A Rearguard Defense of the Administrative State.

• Author: Adler, Jonathan H.

Law & Leviathan: Redeeming the Administrative State

By Cass R. Sunstein and Adrian Vermeule

208 pp.; Harvard

University Press, 2020

The administrative state is under siege, or so it may seem. In just the past three years, the U.S. Supreme Court has invalidated the structure of the Consumer Financial Protection Bureau, invalidated the appointment of administrative law judges at the Securities and Exchange Commission, and curtailed judicial deference to agency interpretations of their own regulations. More significantly, a majority of justices appear willing to limit Congress's ability to delegate broad policymaking authority to federal agencies, a move that could strike at the heart of the modern administrative state.

Numerous academics and even a few jurists have applauded these developments, hoping for a decades-overdue correction in federal administrative law. In 1952, Justice Robert Jackson warned that administrative agencies had "become a veritable fourth branch of the Government, which has deranged our three-branch legal theories much as the concept of a fourth dimension unsettles our three-dimensional thinking." In decades since, commentators have challenged the administrative state's departures from rule-of-law principles, deprivations of due process, and challenges to the Founders' conception of limited government. Yet this is far from a consensus view, as others perceive such "anti-administrativism" as a more ominous trend and wish to rescue the administrative state from its critics before it is too late.

Harvard Law School professors Cass Sunstein and Adrian Vermeule are in the latter camp. In Law & Leviathan: Redeeming the Administrative State, they attempt a rescue. In the face of what they repeatedly describe as a "fundamental assault" on the premises of administrative law, Sunstein and Vermeule seek to explain why administrative law, in operation, is fundamentally moral and sound. The heart of some modest critiques may be true, they concede, but the leviathan of the book's title is sufficiently constrained by law to preserve its moral legitimacy.

Surrogate safeguards / Rather than offer the full-throated defenses of the administrative state each has offered elsewhere, in Law & Leviathan Sunstein and Vermeule suggest administrative law has developed a set of "surrogate safeguards" that enable the administrative state to protect public welfare while preventing the worst abuses of bureaucratic excess. Aligned with a set of principles articulated by the legal philosopher Lon Fuller in his 1964 book The Morality of Law, these safeguards embody an "internal morality" of administrative law that serves to "both empower and constrain the administrative state." By requiring agencies to follow their own rules, limiting retroactive rulemaking, and ensuring rules are clear, consistent, stable, and non-contradictory, these safeguards serve to...