how much discretion should an administrative agency have in a modern democracy? one dimension we need to balance is the trade off between accountability and effectiveness. the staff of agency is not itself elected, so not as directly accountable to the people. but the staff also has expertise needed to actually execute legislation and achieve political aims given to it by those who were elected.

the proper balance seems like it would have to be struck via trial and error: let's try different amounts of agency discretion and then tune it to whatever level tends to achieve the people's policy aims best. that seems right as far as it goes, but of course discretion is no unidimensional thing and we'd like to say something more specific.

we can be more specific if we decompose agency discretion into a few different dimensions. that's what this book is about: if an agency is creating and maintaining rules, then there is a minimal morality (attributed to the philosopher lon fuller) the agency should not transgress. transgressions will include things like inconsistent application of rules, abuses of retroactivity, issuance of contradictory rules.

that is the normative framework of the book. much of the text is taken up with illustrating fuller's morality of law as applied to american administrative agencies in court decisions. the authors argue that the courts are not too far from this fullerian ideal: eg, when the secretary of commerce tried to add a citizenship question to the census he got slapped down by scotus for offering an official rationale that some emails showed was mere pretext (a violation of fuller's duty of transparency).

i am in no position to evaluate the descriptive bits but found the philosophical parts illuminating. ( )

As the Supreme Court shifts to a conservative court this work is particularly timely in examining the approaches that the Court might responsibly take to address the perspective of those who understandably are concerned with the arrogation of power by the administrative state. Emerging from this work is a path to addressing that perspective without a bull in the china shop approach. in the past half decade we have seen wild swings in the approach of administrative agencies to implement broad policies and these swings are to the breaking point. If the Supreme Court reacts wildly setting aside settled principles then we are likely to see Congress enshrine methodologies for the agencies to be immune from review. Hopefully the Supreme Court with its new conservative majority will follow a measured approach to correcting past, present and future abuses with the implementation of the restraining morality approach rather than raw political power approach which will activate a response that will not serve liberty. ( )

First, find a molehill

Law is theater. Lawyers can settle in to argue the meaning of a comma or the word “and”. It fascinates lawyers and judges, and baffles the merely mortal. In Law and Leviathan, Cass Sunstein and Adrian Vermeule dissect the administrative state, possibly the least exciting aspect of government. They do it by assessing the mood of the Supreme Court. In judgment after judgment, the fate of federal agencies is bandied about as if the agencies’ missions were the last thing to be considered. It is all about interpretation of the Constitution (Article 1, Section 1 in particular) and precedents.

The book assumes a lot. It assumes the reader is already familiar with key decisions such as Chevron (1984) and Auer. There is no thought to making it all accessible to the lay reader. This is ammo for lawyers arguing before the Supreme Court, on issues that would bore the average reader to tears: the right of federal agencies to operate at all.

At issue is the delegation of power. Congress is charged with carrying out certain orders, and it cannot (constitutionally speaking) offload those powers to others. So are agencies like the Food and Drug Administration, the Environmental Protection Agency and the Federal Communications Commission operating against the wishes of the founders?

The book answers no they are not outside the Constitution, as I would think any literate person would. As the authors note, Congress is not delegating or transferring its power so much as exercising it in a assigning to tasks to fulfill its own mandate. Sadly, it takes a whole book to make a lawyer see this.

There is, after all, not just the Constitution but also the Administrative Procedures Act that lay out all these responsibilities and tasks for all to abide. But that has never stopped an American from suing anyway. Or for activist judges like Neil Gorsuch, who figures prominently here, from trying to change the very notion of government.

It’s not just their mere existence either. Lawsuits also target the rulings, of course. So arguments shift to whether the agencies can make their rules retroactive (no – so far), and how far they can go outside their mandate (scope creep). in order to preserve and defend the public good.

Despite all my reviews of Cass Sunstein books, this is a different Sunstein in Law and Leviathan. Here he abandons his user-friendly style and accessible examples for the far more dense vocabulary of administrative law. It is less than fascinating and more eye rolling. Is this what we need a Supreme Court for? In the USA, the answer is yes.

David Wineberg ( )