Gunfight at the New Deal Corral

• Author: Paul J. Larkin Jr. and GianCarlo Canaparo
• Position: John, Barbara & Victoria Rumpel Senior Legal Research Fellow, The Heritage Foundation/Legal Fellow, The Heritage Foundation; J.D., Georgetown Law Center, 2014; B.A., University of California at Davis, 2011
• Pages: 477-528

BOOK REVIEW

Gunfight at the New Deal Corral

LAW & LEVIATHAN: REDEEMING THE ADMINISTRATIVE

STATE. By Cass R. Sunstein & Adrian Vermeule.

Belknap Press. Pp. 208 (2020).

THE DUBIOUS MORALITY OF MODERN ADMINISTRATIVE

LAW. By Richard A. Epstein. Rowman & Littlefield

Publishers. Pp. 240 (2020).

REVIEWED BY PAUL J. LARKIN, JR.* AND GIANCARLO CANAPARO **

ABSTRACT

Administrative law is in considerable ferment as the Supreme Court has

become increasingly receptive to attacks on its core doctrines. In a new book,

two towering figures in the world of administrative law, Professors Cass

Sunstein and Adrian Vermeule, mount a defense of those doctrines premised on

Lon Fuller’s jurisprudential theory of the morality of law. In Law & Leviathan,

they argue that although much of administrative law is not aligned with

the text of the Constitution or the Administrative Procedure Act, it largely

comports with an equally legitimate (or, perhaps, higher) authority—

morality. Another preeminent administrative law scholar, Professor Richard

Epstein, tests that defense in a new book of his own. He argues that Fuller’s

framework is an inadequate standard because it does not recognize that proce-

dural defects undermine a law’s legitimacy and assumes, erroneously, that law’s

morality may be judged independent of any assessment of the substance of the

law.

* John, Barbara & Victoria Rumpel Senior Legal Research Fellow, The Heritage Foundation;

M.P.P. George Washington University, 2010; J.D. Stanford Law School, 1980; B.A. Washington & Lee

University, 1977; Senior Legal Research Fellow, The Heritage Foundation.

** Legal Fellow, The Heritage Foundation; J.D., Georgetown Law Center, 2014; B.A., University of

California at Davis, 2011.

We want to thank Evan Bernick, Ronald A. Cass, Todd Gaziano, Peggy Little, John G. Malcolm,

Randolph May, John Veccione, Adam J. White, and Richard Williams for invaluable comments on an

earlier version of this Article. We also want to thank Alexis Huggins for invaluable research assistance.

The views expressed in this Article are our own and should not be construed as representing any official

position of The Heritage Foundation. Any mistakes are ours. © 2021, Paul J. Larkin, Jr. & GianCarlo

Canaparo.

477

This Book Review examines both books and concludes that Epstein’s The

Dubious Morality of Modern Administrative Law has the better argument. Not

only is Fuller’s framework incomplete, but Sunstein and Vermeule ignore ways

that modern administrative law violates that framework. They do not, for exam-

ple, account for biased decision-making when agencies exercise judicial power,

which violates Fuller’s rule that there must be no discrepancy between a law’s

text and its application. Epstein’s criticisms, however, are incomplete. He

misses another significant problem with Fuller’s framework: It is of dubious

applicability to a constitutional republic. Fuller’s framework rests on the

assumption that law is created by an absolute monarch. As such, Fuller’s rules

are the only constraints on the king’s lawmaking ability. The various branches

of a constitutional republic, however, face additional constraints that are both

procedural and substantive. All three debaters accept the application of

Fuller’s framework to American administrative law without asking whether it

can be imported wholesale into a constitutional republic that separates and lim-

its power. The modern administrative leviathan has broken those constraints.

With the assistance of the Supreme Court, the administrative state has usurped

legislative and judicial powers that the Framers assigned elsewhere. Sunstein

and Vermeule try to convince their readers that, despite all that, the beast is not

dangerous. They have failed.

TABLE OF CONTENTS

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 479

I. THE BEAST . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 485

A. The Birth and Growth of the Beast . . . . . . . . . . . . . . . . . . . . . 485

B. The Rationale for Releasing—and Restraining—the Beast . . . 494

II. THE QUESTIONABLE USE OF FULLER’S THE MORALITY OF LAW AS

THE BASELINE FOR DEFENDING THE LEGITIMACY OF THE BEAST. . . 505

A. The Baseline: A Monarchy Versus a Republic . . . . . . . . . . . . 505

B. The Lawmaking Restraints Imposed by a Written Constitution 508

C. A Structurally Biased Decision-Making System . . . . . . . . . . . 513

III. THE DIFFERENCE BETWEEN AN AGENCY’S ANALYSIS OF THE LAW

AND THE FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 519

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 528

478 THE GEORGETOWN JOURNAL OF LAW & PUBLIC POLICY [Vol. 19:477

INTRODUCTION

Last year witnessed the publication of two books—The Dubious Morality of

Modern Administrative Law by Professor Richard Epstein

1

and Law &

Leviathan: Redeeming the Administrative State by Professors Cass Sunstein and

Adrian Vermeule

2

—that took contrary positions on the legitimacy of three long-

standing administrative law doctrines. The books held the promise of being for

administrative law what the Gunfight at the O.K. Corral was for the American

West (albeit, without the fatalities): a showdown between competing visions of

the legality of the regulatory state by some of the nation’s brightest, most prolific,

and widely renowned scholars.

3

In particular, the two books offer competing

views regarding the “morality” of what Sunstein and Vermeule call the

Leviathan.

Law & Leviathan builds on an earlier article by Sunstein and Vermeule entitled

The Morality of Administrative Law,

4

which Epstein used in Dubious Morality as

“a foil to my own skeptical orientation” toward the regulatory state.

5

Sunstein

and Vermeule defend, while Epstein challenges, three controversial administra-

tive law doctrines. First, Congress may delegate lawmaking power to federal

agencies with only the most vague or limited guidance as to when and how they

should exercise it, even though Article I vests “all legislative Power” in

Congress.

6

Second, Congress may limit the President’s ability to dismiss

1. RICHARD A. EPSTEIN, THE DUBIOUS MORALITY OF MODERN ADMINISTRATIVE LAW (2020).

2. CASS R. SUNSTEIN & ADRIAN VERMEULE, LAW & LEVIATHAN: REDEEMING THE ADMINISTRATIVE

STATE (2020).

3. At three o’clock in the afternoon on October 26, 1881, the most famous gunfight in the history of

America’s Old West occurred in the town of Tombstone in the Arizona Territory. On one side were five

members of a loosely organized group of outlaws known as the Cowboys: Ike and Billy Clanton, Billy

Claiborne, and Tom and Frank McLaury. Standing against them were Town Marshall Virgil Earp, his

brothers Morgan and Wyatt Earp, and John “Doc” Holliday, a dentist by profession and gambler by

trade. The gunfight and its aftermath have been told in books and films for decades. See, e.g., JEFF

GUINN, THE LAST GUNFIGHT: THE REAL STORY OF THE SHOOTOUT AT THE O.K. CORRAL—AND HOW IT

CHANGED THE AMERICAN WEST (2012); GUNFIGHT AT THE O.K. CORRAL (Paramount Pictures 1957);

TOMBSTONE (Buena Vista Pictures 1993); WYATT EARP (Warner Bros. 1994).

4. Cass R. Sunstein & Adrian Vermeule, The Morality of Administrative Law, 131 HARV. L. REV.

1924 (2018).

5. EPSTEIN, supra note 1, at 1.

6. U.S. CONST. art. I, § 1. Such delegations appear to violate the settled eighteenth century principle

that Congress must itself make law rather than subdelegating that responsibility to someone else. See

JOHN LOCKE, TWO TREATISES OF GOVERNMENT 381 (Peter Laslett ed. 1988) (1690) (“The Power of the

Legislative being derived from the People by a positive voluntary Grant and Institution, can be no other,

than what that positive Grant conveyed, which being only to make Laws, and not to make Legislators,

the Legislative can have no power to transfer their Authority of making Laws, and place it in other

hands.”). The Supreme Court endorsed that principle when describing the relationship between the

Article I and II branches. See, e.g., Field v. Clark, 143 U.S. 649, 692–94 (1892) (“That Congress cannot

delegate legislative power . . . is a principle universally recognized as vital to the integrity and

maintenance of the system of government ordained by the Constitution. . . . ‘The true distinction . . . is

between the delegation of power to make the law, which necessarily involves a discretion as to what it

shall be, and conferring authority or discretion as to its execution, to be exercised under and in

pursuance of the law. The first cannot be done; to the latter no valid objection can be made.’”) (emphasis

added) (citation omitted).

2021] GUNFIGHT AT THE NEW DEAL CORRAL 479