Adrian Vermeule, John H. Watson Professor of Law at Harvard University, is a bold, original, and often brilliant thinker—and at times his own worst enemy. Along with a cornucopia of trenchant insights on (administrative) law, his copious output contains cheap polemics; intemperate attacks on scholars and judges who peddle “libertarian” law; reckless flirtation with proto-fascist legal tropes; and wild theorizing backed by little more than ipse dixit. That latter tendency in particular is on display in Law’s Abnegation: From Law’s Empire to the Administrative State. The book’s principal theme is the perennial tension between the lawful government of “classical” constitutionalism and…
In his state of the union and again in his recent interview with Politico, President Obama expressed sorrow that he has not been able to end political animosities. As he put it in the interview, “a singular regret for me is the fact that our body politic has become more polarized, the language, the spirit has become meaner than when I came in.”
Obama blames different factors from the media to gerrymandering for our angry divisions. But Obama himself is in no small measure responsible for polarization. His reliance on executive action, most egregiously his order on immigration, is a primary cause. Unsupported by any express delegation from Congress, this extraordinary act is enormously controversial. It seeks to permit five million people who have come to this country illegally not only to stay but to work.
Legislation on divisive issues is much less likely to lead to polarization than executive fiat.
Recently, Adrian Vermeule had a review of the new book by Melissa Schwartzberg on supermajority rules – Counting the Many: The Origins and Limits of Supermajority Rules. I haven’t read Schwartzberg’s book yet, but Vermeule does discuss a number of arguments against supermajority rules.
One such argument is based on May’s Theorem. According to the Theorem, only majority rule satisfies four conditions on group decisionmaking. Two of the key ones are anonymity (the group decision treats each voter identically) and the neutrality (the group decision treats both outcomes the same, in that reversing the preferences reverses the group decision).
Supermajority rules satisfy the anonymity condition. Under ordinary supermajority rules, each voter receives one vote. But supermajority rules violates the neutrality conditions. Under a 3/5 supermajority rule for passing new spending, if a majority is opposed to the new spending, it gets it way and the spending does not pass, but if a majority is in favor of the new spending, it doesn’t get its way and again the spending does not pass. Clearly, this 3/5 supermajority rule privileges in a sense the decision against new spending.
Is this a problem? Advocates of May’s Theorem certainly treat it as one. But all that the violation of the neutrality condition shows is that there is a privileging of a decision (as compared to majority rule) and that this privileging needs a justification.
More and more frequently (I’d heard or read someplace) federal agencies issue regulations without public notice and comment. They may do so (1) when Congress has required or authorized the procedure or (2) the rule falls under one of the Administrative Procedure Act’s exemptions from generally applicable (informal) rulemaking requirements. Among them is an alarmingly broad “good cause” exemption, which permits the suspension of ordinary process requirements “when the agency for good cause finds […] that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.” APA Sec. 553(b)(3)(B). (There are a few legal wrinkles, but none are relevant here.) Adrian Vermeule has tagged this provision as one of many legal “grey holes” that swallow the rule of law. That sounds plausible: Notice and comment is the legal process we impose on agencies as the price of delegated lawmaking authority. The good cause exemption looks like (and has been widely understood as) as “emergency” exemption. In times of crisis, government will take liberties with it and courts will “dial down” their review.
Is that happening? I wouldn’t dignify my preliminary inquiries to date with the word “research,” but a quick look suggests a pattern that’s quite at odds with my expectations and with the picture of a “Schmittian” emergency state.
Sort of—but not quite. In coming months I’ll devote a number of posts to the pathologies of our administrative law. To avoid further misunderstanding and to keep me gainfully employed, let’s take this from the top.
The redoubtable David Skeel had an op-ed in yesterdaty’s Wall Street Journal: “A Nation Adrift From the Rule of Law.” It’s a bone-chilling must-read. Along the way, amidst horror stories of extra-legal bailouts and prosecutions, Skeel takes issue with the Eric Posner/Adrian Vermeule postmodernism-for-conservatives riff, which says that the rule of law is never worth a dang in a crisis and so why worry. Putting aside that “pushing the envelope isn’t the same thing as flouting the law,” one has to fear to crisis-induced lawlessness become the new normal. In support of this proposition, Skeel cites the Dodd-Frank Act. Hard to…