1/ I’ve just gotten the chance to read Law and Leviathan, the new book from @CassSunstein and @Vermeullarmine. I hope to find time to write a full review, but here are a few thoughts.

2/ This book is stylish, tightly argued, well written. It has a surprisingly conciliatory tone—none of Vermeule’s trademark Twitter sarcasm. Maybe it is even…charming?

3/ Hard-core non-delegation adherents will balk at this whole project, but the book’s achievement is that it pulls the rest of us together for a common project of making administrative law work in light of our shared values.

4/ Lon Fuller’s “internal morality of law” is an appealing framework, and their exegesis of existing canons of admin law in light of it is persuasive. I especially like the discussion of Auer deference, and pretextual reasons.

5/ This, too: “If they can, courts should interpret statutes in such a way as to avoid giving blank checks to administrative agencies. That is a Fullerian idea” (123). Right on.

6/ So I enjoyed the book and feel ready to sign up for the project it announces. That is high praise!
But…
It’s worth pondering just how capable it is of fulfilling the subtitle’s promise of “Redeeming the Administrative state.” Redeeming it for whom, in what context?

7/ Put it another way: making administrative law conform to various ideals of sound lawmaking is an appealing project, and more helpful than asking over and over whether we might just dump it all. But…

8/ Even granting that admin law has a vital internal morality, what should the domain of admin law be? Is the “Leviathan” of the title supposed to be justified in some deep way by virtue of admin law’s fine qualities?

9/ S&V themselves recognize limitations (especially 91-94)—but their way of doing so gives one pause.
Following Fuller, they note: “not everything government does is subject to, or best understood, through the lens of, law’s internal morality.” Yes, and where does that leave us?

10/ “(Note that a democratic or nondemocratic nation might violate the morality of law, and that a democratic or nondemocratic nation might comply with the morality of law. After all, Fuller’s Rex was a king.)” (41)
Hmm!

11/ “Fullerian principles, however valid and appealing, have limits of both scope and weight. They must inevitably be traded off against the agency’s institutional role and capacities, resource limitations, and programmatic objectives.” (103)
How big a hole is that?

12/ I mean, listen, this is an admin law book, maybe it sounds silly to complain that it is just about admin law!
But vindicating admin law does not actually answer the question of whether the place that it has come to play in our constitutional system is a healthy one.

13/ Should a proper respect for “the internal morality of administrative law” be enough to dispel worries about the demise of self-government? About the insular nature of agency decision-making?

14/ They note that old statutes “that a politically polarized and fractured Congress rarely updates, but that are expected to govern ever-changing problems” create some serious interpretive problems. But they nevertheless expect them to rule. Is that good?

15/ Does the Congress being “politically polarized and fractured” mean that its inaction becomes a license to innovate using old statutes as the legal underpinning? Doesn’t this stand in tension with #5, above?

16/ This isn’t the sort of book that denies the force of such questions; instead, it mildly suggests that all this is fair game, but we should nevertheless celebrate admin law’s internal morality.
Yes...but!
/end/