From the bottom of my heart, I hope that Adrian Vermeule’s breezy confidence in the remoteness of a legitimacy crisis is right, and that my own significant trepidation is just so much needless chin-stroking, as he suggests in his response to my original essay. But Vermeule’s arguments fail to persuade, and I remain seriously worried.
Vermeule says that “three concepts are indispensable to any discussion of a putative ‘legitimacy crisis’ in the administrative state: delegation, the presidency, and welfare, in the sense of well-being.” I address them in turn.
Vermeule argues that “the administrative state is almost entirely the creature of Congress,” which has delegated significant powers to the executive, all the while “shaping and constraining” those delegations and providing oversight to prevent abuses. Delegating is a species of normal lawmaking—maybe the predominant one—and as such enjoys all of the legitimacy of normal lawmaking. Vermeule thinks that when I and others criticize the administrative state and offer incremental Congressional lawmaking as a preferred alternative, we are being utterly incoherent.
Vermeule errs here in revealing ways. Although he is unquestionably correct in describing delegation as an ancient and venerable tradition in American policymaking, he shows no awareness of any sense of degree. From the fair assertion that statutory delegations aren’t “blank checks,” he somehow leaps to the conclusion that they are equally unproblematic in coupling executive empowerment with needed limitations and accountability mechanisms. Obviously they are not.
On one end of a spectrum are delegations that charge agencies with well-defined, clearly bounded policy objectives; on the other, those that create reservoirs of ill-defined powers that can be taken up to address problems quite unrelated to those targeted by the statute’s authors. At this point in the administrative state’s history, delegations on the problematic side of that spectrum have piled up and worryingly empower an increasingly insular administrative state to do as it pleases.
If Congress nevertheless continually adjusts the scope of delegations as it learns from experience, that should tend to produce arrangements that are both substantively effective and imbued with fresh democratic legitimacy. But this kind of reorienting happens with distressing infrequency. In Vermeule’s way of thinking, the fact of congressional inaction allows us to infer the basic acceptability of the status quo, but, like many others, I suspect profound legislative and political dysfunction is more often the cause in recent years. The persistence of the status quo for any given policy is thus no reassurance that it enjoys public support or legitimacy. Administrative state actions are surely backed up with chapter and verse citations of existing statutes, but this formalistic justification loses its ability to confer legitimacy if the body of statutory law is being manipulated rather than refreshed. The key point here is that the legitimacy crisis of the administrative state and the steady deterioration of Congress are two sides of the same coin, and they must be reversed together.
I’m afraid I cannot pass from this subject without briefly noting that Professor Vermeule is an exceedingly strange messenger for this argument about the legitimacy that Congress can confer. In The Executive Unbound (coauthored with Eric Posner), he denounces the conventional “Madisonian” constitutional understanding, which sees the legislature as basically controlling the executive. He claims that this model cannot be reconciled to the inevitable reality of a dominant administrative state largely uncontrollable by law. More recently, he mused that Congress’s irrelevance has advanced so far that we should seriously consider just sacking it. So I am a bit perplexed to find him arguing that the administrative state does and will continue to draw meaningful legitimacy from the sanction of an institution he claims is has passed its sell-by date.
Vermeule then suggests that the president can discipline and lead the administrative state and thus cover it in his own legitimacy; here he channels Elena Kagan and makes a reasonable-sounding case. The president’s election by the whole country does seem like it should confer an unmatched sense of legitimacy that can be spread around much of the federal government’s work.
But does it, in practice? In the modern hyperpolarized age, the president seems to be a focal point for partisan anxieties as much as a source of legitimacy; the White House’s next occupant seems likely to begin office facing a level of animosity not seen since the election of 1860. Nor is it clear that even a reasonably well-liked president can take ownership of the administrative state’s activities enough to make the public feel that its actions are basically emanations of the public will. My concerns are, to a significant degree, rooted in worries of ungovernability and incoherence, and come from studying policy areas where presidents seem to by playing catch-up to ad hoc decisionmakers rather than providers of political direction.
Welfare and the Appropriate Standard of Judgment
Vermeule asserts that “whether we look at a short time-scale or a long one, the broad mass of the citizenry seems quite pleased indeed to live in an administrative state.” He says living in “a robust welfare state” causes people to be happier (though offers only some international correlations in support), and dismisses polling data that I cite showing widespread distrust of American government as not “bear[ing] directly on the legitimacy of the administrative state.”
Vermeule is not the first to react to my work in this way, and I will admit that it is hard to produce empirical data that squarely and definitively show the administrative state has a legitimacy crisis. But, especially in this political season, I find it hard to understand the unflappable complacency that allows him to think “the administrative state goes from strength to strength” in terms of legitimacy. I don’t doubt that Medicare and federal worker protections have broad support among both parties, but I have no idea why Vermeule thinks that means people must not be alienated from the workings of the federal government. Nor do I see why he should be so indifferent to polling data showing plummeting levels of trust in our government institutions; perhaps he thinks that if the people are not revolting, there must not be a crisis.
I may be living in a different world than Vermeule, but recent political developments convince me that a crisis is indeed upon us, if only in simmering form for now. When three of the four leading vote-getters in the presidential primaries call for dramatic departures from our current way of governing, we should be able to agree that something is afoot.