REVIEW: Law & Leviathan – Cass R. Sunstein, Adrian Vermeule (Belknap Press, 2020)

After eight years of Barack Obama’s administration and four years of Trump’s, the average conservative’s gut reaction to hearing a positive defense of the administrative state tends be: “you are completely out of your mind.” This comes after years of public schooling so soft on civics and government that it’s a wonder average Americans have any legal vocabulary at all; and with this in mind, it’s no surprise that the political divide too often gets reduced to “government bad” versus “government good”. The unintelligent mumbling that “it depends” marks one as an enlightened third party voter, but any actual nuance gets lost in the exercise.

Law & Leviathan not only addresses this but defends the administrative state within a framework of administrative law. For those uninitiated into administrative law—such as yours truly—the slim volume is something of a mostly-legible exegesis of court cases, principles, and overviews as they apply to the governing of administrative bodies. In that respect, the book’s title exactly reflects its content.

The authors point out their own goals in writing the book in the first chapter: for Sunstein, the “broad discretion” for the administrative state “should be subject to welfarist principles, ensuring a focus on human consequences and employing a cost-benefit analysis”¹. Vermeule is “unenthusiastic about cost-benefit analysis,” though he agrees “that promotion of the common good and human well-being, broadly understood, are the proper ends of government”². This is an interesting combination, as Sunstein’s critique comes bathed in materialism, while Vermeule argues from his now-infamous position that, insanely, the role of government is to safeguard the common good. Sunstein, in his own way, probably believes the same, though cost-benefit analyses too frequently prove not to be the best means of determining such ends.

Before they get to their defense, the authors begin with a chapter amusingly entitled “The New Coke,” evoking the “heroic opponent of Stuart despotism”, Edward Coke:

The main concern of the New Coke is the overriding fear that the executive will abuse its power. That fear was entirely familiar to those who designed the Constitution, and to that extent, critics of contemporary executive power can certainly find support in the original understanding. After all, the Constitution was written in the aftermath of a revolution against a king, and fears of executive power were unquestionably prominent in that period. Before the American Revolution was won, those fears were defining.

But the US constitutional order in general, and administrative law in particular, attend to other goals and risks as well, and do not take prevention of executive abuses as the overriding goal or master principle. Indeed, members of the founding generation wanted a strong national government, not a weak one.³

Here we see the authors fixing their sights on appropriate targets of ridicule: namely, the right-liberal belief (although at one time also a left-liberal talking point) of a libertarian-minded collection of Founding Fathers who fought to establish a quasi-anarchical collection of free states divorced from England. A critique of such a view requires a thoroughness of historical survey that, of course, this volume is unfit to indulge in; the writers instead address the main issues at hand: the relationship between law and administration.

The book deals predominately with the internal morality of legal frameworks, by which we mean how to organize a body of law such that it’s a) doing what it’s supposed to be doing and b) ensuring that what it’s supposed to be doing is good. For this, the authors turn, quite understandably, to Lon Fuller, who put together a standard of “eight ways” in which attempts “‘to create and maintain a system of legal rules may miscarry.’”⁴ These rules, familiar enough to legal scholars, should strike the average layman as describing a structure of law that stands in direct opposition to the nightmarish bureaucracies of Franz Kafka’s imagination⁵. In other words, a Fullerian approach to the rules of law is one in which the rules can both be known and make sense.

The writers do note, however, that these aspirations are more of a set of guidelines than actual rules: “in the real world of American administrative law,” they note, “the problem will usually be less a failure than an arguable insufficiency”:

No legal system has come close to the utopian picture associated with the morality of aspiration, but that is hardly a fatal defect. Another way to put it is to suggest that there is an optimal level of transparency, retroactivity, and intelligibility, and to arrive at the optimal level, trade-offs must be made, including consideration of costs of multiple kinds.⁶

This comes in the chapter outlining the various pragmatic issues in determining and implementing law’s internal morality. It covers a variety of different bases that will be mentioned more below, but before that, it’s worth reflecting on the purview of administrative law in the first place. Judicial independence renders inadmissible any sort of “telephone justice,” the writers point out, referencing the Soviets’ method of having a red telephone in every court for party business, the ostensible purpose of which involved “the executive interven[ing] directly in formal adjudication”.⁷

In terms of certain judicial duties, avoiding such an abrogation of justice is valid enough, but it gets tricky when dealing with the regulation of agencies. Appeals to due process, as if that’s able to explain whether an executive’s direct involvement in the localized or day-to-day affairs of an agency is valid or not, doesn’t answer anything. The writers explain how

“due process” is a common lawyerly reflex, but a moment’s reflection suggests that, at best, only a penumbral emanation of due process can be at issue here. […] the crucial issue is not whether the neutrality of the adjudicator has been compromised, but who, exactly, the adjudicator should be understood to be. The executive position, of course, is that the agency adjudicator is ultimately exercising the president’s own power to execute the law, as a subordinate to the president, so that it is a categorical mistake to see the president as interfering in the decision of the tribunal. In such cases, the president is just supervising the delegation of his own agents.⁸

As the writers note, what’s happening here is that “judges are recording and applying a set of intuitions about paradigmatic cases of adjudiciation, and adjudiciation’s natural morality, and applying them to the administrative setting.”⁹ The mentality behind preventing kangaroo courts is not sufficient to guard against bureaucratic and administrative tyranny, in other words, regardless of what one thinks about whether the executive has a right to micromanage his bureaus.

The common threads here come down to this: determining whether administrations are even capable of regulating themselves, and then determining both the logistics and the morality of whether they should. Courts are usually considered the only body capable of dispensing neutral regulations upon otherwise self-governing bodies, but they’re hardly a stopgap; “courts may also err themselves,” the writers comment, “disrupting rational and predictable agency policy making schemes, thereby reducing… satisfaction of the Fullerian ideals by the overall system.”¹⁰ In fact, the mere “threat or risk” of unreliable court regulation can be “disruptive” for that agency’s functioning.¹¹

Meanwhile, the writers freely admit that “there is no question that agencies may err” in terms of “sufficiency and optimality,” and that these errors can arise just as much from “incompetence” as from “self-interest”.¹² This seems to leave us in a conundrum that can only be resolved based on which sort of regulator we trust more: the self-interested administrator with intimate familiarity of the subject matter, or (presumably) impartial courts who by nature lack that familiarity. This isn’t necessarily true, however, as the Supreme Court itself has “long recognized that agencies must have broad discretion to make procedural choices”, having “acted to constrain oversight by lower courts” in the interests of a cost-benefit analysis.¹³ This at least speaks to a certain pragmatism concerning the problem, but it doesn’t solve the fundamental issue.

The authors offer up the Auer defense is one resolution. In principle, it means the courts defer to an agency’s own interpretation of ambiguous rules. The danger of such a legal principle seems obvious at face value; allowing a body to interpret how to run itself according to its own rules seems like the recipe for arbitrary rule. Interestingly, however, the authors point out that

With Auer, agencies can know that they have the benefit of being able to clarify ambiguities; without Auer, they would not have that benefit, and might therefore speak precisely. But the idea that Auer results in motivated and nefarious obscurity—“a dangerous permission slip for the arrogation of power”—strikes us as a phantasmal terror. Indeed, we are unaware of, and no one has pointed to, any regulation in American history that has designed vaguely and broadly because of Auer.¹⁴

Counter-intuitively, yet sensibly, Auer “also offers an incentive to write regulations with clarity,” they continue, as “it cannot be certain that an administration with different values will interpret the regulation as the agency now sees fit” should they cling to ambiguities.¹⁵ It’s sobering to remember that agencies, by and large, do want to play by the rules, because agencies tend to want to survive. “The Court’s redemptive enterprise is to legitimate,” they conclude, “rather than curtail, the administrative state by eliciting and formalizing the internal principles and logic of law’s morality.”¹⁶

Speaking for myself, someone who isn’t a law scholar, the book was informative if heavy on what seemed like technicalities—unsurprising, given its subject matter and audience. The authors do a good job briefly highlighting the complexities of the administrative state, and why it’s important not to paint with too broad a brush when generalizing what to do with it.

Read from outside of the legal field, it is surprising that neither author broaches the agencies most associated with the executive branch. The intelligence apparatus sits at the top of the list of agencies Americans are most worried about, particular when it comes to abuses and oversights. Whether—and even how—to regulate such agencies has been a topic batted around by both the right and the left, and never with any conclusions or tangible results. Some of what the authors describe in Law & Leviathan seem like it could apply to them, but given those agencies’ status and missions, it seems unlikely that much is applicable. The interests of national security, as well as the nature of the military, make them opaque to the public eye and for good reason.

Those interested in or studying law should definitely give the book a look. Anyone with interests in politics should as well, because of the attention given to aspects of the administrative state frequently overlooked by fire and brimstone-style rhetoricians.

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15.
2Ibid.
322-23.
440.
5By which I mean the Motor Vehicle Administration.
698.
783.
885.
9Ibid.
10100.
11Ibid.
12Ibid.
13101.
14127.
15Ibid.
16141.