Professors Cass Sunstein and Adrian Vermeule of the Harvard Law School are perhaps today’s two most distinguished defenders of the modern administrative state. They are not wooly-eyed thinkers who pretend that the administrative state is perfect in all of its particulars. As their book title suggests, however, they do believe the current rules do an adequate job of using law to restrain Hobbes’s Leviathan, primarily by reconciling two imperatives: maintaining sufficient flexibility to allow administrative agencies to discharge their delegated functions in the modern, post-New Deal state, and simultaneously offering sufficient protections for individual rights and privileges against serious government abuse.
The first element of their defense claims that the standard safeguards contained in Lon L. Fuller’s most famous book, The Morality of Law (1969), are for the most part observed in modern administrative law. Their second, and more impassioned, plea is that it is wholly proper for the modern state to allow administrative agencies substantial discretion in interpreting the law, a power granted by the two hardy standbys, Chevron v. Natural Resources Defense Council (1984) and Auer v. Robbins (1997).
Our authors take on, albeit only indirectly, conservative critics of the current synthesis, such as Professors Philip Hamburger and Gary Lawson, as well as Justice Neil Gorsuch, whom they collectively dub as the “New Coke” (as opposed to the more successful Coke Classic?)—that is, as the intellectual heirs of Sir Edward Coke, the preeminent early 17th century jurist. However, Sunstein and Vermeule remain confident that key Supreme Court justices, most notably Chief Justice John Roberts, care enough about continuity and stability in the legal order to resist this right-wing onslaught. For my part, I have renewed the attack on the modern administrative state in my recent book, The Dubious Morality of Modern Administrative Law, whose thesis is not addressed by Sunstein and Vermeule, but whose pages cover many of the cases and issues that I discuss here.
My objections to the Sunstein/Vermeule position can be summarized in three propositions. First, it is incorrect to argue that Fuller’s procedural principles offer a sufficient defense of the administrative state. Second, Sunstein and Vermeule mistakenly treat administrative law as a self-contained set of procedural rules that operate independently of the substantive rules they are designed to enforce. In most cases, therefore, our authors regrettably never detail the underlying factual record, nor do they quote the relevant statutory or judicial language. Together, these two significant omissions create a dangerous disconnect between the law in action and the law on the books. Third, as a consequence of these omissions, Law and Leviathan insists that rescuing Chevron and Auer from their many critics need address the doctrinal niceties only. In so doing they commit the far greater sin of ignoring the blatant and avoidable abuses of the administrative state in area after area, whether it be in environmental, labor, civil rights, security, patent, or water law.