The Real Power of Administrative Law

| Law and Leviathan
Law and Leviathan

BOOK REVIEW: Law and Leviathan: Redeeming the Administrative State

by Cass R. Sunstein and Adrian Vermeule / Belknap Press

Reviewed by Terence Check

Terence Check is an attorney in the federal government, and works on data privacy, biometrics, counterterrorism, criminal law, cybersecurity, information-sharing and technology-related matters. All opinions and statements are his own.

BOOK REVIEW — Harvard law professors Cass Sunstein and Adrian Vermeule loom large as renowned intellectual figures in the area of administrative and constitutional law. They wrote the book, or at least several books, on subjects essential to government lawyers. So, when they released their new book containing a “highly original framework for restoring confidence in a government bureaucracy increasingly derided as “the deep state,”” I had to read it.

Even though Law and Leviathan, proves a short read at 170 pages (including endnotes), Sunstein and Vermeule pack in a great deal of information, almost a thumbnail course in administrative law. This book’s potential varies greatly depending on the audience. For lawyers, the book provides an easy entry point to the latest developments in a complex and technical field of law: I even passed along my copy to a new colleague since she had not practiced law in federal service before. For non-lawyers in the security field, the straightforward prose belies a level of complexity and detail that might frustrate the average reader. Still, one can extract a few interesting lessons from Law and Leviathan for the security professional who is curious about where the field of “administrative law” may go in the coming years.

These lessons, however, took me by surprise: I had expected a lengthy meditation on the nature of administrative law in an era of widespread skepticism or misinformation about the “Deep State” and law enforcement and national security activities more generally. Fair warning: Sunstein and Vermeule largely sidestep the issue. Instead, they use Law and Leviathan to put forward a new analytical framework for thinking about the direction of the administrative state—a framework that might not be anyone’s “first choice” but is a framework that vastly different schools of thought could nevertheless use as a backup choice. In some ways, this effort to establish their framework comes at cross-purposes to the larger constitutional and philosophical issues impacting government over the past five years. I was looking for what two eminent professors think about the problems happening right now, as opposed to some framework that might or might not catch on with other lawyers. I think that framework has potential utility, but I’ll avoid discussing it here because it is so new and because we cannot yet determine whether the judiciary will employ it. It is simply too early to tell.

For the uninitiated, administrative law describes the legal rules that govern the exercise of authority by the Executive Branch. Most often, this involves acrid disputes between regulators and businesses over regulations issued by the EPA or the SEC. But administrative law covers more than that, much more. Instead, administrative law is about power: what powers should the government have, who should wield it, how should the government use that power? While Sunstein and Vermeule most often focus on more typical and mundane contexts, these administrative law questions impact national security activities as well, where the executive branch enjoys far broader authority.

For example, Vermeule and Sunstein express some skepticism of minimalist approaches to government power. They write: “Would people be freer without child labor laws? Without occupational safety laws? Without food safety laws?” (pg. 5). Such arguments apply equally well–if not moreso–to national security and public safety activities. For all of the derision leveled at the government’s intelligence law enforcement and intelligence agencies, would the citizenry have greater liberties if terrorism went unchecked, if criminals went unpunished, if we went blind to the designs of our enemies?

Other arguments by the opponents of the “administrative state” might sound familiar to security professionals. As Sunstein and Vermeule describe it, these arguments favor “substantive constitutional limitations on agency authority, especially through judicial enforcement of doctrines that would fundamentally restrict what agencies may do.” (pg. 11) In other words, a contention that the uninitiated understands the threats and risks better than experts. The judiciary fulfills a critical constitutional role, one of safeguarding fundamental rights and legal interests, but how does that role square with reliance on judges to make decisions on complex matters of policy? There’s an implicit question in the book’s discussion here: when should we, as a society, substitute the judgment of one set of unelected officials (bureaucrats) with the judgments of another set of unelected officials (judges)? Law and Leviathan favors a sort of middle approach adopted by the Supreme Court’s most recent term, where the Court opts to look for agency adherence to procedural safeguards instead of invalidating agency actions on substantive or Constitutional grounds.

Another lesson that will appear all too familiar to security professionals arises in the context of judicial decision-making and the doctrine of deference: problems look different once you have all the facts and the decision rests with you. Or as Sunstein and Vermeule put it: “the intensity of those who venture dramatic, large-scale challenges might soften in light of a careful encounter with the concrete materials of actual law.” (pg. 14). Judicial deference especially on questions of fact in the national security context or broad congressional delegations of power to the Executive appear all the more appealing given the complex, ever-changing, and high-stakes threat environment. Combined with the fact that intelligence and national security oversight rarely motivates voters at the polls, legislators naturally seek to focus their energies on simpler topics of more relevance to their constituencies. In doing so, legislators tend to eschew responsibility. The authors quote Justice Gorsuch lamenting this fact: “Before the 1930s, federal statutes granting authority to the executive were comparatively modest and usually easily upheld. But then the federal government grew explosively.” (pg. 121). It is no accident that this “explosion” occurs on the heels of the Nation’s largest economic crisis (the Great Depression), greatest wartime mobilization (World War II), and the longest period of conflict short of war with rival nation-states (the Cold War). The modern security apparatus came through the National Security Act of 1947. From then on, matters of policy making had reached the highest stakes: is it any wonder that Congress seeks to avoid responsibility for legislating on tough or technical subjects through broad delegations to the executive, especially when nuclear war might hang in the balance? All of this leads to a critical question left unanswered by Sunstein and Vermeule: in such circumstances, can the constitutional order survive without the administrative state?

Ultimately, Law and Leviathan avoids more pressing questions about waning political and societal deference to experts. In such circumstances, how long will our society allow broad deference to administrative agencies, or to the Executive more generally? What impact will COVID-19 have on the long-term legitimacy of the administrative state, including the national security apparatus? Or for areas of the law where the Executive Branch has broad authority or for skeptics of the administrative state who emphasize the need for “political accountability”, what impact will the past several years of policymaking have on Executive Branch power? Are we headed toward a moment where Executive power will contract, or at least acquiesce to greater procedural or substantive limitations on executive activities, as it happened in the 1970s in the Carter Administration? Even though it serves as a refreshing survey of the field of law and invites a sort of “agree to disagree” concord within the legal field, Law and Leviathan does not supply ready answers to these larger questions.

Law and Leviathan earns a solid three out of four trench coats.

 

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