Harvard Law professors Cass Sunstein and Adrian Vermeule have set themselves a daunting task for a slender volume: convince readers to stop worrying and learn to love the administrative state. “Our main project,” the authors tell us, “has been to put contemporary administrative law in its best light.” Unfortunately, Law and Leviathan fails to make the sale, in good part because it can never quite decide what it is selling.
The book’s narrative coherence is not helped by having two authors with such divergent worldviews and styles. Sunstein, typically a conversational writer to the point of glibness, is a moderate-liberal utilitarian who ran the Obama administration’s Office of Information and Regulatory Affairs. He co-wrote the nanny-statist 2008 book Nudge, which argued for using regulation to nag people into making better choices. Law and Leviathan admits up front that its authors disagree on the cost–benefit analysis that is the heart of Sunstein’s thinking and the basis of much administrative decision-making. Vermeule, by contrast, is essentially an admitted right-wing theocrat, a devotee of integralist theory, which seeks to make Catholic doctrine the basis of all public policy. Unsurprisingly, given the contrast between Vermeule’s ideas and the secular academic milieu in which he has made his career, he tends to write with indirection and coyness about the implications of his arguments. Law and Leviathan bears the hallmarks of that rhetorical camouflage.
What its authors share is an affection for administrative law and for the vast federal bureaucracy. What they both reject are originalist and textualist interpretations that seek to ground the legitimacy of law in text passed by the people at a particular time. The administrative state has frequently been criticized on grounds of both constitutional law and democratic theory. Sunstein and Vermeule reject the constitutional challenges to its legitimacy, but this book is not a legal brief for the constitutionality of any current practice. The authors cite scholars (including themselves) making the case for the constitutionality of administrative law elsewhere. They spend the entire opening chapter sneering at what they call the “New Coke” of constitutional assaults on the administrative state, but given that the book asserts rather than elaborates on the authors’ reasons for rejecting those arguments, the chapter could easily have been condensed to a paragraph and some footnotes.
Nor do they seek to marshal empirical evidence or anecdote to demonstrate that the administrative state is effective, moral, or popular in practice. The book aims instead to occupy the space between legal scholarship and popular polemic. It vacillates between describing the law as it is and tracing the goals of the law as it ought to be. Law and Leviathan will be more satisfying for the reader seeking a descriptive account of the problems and doctrines of administrative law than for the reader seeking a normative prescription. The book is structured around Lon Fuller’s framework for defining what law is — rules are understandable, rules are not retroactive, rules are administered as written, etc. — and it works through how administrative law has handled the challenge of living up to that standard. But the argument in favor of this state of things is rootless.
Consider the threshold question of democratic legitimacy. Sunstein and Vermeule, as anti-originalists with a legal-realist bent, not only disagree with originalist critiques; they freely admit that “it is not possible to describe all or even most principles of administrative law, as it has evolved, as rooted in the text or original understanding of” the Administrative Procedures Act. The same is true of the grounding of their preferred rules in the Constitution. In fact, they agree that the cynicism of legal realism — which tends to see all law as a pretext for people in power to do what they want — has grown hand in hand with the growth of the administrative state. That observation alone should give pause to anyone who sees administrative expansion as harmless to popular self-governance.
The problem arises when the authors try to justify their preferred rules: If such rules do not come from the enactments of the people, where do they come from? Their answer: “Ambitious doctrines with no clear legal basis are best understood as derived from an implicit commitment to the internal morality of administrative law.” The reader should raise an eyebrow at “implicit.” Sunstein and Vermeule note elsewhere in the book, when reading a judge’s arguments that his rule is implicit in statutory text: “As is often the case, the word ‘implicit’ turns out to mean ‘not.’”
The authors describe it as their “central claim” that, “at its best, American administrative law has its own internal morality, a reflection of the internal morality of law.” But this is circular: The law is based on the law, which reflects what the people construing the law do when they say what it means. Of course, it is true that communities develop moral norms and moral intuitions from their collective experience, and conservatives see these traditions as valuable in themselves. But that raises the question: Whose experience and whose norms create this “internal morality”? Not the citizenry’s in general. Not those of their elected representatives or the people subject to the power of administrative agencies. The folkways here are those of a narrow priesthood of judges and lawyers practicing in and adjudicating the field of administrative law. It is the rule of law as a law of rulers.
This is a particular problem for the administrative state in a populist age. Sunstein and Vermeule tell us to trust the body of administrative law — as it has evolved and may continue to evolve in the future — because we can trust the unspoken cultural norms of the people who make it. This seems a particularly curious stance for Vermeule, given the unlikelihood that American administrative law will ever be made by people who share his cultural assumptions. The role of human beings in the system also helps explain why the two leading judicial critics of the administrative state are Clarence Thomas and Neil Gorsuch. Thomas grew up with the experience of being governed by people with little regard for him. Gorsuch, by contrast, saw the reality of the administrative world up close when his mother ran the Environmental Protection Agency. For legal realists, Sunstein and Vermeule are oddly uninterested in the people — judges and administrators — whose behavior they study.
A central problem of law and legitimacy is constraint: not merely what the law allows, but what it prevents. Constraint is the heart of the structural critique of the administrative state, whether or not one frames it as a constitutional argument. Sunstein and Vermeule never really offer a clear guide to how anyone is supposed to tell when administrative power has overstepped its moral bounds. Theirs is the legal-realist tautology: We know an agency was wrong when we see courts stop it; we know courts were wrong when they abandon a doctrine. But this merely reinforces the sense that they are describing the unfixed norms of a community of people rather than the rules firmly rooted in popularly enacted legislation. If the defenders of a church wrote in this way, we would conclude that they saw no material difference between dogma and heresy.
Accountability to the governed gets little attention. How should the people respond if they do not like the answers given by “the internal morality of administrative law”? The authors are evasive. They frequently confuse executive discretion (for which political actors are visibly accountable) and administrative discretion to write rules and adjudicate cases. We are told that presidents can use the appointment power to control agencies, even those over which the president has limited or indirect powers of appointment and even more limited powers of removal. But much of the work of agencies takes place through permanent civil servants. As the presidency of Donald Trump illustrated, trying to exert presidential control via the appointment power all the way down the civil service of independent agencies and sub-agencies is like doing a jigsaw puzzle with a fishing rod.
Sunstein and Vermeule regard statutory delegations of rulemaking and adjudicative authority as “democratic,” but an agency such as the Securities and Exchange Commission continues to make new rules and adjudicate cases based on open-ended delegations in laws passed by the Congress elected in 1932. Antiquity is fine for the supermajority rules of the Constitution, but democratic legitimacy becomes more attenuated when power was delegated by passing majorities nearly a century ago in vaguely defined terms that have never been revisited. The judicial function is designed to be conservative rather than democratic: The courts read laws as written until they are repealed. But that is precisely why lawmaking should be done by the people’s directly accountable representatives, and why the power to exercise continuing democratic oversight and accountability is essential to the legitimacy of executive power. This accountability is what so much of the administrative state now lacks. There is nobody for voters to blame, so they blame the whole system.
Sunstein and Vermeule offer some nods to “time-honored thinking about the rule of law” to justify their non-originalist justification for administrative law’s “internal morality.” But an originalist framework offers room for that: Many of our system’s written rules incorporate the backdrop of the common-law tradition, and that tradition often forms part of the original understanding. Instead of calling on the system to be more rigorous in identifying where its rules come from, Law and Leviathan seems content to defend its rulers.
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