Joseph Postell

Joseph Postell is Assistant Professor of Political Science at the University of Colorado-Colorado Springs. His research focuses primarily on regulation, administrative law, and the administrative state. He is the editor, with Bradley C.S. Watson, of Rediscovering Political Economy (Lexington Books, 2011), and with Johnathan O'Neill, of Toward an American Conservatism (Palgrave Macmillan, 2013).

Architects of Manipulation

Simpler

Alexander Hamilton, in the opening essay of The Federalist, famously declared that the American experiment would determine “whether societies of men are really capable of establishing good government from reflection and choice, or whether they are forever destined to depend for their political constitutions on accident and force.” In his new book, Cass R. Sunstein implicitly asks the same question: Are we really capable of governing ourselves through our own reflection and choice? Contra Hamilton, Sunstein concludes that we are destined to rely on accidental circumstances, namely whether “choice architects” create an environment in which we will choose correctly.

Simpler: The Future of Government is one of Cass Sunstein’s better books. Largely unconcerned with constitutional or legal theory, it straightforwardly explains how insights derived from behavioral economics have informed the Obama administration’s revolutionary approach to regulation. (He of course was one of the chief revolutionaries, having served from 2009 to 2012 as head of the White House Office of Information and Regulatory Affairs.)

Those interested in the regulatory state, regardless of their political orientation, will learn much from Simpler. It presents a powerful case for a more nuanced understanding of human behavior than that offered by neoclassical economics, and it connects this new understanding to important regulatory initiatives of recent years. However, in the final analysis, Sunstein overlooks the fundamental questions by neglecting the distinction between “nudging” and shoving and by hiding behind his pragmatist veneer.

Sunstein’s basic purpose here is to advance his project of “libertarian paternalism.” The present book draws heavily upon the concept of Sunstein’s 2008 coauthored book (with Richard H. Thaler), Nudge: Improving Decisions About Health, Wealth, and Happiness. He writes in Simpler that regulation ought to frame choices so that individuals retain the power of choice, but are induced to choose in accordance with the wishes of the bureaucrats who serve as what he calls “choice architects.” Nudges subtly manipulate citizens’ choices. They are, according to him, “approaches that influence decisions while preserving freedom of choice.”

And he believes that nudges are often more effective at changing behavior than regulatory commands because human beings (as he correctly observes) do not simply choose based on rational calculations of their own interest. “The social environment against which we make our decisions” matters much more than our rational calculation of the consequences of our choices. What follows, for him, is that bureaucrats, by manipulating this social environment, can attain the ends they seek without the messy means of mandates. Behavioral economics has a better understanding of human beings than the old neoclassical approach. “At this point,” writes Sunstein, “it is not exactly news that people do not behave like the ‘rational actors’ of economics textbooks. We are Homo sapiens, not Homo economicus.”

He uses an analogy from Daniel Kahneman’s Thinking, Fast and Slow (2011) that conveys the basic reasoning of behavioral economics. By this reasoning, there are two systems in the mind. “System 1 is the automatic system” that relies on instinct and intuition to induce choices. It is a faculty of the mind, writes Sunstein, but “much of the time, it is on automatic pilot.” It does not possess what Aristotle calls practical rationality. That capacity belongs to “System 2,” which is “a bit like a computer or Mr. Spock from Star Trek. It is deliberative. It calculates.” Most human beings employ System 2 infrequently, relying instead on System 1 to make the myriad choices with which they are confronted in everyday life.

The problem is that System 1 acts irrationally. When it is in charge, people make decisions that do not maximize their rational self-interest. As Sunstein points out, people are more likely to make a risky investment on a sunny day, and more likely to give money to charity if the checkbox is green rather than red. They are also loss-averse, which means that they will demand more to give up an item like a lottery ticket than they would be willing to pay for it in the first place. “This finding complicates free market thinking,” Sunstein rightly argues, for the evidence shows that human beings “depart from economic understandings of rationality.”

Armed with their view that what matters most is the environment in which a choice is made, “choice architects” can direct us by changing the environment—by, say, requiring disclosure of information, restructuring default options, automatically enrolling people in certain programs, or presenting citizens with information in a strategic way. By following this model, says Sunstein, government will not only act in a way that is simpler, it will more effectively control citizens.

This argument exploits a massive weakness in neoclassical economic thought. The notion that whenever human beings choose, their decision reflects their true preference misses some very important characteristics of human behavior. The American Founders, of course, did not ignore these characteristics. The Federalist authors’ view of human nature was anything but simplistic. Man’s reason is fallible, James Madison explained in Federalist 10, and this means that his passions and opinions will have a reciprocal effect on each other. “It is a just observation,” Hamilton added in Federalist 71, “that the people commonly intend the public good.” Be that as it may, “their good sense would despise the adulator, who should pretend that they always reason right about the means of promoting it. They know from experience, that they sometimes err; and the wonder is, that they so seldom err as they do.”

As the Founders understood, human beings are not just rational calculators; they are bundles of reason and passions. The key is to have reason inform the passions through good habits, which promote sound practical judgment.

By relying too heavily upon the power of rational self-interest, defenders of neoclassical economics have ceded ground to proponents of behavioral economics, who are not reluctant to manipulate the passions of citizens to influence their choices. Until neoclassical economists return to an understanding of human behavior that recognizes the effects of the passions and of the social environment in which choices are made, they are likely to be frustrated by the advancement of policies based on behavioral law and economics.

But if neoclassical economists wrongly overemphasize the rational faculties, behavioral economists go off track in a different way: They neglect the possibilities of these faculties. What is striking about Simpler is how little Sunstein expects of people, and how his approach to government will ensure that little will be expected of them in the future. Rather than seeking to elevate citizens’ decision-making capacities, Sunstein takes the path of least resistance: let’s just manipulate the environment so that their passions unwittingly produce a good choice.

This is a recipe for an increasingly inept citizenry, devoid of the habits of self-government, as Joshua Wright and Douglas Ginsburg have argued previously on this site. Yet Sunstein is little troubled by nudging’s probable long-term harm to the character of citizens. His lack of unease points to two fundamental problems with his presentation.

The first has to do with what ought to count as a nudge. Sunstein offers many examples that have been pursued by the administration—presumably at his urging—over the past few years:

  • A Department of Transportation requirement that airlines disclose the fees associated with the cost of airline tickets.
  • A Department of Agriculture requirement that all grocery stores disclose the nutrition information of food at their deli counters.
  • A Department of Health and Human Services rule requiring disclosure of all “unreasonable” increases in health-insurance premiums.
  • A Department of Education requirement that educational institutions disclose their costs, their rates of graduation, and other associated statistics.
  • A Federal Reserve rule forbidding banks from charging overdraft fees unless account-holders actively authorize their enrollment in the program.
  • A Food and Drug Administration requirement (struck down in court) that cigarette companies present graphic anti-smoking images on their packaging.

Sunstein calls nudges what are in fact mandates and prohibitions. True, they do not directly restrict the freedom of consumers; but they certainly restrict the freedom of other economic actors. Whether or not one agrees with these requirements (and I would agree with many of them), labeling them as nudges stretches the limits of credulity. The author is keenly aware of the need to make these examples convincing to his readers. But if we employ our “System 2” calculator faculty for a brief moment, it is clear that while we are being nudged, others are being controlled.

Sunstein wants us to think that coercion and constraint are absent from nudging, but the heavy hand of government is still present. Furthermore, as he emphatically affirms—perhaps to appease readers politically to his left—governmental use of nudges, when he was at OIRA, did not entail a corresponding decrease in other kinds of regulation. “We issued a lot of nudges, but we did much more,” he boasts. “If government requires people to make a (tax) payment for failing to purchase health insurance, it is not nudging.” He reminds us that “in the Obama administration, we took big steps to increase the fuel economy of cars, not by nudges but by mandating big increases in the fleet-wide MPG average.” Even by his own spurious definition of nudging, Sunstein acknowledges that much of what he supported at OIRA was traditional command-and-control regulation.

The second problem has to do with Sunstein’s alleged pragmatism, a subject about which I have written elsewhere. In Simpler, as in his other writings, Sunstein attempts to position himself as someone who merely follows where the facts and the data lead. He has consistently pitched his approach as “Regulatory Moneyball”—a reference to Oakland Athletics’ General Manager Billy Beane’s emphasis on sophisticated empirical analysis rather than intuition or feeling in evaluating baseball talent.

But in spite of this attempt to transcend the world of opinion and values, his opinions and his values often creep into the discussion. Organ donation is one example. Sunstein notes that the use of default rules can change behavior dramatically when it comes to designating one’s organs for use upon one’s death. Donation would skyrocket if government were to “presume that people consent, at the time of death, to donate [their organs] but allow them to opt out if they wish.” In other words, the default rule would be to donate, but anyone who wishes to do so could opt out. Now, he quickly adds, “I am not contending that this is right policy; my only claim is that if we want to make more organs available for those who need them, we should be aware that the default rule really matters.”

Another example is preventing obesity, about which the author writes: “When fast food restaurants are located near schools or residences, both children and pregnant women gain a lot of weight. And when unhealthy foods are made even slightly less accessible, their consumption is reduced.”

Sunstein, inexplicably, does not proceed from these “impartial” observations to proposing, say, a default rule in favor of organ donation, or a default rule that fast food restaurants may not be located closer than a half-mile from major residential areas. After all, these would fit Sunstein’s definition of a nudge. If these actions would change behavior in a positive way, why not start nudging?

Especially since bad actors are out there nudging bad things. “Many restaurants ask consumers if they would like to ‘supersize’ their order,” he writes. “What about asking people if they would like to ‘downsize’” and thereby save money? When this was attempted, a dramatic change in consumers’ behavior resulted. So why not mandate a similar script to be read to customers at the fast food window? These would be mandates imposed upon businesses, but as we have seen, for Sunstein this is consistent with nudging as long as consumers’ choices are not mandated.

Sunstein’s refusal, without explanation, to carry the nudge principle into these areas reveals the limits of his alleged pragmatism. He must have recourse to some extra-scientific, value-laden principle that distinguishes why it is okay for government to nudge in some ways to produce better outcomes, but why government can’t employ other nudges that would also produce better outcomes. “Moneyball” will not suffice. The fundamental problem is that the issues in regulatory policy are far more complicated and the objectives are far less explicit and measurable than those in Major League Baseball. It is much easier to operationalize on base percentage than “social welfare,” which (according to Sunstein) is what cost-benefit analysis attempts to measure when it calculates the benefits produced by agencies’ rules. When we hear the government’s rationale for valuing saving a human life at somewhere between $7 million and $9 million, we hardly feel assurance that enlightened social scientists, devoid of the subjectivity of “values,” are at the helm.

In a chapter distinguishing his approach from the “Nanny State,” Sunstein attempts to get out of the problem this way: “The use of paternalism – soft or hard – for illegitimate ends is wrong because the ends are illegitimate.” With this unhelpful tautology, he tries to extricate himself from what he refuses to recognize as serious moral dilemmas. The “choice architects,” by this reasoning, will only use their soft paternalism for legitimate ends, and they will not stray from those legitimate ends. All of this presumes, of course, that we can distinguish legitimate from illegitimate ends – a presupposition Sunstein adopts without defending in order to frame the issue in a palatable way.

Simpler is an important book for framing the strengths and the weaknesses of what Sunstein calls nudging. The view of human nature upon which nudging is based is arguably more robust and accurate than the prevailing view that considers human beings to be rational preference-maximizers. We would do well to take that part of the author’s argument seriously. But he seeks to use choice architecture in place of a political system that helps to cultivate the faculties of practical judgment that are necessary for a well-functioning popular government. Sunstein’s attempt to position himself as a mere pragmatist, and the perils into which he falls as a result, remind us that politics will never be devoid of serious disputes about the nature of justice.

Bodychecking the Administrative State

It’s been great fun blogging at LibertyLaw this month, and I thank Richard Reinsch for the opportunity to opine. As I conclude my tenure as guest blogger, I want to respond to some of Greg Weiner’s very interesting and provocative suggestions about Congress and the administrative state. He is right to focus on Congress as the centerpiece of any successful reform movement, but I have a few tentative hesitations about his suggestions.

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The Imperial Mount Rushmore

Though it’s been a few weeks since it appeared, I would be remiss if I didn’t mention Stephen Knott’s excellent piece on whether Woodrow Wilson destroyed the office of the presidency. The clamor about the imperial presidency is on the rise with many commentators (such as George Will) and Knott’s article gives us a better understanding of its rise, as well as its implications. Knott describes the “expectations gap” that has arisen due to modern conceptions of the presidency, where we expect the president to heal the planet, rather than work to enact reforms within the institutions of constitutional government.

In response to Professor Knott I would only mention that I think Woodrow Wilson may not even deserve top billing in terms of producing the rise of presidential power.

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Saved By the Bar?

2014 has been a great year for reading about the tense relationship between the modern administrative state and American constitutionalism. F.H. Buckley’s The Once and Future King attempts to grapple with the accretion of power towards the executive in modern democracies, while Philip Hamburger’s Is Administrative Law Unlawful? explores the challenges that the administrative state poses for the rule of law.

A third contribution by Georgetown Law professor Daniel Ernst, titled Tocqueville’s Nightmare, argues that the tension between bureaucracy and freedom was actually resolved in American history by reformers between 1900-1940. Thus (like Jerry Mashaw’s 2012 book Creating the Administrative Constitution) it seeks to defend the administrative state against accusations that it cannot coexist peacefully without our constitutional system.

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The Cheese(makers) Stand Alone

In a decision that has been criticized on both the right and left, the FDA announced a ban last week (via executive decree) on the use of wooden boards for aging cheese. It has since relented after receiving pushback from cheese interests, including the American Cheese Society. While hardly unprecedented, this example of bureaucratic rule helps illustrate a few basic, fundamental problems with the administrative process.

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Administrative Adjudication: Even Worse than it Looks?

Like many others at the moment, I am making my way through Philip Hamburger’s Is Administrative Law Unlawful? One of the most shocking chapters is his chapter on America’s “Return to Extralegal Adjudication,” a problem that constitutional law had originally aimed to constrain, but which has re-emerged in the context of the modern administrative state.

I knew that there were problems with administrative adjudication – I just didn’t grasp how pervasive the problems were until Hamburger laid them out so systematically.

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America’s Egalitarian Edge over Europe

World Cup 2014 competition resumes this week, with 32 teams in eight groups competing for 16 spots. Each group features four teams in a round-robin format, so every team will play three matches. The two top point-earning teams in each group will advance to the round of 16. (The Americans’ prospects for advancement appear somewhat but not altogether bleak.)

European football has always puzzled me in comparison to American sports. Europeans often pride themselves in advancing a more egalitarian society in which opportunities for success are widespread rather than concentrated. By contrast, the Americans, they argue, allow for great disparities and inequalities of income and wealth. (Some argue that the facts do not support this fulmination against income inequality, but leave that aside for purposes of this argument.)

The basic impulse of this criticism is a desire to promote equality of outcome, rather than greatness. If some at the top have to be moved down a notch or two, we may sacrifice magnificence at the top, but we will provide greater and more widespread opportunity overall.

The reason I find this puzzling is that, when applied to sports, Americans tend to prefer egalitarianism – known in sports as parity – when compared to their European counterparts. All joking about the Yankees and Lakers aside, championships are more widespread in American sports than in European football.

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Time to Demote the Separation of Powers?

I’ve just finished F.H. Buckley’s excellent new book The Once and Future King. I’m reviewing the book for another outlet so I won’t repeat myself here, but here’s the short version: Professor Buckley has identified a key weakness in the American system of government, but perhaps has misidentified its roots. Regardless, I think that his book is very important for thinking about a way out of our present gridlock and dysfunction.

Here I would like to take up and challenge one of the most controversial parts of Buckley’s argument.  

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What’s the Administrative State’s Date of Birth?

I’m thrilled to be guest blogging this month, and looking forward to discussing the administrative state, political parties, and other topics. For my first post I want to bring up an interesting question that emerged in a review by Ted McAllister (and in the comments) from last week, regarding the origins of the modern regulatory/administrative state. Scholars often trace the birth of the administrative state to the 1880s, especially in two critical episodes: the passage of the Pendleton Act in 1883 which created the modern civil service, and (more importantly) the passage of the Interstate Commerce Act in 1887, which created the Interstate Commerce Commission. This history of the administrative state makes the late nineteenth century the critical turning point in American history.

This is a plausible, but ultimately I think a mistaken history. The regulatory initiatives of the late 19th Century were much more consistent with an earlier view of American constitutionalism that they appear at first glance. They were not necessarily harbingers of the modern administrative state. Tracing the birth of the administrative state to the 1880s is somewhat misleading.   

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Courts, Agencies, and Constitutionalism: Further Thoughts

I’m very thankful to the Liberty Law site for offering me this opportunity to discuss some fascinating and important issues surrounding our modern administrative state. And I appreciate both Professor Lawson’s and Professor Seidenfeld’s responses to my essay, as well as Professor Greve’s contributions to our debate.

Administrative Law Orthodoxy: Perpetuating the Status Quo

Professor Seidenfeld’s central proposition is that I am guilty of a heresy. I depart, he argues, from the “premises shared…by the general community of scholars who study the administrative state.” Specifically, his view is that my argument “rests on strictly libertarian assumptions.” My libertarian assumption, he alleges, is “that the proper job of courts is to reduce the size of the administrative state.” Right thinking administrative law scholars, by contrast, “believe that the role of courts should be to ensure that government operates deliberatively and transparently to perform the tasks that the political branches have assigned it by statute.”

Since the essay adopts unacceptable premises, Professor Seidenfeld refuses “to be hemmed in by Postell’s untenable assumption” and does not offer “a direct response to his polemics.”

Professor Seidefeld’s accusation of heresy is partly correct: I depart from the assumptions generally accepted by many administrative law scholars. Administrative law scholars tend to use administrative law as a means of tinkering with the administrative state – smoothing out its rough edges but keeping the edifice essentially intact. I’m more interested in considering alternatives to the administrative state itself.

However, I believe that Professor Seidenfeld is wrong about what my alternative assumptions actually are, and therefore he is wrong to refuse to consider them. My central goal is not to advance libertarianism. I am more interested in preserving sound institutions than I am in limiting regulation. In other words, my main goal is not to eliminate regulation but to “ensure that government operates deliberatively and transparently.”

Thus, read carefully, my argument actually adopts the exact premises that Professor Seidenfeld chides me for shirking. My goal is not to use polemics to eliminate regulation and produce a minimal state. It is to have regulation that is produced through deliberative, transparent means. New means, to be sure, but in pursuit of the goals embraced by orthodox administrative law scholars.

Professor Seidenfeld argues that this is a fool’s errand: “[t]he notion that the courts through common law actions can provide the regulation necessary to maintain even a minimalist conception of the modern state is ludicrous.” An often-repeated assertion, but I’m skeptical. Scholars such as William Novak, Brian Balogh, and Jerry Mashaw (and too many others to mention) have chronicled the vast scope of regulation in nineteenth-century America and found no “minimalist state.” In my view the evidence clearly indicates we can have plenty of regulation within our constitutional system. Whether we use common law actions, clear statutes with clear prohibitions to be enforced by agencies and adjudicated in independent courts, or all of the above, we can find methods for producing regulations without scrapping the rule of law.

Furthermore, my hesitation about administrative justice has roots in the anti-bureaucratic wing of the Progressive movement of the early 20th-century, a movement few would characterize as libertarian. Woodrow Wilson (at least in 1912), Louis Brandeis, Robert La Follette, and other influential progressive reformers were just as wary of administrative justice as I am today. (By contrast, the railroads were the chief advocates of a strong commission during the creation of the ICC.)

(For the record: I favor national ambient air quality standards. I favor workplace safety standards. I favor food, drug, and consumer product safety regulations. I favor banking regulations. But I am interested in thinking creatively about how we might produce these regulations in a way that does not subvert representative democracy and the separation of powers. That such an approach is dismissed as heretical speaks volumes about “mainstream administrative law scholars.”)

Reforming Administrative Law through Congress

Since Professor Lawson neither “shirks from” being labeled “quixotic” or “bizarre,” he is less willing to reject my argument out-of-hand. He does present important and challenging problems for my argument.

Professor Lawson’s chief objection is that history (the pre-administrative state arrangement I outlined) and political science (the extent to which the President holds agencies accountable) are not the “real reason[s] why rule-of-law advocates should be contemplating increased judicial involvement in administrative law.” Rather, “a case against extreme judicial deference to agencies should focus on law rather than political science.” Professor Lawson then proceeds to make the legal case against extreme judicial deference.

Broadly, he argues that judicial deference to agencies is a function of the “legislative command” of Congress. On questions of fact and policy, courts are commanded by Congress to defer to agencies. Opponents of deference, therefore, have three options: 1) deliberately misinterpret the law, 2) change the law, 3) find laws that command deference to be unconstitutional. Professor Lawson chooses the third option since “Congress cannot tell the courts what process of reasoning to employ in deciding cases.”

This is an intriguing suggestion, and one to which I will defer for purposes of the argument. But I am inclined to think that Professor Lawson dismisses the second option too hastily. The political climate, he argues, is not conducive to passing statutes that will establish a wider scope of review in various areas of administrative law: procedural review, substantive review, review of agency legal interpretations, availability of judicial review, and the like. This very well may be true. But I think it is important to remember that liberals, not conservatives, are responsible for expanding judicial review in these areas over the past 40 years, and not simply on the basis of political advantage (i.e., conservatives controlled the presidency and the public interest groups were mostly on their side).

In short, perhaps many on the left would find increased judicial review of agencies appealing, in spite of the immediate political calculus. (As an aside, I’m with Professor Greve that the “calculus of who will own the agencies and the courts respectively” should not play a role in determining the institutional arrangements, and my proposals would apply regardless of who controls which branches of government.) And in any event, introducing thoughtful reforms that adjust the scope and standard of judicial review certainly allows for more appealing and interesting arguments than simply attempting to eliminate major federal programs. This strategy allows us to start talking about procedural and institutional reforms, rather than laissez-faire (unless, of course, those arguments are misinterpreted to mean laissez-faire, which apparently seems likely).

All of this is to say, I think, that while the legal reasons against extreme judicial deference are valid, the administrative state is ultimately a function of politics as well as law, and reform of the administrative state cannot be an entirely legal project, to be carried out through reform of administrative law doctrine. Political reforms – i.e., reforms forged through a political, legislative process – will inevitably play a significant role, and political arguments are informed by historical and political arguments as well as legal arguments.

What Exactly am I Talking About?

To leave the discussion at such an abstract level, Professors Lawson and Greve both rightly assert, is not helpful. Professor Greve states the basic question: “what exactly do we want courts to do?” Professor Lawson explains that I need “to spell out the mechanism(s) by which that reconsideration [of judicial deference] will take place.” In a 3000-word opening salvo, it simply was not possible to be very specific, but once the right principles are established, I acknowledge that it is just as important to get down to brass tacks.

Professor Lawson suggests that my “chief target” is the Chevron doctrine, which (roughly) requires judicial deference to any reasonable agency interpretation of an unclear statutory provision. Chevron probably needs to go. Professor Lawson supports my opposition to Chevron, once again suggesting that I don’t need history or political science to object to Chevron since the legal arguments are compelling. While I agree that there is no clear legal (i.e., statutory) authority for the Chevron doctrine, it certainly would not be difficult to take the political route and propose positively eliminating the doctrine by statute. Since many legal thinkers on the left have made Chevron a prime target in recent years, once again this may be a feasible political project.

Chevron has to do with how courts will review agencies’ legal interpretations within the existing administrative state. Professor Greve notes that my argument points in a very different direction – namely, a rethinking of the administrative state from the ground up. I suggested that we consider two alternative models that allow for regulation but with a very different institutional structure: common-law regulation and the German Rechtstaat. As Professor Greve thankfully explains, the Rechtstaat “has nothing to do with small government,” but is primarily concerned with “lawful government – which can be very, very big.” I agree that if we adopted common-law regulation or the Rechtstaat model, we would still have a large government, but we would have a more lawful government.

Professor Greve knows exponentially more than I do about the Rechtstaat, but he draws a helpful distinction between public matters and private rights that I think is instructive. In the Prussian model, independent courts were established for review when actual, individual rights are violated. At the same time, however, administrative courts were established for the adjudication of public matters through an administrative process. With regard to the resolution of public matters, procedures were severely limited, but with independent courts there was de novo review of questions of law and fact.

As a variation on this theme, I would propose serious consideration of Professor Rappaport’s suggestion on this site that certain kinds of adjudications be moved from agencies into independent courts. A helpful rule (which Professor Lawson has explained clearly in his administrative law textbook) is this: if the agency is making a determination that takes life, liberty, or property, private rights are implicated and the decision has to be made by an independent court. Conversely, if the agency is making a determination involving “public matters” an administrative tribunal is fine. But even in this latter case, it is essential to keep the investigators, enforcers, and judges separated as much as possible. (Such distinctions between different types of agency actions incorporate JV DeLong’s thoughtful comment that different agencies are different, and that no “one size fits all” solution to this question is wise.)

As is probably apparent by now, I don’t exactly know what exactly needs to be done to (in Professor Greve’s words) “re-constitutionalize the administrative state.” But I am convinced that the administrative state needs to be re-constitutionalized and that such a project will involve going “outside the domain of administrative law.” And the most likely forum for conjuring up principled and thoughtful reforms is one that brings together scholars who take constitutionalism seriously. So I thank the Liberty Fund for facilitating this exchange.

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Deference to Whom?

Joseph Postell’s timely call for reconsideration of the proper judicial role in overseeing the administrative state[1] deserves serious attention. He is right that rule-of-law advocates (a term that I prefer to “conservatives”) often have so much suspicion of courts that they do not think carefully about the possibility that there is too little rather than…

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Courts Should Ensure a Deliberative and Transparent Administrative State

When I agreed to respond to Professor Postell’s essay, I thought that we would be operating on premises shared, not only by him and me, but also by the general community of scholars who study the administrative state. Upon reading his essay, however, I realized that my understanding was incorrect. Postell’s essay rests on strictly…

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