Law’s Attrition and Virture’s Abnegation—some thoughts on Vermeule’s book, “Law’s Abnegation”

In September, I was one of several scholars invited to give some short remarks on Adrian Vermeule’s controversial and challenging book, Law’s Abnegation. Here are my remarks, as prepared for the event.

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Law’s Attrition
By Adam J. White
September 21, 2018
Villanova Law School

As others have already said, Law’s Abnegation is an impressive work, and I agree with much of it. That is, I agree with his assessment of the trajectory of administrative law, centralizing ever more power in the executive, as Congress grows ever more inert and the judiciary grows ever more deferential. But I disagree with how we got here, and where we might be headed next. And my greatest disagreement goes to perhaps the most important question of all — namely, what lesson we should draw from all of it.

I. Points of Agreement

Let me begin by recounting briefly some broad areas of agreement. First and foremost, I agree completely with his description of the administrative law’s increasingly deferential bent. While it’s an overstatement to say that “the long arc of the law has bent steadily toward deference” [p. 1], it is true that the long arc of administrative law has bent steadily toward deference, at least from 1935 to recent years. From Chevron’s and Auer’s deference to agencies’ legal interpretations, to Baltimore Gas’s “thin rationality review,” to still other cases’ deference to agencies’ predictive judgments, it is not hard to see a steady increase in the overarching degree of deference that courts give to agencies.

Second, I agree that too often we attribute to the Framers of our Constitution an over-purified account of the separation of powers. I’m unconvinced by efforts to map our own Constitution’s conception of legislative and executive power back to the days of, say, King James II and the Glorious Revolution, without looking more squarely at what the Framers actually did in designing a constitution where the lines separating legislative, executive, and judicial powers are sometimes blurred — especially with respect to what the constitution mentioned, vaguely, as “departments.”

The original framing of our Constitution, and the first Congress’s work of turning that framework into actual government, was more pragmatic and compromising than we sometimes assume. And so were the subsequent Congresses and Administrations that continued the Framers’ work of building a government and building a nation.

Yes, the Constitution’s separation of powers are a means to an end, and not just the end of individual liberty. Professor Vermuele mentioned Federalist 41. I’m always happy when friends invoke the more obscure Federalist Papers; they’re the constitutional equivalent of flyover country, which we too often glide past, and which are beautiful upon closer inspection. But in this case, he could have simply invoked the famous Federalist 70, which stresses that an energetic executive is necessary for the study administration of the laws.

I’d go even farther: Publius wrote not once but twice (in Federalist 68 & 76) that “the true test of a good government is its aptitude and tendency to produce a good administration.”

So I agree wholeheartedly that the Constitution’s structure was a means to an end. But as I’ll explain in the last part of my talk, we disagree fundamentally about other premises of our constitution’s structure and purpose.

For Professor Vermeule, his historical account is not the end of his analysis, but rather the beginning. And the inferences he draws from these facts lead me to our first point of disagreement.

The history of administrative law has bent toward deference. But is this an arc that necessarily bent toward deference? And must it continue to do so? The answers to these questions, I think, are “no” and “no.” At the very least, I don’t think Professor Vermeule shows it to be so. So let me discuss my main doubts about Vermeule’s argument.

II. Was Law’s Abnegation Inevitable?

A major theme of his book, especially in his criticism of Professor Lawson, is that the structure and nature of our constitutional system necessarily led us to the modern state of affairs. Professor Vermeule asserts not just that “the classical system itself, operating through the institutions of separated powers, produced the administrative state in the first place,” but also that “[i]f it were abolished, and the classical Constitution reinstated, the same operative processes would ensure that the administrative state would in all probability be created again, in a kind of eternal recurrence” [p. 15]. He repeats this, at the book’s end: “The classical institutions would, almost certainly, recreate a great deal of the administrative state’s infrastructure, and for essentially the same reasons it was created in the first place” [p. 218].

I note in passing that Professor Vermeule’s caveats are intriguing — the classical Constitution would, if returned to the start, “almost certainly” recreate the administrative state? Why so timid? What door is the author leaving open? Of course, Professor Vermeule isn’t timid at all, and so I suspect that the more accurate version of his thought is the less timid one seen in his more absolutist characterizations of history, such as when he roots the evolution of administrative law in a “marginalist logic, working itself pure, [that] is the driving internal logic that pushes law toward ever greater abnegation” [p. 13].

And Professor Vermeule frames this logic, this “self-reinforcing process” [p. 2], as one of judges and lawyers, who commit to a “reasoned consistency” that “exert[s] a constant steady pressure that tells over time” [ibid.]. The courts that “start to defer later evolve principles that entail deference on many fronts” [ibid.].

Professor Vermeule is attempting to focus our attention back to the start of the process. But what is the relevant starting point for this dialectic? Vermeule says that the start is the Constitution itself, and the logic that resides within it and that flows from it. But it seems to me that the true starting point is Congress — or, more specifically, the starting point is particular Congresses that passed the statutes that courts and agencies go on to administer.

At times, Vermeule’s account seems to reject this. At the outset of chapter 1, he rejects the argument that our modern administrative state is a departure from the original constitutional design; he writes, “I argue to the contrary that from a lawyer’s point of view, the main justifications for ever-increasing abnegation were not political but internal and legal. The very institutions of the original Constitution, functioning as they were originally created to function, decided for excellent reasons (and from a lawyer’s point of view) to create the administrative state and to abnegate authority to it” [p. 23].

But elsewhere in the book, he concedes that the administrative state grew more immediately from choices of particular Congresses. Law’s abnegation results when the courts are “[g]iven broad, vague, or ambiguous statutory delegations” and an uncertain policymaking environment [p. 21]. And he recognizes that Congress’s own tendency seems to be toward ever broader delegations of power: “it is obvious,” he writes, “that the abnegation of law is in part a consequence of decisions by statutory lawmakers — the President and Congress, operating as a joint lawmaking process . . . — to delegate ever-greater discretion to the President and to agencies by statute” [p. 9].

And why does Congress delegate ever-greater discretion to agencies? Because, Vermeule writes, our “policy environment” demands it. “The main reason for the transformation of our government into an administrative state is that the rate of change in the policy environment, especially in the economy, is much greater than in the late eighteenth century” [p. 59]. Thus, “the main speeding-up mechanism has been the ever-greater delegation to the executive branch” [ibid.].

But this story oversimplifies the matter in at least one crucial way, because Vermeule does not pause to consider that the administrative state itself is part of the “policy environment” that demands ever-faster policy adjustment, and thus the administrative state itself is one of the things that spurs ever-greater delegations of power from Congress.

What I mean is, the public’s own demands or expectations for rapid policy adjustment are themselves a function of administrative agencies’ own previous delivery of rapid policy adjustment. The more that agencies deliver, and the more quickly that they deliver it, then the less patience that the public has in the slower policymaking process that would otherwise come from the legislative branch, and the more aggressively the public pushes Congress to delegate broadly to the agencies.

This is, in other words, a feedback loop.

And if I am correct in sensing that a feedback loop tends to exacerbate our government’s administrative-centric character as time progresses, then this feedback effect deserves at least as much attention as the attention that we pay to particular incentives faced by individual participants in the system.

As it happens, Professor Vermeule himself emphasized the role of feedback effects in his earlier book, The System of the Constitution, in his discussion of the Constitution’s framework for selecting officeholders. There he explained [at pp. 102–102]: “While an incentive analysis is short-term and static, asking only how legal rules affect the behavior of a given set of officeholders, a selection analysis is long-term and dynamic, asking how legal rules themselves produce systemic feedback effects that, over time, bring new types of government officials into power.” The same can be said for the legislative delegations that bring new agency programs into power.

Whenever feedback loops are involved, we need to pay special attention to decisions made early in the historical trajectory, because those early decisions will have disproportionate effects on subsequent decisionmakers. Or, to quote Vermeule’s own 2016 article on The Exceptional Role of Courts in the Constitutional Order, “in relatively plastic and unsettled constitutional orders, someone or another will push institutions into a path-dependent trajectory that, if successful, will be very difficult for later actors to undo” [92 N.D. L. Rev. at 829]. I agree with Professor Vermeule on this general principle, and I wonder if he might agree with me that it applies with equal force to any analysis of administration’s empire and law’s abnegation.

So perhaps it’s not true that, as Professor Vermeule argues, “the main justifications for ever-increasing abnegation were not political but internal and legal” [p. 23]. Perhaps, instead, particular political choices, at particular moments in time, were particularly significant in sending us down one path rather than another.

More specifically, perhaps the decision by Congress in 1887 to create the Interstate Commerce Commission had an unintended and disproportionate effect on the later Congress’s decision to create the FTC and other early agencies, which in turn had an unintended and disproportionate effect on the later Congresses’ decisions to transfer still greater powers to regulatory commissions in the New Deal, and then still greater powers to executive agencies under Johnson and Nixon, and then still greater power to the latest generation of agencies, and so on. If so, then administration’s empire and law’s abnegation may be less a story about either the particular incentives of judges and lawyers, or the structure of the Constitution, and more a story of the choices of Congresses that, a century ago, sent us down a particular path — or, to put it less charitably, stuck us in a particular rut.

III. Is Law’s Further Abnegation Inevitable?

If my last point sounded a little pessimistic, then let me turn to a more optimistic note: just as eighteenth-century choices may have had a disproportionate impact on the modern administrative state, the choices made today could have a disproportionate effect on the government that our children and grandchildren face. By this I mean that if today’s courts begin to conclude that past choices and precedents set us on a path toward an unsatisfactory situation, then the courts can shift us to a new path, by consciously recalibrating or overturning old precedents, and setting new ones. This is a heavy lift, and it may not make sense in terms of short-term institutional incentives, but it may make sense in terms of the long-term consequences of decisions that cause path dependence going forward.

Perhaps that is exactly what’s happening in the recent cases that Professor Vermeule attempts to marginalize. In King v. Burwell, Chief Justice Roberts succeeded in authoring a precedent for the complete avoidance of Chevron deference in cases involving the most significant economic or political questions. Vermeule writes that “we ought not overreact” to the case, which he characterizes as “of course merely the latest by-product of a titanic partisan struggle over the Affordable Care Act” [pp. 30–31]. Perhaps … or perhaps King’s stark turn from deference was the by-product of Chief Justice Roberts’s efforts to significantly recalibrate judicial deference, as exemplified by his dissent in City of Arlington. Professor Vermeule spends much time analyzing Roberts’s loss in City of Arlington, but perhaps Roberts’s victory in King will prove much more consequential in the long run.

Similarly, perhaps there is more significance to be found in Utility Air Regulatory Group, a case in which the Court again used the major questions doctrine, here in Chevron’s step two, to strike down the core legal interpretation underpinning one of the most aggressive and novel regulatory programs in American history. Professor Vermeule urges that this case is less consequential than it seems; but perhaps it is every bit as consequential as it seems, or even more so, especially when this case, like King, could help to create a new ethos for the Court’s younger justices, and lower-court judges, to follow [pp. 175–177].

So when Professor Vermeule tries to minimize King v. Burwell by counseling that “[g]reat cases — in the sense of cases with maximum political salience — make bad law” [p. 31], perhaps we ought to think again. Perhaps great cases are the only cases that will spur judges to overcome the feedback effects that have long locked us in to a particular sub-optimal path.

Similarly, when Vermeule looks ahead to what he rightly calls [at p. 153] the “uncertainty frontier,” where agencies increasingly grapple not with the low-hanging policy fruit of the mid-20th century but rather with extraordinarily complex and consequential issues of climate change or terrorism (or, I would add, pandemics and systemic financial risk), maybe he’s correct that courts will follow the old path toward still greater deference. Or, maybe policy issues of such immense magnitude, and agency claims of practically open-ended discretion, will actually be the ones that spur courts to shake us out of our rut, by demanding more statutory specificity from Congress before deferring to agencies’ claims of such immense powers. Maybe bad laws will make great cases.

IV. Virtue’s Abnegation?

Let me raise one last point, especially in light of the particular school hosting this discussion, and the particular name of this conference: namely, the conference “on law, politics, and culture.” All three of those things, “law, politics, and culture,” necessarily go together — as the Constitution’s Framers, perhaps more than any later generation, fully recognized.

The Framers did not presume that the Constitution, including its separation of powers, would be self-protecting and self-perpetuating. Perhaps that seems obvious, but I think our discussion of the Constitution sometimes presumes otherwise — especially when we invoke Publius’s famous argument, in Federalist 51, that “ambition” would “counteract ambition,” and that our Constitution created a government fit for men who are not angels.

Publius’s observations were true, but they were not his entire truth. For the Framers, especially Publius, recognized that the constitutional structure is not enough, and that its proper functioning would require the ceaseless reinforcement of certain republican virtues. If we think of constitutional structure and process as a “machine,” we should keep in mind that machines requiring oil must be kept well lubricated, lest the machine eventually destroy its own capacity to do the work for which it was created.

Ironically, the fact that lawyers and scholars pay no attention to constitutional virtue reflects the great success of conservative constitutional lawyers, in recent decades, to restore proper respect for the Constitution’s structure. Decades ago, when care for constitutional structure was at low ebb, judges like Rehnquist, Scalia, Bork and others took up the challenge of restoring respect for the central importance of constitutional structure. And they largely succeeded.

But maybe they succeeded too well, because in showing the need to keep separate our government’s legislative, executive, and judicial branches, so that ambition can counteract ambition and the branches can restrain one another, we forget that our constitutional system also presumes that each branch will restrain itself.

Publius returns to this theme over and over again. His account of the judiciary, in Federalist 78, concludes with a reminder that “it is indispensable that [judges] should be bound down by strict rules and precedents” — which is to say that judges must bind themselves down by those rules and precedents.

More famously, in his account of the presidency, Publius writes in Federalist 71 that “[t]he republican principle demands that the deliberate sense of the community should govern the conduct of those to whom they intrust the management of their affairs; but it does not require an unqualified complaisance to every sudden breeze of passion, or to every transient impulse which the people may receive from the arts of men, who flatter their prejudices to betray their interests.” This need for presidential virtues undergirds Publius’s account, in Federalist 68, of the electoral college, which would afford “a moral certainty, that the office of President will never fall to the lot of any man who is not in an eminent degree endowed with the requisite qualifications”; and that, unlike in state elections, the presidency would not fall to men with “[t]alents for low intrigue, and the little arts of popularity”; and that, “[i]t will not be too strong to say, that there will be a constant probability of seeing the station filled by characters pre-eminent for ability and virtue.” (Well, that was the theory, at least.)

But most important, our legislature presumes the republican virtues. Again, Publius, in the closing lines of his discussion of Congress in, Federalist 55: “Republican government presupposes the existence of these qualities in a higher degree than any other form. Were the pictures which have been drawn by the political jealousy of some among us faithful likenesses of the human character, the inference would be, that there is not sufficient virtue among men for self-government; and that nothing less than the chains of despotism can restrain them from destroying and devouring one another.”

So why am I belaboring this point? Well, because when Professor Vermeule refers neutrally (or positively) to the “policy environment” that encourages law’s abnegation and administration’s empire, I see something quite different: I see the regrettable result of the loss of republican virtues — the capacity for compromise, for goodwill, and for a belief that our representative government ought to translate our passions into public reason. A citizenry impatient with the compromise and deliberation of Congress, a citizenry that instead demands the uncompromising immediacy of administration, is something different: to borrow a line from Alasdair McIntyre, law’s abnegation is what we have “after Republican virtue.”