*This is the sixth 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.

Adrian Vermeule and Cass Sunstein’s recent feat in Law & Leviathan is thought-provoking and builds on their past prolific contributions to administrative law.  The breadth of their work has had seismic impact on the field.  Students and theorists along the complete spectrum of skeptics and administrative law lovers alike would be wise to dig in and carefully consider the analysis in this latest volume.  Yet I fear that despite the authors’ exposition of broadly supportable Fullerian procedural values, significant questions remain.  Core questions.  Such as which federal entity is best equipped to make substantive value determinations consistent with the general welfare?  And how sizable a slice of the common good is to be furthered by community and private institutions rather than a federal entity of any kind? 

The book begins in part by describing supporters of the administrative state as those who believe it is essential for promoting the “common good” and it thus “does far more good than harm.”  [p. 3]  This view is contrasted with those of originalists, libertarians, and democratists who believe the administrative state has generated a crisis of legitimacy and threatens individual autonomy.  [pp. 2-3]  Vermeule and Sunstein lay out these competing views briefly, indicating that the principal purpose of their book is not to advocate one over the other but to posit a set of principles that might provide a common ground between the two.

That said, the authors transparently note that they favor robust administrative power and do not intend this book to be a deviation from that first-order position.  And although, true to their word, the volume focuses on setting forth proposed shared values rather than comprehensively rehashing longstanding disputes, the authors’ description of the pro- and con- administrative views contains clues about what the authors feel is achievable via administrative law and good, strong governance.  Therein lies the stark divergence between the underpinnings of a pro-robust administrative position and the more constrained view of those who claim the imprimatur of the vision of the Founding generation.

For example, administrative state advocates believe the role of agencies in promoting common good within contemporary society is so critical that it might even be “constitutionally mandatory, in the service of general welfare”—consistent with the general call of the constitutional preamble.  [p. 3]  Administrative cynics, on the other hand, are described more colorfully as sounding an alarm that the administrative state is a frightening, patent betrayal that “threatens the rule of law.”  [pp. 1-2 (emphasis in original)].

Certainly both groups should be able to get behind the sound, quite modest, common-sense principles that form the core of Law & Leviathan reforms.  For example, Sunstein and Vermeule note that administrative power could be more consistent with Fullerian principles of “natural procedural justice” and the morality of law so long as agencies (i) followed their own rules, (ii) disfavored and limited retroactive rulemaking, and (iii) proffered official declarations of law and policy that are congruent with the rules the agencies actually apply.  [p. 9]  These are laudable aims.  And as Sunstein and Vermeule note, a legal system without them arguably would be “unjust to such a degree that it amounts to no real legal system at all.”  [p. 15]

But a shared common purpose behind these procedural values like transparency, limited retroactivity, and consistency still leaves unaddressed the core question of the proper substance of what it is the administrative state is to do.  Sunstein and Vermeule say, generally, that it is to promote the common good and general welfare.  [p. 5]  Is that true?  Sure, the administrative state should act consistent with general welfare and enable common good to flourish.  Cf. U.S. Const. preamble; id. art. I, § 8, cl. 1 (authorizing Congress to collect taxes and other revenue “to pay the Debts and provide for the common Defence and general Welfare of the United States”).  But does the Constitution’s preamble, with its focus on the general welfare, assign independent prescriptive duties to the federal government?  Or is it essentially more descriptive, just explicating the general vision for the wellbeing of the nation as a whole?

The Preamble to the Constitution describes the purpose of establishment of the original federal document as “to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity.”  This text nowhere instructs that the government itself—rather than the fact of its existence—is to generate those conditions.  Perhaps the domestic role of the federal government is primarily just to help preserve conditions in which such aims can flourish and faith-based, local, private, and market institutions can go forth and promote the common good.  The aspirational framing of the Preamble contrasts the terminology of the immediately subsequent constitutional sections, which impose mandates through the command term “shall”—a term that appears close to 100 times in just the text of Article I of the Constitution alone.  See, e.g., U.S. Const. art. I, § 1, cl. 1 (“All legislative Powers herein granted shall be vested in a Congress . . . . which shall consist of a Senate and House of Representatives.”).

Both Sunstein and Vermeule note their support for robust government promotion of particular substantive ends.  Sunstein supports use of broad administrative discretion “subject to welfarist principles.”  [p. 5]  Vermeule agrees that “promotion of the common good and human well-being, broadly understood, are the proper ends of government.”  Id.

The authors describe their goal as not to insist on those first-order views.  Rather, they hope that Law & Leviathan will offer structural proposals that transcend current debates and provide a forward-looking unifying framework that will “accommodat[e] a variety of first-order views, with an eye to promoting the common good.”  [p. 6]  Sunstein and Vermeule roughly analogize this framework to documents such as the Universal Declaration of Human Rights, the U.S. Constitution, and the Nicene Creed, which have permitted “wide scope for contest and conflict within a common order.”  Id.  They want to similarly “provide a common language and common horizon within which disagreements can occur in a productive, structured way.”

But here is the trick.  The nation already has such a framework.  The entire constitutional order structures the rules of the road, and creates the federal system, within which policy formulation and dispute resolution is to occur.  In particular, the Constitution allocates responsibilities among the branches and specifies proper procedures for making, applying, and interpreting laws.  Sunstein and Vermeule’s Fullerian framework addresses just the way in which agencies are to make decisions.  Likely all would agree with Sunstein and Vermuele’s vision that transparency and consistency are laudable and necessary and beneficial goals for an administrative operation.  But what share of governmental power is to be exercised within that administrative framework?  What share of governmental power is held at the federal level?  And what are the common good and general welfare goals that the framework should protect?

Sunstein and Vermeule suggest that Congress, through legislation and decades of practice, has already democratically addressed these issues.  After all, this elected body is the entity that enacted the laws creating agencies like the Environmental Protection Agency and the Federal Communications Commission, with broad mandates, that the administrative cynics relish opposing and label unconstitutional.  [See p. 3]  Under Sunstein and Vermeule’s view, if Congress has authorized this broad vesting of policymaking authority, then surely there is no democratic problem with modern sprawling agencies because Congress has ordained them.

OK.  But the virtue of congressional elections is they occur every two years.  See U.S. Const. art. I, § 2, cl. 1; id. art. I, § 3, cl. 2.  One principal reason the constitutional framers assigned the House and Senate with responsibility to enact policy and rules binding the citizenry was their regular accountability through elections, meaning that policies developed by Congress will be much more immediately reflective of contemporary views and preferences than agency policies promulgated under statutes that are decades old.  True, in 1934 the Congress elected by 1930s citizens enacted the federal Communications Act.  But is it still necessarily a reflection of that democratic will today, ninety years later, when the Federal Communications Commission attempts to apply the “public interest” standard in service of that law?  Perhaps.  Perhaps not. 

Further, the constitutional framework does not establish Congress as a purely democratic decisionmaker.  A majority of each of two separate chambers of Congress must agree, as must the President (or two-thirds of both chambers after a presidential veto), for new binding rules to be imposed on the public by Congress.  Policy decisions made instead by an agency arguably—improperly—can more easily be propagated.  Policymaking by agencies bypasses the gatekeeping functions of the Article I, § 7 procedural requirements put in place to slow down and curb exuberant lawmaking.  See, e.g., INS v. Chadha, 462 U.S. 919 (1983). 

Sunstein and Vermeule question this account.  They contend that the Founders maintained some concerns about potential abuses of executive power but mainly feared potential abuse by a “legislative vortex” that would “draw all power to itself.”  [pp. 22-23]  Further, Sunstein and Vermuele suggest that those claiming the mantle of democracy to impose significantly more constraints on agencies than those embedded in simple Fullerian values misunderstand, and neglect, Founding-era views such as Madison’s discussion of essential government discretion in Federalist No. 41.  Sunstein and Vermeule rely on Madison’s statement that “‘in every political institution, a power to advance the public happiness involves a discretion which may be misapplied and abused.’”  [p. 23]  But that statement, in isolation, says nothing about how wide-ranging that discretion must be or which federal branch is to exercise it.  The reference to “every” institution could perhaps suggest that Madison was indicating that every federal entity would hold significant discretion.  But Madison’s follow-on discussion reveals him to be more specifically describing “discretion” in reference to the legislature.  See, e.g., Federalist No. 41 (observing that congressional representatives can be safely entrusted with discretion over biyearly military appropriations because the whole body of the people elect them freely every second year).  Madison further specifies in this essay claimed by Sunstein and Vermeule for support that the constitutional references to “general welfare” do not broadly grant general, open-ended powers to the federal government.  Madison says such a view would be a “misconstruction,” as any power to promote “general welfare” is constrained by the other particular “enumeration[s]” and “definition[s] of the powers of the Congress” in the Constitution.  Federalist No. 41.  This suggests that the federal legislature is the branch responsible for policy judgments on how to best further general welfare and the common good, and that even those determinations are constrained by the specific allocation of responsibilities that the Constitution grants to Congress.

Whether Federalist No. 41 supports a constrained view of federal policymaking authority within Congress, or Sunstein and Vermeule are correct that the executive and administrative agencies have broad discretion within wide-ranging policymaking areas, it is unclear how just the application of Fullerian morality will address the substantive dilemma of how best to further the common good.  Already, within several months of a change in presidential administrations, significant pendulum shifts have occurred within administrative agencies on several of the most contested policy issues of our time—such as immigration policy at the border, abortion policy related to FDA approval of the telehealth prescription of Mifeprex, and issuance of an executive order instructing agencies to revisit questions related to sexuality.  

Adherence to Fullerian principles like transparency, disfavored retroactivity, and even consistency will not address which of these divergent policy visions is correct.  So which actors are to decide the substantive content of the “common good”?  Perhaps the authors’ confidence that Fullerian principles can provide a solid framework for government to pursue, and develop the common good, reveals that pro-administrativists versus originalists and democratists simply have a titanic conflict of visions rooted in fundamentally distinct views of human nature and thus not susceptible to ready resolution.  In A Conflict of Visions, Dr. Thomas Sowell notes that one’s view of human nature “is highly correlated with the whole conception of knowledge, morality, power, time, rationality, war, freedom, and law which defines a social vision.”  [2007 ed. at 34]  He suggests that although individual viewpoints can be plotted at many points along a sliding scale, individual understandings of human nature tend to coalesce around the view of human nature as either constrained or unconstrained.  See id.  Those holding the unconstrained vision believe that “foolish or immoral choices explain the evils of the world—and that wiser or more moral and humane social policies are the solution.”  Id. at 32.  Under this vision, mankind—and government—can achieve goodness.  In contrast, those holding a constrained vision “see[] the evils of the world as deriving from the limited and unhappy choices available, given the inherent moral and intellectual limitations of human beings.”  Id. at 33.  For those of this viewpoint, the desire for progress cannot depend on government institutions, made up of flawed individuals.  Instead, for progress to occur, we must rely on “moral traditions, the marketplace, or families.”  Id.  

The procedural principles of Law & Leviathan can helpfully channel the exercise of administrative power, and should be generally supportable by those of any view—of human nature or the proper role of government.  But reading Law & Leviathan, one is left with the distinct impression that the authors are optimistic that coalescence around this framework can so adequately channel debate over core values that government will be free to continue lumbering along in its pursuit of the common good and general welfare.  For those who instead hold the view, along with Madison, that governments consist of flawed mortals who are not angels and who are themselves in need of constraint, agreement over modest procedural administrative safeguards will never be adequate.  Cf.  Federalist No. 51.  The internal morality of law cannot address the flawed problems of human nature that will lead any governmental actor, imbued with too much concentrated power, to eventually become corrupt and pursue ends at odds with the common good.  Cf. Sowell at 35 (“These different ways of conceiving man and the world lead not merely to different conclusions but to sharply divergent, often diametrically opposed, conclusions on issues ranging from justice to war.”).  Therefore, a vision adequate to shape the development of common good within this society, or any other, must identify which actors are best suited to pursue and develop that common good. 

So long as administrative skeptics believe that individuals and governments are flawed, with a tendency toward conflict, the skeptic is likely to believe that governmental power should be spread among the many, who are themselves readily responsive to the electorate for accountability.  Cf. id. at 259 (suggesting that “the loci of discretion should be as widely scattered as possible”).  And the skeptics will insist that any power exercised by such a body should itself be limited.  Application of the authors’ helpful framework and a return to a substantively more constrained federal government, together, will leave space for local communities and private and faith-based institutions to thrive and shape the common good that the authors favor.  See 1 Alexis de Tocqueville, Democracy in America 399 (Liberty Fund ed. 2012) (“Democracy does not give the people the most skillful government, but it does what the most skillful government is often impotent to create; it spreads throughout the social body a restless activity, a superabundant force, an energy that never exists without it and that, if only circumstances are favorable, can bring forth wonders.”). 

Jennifer Mascott is an Assistant Professor of Law at the Antonin Scalia Law School.