Law and Leviathan : Redeeming the Administrative State

Winner of the Scribes Book Award "As brilliantly imaginative as it is urgently timely." —Richard H. Fallon, Jr., Harvard Law School "At no time more than the present, a defense of expertise-based governance and administration is sorely needed, and this book provides it with gusto." —Frederick Schauer, author of The Proof A highly original framework for restoring confidence in a government bureaucracy increasingly derided as "the deep state." Is the modern administrative state illegitimate? Unconstitutional? Unaccountable? Dangerous? America has long been divided over these questions, but the debate has recently taken on more urgency and spilled into the streets. Cass Sunstein and Adrian Vermeule argue that the administrative state can be redeemed so long as public officials are constrained by morality and guided by stable rules. Officials should make clear rules, ensure transparency, and never abuse retroactivity, so that current guidelines are not under constant threat of change. They should make rules that are understandable and avoid issuing contradictory ones. These principles may seem simple, but they have a great deal of power. Already, they limit the activities of administrative agencies every day. In more robust form, they could address some of the concerns of critics who decry the "deep state" and yearn for its downfall. "Has something to offer both critics and supporters...a valuable contribution to the ongoing debate over the constitutionality of the modern state." — Review of Politics "The authors freely admit that the administrative state is not perfect. But, they contend, it is far better than its critics allow." — Wall Street Journal

Winner of the Scribes Book Award "Asbrilliantly imaginative as it is urgently timely." -Richard H.Fallon, Jr., Harvard Law School "At no time morethan the present, a defense of expertise-based governance andadministration is sorely needed, and this book provides it withgusto." -Frederick Schauer, author of The ProofA highly original framework for restoring confidence in agovernment bureaucracy increasingly derided as "the deepstate." Is the modern administrative state illegitimate?Unconstitutional? Unaccountable? Dangerous? America has long beendivided over these questions, but the debate has recently taken onmore urgency and spilled into the streets. Cass Sunstein and AdrianVermeule argue that the administrative state can be redeemed solong as public officials are constrained by morality and guided bystable rules. Officials should make clear rules, ensuretransparency, and never abuse retroactivity, so that currentguidelines are not under constant threat of change. They shouldmake rules that are understandable and avoid issuing contradictoryones. These principles may seem simple, but they have a great dealof power. Already, they limit the activities of administrativeagencies every day. In more robust form, they could address some ofthe concerns of critics who decry the "deep state" and yearn forits downfall. "Has something to offer both critics and supporters...avaluable contribution to the ongoing debate over theconstitutionality of the modern state." -Review ofPolitics "The authors freely admit that the administrativestate is not perfect. But, they contend, it is far better than itscritics allow." -Wall Street Journal

Winner of the 2021 Scribes Book Award From two legal luminaries, a highly original framework for restoring confidence in a government bureaucracy increasingly derided as the deep state. Is the modern administrative state illegitimate? Unconstitutional? Unaccountable? Dangerous? Intolerable? American public law has long been riven by a persistent, serious conflict, a kind of low-grade cold war, over these questions. Cass Sunstein and Adrian Vermeule argue that the administrative state can be redeemed, as long as public officials are constrained by what they call the morality of administrative law. Law and Leviathan elaborates a number of principles that underlie this moral regime. Officials who respect that morality never fail to make rules in the first place. They ensure transparency, so that people are made aware of the rules with which they must comply. They never abuse retroactivity, so that people can rely on current rules, which are not under constant threat of change. They make rules that are understandable and avoid issuing rules that contradict each other. These principles may seem simple, but they have a great deal of power. Already, without explicit enunciation, they limit the activities of administrative agencies every day. But we can aspire for better. In more robust form, these principles could address many of the concerns that have critics of the administrative state mourning what they see as the demise of the rule of law. The bureaucratic Leviathan may be an inescapable reality of complex modern democracies, but Sunstein and Vermeule show how we can at last make peace between those who accept its necessity and those who yearn for its downfall.

From two legal luminaries, a highly original framework for restoring confidence in a government bureaucracy increasingly derided as "the deep state." Is the modern administrative state illegitimate? Unconstitutional? Unaccountable? Dangerous? Intolerable? American public law has long been riven by a persistent, serious conflict, a kind of low-grade cold war, over these questions.Cass Sunstein and Adrian Vermeule argue that the administrative state can be redeemed, as long as public officials are constrained by what they call the morality of administrative law. Law and Leviathan elaborates a number of principles that underlie this moral regime. Officials who respect that morality never fail to make rules in the first place. They ensure transparency, so that people are made aware of the rules with which they must comply. They never abuse retroactivity, so that people can rely on current rules, which are not under constant threat of change. They make rules that are understandable and avoid issuing rules that contradict each other.These principles may seem simple, but they have a great deal of power. Already, without explicit enunciation, they limit the activities of administrative agencies every day. But we can aspire for better. In more robust form, these principles could address many of the concerns that have critics of the administrative state mourning what they see as the demise of the rule of law. The bureaucratic Leviathan may be an inescapable reality of complex modern democracies, but Sunstein and Vermeule show how we can at last make peace between those who accept its necessity and those who yearn for its downfall.

Cover 1 Title Page 6 Copyright 7 Dedication 8 Epigraph 10 Contents 12 Introduction: “Long-Continued and Hard-Fought Contentions” 16 1. The New Coke 34 2. Law’s Morality, 1 : Rules and Discretion 53 3. Law’s Morality, 2 : Consistency and Reliance 78 4. Law’s Morality, 3 : Limits, Trade-offs, and the Judicial Role 103 5. Surrogate Safeguards in Action 131 Final Words 157 Notes 162 Acknowledgments 186 Index 188 Many Americans fear the power of unelected, unaccountable bureaucrats—the “deep state.” Cass Sunstein and Adrian Vermeule seek to calm those fears by proposing a moral regime to ensure that government rulemakers behave transparently and don’t abuse their authority. The administrative state may be a Leviathan, but it can be a principled one.