
LAW AND LEVIATHAN: REDEEMING THE ADMINISTRATIVE STATE, by Cass R. Sunstein and Adrian Vermeule. Cambridge, Harvard University Press/Belknap Press, 2020. 208pp. Cloth $25.95. ISBN 9780674247536.
Reviewed by Paul Gowder, Northwestern University Pritzker School of Law. Email: paul.gowder@law.northwestern.edu
Sunstein and Vermeule offer, in LAW AND LEVIATHAN, a rule of law defense of American administrative law. Their interlocutors are a collection of scholarly and judicial critics of the American administrative state, such as Philip Hamburger, Gary Lawson, Richard Epstein, Judge Janice Rogers Brown, and Justice Neil Gorsuch. As that list suggests, Sunstein and Vermeule appear to be primarily concerned with defending the administrative state against libertarian/conservative (broadly speaking) critics. Sunstein and Vermeule label that school of administrative law critics “the New Coke” in reference to Edward Coke and the common lawyers’ resistance to Stuart power and to the tendency of some of those critics to equate the American administrative state to monarchical abuses like the Star Chamber. In this respect, it’s quite obvious that Hamburger (2014) looms large among those whom Sunstein and Vermeule are motivated to answer, as it is Hamburger who has focused most vigorously on the lessons to be gleaned from that period of English history.
The New Coke critics believe that the American framers had a vision of separation of powers drawn from Seventeenth Century English history, as well as from Montesquieu, and that the administrative state violates it. The touchstone of the New Coke, to the extent there is one, may be Madison’s statement in Federalist 47 that:
The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, selfappointed, or elective, may justly be pronounced the very definition of tyranny. Were the federal Constitution, therefore, really chargeable with the accumulation of power, or with a mixture of powers, having a dangerous tendency to such an accumulation, no further arguments would be necessary to inspire a universal reprobation of the system.
For Hamburger, Lawson, and others, American administrative law is in fact tyrannical—it is tyrannical because Congress is permitted to delegate legislative power to agencies through the rulemaking process, and judicial power through the power of agencies to make binding determinations of citizens’ legal rights—thus indeed unifying the three powers of government in the single hand of the President in his role as the ultimate manager of the administrative apparatus.
Sunstein and Vermeule directly address the New Coke only in Chapter 1, and then only to very briefly articulate the New Cokes’ fear of unconstrained executive power and sketch a few points toward the notion that those fears do not accurately represent the views of the constitutional framers. They do not directly engage with the arguments of any particular one of the critics of the administrative state. Instead, the bulk of the volume is devoted to a presentation of Sunstein and Vermeule’s positive case for the lawful character of administrative law. [*13]
That positive case begins with Lon Fuller. In THE MORALITY OF LAW, Fuller articulated 8 requirements which he took to represent the “inner morality of law”—morally advantageous features of governance that were, to Fuller, also requirements for a form of governance to be law-like at all. These requirements—which we can broadly summarize as prospective rather than retroactive general rules which are stable, clear and public, not internally contradictory (and hence capable of being obeyed), and actually corresponding to what officials enforce—have often been pressed into service by later scholars as a conception of the moral ideal of the rule of law.
Sunstein and Vermeule, over several chapters, argue that existing administrative law does a reasonably good job of corresponding to the Fullerian conception of the rule of law. A variety of judicially created doctrines—doctrines which, they argue, are at best only loosely rooted in positive legal enactments such as the Administrative Procedure Act’s (APA) prohibition against arbitrary agency action or the Due Process Clause, and more rooted in judges’ internal sense of the morality of law—have been layered on top of the textual sources of administrative law in order to promote its conformity with Fullerian standards.
For example, nothing in the APA prohibits agencies from making rules that apply retroactively, but such retroactivity raises obvious concerns with respect to the basic normative criteria underlying the rule of law: people cannot obey retroactive legislation, and retroactive legislation can unsettle expectations about the legal system on which private actors had previously relied. Accordingly, the Supreme Court, in BOWEN V. GEORGETOWN UNIVERSITY HOSPITAL, 488 U.S. 204 (1988) announced a new rule of legislative construction: administrative agencies would not be allowed to engage in retroactive rulemaking unless Congress clearly and specifically authorized retroactivity by statute. Notably, the Court did not announce this rule as an interpretation of the APA, because, Sunstein and Vermeule argue, it isn’t one. Nor did the Court rely on the Due Process Clause. Rather, the Court relied on the bald declaration that “[r]etroactivity is not favored in the law”—a fairly direct appeal to something like Fullerian principles.