Law and Leviathan: Redeeming the Administrative State

by Cass R. Sunstein, Adrian Vermeule

Winner of the 2021 Scribes Book Award

From two legal luminaries, a highly original framework for restoring confidence in a government bureaucracy increasingly derided as “the deep state.”

Is the modern administrative state illegitimate? Unconstitutional? Unaccountable? Dangerous? Intolerable? American public law has long been riven by a persistent, serious conflict, a kind of low-grade cold war, over these questions.

Cass Sunstein and Adrian Vermeule argue that the administrative state can be redeemed, as long as public officials are constrained by what they call the morality of administrative law. Law and Leviathan elaborates a number of principles that underlie this moral regime. Officials who respect that morality never fail to make rules in the first place. They ensure transparency, so that people are made aware of the rules with which they must comply. They never abuse retroactivity, so that people can rely on current rules, which are not under constant threat of change. They make rules that are understandable and avoid issuing rules that contradict each other.

These principles may seem simple, but they have a great deal of power. Already, without explicit enunciation, they limit the activities of administrative agencies every day. But we can aspire for better. In more robust form, these principles could address many of the concerns that have critics of the administrative state mourning what they see as the demise of the rule of law. The bureaucratic Leviathan may be an inescapable reality of complex modern democracies, but Sunstein and Vermeule show how we can at last make peace between those who accept its necessity and those who yearn for its downfall.

Genres: Law, Politics, Philosophy

208 pages, Hardcover

Published September 15, 2020

About the author

Cass R. Sunstein is an American legal scholar, particularly in the fields of constitutional law, administrative law, environmental law, and law and behavioral economics, who currently is the Administrator of the White House Office of Information and Regulatory Affairs in the Obama administration. For 27 years, Sunstein taught at the University of Chicago Law School, where he continues to teach as the Harry Kalven Visiting Professor. Sunstein is currently Professor of Law at Harvard Law School, where he is on leave while working in the Obama administration.

Reviews

[Veenay Komaragiri]

Vermeule and Sunstein have written a strong defense of the Administrative State using Lon Fuller’s eight principles of the “internal morality of the law.” These include consistency in announcement and execution, transparency in the law, and avoiding ad hoc decision-making, among other things. Applied to the bureaucracy, Vermeule and Sunstein use these principles— also referred to as surrogate safeguards—to bridge the gap between “putatively originalist criticisms of the administrative state on the one hand, and the abnegation of law to administrative supremacy, on the other.”
The authors discuss competing positivist and natural law interpretations of agencies' role in contributing to the public interest. Early on, the book cites the opening of Rehnquist’s opinion in Vermont Yankee stating that the Administrative Procedure Act (APA) settled “long-continued and hard-fought contentions, and enacts a formula upon which opposing social and political forces have come to rest.”
Their main argument is that the reality of modern governance demands an active administrative function, and the current originalist arguments dealing with constitutionality have no real basis in either the Constitution or original understandings of executive power. Certain judicial innovations which cabin the discretion of agencies do not actually have a basis in the constitution or the APA. Although there are attempts to root these requirements in the due process clause or statutes, there is no true “hook.” Concepts such as agencies being bound by their own regulations (Arizona Grocery), or a preference for consistent agency interpretations (Kisor/Auer), are examples of the judiciary inventing “foundational assumptions” that align with Fuller’s internal morality of the law. The book considers this a necessary innovation to accommodate staunch opponents to bureaucracy.
It is interesting reading this book in light of recent Supreme Court decisions that have elevated the non-delegation doctrine and gestured towards the ultimate gutting of Chevron deference. I think the authors were more optimistic that certain debates have been settled.
It often feels like Vermeule especially brings up a lot of “open questions” regarding the logic of applying the internal morality of the law to restrict executive involvement in directing agencies. Yet he refrains from outright taking a stand not only because the goal of this book is to appeal to the full spectrum of views on the subject, but also due to the prevalent “Tyrannophobia” in American political discourse (a subject he has written about elsewhere).
Why shouldn’t the executive be allowed ex parte communications in agency adjudiction? After all, these are not Article III courts. Does the bureaucracy not fall within the ambit of the executive? If all agency action is executive power, why shouldn’t the executive have the ability to influence and direct both informal and formal rulemaking? What is the real difference between deference to agency interpretations of law vs questions of fact/policy?
To me, the strongest arguments here are these “open questions” which are really the authors’ (or probably just Vermeule’s) view of executive responsibility. I have to say I agree with them. "Once the apple of realism has been tasted, everything changes, and the way back to the garden of naive classicism is forever barred.”
Indeed, Vermeule and Sunstein highlight that one of the main limits identified by Fuller of applying the internal morality of law to the Administrative state is in situations involving “poly-centric adjudication.” Essentially, these are situations requiring the economic allocation of scarce resources. We rely on agency expertise and the competence of Congress in delegating authority (with some intelligible principle) to handle these complex situations.
This does not just mean the FCC regulating radio frequencies, extrapolating further; this sort of allocation covers most administrative activity. Whether this be in dispersing welfare, forms of licensing, or standards setting minimal levels of pollution or toxins, managerial resolution may be more appropriate than legal resolution. Although this is a tough pill to swallow, a more robust executive/administrative state is much preferable to the status quo—substituting the judgment of unelected judges for the expertise of agencies and an energetic executive in order to preserve a captured government, uninterested in and incapable of serving the common good.

[David Wineberg · Rating 3 out of 5]

First, find a molehill

Law is theater. Lawyers can settle in to argue the meaning of a comma or the word “and”. It fascinates lawyers and judges, and baffles the merely mortal. In Law and Leviathan, Cass Sunstein and Adrian Vermeule dissect the administrative state, possibly the least exciting aspect of government. They do it by assessing the mood of the Supreme Court. In judgment after judgment, the fate of federal agencies is bandied about as if the agencies’ missions were the last thing to be considered. It is all about interpretation of the Constitution (Article 1, Section 1 in particular) and precedents.

The book assumes a lot. It assumes the reader is already familiar with key decisions such as Chevron (1984) and Auer. There is no thought to making it all accessible to the lay reader. This is ammo for lawyers arguing before the Supreme Court, on issues that would bore the average reader to tears: the right of federal agencies to operate at all.

At issue is the delegation of power. Congress is charged with carrying out certain orders, and it cannot (constitutionally speaking) offload those powers to others. So are agencies like the Food and Drug Administration, the Environmental Protection Agency and the Federal Communications Commission operating against the wishes of the founders?

The book answers no they are not outside the Constitution, as I would think any literate person would. As the authors note, Congress is not delegating or transferring its power so much as exercising it in a assigning to tasks to fulfill its own mandate. Sadly, it takes a whole book to make a lawyer see this.

There is, after all, not just the Constitution but also the Administrative Procedures Act that lay out all these responsibilities and tasks for all to abide. But that has never stopped an American from suing anyway. Or for activist judges like Neil Gorsuch, who figures prominently here, from trying to change the very notion of government.

It’s not just their mere existence either. Lawsuits also target the rulings, of course. So arguments shift to whether the agencies can make their rules retroactive (no – so far), and how far they can go outside their mandate (scope creep). in order to preserve and defend the public good.

Despite all my reviews of Cass Sunstein books, this is a different Sunstein in Law and Leviathan. Here he abandons his user-friendly style and accessible examples for the far more dense vocabulary of administrative law. It is less than fascinating and more eye rolling. Is this what we need a Supreme Court for? In the USA, the answer is yes.

David Wineberg

[Marks54 · Rating 4 out of 5]

This is a short and I dare say introductory volume to administrative law, in particular to critiques of the activities of administrative agencies as frequently in violation of the rule of law and the separation of powers as outlined in the US Constitution. The lead author is a distinguished and well published legal scholar. The general logic of the book is to identify what the problem is regarding executive agencies, clarify what the legal challenges are to the activities of Executive agencies, and explain the directions that have been taken by the Supreme Court, especially recently, in adjusting challenges to the far reaching activities of the administrative state in the US. The book is a direct statement about the current prospects of the “deep state” and other views of how agencies have run amuck and acted counter to the wishes of the US Government main branches.

Reality is complicated and applying even well crafted laws to particular situations is hard. In doing so, significant personal values and interests are affected and the consequences of agency decisions can be far reaching and fraught with conflict. What to do? If everything needed to be specified in law, then nothing would get settled. If ever case was left to be settled on its individual merits, then inconsistent chaos would ensure and decisions would prove ad hoc. Neither of the extremes seems desirable nor feasible. This is but one part of the broader question of how anything happens in a large and complex society like ours. Where does social order come from?

I am not an attorney and will not attempt to summarize the arguments in the book. The general punchline appears to be that the Supreme Court appears to favor ideas of administrative morality, by which is meant a principled logic that agencies must follow in attempting to translate their mandates into concerted action on society. Such a logic needs to be clear and subject to review in case of conflict. This is not to say that the court can or wishes to root out conflicts in implementing an agency mandate. Rather, the point is to provide a range of possible action within a reasonable understanding of an agencies enabling legislation and mandate. Contending parties should be able to productively pursue action with the range provided by the administrative morality. Judges lack the expertise and experience in settling any and all disputes in complex settings. Agency staff, when bound by reasonable constraints, may be better equipped in managing/regulating their domain - although their actions in doing so should be open to review.

This is a reasonable set of punchlines and the book is very thought provoking, especially on the morality of the administrative environment in which policy implementation must take place.

This is a tightly written and requires attention - and perhaps a few look ups, but the book is well worth the effort, especially if one is tired of facile references to the “deep state” and related conspiracy theories. I wish more law books were clear like this one.

[Jason Reese · Rating 5 out of 5]

I thoroughly enjoyed it but it is definitely for lawyers and the upper echelons of the administrative state. I was a bit surprised that the good professors could use my Jacobite sympathies to open my mind to defenses of Chevron and Auer.

[Fraser Kinnear · Rating 5 out of 5]

Sunstein and Vermeule defend the US Federal government’s current implementation of the “administrative state.”

The complaint: A variety of political philosophies today (originalism, libertarianism, and small government folks) argue that Federal agencies harbor an illegitimate and/or unconstitutional role in governance, and one that doesn’t comply with the rule of law, as enumerated by Fuller.

The “originalist” anti-constitutional position is actually three-pronged. Firstly, that agencies perform rule-setting work that a straight interpretation of the US Constitution would say belongs with the legislature. Secondly, that some agencies (including the FTC, FCC, Federal Reserve Board, and the Nuclear Regulatory Commission) are independent of the office of the President, and therefore have an unconstitutional degree of executive power in enforcing their rules. Thirdly, that much of our judiciary branch defers to agency rules when forming their own jurisprudence (i.e., “deferring” to the agency’s rules), which some would argue is an unconstitutional lapse of oversight.

The small government and libertarian positions against Federal agencies are too obvious to state. But there is an interesting lesson in the final challenge regarding Fuller’s rules of law, which I was unfamiliar with. Here they are:
1. Failure to make rules in the first case (everything decided case-by-case)
2. Failure of transparency (don’t kwno the rules)
3. Abuse of retroactivity
4. Failure to make rules understandable
5. Issuance of rules that contradict each other
6. Rules that require people do things they lack the power to do
7. Frequent changes in rules
8. A mismatch between rules as announced and rules as administered

To rebut, the authors rely on a variety of case law, as well as their own first principles reasoning. Specifically, Sunstein and Vermeule ask: Would the substitution of a law with an administrative agency increase liberty or welfare? This alone ought to justify or discredit the role of Federal agencies. Interestingly, the authors disagree on how to answer this question, with only Sunstein advocating for technocratic cost-benefit analyses.

The authors weaponize Fullers rules to make their case in support of agencies. For example, rule #1 above could easily be interpreted as justifying agencies, given how complicated and dynamic our economy is today.

In abstraction, the challenge is that there is a tension in Federal-level governance between being too specific in rule-making, creating bloat and inefficiency, and being too ambiguous, allowing for better resourced players to seize and abuse their power. Arguing by anecdote is almost useless, because there are more than enough examples to draw from on each side. The truth seems to be that we will always need both sides (for and against the “administrative state”) to continually check each other and sustain our ecological balance. And it’s the loss of balance that we really ought to fear, as history shows (see: Gibbon). And, of course, these problems exist at every level of social life: public sector, private sector, family life.

This book isn’t just theory. There’s also some fascinating, timely discussion of the Supreme Court entering into the 2020’s:

For a long time, the central argument [for originalist thinkers] has been that Congress must sufficiently cabin or limit agency discretion with some kind of “intelligible principle.”

Justice Gorsuch – joined by Chief Justice Roberts and Justice Thomas – has gone much further. He has argued that Congress is allowed to do only three things: to authorize agencies to find facts; to instruct them to fill in the details; and to grant them, or the president, the authority to act in domains, such as foreign affairs, that are peculiarly the constitutional prerogative of the executive branch. Gorsuch’s argument might well mean that much of contemporary administrative authority is unconstitutional. In his approach, key provisions of the Clean Air Act, the Occupational Safety and Health Act, an dhte national Traffic and Motor Safety Act might well be struck down.

Gorsuch, along with many others, offers a simple narrative about the arc of the nondelegation doctrine over time. In this view, the doctrine was a defining part of the constitutional structure, and was generally respected until some time int eh early or middle part of the twentieth century.

How will this argument play out over the course of this decade? Will we see a retrenchment of agency power back to before the modern era, or will the Supreme Court refrain from any sort of activism, and the conservative calls for nuances like “state capacity libertarianism transform the right? So, beyond being an interesting position on a universal question, this is also a highly relevant book to be reading today.

A final thought on the template: For such a short book, the authors pack an enormous amount of information and reasoning. In my mind, they navigate perfectly between too technical for a broad audience, while still respecting our intelligence. I wish more nonfiction books were written this way!

[Lee · Rating 4 out of 5]

how much discretion should an administrative agency have in a modern democracy? one dimension we need to balance is the trade off between accountability and effectiveness. the staff of agency is not itself elected, so not as directly accountable to the people. but the staff also has expertise needed to actually execute legislation and achieve political aims given to it by those who were elected.

the proper balance seems like it would have to be struck via trial and error: let's try different amounts of agency discretion and then tune it to whatever level tends to achieve the people's policy aims best. that seems right as far as it goes, but of course discretion is no unidimensional thing and we'd like to say something more specific.

we can be more specific if we decompose agency discretion into a few different dimensions. that's what this book is about: if an agency is creating and maintaining rules, then there is a minimal morality (attributed to the philosopher lon fuller) the agency should not transgress. transgressions will include things like inconsistent application of rules, abuses of retroactivity, issuance of contradictory rules.

that is the normative framework of the book. much of the text is taken up with illustrating fuller's morality of law as applied to american administrative agencies in court decisions. the authors argue that the courts are not too far from this fullerian ideal: eg, when the secretary of commerce tried to add a citizenship question to the census he got slapped down by scotus for offering an official rationale that some emails showed was mere pretext (a violation of fuller's duty of transparency).

i am in no position to evaluate the descriptive bits but found the philosophical parts illuminating.

[Andrew Willis · Rating 3 out of 5]

Basically a glorified law review article...Without an administrative law course and a moderate interest in hot-button FedSoc issues, I would've been completely lost.

I'll be honest. I don't trust Adrian Vermeule. This is not part of this book, but his common-good originalism where he would welcome his Catholic leanings into jurisprudence just rubs the classical liberal in me in such a wrong way. Even though I am sympathetic to the authors' desire to maintain the administrative state in its current form. Knowing that Vermuele is promoting a powerful administrative state with the pretext push his "common good" oriented viewpoints just exemplifies the importance of the separation of powers--and dare I say--the non-delegation doctrine.

[Daniel Elliott · Rating 4 out of 5]

I had really low expectations here, but I actually really enjoyed this! With the Stone Strauss book in my recent memory it is very refreshing to have a short book on a big contentious legal topic where I disagree with the authors but they’re actually careful and fair enough that I’m not sure I’m right. I’m sure this would feel boring and underdeveloped for someone who actually know the big debates about administrative law well, but for someone who really only knows the meme version it was helpful! The framing of how current admin law is justified on Fuller’s principle of law’s inner morality was fun.

[Erica · Rating 5 out of 5]

Cass Sunstein & Adrian Vermeule are THE Constitutional and Administrative Law scholars (both professors at Harvard Law). This book is an incredible defense of the administrative state, building on both the authors' separate works defending Chevron.

This work traces trends in the Roberts' Court administrative law jurisprudence to explain why Chevron isn't going anywhere. The Roberts Court will continue to offer "guard rails" for the doctrine but will not overrule it entirely. (And, Sunstein & Vermeule have been proven right! Just look at West Virginia.) This is an invaluable work for all those studying administrative law today.

(The reviews here on GR make me sad. This is a book for law professors and other academics. It's not "dense" and "unreadable," it's... literally published by Harvard University Press.)

[Lawrence · Rating 4 out of 5]

A largely persuasive defense of the administrative state, mostly on the grounds that its modern form is an acceptable compromise between libertarians and technocrats which allows for wide (and, I agree with the authors, necessary) latitude for agencies within the bounds of traditional "best practice" for governmental and judicial bodies.

[Iva Velickovic · Rating 3 out of 5]

Basically, a review of the canonical admin cases and an argument that those cases and recent decisions reflect Lon Fuller's Morality of Law (which derived 8 principles of "morality" in the context of private litigation). Glad I read it and might reread, but this could have been a lot shorter.

[Nandu Machiraju · Rating 2 out of 5]

Admin law was one of my favorite classes in law school, and I still find it fascinating. But this book was fairly impenetrable. It was densely written. It assumes a lot of knowledge on behalf of the reader. Ultimately, I think the central premise of the book is valid and interesting. But I would struggle to explain to anyone what it was about.

[Drew Norwood · Rating 4 out of 5]

Adrian Vermuele and Cass Sunstein offer a (unpopular) defense of administrative law. The book is persuasive and thought-provoking, although I’m not convinced of all their points. The “internal morality” of the law, and of administrative law, is worth careful consideration.

[Lucille Nguyen · Rating 4 out of 5]

A reasoned argument for a Fullerian morality undergirding the interpretation of administrative law and deference. Nonetheless, the authors were wrong: the court was willing to pare down deference and cut down Chevron. A good account of what administrative law should be, less so what it is.

[Kent Winward · Rating 4 out of 5]

You know your profession has influenced you when reading about the administrative state is your idea of pleasure reading.

[Daniel Block · Rating 3 out of 5]

Not accessible to lay readers. Way too generous to the conservatives of the Supreme Court.

[GrizzlyAdams · Rating 3 out of 5]

Law and Leviathan, written before the Court's decision in Loper Bright Ent., takes on libertarian- and conservative-led criticism of the administrative state. Sunstein frames his analysis of the administrative state, its critics, and its justifications under the eight principles of law outlined by philosopher Lon L. Fuller. Under this approach, the treatise focuses primarily on a justification of the existence of an administrative state capable of promulgating binding regulations and adjudicating administrative matters. It refutes critics' argument that an administrative state engenders Fuller's failures of law by arguing in favor of an inherent 'morality' of administrative law parallel to that of law itself, contending that agency action and federal jurisprudence have appropriately confined the scope of agencies sufficiently. The work praises the 'safeguard' framework of Chevron, positing that the doctrine was not likely to be overturned given several Justices' implication of stare decisis and proposed analytical shoring up of Chevron. Hindsight is 20/20, but it also damages some of the conclusions drawn by Sunstein as to the direction of the Court and the adequacy (alleged or actual) of then-existing Chevron and Auer deference.