The Structure of Regulatory Revolutions
Today the most important book in administrative law is one that was written a half-century ago—but not by Kenneth Culp Davis, or Walter Gellhorn, or James Landis, or the other legends of administrative law. The author was a scientist, Thomas S. Kuhn, and the book is The Structure of Scientific Revolutions. Everyone interested in administrative law should take a moment to read and reflect upon Kuhn’s classic book, especially as the Senate undertakes its confirmation hearing for Judge Neil Gorsuch’s nomination to the Supreme Court.
Supreme Court nomination hearings tend to re-litigate the most recent constitutional and political controversies. Senators asked John Roberts and Samuel Alito about executive power, and then asked Sonia Sotomayor and Elena Kagan about the Second Amendment and about the constitutional rights of corporations. This month, Senators will draw upon recent years’ controversies and, I suspect, they will ask Neil Gorsuch about the administrative state.
Such questions would have arisen regardless of the particular nominee, but they will be all the more interesting in light of Judge Gorsuch’s published opinions on Chevron deference. As I explored at greater length in a recent Weekly Standard essay (and as David Feder explained in his own terrific post on this site), Judge Gorsuch’s criticism of the deferential Chevron and Brand X doctrines, in two cases involving agencies’ treatment of immigrants, exemplify the increasingly vocal chorus of critics challenging administrative law’s conventional wisdom.
From Justice Thomas’s recent opinions on judicial deference and legislative delegation, to Chief Justice Roberts’s vocal criticism of the modern administrative state (“reams of regulations” that would leave the Framers “rubbing their eyes”), to Justices Scalia’s and Alito’s own doubts about judicial deference, to Ninth Circuit Judge Carlos Bea’s Heritage Foundation lecture on Chevron and the separation of powers, to his colleague Judge Diarmuid O’Scannlain colorful criticism of modern administrative law (“we have spun out of the known legal universe and are now orbiting alone in some cold, dark corner of a far-off galaxy, where no one can hear the scream ‘separation of powers’”), to Professor Philip Hamburger’s vocal and influential criticism in Is Administrative Law Unlawful? (2014), judges and legislators are increasingly confronted with unflinching criticism of administrative law’s first principles.
Indeed, this criticism increasingly resonates in Congress, putting wind in the sails of legislative efforts to end Chevron deference by amending the Administrative Procedure Act. On that point, the Separation of Powers Restoration Act, part of a suite of reforms in H.R. 5, won passage in the House of Representatives by an overwhelming margin in the very first days of this Congress.
But one place where these criticisms seem to gain very little traction is legal academia, where the predominant response to these calls for administrative-law reform is probably best found by the title of Adrian Vermeule’s review of Hamburger’s book:
Anti-reformers might ultimately be right. Perhaps Chevron deference won’t be overturned, or even significantly reformed, in the courts or in Congress. Perhaps Justice Thomas’s calls for a reinvigorated nondelegation doctrine will remain the stuff of lone dissents. Perhaps legislative efforts to increase the procedural requirements on agencies will fail in the Senate or languish on the President’s desk.
But this much is clear: if any of those reforms do prove successful, administrative law scholars might be the last to anticipate and appreciate that paradigm shift, for precisely the reasons that Thomas Kuhn identified in The Structure of Scientific Revolutions. As Kuhn explains, scientific progress is a cyclical story: change, entrenchment, elaboration, crisis, and then change anew.
By Kuhn’s telling, a field of scientific study is dominated by particular “paradigms”—the basic sets of rules and presumptions shared widely by the given scientific community. To study for entry into this field is to embrace and internalize the dominant paradigms:
[The study of paradigms] is what mainly prepares the student for membership in the particular scientific community with which he will later practice. Because he there joins men who learned the bases of their field in the same concrete models, his subsequent practice will seldom evoke overt disagreement over fundamentals. Men whose research is based on shared paradigms are committed to the same rules and standards for scientific practice. That commitment and the apparent consensus it produces are prerequisites for normal science, i.e., for the genesis and continuation of a particular research tradition.
Kuhn’s “normal science” is the ever more narrowly focused work of filling in ever-narrower details within the dominant paradigms’ framework. Of course, the dominant paradigms attain their dominance precisely because they prove “more successful than their competitors in solving a few problems that the group of practitioners has come to recognize as acute.” But once a paradigm attains that predominance, practitioners grow less interested in questioning the paradigm itself, as Kuhn explained:
Closely examined, whether historically or in the contemporary laboratory, that enterprise [i.e., normal science] seems an attempt to force nature into the preformed and relatively inflexible box that the paradigm supplies. No part of the aim of normal science is to call forth new sets of phenomena; indeed, those that will not fit the box are often not seen at all. Nor do scientists normally aim to invent new theories, and they are often intolerant of those invented by others. Instead, normal-scientific research is directed to the articulation of those phenomena and theories that the paradigm already supplies. [Emphasis added; footnote omitted.]
In that respect, Kuhn analogized science to lawyering: “like an accepted judicial decision in the common law,” a paradigm “is an object for further articulation and specification under new or more stringent conditions.”
The work of normal science has its virtues, of course—indeed, so much of science’s value is found in the normal work of elaborating the details of a paradigm. But normal science’s benefits come at a cost: namely, its practitioners will initially be slow to anticipate or appreciate the changed circumstances or other exogenous developments that ultimately will challenge and change that paradigm: “In science . . . novelty emerges only with difficulty, manifested by resistance, against a background provided by expectation.”
What ultimately causes practitioners to recognize the shortcomings of their paradigms, and a willingness to reconsider their premises and frameworks? In Kuhn’s word, “crisis”—the point at which actual reality fails to be adequately explained and justified by the existing paradigms:
When . . . an anomaly comes to seem more than just another puzzle of normal science, the transition to crisis and to extraordinary science has begun. The anomaly itself now comes to be more generally recognized as such by the profession. More and more attention is devoted to it by more and more of the field’s most eminent men. If it still continues to resist, as it usually does not, many of them may come to view its resolution as the subject matter of their discipline. For them the field will no longer look quite the same as it had earlier.
Here too, Kuhn analogized the process to law, or at least to constitutional change: “Political revolutions are inaugurated by a growing sense, often restricted to a segment of the political community, that existing institutions have ceased adequately to meet the problems posed by an environment that they have in part created.” So too, Kuhn says, in science.
In light of Kuhn’s analysis, I would further recommend that we read and reflect on Professor Aaron Nielson’s own fascinating article, “Visualizing Change in Administrative Law.” While Nielson’s thoughtful analysis does not explicitly invoke Kuhn, the substance of his work is remarkably Kuhnian. What he describes as the “two decades of repose” that we have experienced—in which “there has not been a really significant structural change in administrative law”—might simply be a period of “normal science” in modern administrative law’s century-law history. And the new trends that Nielson identifies as possible hallmarks of “fundamental change” to come could be the Kuhnian “crisis,” the exogenous shocks, that spur administrative law’s latest paradigm shifts.
My point here is not that Gorsuch’s nomination (or Justice Thomas’s opinions, or Hamburger’s book) certainly heralds a Kuhnian paradigm shift in administrative law; as I noted at the outset, these developments may ultimately have no major bearing on administrative law.
But as the daily work of politics, courts, and writings from scholars outside the field of administrative law produces increasingly vocal criticisms challenging the modern administrative state, and the thirty- to seventy-year-old bodies of law that undergird that administrative state, then administrative law scholars ought to pause and ask whether their field’s dominant paradigms adequately answer questions raised by the world around them. And if the assumptions and conventional wisdom of modern administrative law do not answer the questions being raised by those outside the field, then administrative scholars may need to rethink some premises.
Adam J. White is a research fellow at the Hoover Institution, and an adjunct professor at George Mason University’s Antonin Scalia Law School.