*This is the second post in a series on Cass Sunstein and Adrian Vermeule’s new book Law and Leviathan: Redeeming the Administrative State. For other posts in this series, click here.
At the heart of Cass Sunstein and Adrian Vermeule’s insightful and important book, Law and the Leviathan: Redeeming the Administrative State, is a claim that a set of rule-of-law principles underlie and unify disparate doctrines in administrative law. Sunstein and Vermeule offer their interpretive account of administrative law not only to explicate the conceptual foundations of diverse doctrines, but also because they believe this account helps to legitimate the administrative state. The book’s ultimate suggestion is that because administrative law reflects rule-of-law principles in sufficient measure, the administrative actions it governs can be “efficacious as law,” not merely arbitrary commands .
To develop their understanding of what the rule of law requires, Sunstein and Vermeule put Lon Fuller to work. In The Morality of Law, Fuller identifies eight principles necessary for a system government to accomplish the tasks of law. Sunstein and Vermeule rely on Fuller’s principles as a basis for explaining administrative law. The book convincingly pairs administrative doctrines with a corresponding Fullerian principle: Bowen’s presumption against retroactivity has clear ties to Fuller’s retroactivity concern . Kisor’s limitations on Auer deference reflect Fuller’s preference for consistency, deliberation, and protecting reliance interests . And three doctrines—the Accardi/Arizona Grocery requirement that agencies must follow their own rules, the Allentown Mack demand that agencies enforce their stated rules, and the Department of Commerce inquiry into whether the agency’s proffered reasons are pretextual—all implement Fuller’s principle of “congruence” between the rules stated and enforced [56, 64, 140]. Sunstein and Vermeule’s turn to Fuller offers a remarkably useful lens through which to see administrative law—it successfully unifies many of the field’s doctrines in ways hard to unthink.
It is an achievement to have identified a simple, underlying basis for these and other doctrines, and thus worth asking how far explaining administrative law through Fuller goes. First, does this provide a unifying account of administrative law as a whole? And second, do the Fullerian features of administrative law the authors identify provide an explanation of the lawfulness of administrative action in a way that legitimates the administrative state?
1. Fuller and Deference
Sunstein and Vermeule claim that Fuller’s principles, which they refer to collectively as the morality of administrative law, “help to unify a disparate array of judicial doctrines, and perhaps even the field as a whole” . Sunstein and Vermeule’s equivocation about whether Fuller provides an account of the field as a whole is warranted for an important reason. Fuller’s principles do not explain why a court would grant binding deference of the sort Chevron requires.
Sunstein and Vermeule do not expressly argue that Fuller’s principles offer a justification for the core command of Chevron for courts to give controlling weight to qualifying agency interpretations. Instead, they note that the Fullerian principles are “in tension with current [Chevron] doctrine, yet can be taken as both supporting an older approach and explaining actual practice” . They point out that prior to Chevron, courts relied on the consistency of the agency’s view as a ground for deference, and they observe that under Chevron, courts uphold long-standing agency interpretations at a higher rate (relying on Chris Walker and Kent Barnett’s empirical analysis).
But these observations do not establish that Fuller’s principles explain the binding deference required by Chevron. Chevron deference does not merely apply to long-standing interpretations (that limitation would severely undermine the flexibility Chevron is said to allow agencies). And even if courts conferred Chevron deference only to long-standing agency interpretations, that limitation on the doctrine does not explain why courts should defer in the first place. Indeed, Fuller’s principles seem to offer scant resources for justifying Chevron’s core requirement of deference. Given the centrality of Chevron to contemporary administrative law, not explaining it is a significant limit on how much of the existing field can be explained by Fuller.
By making this observation, I do not mean to suggest that Chevron is unjustified. In this book (and elsewhere), the authors expertly defend Chevron from a variety of challenges. But they do not defend Chevron in terms of Fuller’s principles, nor is it readily apparent how they could. Rather, binding deference of the sort Chevron requires must find other foundations in our legal thought—perhaps in James Bradley Thayer, or in Henry Hart and Albert Sacks. I also do not mean to imply that deference is inconsistent with Fuller’s principles. Deference could be consistent. But to illustrate that consistency requires an additional argument. Such an argument might proceed by suggesting that agencies must comply with Fuller’s principles as a precondition for deference, a position Matthew Lewans takes. Alternatively, it could proceed by taking the position that agency’s reasoned decisionmaking and compliance with more formal procedures are preconditions for deference that also satisfies rule-of-law concerns. Either way, deference that is sufficiently conditioned can be consistent with Fuller’s principles, even if not justified by them.
2. Systemic Legality and Legitimacy
How far does the Fullerian account of administrative law go toward explaining the legality of administrative action and the administrative state? Quite far, according to Sunstein and Vermeule. They argue that administrative law’s compliance with Fullerian principles is “constitutive of legality” in the sense that it makes administrative action capable of being law, not merely arbitrary command . It is that feature of administrative law which, Sunstein and Vermeule claim, helps to legitimate the administrative state.
But to suggest that administrative law is constitutive of legality appears to take the position that administrative law creates sufficient conditions for the legality of administrative action. This strikes me as too strong a claim, at least if we are interested in systemic legality of the administrative state. Let’s concede that our (Fullerian) administrative law enforced by courts is a necessary condition for agency action to be viewed as lawful. But it is another matter to say that such administrative law is a sufficient condition for systemic legality because so much administrative action is never reviewed by courts. For judicially imposed rule-of-law demands on agencies to support systemic legality, administrative agencies need internal rules and structures to implement those demands. They need to operationalize the requirements imposed by courts into internal rules and systems of compliance. That is, systemic legality, as Jerry Mashaw writes (at 223), requires a “robust internal law of administration” also called internal administrative law.
Perhaps systemic legality in the administrative state is different than the legality value which interests Sunstein and Vermeule—the conditions for agency action being “efficacious not as arbitrary command but as law” . But if the point of demonstrating the lawfulness of agency action is in part to help legitimate agencies and the administrative state, then the conditions for systemic legality matter just as much, or more, than identifying the conditions for individual agencies actions to be efficacious as law. The conditions for systemic legality include not only a judicially enforced administrative law but also an internal administrative law that works in company with and even beyond what courts have required of agencies.
Accordingly, to fully defend the legality of the administrative state, what is needed is an interpretive account which goes beyond administrative law enforced by courts to addresses the internal governance of agencies, including the ways they structure their discretion and implement judicial demands. We need to understand the ways in which agencies’ internal practices and norms—their internal law—reflect Fuller’s principles (or not). Thus, the next step in understanding the legality of the administrative state is to put Lon Fuller to work in the trenches of agencies’ internal law.
Kevin M. Stack is Lee S. & Charles A. Speir Professor of Law at Vanderbilt Law School.