*This is the fifth post in a series on Cass Sunstein and Adrian Vermeule’s new book Law and Leviathan: Redeeming the Administrative State. For other posts in this series, click here.

In their book, Law and Leviathan, Cass Sunstein and Adrian Vermeule seek to “recover and renew the force” of a collection of natural or foundational principles that constitute “the morality of administrative law.” (p. 8). Among these are principles the Supreme Court has emphasized in decisions, most notably Wong Yang Sung (1950) and Vermont Yankee (1978), that extoll the superstatute character of the Administrative Procedure Act (APA). The authors’ principal difficulty is that modern administrative law (under Vermont Yankee) insists that procedural requirements for agency action be grounded in the text of some positive law. But the morality of administrative law depends upon principles that are “difficult to root in the text of the APA” or the Due Process Clause. The authors devote much attention to this issue, but do not resolve it. In the end, they admit the irony in their position and argue that, “on a higher level,” their approach is “a faithful translation or interpretation of Justice Jackson’s project in Wong Yang Sung.” (p. 9).

In this post, I’ll suggest that Sunstein and Vermeule may need to go further back—before the APA—to adequately ground the morality of administrative law. Doing so may reveal that the problem (and irony) is not in the authors’ position, but in modern administrative law itself. My hypothesis is that an overly rigid formulation of Vermont Yankee’s textualist positivism conflicts with Congress’s decision in the APA to partially codify a rich and continuing constitutional common law.

The story begins before the APA was enacted, when administrative procedure was determined by a combination of agency-specific statutory requirements, agency practices, and constitutional common law developed by the courts as a matter of due process.

An exemplar is Morgan v. United States (1938), a case involving ratemaking by the Secretary of Agriculture under the Packers and Stockyards Act. The statute empowered the Secretary to fix maximum prices for stockyard services, but only after conducting a “full hearing” and determining that the existing rate “is or will be ‘unjust, unreasonable, or discriminatory.’” The statute did not specify the procedural elements of “full hearing.” Presented with a due process challenge to a particular rate order, the Supreme Court did not hesitate to fill in the details itself. It explained that a “full hearing” means “a fair and open hearing,” elaborating that:

The right to a hearing embraces not only the right to present evidence, but also a reasonable opportunity to know the claims of the opposing party and to meet them. The right to submit argument implies that opportunity; otherwise the right may be but a barren one. Those who are brought into contest with the Government in a quasi-judicial proceeding aimed at the control of their activities are entitled to be fairly advised of what the Government proposes and to be heard upon its proposals before it issues its final command.

Moreover, the Court reasoned that “Congress, in requiring a ‘full hearing,’ had regard to judicial standards—not in any technical sense but with respect to those fundamental requirements of fairness which are of the essence of due process in a proceeding of a judicial nature.”

Morgan had a meaningful and immediate effect on administrative hearing procedures and, ultimately, on the APA’s hearing provisions. The Department of Agriculture responded to the Supreme Court’s decision by modifying its procedures and practices under the Packers and Stockyards Act. Other agencies subject to statutory “hearing” requirements in adjudication did likewise. As I discovered while doing the research for a forthcoming article, the resulting hearing procedures were well documented by the Attorney General’s Committee on Administrative Procedure, which in turn supplied what Kenneth Culp Davis described as the APA’s “intellectual foundation.” The Supreme Court’s decision in Morgan echoes through the APA’s hearing provisions.

So far, this is surely an unsurprising story—it is well understood that the APA codified various preexisting principles of due process. Perhaps the most prominent example is the APA’s distinction between rulemaking and adjudication, which harkens back to the Supreme Court’s landmark due process decisions, Londoner (1908) and Bi-Metallic (1915).

Three additional points—two of which are larger than administrative law—complicate the story and further illuminate the problem Sunstein and Vermeule struggle to address.

First, the modern approach to procedural due process under the flexible balancing test of Mathews (1976) rejects the active judicial role that seems to have prevailed in the pre-APA period. We should be wary of attributing to the Congress of 1946 our modern disapproval of the judicial development of procedural requirements as a matter of constitutional common law under the Due Process Clause.  

Second, and perhaps related, the commitment to textualist positivism articulated in Vermont Yankee requires courts to pay more attention to authorizing legal texts than seems to have been the norm in the pre-APA period. This may explain why older cases that supply principles key to administrative law’s morality, such as Arizona Grocery (1932), are inattentive to identifying their textual foundation. Morgan is clearly a due process case, although the opinion does not reveal a Supreme Court overly concerned with careful exegesis. Still, perhaps it is relevant that the year Morgan was decided—1938—was a big year for positivism. The Federal Rules of Civil Procedure first became effective in 1938. And the Supreme Court decided Erie (1938), declaring: “There is no federal general common law.”

Finally, as Sunstein and Vermeule’s project makes plain, the APA only partially codified the constitutional common law of administrative procedure that had been developed as of 1946. The requirements that were included in the statute were the minimum procedures necessary to ensure due process without hamstringing administrative agencies. This is certainly how the Supreme Court in Wong Yang Sung seems to understand the statute. Many important principles—including some that Sunstein and Vermeule identify as essential to administrative law’s morality—were simply not included.

The irony in Sunstein and Vermeule’s position is thus revealed to contain two difficult questions that go unacknowledged in Vermont Yankee. First, by enacting the APA, did Congress disapprove of the important administrative law principles that it chose not to codify? Second, by enacting the APA, did Congress disapprove of the courts continuing to develop constitutional common law in the spaces left open by the statute?

I’m inclined to answer both questions in the negative. Doing so accommodates dual commitments to the APA’s text and to the broader morality of administrative law.

Emily S. Bremer is an Associate Professor of Law at the Notre Dame Law School.