal government as a “living thing” to be regulated not by “the theory of the universe, but . . . the theory of organic life.” It was thus necessary to put forth a new type of federal government, one accountable to the laws of “Darwin, not to Newton.”
Wilson’s vision was carried further into completion a generation later. Consider James Landis, one of President Roosevelt’s chief architects in shaping the New Deal’s administrative state. In The Administrative Process, Landis observed that “the administrative process springs from the inadequacy of a simple tripartite form of government to deal with modern problems.” The Constitution’s rigid separation of legislative, executive, and judicial power was thus to be abandoned and replaced by administrative agencies “[e]ntrusted” to engage in “[r]ule-making, enforcement, and the disposition of competing claims.” In short, the administrative state—which combines executive, legislative, and judicial power into single sets of hands—is a government different in type from the “simple tripartite form of government” required by the Constitution.
Continuity of Principles: “[T]he continuity or the alteration of the principles on which an idea has developed is a second mark of discrimination between a true development and a corruption.” In unpacking this second note, Newman distinguishes principles from doctrines. While “[p]rinciples are abstract and general, doctrines relate to facts.” Thus, while “doctrines grow and are enlarged, principles are permanent.”
The emergence of the administrative state resulted from a change in principle—namely, from enumerationism (the principle that the federal government is one of enumerated powers) to the principle that the federal government has broader authority to promote the general welfare. As Vermeule concedes, “[t]oday, the scope of federal powers has become all but equivalent to a general police power.”
Consider the Commerce Clause, in which most agencies ground their constitutional legitimacy. The text of the Clause vests in Congress the power to “regulate Commerce . . . among the several States.” But as Professor Gary Lawson explains, that limited language has been expanded to permit Congress to regulate “all Activities affecting, or affected by, Commerce . . . among the several States.” A faithful development of Commerce Clause doctrine leaves ample room to apply the Clause to new factual settings—allowing Congress to regulate commercial airliners in addition to commercial steamboats, for example. But the modern understanding of the Commerce Clause—i.e, the shift from a power to regulate commerce to a power to regulate things affected by commerce—constitutes a change in principle.
Power of Assimilation: Newman’s third note concerns the power of assimilation. “[D]octrines,” he explains, do not exist in a “void,” but rather in a “crowded world.” Faithful development thus requires the “absorption” of other ideas. A failure “to grow is to cease to live,” and something “grows by taking into its own substance external materials.”
At first blush, Vermeule might find support in this third note. After all, the administrative state might be said to have demonstrated a “unitive power” by subsuming authority exercised historically by the President, Congress, and the courts. But Newman is clear that assimilation is not a mark of faithful development in all circumstances. “[D]ifferent food,” he writes, “is proper for different recipients.” Administrative agencies, which fall within the executive branch if they are to fall anywhere at all, are thus poorly fed when they devour the legislative and judicial powers belonging to Congress and the judiciary. To expand upon Newman’s colorful example mentioned earlier: fish food makes for poor birdfeed.
More directly, when the executive officials who make up the administrative state take on legislative and judicial functions, the government power accumulated in the administrative state grows in a manner inconsistent with the Constitution. To be sure, the Framers were particularly concerned that an all-powerful legislature would draw “all power into its impetuous vortex.” But the Framers designed a Constitution structured to prevent any of the three branches from absorbing the powers of the others. Madison went so far as to state that, if “the federal Constitution” permitted an “accumulation of power” within a single federal branch, then that alone be enough “to inspire a universal reprobation” of the American constitutional system. Thankfully, as Madison thought “apparent to every one,” the Constitution does not permit one branch to absorb the powers of the others; the system of government mandated by the document is thus one that should be carefully adhered to, not undermined.
Logical Sequence: Newman’s fourth note concerns logical sequence. The likelihood of a doctrine being “a true development, not a corruption,” he explains, is “in proportion … to … the logical issue of its original teaching.”
The “original teaching” of the Constitution was one that sought to divide, rather than consolidate, government power. It would thus seem a stretch to argue that the modern Congress’s eagerness to delegate power to the executive branch agencies (an eagerness that gave rise to the administrative state) is somehow a logical result of separation-of-powers principles, which envision a jealous Congress and President in perpetual competition for finite power.
True, the three federal branches each played a role in creating the administrative state. As Vermeule put it in earlier work, the Congress, President, and courts, each “acting in their classically separated ways, together decided to create . . . . creatures not in their own image.” But that such consolidated action occurred as a result of a particular set of historical facts does not demonstrate that such action was true to the Constitution’s principles. As Professor Jeffrey Pojanowski explains, “the erroneous persistence of any unconstitutional statute requires the cooperation of all three branches.”
In short, the Constitution’s original teaching placed great importance on separating government powers. And there is no inevitable logic within that original teaching that would demand, on different historical facts, recreating the administrative state as we have it today.
Anticipation of Its Future: Newman’s fifth note holds that “the faithfulness of an ultimate development is its definite anticipation at an early period in the history of the idea to which it belongs.”
At the nation’s founding, there was no anticipation of anything close to the modern administrative state. As Chief Justice Roberts observed, “[t]he Framers could hardly have envisioned today’s vast and varied federal bureaucracy and the authority administrative agencies now hold.” Instead, “the administrative state with its reams of regulations would leave them rubbing their eyes.”
This is not to say that Framers were blind to the possibility that the federal government would need updating. On the contrary, they provided a specific means of amending the Constitution so that the government could adapt to future facts. Given those explicit means, it is difficult to argue that the Constitution’s principles, from their earliest days, somehow harbored an alternative, implicit means of reorienting federal power in the way necessary to make room for the administrative state.
Conservative Action Upon Its Past: Newman’s sixth note is conservative action upon its past. A faithful development “illustrates, not obscures, corroborates, not corrects, the body of thought from which it proceeds.” In explaining this note, Newman addresses the consolidation of legislative and executive power into single hands.
“[W]hen the Long Parliament proceeded to usurp the executive,” Newman explains, Parliament “impaired the popular liberties which they seemed to be advancing; for the security of those liberties depends on the separation of the executive and legislative powers.” The historical importance of maintaining a separation of executive and legislative powers applies with even greater force on this side of the Atlantic than on Newman’s. As Madison explains, “[t]he accumulation of all powers, legislative, executive, and judiciary, in the same hands” is “the very definition of tyranny.”
Chronic Vigor: Finally, Newman writes that “duration is another test of a faithful development” because “[c]orruption cannot . . . be of long standing.” One need only consider the fleeting existence of some of administrative law’s key tenets to see that this seventh note also undermines Vermeule’s position.
In Kisor v. Wilkie, the Supreme Court all but overruled Auer v. Robbins, a critical precedent requiring judicial deference to agency interpretations of regulations. After Kisor, a court may only defer to an agency’s interpretation after the court slogs through an exhausting five-factored test. Justice Gorsuch describes what remains of Auer as “maimed and enfeebled—in truth, zombified.” A similar fate appears destined for Chevron v. NRDC, pursuant to which courts defer to agency interpretations of statutes. In a series of recent cases that seemed to demand an application of Chevron, the Court refused to even acknowledge the precedent.
Chevron and Auer were relatively modern precedents that were quick to serve as central pillars for the administrative state. Yet the Supreme Court has steadily chipped away at both precedents, leaving them severely damaged at best. One might have thought that, had these concepts been faithful developments of the Constitution’s principles, they would have proven to be longer-serving.
To defend the administrative state as a faithful development of the principles underlying “our law,” Professor Adrian Vermeule invokes St. John Henry Newman’s seven notes. But an application of those notes offers little support for the argument that the administrative state is consistent with the principles put forth in a centerpiece of “our law,” the Constitution.