Adrian Vermeule expresses perplexity about my combination of diagnosis and prescription: “On the one hand, Congress has failed systematically… On the other, the remedy is for … Congress to do better. But if the diagnosis is correct, why should we have any faith in the prescription?” I don’t deny that, as a practical matter, getting Congress to do the right thing is likely to be difficult (see the closings of these two pieces).
But conceptually, what’s the confusion? I say the edifice of the state is starting to crumble, and that the only ones with the power to restore it are falling down on the job; Vermeule says that the interiors are kept in rather good condition and that the building is still standing, and so what’s the problem? For me, given our constitutional structure, Congress is the necessary legitimizer of our political order, administrative state very much included, difficulties or no. Vermeule sharply disagrees, arguing that Congress is necessary for precisely nothing; it’s a pity he insists that view isn’t relevant to our current discussion.
Then there is Vermeule’s strange logic when it comes to judging congressional output. If you think Congress is “the preferred lawmaker,” he says, how can you think its outputs, including the delegations underlying the administrative state, are so bad? This is little more than wordplay. Saying that the institution of Congress is given a “preferred,” central place in our system—and doubting that anything can effectively compensate for its failings—in no way commits me to believe that the actual occupants of the institution have done well. Indeed, it makes me more sensitive to their failings. Vermeule says “there is no independent constitutional criterion of desirable breadth or clarity or what-have-you” for congressional delegations, but I’m not seeking to advance any sort of doctrinal non-delegation point about what is constitutionally permitted. Instead, I’m saying that Congress’s combination of intentional responsibility avoidance and unintentional, dysfunction-induced neglect is leading to growing legitimacy problems for our constitutional system.
What sort of legitimacy?
That brings us to the question of what legitimacy means. Employing diametrically opposed understandings of legitimacy, John Hasnas and Adrian Vermeule are both frustrated with my lack of clarity on the subject. Elsewhere, I’ve tried to lay out my position: I agree with Weber (and Vermeule, I think) that we ought to think of legitimacy as an emergent social fact—positive, and not normative (or “moral”) legitimacy. When I say that representative governments have often achieved legitimacy, I do not mean to imply that they meet Hasnas’s (or Crews’s) exacting standards, but that they have employed processes and produced results that most people find broadly acceptable.
Given that posture, Vermeule usefully demands clarification as to whether I see the administrative state facing: (1) a supportive public consensus; (2) a critical public consensus; or (3) a polarized division of opinion. He thinks (1) is obviously correct, with the public correctly apprehending that the administrative state has increased public welfare, and the fact of congressional inaction testifying to the lack of a widespread public sense of outrage.
What I think is the following: support for some kind of administrative state with significant regulatory and welfare functions is very broad and deep. Hence my divergence from libertarians who hope for a redo. But that does not mean that people accept the current instantiation of the administrative state as legitimate. As I explain in my longer paper, people have a vague but growing sense that their government is insular and irresponsible. Of course regular folks don’t usually throw around the terms “administrative state” or “technocracy,” but they are nevertheless worried about the government’s hubris and dismissiveness of critics.
True, these concerns are most strongly felt on the libertarian right, and most often energetically rejected by those on the center-left—but my sense is that, across the political spectrum, concern about the future of representative government is at its highest point in decades. Again, I admit that it’s hard to substantiate that with polling data, but I’m still a bit bowled over by Vermeule’s willingness to look at the 2016 primary campaigns and conclude that the American people are giving a ringing endorsement of the status quo.
When I look at current developments, it makes me think that intellectual discussions like this one need to help Americans get from “something about the system is so wrong that we need to consider blowing it up” to “here’s what needs to change and how our representatives ought to be doing it.” No doubt, peddling a message of “Make Congress Great Again” will strike Vermeule as misguided and many libertarians as hopeless. I’m still game.