Mending Holes in the Rule of (Administrative) Law

Abstract

The past decade has witnessed a surge of interest in Carl Schmitt’s controversial assertion that the rule of law inevitably bends before the demands of state necessity during national emergencies. In an article published recently in the Harvard Law Review, Adrian Vermeule argues that American administrative law is fundamentally “Schmittian” in the sense that it permits federal agencies to operate outside the constraints of administrative procedure and meaningful judicial review during emergencies. Vermeule contends that the federal Administrative Procedure Act (APA) is replete with procedural exceptions, which generate “black holes” -- zones where federal agencies are free to act outside the constraints of legal order. In addition, he suggests that federal courts manipulate the APA’s flexible legal standards to accord heightened deference to federal agencies during national crises, transforming standards such as “reasonableness” and “good cause” into “grey holes” -- legal devices which preserve the façade, but not the reality, of the rule of law. Far from criticizing these gaps in federal administrative law, Vermeule accepts black holes and grey holes as institutional inevitabilities and dismisses proposals to extend the rule of law to all administrative action as a “hopeless fantasy.”

Vermeule makes a compelling case that statutory loopholes and anemic judicial review have diminished administrative law’s salience during national emergencies. But his broader argument that black holes and grey holes cannot be eradicated is unpersuasive and deeply troubling. In reality, Congress could eliminate the APA’s procedural loopholes without compromising agencies’ capacity to address emergencies if it would simply discard the APA’s rule-based categorical exceptions in favor of a more nuanced, standard-based derogation regime. Likewise, federal courts could easily eliminate grey holes by treating legal standards in administrative law as vehicles for promoting robust public justification of administrative action. The primary obstacle to these reforms is not “institutional,” as Vermeule asserts, but rather cultural: too many legislators and judges view administrative law in static positivist terms as a means for allocating decision making authority among public institutions, rather than in dynamic relational terms as establishing a regime in which public officials must justify all exercises of administrative powers according to public-regarding principles.

To show how our administrative law might be reformed to promote a “culture of justification” during national emergencies, this essay outlines a relational theory of the rule of law based on the principle that public officials and agencies serve as fiduciaries for the public. Whereas Vermeule’s article explores the current limits of our administrative law, the relational theory suggests practical steps for refining our legal system to ground emergency administration more firmly in the rule of law.

Keywords: administrative law, emergencies, rule of law, Schmitt, justification