Gunfight at the New Deal Corral

Abstract

Administrative law is in considerable ferment as the Supreme Court has become increasingly receptive to attacks on its core doctrines. In a new book, two towering figures in the world of administrative law, Professors Cass Sunstein and Adrian Vermeule, mount a defense of those doctrines premised on Lon Fuller’s jurisprudential theory of the morality of law. They argue that although much of administrative law is not aligned with the text of the Constitution or the Administrative Procedure Act, it largely comports with an equally legitimate (or, perhaps, higher) authority—morality. Another preeminent administrative law scholar, Professor Richard Epstein, tests that defense in a new book of his own. He argues that Fuller’s framework is an inadequate standard because it does not recognize that procedural defects undermine a law’s legitimacy and assumes, erroneously, that law’s morality may be judged independent of any assessment of the substance of the law. This Book Review examines both books and concludes that Epstein has the better argument. Not only is Fuller’s framework incomplete, but Sunstein and Vermeule ignore ways that modern administrative law violates that framework. They do not, for example, account for biased decision-making when agencies exercise judicial power, which violates Fuller’s rule that there must be no discrepancy between a law’s text and its application. Epstein’s criticisms, however, are incomplete. He misses another significant problem with Fuller’s framework: It is of dubious applicability to a constitutional republic. Fuller’s framework rests on the assumption that law is created by an absolute monarch. As such, Fuller’s rules are the only constraints on the king’s lawmaking ability. The various branches of a constitutional republic, however, face additional constraints that are both procedural and substantive. All three debaters accept the application of Fuller’s framework to American administrative law without asking whether it can be imported wholesale into a constitutional republic that separates and limits power. The modern administrative leviathan has broken those constraints. With the assistance of Congress and the Supreme Court, the administrative state has usurped legislative and judicial powers that the Framers assigned elsewhere. Sunstein and Vermeule try to convince their readers that, despite all that, the beast is not dangerous. They have failed.