*This is the ninth 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.

The administrative state is under siege. In Law & Leviathan: Redeeming the Administrative State, Professors Cass Sunstein and Adrian Vermeule attempt a rescue. In the face of a “fundamental assault” on the premises of administrative law—an assault so severe they deploy that description twice within the span of three pages—Sunstein and Vermeule seek to explain why administrative law, in operation, is fundamentally moral and sound. The heart of some modest critiques may be true, they concede, but the leviathan of the book’s title is sufficiently constrained by law to preserve its moral legitimacy.

Rather than offer the full-throated defenses of the administrative state each has offered elsewhere, in Law & Leviathan Sunstein and Vermeule suggest administrative law has developed a set of “surrogate safeguards” that enable the administrative state to protect public welfare while preventing the worst abuses of bureaucratic excess. These safeguards do not derive from constitutional text, however, nor are they to be found in the Administrative Procedure Act (APA), but they are contained in administrative law doctrine as it has developed over the past 70 years. Further, and more importantly, these safeguards should be a sufficient response to concerns raised the administrative state’s critics—those anti-administrativists that Sunstein and Vermeule deem “The New Coke.”

At times the authors seem to suggest that these surrogate safeguards are baked into administrative law itself. As they note, the APA represented something of an accommodation between constitutional formalism and the post-New Deal Administrative State. As Justice Robert Jackson famously observed in Wong Yang Sung v. McGrath, the APA “settle[d] long-continued and hard fought contentions” through “a formula upon which opposing social and political forces have come to rest.” This “formula” did not give administrative agencies carte blanche, but it stretched prevailing understandings of due process and separation of powers just enough to provide sufficient flexibility and force to be effective. Like all compromises, this formula may have been unsatisfying—and it is not fully explicated in the text of the APA—but it embodied a set of principles that “offer a powerful rejoinder to many, though certainly not all, of the objections to the administrative state.”

While situating the origins of such surrogate safeguards in the APA-era, when pointing to examples our authors sometimes focus on more recent doctrinal developments, including some they themselves opposed. As a consequence, parts of their argument seem to be something of a rearguard action, meant to preserve as much of the administrative state—and agency discretion—as can be salvaged in an age in which devotees of the New Coke may seem ascendant. Nowhere is this more clear than with their treatment of Auer deference, under which courts are obligated to defer to an agency’s reasonable interpretation of its own ambiguous regulation.

As Notice & Comment readers know, Auer deference takes its name from Auer v. Robbins, a 1997 decision in which Justice Antonin Scalia, writing for a unanimous Court, held that an agency’s interpretation of its own regulation must be “controlling” unless it is “plainly erroneous or inconsistent with the regulation.” Under Auer it did not matter how the interpretation was issued, so long as it represented the official and authoritative position of the agency. Nor, under Auer, did it matter whether the agency’s interpretation was at odds with prior understandings of how the relevant regulatory standards might apply. In Auer itself the Court deferred to the interpretation offered in an agency amicus brief filed at the Court’s request which adopted a non-intuitive (and perhaps politically motivated) interpretation of the Labor Department’s rules concerning which supervisory employees (in this case, police officers) were eligible for overtime. Although the idea that courts should give weight to agency understandings of their own regulations was well-established, Auer embraced a more categorical rule of deference to agencies’ interpretations of their own regulations than had been the norm.

Auer was an inviting target for anti-adminsitrativists because the rule it created was so prone to abuse. Residual ambiguity is rather easy to find in federal regulations concerning complex and technical areas of administrative law. Accordingly, under Auer, regulated firms had little choice but to acquiesce to an agency’s post-hoc interpretation of potentially ambiguous regulatory text. This was so no matter the form in which it was expressed. An agency seeking deference for its interpretation of an ambiguous statutory provision would need to conduct a rulemaking or otherwise act with the force of law. But obtaining deference for the interpretation of a regulation required nothing of the kind. Under Auer, a simple guidance document, “Dear Colleague” letter, or other casual missive would suffice, so long as the agency could convince a court that the underlying rule contained residual ambiguity, and the interpretation represented the agency’s “fair and considered judgment on the matter in question.”

Many commentators viewed Auer as something of an outlier within administrative law. Even its author, Justice Scalia, came to view it as an aberration. Sunstein and Vermeule, however, had a different view. In a 2017 article they celebrated “The Unbearable Rightness of Auer,” and rejected any calls for its reform. In this paper they argued Auer’s downsides were more than outweighed by the value of yielding to agency competence, expertise, and accountability. Given the alternative of instructing generalist judges to offer up controlling interpretations of agency rules, they concluded, “the balance cuts hard in the direction of Auer.”

Sunstein and Vermeule saw nothing wrong with Auer deference as it stood, but the Supreme Court seems to have felt otherwise. When Auer came before the Court in 2019’s Kisor v. Willkie, a majority of the Court voted against overturning Auer outright, but not a single justice offered an unqualified endorsement of Auer deference as it then stood. While Justice Kagan’s opinion for the Court sought to explicate some of Auer’s virtues, this portion of her opinion only garnered four votes. Meanwhile, opinions encompassing the entire Court embraced a suite of conditions and constraints to be appended to Auer in the future.

As Sunstein and Vermeule remark in with some understatement: “Justice Kagan took pains to note that she was merely restating and expanding upon limitations already present in the case law” (emphasis added). A less charitable interpretation would be that the Court had to emasculate Auer deference in order to save it. As Chief Justice Roberts noted in his separate opinion, there are likely to be few cases in which agencies prevail with the help of Kisor-constrained Auer but would not have prevailed had Auer been overruled outright.

Insofar as Kisor v. Wilkie embodies the Fullerian principles that law should be transparent, consistent and relatively stable, it is not clear it helps the authors’ case, for Kisor represents a fairly late-stage correction that the authors themselves had opposed. Whereas in 2017 Sunstein and Vermeule trumpeted the need to maintain Auer deference so as to preserve agency flexibility, in Law & Leviathan they acknowledge that, under Kisor, agency inconsistency “counts against the agency” as much as if Auer unabridged were no longer on the books. In this fashion, Auer survives, albeit “hedge[d] round with Fullerian constraints.” Nonetheless, in Law & Leviathan, Sunstein and Vermeule consider this a “vindication of the internal morality of law.”

Herein, perhaps, lies the heart of the authors’ project: Not a defense of administrative law as it could or should be, but a defense of as much of existing administrative law as can be maintained. In this sense, Law & Leviathan adopts a defensive crouch, seeking to preserve as much territory as possible as the administrative state’s defenders seek higher and more secure ground. In this light, the “surrogate safeguards” are as much a reserve line of defense for the modern administrative state as they are a principled accommodation of the anti-administrativists critique.

In Law’s Abnegation: From Law’s Empire to the Administrative State(2016), Vermeule argued that “the long arc of the law has been steadily toward deference.” In this prior telling, courts had become ever more deferential to administrative agencies as the logic of the law worked itself toward greater consistency and coherence. The mere existence of Law & Leviathan suggests Vermeule’s prior pronouncements may have been a bit premature. As Chief Justice’s Roberts’ refusal to embrace Auer shows, one need not drink the anti-administrativist New Coke to think deference has gone too far. The law’s internal pressures may be pushing against abnegation.

In the end, Sunstein and Vermeule are likely correct that the administrative state is here to stay. Accordingly, the task of modern administrative law will be to accommodate the actual needs of administration with constitutional constraints and liberal values to reach a “sort of equilibrium accommodation.” In this endeavor, Fullerian principles may prove useful, particularly insofar as they “both channel and enable” administrative law in ways that re responsive to anti-administrativist concerns. Yet just as Kisor departed from our author’s preferences, so too this new equilibrium may lie some distance from the location Law & Leviathan describes, let alone that which the authors may prefer.

Law & Leviathan offers an insightful perspective on the 20^th century’s accommodation between law’s morality and the administrative state. Time will tell whether the accommodation it describes is more past than prologue.

Jonathan H. Adler is the Johan Verheij Memorial Professor of Law and Director of the Coleman P. Burke Center for Environmental Law at the Case Western Reserve University School of Law. Portions of the essay are adapted from a longer review of Law & Leviathan, forthcoming in Regulation.