Amid Attacks On The 'Deep State,' Legal Scholars Defend The Federal Bureaucracy

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"Law and Leviathan: Redeeming the Administrative State" by Cass Sunstein and Adrian Vermeule. (Courtesy)
"Law and Leviathan: Redeeming the Administrative State" by Cass Sunstein and Adrian Vermeule. (Courtesy)

Critics of big government argue that the federal bureaucracy goes against the founding principles of the United States.

In a new book out this week, however, two legal scholars make the case that what they call the administrative state is constitutionally justified.

Here & Now's Jeremy Hobson speaks with Cass Sunstein and Adrian Vermeule, authors of "Law and Leviathan: Redeeming the Administrative State."

Book Excerpt: 'Law And Leviathan'


“Long-Continued and Hard-Fought Contentions”

Is the modern administrative state illegitimate? Unconstitutional? Unaccountable? Dangerous? Intolerable? American public law has long been riven by persistent, serious conflict, even a kind of low-grade cold war, over these questions.

Critics of the administrative state argue that constitutional and administrative law have come to license an administrative apparatus wielding executive powers of frightening scope and power. According to the critics, these developments threaten to undo the original constitutional structure, intrude on private ordering and economic liberties, and produce unaccountable and undemocratic policymaking. The critics make three separate points.

First: Broad grants of authority to agencies amount to an unconstitutional transfer of legislative power to the executive. In defiance of Article I, Section 1 of the US Constitution, agencies now exercise that power. Second: Some of the most powerful agencies are independent of the president, and so represent an invalid encroachment on the executive power. In defiance of Article II, Section 1 of the Constitution, these agencies exercise executive power free from presidential control. Third: The modern rule of judicial deference to agencies on questions of law is an encroachment on the judicial power, or perhaps an abdication of the judges’ obligation to say what the law is. In defiance of Article III, Section 1 of the Constitution, agencies are allowed to interpret the law.

In the critics’ view, then, the administrative state manages a neat trick. All at once, it violates the original constitutional allocations for the vesting of legislative, executive, and judicial powers.

The critics are no monolith; with respect to particular issues, they combine in shifting coalitions. Some of them are originalists; they aim to speak on behalf of what they see as the original meaning of the Constitution. Others are libertarian; they are focused on liberty, as they understand it, and they think that modern administrators endanger it. Still others are democratic; they are concerned with accountability and democratic control. There are important differences among these perspectives (and in different variations, they can be found in many nations). But they converge, above all, on one major concern: that the administrative state threatens the rule of law.
To originalists, the administrative state is a patent betrayal of the commitments of the original constitutional scheme and the system of separated and divided powers.

To libertarians, agencies possess largely unchecked discretion that allows them to wield arbitrary power, intruding on private liberty and private property and acting in violation of core rule-of-law values. To democrats, the chain of accountability from We the People to officials wielding state power is simply too weak; it is undermined by grants of excessive agency discretion, which allow legislators to duck political responsibility for ultimate policy choices.\ Of course, these concerns can be mixed and matched in all sorts of ways. Originalists may say that the Constitution, rightly understood, creates a chain of democratic accountability, libertarians may say that the original Constitution was libertarian, and so on. In any case, the very existence of the contemporary administrative state is said to create some kind of crisis of legitimacy.

Supporters of the administrative state, although highly diverse in their approaches and emphases, reject the idea that it is in some wholesale way politically or legally illegitimate, whatever local problems and pathologies it doubtless displays. They think that it is essential to promoting the common good in contemporary society; that it does far more good than harm; that it is a clear reflection of democratic will; and that it is entirely legitimate on constitutional grounds. In short, they welcome it. Sometimes they urge that far from being constitutionally forbidden, the administrative state is constitutionally mandatory, in the service of the general welfare.

Pointing to early practice in the American republic, the supporters emphasize what they see as the weakness of the originalist arguments against the administrative state. They deny that it violates the original meaning of the Constitution. They insist that nothing in Article I, Article II, or Article III is inconsistent with the general operation of modern administrative agencies. They point to the constitutional legitimacy of the administrative state as embodied invalid congressional authorizations (which, after all, created the Department of Transportation, the National Labor Relations Board, the Environmental Protection Agency, and the rest). Some of them contend that originalism is not the proper approach to constitutional interpretation. They add that it would be arrogant, a form of hubris, to reject many decades of settled understandings, even if those understandings did turn out to run up against widely held views in the 1780s and 1790s.

Some supporters of the administrative state also underscore its democratic accountability, mediated through both Congress and the presidency in different ways. They note that Congress, which is democratically accountable, is subject to the citizenry, even if it grants broad discretion to administrative agencies. If Congress does that, perhaps that is exactly what the citizenry wants it to do. If so, what’s the democratic problem? Recall that all of the major agencies are creations of Congress. In any case, many of the most important agencies, including the cabinet departments, are run by people who serve at the pleasure of the president, and so are in that sense highly accountable to him.

To be sure, some agencies are “independent” of the president, in the sense that their members can be fired only for cause. This is true of the Federal Trade Commission, the Federal Communications Commission, the Federal Reserve Board, and the Nuclear Regulatory Commission. But the independent agencies are not all that independent. Their chairs are appointed by the president, after all, and most of the time, their policy preferences are broadly in line with the White House. Even if the president cannot order these appointees to make particular decisions, the power of appointment, together with other authorities, ensures that they are anything but a “headless fourth branch” of government.

Finally, supporters defend the administrative state as embodying a reasonable set of judgments about the common good and the general welfare. Indeed, they say that the administrative state is, in some form or other, essential to protecting the liberty and welfare of many people who would otherwise be hurt or subordinated by market exploitation or unjust terms of employment, or harmed by the vagaries of ill health, poverty, pollution, and old age.

They argue that much of administrative activity is a response to market failures, as when polluters are able to avoid paying for the problems they cause.7 They also contend that administrators respond to an absence of information (on the part of, say, employees, consumers, and investors) and to unfair background conditions, deprivation, and unfairness.

In these ways, those who support the administrative state deny that it is a threat to liberty, properly understood. Consider some of the actual activities of that state. Would people be freer without child labor laws? Without occupational safety laws? Without food safety laws? Without protection from sexual harassment? Without air pollution laws? Without protection against pandemics? Some defenders of the administrative state argue that it is not only constitutionally permissible but also in some sense mandatory, if the goal is to carry into execution the promises of the constitutional scheme.

Excerpted from "Law and Leviathan: Redeeming the Administrative State" by Cass Sunstein and Adrian Vermeule. Copyright © 2020 by Cass Sunstein and Adrian Vermeule. Republished with permission of Harvard University Press.

This segment aired on September 14, 2020.



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