Hamburger v. Verkuil
POLICIES FOR THE NEXT ADMINISTRATION. PART 5: THE REGULATORY STATE
Response to Paul Verkuil
By Philip Hamburger
Administrative power is the key civil-liberties issue of our era. It therefore is a pity that Paul Verkuil treats this power as a valuable part of government that has been “misunderstood” as a result of political contention. As a result, he offers only superficial reforms, without recognizing that the danger to civil liberties runs deep.
He reassuringly says administrative power is as old as “the Founding,” citing early “customs officials and military paymasters.” But what distinguishes administrative power from executive power is the administrative issuance of binding rules and adjudications, which traditionally was done neither by military paymasters nor by customs officials — even under Treasury Secretary Alexander Hamilton, who was hardly shy about federal power.
Mr. Verkuil authoritatively asserts that administrative power is a “vital function of government.” As observed in my essay, however, this is an empirical question, and neither he nor others have offered much scientifically serious empirical evidence of this. Nor can they.
Mr. Verkuil takes comfort in check and balances by the branches of government, but such limitations have thus far been weak, and, in any case, they are no answer to the deprivation of civil liberties. For example, he views Chevron's judicial deference to agency interpretation as something that “honors the separation of powers,” but he has nothing to say about the effect of Chevron on parties who challenge agencies in court. Where an agency is a party, Chevron requires judges to engage in systematic bias in favor of the government’s legal position. This is a gross judicial violation of due process and cannot be cured by any amount of checks and balances. What solace is there in being told that Congress “provides procedural rules” when administrative power repeatedly denies the Constitution’s procedural rights — both within agencies and later in court?
Even if administrative power were lawful and desirable, Mr. Verkuil’s reforms are misplaced, especially his “favorite” proposal to hire more “technology experts.” Science is not a fixed matter of expertise, but a moving target, in which today’s truths are already being questioned and overturned. It therefore is fatuous to think that the government can hire persons with life tenure whose expertise will remain up-to-date. This is why private companies, who can fire as well as hire scientists, are so often ahead of the government. The expertise of the administrative state is usually an illusion — another poor justification for the destruction of basic civil liberties.
Nonetheless, while the administrative state persists, Mr. Verkuil’s spirit of reform is encouraging. Following his example, I would add my own proposal for improvement. The president could establish real transparency by requiring all regulatory agencies promptly to publish, in searchable form on the web, some basic information about their administrative lawmaking. This information could include: the names of the administrators who propose, draft, or comment on any potentially binding rule; the names and interests of industry lobbyists who are involved; and copies or recordings of all internal and external communications about any such rule. If unelected administrators and industry lobbyists are to be legislators, let them and their proceedings come under full public scrutiny.
(For the opposing view, see Paul Verkuil, "The Checks & Balances of the Regulatory State.")
Response to Philip Hamburger: A “Dicey” Proposal
By Paul Verkuil
Professor Hamburger wants to take us back to the future. His future begins in England a century ago when the formidable A.V. Dicey, Vinerian Professor at Oxford, descried “administrative absolutism” as a denigration of parliamentary supremacy and the rule of law.
Dicey's powerful attack on administration affected judicial thinking in the United States until the New Deal period, when scholars and judges such as Felix Frankfurter called out Dicey's “misconceptions and myopia.” Hamburger would have us transfer administrative power back to the legislative and judicial branches as a “civil rights issue.” This would mean that the district courts would be expanded to resolve many adjudications currently before administrative (law) judges. Under this approach, we wouldn’t recognize the district courts. There are 660 district and 179 circuit judges presently, and somewhere between 10,000 and 12,000 administrative adjudicators. How many new judges would be necessary under the Hamburger regime? And who would want those jobs? But he doesn't stop there. Professor Hamburger believes it is “a gross denial of due process” to grant the government deference on any question of fact or law. This is an amazing position. Does it mean the “arbitrary and capricious” clause in section 706 of the Administrative Procedure Act is unlawful or even unconstitutional?
The Hamburger position on agency rules seems even more extreme. He would have the president lay major rules before Congress for approval. Professor Hamburger is a bit coy on this since he only asks that some agency rules be so treated initially; then “if the sky doesn't fall,” more could be added, and so on. In this era of what seems to be perpetually divided government, can you imagine, say, President Trump putting all his (presumably deregulatory rules) before a Democratic congress?
Professor Hamburger’s solution might work better in Dicey’s England, which, as a parliamentary system, cannot have our divisions between the branches. But even England has long since accepted administrative law, at least domestically (with a branch of the High Court assigned to review administrative rules and adjudication). Imposition of EU regulations is another matter, of course, and was one of the grievances that led to Brexit. Ironically, we already have a mechanism to achieve Professor Hamburger’s goal of congressional involvement. It’s called the Congressional Review Act, and it requires all major rules to be submitted by agencies to the General Accountability Office, which then sets them before both houses of Congress for disapproval on a fast track basis in 60 days. It has had limited application — in its life there have been some 47 resolutions of disapproval by the Senate, four of which the House passed — but that may reflect the limits of institutional capacity. If we flip the presumption, as Professor Hamburger urges, and require congressional approval, what would be reflected is congressional gridlock, not restoration of constitutional government.
As I mentioned in my initial statement, Professor Hamburger’s best course would be for Congress not to grant agencies rulemaking power in the first place. But he ignores that proposition and resorts to a radical demolition of the administrative state.
(For the opposing view, see Philip Hamburger, "Administrative Power.")
Philip Hamburger is the Maurice and Hilda Friedman Professor of Law at Columbia Law School and the author of Is Administrative Law Unlawful?.
Paul R. Verkuil is former chairman of the Administrative Conference of the United States (2010–2015) and senior fellow at the Center for American Progress.