Lions Under the Bureaucracy: Review of Adrian Vermeule, 'Law's Abnegation: From Law's Empire to the Administrative State'
Forthcoming, Federalist Society Review
44 Pages Posted: 6 Feb 2017
Date Written: February 4, 2017
Recent years have seen the publication of striking academic and judicial attacks on the legal and political-philosophical premises on which the administrative state rests, as well as the jurisprudence that has facilitated its expansion — jurisprudence characterized by judicial deference to all sorts of assertions of administrative power. Few scholars have defended the administrative state and administrative jurisprudence against such critiques more zealously than Adrian Vermeule. Vermeule’s new book, Law’s Abnegation, is a cogent presentation of a bright, optimistic vision of our administrative jurisprudence — one comforting to what Vermeule refers to as the “traditional legal mind.” Adopting an interpretive model developed by legal philosopher Ronald Dworkin, Vermeule contends that judicial deference to administrative power both fits with and justifies our administrative jurisprudence — that it is not only consistent with our institutional history, but is normatively desirable. He further argues that judicial deference to administrative power is in some sense inevitable.
Like all of Vermeule’s work, Law’s Abnegation is taut, insightful, and provocative — it is a must-read. Yet Vermeule’s case for deference is ultimately unpersuasive. This Article summarizes and critiques Vermeule’s arguments and then sketches an alternative approach that better equips judges to discharge their constitutional duties in cases involving administrative power — one guided by the letter (the original public meaning) and the spirit (the original function or purpose) of the relevant provisions of the Constitution and of the Administrative Procedure Act.
Keywords: administrative law, Ronald Dworkin, Constitution, history, originalism, Adrian Vermeule, constitutional Interpretation, interpretive Theory, Administrative Procedure Act, hard look review, judicial engagement
JEL Classification: K10, K30, K39
Suggested Citation: Suggested Citation