In the didactic genre (or subgenre), “mirrors for princes,” philosophers instruct kings and princes how to rule. A good example is Machiavelli’s The Prince, or perhaps Giovanni Botero’s Della ragion di stato. Interestingly, it is this last work—counselling “firm rule over people”—which grounds the insurgent common good constitutionalism, the New Right’s substantive legal theory. This theory justifies a more expansive role of the state, as Adrian Vermeule tells us in the Atlantic and explores in more detail in his important new book Common Good Constitutionalism. And Josh Hammer seems to take this one step further, arguing that a conservative vision of the state may, at times, require state action “to ‘enforce our order,’ or even to ‘reward friends and punish enemies (within the confines of the rule of law)'” (citations omitted).

[11/15/2022 Update: This post has been updated to properly attribute the above quote to Josh Hammer; the original post had incorrectly attributed the quote to Adrian Vermeule.]

Administrative law is not unaffected since bureaucracy is how the executive administers carrots and sticks. At Ius & Iustitium, Conor Casey (following Vermeule at Mirror of Justice) argues that the “neutral institutional technology” of bureaucracy can be used to achieve the substantive ends that preoccupy common good constitutionalists: advancing a particular conception of traditional morality, regulating private corporate power, and even attacking “spiritual anomie.” To accomplish these aims, Casey focuses on several tools, including appointments, regulatory preclearance, and the purse strings, among others. 

Despite the normative ambition of common good constitutionalism, its surprisingly instrumentalist account of bureaucracy reads out the role legislatures and courts play in controlling the pathologies of administrative power. On this account, legislative delegation to the executive creates a principal-agent relationship.[1] Courts conduct judicial review to ensure that the administration acts a proper agent, staying within the confines of its legislatively-granted authority. Common good constitutionalism appears to permit (indeed, require) the executive to obtain control over the administration to the exclusion or minimization of legislatures and courts. 

There are drawbacks to this theory from a practical and theoretical perspective. Practically, administrators conditioned by their own moral visions and institutional dynamics may simply resist common good constitutionalism, not least because it is so baroque and substantive. This will lead to prohibitively costly monitoring efforts to ensure that bureaucratic action aligns with the complex political agenda. Second, given the practical concerns, common good constitutionalism’s deferential posture may simply set up islands of unaccountable administrative power, drawing on idiosyncratic or peculiar conceptions of constitutional rights. If deference is taken too far, these idiosyncrasies may stand, diluting the consistency of constitutional rights across institutional contexts.  

A point of caution: the relationship between executives and bureaucracies is not uniform in different jurisdictions, and no blog post can survey all possible scenarios and arguments. Nonetheless, like Casey does, one can tentatively proceed at a high level of generality, assuming a legal system that has a relatively independent judiciary, a legislature that delegates power, hierarchical and expansive bureaucracy supervised at the upper echelons by executive actors, and a constitution.  

*** 

It is important to begin with a realistic assessment of the role of administrative power. Casey is right, in his post, to say that bureaucracy is ubiquitous. In the Western world, there is no wishing it away. Neither is the idea of political control necessarily problematic.[2] Instead, the question is how we live with administrative power and discretion. 

Answering this question must begin with understanding the problem. For Vermeule and Casey, administrative power is tightly connected to the executive. As Vermeule envisioned in his Atlantic article, the bureaucracy acts as “the strong hand of legitimate rule.” Casey sees the bureaucracy as controllable for any purpose by the executive. Both see bureaucracy as the means to advance the executive’s agenda, nothing more than a neutral tool.  

The instrumentalist, faith-based view of bureaucracy is ironically reminiscent of the old Progressives like Landis and Goodnow.  Those Progressives saw the administrative state as the sword of social justice, particularly in the New Deal era. But their view was always myopic. While professionalism and expertise are important features of some administrative agencies, not all are created equal. All agencies can suffer from the  inherent pathologies that have been extensively surveyed in the public choice literature, including maximizing agendas, shirking, and information asymmetry.[3] Bureaucracies require resources, typically more and more every year. This creates real problems— the ability of agencies to even deliver on existing missions, let alone others, is an open question in Canada, where a lack of state capacity has become a concern.[4] Additionally, some agencies may have political valences that correlate with undermining certain statutory or constitutional protections, particularly when those protections are claimed on behalf of unpopular minorities; other agencies will have other different predilections in different contexts.[5]  As Bernardo Zacka argues, bureaucrats who reason about their statutory limits develop moral visions; but these moral visions are conditioned by the mission, resources, and organization of the agency in which they work.[6] They will not always track to the requirements of the principal, even if the executive adequately controls the bureaucracy. Indeed, agents themselves can become principals, upending political control.[7] 

In this sense, bureaucracy is not neutral because of its inherent pathologies. Those pathologies may be worth the trouble, but not in every case.  Common good constitutionalism elides these questions. The theory will require costly monitoring of the substantive mission of agencies, not for their compliance with the law underlying their authority, but for their ideological conformity with the executive. Because common good constitutionalism is a thick, substantive theory of law, it will require an identity of interest between executive and administration; drift in this context will be fatal to the mission, and purity will be required. A common good constitutionalist executive will need to spend precious political and financial capital to discipline or expel those who may not share the bespoke view of the natural law propounded by Casey and Vermeule. He will need to ensure that the rank-and-file (who may have tenure protections and cannot be removed by whim) are adequately instructed in the baroque features of the theory. Any bureaucrats remaining after the purge may be forced to alter their own moral visions, or condition their technical expertise to account for the predilections of their political masters.  

This leaves common good constitutionalism in an odd position. As Ilya Somin says, “insulated agencies still wield power with little or no democratic accountability.” In face of the real concern that common good constitutionalism will empower and insulate agencies, it cannot explain how it plans to control the bureaucracy. If so, then it has no real theory of bureaucracy, except as an appendage of the executive. But that appendage will never fully attach.  

*** 

Given the real-life separation between the executive and administrative bodies in our stylized picture, there would be a problem with across-the-board deference to that apparatus, especially on constitutional grounds.  In his recent book, Vermeule suggests that the American doctrine of administrative law is shot through with moral principles, including deference.[8] Whether this is true is beside the point. The deference that common good constitutionalism invites will arguably distort important legal protections by granting administrators room for constitutional experimentation, undermining the consistent application of constitutional rights. 

As Paul Daly argues, administrative law can serve several different functions, including individual self-realization, good administration, electoral legitimacy, and decisional autonomy.[9] Doctrines of administrative law can track to any number of these values, and not all doctrines concern policing the jurisdictional boundaries of the administration. Nonetheless, perhaps the most important feature of administrative law going back to the English prerogative writs is the constraint of government power—holding the agent to its grant of authority.[10]  This feature promotes good administration by ensuring that the administration hews closely to the statutory law.[11] Where relevant, constitutional law is a meaningful constraint on administrative action. Crucially, independent courts are bulwarks against arbitrary administrative power, precisely because they allow an independent forum for contestation of government acts under the law and Constitution. An independent forum for ex post contestation is a valuable tool to guard against arbitrariness or domination based on epistemic advantages, which may proliferate in the administrative state.[12] In Canada, judicial review on certain grounds is so important that it is constitutionally protected.[13]  

I fear that common good constitutionalism, like other modern theories of the administrative state that take on a hue of political constitutionalism, may undervalue the importance of judicial review in this area. Vermeule says that, like the praetors of Roman law, the executive has the power to flesh out, supplement, and adapt the law to meet “changing conditions over time”.[14] Since agencies are fully controlled by the executive on this account, they  are quite literally “the living voice of our law.”[15] Casey highlights that their technical expertise can be weaponized by the executive for its aims. Putting these pieces together, agencies are owed deference in specifying statutory content and developing the law, perhaps even when they rely on general principles of the natural law that may or may not be relevant in a statutory or constitutional context.[16]  

Similarly, under the heading “Guardians of the Constitution,” Casey argues that the executive has a special responsibility to “advance its views on the proper interpretation of the Constitution before the Court,” in cases involving private litigants. This itself is unremarkable. But presumably, here as well, the executive—and its administrative arm—would be owed deference as the “living voice of our law.”  

Putting aside the idea that deference is owed on the basis of unadorned “expertise,” 
the common good constitutionalist leaves the administration relatively free to experiment with the Constitution. This should be avoided. Indeed, Canada has experience with this sort of deference, which is commensurate with the theory of “administrative constitutionalism” embraced in the literature.[17] In Doré v Barreau du Quebec,[18] the Supreme Court of Canada held that administrative decision-makers are owed deference when they exercise their discretion to implicate constitutional rights.  This theory of deference was created by a Canadian judge who endorsed both a small-p and big-P-progressive position on the administrative state. 

It is remarkable, then, that common good constitutionalism may lead us to the same destination. Doré has come under attack in Canada because it arguably undervalues constitutional rights—that is, it permits idiosyncratic administrative interpretations of the content of rights.[19] In a system where the constitution is entrenched, this is no small matter: it means that there are two tracks of constitutional protections, one for courts and one for administrators. But as noted above, Vermeule is sanguine about this possibility. He suggests, on Mirror of Justice, that administrators on arbitrary and capricious review might be able to “appeal to religious values as justifications for agency action, where statutes are otherwise silent or ambiguous.” Transposing this to constitutional review, the doctrine could permit an administrator to stray from the constitutional boundaries set up by the courts, or the executive itself, in favour of an idiosyncratic view of a right that may be inconsistent with the text and how it has been interpreted. These sorts of abstractions, within a wide field of deference, cannot meaningfully constrain bureaucratic action, and the result will be a lack of consistency in how rights are understood in different fora. 

This problem is not solved by an appeal to majoritarianism or having the “right” people in power. No matter who is in power, an account of bureaucracy that sees it only as valuable and legitimate when it is directed away (in Casey’s words) from “harmful ends” is emaciated. Any real-world bureaucracy will, from time to time, be directed to “harmful ends”, however these are defined. Neither is it satisfactory to gesture towards restrictions that flow from a particularistic definition of the natural law. Saying that bureaucracy should be guided by “the common good” does not answer how a modern bureaucratic institution in a pluralist society should justify its action to those affected. 

In principle, deference on legal questions under certain constraints can be entirely appropriate, and none of this is to suggest that courts are perfect, either. They, too, are flawed. But at a high level of abstraction, in the case of a constitution—especially an entrenched one—one purpose is to subject executive and administrative power to independent scrutiny.[20] For those who seek to contest government action, the courts are the only independent venue to test the legality, reasonableness, and fairness of administrative action. Deference dilutes function by permitting administrators to experiment with the Constitution, and given the nature of common good constitutionalism, one might expect distortions, mistakes, and arbitrariness.  

*** 

The mirrors for princes genre makes for good reading, but it is a thin reed on which to rest a theory of the administrative state. The thick theory of common good constitutionalism will demand much of functionaries. How it will create the conditions for its success is an open question, and perhaps answers are forthcoming. Nonetheless, common good constitutionalism would do well to adopt a posture of humility, a sort of Burkean minimalism, when it comes to the bureaucracy. It should consider how to control the beast, rather than attempting to liberate it for the prince.  

Mark P. Mancini is a PhD Student at University of British Columbia, Allard School of Law.

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[1] See e.g. Lord Wilberforce in the famous Anisminic Ltd v Foreign Compensation Commission, [1969] 2 AC 147 at 170, describing the court as “carrying out the intention of the legislature…”. This position dovetails with the political science literature on principal-agent relationships in administrative law. While principal-agent theory is limited in some ways, it provides a workable framework for my purposes: see e.g. McNollGast, “Administrative Procedures as Instruments of Political Control”  (1987) Journal of Law, Economics, and Organization.

[2] As I have previously argued: Mark Mancini, “The Political Problem with the Administrative State” (2020) 2 Journal of Commonwealth Law 55.

[3] See e.g. Jacob Gersen, “Designing Agencies” in Daniel A Farber and Anne Joseph O’Connell, eds, Research Handbook on Public Choice and Public Law (Northampton: Edward Elgar Publishing, 2010).

[4] See e.g. Sean Speer, “I Was Wrong About Canada’s State Capacity” (2022), online, < https://thehub.ca/2022-08-04/sean-speer-i-was-wrong-about-canadas-state-capacity/>.

[5] David Bernstein, “The Perils of Administrative Constitutionalism: An American Perspective” (2020) Journal of Commonwealth Law 135 at 145.

[6] Bernardo Zacka, When the State Meets the Street: Public Service and Moral Agency (Cambridge: Belknap Press, 2017).

[7] See Brigham Daniels, “Agency as Principal” (2014) 48 Georgia L Rev 337.

[8] Adrian Vermeule, Common Good Constitutionalism (Cambridge: Polity Press, 2022) at 138 [Vermeule].

[9] Paul Daly, Understanding Administrative Law in the Common Law World (Oxford: Oxford University Press, 2021).

[10] The point is not that this is a “exclusive, comprehensive, and sufficient explanation” for judicial review; rather, it is an important and central one, but not at all exclusive: see Mark Elliott, The Constitutional Foundations of Judicial Review (Oxford: Hart Publishing, 2001) at 30.

[11] Leonid Sirota, “Canadian Administrative Law and Good Governance” (2018) 31 CJALP 285.

[12] This is a point that arises in the civic republican literature: see Henry Richardson, Democratic Autonomy: Public Reasoning About the Ends of Policy (Oxford: Oxford University Press, 2002) at 41.

[13] Crevier v AG (Quebec) et al, [1981] 2 SCR 220.

[14] Vermeule, at 137.

[15] Vermeule, at 138.

[16] Vermeule, at 152.

[17] See e.g. Gillian E. Metzger, “Administrative Constitutionalism” (2013) 91 Tex L Rev 1897.

[18] Doré v Barreau du Quebec, 2012 SCC 12.

[19] See Brown and Côté JJ in Law Society of British Columbia v Trinity Western University, 2018 SCC 32 at para 308.

[20] Ell v Alberta, 2003 SCC 35 at para 23.