Law and Leviathan: Redeeming the Administrative State

Winner of the Scribes Book Award“As brilliantly imaginative as it is urgently timely.”—Richard H. Fallon, Jr., Harvard Law School“At no time more than the present, a defense of expertise-based governance and administration is sorely needed, and this book provides it with gusto.”—Frederick Schauer, author of The ProofA highly original framework for restoring confidence in a government bureaucracy increasingly derided as “the deep state.”Is the modern administrative state illegitimate? Unconstitutional? Unaccountable? Dangerous? America has long been divided over these questions, but the debate has recently taken on more urgency and spilled into the streets. Cass Sunstein and Adrian Vermeule argue that the administrative state can be redeemed so long as public officials are constrained by morality and guided by stable rules. Officials should make clear rules, ensure transparency, and never abuse retroactivity, so that current guidelines are not under constant threat of change. They should make rules that are understandable and avoid issuing contradictory ones.These principles may seem simple, but they have a great deal of power. Already, they limit the activities of administrative agencies every day. In more robust form, they could address some of the concerns of critics who decry the “deep state” and yearn for its downfall.“Has something to offer both critics and supporters…a valuable contribution to the ongoing debate over the constitutionality of the modern state.”—Review of Politics“The authors freely admit that the administrative state is not perfect. But, they contend, it is far better than its critics allow.”—Wall Street Journal
Many Americans fear the power of unelected, unaccountable bureaucrats—the “deep state.” Cass Sunstein and Adrian Vermeule seek to calm those fears by proposing a moral regime to ensure that government rulemakers behave transparently and don’t abuse their authority. The administrative state may be a Leviathan, but it can be a principled one.