On June 4, 2013, President Obama announced three nominations to the U.S. Court of Appeals for the D.C. Circuit, the court that hears the lion’s share of legal challenges to federal regulations. Less than six months later, Senate majority leader Harry Reid (D., Nev.) invoked the “nuclear option,” ending filibusters for lower-court nominees and ensuring the trio’s quick confirmation. This move created a decisive Democratic majority on the court.
Senate Democrats were eager to fill the D.C. Circuit bench so as to eliminate a potential threat to Obama’s regulatory legacy. Perhaps, if Harvard law professor Adrian Vermeule is to be believed, they need not have bothered. In Law’s Abnegation, he argues that judicial review of agency actions has much more bark than bite. The grand course of administrative law has been toward judicial deference to agency judgments. This is a trend Vermeule believes will continue, for “the long arc of the law has bent steadily toward deference” and there is no going back.
Courts may establish de facto national policy on symbolic social issues, such as gay marriage or free expression, but administrative law is where the real action is, because the administrative state permeates contemporary existence. Although regulatory initiatives are routinely challenged in court, judicial review of them “is becoming or has become, in area after area, a highly deferential exercise that attempts only to determine whether administrative agencies have clearly gone beyond the outer bounds of the defensible.” Constitutional and other legal constraints on agency action have subsided, but the administrative state did not so much defeat law as law acquiesced. This is the “abnegation” of Vermeule’s title, and the core of his provocative thesis. The book presents a bracing and often insightful challenge to those who believe that the modern administrative state must be tamed if American government is to remain faithful to the original constitutional design.
How did this abnegation occur? As Vermeule tells it, the same arguments that justified the initial accommodation of the administrative state at the dawn of the New Deal justified ever greater accommodations thereafter. Over time, courts became ever more permissive in their review of agency action — each time on the margin, but with a profound cumulative effect.
In 1984, in Chevron v. Natural Resources Defense Council, a unanimous Supreme Court announced that, when a statutory provision is silent or ambiguous, a reviewing court must defer to the implementing agency’s statutory interpretation, provided the interpretation is reasonable. As most (if not all) complex regulatory statutes have some ambiguity, the Chevron doctrine gave agencies broad license to steer the administrative state.
While some might argue that this trend toward deference was the product of special-interest politics or progressive ideology, Vermeule argues that it was a consequence of the law’s efforts to work itself pure: The nature of legal reasoning creates a “constant pressure” toward consistency and coherence, and in the context of administrative law, this constant pressure feeds ever greater deference as judges, ever more “aware of the limits of their own knowledge, . . . build deference into law itself.”
Vermeule is certainly correct that courts are, as a general matter, far more deferential to administrative agencies than anyone could have imagined a century ago. The requirement of agency rationality — that rules not be “arbitrary and capricious” — is a “thin” requirement, not particularly demanding of federal agencies. Vermeule is further correct to note that this is owing, at least in part, to the demands and subject matter of modern administrative law. Generalist judges lack the expertise to second-guess discrete policy judgments, let alone technical or scientific determinations, of expert agencies. Where Congress has failed to specify the assumptions or presumptions an agency must adopt, courts have no license to substitute their judgment for that of administrative officers to whom Congress has delegated such authority. The most courts can do is demand that agencies provide reasons — not necessarily the best reasons or even the most persuasive reasons, but merely substantive reasons demonstrating the underlying rationality of the agency’s course.
Yet Vermeule goes farther than such observations require, urging wholesale surrender to the perceived needs of the administrative state. By his general rule, “agencies should be able to make policy as they see fit, unless there are very clear reasons indeed for courts to intervene.” Traditional notions of the separation of powers or due process need not stand in the way. Although considered essential to the preservation of liberty by some, such nostrums must not be “idolized” and must instead “be traded off against other considerations and goods.” Constitutional constraints are not to be strictly enforced. Instead they must be “optimized.”
Indeed, in Vermeule’s telling, judges have not merely acquiesced to administrative judgments; they have, in cooperation with the executive and the legislature, subverted the entire constitutional structure. “The institutional scheme of 1789,” he writes, “created the means of its own supersession.” Thus, law’s abnegation is legitimate. “If the constitutional institutions, operating as they were set up to operate, have decided that such an arrangement is both valid and wise, then respect for the separation of powers counsels approval for the arrangement.” What Congress and the executive have joined, let no judge put asunder.
It is certainly true that the legislative and executive branches cooperated to create administrative agencies that confound traditional notions of separation of powers, and that they had reasons to do so. Some believed a looser conception of separation of powers was necessary to facilitate effective administration. Others may have recognized that delegating power and responsibility over complex and fraught policy matters was a means of evading political accountability. But this doesn’t establish that such moves were necessary, let alone wise. It is hardly a new insight to suggest that constitutional actors have incentives to evade the very limitations the Constitution erects — and the existence of such incentives, even if they manifest themselves in “sustained and bipartisan action of Congress and the president over time,” doesn’t justify the abandonment of traditional constraints. It certainly does not justify Vermeule’s Panglossian assessment of the status quo.
While at times disclaiming any approval of the contemporary administrative state, Vermeule embraces the idea that only modern administration is capable of addressing contemporary problems: “The increasing rate of change in the policy environment” demands an administrative apparatus freed from legal constraint. After all, he explains, legislatures are “structurally incapable of supplying policy change at the necessary rates.”
Vermeule might be right about the capacity of Congress, but he is constructing a false dichotomy. A modern regulatory bureaucracy is not the only available alternative to reliance upon legislative reform to keep pace with a changing environment. Clear and stable rules delineating basic rights and responsibilities, against which private actors may bargain, contract, and order their affairs, are an equally plausible response to complexity and speed. Yet to acknowledge such a possibility would be to undermine the claimed inevitability of, and need for, the modern administrative state.
Vermeule claims that law’s abnegation is impossible to reverse, that the “classical constitutional order” is “gone beyond all hope of revival.” We might find out soon: Several justices have expressed discontent with the culture of extreme deference. Most recently, in Michigan v. EPA, the Supreme Court concluded it was unreasonable for the Environmental Protection Agency to consider it “appropriate” to impose new regulations on mercury emissions from power plants without considering the cost. Soon thereafter, a majority of the Court placed a hold on the EPA’s Clean Power Plan, the centerpiece of the Obama administration’s climate-change policy. Chief Justice John Roberts, for his part, has warned of “the danger posed by the growing power of the administrative state.” Sharp critics of excessive judicial deference are also prominently featured on Trump’s short list of potential Supreme Court nominees.
While Vermeule argues that abnegation must extend not just to regulations but to questions of administrative process — specifically, What process is due to those who are subject to the vicissitudes of the administrative state? — the Supreme Court has refused to go along. While instructing courts to account for agency insights as to how specific programs operate, it has simultaneously refused to impose procedural constraints. In recent cases concerning wetlands regulation, for instance, a unanimous Court has made quick work of agency claims that regulatory burdens could be imposed without meaningful judicial review.
If Vermeule’s thesis were correct, such developments would be hard to explain, as would the courts’ failure to adopt more permanent and effective means of abnegation. The most effective way to abnegate would be not deference but disclaiming of jurisdiction, and yet that has not occurred. The Supreme Court has stubbornly refused to narrow standing to sue the federal government, extending “special solicitude” to suits brought by states. At the same time, it has whittled away at the realm of those cases deemed to raise nonjusticiable “political questions,” thereby keeping courts in the game.
Jurists are not the only ones to raise questions about the abnegation Vermeule embraces. Last year, the House of Representatives passed legislation to overturn Chevron and limit judicial deference, in addition to measures that would constrain adoption of new regulatory initiatives without legislative approval. The House leadership has pledged to reenact these measures and place them on the new president’s desk. During his campaign, Donald Trump regularly inveighed against the harm done by an out-of-control bureaucracy and pledged to sign legislation that would bring the administrative state to heel. Whether or not he thinks better of such commitments now that he is at the helm, his attacks on excessive regulation resonated with the electorate. Powerful forces may have spurred law’s abnegation. Perhaps equally powerful forces will yet produce a restoration.
– Mr. Adler, a contributing editor of National Review Online, is the inaugural Johan Verheij Memorial Professor of Law at Case Western Reserve University School of Law. His latest book is Business and the Roberts Court.