More on Being a Fraud

I managed to be inadvertently provocative on this subject last time out, with Michael Greve failing to catch my clin d'oeil towards Akhil Amar's anguished declaration that if Obamacare were turned to dust by the U.S. Supreme Court his whole life would be a fraud. In any event, Greve has now explained in some more detail his skepticism about administrative law.  This has prompted some (rambling) reflection on my part.

He starts:

The hallmark of the administrative state is a power once known as “prerogative”—that is, the power to make binding rules without law, outside the law, or against the law, exercised by someone other than an elected legislature. John Locke understood that royal power, and was against it. The founders understood it, and they wrote an entire Constitution to suppress it. All legislative powers granted in  the Constitution are vested in the Congress, and nowhere else. Except, evidently,  when they’re vested in the Federal Communications Commission, or some other three-letter outfit. There’s the problem.

I am not sure I quite understand the reference to "prerogative" here. Administrative agencies are creatures of statute. To the extent that they exercise free-wheeling powers, by dint of their ability to issue interpretive guidelines or develop policies by adjudication, they must do so within the confines of those statutes. The only possible category of administrative power which resembles the prerogative is that of inherent power, the power to enter into contracts and suchlike, which need not necessarily be granted expressly or by necessary implication by the legislature. But in classic common law theory, such inherent powers can never be used for coercive ends. They are quite unlike the prerogative.

An instructive, hot-off-the-press, case is Moore v. British Waterways Board, [2013] EWCA Civ 73. The question here was whether the respondent, the administrative agency in charge of waterways could compel Mr. Moore to remove his boats from their present mooring place on the basis that the boats were moored "without lawful authority". The Court of Appeal found in favour of the individual. Here are some highlights:

37. As BWB can only require the removal of vessels unlawfully on the GUC, it is necessary to ask whether, even in the absence of an established riparian right to moor, the claimant, on the particular facts of this case, was committing any wrong at common law or under statute, which made what he was doing unlawful? If he was not, what power had BWB under s. 8 to require removal of the vessels?

38. I am alerted to the possibility that the claimant was not committing any wrong by a pithy observation of Sir Robert Megarry V.-C. in Metropolitan Police Commissioner [1979] 1 Ch 344 at 357C:-

"England, it may be said, is not a country where everything is forbidden except what is expressly permitted: it is a country where everything is permitted except what is expressly forbidden."

42. In brief, BWB has no statutory power to compel removal of vessels from this stretch of the GUC when no wrong is committed by the mooring of the vessels alongside the bank possessed or occupied by the claimant. Although the common law does not recognise a positive riparian right to moor alongside the bank permanently, the absence of that right does not necessarily connote the commission of a wrong and the presence of an unlawful mooring. If what the claimant was doing was not a legal wrong, he was entitled to do it. If he was entitled to do it, he was not doing it "without lawful authority" within s.8, because the law allows him to do what it did not prohibit at common law or by statute.

We are quite far here from administrative absolutism!

But this may be to miss Greve's larger point, which is that administrative "law" must be placed in quotation marks because it provides no "meaningful constraint on government". One aspect of this, presumably, is the demise of the non-delegation doctrine, as Greve's reference to "legislative powers" suggests: by removing the need for Congress to state clear policy goals and limits, the Court has (on the view I am imputing to Greve) turned administrative agencies into wielders of broad powers.

This is hardly a new argument (Lowi, Schoenbrod) and it is hardly a uniquely American argument (Lord Hewart). Plenty of writers on both sides of the Atlantic have wrung their hands about untrammeled discretion. And note that in the Westminster tradition, there is no non-delegation doctrine at all, so if anything, the situation ought to be even worse. Yet, I doubt very much that any contemporary British (or Canadian, for that matter) reader would share Greve's fears about the administrative state run amok, for the courts have the power to exercise robust control over the actions of the administration.

Now, it is also true -- as anyone following the debate over the British government's proposals to restrict access to judicial review will be aware -- that hardly any of the many acts of the administration are ever challenged in court. But it does not follow that there is no meaningful constraint on government. The threat of judicial review, to keep the administration within the procedural and substantive limits imposed by statute, is ever-present. And over time, the decision-making norms required by courts (or, indeed, the executive branch) should become internalized by the administration. At least, common sense suggests this is so, subject always to being refuted by empirical analysis. What matters is the internal point of view adopted by administrators.

Nonetheless, as Greve suggests (partly on empirical grounds), there are still problems:

Still, I fret.  As suggested in an earlier post, government now does many things that escape legal process requirements entirely, from unguided administrative waivers and bargains to capital injections into favored companies and labor unions to fiscal repression by phone call.

These seem to me like reasonable concerns, only heightened by doctrines of justiciability which often close off the law as an avenue of attack. Preposterously, American courts see public advocacy organizations as barbarians at the gate, hell-bent on pursuing political agendas through law. Well, yes, but just because someone has a political agenda does not mean that they don't have a coherent legal argument. I suppose in one sense it might be "political" to attack the diversion of bail-out funds to an end not intended by the legislature, but it is hardly a nakedly political argument. If organs of government want to avoid "political" challenges in the courts, they should act lawfully. But these "passive virtues" are rather American: courts elsewhere in the common law world are rarely shy about intervening to condemn unlawful administrative action.

In the end, however, administration is a human endeavour. As Jerome Frank put it, in his reflections on his time as a technocrat, a government of laws must nonetheless be administered by men. It is the character of those who make and administer the laws which will, in the final analysis, dictate what the administration does and how it does it. We would be foolish to think that courts can solve all problems: the internal point of view matters greatly and, sometimes, administrators may fail or refuse to internalize appropriate decision-making norms. However, put this way, the problem is not one of administrative law or "law" at all, but of a dysfunctional political and social system, something Greve himself has hinted at in his most recent post on the subject.

Greve has promised a series of further posts, which are bound to be as interesting as his opening salvos.