The Administrative State: Who Makes the Rules?

In a recent New York Times op-ed, Harvard Law professors Cass Sunstein and Adrian Vermeule sought to change the terms of the debate over the growth and bloat of the federal administrative state. In the op-ed (“The Very Structure of Modern Government Is Under Legal Assault”) they write that when viewed “most sympathetically,” conservative critiques of the administrative state “reflect a commitment to the values of legality, accountability and liberty.” But these critiques are misguided, they claim, because “the best way to promote such values is not by deconstructing anything, but by adapting and making new an old idea: the rule of law.” Unfortunately, it is Sunstein and Vermeule who are misguided, as they sidestep the central gripe of those who fret over the size and scope of the administrative state: that it is undemocratic.

In making their argument, Sunstein and Vermeule rely heavily on the eight essential preconditions that a legal system should be based on if it is to promote the rule of law. These preconditions — as outlined by Lon Fuller in his seminal 1964 work, The Morality of Law — include requirements such as making laws transparent, not contradictory, comprehensible, and stable. Sunstein and Vermeule argue that courts must above all take seriously Fuller’s notion that the legal system must itself embody high moral standards, must have “a kind of inner morality,” if it is to uphold the values of legality, liberty, and accountability. We need not peel back the administrative state under this view. Instead, we need only hold it to sufficiently high legal standards — standards of clear rule-making, uniform enforcement, etc. By simply ensuring that executive agencies adhere to Fuller’s requirements reasonably well, Sunstein and Vermeule claim, courts can forge “a way forward for the law” and “settle and regulate the intense conflicts over the administrative state.”

Not so fast. Of course, Sunstein and Vermeule are right that having transparent and comprehensible laws and rules is an important, praiseworthy aspect of a legal system — an ideal to which we must aspire. But if the EPA, the Department of Labor, or the Consumer Financial Protection Bureau were to make their myriad rules less arcane, easier to understand, and internally consistent (the thought!), would that really end the debate? Would that really answer the conservative critique of the sprawling administrative state?

No, because the real battle over the growth of the administrative state is not over whether the rules are clear, but over who makes the rules. Transparency and comprehensibility are necessary, but they are not sufficient to promote “the values of legality, accountability and liberty.” To actually do so, they must be paired with representative democracy — with the structures of self-government. The Framers recognized this in drafting the Constitution, which explicitly vests “all legislative Powers herein granted . . . in a Congress of the United States” — a body of citizens elected on a regular basis by their fellow citizens, not a body of unelected technocrats and experts.

Why did they do this? Because under a republican form of government, one “in which the scheme of representation takes place,” as James Madison put it in Federalist No. 10, lawmakers are ultimately accountable to their constituents — to the citizenry. Legislators are empowered to refine the public views and passions, and they are equipped with the time and resources to deliberate with one another about the common good. And crucially, thanks to regular elections, they are dissuaded from running roughshod over the people’s liberties. In the end, the people are in charge.

This is the genius, straightforward way in which the Framers designed our government to uphold the values of accountability and liberty. Unfortunately, under our present governing scenario, when many executive agencies and the bureaucrats who staff them are effectively promulgating laws, however well-intentioned they may be, they simply don’t face the same electoral constraints that their elected counterparts do; the causes of liberty and accountability inevitably stand to suffer no matter how clear and transparent and consistent the rules may be.

There is a reason, after all, that in his Gettysburg Address, President Lincoln extolled the importance of “government of the people, by the people, for the people” — i.e., self-government. He did not affirm government of the bureaucrat, by the technocrat, for the people, because that is not how Lincoln understood the constitutional order that he was waging war to uphold. And Lincoln (unsurprisingly) was right. The central thrust of American government, as articulated in the Declaration and legally embodied in the Constitution, is that the work of governance is meant to be a bottom-up, democratic affair, not the top-down rule of monarchy or aristocracy.

And this, of course, is why the administrative state is such a problem, and why Congress’s dereliction of legislative duty and its bald willingness to aid and abet the rise of the administrative state is so galling. Having unelected, independent rule-making bodies — however well-intentioned, expert, and intelligent they may be — flies in the face of the core premise of the American experiment: that the people are fit to rule themselves, and that they ought to do so.

The American constitutional order is grounded in the good of self-government, a good distinct from the rule of law. Sunstein and Vermeule are right to argue that we should do our utmost to strike the balance between Fuller’s eight essentials — to do our utmost to sustain a flourishing rule of law — but simply upholding the rule of law is not enough. As Americans, we also have a duty to engage in the difficult, crucial work of self-government. We must not delegate that work away.