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The New Coke: On the Plural Aims of Administrative Law

31 Pages Posted: 17 Jul 2015 Last revised: 7 Jun 2016

Cass R. Sunstein

Harvard Law School; Harvard University - Harvard Kennedy School (HKS)

Adrian Vermeule

Harvard Law School

Date Written: July 16, 2015

Abstract

In the early twenty-first century, public law is being challenged by a fundamental assault on the legitimacy of the administrative state, under the banner of “the separation of powers.” The challengers frequently refer to the specter of Stuart despotism, and they valorize a (putatively) heroic opponent of Stuart despotism: the common-law judge, symbolized by Edward Coke. The New Coke is a shorthand for a cluster of impulses stemming from a belief in the illegitimacy of the modern administrative state. Despite its historical guise, the New Coke is a living-constitutionalist movement, a product of thoroughly contemporary values and fears -- perhaps prompted by continuing rejection, in some quarters, of the New Deal itself, and perhaps prompted by a reaction by some of the Justices to controversial initiatives from more recent presidents. In two important decisions in 2015, however, a supermajority of the Court refused to embrace the New Coke, and properly so. Instead the Court issued the long-awaited Vermont Yankee II, insisting that courts are not authorized to add procedures to those required by the APA, and reaffirmed the validity of Auer deference to agency interpretations of their own regulations. The Court’s approach promises to honor the multiple goals of administrative and constitutional law without embracing novel, ungrounded claims that betray basic commitments of the public legal order. For now, the center holds.

Keywords: executive power, separation of powers, Coke, Chevron deference, delegation, Auer deference

Suggested Citation

Sunstein, Cass R. and Vermeule, Adrian, The New Coke: On the Plural Aims of Administrative Law (July 16, 2015). Supreme Court Review, Forthcoming; Harvard Public Law Working Paper No. 16-23. Available at SSRN: https://ssrn.com/abstract=2631873 or http://dx.doi.org/10.2139/ssrn.2631873

Cass R. Sunstein (Contact Author)

Harvard Law School ( email )

1575 Massachusetts Ave
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Cambridge, MA 02138
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Harvard University - Harvard Kennedy School (HKS) ( email )

79 John F. Kennedy Street
Cambridge, MA 02138
United States

Adrian Vermeule

Harvard Law School ( email )

1525 Massachusetts
Griswold 500
Cambridge, MA 02138
United States

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