Swati Jhaveri: Internal Morality of the Administrative State
The recent post by Cass Sunstein and Adrian Vermeule raises the intriguing question of whether there is and, if so, what is the internal moral content of the administrative law principles crafted by the courts. This post considers whether we can take this enquiry further: do the activities of the administrative state have an internal morality or value system outside of that ascribed to it by courts and/or legislatures?
While recent discussions about deference in judicial review sophisticate the traditional focus on technocratic expertise and/or democratic credentials as reasons for deference, this post considers whether these conversations can be taken further still. What if there is some moral content or force to decisions by the executive that ought to also trigger respect and deference from the other branches? What if the reasons that typically trigger more intense review – for example, questions relating to fundamental rights – were in fact reasons to trigger deference because administrative decision-making in this realm is, in fact, credible and legitimate in some way?
This post sketches the possible virtues or reasons for ascribing legitimacy to administrative decision-making. First, it is possible for administrative decision-making to enhance the outcome legitimacy of a system. This goes beyond just technocratic expertise – to consider the actual outcome of a ‘expert’ decision-making process. Administrative decision-makers may be better positioned to balance conflicting policy interests and constitutional or governance concerns with the least disruption to the various policy and public interest priorities within a system. They thus arguably have the capacity to produce decisions that are more granular and tailored in achieving a particular outcome. In balancing individual versus communitarian goals, they may also be less amenable to the majority and minority capture issues that apply to Parliament. The executive – with the size of its manpower, network and reach to the demos – may also have the opportunity for a greater and more widespread political and public engagement than is possible via Parliament. Administrative institutions are arguably more directly plugged into the public, operating closer to the coal face than the other branches: with greater interaction with stakeholders and other parties affected by administrative action, including social movement groups, business and industry associations, unions and political representatives at all levels. This micro-political engagement can allow for more reflective constitutional decision-making. This could improve the prospects for fulfilling Weberian-type imperatives of exercising political power on a proper empirical or scientific basis.
Secondly, in the constitutional realm, the administrative state has the capacity to interpret constitutional values in a constitutionally progressive manner without micro-management by courts or the legislature. This may be because there are fewer ceilings imposed on their operationalisation of rights, relative to the other branches. The former is not bound by or tethered exclusively to a negative sense of rights’ protection i.e. where rights operate largely as constraints on the political actors. In addition to the possibility of positive and progressive decision-making on rights, the administrative state is not reactive but can be proactive. This can be contrasted to the ex post work of courts (largely focused on policing negative constraints on rights) and the reactive role of the legislature who may only bring up topics for discussion and deliberation in response to other actors. And when legislative bodies deliberate they are at risk of ‘neglect, inertia and blind-spots’.
Finally, administrative actors can also have an impact on sociological assessments by citizens of the legitimacy of a particular system – there is cause to, therefore, pause and reflect on how the administrative state achieves this objective and, more importantly, what kind of behaviour causes this to be undermined and what kind of behaviour needs to be recognised and encouraged.
This post does not seek to valorise the administrative state. Rather, it has proceeded on the basis that in considering questions of internal morality in this area, it may be useful to look at not just the internal morality of administrative law and the work of the judiciary, but also the activities of the administrative state outside of the courts.
Swati Jhaveri is Assistant Professor at NUS Law School and Co-Editor of the Admin Law Blog.