Two Futures for Administrative Law, by Adrian Vermeule
The President-elect already seems quite likely to be re-elected, if the screeching disarray of his enemies is any guide. It is therefore not too early to indulge in speculation about the course of administrative law in the Age of Trump. I’ll outline two different futures that seem thinkable to me — not only logically possible, but realistically possible and politically feasible. After I describe each future, I’ll indicate which one I think is more likely to come to pass.
Let me begin with a thanks to the students in my seminar on the Administrative State, for an illuminating discussion on these subjects, one that I will now proceed to plagiarize.
The Bipartisan Retrenchment
The first possible future I call the Bipartisan Retrenchment. Here we might see a new coalition between liberal lawyers and conservative lawyers in the courts, both deciding — for different reasons — that the administrative law of the Obama era is too favorable to presidential administration, at least if Trump is the one doing the administering. At the level of the Supreme Court, the key actors to watch are the centrist conservatives — the Chief Justice and Justice Kennedy. Each has written opinions expressing anxieties of various sorts about the administrative state, particularly Auer deference to agency interpretations of their own regulations. Also in both cases, however, there is a clear gap between the centrists on the ones hand and the wholesale critiques of administrative law as unconstitutionally deferential, launched by Justice Thomas and joined to some degree by Justice Alito. Both the Chief and Kennedy joined the very deferential opinion by Justice Sotomayor in Perez v. Mortgage Bankers, a decision that reaffirmed broad agency authority to set their own procedures and that also reaffirmed Auer deference, albeit with limitations. If, however, we see the conservative centrists starting to take on board some of the extreme skepticism about deference from their rightward flank, and if we see them joined in coalition by liberal Justices like Justice Breyer who are already occasionally skeptical about deference, we have the makings of a supermajority coalition to rein in administrative power.
Such a coalition is unlikely to take drastic steps — I think it very unlikely, for example, that it could or would overrule Chevron altogether — but it might well retrench administrative authority across a range of doctrinal areas. Expansive and more consistent use of the “major questions” exception to Chevron; new constraints on Auer deference; re-invigorated review of guidances, to see whether they are actually binding legislative rules that have to go through notice-and-comment; overruling of Thomas’ Brand X decision that allows agency interpretations of ambiguous statutes to Trump, as it were, judicial precedents; more permissive rules of standing and finality, allowing more cases into court to challenge administrative action; a more permissive approach to complaints about agency inaction, especially when the Trump administration is slow-walking mandatory regulations; under arbitrary and capricious review, less tolerance for “political” reasons, meaning White House rationales, for agency action; and, most nebulous of all, a simple tightening of the parameters of statutory interpretation, so that more statutes are labeled “clear” under Chevron.
Outside the courts, we might even see cross-party coalitions between Democrats and (institutional, non-Trump) Republicans in Congress. Such a coalition might undertake legislative measures to rein in the administrative state; an example under discussion is the Separation of Powers Restoration Act of 2016, whose intention is to eliminate Chevron deference. (I don’t think it would succeed in so doing, either legally or practically, but that’s a separate question, one I have addressed elsewhere).
The Merchant/Ivory Ballroom Scene
The second possible future I call the Merchant/Ivory Ballroom Scene. Think of the moment in any movie adaptation of a Jane Austen novel when two lines of dancers switch to opposite sides of the ballroom. Then the dance goes on as before. The structure of the dance at the group level is preserved; none of the rules of the dance change; but the participants end up facing in opposite directions.
On this scenario, after a short period of confusion and recalibration, we would see liberal lawyers become critical or suspicious of presidential administration under Trump, but the conservative lawyers will make their peace with the administration. We will see a bewildering switch of places, but no major change in legal doctrine. In my darker and more feverish moments I imagine a switch of places so rapid and bewildering that we see Justice Ginsburg citing favorably to the work of critics of the administrative state like Philip Hamburger and Gary Lawson. Similar about-faces have happened before in the Court’s history, perhaps not coincidentally with a partisan change of administration. As an exercise, administrative lawyers may compare and contrast the opinions and voting coalitions in FDA v. Brown & Williamson (2000) and Massachusetts v EPA (2007).
So far I have assumed a Court with unchanged composition, but the looming Trumpification of the Court will certainly accelerate and solidify the tendency to switch places. Quite soon, a Trump-appointed Justice will provide a decisive vote in some set of administrative law cases that would otherwise have been deadlocked; and a second Trump appointment may well replace either Ginsburg, or perhaps Kennedy. In either case, that appointment will in all likelihood make even more difficult the formation of a bipartisan coalition in favor of retrenchment.
Which of these futures is more likely to occur? I should add the boring caveat that we could have a weighted sum of both — some conservative retrenchment, with for example the Chief Justice writing opinions that shave back deference and tighten up administrative procedure, but without going as far as Justice Thomas might like. But then my question is just about the relative weights of the two futures — how much Bipartisan Retrenchment will we see, compared to a simple switch of positions within the existing configuration.
The key determinants, I believe, are twofold. In the medium term, how quickly will Trump appointments to the Court come on-line? As the significance of that point is tolerably obvious, I will focus on the relatively short run. There the key determinant is whether the establishment conservative lawyers “come home to Trump.” The institutional conservatives and Republicans — the Beltway lawyers of sound conservative principles and sound judgment — although belonging to a wing of the party completely routed in the Republican primaries, nonetheless magically occupy a strategic position after the election. They have three things the new administration needs: legal know-how, manpower, and credibility. Here may be found the knowledge needed to operate the institutional levers of power; a cadre of available civil servants and office-holders; and a reservoir of credibility with various sectors of the press, the public, and perhaps most importantly with the Republican senators who have to approve political appointees.
My guess is that the establishment conservative lawyers will in fact come home to Trump. We will observe the irresistible combination of virtue and self-interest, pulling in tandem. Virtue because it is in fact the public-spirited course for conservative lawyers to participate in the administration, in order to refine and moderate the conduct of the public’s business. Self-interest because after eight long years in the wilderness, there is overwhelming pent-up demand for participation in government by the conservative legal establishment. It’s no fun being a court lawyer if the court is always held by a monarch of the opposite faction. Indeed this process of homecoming to Trump is already occurring. The conservative legal establishment is in process of abandoning its #NeverTrump Twitter hashtags and making its peace with the administration.
Rational self-interest will also assert itself at the Supreme Court, once the immediate emotions have settled down a bit. Suppose you are an establishment conservative Justice, with given preferences, and you have to decide whether to choose between more or less deference to the Trump administration. If you are smart — and you are — you will realize that you can’t review every lower court decision or even most decisions, and that the lower courts are staffed by a supermajority of Obama appointees. Whatever your differences with the Trump administration, you will prefer to let those agencies make the law rather than, say, Judge Nina Pillard. So de novo, nondeferential interpretation by lower courts will suddenly come to seem less appealing than it otherwise would.
Both of these futures are possible. My best guess, however, is that the second is more probable. We will see a confusing transitional period, with people talking excitedly about dramatic changes in administrative law, and perhaps even a few decisions that seem to portend a Great Retrenchment. In the medium and long term, however, partisanship, rational self-interest, and the long-run institutional pressures that created a heavily deferential body of administrative law in the first place, will all reassert themselves, and not much will ultimately change — except that the dancers will switch places, and the dance will continue much as before.
Adrian Vermeule is the Ralph S. Tyler, Jr. Professor of Constitutional Law at Harvard Law School. These remarks were delivered at Harvard Law School on November 22, 2016. Follow Professor Vermeule on Twitter: @avermeule.