By JUDE DOUGHERTY
Vermeule, Adrian. Law’s Abnegation: From Law’s Empire to the Administrative State. Cambridge, Mass.: Harvard University Press, 2016. 254 pp.
“Law’s Empire” of the subtitle is a reference to Ronald Dworkin’s influential 1986 treatise, Law’s Empire. Adrian Vermeule, a professor of law, acknowledges Dworkin to be one of the great legal scholars of the 20th century, yet accuses him of ignoring a major drift in contemporary law.
With considerable evidence, he maintains that Dworkin missed the impact that the creation of multiple federal agencies has had on case law. Dworkin, he says, assumed law’s integrity, that is, a strict division of powers between the legislative, the judiciary, and the administrative branches of government, a division which gave the legislature sole control over the making of law.
Vermeule is convinced that we have not had such an institutional structure for decades. He shows that since 1932 there has been in the making of law a steady deference to administrative bodies. Law has, in effect, deposed itself. Most federal courts in the post-New Deal period allowed Congress to delegate its lawmaking powers to the administrative state.
The creation of the Federal Security Agency in 1939 during the Roosevelt administration is a prime example of a transfer of power from the legislative branch to the executive branch of government. That, and the creation of other federal agencies, has brought a dramatic change in the way the nation is governed.
The expansion of what Vermeule calls “the regulative state” has shifted power from the states to the federal government. In his judgment, this shift amounts to a rejection of the checks and balances established by the U.S. Constitution in favor of independent and isolated regulatory agencies. Today most federal law is made, interpreted, and enforced by faceless, unaccountable federal bureaucrats.
In the interpretation of law, judges still possess nominal supremacy, but they have voluntarily ceded power. Under pressure brought by very complex cases, judges have become convinced that administrators should have a broad leeway to set policy, to determine facts, to interpret ambiguous statutes, and even, in what Vermeule calls “an intolerable front to the legal mind,” to determine boundaries of the agency’s own jurisdiction, in effect acting as judges in their own cases.
Bertrand de Jouvenel, the French political philosopher, in the early years of the Roosevelt administration saw the danger of endowing a single agency with legislative, judicial, and administrative authority. On that subject his 1949 book, On Power, remains relevant.
Whereas courts must take the consequences of their decisions into account when ruling, as Vermeule points out, agencies interpreting law are empowered to choose which of several competing policies to honor, and how much weight to attach to principles. If the agency’s judgment is challenged, judicial review amounts only to the determination of whether the administrative agency has clearly gone beyond the outer bounds of the defensible.
Most federal courts defer to agency interpretations of statutes. It is assumed that Congress in granting authority to administrative agencies intended to delegate the task of interpretation to them. This is what has allowed Washington, through the action of its many administrative agencies, to regulate nearly every aspect of citizens’ lives. Such delegation, it is claimed, is reasonable given that the present 535 members of Congress could not have had the time or resources to do it through legislation.
In Vermeule’s judgment, the history and logic of U.S. administrative law suggest that Dworkin’s classical concept of law cannot coexist with the administrative state. But then he modifies that judgment: “This is not to say that law enforced by courts and the administrative state cannot coexist at all, just that they cannot simultaneously be paramount.”
Law’s Abnegation is supported by Adrian Vermeule’s extensive research. He cites 60 cases that he has examined in formulating his argument. An important catalyst in the “law’s” surrender is federal court rulings in cases brought by the Natural Resources Defense Council. Few readers will have followed or remember Chevron USA v. Natural Resources Defense Council, City of Arlington v. FDC, or Vermont Nuclear Power Corp. v. FDC. In ease case the court recognized the authority of executive action on the part of a federal agency.
Given the dozens of federal agencies with administrative power to determine what the law is and to enforce it, and given the ideological split in the nation as a whole, it is no wonder that the recent presidential election was highly contested. The president’s power to appoint agency leaders contributes in a large measure to his ability to govern.
Law’s Abnegation is a timely reminder of how law is actually made in spite of a constitutional separation of powers.
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