DEFERENCE AND DUE PROCESS Vermeule, Adrian
Harvard law review,
05/2016, Volume:
129, Issue:
7
Journal Article
Peer reviewed
In the textbooks, procedural due process is a strictly judicial enterprise. As the story runs, the Court in 'Mathews v. Eldridge' settled on a balancing test for determining what process is due, ...while in 'Cleveland Board of Education v. Loudermill' the Court finally decided that although the political branches may determine substantive entitlements, it is for courts to decide independently what process the Constitution requires. The notion that procedural due process might be committed primarily to the discretion of the agencies themselves is almost entirely absent from the literature.
The Publius paradox Vermeule, Adrian
Modern law review,
01/2019, Volume:
82, Issue:
1
Journal Article
Peer reviewed
At the Philadelphia convention assembled to draft a new Constitution, Alexander Hamilton argued 'establish a weak government and you must at times overleap the bounds. Rome was obliged to create ...dictators'. Publius then expands upon this argument in several ways in the Federalist. I suggest that Publius identifies a dynamic or mechanism, the 'Publius Paradox', that warrants great attention: under particular conditions, excessive weakness of government may become excessive strength. If the bonds of constitutionalism are drawn too tightly, they will be thrown off altogether when circumstances warrant. After illustrating and then analysing this 'Publius Paradox', I turn briefly to its implications, the main one being that constitutional law should be cast as a loosely-fitting garment - particularly the executive component of the constitution and the scope of executive powers.
THIN RATIONALITY REVIEW Gersen, Jacob; Vermeule, Adrian
Michigan law review,
06/2016, Volume:
114, Issue:
8
Journal Article
Under the Administrative Procedure Act, courts review and set aside agency action that is "arbitrary and capricious." In a common formulation of rationality review, courts must either take a "hard ...look" at the rationality of agency decisionmaking, or at least ensure that agencies themselves have taken a hard look. We will propose a much less demanding and intrusive interpretation of rationality review—a thin version. Under a robust range of conditions, rational agencies have good reason to decide in a manner that is inaccurate, nonrational, or arbitrary. Although this claim is seemingly paradoxical or internally inconsistent, it simply rests on an appreciation of the limits of reason, especially in administrative policymaking. Agency decisionmaking is nonideal decisionmaking; what would be rational under ideal conditions is rarely a relevant question for agencies. Rather, agencies make decisions under constraints of scarce time, information, and resources. Those constraints imply that agencies will frequently have excellent reasons to depart from idealized first-order conceptions of administrative rationality. Thin rationality review describes the law in action. Administrative law textbooks typically suggest that the State Farm decision in 1983 inaugurated an era of stringent judicial review of agency decisionmaking for rationality. That is flatly wrong at the level of the Supreme Court, where agencies have won no less than 92 percent of the sixty-four arbitrariness challenges decided on the merits since the 1982 Term. The Court's precedent embodies an approach to rationality review that is highly tolerant of the inescapable limits of agency rationality when making decisions under uncertainty. State Farm is not representative of the law; beloved of law professors, and frequently cited in rote fashion by judges, State Farm nonetheless lies well outside the mainstream of the Supreme Court's precedent. To encapsulate the Court's approach to rationality review, the best choice would be the powerfully deferential opinion in Baltimore Gas, decided in the same Term as State Farm. Plausibly, rather than living in the era of hard look review or the State Farm era, we live in the era of Baltimore Gas.
THE THIRD BOUND Vermeule, Adrian
University of Pennsylvania law review,
06/2016, Volume:
164, Issue:
7
Journal Article
Peer reviewed
Our topic is the "bounds on executive discretion." A number of the articles assume, implicitly or explicitly, that there are two principal bounds: law and politics. Yet another subset of the ...articles-a partly overlapping subset-illustrates, implicitly or explicitly, that there is also a distinct third bound on executive discretion: conventions, roughly understood as unwritten but obligatory rules of the political game.
Libertarian Administrative Law Sunstein, Cass R.; Vermeule, Adrian
The University of Chicago law review,
12/2015, Volume:
82, Issue:
1
Journal Article
Peer reviewed
In recent years, several judges on the nation's most important regulatory court—the United States Court of Appeals for the District of Columbia Circuit—have given birth to libertarian administrative ...law in the form of a series of judgemade doctrines that are designed to protect private ordering from national regulatory intrusion. These doctrines involve nondelegation principles, protection of commercial speech, procedures governing interpretive rules, arbitrariness review, standing, and reviewability. Libertarian administrative law, which has a long tradition, can be seen as a second-best option for those who believe, as some of the relevant judges openly argue, that the New Deal and the modern regulatory state suffer from basic constitutional infirmities. Taken as a whole, libertarian administrative law parallels the kind of progressive administrative law that the same court created in the 1970s and that the Supreme Court unanimously rejected in Vermont Yankee. It should meet a similar fate.
In many settings, decision makers seek second opinions and are wise to do so. Sometimes decision makers do not seek second opinions when they should have or seek them when they should not have. In ...yet other settings, legal rules require decision makers to seek second opinions before taking action.
THE MORALITY OF ADMINISTRATIVE LAW Sunstein, Cass R.; Vermeule, Adrian
Harvard law review,
05/2018, Volume:
131, Issue:
7
Journal Article
Peer reviewed
As it has been developed over a period of many decades, administrative law has acquired its own morality. An understanding of the morality of administrative law puts contemporary criticisms of the ...administrative state in their most plausible light. Reflected in a wide array of seemingly disparate doctrines, but not yet recognized as such, the morality of administrative law includes a set of identifiable principles, often said to reflect the central ingredients of the rule of law. Closely related to what Professor Lon Fuller described as the internal morality of law, the resulting doctrines do not deserve an unambiguous celebration, because many of them have an ambiguous legal source; because from the welfarist point of view, it is not clear if they are always good ideas; and because it is not clear that judges should enforce them.
Como o Direito Administrativo deve lidar com a incerteza genuína, em que as probabilidades não podem ser associadas aos resultados? Eu argumento que há uma importante categoria de decisões de ...agências sob incerteza na qual ser arbitrário é racional. A arbitrariedade racional surge quando nenhuma razão de primeira ordem pode fundamentar a escolha da agência, embora a agência tenha válidas razões de segunda ordem para fazer determinada escolha. Quando essas condições prevalecem, até mesmo um jogo de “cara ou coroa” pode ser uma estratégia perfeitamente racional de tomada de decisão para agências. Os tribunais devem adotar uma postura de deferência às decisões racionalmente arbitrárias. Há um papel próprio para as cortes de garantir que agências tenham recursos adequadamente investidos na coleta de informações, o que pode dissipar a incerteza. Ainda assim, o valor de investimentos adicionais na coleta de informações, em alguns casos, será genuinamente incerto. Se assim for, os tribunais devem ter deferência às escolhas de segunda ordem das agências sobre investimentos informacionais pelos mesmos fundamentos que justificam a deferência às escolhas de primeira ordem sob incerteza feitas por agências.
Adrian Vermeule argues that the arc of law has bent steadily toward deference to the administrative state, which has greater democratic legitimacy and technical competence to confront issues such as ...climate change, terrorism, and biotechnology. The state did not shove lawyers and judges out of the way; they moved freely to the margins of power.
The Unbearable Rightness of "Auer" Sunstein, Cass R.; Vermeule, Adrian
The University of Chicago law review,
12/2017, Volume:
84, Issue:
1
Journal Article
Peer reviewed
For more than seventy years, courts have deferred to reasonable agency interpretations of ambiguous regulations. The Auer principle, as it is now called, has attracted academic criticism and some ...skepticism within the Supreme Court. But the principle is entirely correct. In the absence of a clear congressional direction, courts should assume that because of their specialized competence, and their greater accountability, agencies are in the best position to decide on the meaning of ambiguous terms. The recent challenges to the Auer principle rest on fragile foundations, including an anachronistic understanding of the nature of interpretation, an overheated argument about the separation of powers, and an empirically unfounded and logically weak argument about agency incentives, which exemplifies what we call "the sign fallacy."
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