Your monthly support provides voters the knowledge they need to make confident decisions at the polls. Donate today.

"Libertarian Administrative Law" by Cass Sunstein and Adrian Vermeule (2015)

From Ballotpedia
Jump to: navigation, search
New Administrative State Banner.png
Administrative State
Administrative State Icon Gold.png
Five Pillars of the Administrative State
• Judicial deference
• Nondelegation
• Executive control
• Procedural rights
• Agency dynamics
Click here for more coverage of the administrative state on Ballotpedia

"Libertarian Administrative Law" (2015) is an article by American legal scholars Cass Sunstein and Adrian Vermeule arguing that a subset of judges on the DC Circuit Court of Appeals use their position to advance libertarian political goals. In order to make their case that certain judges on the DC Circuit Court are making libertarian changes to administrative law, Sunstein and Vermeule look at six separate legal areas for examples: Nondelegation, commercial speech, interpretive rules, arbitrariness review, standing and reviewability.[1]

HIGHLIGHTS
  • Source: The University of Chicago Law Review, Volume 82, 2015
  • Abstract: Sunstein and Vermeule provide the following summary of their argument in the paper's abstract:


    "In recent years, several judges on the nation's most important regulatory court—the United States Court of Appeals for the District of Columbia Circuit—have given birth to libertarian administrative law in the form of a series of judge-made doctrines that are designed to protect private ordering from national regulatory intrusion. These doctrines involve nondelegation principles, protection of commercial speech, procedures governing interpretive rules, arbitrariness review, standing, and reviewability. Libertarian administrative law, which has a long tradition, can be seen as a second-best option for those who believe, as some of the relevant judges openly argue, that the New Deal and the modern regulatory state suffer from basic constitutional infirmities. Taken as a whole, libertarian administrative law parallels the kind of progressive administrative law that the same court created in the 1970s and that the Supreme Court unanimously rejected in Vermont Yankee. It should meet a similar fate."[1]

    • Authors

    Cass R. Sunstein

    Cass R. Sunstein is an American legal scholar and professor. As of May 2024, he was the Robert Walmsley University Professor at Harvard Law School. He is also the founder and director of the Program on Behavioral Economics and Public Policy at Harvard Law School. Sunstein served as the administrator of the White House Office of Information and Regulatory Affairs under former President Barack Obama (D) from 2009 to 2012. According to his faculty profile page on the Harvard website, Sunstein's areas of interest include administrative law, constitutional law, environmental law and policy, employment law, labor law, and behavioral law and economics.[2]

    Career

    Below is a summary of Sunstein's education and career:[2]

    Academic degrees:

    • A.B. (1975), Harvard University
    • J.D. (1978), Harvard Law School

    Professional positions and honors:

    Adrian Vermeule

    Adrian Vermeule is an American lawyer and professor. As of December 2017, he was the Ralph S. Tyler Jr. Professor of Constitutional Law at Harvard Law School in Cambridge, Massachusetts. According to his faculty profile page on the Harvard Law School website, Vermeule's areas of interest include administrative law, constitutional law, legislation, and national security law. Below is a summary of Vermuele's education and career:[5]

    • Academic degrees:
      • B.A. (1990), Harvard College, Cambridge, Massachusetts
      • J.D. (1993), Harvard Law School, Cambridge, Massachusetts
    • Law professor and legal scholar
    • 2012: Elected to the American Academy of Arts and Sciences

    Background

    See also: Separation of powers

    Sunstein and Vermeule begin by describing progressive legal innovations carried out by judges on the DC Circuit Court in the years before the Supreme Court decided Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council in 1978. They contend that these judges pushed Administrative law toward favoring groups that represented environmental and consumer interests that faced political headwinds.[1]

    “ Perhaps influenced by prominent works in social science, which seemed to support the claim of underrepresentation, the judges devised a distinctly progressive approach to administrative law, featuring, among other things, hybrid procedural requirements. These innovations required agencies to offer more procedures than the Administrative Procedure Act (APA) mandated, at least when special solicitude for environmental or other interests was (in the judges' view) necessary.[1][6] ”

    The authors move on to claim that some DC Circuit judges in the early 21st century are behaving like their counterparts from the 1960s and 1970s. However, instead of pushing administrative law in a progressive direction, Sunstein and Vermeule contend that these judges pursue libertarian goals. They say that this group of judges share a "distinctive view that influences their decisions overall, and that this has moved administrative law in identifiable directions." This shift in administrative law away from the authors' understanding of Congressional intent leads them to ask whether the Supreme Court ought to consider making a second Vermont Yankee ruling to rein in judges that might be trying to change administrative procedures in order to benefit certain groups. Then, they define what they call "libertarian administrative law:"[1]

    “ In light of the writings of some of the relevant judges, libertarian administrative law may be understood as a second-best enterprise-an attempt to compensate for perceived departures during the New Deal from the baseline of the original constitutional order. We can understand libertarian administrative law to be inspired by a particular, highly controversial account of the Constitution-one that does not fit well with the Supreme Court's current understanding of the Founding document. A central assumption in the argument is that the original constitutional order, as these judges envision it, was far more protective of liberty and market baselines-and thus less hospitable to politically distorted governmental decisionmaking-than is the current state of constitutional law.[1][6] ”

    Nondelegation

    See also: Nondelegation doctrine

    Sunstein and Vermeule begin by stating that the first and last year the Supreme Court used the nondelegation doctrine to strike down an act of Congress was 1935. They say that even though the doctrine has been legally dormant for 80 years, libertarians on the DC Circuit Court have developed their own version in two separate instances later overruled by the Supreme Court.[1][7]

    “ The DC Circuit's first forays into this domain occurred in the 1990s, when the court, quite remarkably, raised serious constitutional doubts about central provisions of both the Occupational Safety and Health Act and the CAA. The court relied on two different ideas. The first was that if Congress failed to impose real bounds on agency discretion-in the form of floors and ceilings that were not too far apart-it would run afoul of the nondelegation doctrine. The second idea was that, in the face of an otherwise-unconstitutional grant of discretion, agencies could solve the problem by adopting clear rules that would constrain their own discretion.[1][6] ”

    In the second case, the authors accuse the DC Circuit Court of "engaging in a kind of free-form doctrine building, with a distinctive libertarian cast." That the Supreme Court reversed the DC Circuit in both instances bolsters Sunstein and Vermeule's conclusion that "outside very extreme circumstances, invalidation on nondelegation grounds is not permissible in contemporary administrative law."[1]

    Commercial speech and disclosure

    Sunstein and Vermeule identify what they call a libertarian streak in some DC Circuit Court members' approaches to cases involving commercial speech. For support, they cite cases in which the DC Circuit struck regulations requiring graphic warning labels on cigarettes and the disclosure of the origin of minerals mined from war-torn parts of Africa.[1]

    “ These are First Amendment cases, to be sure, but they belong squarely in the world of (libertarian) administrative law because they raise grave questions about compulsory disclosure, which is an increasingly popular (and minimally intrusive) regulatory tool. [...] These "free speech" decisions use a form of aggressive review of administrators' causal and evidentiary judgments. Such an approach is, plausibly, a substitute for grounds of review-such as substantive due process protection of property rights, or stringent arbitrariness review under the APA-that are either off limits in the current constitutional regime or else far more difficult to justify, as we will discuss when we examine the DC Circuit's recent arbitrariness jurisprudence.[1][6] ”

    Interpretive rules

    See also: Interpretive rules

    Sunstein and Vermeule detect libertarian administrative law in the DC Circuit Court's decision to require administrative agencies to use notice-and-comment procedures when replacing prior interpretive rules with new ones.[1]

    “ In Paralyzed Veterans of America v D.C. Arena LP, the court concluded that, so long as the original interpretive rule was 'authoritatively adopted,' the agency could not change it without a full notice-and-comment process. The court squarely rejected the government's argument that 'an agency is completely free to change its interpretation of an ambiguous regulation so long as the regulation reasonably will bear the second interpretation.'[1][6] ”

    The authors highlight the Paralyzed Veterans decision because they see it as an example of the DC Circuit requiring extra procedures not mandated by the APA. Going beyond the legally-mandated procedures serves as evidence that the court might be pursuing ideological goals instead of simply applying the law.

    Arbitrariness review

    See also: Arbitrariness review

    Similar to the way they describe a progressive D.C. Circuit targeting nuclear energy for special scrutiny in the 1960s and 1970s, Sunstein and Vermeule say that the judges articulating libertarian administrative law now fight the Securities and Exchange Commission (SEC). Looking to Business Roundtable v. Securities and Exchange Commission from 2011, the authors claim that the court went beyond the law to require a quantitative cost-benefit analysis even in cases where the empirical data were mixed or difficult to quantify. They argue that the Business Roundtable requirement was invalid:[1]

    “ It is not a valid move in American administrative law for judges to decide that peer-reviewed economic studies supporting the agency's view are "unpersuasive," or for judges to bar agencies from proceeding in the face of "mixed evidence." The panel's discussion is not without ambiguity, but it seems to imply that the antonym of "mixed" evidence is "clear" evidence, so that the Commission would have to give "clear" evidence in support of its views. Analytically, this collapses two distinct administrative law questions: (1) the standard of proof under which the agency must demonstrate its conclusions (to its own satisfaction), and (2) the standard of review under which judges examine the adequacy of the agency's conclusions.[1][6] ”

    Standing

    The authors state that the Supreme Court has interpreted the APA to give a broad class of people and organizations standing to sue in court when they suffer or face adversity because of an agency action. However, they say the DC Circuit Court has ruled numerous times to limit standing in order to prevent environmental, labor and consumer public interest groups from suing in order to generate more robust regulations. Sunstein and Vermeule concede that the relevant decisions are not implausible; nevertheless:[1]

    “ [It] is reasonable to say that almost all of them could have gone the other way. It is well-known that whether an injury is "speculative" depends on how it is characterized. If an injury is characterized as an opportunity or a risk, it may well count for purposes of standing even if it would seem implausibly speculative if characterized more narrowly. And in principle, the requirements of causation and redressability are double-edged swords. [...] With respect to standing, administrative law has a clear libertarian dimension in a number of important rulings by the DC Circuit.[1][6] ”

    Reviewability

    See also: Reviewability

    As in other areas of law, Sunstein and Vermeule identify libertarian breaks with Supreme Court precedent in how the DC Circuit sometimes handles when agency actions are subject to judicial review. Discussing a series of cases, the authors analyze how the DC Circuit approached seemingly mandatory language in statutes depending on the political issues involved. For instance, the DC Circuit allowed judicial review of agency inaction in a case involving the importation of lethal drugs used for execution when the Supreme Court ruled the opposite way decades earlier in a nearly-identical case. On the other hand, in a case involving pollution and the Clean Air Act, the DC Circuit ruled that agency inaction was not subject to judicial review. [1]

    “ Sierra Club and Cook may be consistent from a libertarian standpoint, but they are legally irreconcilable. This is not to say which decision is correct, which incorrect. It is even possible that both are wrong. More plausible than the actual outcomes would have been the opposite pair of holdings: that the presumption of unreviewability was overcome in Sierra Club but not overcome in Cook. Whatever the legal merits, however, the larger point is clear: recent reviewability cases, decided by judges in the core libertarian cadre on the DC Circuit, have an unmistakable libertarian valence.[1][6] ”

    Conclusion

    Sunstein and Vermeule assert that administrative law as developed in the Administrative Procedure Act and its surrounding doctrines "cannot be counted as libertarian in any general or systematic way."[1]

    “ Nor is administrative law generally and systematically progressive, or proregulatory, or anything else-though here as well, we could imagine a statute, or a set of implementing doctrines, that tilted in that direction. As the Supreme Court understands it, administrative law, as law, has no systematic and general valence that can be explained in terms of any identifiable political theory or any single theory of regulation. In that modest sense, it is a genuinely, although only partly, autonomous body of rules, standards, and principles-autonomous in the sense that it has not been systematically captured by any one political or ideological approach.


    Administrative law thus cannot be neatly characterized in libertarian or nonlibertarian terms. The basic error of the recent DC Circuit decisions is to attempt to engraft a particular controversial theory-a libertarian theory of the legitimate role of the state, itself rooted in a particular controversial interpretation of public-choice economics-onto legal materials that have remained recalcitrant.[1][6]

    		”

    See also

    Full text

    Footnotes

    1. ↑ 1.00 1.01 1.02 1.03 1.04 1.05 1.06 1.07 1.08 1.09 1.10 1.11 1.12 1.13 1.14 1.15 1.16 1.17 1.18 1.19 1.20 University of Chicago Law Review, "Libertarian Administrative Law" 2015
    2. ↑ 2.0 2.1 Harvard Law School, "CASS R. SUNSTEIN," accessed August 16, 2019
    3. ↑ University of Chicago, "Professor Cass R. Sunstein," accessed January 31, 2018
    4. ↑ Chicago Tribune, "Harvard hires U. of C. law professor Cass Sunstein," February 20, 2008
    5. ↑ Harvard Law School, "Adrian Vermeule," accessed December 13, 2017
    6. ↑ 6.0 6.1 6.2 6.3 6.4 6.5 6.6 6.7 6.8 Note: This text is quoted verbatim from the original source. Any inconsistencies are attributable to the original source.
    7. ↑ Oyez, U.S. Department of Transportation v. Association of American Railroads, accessed August 7, 2018
    v • e
    The Administrative State
    MainThe Administrative State Project Badge.png
    Pillars
    Reporting
    Laws
    Administrative Procedure Act • Antiquities Act • Civil Service Reform Act • Clayton Antitrust Act • Communications Act of 1934 • Congressional Review Act • Electronic Freedom of Information Act • Federal Food, Drug, and Cosmetic Act of 1938 • Federal Housekeeping Statute • Federal Reserve Act • Federal Trade Commission Act of 1914 • Freedom of Information Act • Government in the Sunshine Act • Independent Offices Appropriations Act of 1952 • Information Quality Act • Interstate Commerce Act • National Labor Relations Act • Paperwork Reduction Act • Pendleton Act • Privacy Act of 1974 • Regulatory Flexibility Act • REINS Act • REINS Act (Wisconsin) • Securities Act of 1933 • Securities Exchange Act of 1934 • Sherman Antitrust Act • Small Business Regulatory Enforcement Fairness Act • Truth in Regulating Act • Unfunded Mandates Reform Act
    Cases
    Abbott Laboratories v. Gardner • A.L.A. Schechter Poultry Corp. v. United States • Association of Data Processing Service Organizations v. Camp • Auer v. Robbins • Chevron v. Natural Resources Defense Council • Citizens to Preserve Overton Park v. Volpe • Federal Trade Commission (FTC) v. Standard Oil Company of California • Field v. Clark • Food and Drug Administration v. Brown and Williamson Tobacco Corporation • Humphrey's Executor v. United States • Immigration and Naturalization Service (INS) v. Chadha • J.W. Hampton Jr. & Company v. United States • Lucia v. SEC • Marshall v. Barlow's • Massachusetts v. Environmental Protection Agency • Mistretta v. United States • National Federation of Independent Business (NFIB) v. Sebelius • National Labor Relations Board v. Noel Canning Company • National Labor Relations Board v. Sears, Roebuck & Co. • Panama Refining Co. v. Ryan • Securities and Exchange Commission v. Chenery Corporation • Skidmore v. Swift & Co. • United States v. Lopez • United States v. Western Pacific Railroad Co. • Universal Camera Corporation v. National Labor Relations Board • Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council • Wayman v. Southard • Weyerhaeuser Company v. United States Fish and Wildlife Service • Whitman v. American Trucking Associations • Wickard v. Filburn • Wiener v. United States
    Terms
    Adjudication (administrative state) • Administrative judge • Administrative law • Administrative law judge • Administrative state • Arbitrary-or-capricious test • Auer deference • Barrier to entry • Bootleggers and Baptists • Chevron deference (doctrine) • Civil servant • Civil service • Code of Federal Regulations • Codify (administrative state) • Comment period • Compliance costs • Congressional Record • Coordination (administrative state) • Deference (administrative state) • Direct and indirect costs (administrative state) • Enabling statute • Ex parte communication (administrative state) • Executive agency • Federal law • Federal Register • Federalism • Final rule • Formal rulemaking • Formalism (law) • Functionalism (law) • Guidance (administrative state) • Hybrid rulemaking • Incorporation by reference • Independent federal agency • Informal rulemaking • Joint resolution of disapproval (administrative state) • Major rule • Negotiated rulemaking • Nondelegation doctrine • OIRA prompt letter • Organic statute • Pragmatism (law) • Precautionary principle • Promulgate • Proposed rule • Publication rulemaking • Regulatory budget • Regulatory capture • Regulatory dark matter • Regulatory impact analysis • Regulatory policy officer • Regulatory reform officer • Regulatory review • Rent seeking • Retrospective regulatory review • Risk assessment (administrative state) • Rulemaking • Separation of powers • Significant regulatory action • Skidmore deference • Statutory authority • Substantive law and procedural law • Sue and settle • Sunset provision • Unified Agenda of Federal Regulatory and Deregulatory Actions • United States Code • United States Statutes at Large
    Bibliography
    Agencies
    Retrieved from "https://ballotpedia.org/wiki/index.php?title=%22Libertarian_Administrative_Law%22_by_Cass_R._Sunstein_and_Adrian_Vermeule_(2015)&oldid=9158786"