*This is the eighth 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.
Law and Leviathan is a work that seeks to connect abstract principles of political philosophy with concrete developments in administrative law doctrine. I find much to admire in the book, which I should note at the outset was written by two scholars, Professors Sunstein and Vermeule, from whom I had the good fortune to take five classes in total while in law school. I owe to the two of them gratitude for my legal education, perhaps more so than any other professors, though I sometimes find myself wondering (with a bit of a smile) whether they ask themselves while reading my work how I could possibly have gone so badly astray. Be that as it may, I feel constrained to say that Law and Leviathan suffers from a flaw that bedevils many similar works of political philosophy: The abstract philosophical premises that the authors seek to establish as incontrovertible in the first few chapters of Law and Leviathan do not lead neatly to any particular resolution of any of the concrete debates over administrative law that the authors address. Instead, a separate set of premises, which the authors allude to, but cannot establish in the space of a single book, seem to provide the actual bases for the authors’ perspectives on topics like the nondelegation and Chevron doctrines.
The launching-off point for Law and Leviathan is Lon Fuller’s work on The Morality of Law, in which Fuller lists a number of ways in which a legal regime must behave to be conceived of as a system of law at all—for example, law must be applied in a rule-like manner, with transparency, not retroactively, understandably, consistently, and the like. A government that fails to adopt or that abuses these procedural rules, according to Fuller, effectively “never ma[kes] any” law at all. Fuller’s contrast between the “rule of law” and unconstrained bureaucratic fiat echoes themes from writers of political philosophy since the creation of the genre. For example, in the fourth century B.C., Aristotle in the Politics said that:
[I]t is proper for the laws when rightly laid down to be sovereign, while the ruler or rulers in office should have supreme powers over matters as to which the laws are quite unable to pronounce with precision because of the difficulty of making a general rule to cover all cases. * * *
[I]t is preferable for the law to rule rather than any one of the citizens, and according to this same principle, even if it be better for certain men to govern, they must be appointed as guardians of the laws and in subordination to them; for there must be some government, but it is clearly not just, men say, for one person to be governor when all the citizens are alike. It may be objected that any case which the law appears to be unable to define, a human being also would be unable to decide. But the law first specially educates the magistrates for the purpose and then commissions them to decide and administer the matters that it leaves over “according to the best of their judgment,” and furthermore it allows them to introduce for themselves any amendment that experience leads them to think better than the established code. He therefore that recommends that the law shall govern seems to recommend that God and reason alone shall govern, but he that would have man govern adds a wild animal also; for appetite is like a wild animal, and also passion warps the rule even of the best men. * * *
One does not need to have a sophisticated understanding of the Athenian dikastes to hear, in these words from several millennia ago, a version of the contemporary debates over administrative law. And ever since the first millennium B.C., political philosophers, like John Locke (“wherever law ends, tyranny begins”) and James Madison (“Law is defined to be a rule of action; but how can that be a rule, which is little known, and less fixed?”), have picked up on this rule-of-law thread before Fuller further elaborated on the theme in the Twentieth Century, most famously in The Morality of Law, but also in essays such as The Forms and Limits of Adjudication and Irrigation and Tyranny.
So far, so good. Up to this point, I find myself in complete agreement with what I understand to be the central thrust of Sunstein and Vermeule’s thesis, along with the basic claims of Fuller, Aristotle, Locke, and Madison—even if some of these earlier authors exaggerated for rhetorical effect. Stability, predictability, and transparency are important aspects of any legal system, including the rules of administrative law. Perhaps we might even go so far as to say that some degree of stability and predictability is necessary for a nation to be deemed to operate under the “rule of law” at all.
Moreover, as Law and Leviathan discusses, the Supreme Court has sometimes, under some circumstances, sought to pursue those rule-of-law values in administrative law cases. Thus, it is undoubtedly true that cases like Allentown Mack, Bowen, Accardi, and Encino Motorcars speak of values such as the importance of adhering to announced and knowable legal rules, the presumption against retroactive rulemaking, the need for an agency to follow its own rules, and the requirement that an agency consider reliance interests.
Again, at that level of abstraction and generality, I completely agree with Professors Sunstein and Vermeule: Some administrative law cases, in some circumstances, have stressed rule-of-law values.
But those shared premises do not—and cannot—answer the next set of questions that Law and Leviathan confronts.
First, as Law and Leviathan acknowledges (pp. 90-103), there are tradeoffs. In addition to stability and predictability, what about other values—among them, administrative flexibility where appropriate; concern for democratic accountability; and fidelity to written text and custom, if they speak to an issue? The Supreme Court has sometimes, under some circumstances, pursued those values, too, occasionally at the expense of consistency and reliance. The most prominent deviations from “Fullerian” principles that Professors Sunstein and Vermeule discuss are Chevron and Brand X, which they describe as perhaps “at odds with Fullerian intuitions about consistency over time” (p. 81). But there are of course others. Even if Lon Fuller didn’t list these other values, they, too, might form a part of an appropriate system of administrative law. There’s nothing necessarily wrong with that, but it suggests that Fuller alone doesn’t exhaust the explanations for the outcomes of administrative law cases. It may be that on occasion the Court has impermissibly departed from rule-of-law values; it may be that the Court has rested some conclusions on other rationales.
Second, even if the Court were to pursue predictability and stability to the exclusion of all other values, how could the Justices know which rules established the optimal level of predictability and stability? Consider a couple of examples to illustrate this point, starting with the nondelegation doctrine. On the one hand, it seems fair to say that a reinvigoration of the doctrine might lead to less predictability and stability in one sense, given that the test for the doctrine’s application might itself not be wholly predictable. On the other hand, it might be that the doctrine forces Congress to legislate more specifically, thereby limiting “situations in which people cannot know what the law is” (p. 45). In the abstract, and without more information, a concern about predictability alone would not allow us to choose between the various approaches to the nondelegation doctrine.
To take another example, consider the various exceptions to the Chevron doctrine. Again, on the one hand, the sheer unpredictability in the application of these exceptions may lead to less stability in the sense that the doctrine’s application is hard to predict. (A result that I, personally, dislike.) On the other hand, some of the exceptions to Chevron appear designed to ensure stability in another sense—take, for example, the Court’s determination in King v. Burwell that Chevron did not apply to the question whether a federal exchange was “an Exchange established by the State” for purposes of insurance subsidies under the Affordable Care Act. If the Court had not resolved that statutory question in King, but rather used Chevron to defer to the agency’s interpretation, the federal government may well, in the year 2021, have been initiating its third rulemaking addressing the meaning of the relevant terms.
To be sure, in using these two examples, my contention is not that any particular conception of the nondelegation doctrine is correct, nor that the Court was right in King v. Burwell. Rather, my contention is a narrower one: Some additional yardstick is necessary to determine exactly how much predictability is warranted, in what sense, and under what circumstances. Neither Fuller nor (to my regret) Aristotle alone can answer that question.
Third, the fact that some administrative law cases may pursue rule-of-law values in some circumstances needn’t stop administrative law from further pursuing such values in other contexts. Indeed, my impression from reading Law and Leviathan is that Professors Sunstein and Vermeule recognize that the Fullerian aspects that they identify can only “capture some of [the] most important concerns” of critics of various administrative law doctrines and that, on their view, agency behavior would be, at best, “infused and structured by a conception of the rule of law” (p. 43 (emphases added)). But I wonder why this modest framing should satisfy any critic of any doctrine. To take a (perhaps fanciful) example, I wouldn’t be able to justify a proposal to jettison the rule of lenity in criminal cases by contending that criminal trials would nevertheless remain subject to “a conception of the rule of law.” Critics of my proposal would rightly demand some further justification that the rule I proposed embodied “the conception” required by our legal institutions and traditions. And if I were to reply to my critics that my proposal would nevertheless leave in place a number of other rule-of-law protections for criminal defendants—such as, perhaps, the burden of proof at trial—I think my critics could fairly sur-reply that my argument was completely non-responsive. In short, a thicker conception of “the rule of law” is necessary to evaluate almost all of the concrete doctrines that constitute our criminal—or administrative—legal regimes.
Until this point in my review, I have engaged with Law and Leviathan in the language of political philosophy—the primary language used by its authors throughout the book. But the previous paragraph hints at another source for the “thicker” conception of the rule of law that might mediate between conflicting values: a focus on text and tradition. At various points, Law and Leviathan seeks to downplay the role that legal text and tradition might play in such debates (e.g., p. 36). But I cannot help noticing that when push comes to shove, the authors rely on such premises to appeal to their readers on how to resolve disputes over administrative law. (See, e.g., pp. 119, 121 (contending that nondelegation’s “legal pedigree is unclear” and relying on “historical research”); pp. 125-26 (interpreting section 706 of the Administrative Procedure Act).) And the authors also allude to consequentialist claims, never fully developed, to support their arguments. (E.g., pp. 36-37 (“Constraints and invalidations have costs . . .”).) Perhaps these historical and consequentialist claims are correct, and perhaps not; those are questions too large for my blog post. But the claims suggest that something else—something more than Lon Fuller simpliciter—will be necessary to navigate the administrative law debates of the years to come.
Let me end with a point of agreement: As the authors note, “[a] central goal of the rule of law is to allow people to have room to maneuver—to create a sphere of action in which citizens do not have to worry about what their government will do” (p. 63). I couldn’t agree more. The appropriate balance between the private “sphere of action” and the legitimate objects of government is both a subject of intense debate and, at the same time, critical to human flourishing. All law—administrative law included—should be concerned with that goal.
Aditya Bamzai is an associate professor at the University of Virginia School of Law.