September 26

Cass Sunstein and Adrian Vermeule: The Internal Morality of Administrative Law

Administrative law in the United States (and in many other nations as well) has a kind of morality, closely connected with Lon Fuller’s views about the morality of law. In the United States, important and disparate judge-made doctrines, both large and small, are unified by a commitment to that morality. In numerous cases, federal courts have ruled that agencies act unlawfully when they fail to make rules at all, act retroactively, act inconsistently, and ensure that the actual administration of rules is incongruent with rules as announced.

Some of the underlying decisions have an ambiguous legal source. Sometimes they purport to be rooted in the due process clause or the Administrative Procedure Act, but the link to formal law is weak. In vindicating the perceived morality of administrative law, federal courts have been responsive to what they see as background principles. This is clearest in the context of retroactivity, which, according to the U.S. Supreme Court, “is not favored in the law”; but several doctrines can be understood in similar terms.

Many contemporary critics of the administrative state are best seen as offering Fullerian objections – of urging that agencies are violating one or more of his principles. Understanding the objections in this way puts them in the best possible light, and helps the critics to be their best selves.

At the same time, there is reason for caution in celebrating judicial use of those principles, not only because of the absence of clear legal foundations, but also because the domain of law’s morality is intrinsically limited, and because agencies may reasonably choose, in a broad range of situations, to compromise Fuller’s principles even where they apply.

Cass Sunstein is the Robert Walmsley University Professor at Harvard and Adrian Vermeule is the Ralph S. Tyler, Jr. Professor of Constitutional Law.